Potlatch Forests, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1949

87 N.L.R.B. 1193 (N.L.R.B. 1949)

In the Matter Of POTLATCH FORESTS, INC. and INTERNATIONAL WOOD-
woRKERS OF AMERicA, LOCAL 10-364, C. I. O.
Case No. 19-CA-166.-Decided December 201, 1949
DECISION
AND
ORDER
On September 30, 1949, -Trial Examiner Arthur Leff- issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist- therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report -attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report- and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended; the. National -Labor Relations Board has
delegated its powers in connection with this proceeding to the under-
signed' three-member panel. [Members Houston, Reynolds, and
Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER.
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Potlatch Forests,
Inc., and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Maintaining or giving effect to any seniority or lay-off policy
which discriminates against any of its employees with. regard to the
order in which they are to be selected for lay-off, or with regard to any
other aspect of their employment relationship, on the basis of whether
87 NLRB No. 118.
1193
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had or had not engaged in strike or concerted activities, or on
the basis of the period during which they had engaged in such strike
or concerted activities ;
(b) Discouraging membership in International Woodworkers of
America, Local 10-364, C. I. 0., and its parent organization, Interna-
tional Woodworkers of America, C. I. 0., or any other labor organiza-
tion of its employees, by in any other manner discriminating in regard
to their hire and tenure of-employment or any term or condition of
employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post immediately at its Clearwater plant at Lewiston, Idaho,
copies of the notice attached hereto, marked Appendix A.' Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by the Respondent, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive 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 ma-
terial;
(b) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the receipt of this Intermediate
Report what steps the Respondent has taken to comply therewith.
APPENDIX A
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 maintain or give effect to any seniority or lay-
off policy which discriminates against any of our employees with
regard to the order in which they are to be selected for lay-off,
or with regard to any other aspect of their employment relation-
ship, on the basis of whether they had or had not engaged in
strike activities, or on the basis of the period during which they
had engaged in any such activities.
WE WILL NOT discourage membership in INTERNATIONAL WOOD-
'WORKERS OF AMERICA, LOCAL 10-364, C. I. 0:, and INTERNATIONAL
1 In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there
shall be inserted before the words, "A DECISION AND ORDER" the Words, "DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
POTLATCH FORESTS, INC. 1195
WOODWORKERS OF AMERICA, C. I. 0., or in any other labor organi-
zation of our employees, by in any other manner discriminating
against any of our employees in regard to their hire or tenure of
employment, or any term or condition of their employment.
All our employees are free to become or remain members of any
-labor organization. We will not discriminate in regard to tenure of
employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
POTLATCH FORESTS, INC.,
Employer.
By ----------------------------
(Representative ) ( Title)
Dated --------------------
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
Mr. Herbert J. Merrick, for the General Counsel.
Elder, Elder d Smith, by Mr. R. N. Elder, of Coeur d'Alene, Idaho, and Mr.
George W. Beardmore, of Lewiston, Idaho, for the Respondent.
George and Babcock, by Mr. Harry George, Jr., of Portland, Oreg., for the
Charging Local.
STATEMENT OF THE CASE
Upon a charge filed February 16, 1949, and amended March 18, 1949, by Inter-
national Woodworkers of America, Local 10-364, C. I. 0., herein called the
charging local, the General Counsel of the National Labor Relations Board, by
the Regional Director for the Nineteenth Region (Seattle, Washington), issued
his complaint, dated June 24, 1949, against Potlatch Forests, Inc., Lewiston,
Idaho, herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, as
amended June 23, 1947 (Public Law 101, 80th Congress, Chapter 120, 1st Session),
herein called the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that after the termination by settlement agreement, on October 12, 1947, of an
economic strike of the Respondent's employees, the Respondent inaugurated and
has since maintained a so-called "Return-to-Work Policy," under which, for
purposes of lay-off or transfer to lower-rated jobs in the event of curtailment of
operations, employees who returned to work or were hired during the strike are
given retention preference rights over employees who returned to work after the
date of the strike settlement ; that in giving effect to its "Return-to-Work Policy"
during a temporary curtailment of operations in some departments of its Clear-
-water plant, the Respondent laid off and replaced with others Gail Cloninger,
.for the period from December 30, 1948, to January 6, 1949, and Claude Walters,
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the period from January 21, 1949, to March 10, 1949; and that by inaugurating,
maintaining, and giving effect to its "Return-to-Work Policy" and by laying off
and replacing Cloninger and Walters as aforesaid, the Respondent discriminated
against its employees, including Cloninger and Walters, in violation of Section
8 (a)' (3) of the Act, and thereby also engaged in conduct violative of Section
8 (a) (1) of the Act.
In its answer duly filed July 8, 1949, the Respondent in substance denied
that it had engaged in the alleged unfair labor practices. In addition, the
Respondent alleged affirmatively (1) that there was a failure of proper com-
}lliance with the provisions of Section 9 (f), (g), and (h) of the Act; (2) that
the unfair labor practices alleged in the complaint are barred by the 6-month
limitation proviso of Section 10 (b) of the Act; (3) that the Board is without
jurisdiction to enter any order affecting the seniority of the Respondent's em-
ployees because of the absence of any collective bargaining agreement covering
seniority; and (4) that "the Respondent has many other varied defenses not
specifically herein set forth the nature of which will be shown at the trial of
the cause herein." -
Pursuant to notice, a hearing was held on July 11 and 12, 1949, at Lewiston,
Idaho, before the undersigned, Arthur Leff, the Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel, the Respondent, and the
Union were represented at and participated in the hearing. All parties were
afforded opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
At the opening of the hearing,,a number of motions made by the Respondent,
to dismiss the complaint in its entirety, were denied. The motions were made
upon the following alleged grounds : (1) That certain constituent locals of the
International Woodworkers of America, having among their members employees
of the Respondent in the bargaining unit for which the said International is
the certified representative, are disqualified from using the processes of the
Board because of noncompliance with the provisions of Section 9 (f), (g), and
(h) of the Act;' (2) that the 6-month limitation upon the filing of charges
1 The Respondent has a number of operations in scattered localities . All are grouped
in A single company-wide bargaining unit, with the International as the certified bargain-
ing representative for the production and maintenance employees. The International
has affiliated with it four locals having members among employees in the bargaining unit-
Local 358 at Pierce, Idaho, Local 119 at Coeur d'Alene, Idaho, Local 360 at Bovill, Idaho,
and Local 364 (the charging local) at Lewiston, Idaho. These locals, jointly with the
International, have been parties to the contracts covering employees in the bargaining
unit. Cloninger and Walters, the employees alleged in the -complaint to have been dis-
crijuinatorily laid off, were members of the charging local which exercises jurisdiction
,over the Clearwater operation at Lewiston where they were employed. The General
Counsel stated at the hearing-and the Respondent did not dispute-that at the time of the
issuance of the complaint both the charging local and its parent International were in full
compliance with the requirements of Section 9 (f), (g), and (h). Ile conceded, however,
that two of the remaining three locals, with members among the employees in the bar-
gaining unit at other operations, were not in compliance.
