Novak Logging Co.

National Labor Relations Board - Board Decisions

Feb 13, 1958

119 N.L.R.B. 1573 (N.L.R.B. 1958)

NOVAK ]LOGGING COMPANY 1573
employees of this department. They do similar work, except that
the assistant does the less difficult jobs. Their work involves draw-
ing up plans for building repair and new construction, figuring
stresses and strains, developing estimates of costs, and doing blue-
print work. The Employer contends that they are technical, man-
-agerial, and confidential No evidence to support the Employer's
assertion that they are confidential or managerial appears in the rec-
ord. However, the work involved does require technical skills of
a sufficient degree to make the two draftsmen technical employees.
We shall accordingly exclude' them from the plant clerical unit.
We find accordingly that the following employees constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act:
All plant clerical employees of the Employer at its Fort Worth,
`Texas, plant, including chemical laboratory employees, time and
-employment office employees, standards department employees,26
mechanical department employees, all plant department clerks, the
cashier in the employees' market, checkers and clerks in statistical
quality control department, checkers and clerks in the safety and
suggestion department,` and checkers and clerks in the, shipping
department, but excluding work simplification department employ-.
ees, mechanical drafting department employees, all other employees
at the Employer's Fort Worth plant, district office employees, tech-
nical employees, supervisors and guards as defined in the Act.
[Text of Direction of Elections omitted from publication ]
25 The production head checker and the mechanical head checker in the standards de-
partment are excluded as supervisors, the confidential secretary in the standards depart-
-ment is excluded as a confidential employee , and the time-study engineers are excluded
as technical employees
ii The relief supervisor in the safety and suggestion department is excluded as a super-
visor
Novak Logging Company and International Woodworkers of
America, Local 23-93, AFL-CIO and Lumber and Sawmill
Workers Union Local 2918, AFL-CIO, Party to the Contract.
Case No. 19-CA-1377. February 13, 1958
DECISION AND ORDER
On May 14, 1957, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel and International Woodworkers of
119 NLRB No 196
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, Local 23-93, AFL-CIO, herein called IWA, filed excep-
tions to the Intermediate Report and supporting briefs; and the
Respondent and Lumber and Sawmill Workers Union Local 2918,
AFL-CIO, herein called LSW, filed briefs in support of the
Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent they are consistent
herewith.
We disagree with the Trial Examiner's failure to find the violations
of Section 8 (a) (1) and (2) alleged. The facts herein squarely
present an issue involving the long settled Midwest Piping doctrine
of the Board.' We adhere to and reaffirm this doctrine. Under the
Midwest Piping rule, (modified in respects not pertinent here) 2 an
employer faced with conflicting claims of two or more rival unions
which give rise to a real question concerning representation 3 may not
recognize or enter into a contract with one of these unions until its
right to be recognized has finally been determined under the special
procedures' provided in the Act. Here, a real question concerning
representation existed as a matter of law when on August 'T, 1956,
LSW made its representation claim upon the Respondent, was recog-
nized and accorded a contract as exclusive bargaining agent of
Respondent's employees.' At that time, as of August 7, there was
unquestionably an active and continuing claim on the part of IWA,
the contractual representative since 1952: Thus, the facts are that
Respondent and IWA had been engaged in continuous bargaining
negotiations since January 1956, most recently having met on the
evening of August 6; and indeed there was in effect between them an
operative bargaining agreement, though terminable at the will of
either party.-' In this context, as the cases have repeatedly pointed
1 The doctrine derives its name from .Midwest Piping & Supply Co, Inc, 63 NLRB 1060,
although the same principle was applied in cases decided previous thereto See also, e g,
William Penn Broadcasting Company, 93 NLRB 1104, Jersey Contract$ng Corp, 112
NLRB 660, and Board cases cited infra Accord N L R B v John Englehorn & Sons,
134 F 2d 553 (C A 3) , N L if. B v Southern Wood Preserving Company, 135 F 2d
606 (C A 5) , N L R B v Elastic Stop Nut Corp, 142 F 2d 371 (C A. 8), cert denied
323 U S 722, N L R B v I Spiewak & Sons, 179 F 2d 695 ( C A 3) ; Harrigon Shoot
Steel Company v N L R B ,194 F 2d 407 (C A 7)
2 See William D Gibson Co, 110 NLRB 660
a See William Penn Broadcasting Co, supra
4 The "question concerning representation" is existent whether or not a petition is actu-
ally pending before the Board E g, Pittsburgh Valve Company, etc, 114 NLRB 193,
195 Sunbeam Corporation, 99 NLRB 546, 553, William Penn Broadcasting Go, supra,
at 1106, footnote 6, Bluefield Garment Manufactures, 75 NLRB 447
5 The existing contract contained a no-strike clause However, we do not deem it neces-
sary to pass on the Trial Examinei 's finding that the strike of IWA on August 6 "ter-
NOVAK LOGGING COMPANY 1575
out, the Respondent could not assume to judge for itself upon a show-
ing of authorization cards 6 which of the contending unions was the
statutory representative of the employees' A maaority card holding
by one of the rival unions in these circumstances could in no wise be
construed under the Act as Imposing on the Respondent an obligation
to bargain .8 As reasonably contemplated by the statute, the deter-
mination of the existing question concerning representation was
exclusively one for the Board.9
The Trial Examiner improperly "assumed," because the Board did
not seek Supreme Court review in the two cases he cited which denied
enforcement of the Board's orders, that the Board has "accepted"
these court decisions "as the law on the facts thereof." 10 This propo-
sition of the Trial Examiner is fundamentally in error. The Board's
reasons for not requesting review may be, and often are, entirely
unrelated to its opinion of the broad question of law involved; and
no inference can be drawn that the Board has accepted an adverse
court decision from the mere failure to petition for certiorari in the
case. The guide rule for the Trial Examiner has been stated in detail
in a recent Board opinion :
It has been the Board's consistent policy for itself to determine
whether to acquiesce in the contrary views of a circuit court of
appeals or whether, with due deference to the court's opinion, to
adhere to its previous holding until the Supreme Court of the
United States has ruled otherwise. But it is not for a Trial
Examiner to speculate as to what course the Board should follow
where a circuit court has expressed disagreement with its views.
