Scherrer and Davisson Logging Co.

National Labor Relations Board - Board Decisions

Feb 13, 1958

119 N.L.R.B. 1587 (N.L.R.B. 1958)

SCHERRER AND DAVISSON LOGGING COMPANY 1587
Scherrer and Davisson Logging Company and International
Woodworkers of America Local 23-93, AFL-CIO and Lumber
and Sawmill Workers Union Local 2918, AFL-CIO, Party to
the Contract. Case No. 19-CA.-1378. February 13, 1958
DECISION AND ORDER
On April 30, 1957, Trial Examiner James R. Hemingway issued-
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had not engaged in any unfair labor practices and
recommended that the complaint be dismissed in its entirety, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs, and the Respondent
Union filed a brief supporting the Trial Examiner.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the exceptions to the Intermediate Report to
the extent noted below. Accordingly, the Board adopts only those
findings, conclusions, and recommendations of the Trial Examiner
which are consistent with the findings and conclusions hereinafter
made.
1. The Trial Examiner found that the Respondent did not engage
in unfair labor practices within the meaning of Section 8 (a) (1)
and (2) of the Act. We do not agree.
The issue presented herein is substantially the same as that in Novak
Logging Cognpany,' and is governed by the decision therein.
The labor organizations involved herein are identical and the
pertinent facts are substantially the same as in the Novak case. The
facts may be briefly summarized as follows : The International Wood-
workers of America, Local 23-93, AFL-CIO, herein called IWA,
was the collective-bargaining representative since 1952 of . the
employees of the Respondent. The latest contract had a terminal date
of April 1, 1956, and, if not automatically renewed, was to remain
in effect as long as negotiations continued. In January 1956, the
IWA gave the Respondent the requisite reopening notice preventing
automatic renewal. Negotiations commenced on a new contract and
continued until August 1, but were unsuccessful. On that date, the
Respondent was notified that the IWA would strike on August 6 if
an agreement were not reached by then. On August 6, when the
IWA did strike, the Respondent notified the IWA that the contract
was terminated . On the evening of the same day the Respondent
1119 NLRB 1573.
119 NLRI3 No. 197.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
met with the Lumber and Sawmill Workers Union Local 2918,
AFL-CIO, herein called LSW The LSW presented a letter claiming
to represent a majority of the Respondent's employees, and containing
authorization cards signed by a majority of the employees, as well
as a list of the employees who were LSW members. On the following
day, August 7, the Respondent, after 3 hours' discussion, accorded
exclusive recognition to the LSW as bargaining agent of the em-
ployees, and accepted the LSW agreement substantially as submitted.
This agreement was approved about a week later by a majority of the
Respondent's employees.
In the Novak case the Board adhered to and reaffirmed its estab-
lished Midwest Piping doctrine 2 that an employer who recognizes
1 of 2 or more competing unions while question concerning repre-
sentation exists violates the Act because such conduct constitutes
interference with the Board's function of resolving the representa-
tion question and also is a breach of the Employer's obligation to
remain neutral.; Thus, once there are conflicting majority repre ,,
sentation claims a neutral employer cannot negotiate a contract with
one of the claimants until its right to be recognized as the collective--f
bargaining representative has been finally determined under the
procedure set up under the Act 4
Here, as in the Novak case, the Respondent was confronted with
conflicting claims from two rival labor organizations each claiming
to represent a majority of its employees.' Under such circumstances
a real, genuine, and valid question concerning representation existed.'
The Respondent had an obligation of neutrality.' Instead, the
Respondent herein recognized and executed an exclusive bargaining
contract with the LSW on the strength of the membership cards
presented to it by the LSW. Membership cards obtained during
the heat of rival organizing campaigns do not necessarily reflect the
ultimate choice of a bargaining representative, and, even if one of
the rival unions held a majority of the cards, this could not be con-
strued under such circumstances as imposing on the Respondent an
obligation to bargain.'
