Roche Harbor Lime and Cement Co.

National Labor Relations Board - Board Decisions

Nov 21, 1938

9 N.L.R.B. 1047 (N.L.R.B. 1938)

In the Matter of ROCHE HARBOR LIME AND CEMENT COMPANY and
FEDERAL LABOR UNION, LOCAL No. 20438 AFFILIATED WITH THE
A. F. OF L.
Case No. C-994.-Decided November 21, 1938
Limestone Quarrying Industry-Settlement : stipulation providing for rein-
statement without back pay to discharged and laid -off employees , upon resump-
tion of operations , in order of seniority ; recognition of union as exclusive
collective bargaining representative of employees for fixed period ; and dismissal
of complaint as to three employees-Order: entered on stipulation.
Mr. G. L. Patterson, for the Board.
Kerr, McCord cC Carey, by Mr. W. Z. Kerr, of Seattle, Wash., for
the respondent.
Mr. Leo F. Flynn, of Seattle Wash., for the Union.
Mr. Ivar Peterson, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Federal Labor
Union, Local No. 20438, affiliated with the A. F. of L., herein called
the Union, the National Labor Relations Board, herein called the
Board, by Elwyn J. Eagen, Regional Director for the Nineteenth
Region (Seattle, Washington), issued its complaint dated August 26,
1938, against Roche Harbor Lime and Cement Company, Roche Har-
bor, Washington, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. A copy of the complaint and notice of hearing
thereon were duly served upon the respondent and the Union.
Concerning the unfair labor practices, the complaint, in substance,
alleged that the respondent through various supervisory officials
attempted to interfere with the internal affairs of the Union by
instructing members thereof how to vote in elections and on pro-
posals coming before union meetings and threatening members with
9 N. L. R. B., No. 96.
1047
1048 NATIONAL LABOR RELATIONS BOARD
discharge for statements made in union meetings; that the respond-
ent instituted ejectment proceedings against named employees for
the purpose of intimidating and coercing said employees because of
their union membership and for the purpose of discouraging mem-
bership in the Union; that the respondent violated the seniority
clause of the labor agreement between it and the Union ; that the
respondent discharged named employees because they joined and
assisted the Union; that the respondent laid off other named em-
ployees and on or about April 23, 1938, laid off all other employees
who were members of the Union for a period of a week for the pur-
pose of breaking the Union and discouraging membership therein ;
that on or about June 9, 1938, the respondent locked out all members
of the Union because representatives of the Union refused to accept
a proposed contract offered by the respondent; and that since March
3, 1938, the respondent has refused to bargain collectively in good
faith with the Union as the representative of the employees at the
Roche Harbor plant, although the Union had been designated prior
to March 3, 1938, by a majority of the employees in an appropriate
unit as their representative for such purposes.
On September 2, 1938, the respondent filed its answer to the com-
plaint admitting its corporate existence, that the Union is a labor
organization within the meaning of Section 2 (5) of the Act, and
that the unit alleged in the complaint is appropriate for the purposes
of collective bargaining, but denying all other material allegations
of the complaint. On September 24, 1938, the Regional Director
issued his order postponing the hearing.
On October 20, 1938, counsel for the respondent, counsel for the
Board, and the business agent of the Union, entered into a stipula-
tion in settlement of the case. This stipulation provides as follows :
This stipulation made and entered into by and between G. L.
Patterson, Regional Attorney, National Labor Relations Board,
Nineteenth Region, and the Roche Harbor Lime and Cement
Company by and through its attorney, Kerr, McCord, and Carey,
and Local No. 20438, by and through Leo Flynn, its business
agent.
Witnesseth :
Whereas, the operation of the Roche Harbor plant of the
Roche Harbor Lime and Cement Company (respondent herein)
was suspended on June 9, 1938, and operation resumed thereafter
on September 12, 1938, and,
Whereas, upon charges duly filed by Federal Labor Union,
Local No. 20438, affiliated with the A. F. of L., the National
Labor Relations Board by the Regional Director for the Nine-
teenth Region, acting pursuant to the authority granted in See-
DECISIONS AND ORDERS 1049
tion 10 (b) of the National Labor Relations Act (49 Stat. 449)
and its Rules and Regulations, Series 1, as amended, Article IV,
Section 1, issued its complaint on the 26th day of August, 1938,
against the respondent herein ;
Now therefore, it is stipulated, admitted and agreed as follows:
I
That the respondent is a corporation organized under and
existing by virtue of the laws of the State of Washington, having
its principal production plant and office at Roche Harbor, San
Juan Island, State of Washington. The respondent also owns
limestone quarries on Orcas Island, and in King County and
Snohomish County, all in the State of Washington. Respond-
ent at Roche Harbor, Washington, also operates a store, a
garage, a hotel, a restaurant, and residential houses for the use
and convenience of its employes. The respondent is engaged
in quarrying, burning, and processing of limestone, and distri-
bution of raw limestone and building lime products at and from
its Roche Harbor plant.