minated the contract without formal steps " In no event would the strike be indicative
of a cessation of IWA's continued representation claim which is the controlling factor
herein Indeed , the strike itself is evidence of the continuation of the claim
6 The percentage of authorization cards shown is immaterial In the present case, LSW
had 14 cards of 17 employees in the unit In Scherrer c& Davisson Logging Company,',
119 NLRB 1587, a companion case involving the identical Midwest Piping Issue where,
LSW had a bare majority, the legal result is the same
4 See Midwest Piping c& Supply Co , Inc , supra, at 1070, in which the Board stated that
. membership cards obtained during the heat of rival organizing campaigns
do not necessarily reflect the ultimate choice of a bargaining representative , indeed, the
extent of dual membership among the employees during periods of intense organizing
activity is an important unknown tactor affecting a determination of majority status,
which can best be resolved by a secret ballot among the employees " To the same effect,
e g, Indianapolis Newspapers , Inc, 103 NLRB 1750, 1753, Sunbeam Corporation, supra,
at 551
See I Spiewak & Sons, 71 NLRB 770, A L Gilbert Co , 110 NLRB 2067
See Ray Brooks v N L B B, 348 U S 96 (certification year rule) , and Nassau and
Suffolk Contractors ' Association, Inc, 118 NLRB 174 (requirement of Board certification
for future recognition where union found to have been assisted by employer), involving
situations where the employer is similarly precluded from engaging in self-help as to bar-
gaining with a union having a majority card holding, or like evidence, and is required
to rely only upon Board election processes
10N L R B v Indianapolis Newspapers, Inc, 210 F 2d 501 (C A. 7) setting aside 103
NLRB 1756, and N L R B. v Corning Glass Works, 204 F 2d 422 ( C A 1), setting aside
100 NLRB 444 The Corning case in our opinion is inapposite , we respectfully disagree
with the Seventh Circuit in the In&anapohs case and adhere to our expressed holdings in
that case
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the contrary, it remains the Trial Examiner's duty to apply
established Board precedent which the Board or the Supreme
Court has not reversed. Only by such recognition of the legal
authority of Board precedent, will a uniform and orderly admin-
istration of a national act, such as the National Labor Relations
Act, be achieved." [Italics in original.]
Accordingly, we find that the Respondent, by recognizing and con-
tracting with LSW at the time of a coexisting representation claim
by IWA which raised a real question concerning representation of
Respondent's employees, violated Section 8 (a) (1) and (2) of the Act.
TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of the Respondent as set forth in the
Intermediate Report, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
TIIE REMEDY
As we have found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action necessary to effectuate the policies of the
Act.
We have found that the Respondent recognized Lumber and Saw-
mill Workers Union Local 2918, AFL-CIO, and entered into an
agreement with it on August 7, 1956, during the pendency of a ques-
tion concerning the representation of the employees covered thereby.
By such conduct, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of their right freely to select
their own bargaining representative, and has accorded unlawful assist-
ance and support to Lumber and Sawmill Workers Union, Local 2918,
AFL-CIO. In order to dissipate the effect of the Respondent's unfair
labor practices, we shall order the Respondent to withdraw and with-
hold all recognition from Lumber and Sawmill Workers Union Local
2918, AFL-CIO, and to cease giving effect to the aforementioned
agreement, or to any renewal or extension thereof, until such time
as Lumber and Sawmill Workers Union Local 2918, AFL-CIO, shall
have been certified by the Board as the exclusive representative of the
employees in question. Nothing herein shall, however, be construed
to require that the Respondent vary or abandon any existing term or
condition of employment.
"Insurance Agents' International Union , AFL-CIO (The Prudential Insurance Com-
pany of America ), 119 NLRB 768. See also, e . g., a recent statement of a Trial Ex-
aminer to the same effect , Drivers, Chauffeurs and Helpers Local 639 , etc. (District Dis-
aibutors, Incorporated ), 119 NLRB 845.
NOVAK LOGGING COMPANY 1577
Upon the basis of the foregoing, and the entire record in this case,
the National Labor Relations Board hereby makes the following :
CONCLUSIONS OP LAW
1. Lumber and Sawmill Workers Union Local 2918, AFL-CIO,
and International Woodworkers of America, Local 23-93, AFL-CIO,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By contributing unlawful assistance and support to Lumber
and Sawmill Workers Union Local 2918, AFL-CIO, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the Respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Novak Logging
Company, Sultan, Washington, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Assisting or contributing support to Lumber and Sawmill
Workers Union Local 2918, AFL-CIO, or to any other labor
organization.