The Respondent contended that the complaint was fatally defective in that compliance
was not pleaded. This contention is without merit. The Board has held that the question
of compliance is a matter for administrative determination ; it is not a litigable issue,
and need not be pleaded or proved . See e . g., Baldwin Locomotive Works, 76 NLRB 922 ;
Lion Oil Co., 76 NLRB 565 ; and Pauls Valley Milling Co., 82 NLRB 1266.
The Respondent contended further that, since this proceeding involves basically the
legality of the Respondent 's seniority policy as . applied throughout the bargaining unit,
it is a prerequisite to invocation of the Board 's processes that all constituent locals with
membership among the employees in the unit be in compliance . Were this a proceeding
seeding to . establish or -otherwise to aid the bargaining position of a labor organization,
POTLATCH FORESTS, INC. 1197
operated as a bar to this proceeding ; and (3 ) that the complaint failed to state
facts sufficient to establish the commission of any unfair labor practice . Motions
were also made by the General Counsel at the opening of the hearing to strike
the several affirmative defenses alleged in the Respondent ' s answer. The motions
were denied, with one exception .2 During the hearing, decision was reserved
on motions of the General Counsel and the Union to strike certain testimony
claimed to be inadmissable under the parol evidence rule. The disposition of
these motions is indicated in the Findings of Fact made below. At the close
of the case, the Respondent moved to dismiss the complaint upon grounds sub-
stantially the same as were asserted by it at the opening of the hearing. To the
extent that the motion sought dismissal under Section 9 (f), (g), and (Il) and
under Section 10 (b), it was denied. To the extent that it sought dismissal
upon the ground that the evidence was insufficient to establish an unfair labor
practice, ruling was reserved on the motion ; and it is now disposed of in the
manner indicated in the body of this Report. A motion made by the General
Counsel at the close of the case, to conform the pleadings to the proof with
respect to minor matters, was granted 3 Opportunity was afforded all parties
to argue the issues orally upon the record and to file briefs and proposed findings
of fact and conclusions of law. Only the General Counsel availed himself of
the opportunity to argue orally. Briefs were received from the charging party
and from the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Potlatch Forests, Inc., a corporation organized under the laws of the State of
Maine, has its principal office and place of business in Lewiston, Idaho. The
Respondent is engaged in felling timber and manufacturing lumber and lumber
products from its logs. It operates sawmills and manufacturing plants at
Lewiston, Potlatch, and Coeur d'Alene, Idaho, in addition to two logging opera-
tions, one at Headquarters, Idaho, and vicinity, and the other at Bovill, Idaho,
and vicinity. The value of the products manufactured by the Respondent annu-
ally at its aforesaid plants is in excess of $1,000,000. These products are shipped
by the Respondent from its said plants to customers in various States of the
United States. The Respondent admits that it is engaged in commerce within
the meaning of the Act.
the Respondent 's position might have been well taken. Cf. Marshall & Bruce Co ., 75 NLRB
60; Prudential Insurance Company, 81 NLRB 295. But it is not. All this proceeding
looks toward is a cease and desist order enjoining certain alleged practices that are
violative of individual employee rights protected by the Act. The Board ' s processes for
that purpose might properly have been invoked by a charge filed by any interested individ-
ual. The right of the charging local to file such a charge on behalf of its affected members
was no less , since both it and its International were in compliance . That members of
other locals which are not now in compliance may also incidentally derive benefits from
an unfair labor practice finding in this case , is immaterial . See, United Engineering Co.,
84 NLRB 74.
2 The General Counsel's motion, to dismiss for indefiniteness and uncertainty the
affirmative defense alleging that the Respondent had "other varied defenses not herein
specifically set forth," was granted, with leave to the Respondent to apply, if it desired,
to have its answer amended so as to allege specifically such other affirmative defenses
as it might have.
' After the close of the hearing , an order was entered correcting certain inaccuracies
In the transcript of proceedings.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ORGANIZATION INVOLVED
International Woodworkers of America , Local 10-364, C. I. 0., and its parent
organization , International Woodworkers of America , affiliated with the Congress
of Industrial Organizations , are labor organizations admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. Introduction
Certified by the , Board on March 4, 1944, the International Woodworkers of
America, . herein called the IWA, has since been the recognized exclusive bargain-
ing agent of the Respondent 's production and maintenance employees in a
bargaining unit embracing the Respondent ' s five operations . On April 1, 1945,
and again on April 1 , 1946 , collective bargaining agreements , styled Master
Working Agreement , were executed by the Respondent , on the one hand, and, on
the other , jointly by the IWA and each of its four constituent locals which
numbers among its members employees of the Respondent ' s various operations.
The IWA and its four locals , jointly , are referred to in the Master Agreement as
the Union , and they will so be referred to in this report.
The Master Working Agreement expressly recognized that the principle of
seniority was to govern retention of jobs during any curtailment of operations.
Detailed provision was made for the application of that principle. Among other
things, it was provided :
All seniority shall be considered first by job classification, second by de-
partment , and last by plant. It shall be used as a basis for preference in
shift as well as promotion and in event of curtailment or during slack work
periods. An employee demoted shall go down through the same route by
which he progressed.
Before the strike of August 1947 , referred to below , there were no substantial
differences between the Respondent and the Union as to the operation of the
seniority system upon a reduction in force. For purposes of this proceeding it is
unnecessary to consider in detail just how seniority operated in all its ramifica-
tions, particularly with respect to employees in skilled job classifications. Gail
Cloninger and Claude Walters, the specific objects of discrimination alleged in
the complaint , occupied jobs in the common labor classification . Since theirs.
was the lowest classification , and all common labor jobs in a given department,
regardless of their particular character , are regarded as lying in a pool, the
principle of seniority by job classification did not apply as to them. An em-
ployee in the common labor classification was, however , entitled to retention
rights in his particular department on the basis of his seniority there. And, if
his tenure was insufficient to allow him to retain his job in his department, he
could exercise his plant seniority to claim retention rights over any similarly
classified junior employee in the plant for whose job he was qualified. In no
event could such an employee , upon a reduction in force, be forced out of his
department ahead of another employee similarly classified who had less depart-
ment seniority and less plant seniority and whose job he was capable of filling.
The Master Agreement of April 1 , 1946 , ran for a term of 1 year. Before
its expiration date, negotiations were begun for a new contract . By May 28,
POTLATCH FORESTS, INC. 1199
1947, the Respondent and the Union had reached agreement on all disputed
points, save the Union's demand for the elimination of an area wage differential.
The agreement of the parties was embodied in two written memoranda, dated
May 7 and May 28, 1947. These, in substance, set out the parties' interpretation
and clarification of certain clauses of the 1946 Master Agreement that had been
in dispute ; made certain revisions with regard to wages ; and provided for an
extension of the 1946 Master Agreement, subject to the modifications noted, until
April 1, 1948. Left unchanged-except for a minor interpretation not here
material-were the seniority provisions of the former agreements. The issue
of the wage differential, alone, was left open for future negotiation.
2. The strike and the strike settlement agreement
Negotiations on the wage differential issue having reached an impasse, the
Union on August 7, 1947, called an economic strike of the Respondent's employees.
The strike at first resulted in a. complete shutdown of all the Respondent's opera-
tions. But starting about the end of August, employees began to return to work
across the picket lines, and the Respondent also hired some new employees as
replacements for the strikers. By October 10, 1947, some 1,750 employees were
working in the bargaining unit, which normally has a complement of about 2,600.
