Kesterson Box Co.

National Labor Relations Board - Board Decisions

Apr 5, 1945

61 N.L.R.B. 355 (N.L.R.B. 1945)

In the Matter of KESTERSON LUMBER CORPORATION AND IRVING E. KES-
TERSON AND W. I. KESTERSON , D/B/A KESTERSON Box COMPANY I and
KLAMATH BASIN DISTRICT COUNCIL, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, AFL
Case No. 19-R-1441.-Decided April 5, 1945
Mr. John B. Ebinger, of Klamath Falls, Oreg., for the Company.
Messrs. Donald Gilman and Hugh, R. Haddock, of Klamath Falls,
Oreg., for the AFL.
Messrs. Vernon N. Chase and M. G. King, of Klamath Falls, Oreg.,
for the IWA.
Mr. Thomas A. Ricci, or counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OR THE CASE
Upon, a petition duly filed by Klamath Basin District Council,
United Brotherhood of Carpenters and Joiners of America, AFL,
hereinafter called the AFL, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Kes-
terson Lumber Corporation, and Irving E. Kesterson and W. I. Kes-
terson, doing business as Kesterson Box Company, all of Klamath
Falls, Oregon, and herein collectively called the Company, the Na-
tional Labor Relations Board provided for an appropriate hearing
upon due notice before John E. Hedrick, Trial Examiner. Said hear-
ing was held at Klamath Falls, Oregon, on February 6, 1944. The
Company, the AFL, and Local 6-12, International Woodworkers of
America, CIO, herein called the IWA, appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were af-
forded opportunity to file briefs with the Board. In its brief, the IWA
I Name as amended at the hearing.
61 N L. R. B., No. 49.
355
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moved to dismiss the petition. For reasons set forth in Section III,
infra, the motion is denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Kesterson Lumber Corporation, organized and existing under the
laws of the State of Oregon, has its office and principal place of busi-
ness at Klamath Falls, Oregon, where it is engaged in the manufacture
and sale of rough and finished lumber. It uses 45 to 50 million board
feet of logs per year, all of which is obtained from points within
the State of Oregon. It produces approximately 50 million board
feet of rough and finished lumber per year. A substantial portion
of its products is sold to the Kesterson Box Company, which, after
processing it, ships almost all of it to points outside the State of
Oregon. Including the portions sold to the Kesterson Box Company,
approximately 95 percent of the products of the Kesterson, Lumber
Corporation is shipped to points outside that State.
Kesterson Box Company, a partnership, has its office together with
that of the Kesterson Lumber Corporation, and produces boxes and
box shooks in a plant adjacent to the lumber mill of the Kesterson
Lumber Corporation. It purchases all its lumber from the Kesterson
Lumber Corporation and ships almost all its finished products to
points outside the State of Oregon. Both the corporation and the
partnership have the identical management personnel.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Klamath Basin District Council, United Brotherhood of Carpenters
and Joiners of America, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees of
the Company.
Local 6-12, International Woodworkers of America, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about October 17,1944, the AFL demanded recognition from
the Company as the exclusive bargaining representative of its pro-
duction and maintenance employees. The Company, through its attor-
ney, replied that it could not extend such recognition because of an
KESTERSON LUMBER CORPORATION 357
outstanding certification of the IWA as the bargaining representative
of the employees involved.
On December 8, 1942, the IWA was certified by the Board as the
exclusive bargaining representative of all production and maintenance
employees of Kesterson Lumber Corporation 2 Thereafter, the IWA
and the Kesterson Lumber Corporation endeavored to agree upon the
terms of a collective bargaining agreement but were unable to resolve
a number of disputes which arose. The disputes were referred to the
War Labor Board which in turn referred them to the West Coast Lum-
ber Commission for hearing and determination. On January 27,
1944, in accordance with a directive issued by the West Coast Lumber
Commission, the IWA executed a collective bargaining contract with
Kesterson Lumber Corporation and Kesterson Box Company.
Article XV, clauses (a) and (b), of the contract, provide:
(a) This agreement shall remain in full force and effect until
April 1, 1944. Unless either party notifies the other of a desire
to change the terms of this agreement that [sic] not less than
sixty (60) days prior to the expiration date and presents pro-
posed revisions not less than thirty (30) days prior to such ex-
piration date, this agreement will automatically continue in ef-
fect for the succeeding twelve (12) months.
(b) If such notice of desired changes in this agreement, as
above provided, is given by either party to the other, negotiations
with respect to such changes shall be held commencing not less
than thirty (30) days prior to expiration. If these negotiations
do not result in agreement by the expiration date, this agreement
shall at the expiration date become null and void, unless the
parties at that time mutually agree to continue negotiations. If
they do so agree, then this agreement shall continue in full force
and effect until such negotiations are broken off by either party
on written notice to the other party or an agreement is reached.
On January 29, 1944, the IWA wrote to the Kesterson Lumber Cor-
poration as follows :
Local Union No. 6-12, IWA, hereby notifies you, in accordance
with the termination and revision provision of the working agree-
ment which exists between this Local Union and your Company,
2 Matter of Kesterson Lumber Corporattion, 45 N. L. R. B. 193
At the time of this certification , the operations now carried on by the Kesterson Box
Company were a part of the business operations of the Kesterson Lumber Corporation.
During the year 1943 the Kesterson Box Corporation was organized to conduct the box
manufacturing operations with the same equipment and employees previously used by the
Kesterson Lumber Corporation . In the latter part of 1944 Kesterson Box Corporation
was dissolved and its box manufacturing operations are now carried on by Irving E
Kesterson and W I Kesterson , as partners under the name of Kesterson Box Company.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this Local Union desires revisions and amendments in the
working agreement.
This will also serve to give you the notice required in the con-
tract of our desire for a general wage increase.
On February 7, 1944, the Company acknowledged receipt of the
IWA's notice, and on February 23, 1944, the IWA, through its Inter-
national Negotiating Committee, and "in accordance with the termi-