(b) Recognizing and contracting with Lumber and Sawmill
Workers Union Local 2918, AFL-CIO, as the bargaining representa-
tive of their employees, unless and until said labor organization shall
have been certified as such by the National Labor Relations Board.
(c) Performing or giving effect to its August 7, 1956, agreement
with Lumber and Sawmill Workers Union Local 2918, AFL-CIO,
or to any renewal, extension, modification, or supplement thereof.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring member-
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in a labor organization as a condition of employment as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Lumber and
Sawmill Workers Union Local 2918, AFL-CIO, as the collective-
bargaining representative of its employees, unless and until said labor
organization has been certified as such by the National Labor Rela-
tions Board.
(b) Post at its Sultan, Washington, plants, copies of the notice
attached hereto marked "Appendix." 12 Copies of said notice, to be fur-
nished by the Regional Director for the Nineteenth Region, shall, after
being duly signed by the Respondent's representatives, be posted by
the Respondent and maintained by it for a period of sixty (60) con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
12 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT assist or contribute support to Lumber and Saw-
mill Workers Union Local 2918, AFL-CIO, or to any other labor
organization.
WE WILL NOT recognize and contract with Lumber and Sawmill
Workers Union Local 2918, AFL-CIO, as the bargaining repre-
sentative of our employees, unless and until said labor organi-
zation shall have been certified as such by the National Labor
Relations Board.
WE WILL NOT perform or give effect to our August 7, 1956,
agreement with Lumber and Sawmill Workers Union Local 2918,
NOVAK LOGGING COMPANY 1579
AFL-CIO, or to any renewal, extension, modification, or
supplement thereof.
WE WILL withdraw and withhold all recognition from Lumber
and Sawmill Workers Union Local 2918, AFL-CIO, as the col-
lective-bargaining representative of our employees, unless and
until said labor organization has been certified as such by the
National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of their rights of
self-organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
NOVAK LOGGING COMPANY,
Employer.
Dated-------- ------ By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On January 7, 1957, International Woodworkers of America, Local 23-93,
AFL-CIO, herein called IWA, filed a charge against Novak Logging Company,
herein called the Respondent , alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (2)
of the National Labor Relations Act, as amended, 61 Stat. 136 , herein called the Act.
Upon this amended charge , the Regional Director for the Nineteenth Region of the
National Labor Relations Board, herein called the Board , on January 28, 1957, is-
sued a complaint on behalf of the General Counsel of the Board.
With respect to the unfair labor practices the complaint , as amended at the
hearing, alleged in substance that the Respondent had for several years had a col-
lective-bargaining contract with IWA; that the most recent contract expired on
April 1, 1956, but was extended on a day-to-day basis pending outcome of negotia-
tions on the terms of a new contract ; that negotiations for a new contract began
in January 1956 and continued until August 6, 1956; that IWA called a strike as of
August 6; but that negotiations continued and a meeting took place on the evening
of August 6 at which IWA made a new offer which the Respondent took under ad-
visement; that on August 7, 1956, a substantial majority of the Respondent's em-
ployees were members of IWA and that the Respondent was aware of this fact;
that on August 7 the Respondent recognized Lumber and Sawmill Workers Union
Local 2918, AFL-CIO, herein called LSW, as the representative of its employees
in the bargaining unit and on the same day signed a collective-bargaining contract
with LSW, notwithstanding that Respondent had not terminated bargaining negotia-
tions with IWA and knew or had reason to know that at that time a majority of
its employees in the bargaining unit were still members of and represented by
IWA. The Respondent, on February 7, 1957, filed an answer denying the unfair
labor practices , admitting that it signed a collective-bargaining agreement with LSW
on August 7, but alleging that if a majority of the Respondent 's employees were
members of IWA they had nevertheless designated LSW as their bargaining agent.
Pursuant to notice, a hearing was held before me, the duly designated Trial
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner, at Everett, Washington, on March 11 and 12, 1957. At the opening of-
the hearing the Respondent and LSW made motions to dismiss the complaint, which.
were denied. Upon motion, one paragraph of the complaint was stricken after-
the General Counsel stated that he did not intend the matter therein pleaded to set
forth a separate violation of the Act. Thereafer the General Counsel moved to
amend the complaint with respect to certain terminology, and the motion was.
granted.'
At the close of the General Counsel's case, without offering any evidence except
such as they had put in on the General Counsel's case, the Respondent and LSW
moved to dismiss the complaint. The parties argued briefly upon the motion, and
ruling was reserved and is ruled on as hereinafter indicated. Following the close-
of the hearing and within a time fixed, each of the parties filed a brief with the
Trial Examiner.
From my observation of the witnesses and upon the entire record in the case,.
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a partnership, composed of Stanley and Steven Novak, having
its principal office and place of business in Sultan, Washington, in the vicinity of
which it is engaged in the business of contract logging. During the Respondent's.
most recent fiscal year, it sold logs and forest products and rendered services of a
total value in excess of $100,000 to companies which sold more than $50,000 worth
of materials and shipped such materials from Everett, Washington, to points out-
side the State of Washington. Jurisdiction is not contested.