With its strike apparently hopelessly lost, the Union sued for peace. Through
an intermediary, an exploratory meeting to discuss settlement was arranged
with the Respondent. The meeting, held on October 7, 1947, was attended by
General Manager C. L. Billings and Assistant General Manager Otto H. Lauschel,
for the Respondent, and by George Brown and Albert Hartung, IWA officials,
for the Union. The Respondent's representatives made it clear at the outset
that there would be no concession on the matter of the wage differential, and that
point apparently was not pressed by the IWA representatives who made no
effort to conceal their anxiety to terminate the strike. The subject most broadly
discussed, although not the only one, related to the procedures to be followed
in getting the strikers back to work ; and how replacements and employees who
had crossed the picket lines were to be protected in the jobs they were holding
at the termination of the strike. No conclusion was reached at that meeting,
but the IWA officials agreed to refer the views expressed to those IWA officials
who would be authorized to carry on from that point. Thereafter, on October
9, and again on October 10, additional meetings were held. At these, the Re-
spondent was represented by the same negotiators, and the Union, by Walter
Botkin and Jodie Eggers, of the IWA Regional Negotiating Committee. Botkin
and Eggers made clear at the outset of the meetings that they were merely
acting for the Regional Committee, and that any agreement reached by them
would be merely tentative until approved by the union membership. In general
the same matters were discussed at these meetings as at the October 7 meeting.
During the discussions the points upon which the parties appeared to be in
agreement were reduced to writing, and drafting revisions were made. In
the end, the negotiators settled upon a written form of memorandum embodying
five points upon which the negotiators had agreed as a basis for strike settlement
to be submitted to the union membership for approval. The memorandum,
which was not signed or initialed at that time, read as follows :
As a basis for settlement of the present dispute between the IWA and
the Potlatch Forests, Inc., the following is proposed.
1200 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
1. The Union agrees to withdraw its demands for a 71/2 cent wage increase
to eliminate the differential. Wages to remain at rates as of August 6,
1947. Picket lines to be withdrawn as of October 13, 1947.
2. All former employees at Potlatch Forests, Inc., will return to .work
without discrimination, on Monday, October 13th. Former employees shall
return to work by October 22, to protect their job rights. In the event the
job formerly held by the returning employee is not open, the employee
will be given other work and receive pay on the basis of the rate paid on
his former job.
3. Men previously on gypo basis will be assigned to gypo work if still
available. If gypo work is not available, pay will be at the rate shown in
wage schedule for the job.
4. The Company has informed the Union that the night shift of the box
factory in the Clearwater Mill cannot be started at this time, due to business
conditions, and for that reason, it may not be able to employ all of the
former box factory workers immediately. These box factory workers will
be given preference over new employees in filling vacancies in other,
departments.
5. The present contract will remain in effect without change except that
the following is substituted for the 4th paragraph in Article VII.
As a condition of continued employment, every employee who confirms
to the Company his membership in the Union as of November 20, 1947,
or becomes a member of the Union after November 20, 1947, shall be
required to maintain his membership in good standing.
On October 11, the strike settlement proposal in the form set out above was
submitted to membership meetings of the several locals involved, was voted on
by the membership, and was approved. On October 12, Botkin again met with
the Respondent's negotiators. At that. time the strike settlement memorandum,
in the precise form set out above, was dated and initialed by Botkin for the
Union, and by Billings and Lauschel for the Respondent.
On October 13, 1947, in compliance with the strike settlement agreement, the
Union terminated the strike and withdrew its pickets.
3. The inauguration by the Respondent of its "Return-to-Work Policy," with
"strike seniority"
Shortly after the strike settlement agreement was signed, a group of higher
management. officials, including Lauschel, determined upon and drafted a so-
called "Return-to-Work Policy." According to the testimony of Clearwater'
Manager David S. Troy, a member of this group, the strike settlement agreement,
as it was interpreted by Management, was used as the basis for formulating the
Policy. The purpose of the Policy, according to the Respondent's witnesses, was
to provide a guide for the uniform interpretation and application of the settle-
ment' terms by management officials at the Respondent's various plants. The
text of the Policy, to the extent applicable to the issues of this case, is set
forth below :
POTLATCH FORESTS, INC.-RETURN TO WORK POLICY
Employees who returned to work October 13th to 22nd inclusive, 1947,
will, in case of curtailment, be laid off ahead of employees who returned
POTLATCH FORESTS, INC. 1201
to work or were hired on or before October 12, 1947 (settlement date). The
order of layoff in each group will be based on each person's previous seniority
rights.
Employees who returned to work on or before October 12, 1947, re-
established their previous seniority for all purposes. Employees who re-
turned to work October 13 to October 22, inclusive, 1947, re-established their
previous seniority for purposes of curtailment as among this group (return-
ing October 13 to 22, incl.), and for training and promotion among all
groups,
Employees who returned to work on or before October 22, 1947, but
whose jobs had been filled while they were on strike will be given an oppor-
tunity to return to their old jobs at the first opening occurring. If this
opportunity is passed up, then the employee's rate will revert to the rate
of the job be holds and he will have no further right to return to his old
job.
Employees who returned to work on or before October 22, 1947 will retain
all previous seniority rights for purposes of training and promotion.
Former employees who returned to work after October 22, 1947, will be
classed as new employees.
The aspect of the "Return-to-Work Policy" most pertinent here is the division
of the Respondent's employees, for purposes of determining seniority upon a
reduction in force, into two classes-one, composed of those who had crossed
the Union's picket lines during the strike; the other, made up of those who re-
mained out on strike during its entire course. Employees in the first class were
granted the benefit of a form of superseniority-later styled by the Respondent
as "strike seniority." Employees in the second class suffered, concomitantly,
an impairment of their pre-strike relative job retention rights in the bargaining
unit considered as a whole.
It was stipulated by the Respondent that since the termination of the strike
it has continued to maintain and give effect to the seniority principles set out in
its "Return-to-Work Policy."
It has already been noted that the "Return-to-Work Policy" was drafted by
officials of the Respondent without consulting the Union. After it was drafted,
it was neither submitted- to any union official, nor was it printed or otherwise
generally publicized among the employees in the Respondent's plants. Employ-
ees were made aware of "strike seniority" only when they as individuals inquired
concerning their own relative seniority status. It was not until June 1949 that
the union officials were shown for the first time a copy of the "Return-to-Work
Policy."'
But that is not to say that in the interim the Union was unaware that the
Respondent was maintaining a policy of according to employees who had worked
during the strike preferential treatment at variance with the seniority pro-
visions of the Master Agreement. Notice to that effect, at least in a general way,
was brought home to the Union long before the layoffs of Cloninger and Walters.
° In June 1949.-the Policy in its written form was brought officially to the Union's atten-
tion by a conciliator who was seeking to resolve the parties' differences in their negotiations
for a new contract. The negotiations had bogged down, it seems, largely as a result of the
Respondent's insistence and the Union's refusal to include a "superseniority" provision
giving preference to employees who had worked during the 1947 strike.