II
That all of the products are sold and shipped by respondent
from its Roche Harbor plant through the navigable waters of
Puget Sound via common carrier vessels. Likewise, respondent's
products are transshipped via common carriers engaged in inter-
state commerce, to wit: Union Pacific, Great Northern, Chicago,
Milwaukee and St. Paul, and Northern Pacific railway systems.
III
That the respondent in the course and conduct of the opera-
tion of its plant at Roche Harbor, Washington, causes and has
continuously caused large quantities of products manufactured
by it to be sold, shipped, and transported in interstate commerce
to, into, and through States of the United States other than the
State of Washington, as hereinafter and more particularly set
out in Exhibit A, attached hereto and made a part hereof, to
which reference is hereby made; that the spall limestone men-
tioned in said Exhibit A is sold exclusively to the American
Smelting and Refining Company, Tacoma Smelter, and there-
after by it utilized in the smelting and refining of raw ores
received by it from several of the States of the United States,
Republic of Mexico, Union of Soviet Socialist Republics, Central
America, South America, and the Dominion of Canada; there-
1050 NATIONAL LABOR RELATIONS BOARD
after refined metals derived from the smelting process are sold,
shipped, and transported in interstate commerce to, into, and
through States of the United States other than the State of
Washington, and in foreign commerce; that in Exhibit A the
use of products of respondent, sold to pulp and paper mills, is
an indispensable integral part of the production of finished
products of said companies. All of the pulp and paper com-
panies mentioned in Exhibit A sell, ship, and transport in inter-
state commerce to, into, and through the several States of the
United States other than the State of Washington, and in
foreign commerce, their finished products.
IV
That the respondent purchases on the mainland of the State
of Washington and causes to be shipped by common carrier
vessels through the navigable waters of Puget Sound a sub-
stantial part of the supplies required by respondent in the
operation of its plant and other facilities at Roche Harbor,
Washington.
V
That respondent, Roche Harbor Lime and Cement Company,
is engaged in interstate commerce within the meaning- of the
National Labor Relations Act and decisions of the United States
Supreme Court thereunder.
VI
That said Labor Union, Local No. 20438, affiliated with the
A. F. of L., is a labor organization within the meaning of Section
2, subdivision (5) of the Act.
VII
All of the employes of the respondent, with the exception of
foremen, office, store, and hotel employes, constitute a unit ap-
propriate for collective bargaining purposes in order to insure
to its employes full benefit of their rights to self-organization
and to collective bargaining and otherwise to effectuate the
policies of the Act within the meaning of Section 9, subdivision
(b) of the Act..
VIII
That the unfair labor practices alleged in the complaint oc-
curred only at the Roche Harbor plant of the respondent.
DECISIONS AND ORDERS
IX
1051
That all of the persons named in Paragraph X and XI of
said complaint are employes of respondent within the meaning
of Section 2, subdivision (3) of the National Labor Relations
Act.
X
That the employes named in Paragraph XI (2) (a), expressly
forego any losses of pay they may have suffered by reason of their
discharge.
XI
Upon the basis of this stipulation the respondent hereby
waives the right to hearing, the making of findings of fact and
conclusions by the Board and expressly consents that an order
may be entered by the Board and, upon application by the
Board without notice to the respondent of the filing of a peti-
tion by the Board, which notice the respondent hereby expressly
waives, the respondent further expressly consents that the Cir-
cuit Court of Appeals for the appropriate circuit may enter
a decree enforcing the order of the Board ordering that;
(1) Respondent will cease and desist as follows :
(a) From in any manner interfering with, restraining, or
coercing its employes in the exercise of their rights to self -organ-
ization, to form, join, or assist labor organizations to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the National Labor Relations Act;
(b) From discouraging membership in Local No. 20438, or
in any other labor organization of its employes, by discharging,
threatening, or refusing to reinstate any of its employes, for
joining Local No. 20438, or any other labor organization of its
employes ;
(c) From permitting its foremen and overseers and other
supervisory officials to participate in the activities of any labor
organization of which employes of the respondent are members;
(d) From in any manner discriminating against any of its em-
ployes in regard to hire or tenure of employment, or any term
or conditions of employment, for joining Local No. 20438 or
any other labor organization of its employes;
(e) From refusing to recognize Local 20438 as the exclusive
representative of its employes in the unit heretofore described
1052 NATIONAL LABOR RELATION'S BOARD
in Paragraph VII, for the period from September 12, 1938, to
and including July 26, 1939.