II. THE LABOR ORGANIZATIONS INVOLVED
IWA and LSW are labor organizations admitting to membership employees of
the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference with administration of LSW and contribution of support thereto
1. Chronological facts
For several years prior to the unfair labor practices alleged in the complaint, the
Respondent had had a collective-bargaining agreement with IWA as the collective
bargaining representative of its employees in an appropriate unit. The latest ex-
tension of the agreement contained a maintenance-of-membership clause. The
last extended agreement had a termination date of April 1, 1956, with a provision for
automatic renewal unless either party reopened the agreement by notifying the
other party of a desire to terminate or change the agreement not less than 75 days
before April 1. The duration clause also provided that if, after reopening, no
agreement were reached by April 1 and negotiations were continued, the agreement
should remain in force until a subsequent agreement was reached, but should ter-
minate if negotiations were discontinued by either party.
Pursuant to the terms of this agreement IWA gave the requisite notice of reopening
of the agreement in January 1956 and negotiations for a new contract proceeded
from that time until August 1956. In a bargaining meeting held on August 1, 1956,
the Respondent delivered to the Union a counterproposal which it told the Union
was its final offer. The Union rejected the offer. At this time the parties had
already come to an understanding with respect to wages and to most other terms
of the contract, but they were still at variance with respect to the retroactive date
when the wage increase was to become effective (IWA asking December 1, 1955,
and the Respondent April 1, 1956); with respect to whether or not the increase
1 LSW objected to the amendment of the complaint on the ground that the amended
complaint went beyond the framework of the charge and that the matter was barred by
"the period of the statute of limitations." The objection assumes that the limitation
period under Section 10 (b) is similar to that provided in Statutes of Limitation applica-
ble to civil suits where the statute runs against the action if an amended declaration or
complaint for the first time states a cause of action. However, the limitation in Section
10 (b) is on the time elapsed before the filing of the charge and not on the time elapsed
before amending the complaint. As the charge is not a pleading, it need not particularize
the unfair labor practices as is necessary in a complaint. It makes no difference, therefore
whether or not the original complaint effectively stated a violation of the Act if the charge
was filed in proper time as it was here.
NOVAK LOGGING COMPANY 1581
-would be given only to those employees in the employ of Respondent on the settle-
ment date, as the Respondent offered, or also to those employed on the retroactive
date, as IWA asked; with respect to the anniversary date of the agreement (June 1,
1957, as TWA asked or July 1, 1957, as the Respondent offered); and the effective
date of certain vacation benefits, whether in 1956 as IWA asked or in 1957 as the
Respondent offered. The TWA negotiating committee rejected the Respondent's
offer and gave notice that if agreement were not reached before August 6, IWA
would strike on that date. However, on August 3 the negotiating committee met
and decided to modify its demands to the extent of accepting the retroactive wage
date offered by the Respondent. There is no positive evidence in the record that
the TWA notified the Respondent of this change before August 6.2 In any event
the Respondent did not settle on the basis of this modification.
The strike commenced on the morning of August 6 and TWA picketed the road to
the Respondent's operations. The Respondent's employees did not pass the picket
line. While various men were standing about at the junction between the road to
the woods and the highway where the pickets were, Steve Novak commented that
"there is a way out of this if you want to take it." This finding is based on the
uncontradicted testimony of Ray Matkins, an employee of an independent con-
tractor named Joe Dobson. Matkins testified that, besides Dobson employees, he
saw 1 or 2 other men there whom he did not know and whom he assumed to be
employees of the Respondent. The evidence does not place this man or these
men within hearing distance of Steve Novak and they are not clearly established
even to have been employees of the Respondent. Indeed, if anyone other than
Matkins heard Novak's remark, the evidence does not disclose it. I make no
inference that employees of the Respondent heard the remark.
On the afternoon of August 6 the TWA negotiating committee met to contemplate
further concessions and, at a meeting on the evening of August 6, it decided to
modify TWA's demands further by accepting the effective date of vacation benefits
as offered by the Respondent. The TWA thereupon notified the employers with
whom they were negotiating, including the Respondent, of a desire to present modi-
fications, and at a meeting at the union office that night they presented the modifica-
tion to Stanley Novak as the Respondent's representative and one other employer
at this meeting. As a result of the concessions made by the TWA, the parties were
then at variance only in respect to the anniversary date of the proposed contract and
the inclusion or exclusion, for purposes of retroactive pay, of those employees on
the Respondent's payroll on April 1, 1956, the retroactive increase date, who would
be no longer in the Respondent's employ on the date of contract acceptance by
the IWA membership. Novak told the TWA committee that he wanted "to sleep
on it." This was the last statement the Respondent made to TWA specifically with
respect to the TWA concessions.
On August 8 or 9 the TWA received a registered letter from the Respondent dated
August 6, stating that the Respondent, in accordance with the terms of the TWA
agreement, had elected to discontinue the negotiations and the collective-bargaining
-contract. Although this notice bears date of August 6, 1956, no evidence was
offered to show when it was mailed. This was the only express notice of termination
of negotiations given by the Respondent.3
At sometime during the morning of August 6, Sam Novak, a brother of the two
partners and one of their employees, had a conversation with DeWitt Dunlap and
Hank Niegiemann, employees of another logging company,4 about the possibility of
joining the AFL, as he called it, referring to LSW. Borrowing the partnership
pickup truck from his brother, Steven, who lived next door to Sam and with whom
Sam usually rode to work in the pickup, Sam went to Granite Falls to speak with
Lloyd Campbell, the local president of LSW. Sam Novak justified borrowing the
truck on the ground that his car was not available because it was being repaired.