877359-50-vol. 87-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, shortly after the termination of the strike, grievances charging impairment
of seniority rights were filed on behalf of a number of the Respondent's railroad
employees who had remained out through the entire course of the strike 6 During
the processing of these proceedings it was indicated to union officials, by state-
ments of company representatives as well as through other sources, that the
Respondent was interpreting the strike settlement agreement as granting, at least
for certain purposes, preferential seniority treatment to those employees who
had returned before the strike settlement date. The Respondent's interpretation,
it seems, was based in part upon what it considered to be an oral or implied un-
derstanding reached by the negotiators of the strike settlement agreement. The
nature of the alleged oral understanding will be considered at some length in a
subsequent section of this report. It need only be observed here that during
the railroad grievances, the Union took issue with the Respondent's position, deny-
ing then, as it does now, that any agreement or understanding, oral or other-
wise, had ever been reached by the negotiators to vary the seniority provisions
of the contract.
The question whether seniority was to be interpreted in a manner different
from the provisions of the last Master Agreement arose again following the con-
clusion of negotiations for a new contract in the spring of 1948. No issue
apparently was raised during the negotiations with regard to the seniority pro-
visions of the former contract. After the negotiations had resulted in agree-
ment upon all points in issue, a "recommended" agreement, dated April 13, 1948;
was signed by the negotiating parties, detailing the agreed upon modifications,
amendments, and interpretations to the former contract. In accordance with the
usual practice, the agreement of April 13, 1948, was then submitted to the union
membership, and was ratified. It was understood that after ratification a new
Master Agreement was to be drawn by the Respondent to include the provisions
of the last one, as modified by the various written memoranda of agreement that
had been signed since. When the new Master Agreement was typed by the Re-
spondent, it included a clause reading, "The strike settlement of October 12, 1947,
shall control the application of the seniority article." Taking the position that no
mention had been made in the negotiations concerning this clause, the Union re-
fused to sign the Master Agreement in that form. But although no Master
Agreement was signed, the record is clear, and it is found, contrary to the posi-
tion of the Respondent's counsel, that the last Master Agreement, as modified by
5 The nature of these grievances was not fully developed on the record , and it is difficult
to tell with any certainty precisely what was involved. It would appear, however, from the
grievance complaint forms which are in evidence , that none of the grievances concerned a
question of retention rights upon reduction of force . The grievances appear to have
involved , rather, the issue of whether certain strikers were entitled upon their return to
specific jobs or rates of pay , it being claimed in some cases that the grieving employees
were denied their former jobs or jobs to which their seniority entitled them, although such
jobs were not actually filled by others at the conclusion of the strike . It seems , although
the record is also somewhat deficient in this regard, that the Respondent defended these
particular grievances mainly upon the ground that the actions complained of were war-
ranted by the replacement provisions of the settlement agreement. The railroad grievances
were carried to the highest level of the grievance procedure where the Union finally, but
under protest , acquiesced in the Respondent ' s position . It is the Union ' s position that
it acquiesced only because its only other available remedy was to strike , and this it was
not in a position to do at that time . Although , according to the Union , it regarded the
Respondent ' s action against the railroad employees as discriminatory , it decided against
filing an unfair labor practice charge at the time, because there was then pending a petition
filed by a rival union raising a question of representation which the Union was anxious to
have speedily resolved.
POTLATCH FORESTS, INC. 1203
the several agreements hereinabove referred to, was in fact extended in its
operative effect until April 1, 1949 e
B. The lay-offs of Cloninger, and Walters
1. Gail Cloninger
Hired on July 24, 1940, Gail Cloninger thereafter worked without break for
the Respondent, principally in its box factory, until his induction in the military
service on December 31, 1941. On August 19, 1943, after his military discharge,
be was rehired with veterans' reemployment rights. On September 3, 1946, he
was transferred to the carpenter crew of the Clearwater maintenance depart-
ment where, classified as a common laborer, he worked continuously until the
strike of August 7, 1947. Cloninger remained out on strike until after its settle-
ment date, returning on October 13, 1947. Upon his return he was reassigned
to work as a truck driver's helper on the carpenter's crew, the very job on which
he had been working immediately before the strike.
On December 30, 1948, the Respondent, due to adverse weather conditions,
found it necessary to curtail operations in its Clearwater maintenance depart-
ment, and a number of employees, including Cloninger, were laid off from their
jobs in that department. During Cloninger's absence from the maintenance
department, Dale Cox filled his place as truck driver's helper on the carpenter's
crew. Cox was first employed by the Respondent on November 13, 1946, worked
in the box factory until June 5, 1947, then was transferred to the carpenter's
crew in the maintenance department, and worked there until the strike on
August 7, 1947. Returning to work on October 1, 1947, while the strike was in
progress, Cox was given a job in the sawmill, and remained there until December
1.5, 1947, when he was again transferred to the carpenter's crew.
The Respondent's witnesses conceded that under the Respondent's prestrike
interpretation of the applicable seniority provisions, Cloninger's seniority, both
in the maintenance department and in the plant, would have been considered
greater than that of Cox; that Cloninger would have had prior retention rights:
In the department upon a curtailment of operations ; and that he could not
have been replaced by Cox in a situation such as this. The reason Cox was
retained in the department in preference to Cloninger, according to the testi-
mony of Clearwater Personnel Director William Green, was because Cox had
returned to work through the picket line, and, on the basis of the Respondent's
post-strike seniority interpretations, was consequently entitled to "strike
seniority."
After his lay-off from the maintenance department, Cloninger filed a grievance
protesting the action taken against him as being at variance with his seniority
rights. The Respondent defended on the ground that Cloninger had no "strike
seniority." The grievance was carried by the Union to the highest step of the
grievance procedure, short of conciliation. The Union agreed at that level
that Cloninger be put back to work under the Respondent's interpretation of
This finding is convincingly established by the following : ( 1) The record clearly shows.
that the parties dealt with each other on that basis ; ( 2) Charles J. Commerford , Clear-
water's personnel director until July 1, 1949, so testified ; (3) the Master Agreement pro-
vides for 60 days ' notice prior to the April 1 expiration date of a change of terms. On,
January 28 , 1949, the Respondent notified the Union of its desire "to negotiate a written
agreement based on the Master Agreement effective April 1, 1946, as modified by the subse-
quent agreements of May 7 and 28, 1947, October 12, 1947, and April 13, 1948 , incorporating
in one agreement the various interpretations , clarifications , and amendments which have
never been combined in a single signed statement."
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the seniority provisions, but it expressly noted on the grievance settlement that
it was not agreeing by its action in Cloninger's case to any over-all settlement
recognizing the validity of the Respondent's seniority interpretation. IWA Or-
ganizer Frank E. Gordon testified that the Union did not carry the grievance
to the final procedural level of conciliation, because it felt nothing would be
gained by that step, because it did not care to strike on the issue, and because
it considered that the issue had best be resolved through unfair labor practices
charges to be filed with the Board. It was Gordon's further uncontradicted
testimony that the Respondent was so informed at the time of the disposition
of the Cloninger grievance.