(2) That the respondent shall take the following affirmative
action to effectuate the policies of the National Labor Relations
Act :
(a) Offer to George Falk, John Gasho, Gus Landahl, Walter
Scott, Clarence Spangler, Richard Chevalier, Al Zettle, Dave
Smith, James Peterson, Sam Mills, Carl Friberg, Ted McKay,
William Mason, Donald Fowle, Claire Pease, Clyde Spangler,
Sr., Joe Neff, Floyd Gilman, Tom Jones, O. D. Strausbough, Wil-
bur Ramsdon, and Alfred Johnson, Jr., full and complete rein-
statement to their former positions held on June 9, 1938, or any
other prior date of last employment, without prejudice to any
rights and privileges previously enjoyed or accruing to them, such
reinstatement to be upon the resumption of operations at full
capacity by the respondent subsequent to September 12, 1938; pro-
vided, however, that if operations upon resumption subsequent
to September 12, 1938, are at less than full capacity, all of re-
spondent's employes, including the employes named above, shall
be reinstated according to their length of service or seniority with
the respondent, which shall be determined on the basis of service
accruing before December 24, 1937; and that respondent shall
place on the preferred list the names of any employes for whom
-employment is not immediately available, such employes to be
offered employment in the order of seniority 'from said list before
any other persons are hired ; provided, however, that as to Claire
Pease, Clyde Spangler, Sr., and Joe Neff, they shall not, be rein-
stated until 30 days have elapsed subsequent to September 12,
1938.
(b) Bargain collectively, on request, with Local No. 20438 as the
exclusive representative of its employes in the unit heretofore
described in Paragraph VII for the period from September 12,
1938, to and including July 26, 1939;
(c) Immediately post and keep visible in a conspicuous and
prominent place in the Roche Harbor, Washington plant for a
period of 30 days after receipt thereof, a copy of the order to
be entered by the National Labor Relations Board and to be made
herein.
(3) The complaint is dismissed as to Mike Vertis, John Kin-
killa, and Harry Martin.
This Stipulation is subject to the approval of the National
Labor Relations Board after submission to the Board in Wash-
ington, D. C.
DECISIONS AND ORDERS
EXHIBIT "A"
GROSS SALES
LIMESTONE
1053
Percent
Intrastate Interstate' Total
of total
inter-
state
1936_____________________ $42,977.44 ---------- $42,977.44 --------
1937 -------------------- 70, 939. 00 ---------- 70, 939.00 --------
1938-To July 31, 1938 ---- 14, 099. 81 ---------- 14, 099.81 --------
128,016.25 __________ 128, 016. 25 ________
SPALLS
1936--------------------- $72,632.45 -------- -- $72,632.45
1937--------------------- 67, 303. 30 -------- -- 67, 303. 30
1938-To July 31, 1938---- 27, 597. 41 -------- -- 27, 597. 41
167, 533. 16 167, 533. 16
LIME
1936--------------------- $168,712.18 $27,056. 64 $195,768.82 13. 8207
1937-------------- ----- 222, 744. 69 22, 259. 54 245, 004. 23 9. 0854
1938-To July 31, 1938---- 88, 281. 11 15, 493. 80 103, 774. 91 14. 8782
479, 737. 98 64, 809. 98 544, 547. 96 11. 9016
1936 Total gross sales ----- 284, 322. 07 27, 056. 64 311, 378. 71 8. 6893
1937 Total gross sales _ _ - _ _ 360, 986. 99 22, 259. 54 383, 246. 53 5. 8082
1938 Total gross sales to
July 31---------------- 129, 978. 33 15, 493. 80 145; 472. 13 10. 6507
Grand total-------- 775, 287. 39 64, 809. 98 840, 097. 37 7. 7146
I Represents all direct shipments outside the state. Pulp and paper mills, purchasers of limestone
and flour lime of respondent, are.
Name Location al plant
Puget Sd. Pulp & Timber Co -------------------------------- Aes, WetonBellingelllingham, Washington.
Port Angeles, Washington.
Port Townsend, Washington.
Crown Zellerbach Corporation _______________________________ Hoquiam, Washington.
Shelton, Washington.
Camas, Washington
St. Regis Craft Company____________________________________ Tacoma, Washington.
Sound View Pulp Company_________________________________ Everett, Washington.
Everett Pulp & Paper Company____________________________ Everett, Washington.
Fidalgo Pulp Company______________________________________ Anacortes, Washington.
On October 26, 1938, the Board duly issued its order approving
the stipulation and pursuant to Article II, Section 37, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered that the proceeding be transferred to and continued before
the Board for the purpose of entry of a decision and order pursuant
to the provisions of the above stipulation.
1054 NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case , the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Roche Harbor Lime and Cement Company, a Washington corpora-
tion, is engaged in quarrying, burning, and processing of limestone
and distributing raw limestone and building lime products, with its
principal office and production plant at Roche Harbor, Washington.