He testified that he had been allowed to use the truck for personal convenience
during the time his car was being repaired as well as at other times before that and
that Steven Novak did not learn of the use to which he put the truck for organizing
2 Evidence adduced in the Scherrer and Davisson Logging Company case , 119 NLRB
1587. heard just before the instant one, indicated that the attorney and representative
of the Respondent here was informed of the August 3 modification, but such evidence was
not offered here.
6 The characterization of the Respondent's August 1 offer as a "last offer',' is not tanta-
mount to a termination of negotiations. Furthermore, Novak met with IWA on the night
of August G ; so negotiations may be assumed to have been open until then.
d Scherrer and Davisson Logging Company, involving somewhat similar activities. Dun.
'lap was the moving spirit there in a switch of employees from IWA to LSW.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LSW until August 8. When he got to Granite Falls just before noon on August 6,
he learned that Campbell was in the woods. He drove there and spoke with
Campbell. After seeing Campbell, he got authorization cards for LSW and went
to the houses of various employees of the Respondent. During the rest of that day,
and on August 7, Sam Novak continued to solicit signatures on LSW authorization
cards. He apparently had access to the truck on both days. Although Sam Novak
testified that he had a substantial majority signed up on the evening of August 6
and that he so notified Campbell, I am skeptical of the accuracy of this testimony.
Late in the afternoon of August 7, pursuant to arrangement made by Sam Novak
with LSW representatives, Earl Hartley and another, a meeting was held in the
garage where the Respondent keeps its truck. At this meeting, which was attended
by a majority of the Respondent's employees, Hartley, an official of the Puget Sound
District Council and Western Council of Lumber Workers of LSW, addressed them
and said that he understood they had a majority of the men signed up for LSW;
that if they wanted to switch from IWA, LSW would be willing to help them, but
he warned them that they might be in for considerable abuse (from IWA ad-
herents). He told them that LSW had a standard form of agreement for that area.
This agreement was read to them and was discussed. At Hartley's suggestion, the
employees took a vote to determine if they wished to switch to LSW. All but one
of the employees present voted to switch. The employees elected a committee and
voted to give the committee authority to sign the LSW agreement at a meeting
which had been set up with the Respondent for that evening. Hartley told the
employees in effect that he did not advise anyone to go through a picket line on
wages and hours, but that he did advise them to go through a jurisdictional picket
line, that as soon as the IWA settled (presumably with other employers whose em-
ployees IWA still represented) they could go back to work and, if there was then
a picket line, it would be a jurisdictional picket line and they could either go through
it or remove it. Prior to this time Hartley had not been in communication with
the Respondent's partners, but earlier that afternoon he had been negotiating with
the Respondent's attorney, Studebaker, concerning a contract with Scherrer and
Davisson Logging Company and, before he left that meeting to meet with the
Respondent's employees, Hartley told Studebaker that he expected he would want to
hold a meeting that night with the Respondent and asked Studebaker to stand by
for such meeting.
After the meeting in the truck shop, Sam Novak delivered to Hartley LSW
authorization cards signed by 14 of the 17 employees in the unit, 10 bearing date of
August 6 and 4 bearing date of August 7. Hartley notified Studebaker that "the
meeting was on," and that evening Hartley, with the elected committee and other
representatives of the LSW, met with Stanley Novak and the Respondent's attorney,
Studebaker, at the Elks Hall in Everett, Washington, and signed the LSW contract.
2. Uncertainties in the evidence
Because the Respondent and LSW offered no evidence except such as they put
in on the General Counsel's case, hiatuses in the evidence leave apparent incon-
sistencies and make it difficult to draw logical inferences. For example, it may
be inferred that the Respondent's letter to IWA terminating negotiations with it
was prepared on August 6, the date which it bears, but, in the state of the evidence.
it is doubtful if an inference is justified that it was mailed on that date in view of
the evidence that it was not seen by IWA until August 8 or 9.5 Since it was
addressed by a writer with a Sultan post office address to an addressee in Sultan
it might be inferred that delivery would not take more than a day at the most if
the letter had been mailed in Sultan. On the one hand, it seems illogical to infer
that the Respondent, during the day of August 6, mailed a letter terminating negotia-
tions with IWA and yet on the night of August 6 attended a negotiating meeting
with the negotiating committee of that organization, especially in view of the fact
that Stanley Novak did not mention, at this meeting, having sent IWA such a letter.
On the other hand, if the Respondent were acting in good faith, it might be inferred
that the letter was mailed after the negotiating meeting of the night of August 6.
But if it was sent in the few remaining hours of August 6 between the end of the
negotiating meeting and midnight, then Stanley Novak's statement that he wanted
5 This does not mean that the letter may not have been in the IWA post office box oa
August 7. General Counsel's Exhibit No. 1-C shows that IWA had a post office box
address.