Upon receipt of his lay-off notice, Cloninger, in accordance with the Respond-
ent's usual practice, was referred to the employment office for possible reassign-
ment. On that day he was offered a job, also in the common labor classification,
in another department, to begin on January 2, 1949. Cloninger declined to accept
this job immediately, because he desired first to process his grievance. On
January 4, 1949, he did accept a job in the* cut-up department, and went to work
on January 6. On February 15, 1949, he was retransferred to the carpenter's
crew of the maintenance department. No back pay is claimed for Cloninger.
2. Claude A. Walters
Claude A. Walters, whose jobs with the Respondent were in the common labor
classification, went to work in the unstacker department on âIay 17, 1.944, and,
except for two temporary assignments each of 2 days' duration, worked con-
tinuously in that department until the time of the strike. He remained out
on strike during its entire length, returning on October 13, 1947. Upon his
return, he was given his former job in the unstacker department, and remained
there until January 18, 1949, when, as a result of a curtailment of operations
necessitated by economic considerations, he was given a lay-off notice, along
with others. At the time of his lay-off, Walters was informed by his foreman
that he would have retained his job in the department had he come back to
work only 1 day before the termination of the strike.
Paul Slater was one of the common laborers who was retained during the
curtailment in this department. Slater, whose service in the plant dated from
January 15, 1946, and in the unstacker department from May 9, 1947, had gone
on strike with the other employees on August 7, 1947, but had returned to work
in the unstacker department on September 9, 1947, before the strike had run
its course. The Respondent conceded that Walters could have performed the
clean-up work to which Slater was assigned during the period of curtailment.
And it is not disputed that under the Respondent's prestrike interpretation of
the applicable seniority principles, Walters, on the basis of his service in the
department and in the plant, would have had preferred retention rights over
Slater in the department. The reason for retaining Slater while laying off
Walters, it was conceded, was because Slater, unlike Walters, had "strike
seniority."
On January 20, 1949, before his lay-off in the replant department, Walters
was offered a watchman's job carrying the common labor rate of pay. Walters
refused the watchman's job, stating then, as he also did at the hearing, that his
feet and ankles could not stand the walking involved. It appears, however,
that Walters' job in the unstacker department also required him to be constantly
on his feet. On January 27, 1949, Walters was offered a box-picking job in
the replant department on the night shift, paying a common.labor rate plus
.a night shift differential. But he declined that job also, because, he said, it
POTLATCH FORESTS, INC. 1205
involved night work and he would have transportation difficulties in getting
to the plant. It appears, however, that in the unstacker department Walters
had worked during alternate months at nights. And the record further shows
conclusively that there was a bus running between a point close to Walters'
home and the plant, with schedules timed to coincide with the night shift hours.
On March 2, 1949, Walters called at the employment office, and was offered a
job in the unstacker department on the 3 a. m. to 11 a. in. shift. He refused this
job, too, for the reason (in this instance apparently justified) that it would
entail transportation problems. At that time, he asked for a job tending lawns,
but none was available. The following week Walters was offered, and accepted,
a common laborer's job in the dock department. He remained on that job until
March 21, 1949, when he was reassigned to the unstacker department. In the
case of Walters back pay is claimed for the period from January 22 to March
10, 1949. That claim is disposed of in the section below, entitled "The remedy."
No formal grievance was filed by Walters or on his behalf. Walters, however,
discussed the situation with the IWA organizer, Frank Gordon, who in turn took
up the matter, informally with Personnel Director Commerford. After Commer-
ford advised Gordon of the job offers Walters had turned down, Gordon did not
press the matter further. According to Gordon's testimony, he felt the better
procedure would be to add Walters' name to the unfair labor practice charge
which the Union was then preparing to file.
3. Factual analysis of the Respondent's contention that the Union agreed to
"strike seniority" as part of the strike settlement
The Respondent asserts that in applying "strike seniority" in the lay-offs
of Cloninger and Walters, it was doing no more than conforming to the terms of
the 1947 strike settlement agreement. With that assertion, the General Counsel
and the Union take sharp issue.
It is clear, of course, that the five-point strike settlement memorandum of Octo-
ber 12, 1947, cannot be relied upon to support the Respondent's position. Not only
does the memorandum omit all reference to "strike seniority" (in the sense cov-
ered by the opening paragraph of the "Return-to-Work Policy"), but it contains
a number of express provisions that appear patently inconsistent with that
principle.. Among the express terms of the memorandum that are in competi-
tion with "strike seniority," are (a) the provision that former employees are to
return "without discrimination"; (b) the provision that those who return by
October 22 will "protect their job rights" ; and (c) the provision that save for the
union security clause, "the present contract [including it must be assumed its
seniority provisions] will remain in effect without change." 7
But in pressing its contention, the Respondent does not rely, except possibly in
part, upon the terms of the written memorandum. It takes the position that the
written memorandum expressed only partially the agreement of the parties ; that
there was in addition a supplementary verbal understanding providing in effect
for "strike seniority." The Union denies that any such supplementary under-
standing was reached. To support its claim the Respondent rests upon the
testimony of Otto Lauschel, one of its negotiators at the strike settlement.
Analysis of Lauschel's testimony on this factual issue reveals the following :
Although there had been prior discussion concerning reinstatement of returning
strikers to jobs which had been filled by others during the strike, the question
7 In only one situation does the memorandum make express provision for the impairment
of job rights of a striker returning after the strike settlement date and before the October
22 cut -off date-and that is where his former job is no longer open.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of seniority, as such, was first brought to the forefront at the meeting of October
10, 1947. It specifically arose in this manner. During the settlement negotia-
tions various drafts of a proposed settlement agreement had been prepared. On
October 10, the union negotiators submitted a draft in the precise form later
initialed by the parties, except for one clause. There was added to the provision
that former employees were to "return to work without discrimination," the
clause "and without loss of seniority." The insertion of that clause met with
objection from the' Respondent's negotiators. They were then principally con-
cerned with protecting men already at work in particular jobs against being dis-
placed from such jobs by returning strikers. Apparently centering their argu-
ment about that point, the Respondent's negotiators protested that the insertion
of the clause referring to seniority would not at the conclusion of the strike pro-
tect employees already working against displacement by returning strikers in
the particular jobs they were then holding. The question of protecting the jobs
of replacements upon a future curtailment of operations, to the extent that it was
raised at all, came up only as an incident to the main point with which the Re-
spondent was concerned.' The union negotiators, declining to accede to any
relinquishment of its striking members' seniority rights, strongly opposed the
Respondent's position. After some lengthy discussion of this issue, at which no
agreement was reached, the union negotiators retired from the meeting room to
consider the matter privately. They returned with the words "and without loss
of seniority" stricken from draft.' Asked by the Respondent's representatives
why they had deleted the phrase, the union negotiators replied that it was going
to be difficult enough to sell the union membership on a strike settlement involv-
ing no gain to the strikers, without further complicating settlement by any ref-
erence to seniority. The Respondent's negotiators made no response, except to
say, "Maybe that is all right too," and to add that it probably was a matter of no
importance anyway, since it could not affect anyone until a serious curtailment
took place, and no such curtailment was in prospect at that time.
There was no further discussion of the subject, and the matter was allowed
to rest at that point. The Respondent's representatives were fully aware at the
time that the Union's negotiators were unauthorized to do more than tentatively
settle upon terms of an agreement which was to be reduced to written form for
submission to and ratification by the union membership before it could become
binding upon their principal. Yet they admittedly made no attempt to have
inserted in the written memorandum any express reference to "strike seniority."