A substantial amount of the products manufactured at its Roche
Harbor plant are sold and shipped directly to points outside the
State of Washington. In addition, a substantial amount of the
products manufactured at said plant are sold and shipped to indus-
trial establishments within the State of Washington where they are
utilized in the production of goods which in turn are sold and
shipped to points outside the State of Washington.
We find that the above-described operations of the respondent
constitute a continuous flow of trade, traffic, and commerce among
the several States.
H. THE ORGANIZATION INVOLVED
Federal Labor Union, Local No. 20438, is a labor organization
affiliated with the American Federation of Labor, admitting to
membership employees of the respondent at its Roche Harbor plant.
III. THE APPROPRIATE UNIT
We find that all the employees of the respondent , exclusive of fore-
men and office , store, and hotel employees , constitute a unit appro-
priate for the purposes of collective bargaining and that such unit
insures to the employees the full benefit of their right to self -organ=
zation and collective bargaining and otherwise effectuates the policies
of the Act.
IV. REPRESENTATION OF A MAJORITY WITHIN THE APPROPRIATE UNIT
We find that on or about March 3, 1938, a majority of the em-
ployees in the appropriate unit designated the Union as their repre-
sentative for the purposes of collective bargaining with the
respondent; and that on that date and at all times thereafter, the
Union was the representative for the purposes of collective bargain-
ing of a majority of the respondent's employees in the appropriate
unit. By virtue of Section 9 (a) of the Act, therefore, the Union
was the exclusive representative of all the respondent's employees
in the said unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions
of employment.
DECISIONS AND ORDERS
ORDER
1055
Upon the basis of the above findings of fact and stipulation, and
the entire record in the case and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that Roche Harbor Lime and Cement Company, Roche
Harbor, Washington , and its officers , agents, successors , and assigns
shall :
1. Cease and desist from :
(a) In any manner interfering with , restraining , or coercing its
employees in the exercise of their right of self -organization , to form,
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection , as guaranteed in Section 7 of the Act;
(b) Discouraging membership in Local No . 20438, or in any other
labor organization of its employees , by discharging, threatening, or
refusing to reinstate any of its employees, for joining Local No.
20438, or any other labor organization of its employees;
(c) Permitting its foremen and overseers and other supervisory
officials to participate in the activities of any labor organization
of which employees of the respondent are members;
(d) In any manner discriminating against any of its employees
in regard to hire or tenure of employment , or any term or condi-
tions of employment , for joining Local No. 20438 or any other labor
organization of its employees;
(e) Refusing to recognize Local No. 20438 as the exclusive repre-
sentative of its employees , exclusive of foremen and office , store, and
hotel employees , for the period from September 12, 1938, to and
including July 26, 1939.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to George Falk, John Gasho, Gus Landahl , Walter Scott,
Clarence Spangler , Richard Chevalier , Al Zettle, Dave Smith, James
Peterson , Sam Mills, Carl Friberg , Ted McKay , William Mason,
Donald Fowle, Claire Pease, Clyde Spangler, Sr., Joe Neff, Floyd
Gilman, Tom Jones, O. D. Strausbough , Wilbur Ramsdon, and Alfred
Johnson, Jr., full and complete reinstatement to their former posi-
tions held on June 9, 1938 , or any other prior date of last employ-
ment. without prejudice to any rights and privileges previously en-
joyed or accruing to them, such reinstatement to be upon the resump-
tion of operations at full capacity by the respondent subsequent to
September 12, 1938; provided , however, that if operations upon
resumption subsequent to September 12, 1938, are at less than full ca-
pacity , all respondent 's employees , including the employees named
1056 NATIONAL LABOR RELATIONS BOARD
above, shall be reinstated according to their length of service or
seniority with respondent, which shall be determined on the basis of
service accruing before December 24, 1937; and that respondent shall
place on the preferred list the names of any employees for whom
employment is not immediately available, such employees to be
offered employment in the order of seniority from said list before
any other persons are hired; provided, however, that Claire Pease,
Clyde Spangler, Sr., .and Joe Neff, shall not be reinstated until 30
days have elapsed subsequent to September 12, 1938;
(b) Upon request, bargain collectively with Local No. 20438 as the
Exclusive representative of its employees, exclusive of foremen and
office, store, and hotel employees, for the period from September
July 26, 1939;12, 1938, to and including2-1
(c) Immediately post and keep visible in a conspicuous and prom-
inent place in the Roche Harbor, Washington, plant for a period of
thirty (30) days after receipt thereof, a copy of the Order of the
National Labor Relations Board in this matter.
And it is further ordered that the complaint, in so far as it per-
tains to Mike Vertis, John Kinkilla, and Harry Martin, be and
hereby is, dismissed.