NOVAK LOGGING COMPANY 1583
to sleep on IWA's offer of compromise is given an appearance of bad faith like-
wise, for his statement implies that he would give the matter overnight considera-
tion and would give IWA his reaction the next day. To give Novak the benefit of
the doubt as to his good faith, I would have to infer that the letter which bore the
date of August 6 was actually mailed on August 7. But if that were the case and
if that letter was intended to represent Novak's answer to the IWA offer of com-
promise, it should be inferred that the letter actually was prepared after he reached
his decision. Yet if he reached his decision on August 7, why date the letter August
6? In its appearance and language, the letter gives evidence of having been pre-
pared by a lawyer, carefully enough to avoid misdating. It is possible that the
letter was prepared before receipt of notice by the Respondent that IWA wanted to
present a modification in its demands and its mailing was on that account held up
until August 7, when a decision was made not to settle on the IWA offer of August 6.
Since the Respondent chose not to dispel the inference that the letter was prepared
on August 6, I am led to the conclusion, after a consideration of all the evidence,
that it was prepared on that date, but I can find only that it was sent sometime
between the time of its preparation and the time it was received.
Although 10 of the LSW authorization cards, a definite majority, bear date of
August 6, and although Sam Novak testified that he had a substantial majority
that evening, no evidence was offered to show that LSW on that day notified the
Respondent of its majority. In view of the desirability of speedy organization and
recognition of LSW from its own point of view, I would expect it to give notice of its
claim to representation at the earliest moment it could. But the record is barren
of any suggestion of claim to recognition before the Scherrer and Davisson meeting
at the Elks Club in Everett on the afternoon of August 7. Even then, Hartley's
notification to Studebaker that he expected to be ready for a meeting that night is
hardly a claim of right to recognition, and Hartley testified that he made his demand
for recognition at the meeting in Everett that night. The form of Hartley's after-
noon notice to Studebaker, suggests that Studebaker knew that LSW was attempt-
ing to organize. I note that a number of the authorization card signers gave
addresses indicating that they lived in towns scattered about in the general area of
Sultan. At least two possible inferences may be drawn from the facts. The cards
may have been antedated or, although signed on August 6, they may not have
been delivered to Sam Novak until August 7. Another possibility is that Sam
Novak had a majority of the signed authorizations on August 6 but (contrary to
his own testimony) failed to notify any LSW representative until late on the after-
noon of August 7. This latter possibility is not, however, a probable one, for Sam
Novak was in communication with Hartley when he arranged for the meeting in
the truck shop for the afternoon of August 7 and, if he had a majority of the cards
on the 6th, I would expect Hartley then to have been informed. Yet Hartley
apparently was ignorant of the fact that a majority of the employees had signed
authorization cards until he came to the truck shop meeting. Furthermore, the
evidence is that at that meeting a vote was taken to determine whether or not the
employees wished to switch to LSW. If a majority had already signed authoriza-
tion cards, a privately conducted vote would appear to be superfluous. The totality
of the evidence leads me to refrain from crediting the testimony of Sam Novak
that he had authorization cards for a majority of the employees on the evening
of August 6.
3. Conclusions
The complaint does not charge the Respondent with domination of LSW but
only with interfering with its administration and with contributing support to it.
As I find no evidence that the Respondent interfered with the administration of
LSW, the only question is whether or not the Respondent assisted and contributed
support to LSW. The General Counsel, although relying principally on evidence
of the Respondent's hasty recognition of LSW and its quickly signed contract with
LSW to prove illegal support and assistance, also argues that Sam Novak had a
special status among the employees and that his activities are attributable to the
Respondent because he was given permission to use the partnership truck when
he started his organizational activities. I find more difficulty than the General
Counsel in attributing Sam Novak's activities to the Respondent. The facts in the
cases cited in his brief, I find, are not analogous to those presented here. Although
Sam's blood relationship might have moved him to act in a way which he believed
would be beneficial to the Respondent, more than this must be shown before it can
be found that Sam was speaking or acting for the Respondent. Unless the Respond-
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent in some way held Sam out to the employees as representing it, Sam's activities
cannot be attributed to it. It may be suspected that the Respondent was party to
Sam's plan , but evidence of participation is lacking. The only suggestion, even,
that Sam was being used by the Respondent as an agent comes from the evidence
that Sam used the partnership truck in visiting employees to solicit LSW authoriza-
tions. Sam, himself, denied that his brother, Steven, knew of his purpose in bor-
rowing the truck until after the agreement with LSW had been entered into by the
Respondent . Although I am skeptical enough of this testimony not to give it full
credit, I am not satisfied that foreknowledge by Steven of Sam's purpose and inten-
tional contribution thereto by the Respondent is necessarily to be inferred. As
Sam had apparently been permitted to use the truck on other occasions for personal
use, Steven Novak might have assumed, when Sam borrowed the truck on this
occasion, that he wished to use it for personal reasons although possibly learning
the real use at some time before August 8. It is not shown that, so far as the
employees visited by Sam were concerned, they were led to believe that he was act-
ing on behalf of the Respondent. It was not even shown that they recognized
the truck Sam was driving as that of the Respondent, much less that they drew
any inference that Sam was acting for the Respondent because of the use of its truck.