Lauschel testified that he "assumed" the Union's negotiators had agreed to
"strike seniority" ; and that his "assumption" was based entirely upon their
conduct in striking "and without loss of seniority" from the draft. He admitted,
however, that at no time during the course of the negotiations or thereafter, had
. 8 Jodie Eggers , a union negotiator , testified that he could not "recall any mention of
curtailment as far as it would affect employees as such ." On the basis of all the evidence,
however, I am persuaded that the question of curtailment was raised by the Respondent,
but only from the point of view indicated above, and not from the point of view of granting
employees who had returned during the strike a form of superseniority generally applicable
In cases of curtailment.
9 Eggers testified that the union negotiators decided in caucus to delete the phrase
"without loss of seniority" to eliminate confusion, and because they were of the opinion
(1) that this phrase conflicted in a sense with the provision in the settlement draft, to
which they were prepared to accede, that returning strikers were not to be reinstated to
jobs formerly held by them if such jobs had since been filled by others and were no longer
open ; and (2) that, except in a situation involving the actual replacement of strikers,
seniority rights would in any event be fully protected by the settlement provision con-
tinuing in effect the then existing collective bargaining agreement.
POTLATCH FORESTS, INC. 1207
the union negotiators expressed in words their agreement with the Respondent's
position on "strike seniority." Asked by the Respondent's counsel why, if there
was such an agreement, no affirmative mention was made of it in the memo-
randum, Lauschel replied:
They [the Union's negotiators] didn't want it in there. .. . Because they
said they couldn't sell that type of a thing to their membership, they would
rather not have anything said about seniority to complicate the settlement of
the strike, and get the men back to work.
It was Lauschel's further testimony that until the memorandum was dated and
initialed on October 12, 1947, he had viewed it simply as a proposal for a settle-
ment, but that, once initialed, he regarded it no longer as a proposal, but as a
strike settlement agreement embodying the full understanding of the parties.
That, too, is the view of the Union and of the General Counsel.
Upon the foregoing facts, I am unable to conclude that the Union and the Re-
spondent. agreed that the principle of "strike seniority" was to control future
reductions in force, as alleged by the Respondent.
The finding sought by the Respondent would, to begin with, patently vary and
contradict the unambiguous terms of the signed strike settlement agreement of
October 12, 1047. I am persuaded that the parol evidence rule-which has as
its l:asis the assumed intention of parties who have evidenced their understanding
by a written document to place themselves beyond the uncertainties of ex-
trinsic evidence-is applicable and controlling in this situation. The entire
record, and Lauschel's testimony as well, makes it clear that when the parties
dated and initialed the memorandum of October 12, they intended that docu-
ment as an integration of all that had been said and done in the course of the
negotiations. All prior negotiations between the parties thus became superseded
by, and merged in, the written instrument itself, thereby precluding considera-
tion of prior utterances and acts of the parties on the subject of the agreement
for the purpose of varying, adding to, or subtracting from its terms." It is of no
avail to the Respondent that it may have executed the agreement upon a mis-
taken assumption, however sincerely held, that certain of its terms would be
construed in a manner different from their plain and ordinary meaning." On
the facts of this case, I am unable to conclude that the Respondent's mistaken
assumption was mutually shared by the Union, or that it was induced by fraud
or other improper conduct of the Union. But even if it were assumed, as some of
Lauschel's testimony may suggest, that the negotiators for the respective parties
tacitly joined to conceal from the union membership a secret collateral under-
standing, the Respondent's position would not be aided. In that event, culpa-
bility for the concealment would have to rest at least equally with the Respond-
ent's negotiators, who, as noted, were then on notice of the limited authority of
the Union's negotiators and of the necessity of submitting the proposed settle-
ment agreement in written form for union ratification. And the Respondent,
whose negotiators had thus at least shared in inducing the union membership to
rely on the writing, without revealing in the writing itself that certain un-
equivocal terms used therein were to be ignored or else construed in some special
sense, would not now be in a position to escape the normal consequences of what
was represented in writing as the agreement, on the basis of an alleged extrinsic
10 9 wigmore, Evidence §§ 2425, 2471 (3rd ed. 1940) ; Richardson, Evidence § 420 (4th ed.
1944).
11 Wigmore § § 2415, 2460, 2461.
1208 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
prior oral understanding at variance with the specific written'terms relied upon
and approved by the union membership 12
Moreover, even if the Respondent were correct in contending that the parol
evidence rule is inapplicable to this situation, the conclusion reached would be
the same. Lauschel's own testimony accepted at face value, it is found, is in-
sufficient as a matter of substantial evidence to support a finding that the Re-
spondent and the Union orally agreed that "strike seniority" as to govern em-
ployee retention rights in a situation such as prevailed when Cloninger and
Walters were laid off from their departments. Apart from the questionable au-
thority of the Union's negotiators to enter into an oral agreement binding on the
Union, Lauschel's testimony fails to establish a meeting of minds between the
negotiators for the respective parties on this subject. Clearly, there is no direct
evidence of assent ; for, as Lauschel himself conceded, the Union's negotiators at
no time expressed their agreement with the Respondent on "strike seniority."
Nor may an inference of assent reasonably be drawn from the conduct of the
Union's negotiators in striking from the written document the "and without loss
of seniority" clause; for such an inference would be inconsistent not only with
the remaining terms of the document, but with the announced reason for the
deletion. Proof of a bilateral agreement requires a positive showing of mutual
assent to its terms, evidenced by the words or conduct of both parties to the
transaction. Where, as here, the words are lacking and the conduct is too
equivocal to show assent by one of the parties, it is not enough that the other may
have unilaterally "assumed" the existence of an understanding.
It is found, contrary to the Respondent's contention, that the memorandum of
October 12, 1247, reflects the strike settlement agreement, and that the Union
did not agree to "strike seniority" upon a curtailment of operations, as alleged
by the Respondent.13
4. Concluding findings
The central issue to be determined is whether the Respondent engaged in
unfair labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1)
of the Act, by selecting Gail Cloninger and Claude Walters for lay-off in their
respective departments while retaining others junior to them in point of sere-
ice-the selection admittedly having been made pursuant to the Respondent's
previously formulated "Return-to-Work Policy," which provided, inter alia, that,
in the event of a lay-off resulting from a curtailment of operations, employees
who returned to work or were hired during the course of the 1947 strike were
to possess preferential retention rights over employees who remained out until
the termination of the strike.
Although the Respondent contends otherwise in its brief, it is clear from
the undisputed record facts, and it is found, that neither Cloninger nor Walters
12 See, Wigmore, § 2463.
13 A procedural matter remains to be disposed of. The testimony of Lauschel relating
to the negotiations leading to the strike settlement agreement was received subject to a
later motion to strike if the parol evidence rule were found applicable. Decision was
reserved upon the motion to strike. Although the rule has now been found to apply, the
alotion to strike is, nevertheless, denied. The parol evidence rule is essentially a rule of
substantive law ; it is not a rule of evidence, though, like any principle of substantive law
it may operate as a guide to what evidence should be admitted. (Wigmore §§ 2400, 2425.)