nation and revision clause of the working agreement which exists be-
tween your Company and the Local Union of the IWA," sent the
Company a list of 10 points in the contract which it desired to revise.
These 10 points cover most of the substantial elements of the contract.
There followed an interchange of letters in an effort to arrange a meet-
ing, but no conference took place between the IWA and the Company
until the latter part of 1944. During this correspondence, the parties
continued to abide by the terms of the contract and the IWA sought
to continue the contract pending negotiations. The Company at first
seemed to agree, but on July 14, 1944, it definitely asserted that the
January 29 and the February 23 notices by the IWA to the Company
completely nullified the agreement.
After a work stoppage in July 1944, disputes between the Company
and the IWA relating to maintenance of membership and vacations
were referred to the West Coast Lumber Commission. On September
8, 1944, that commission issued a directive stating :
The collective bargaining- agreement dated January 27, 1944,
as amended by and pursuant to past orders of the West Coast
Lumber Commission and National War Labor Board shall be
extended until the negotiations of a new collective bargaining
agreement, or failing agreement, until the West Coast Lumber
Commission by order decides any issue still in dispute by the
parties.
On appeal by the IWA, the National War Labor Board, on Decem-
ber 18, 1944, affirmed the directive of the West Coast Lumber Com-
mission. The Company and the IWA are still in disagreement con-
cerning the 10 points in the original contract which the IWA first
sought to revise, and a proceeding is now pending before the National
War Labor Board involving these 10 points.
The IWA contends that, because of the continued negotiations
and by force of the September 8, 1944, directive of the West Coast
Lumber Commission, the January 27, 1944, contract is still in full
force and effect and therefore constitutes a bar to a present election.
Since the letter of January 29, 1944, was sent by the IWA to the
Company more than 60 days prior to the expiration date of the con-
tract, and the February 23, 1944, list of changes desired was sent
KESTERSON LUMBER CORPORATION 359
more than 30 days prior to the expiration date, it is clear that renewal
of the agreement for an additional year was forestalled. Assuming
that the subsequent negotiations between the IWA and the Company
served to continue the agreement in existence by virtue of clause (b),
of Article XV of the contract, or that the West Coast Lumber Com-
mission directive of September 8, 1944, had the effect of continuing
the agreement in force, in either event the contract, at best, is of
indefinite duration and has been operative for more than a year.
Accordingly, it does not constitute a bar to a present determination
of representatives .3
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the AFL represents a substantial number of em-
ployees in the unit hereinafter found appropriate.4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
Iv. THE APPROPRIATE UNIT
We find, in accordance with the stipulation of the parties, that all
production and maintenance employees of the Kesterson Lumber
Corporation, and of Irving E. Kesterson and W. I. Kesterson, doing
business as Kesterson Box Company, excluding clerical employees
and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
8 See Matter of Ben Sadof, Arthur Sadoff and David Nemsehof, d/b/a Ben Sadoff Iron &
Metal Company, 58 N. L It. B. 1574
In its brief , the IWA also urges that the pendency before the National War Labor Board
of its dispute with the Company involving the 10 points listed in the letter of February
23, 1944, is a further ground which precludes a determination of representatives at the
present time The IWA apparently rests its position on the doctrine established in Matter
of Allis-Chalmers Manufacturing Company, 50 N. L It. B. 306. Inasmuch as, following
its certification on December 8, 1942, the IWA completed a comprehensive proceeding before
the National War Labor Board during the year 1943, in the course of which its disputes
with the Company were fully resolved, and in accordance with the directive resulting
therefrom it executed a written collective bargaining agreement with the Company in
January 1944, it is clear that the present proceeding before the National War Labor Board
was instituted at a time when the IWA had already concluded its initial bargaining program
and was not a newly certified or recognized representative . Accordingly, we find no merit
in its present contention.
4 The Field Examiner reported that the AFL submitted 62 application cards and that the
names of 54 persons appearing on those cards were listed on the Company's pay roll, which
contained the names of 219 employees in the unit hereinafter found appropriate The IWA
contends that the AFL has made an insufficient showing of representation and that the
petition should therefore be dismissed . Although the January 27, 1944, contract did not
set forth a maintenance of membership clause, the IWA and the Company understood that
the West Coast Lumber Commission directive ordering the making of that contract author-
ized some form of a union security clause. The parties could not agree on the precise
phrasing of the provision , but the IWA, on several occasions prior to July 1944, and once
again thereafter , called upon the Company to discharge large numbers of employees for
non-payment of union dues The Company, in each instance , refused to do so, giving as
its reason dissatisfaction with the IWA' s method of proving the delinquency of its members
In view of the foregoing facts, we find no merit in the IWA's present contention regarding
the AFL' s showing of current interest
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, or effectively recommend such action, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Kesterson Lumber
Corporation and Irving E. Kesterson and W . I. Kesterson , doing busi-
ness as Kesterson Box Company , all of Klamath Falls, Oregon, an
election by secret ballot shall be conducted as early as possible , but not
later than sixty ( 60) days from the date of this Direction , under the
direction and supervision of the Regional Director for the Nineteenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among the employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction , including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off , and including employees
in the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election , to determine whether they desire to be
represented by Klamath Basin District Council , United Brotherhood
of Carpenters and Joiners , affiliated with the American Federation of
Labor, or by Local 6-12, International Woodworkers of America,
affiliated with the Congress of Industrial Organizations , for the pur-
poses of collective bargaining , or by neither.