As previously stated, the General Counsel's principal argument is that the Respond-
ent violated Section 8 (a) (2) of the Act by recognizing and contracting with LSW,
even after LSW proved that a substantial majority of the employees had chosen LSW
as their new bargaining representative, because, he says, authorization cards are an
unreliable indication of the wishes of employees and therefore, presumably, the Re-
spondent should have doubted LSW's majority claim and required proof by an elec-
tion; and, he contends, the Respondent's failure to do so constituted support to LSW
in violation of the Act. In support of this argument, the General Counsel cites
Indianapolis Newspapers, Inc., 103 NLRB 1756; Corning Glass Works, 100 NLRB
444; and Sunbeam Corporation, 99 'NLRB 546. The Board's orders in the first
two cases were denied enforcement in the courts,6 and the Board did not re-
quest certiorari. I assume, therefore, that the Board has accepted such decisions as
the law on the facts thereof. In the Sunbeam case the employer assisted a compet-
ing union by signing a contract with it before it had proved its majority claim.7 It
is the employer's assistance and support before the employees have made a free
choice of representatives that, it appears to me, would improperly influence their
choice and make necessary an effective remedy to free them of this influence. But
if, without assistance by the Respondent to LSW, the Respondent's employees chose
that organization to represent them, the Respondent's quick recognition and speedy
contract negotiation, coming after the choice was made, should not operate retroac-
tively to vitiate their decision.
The evidence gives rise to a possible inference that the Respondent knew from the
start of Sam Novak's reason for borrowing the Respondent's truck and that the Re-
spondent prepared in advance to recognize LSW before it knew that LSW would
get a majority. The tentative plan to meet with LSW before it was known whether
or not LSW represented a majority is one fact supporting such an inference. Prima
facie appearances indicate that the Respondent was so intent upon the possibility of
bargaining with LSW that it failed to make sure that IWA had received notice of
termination of negotiations or any other reply to the latest IWA offer before it agreed
to meet with LSW with a view to signing a contract. Although it did not negotiate
with LSW before proof of its majority, it did set up a negotiating meeting before it
had received actual proof that LSW was authorized to represent its employees, for
it did not require actual proof until it reached the bargaining table. Such facts lead
to the inference that the Respondent was in full sympathy with the switch of em-
ployees from IWA to LSW and, itself, preferred to detail with LSW. But its ready
recognition of LSW came after the employees had made their choice and so cannot
be presumed to have influenced that choice. There is no proof that it uttered a
word to its employees to influence their choice of representatives. The Respondent
surely is not to be condemned for what it was thinking. More than a subjective mental
state must be shown to prove illegal assistance.
The General Counsel in his brief suggests that "had Stan Novak informed his em-
ployees of the IWA proposals of August 6, proposals which [he asserts] made the
6N. L. R . B. v. Indianapolis Newspapers , Incorporated, 210 F. 2d 501 ( C. A. 7) ;
N. L. R. B. v. Corning Glass Works, 204 F. 2d 422 (C. A. 1).
7 See discussion of these cases in my Intermediate Report in Scherrer and Davisson Log-
ging Company, supra.
NOVAK LOGGING COMPANY 1585
early end of the strike a virtual certainty, there is at least a serious question whether
or not the move to LSW would [not] have collapsed." Whether or not the Respond-
ent might have continued to meet with IWA after August 6, with a view to compro-
mising, had the employees not switched to LSW, is not known. The Respondent was
not, of course, under any obligation to compromise on the basis of IWA's conces-
sions of August 6. Although 1 of the 2 remaining differences was minor, the sec-
ond difference may have been important from the standpoint of the Respondent.
There is no assurance therefore that the impasse would have been broken. Whether
or not the shift to LSW would have collapsed if Stan Novak had informed the em-
ployees of his meeting with IWA on the night of August 6 and the offer which IWA
made cannot be determined. It probably would not have affected the shift if he
had also informed the employees that he would not accept the offer. But whatever
might have happened if he had mentioned these things to the employees, he was un-
der no legal obligation to mention it.
The General Counsel calls attention to the uncertainty in time of mailing of the
Respondent's letter of August 6 terminating negotiations with IWA8 and reasons:
If this letter was actually mailed on the date indicated on it, it obviously ante-
dated the meeting of that evening. Yet at that meeting no reference to it was
made. The conclusion to be drawn is that Respondent sent the letter less to
terminate negotiations and the existing contract than to fortify its legal position
in entering into negotiations with LSW. This, of course, would necessarily im-
ply knowledge of the LSW organizing campaign when the letter was written.