As a matter of substantive law, Lauschel's testimony, whether or not it is permitted to
remain in the record, may not be considered for the purpose overriding the written signed
agreement. For that reason , and because much of Lauschel' s testimony is material to the
contested issue of whether the agreement was intended as a completed document, it has
been decided to deny the motion.
POTLATCH FORESTS, INC. 1209
were actually replaced during the 1947 strike. As has been shown, immediately
upon the strike's conclusion, both were restored to work on the precise jobs they
had held when the strike began. In making the afore-mentioned finding, the
Respondent's "partial reinstatement" argument has not been overlooked. The
Respondent advances the novel thesis that, since common labor in any given
department in the Respondent's plant is a "pooled" and not a specific job classi-
fication, the filling during the strike of any common labor jobs in a given de-
partment operated as a partial displacement of all in that department's common
labor pool who remained out on strike. Consequently, the argument continues,
strikers such as Cloninger and Walters upon their return to work at the end of
the strike were entitled only to "partial reinstatement"-that is, a qualified
form of reinstatement which restored to them all their former job rights, except
the right which might otherwise flow from their seniority to displace upon a
future reduction in force those employees who during the course of the strike
had already "partially" displaced them.
At least as applied to this case, and particularly to the situation of Cloninger
and Walters, the Respondent's "partial reinstatement" argument is found to be
based upon premises, not only inconsistent with the terms of the strike settle-
ment agreement," and otherwise false in fact," but unsupportable in law.
N. L. R. B. v. Mackay Radio Telegraph Company, 304 U. S. 333, does not, as the Re-
spondent suggests, support its position in that regard ; rather it refutes it. The
holding in that case--that an employer "is not bound to discharge those hired
to fill the places of [economic] strikers upon the election of the latter to resume
their employment in order to create places for them"-is based upon the prop-
osition that no discrimination may be found in an employer's refusal to restore
to work economic strikers for whom vacancies no longer are open because the
employer, with the nondiscriminatory object of continuing his business, has
replaced the strikers during their voluntary absence on strike. But where, as
in this ease, places are in fact available for the returning strikers, and they are
actually restored to their former jobs at the termination of the strike, the
Mackay Radio doctrine cannot be construed to justify as nondiscriminatory
their "partial reinstatement," as that term. is used by the Respondent. For,
'" The strike settlement agreement makes no reference, either expressly or by implica-
tion, to "partial reinstatement" of employees, who, like Cloninger and Walters, returned
at the end of the strike to their former jobs which were still open at the time. On the
contrary, the agreement explicitly provides for the return of such strikers "without discrim-
ination" and for the protection of their "job rights."
ie The Respondent's argument appears to be based upon fictional reasoning. Viewing
the facts practically and realistically, it is difficult to comprehend how it can be said of
.employees like Cloninger and Walters that they were replaced even on a partial basis,
when at the conclusion of the strike they were immediately returned to their former posi-
tions. Though common labor in each department be considered a pool, the pool presum-
ably was no larger upon their return than when they left on strike. Even more difficult
to follow is the claim that they were replaced by employees who had worked at their sides
before the strike, but who, although they had also gone on strike, had chosen to return to
work before the strike's termination. Whether or not an employee has been replaced is to
be tested not by whether someone else has performed his work during his absence on strike,
but by whether a vacancy exists for him to his former job at the time he elects to abandon
the strike and return to work.
In the case of Cloninger, the Respondent's own hypothesis would not support a finding
that Cloninger was replaced in his department by Cox, the employee with less service credit
who was retained when Cloninger was laid off. Cox, when he returned to work during
the strike, was placed in another department, and did not reenter Cloninger's department
until some time after Cloninger's return. How it can be said in these circumstances that
Cox displaced Cloninger in the common labor pool of Cloninger's department, baffles
understanding.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the Supreme Court expressly recognized in the Mackay Radio case, strikers
during the course of a strike retain their status as employees under Section 2
(3) of the Act, and, if places are available upon their election to return, any
discrimination in putting them back to work is prohibited by Section 8. The
controlling rule was recently restated by the Board in General Electric Company,
80 NLRB 510, as follows : ". . . except to the extent that a striker may be re-
placed during an economic strike, his employment relationship cannot otherwise
be severed or impaired because of his strike activity."
There can be no doubt, and it is now well settled, that a seniority policy which
classifies employees according to whether they had worked during a strike, or had
not, to the detriment of the relative seniority standings of these who had not, dis-
criminatorily and illegally impairs the employment relationship of those who had
exercised their right under the Act to engage in concerted activities. See
General Electric Company, supra; Precision Castings Company, 48 NLRB 870;
and Paper, Calmenson and Company, 26 NLRB 553. And this is so regard-
less of whether or not there is in existence at the time a collective bargaining
agreement covering the subject of seniority. In this case it has been found
that a contract, including substantially the seniority provisions of the last
Master Working Agreement, was in force when Cloninger and Walters were
laid off. But were the facts otherwise, as the Respondent contends, the con-
clusion reached would still be the same. Seniority rights, to be sure, are not
self-existing rights arising from the mere fact of employment; they are rights
that normally derive their scope and significance from union contracts. Aero-
nautical Lodge v. Campbell, 377 U. S. 521. But that does not mean, as the Re-
spondent further urges, that, in the absence of an agreement covering seniority,
the Board is without jurisdiction to enter an order affecting seniority of em-
ployees. The Act's protective provisions, safeguarding employees against dis-
crimination for having chosen to exercise their statutorily guaranteed rights,
apply independently of contract. They are no less applicable where the' dis-
criminatory penalty for having exercised such rights takes the form of a de-
parture from the order in which an employee could otherwise expect to be laid
off upon an economic curtailment, than where it takes the form of an outright
discharge of an employee whose tenure of employment is not protected by a
contract.
It follows that the Respondent's application of its discriminatory seniority
policy must be held violative of the Act, unless the Respondent has some other
defense. The Respondent in its brief suggests several. _
The Respondent's principal ground of defense has already been adverted to-
its claim that the Union agreed to "strike seniority" as part of the 1947 strike
settlement. The validity of such an agreement, had it been established, would
have been open to grave doubt. For it is seriously to be questioned whether a
union may legally bargain away in a strike settlement a safeguard so funda-
mental as that accorded individual employees under the Act to be protected from
discriminatory action for having exercised their guaranteed right to engage
in legitimate strike activities 1d That, however, is a question that need not be
decided here. It has been found as a fact that the Union did not agree to
"strike seniority." The finding of fact thus removes the question of law.
The Respondent asserts as a further defense that this proceeding is barred
by the limitations provision of Section 10 (h) of the Act, as well as upon equitable
doctrines. It is contended that the validity of the "strike seniority" policy is no
11 See Briggs Indiana Corporation, 63 NLRB 1270 , at 1272.
POTLATCH FORESTS, INC. 1211
longer open to attack, because it was established some 16 months before the filing
of the charge, and because it was in the meantime allegedly acquiesced in by
the Union. Section 10 (b) is clearly inapplicable. The issue in this case is not
whether the Respondent committed an unfair labor practice by inaugurating the
policy, but whether it violated the law by continuing to maintain it ; more specifi-
cally by applying and giving effect to it in the lay-offs of Cloninger and Walters.1S
These lay-offs occurred well within the statutory period limited by Section 10 (b).