By executing a contract with the LSW in the face of the conflict-
ing claim of the IWA which raised a question concerning repre-
$ Midwest Piping & Supply Co ., 63 NLRB 1060
a But of William D. Gibson Co , 110 NLRB 660
4 See footnote 9 of 4he Novak case, supra
5 The fact that the IWA struck and its contract was terminated with the Respondent
is not indicative of a cessation of the IWA 's continuing representation claim which is
the controlling fact Indeed , the strike itself is evidence of the continuation of the claim
6 The "question concerning representation" is existent whether or not a petition is actu-
ally pending before the Board See e. 9, Pittsburgh Valve Co, 114 NLRB 193, 195. Sun-
beam Corporation , 99 NLRB 546 , 553, William Penn Broadcasting Company, 93 NLRB
1104, 1106 and footnote 6, Bluefield Garment Manufacturers , 75 NLRB 447
7 Mtidwest Piping and Supply Co , supra
3 See footnotes 7 and 8 of the Novak case , supra, and cases cited therein
SCHERRER AND DAVISSON LOGGING COMPANY 1589
sentation , the Respondent breached its neutrality, accorded the LSW
unwarranted prestige, encouraged membership therein, discouraged
membership in IWA and thereby rendered unlawful assistance to
the LSW. The Respondent has thus interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7
of the Act. In accord with our decision in the Novak case, we find
that by such conduct the Respondent violated Section 8 (a) (1) and
(2) of the Act.
2. Here, as in the companion. Novak case, the identical Trial
Examiner dismissed the complaint under the erroneous impression
that he was not bound by the Board's decision in Indianapolis News-
papers Incorporated, 103 NLRB 1750, because the Court of Appeals
for the Seventh Circuit refused to enforce the Board's order. That
case involved substantially the same issue presented herein, The
Trial Examiner improperly assumed that the Board accepted the
Circuit Court's decisions in N. L. R. B. v. Indianapolis Newspapers,
Incorporated, 210 F. 2d 501 (C. A. 7), as well as in N. L. R. B. v.
Corning Glass Works, 204 F. 2d 422 (C. A. 1), because it did not
seek reconsideration or Supreme Court review of these court deci-
sions denying enforcement of the Board's orders. As stated by the
Board in the Novak case, and another recent case,' it has been the
Board's consistent policy for itself to determine whether to acquiesce
in the contrary views of a circuit court of appeals or whether, with
due deference to the court's opinion, to adhere to its previous hold-
ing until the Supreme Court of the United States has ruled other-
wise. It is the Trial Examiner's duty to apply established Board
precedent which the Board or the Supreme Court has not reversed.10
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, which have been
found to constitute unfair labor practices occurring in connection
with the operations of the Respondent, described in the Intermedi-
ate Report, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from this and like
and related conduct, and to take certain affirmative action designed
to effectuate the policies of the Act.
9 Insurance Agents' International Union AFL-CIO (The Prudential Insurance Company
of America), 119 NLRB 768.
10 The Corning case, in our opinion, is inapposite herein ; and we respectfully disagree
with the Seventh Circuit Court in the Indianapolis case and adhere to our expressed hold-
ing in that case.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Lumber and Sawmill Workers Union Local 2918, AFL-CIO,
and International Woodworkers of America Local 29-93, AFL-CIO,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By contributing unlawful assistance and support to Lumber and
Sawmill Workers Union Local 2918, AFL-CIO, the Respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act , the Respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Scherrer and
Davisson Logging Company, Sultan, Washington, its officers, agents,
successors , and assigns, shall:
1. Cease and desist from :
(a) Assisting or contributing support to Lumber and Sawmill
Workers Union Local 2918, AFL-CIO, or any other labor organiza-
tion.
(b) Recognizing and contracting with Lumber and Sawmill
Workers Union Local 2918, AFL-CIO, as the bargaining representa-
tive of its employees, unless and -until said labor organization shall
have been certified as such by the National Labor Relations Board.