I am not satisfied that either the inferences or conclusion drawn by the General
Counsel are unavoidable ones. Nor am I satisfied that the mailing of the letter in-
fluenced the choice of representatives by the Respondent's employees. Whether or
not the Respondent mailed its letter on the 6th at all (either before or after the night
meeting with IWA) is not clear from the evidence. If it had mailed the letter before
the meeting,-Stanley Novak's failure to mention it and his statement to IWA rep-
resentative's that he wanted to sleep on the offer, knowing that the letter would be
delivered the next day, could, it is true, be viewed as duplicity and as a design to give
LSW further time in which to organize. But on the other hand, so far as the evidence
discloses, Stanley Novak was not, in advance of the August 6 meeting with IWA, in-
formed of the terms of the offer that IWA was prepared to make. Even if the Re-
spondent had already mailed the letter terminating negotiations when he received
word that IWA wanted to make a new offer, he might in good faith have gone to hear
the offer to see if it substantially met the terms of the Respondent's offer, in which
case, if he was prepared to accept or reject the offer on the spot, he might then
have notified IWA of the letter and told it either to disregard it if the IWA offer
were accepted or to expect it to take effect if the IWA offer were rejected. The fact
that he neither accepted nor rejected the offer may have been reason enough not
to mention the letter, for if, the next day, the Respondent had decided to accept the
offer, Novak could have nullified the effect of the letter, but if the Respondent had
decided to reject the offer, it might believe that the letter itself would serve as a rejec-
tion and that no further communication would be needed. It is possible to infer that
the letter dated August 6 was not mailed before the Respondent heard that IWA
wished to make a new offer and that its posting was held up until after the meeting
when the Respondent had considered the offer. If it be assumed that the Respondent
was aware of the LSW organizing campaign before the meeting with IWA on August
6, it must be inferred that the Respondent still had no reason to believe that LSW
rather than IWA was the authorized bargaining agent, the very fact that the Respond-
ent met with IWA gives rise to the inference that the Respondent still had no reason
to believe that IWA was not the bargaining representative. Consequently, I see no
reason why the Respondent at that time should have questioned IWA's majority, as
the General Counsel, in his brief, argued that it should have done.
More than one inference may be drawn from the evidence that Stanley Novak
said he wanted to sleep on the IWA offer and that he then did not specifically
reply to that offer. The most damaging inference to the Respondent would be
that, knowing that LSW was attempting to organize, the Respondent chose to wait
a day to see the outcome of the organizational drive before it decided whether or
8 As in the Scherrer and Davisson case, I conclude that, in view of a no-strike clause
in the contract, the strike itself terminated the contract without formal steps. Hence, I
find that no contract with IWA existed when the Respondent negotiated with LSW.
476321-58--vol. 119-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to accept the, IWA offer. But this inference would have to be grounded on an
assumption that the Respondent might have been willing to accept the offer as made
in the event that LSW did not get a majority or that, if the Respondent refused
to agree to the provision requiring a retroactive increase to employees who were in
its employ on April 1, 1956, but who had since left the Respondent's employ (as
1WA was asking), IWA would waive this demand in order to reach agreement.
There is no basis for any such assumption or inference. In effect, the Respondent's
letter of August 6 was a rejection of the IWA offer. 1 do not believe that the
advantage which LSW gained as a result of a day's delay and the rejection of the
IWA offer can be given the shape of illegal assistance. It certainly would not be
so regarded if the Respondent privately had no preference for one union over
another, but was in fact reluctant to accept the terms of such an offer as that of
IWA. In the absence of evidence that the Respondent in some manner imposed
its preference on its employees, the Respondent's private preference should make no
difference in the situation.
I am not impressed by the General Counsel's contention that the Respondent
could not, in the brief time consumed in negotiations with LSW, have adequately
analyzed the LSW contract. I presume that by this contention the General Counsel
means to suggest that the terms of the LSW contract were negotiated in advance
of the bargaining meeting of August 7. 1 find no justification for so inferring. The
proposed LSW contract was a standard form of contract for the area, the terms
thereof were not so complex as to require extensive study, and the contract did not
contain the provisions demanded by IWA to which the Respondent objected. It
is not unreasonable therefore to believe that the Respondent could appraise the
LSW contract at one sitting.
The General Counsel suggests that the reason for the switch to LSW (whose
majority on August 7 he does not contest) was the employees' desire to return to
work as soon as possible. From this he concludes that the switch was made hastily
without knowing that the IWA strike might soon have been terminated, and he
intimates that, if the Respondent had waited for a Board-conducted election, the
employees might by then have been in a less disturbed state of mind and might well
have decided to remain with IWA. But even if this were conceded, it is hardly a
reason for finding illegal assistance. It is more an argument that employees should
not be allowed to make a hasty decision and that therefore even an election should
never be held quickly in a time of stress but should be postponed until the reasons
that might influence the employees' vote have been removed. If the employees did
sign LSW authorization cards on the assumption that this would enable them to
return to work immediately, an assumption that might not have been justified, it
may be said that even an election does not insure employees against disappointments
suffered when events following the election turn out contrary to expectations. If an
election had been conducted by the Board on August 7, there is no reason to assume
that the employees would have made a different choice than they did by authoriza-
tion cards or by the private election called for by Hartley at the truck shop meeting.
A Board ordered election, therefore, would not necessarily have resulted in a more
accurate test of the employees' desire. It would merely have postponed the time
of their choice with the result that, in all probability, the employees would have
been unable to work for the rest of the logging season. Such delay might have
removed the most important reason for their desire to switch from 1WA to LSW
and influenced their vote, but this is not ground for finding illegal assistance by
the Respondent. Such considerations are matters of politics. They should not enter
into the solution to the problem here at all. The only question here is whether or
not the Respondent influenced the employees' choice by giving illegal assistance and
support to LSW.
Having considered all the evidence, I can reach no other conclusion than that
the allegations of the complaint have not been sustained.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2. IWA and LSW are labor organizations within the meaning of- Section 2 (5)
of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (2) of the Act.
[Recommendations omitted from publication.]