The Respondent's earlier conduct has been considered here merely for the pur-
pose of bringing into clearer focus the conduct in issue. Even without such
consideration, however, the allegations of discrimination would have been found
amply supported by such undisputed record facts as bear directly upon the lay-
offs of Cloninger and Walters.
The further contention, that the proceeding is barred upon equitable grounds
because of the Union's alleged long acquiescence in the "strike seniority" policy,
rests upon no firmer ground. In point of fact, the Respondent's position is found
unsupported by the record. Acquiescence in a discriminatory policy cannot be
implied merely from a failure to file an unfair labor practice charge, particularly
where, as here, the Union protested the policy from the beginning, at least to
the extent that the policy was made. known to it. But even had acquiescence by
the Union been established, it could not, in point of law, have estopped the Board
from proceeding with the case. The Board does not exist for the adjudication
of private rights, but acts in a public capacity to give effect to the declared public
policy of the Act to promote the full flow of commerce by, among other things,
proscribing certain practices, defined in Section 8, which have been found by
Congress to affect commerce and to be inimical to the general welfare. Phelps
Dodge v. N. L. R. B., 313 U. S. 177; H: 31. Newman, 85 NLRB 725. Nor is it a valid
defense that the Union accepted the Respondent's decision on the Cloninger
grievance and failed altogether to process a grievance for Walters. This is so
not only because of the public policy considerations just indicated, but also
because the Board has exclusive power to remedy unfair labor practices, a power
which under Section 10 (a) of the Act, may "not be affected by any other means
of adjustment or prevention that has been or may be established by agreement,
law, or otherwise." See N. L. R. B. v..Newark Morning Ledger Co., 120 F. 2d
262, 268 (C. A. 3), cert. den. 314 U. S. 693.
It is concluded and found that, by laying off Cloninger from the maintenance
department on December 30, 1948, and Walters from the unstacker department
on January 18, 1949, while retaining in such departments other employees, who,
but for the fact that they had gone to work during the 1947 strike while Cloninger
and Walters had not, would have been laid off ahead of Cloninger and Walters,
and by thus applying and giving effect to a seniority policy under which employees
who refrained from working during the entire course of the 1947 strike were to
be laid off ahead of employees who returned to work or were hired during the
course of that strike, the Respondent discriminated with regard to the hire and
tenure.of employment and the terms and conditions of employment of Cloninger
and Walters, thereby discouraging membership in the charging local and in its
parent International, and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
17 The complaint, it is true, alleges that the Respondent violated the Act by "inaugu-
rating," as well as by "maintaining and giving effect, " to the policy . At the opening of
the hearing, however, the General Counsel announced that an unfair labor practice finding
was being sought only with regard to the Respondent 's conduct in maintaining and giving
effect to the policy within the 6-month period preceding the filing of the charge.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent, described in Section I, above,
have a close, intimate, and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Raving found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the policies of the Act.
Since both Cloninger and Walters, who were found to have been discrimina-
torily laid off, were restored to the jobs held by thorn prior to their discriminatory
lay-off, no order of reinstatement is necessary. As has already been noted, no
claim for loss of earnings is made in connection with the discrimination against
Cloninger. Although such a claim is made with regard to Walters, I find it
unsupported. On the basis of the facts set out above, I am persuaded that the
several jobs offered Walters by the Respondent, beginning on January 20, 1940,
were jobs which he could have filled, that such jobs were offered him in good
faith by the Respondent, that lie did not accept such jobs because he did not
desire to work during that period, and that any losses in earnings incurred by
him between the date of his discriminatory lay-off from the unstacker depart-
ment on January 18, 1949, until he was reinstated to his former job, were wil-
fully incurred. Consequently, no back pay order is recommended in Walters'
,case. See Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177.
Although Cloninger and Walters are the only employees specifically found to
have been discriminated against through application of the "strike seniority"
policy, it appears that the Respondent continues to maintain that policy, and,
unless the Respondent is ordered to cease and desist therefrom, the danger is to
be anticipated that other employees similarly situated may upon a future cur-
tailment of the Respondent's operations also suffer a discriminatory Impairment
of their employment relationship. Consequently, it will be recommended that
the Respondent cease and desist from continuing to maintain or to give effect to
said policy.
CONCLUSIONS OF LAW
1. International Woodworkers of America, Local 10-364, C. I. 0., and its parent
organization, International Woodworkers of America, C. 1. 0., are labor organi-
zations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of Gail Cloninger and Claude Walters, thereby
discouraging membership in labor organizations, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By said acts, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act, and
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
POTLATCH FORESTS, INC. 1213
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, it is recom-'
mended that the Respondent, Potlatch Forests, Inc., Lewiston, Idaho, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Maintaining or giving effect to any seniority or lay-off policy which dis-
criminates against any of its employees with regard to the order in which they
are to be selected for lay-off, or with regard to any other aspect of their employ-
ment relationship, on the basis of whether they had or had not engaged in strike
or concerted activities, or on the basis of the period during, which they had
engaged in such strike or concerted activities.
(b) Discouraging membership in International Woodworkers of America,
Local 10-364, C. I. 0., and its parent organization, International Woodworkers
of America, C. I. 0., or any other labor organization of its employees, by in any
other manner discriminating in regard to their hire and tenure of employment
or any term or condition of employment.
2. Take the following affirmative action, which it is found will effectuate the
policies of the Act:
(a) Post immediately at its Clearwater plant at Lewiston, Idaho, copies of
the notice attached hereto, marked Appendix A. Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall, after being
duly signed by the Respondent, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are riot altered, defaced, or covered by any other material ;
(b) Notify the Regional Director for the Nineteenth Region in writing, within
ten (10) days from the receipt of this Intermediate Report what steps the Re-
spondent has taken to comply therewith;
It is further recomrnended that, unless the Respondent shall, within ten (10)
days from the receipt of this Intermediate Report, notify the Regional Director
for the Nineteenth Region in writing that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring-
the Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National:
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington, D. C., an
original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions acid/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly-
made as required by Section 203.85. As further provided in said Section 203.46,
should any party desire permission to argue orally before the Board, request
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefor must be made in writing to the Board within ten ( 10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 30th day of September 1949.
ARTHUR LEFF,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 maintain or give effect to any seniority or lay-off policy which
discriminates against any of our employees with regard to the order in which
they are to be selected for lay-off, or with regard to any other aspect of their
employment relationship , on the basis of whether they had or had not en-
gaged in strike activities , or on the basis of the period during which they had
engaged in any such activities.
WE WILL NOT discourage membership in INTERNATIONAL WOODWORKERS OF
AMERICA , LOCAL 10-364, C. I. 0. and INTERNATIONAL WOODW ORIKERS OF AMER-
ICA, C. I. 0., or in any other labor organization of our employees , by in any
other manner discriminating against any of our employees in regard to their
hire or tenure of employment , or any term or condition of their employment.
All our employees are free to become or remain members of any labor organiza-
tion. We will not discriminate in regard to tenure of employment or any term
or condition of employment against any employee because of membership in or
activity on behalf of any such labor organization.
POTLATCH FORESTS, INC.,
Employer.
By ..----------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.