(c) Performing or giving effect to its August 7, 1956, agreement
with Lumber Sawmill Workers Local 2918, AFL-CIO, or to any re-
newal, extension, modification or supplement thereof, except that the
Respondent shall not be required to vary the wages, hours, or other
conditions of employment heretofore established.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
SCHERRER AND DAVISSON LOGGING COMPANY 1591
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Lumber and
Sawmill Workers Union Local 2918, AFL-CIO, as the collective-
bargaining representative of its employees, unless and until such
labor organization has been certified as such by the National Labor
Relations Board.
(b) Post at its Sultan, Washington, operations, copies of the
notice attached hereto marked "Appendix." " Copies of said notice to
be :furnished. by the Regional Director for the Nineteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent and maintained by it for a period of sixty
(60) consecutive clays thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint insofar as it alleges viola-
tions of the Act different from those found in this Decision and Order,
be, and they hereby are, dismissed.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
"In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT assist or contribute support to Lumber and Saw-
mill Workers Union Local 2918, AFL-CIO, or to any other labor
organization.
WE WILL NOT recognize and contract with Lumber and Sawmill
Workers Union Local 2918, AFL-CIO, as the bargaining repre-
sentative of our employees, unless and until said labor organiza-
tion shall have been certified as such by the National Labor
Relations Board.
WE WILL NOT perform or give effect to our August 7, 1956,
agreement with Lumber and Sawmill Workers Union Local 2918,
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO or to any renewal, extension, modification, or supple-
ment thereof.
WE WILL withdraw and withhold all recognition from Lumber
and Sawmill Workers Local 2918, AFL-CIO, as the collective-
bargaining representative of our employees, unless and until
said labor organization has been certified as such by the National
Labor Relations Board.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights to
self-organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
SCIIERRER AND DAVISSON LOGGING COMPANY,
E'imployer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an amended charge filed on January 7, 1957, by Local 23-93, International
Woodworkers of America, AFL-CIO, herein called IWA, against Scherrer and
Davisson Logging Company, herein called the Respondent, the General Counsel for
the National Labor Relations Board, by the Regional Director for the Nineteenth
Region of the Board, issued a complaint alleging that the Respondent had committed
unfair labor practices within the meaning of Sections 8 (a) (1) and (2) and 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent had had a collective-bargaining contract with IWA which had
expired on April 1, 1956, but which had been extended on a day-to-day basis
pending the outcome of negotiations on terms of a new contract; that such nego-
tiations had commenced in January 1956 and had continued until August 6, 1956;
that, pursuant to notice given on August 1, 1956, IWA called a strike of Respondent's
employees on August 6, and that the Respondent terminated the contract in accord-
ance with its terms; that a majority of Respondent's employees on August 6, 1956,
were members of IWA, which fact was known to the Respondent, but that on and
after August 3, 1956, the Respondent induced and encouraged its employees to
withdraw from membership in IWA and to join Lumber and Sawmill Workers
Union, Local 2918, AFL-CIO, herein called LSW and to designate LSW as their
collective-bargaining representative; that on or about August 3, 1956, the Respondent
induced and encouraged its employees to terminate the services of Vern Castle as
secretary-treasurer and business agent of IWA and threatened that Respondent
would not sign a contract with IWA while said Castle was so acting; and that the
Respondent on August 7, 1956, recognized and bargained with LSW as the bar-
gaining representative of its employees although it knew or had reason to know
that a majority of the employees were then still members of IWA. The Respondent's
answer, filed on February 7, 1957, admitted having had a contract with IWA which
expired on April 1, 1956; admitted that after that date it had attempted to negotiate
SCHERRER AND DAVISSON LOGGING COMPANY 1593
a new agreement with IWA, and alleged that "negotiations were broken off and
terminated by notice in writing " to IWA . All allegations of unfair labor practice
were denied by the answer.
Pursuant to notice , a hearing was held in Everett , Washington , between March
6 and 8, 1957, before me as duly designated Trial Examiner . At the opening of
the hearing , the Respondent moved to dismiss the complaint on procedural grounds.
After the motion was denied, the Respondent moved to strike one section of the
complaint because of the fact that it stated evidentiary facts instead of ultimate
facts. This motion was denied. Following a statement by counsel for the General
Counsel of what he expected to prove, counsel for LSW moved to dismiss the
entire complaint on the basis of facts as stated by counsel for the General Counsel.
The motion was denied . At the close of the General Counsel 's case in chief, the
Respondent moved to dismiss the complaint for failure of proof but abandoned
his motion when put to an election to stand on the record as then made or to offer
proof for the Respondent . At the close of the hearing , the Respondent and LSW
moved to dismiss the complaint on the merits and ruling was reserved and is
disposed of as appears hereinafter . The parties argued orally and requested time
in which to file briefs with the Trial Examiner , and time was fixed and later
extended . Briefs were received from all four parties.
From my observation of the witnesses , and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a partnership composed of Oscar Scherrer , Werner Scherrer,
Philip Davisson , and Margaret Davisson. It is engaged in cutting , yarding, and
loading logs in the vicinity of Sultan , Washington . The Respondent annually
performs services valued at more than $100,000 for companies which sell and ship
in excess of $50,000 worth of materials from Everett , Washington, to points outside
the State of Washington . Jurisdiction is not contested , and I find that it will
.effectuate the policies of the Act to assert jurisdiction.'
It. THE LABOR ORGANIZATIONS INVOLVED
IWA is a labor organization which at times represented employees of the
Respondent in collective bargaining . It admits to membership such employees.
LSW is a labor organization claiming to represent the Respondent 's employees
in collective bargaining and to have a current contract with the Respondent. It
admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
Although never certified as collective -bargaining agent for employees of the Re-
spondent , IWA had contractual relations with the Respondent dating back to 1952.
Its latest contract had a terminal date of April 1, 1956, with an automatic renewal
date operative for another year unless one of the parties gave 75 days' notice of de-
sire to revise or amend the contract. The contract also provided that, if such notice
was given and no agreement was reached by April 1 and negotiations were continued,
then the agreement should remain in force until a new agreement was reached un-
less negotiations were discontinued by either party , in which event the agreement ter-
minated. Among other provisions in this contract was a no-lockout no-strike clause
and a maintenance of membership clause.
In January 1956, IWA gave the Respondent the requisite reopening notice and
negotiations commenced on a new contract . Several employers were involved in
negotiations with IWA, although after January they were separately represented and
were bargaining for separate contracts . Negotiations between IWA and the Re-
spondent continued until August 1, 1956 , but they were unsuccessful despite the inter-
vention of a Federal conciliator in meetings toward the end of negotiations. At a
meeting on August 1, the Respondent and other employers held a joint meeting and
separately made an identical final offer which IWA rejected because it did not meet
its demands in full, and the IWA negotiating committee then notified the employers,
including the Respondent , of its intention to strike on August 6 if an agreement was
not reached by that time. At a special meeting called by IWA for July 27, which was
attended by members who were employees of several employers, a vote was taken to
1 See Whippany Motor Co ., Inc., 115 NLRB 52.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorize a strike on August 6 if negotiations failed to result in an agreement with
the respective employers by then. Of about 200 members, about 30 attended the
meeting. The records of IWA showed 18 members or dues payers 2 among the Re-
spondent's employees, who on August 1 numbered 24. Few of the Respondent's
employees attended the July 27 meeting.
On August 2, the day after the last negotiating meeting above related, the Respond-
ent's employees, on their way home, stopped at the IWA hall in Sultan to speak with
Vern Castle, the aforementioned IWA secretary-treasurer and business agent, for
the purpose of protesting the calling of a strike. They asked Castle to call another
meeting and another strike vote. Some agreed to abide by such a vote if it were
taken, but others threatened to leave IWA if there were a strike. Opposition to the
strike appears to have been grounded on the fact that logging is a seasonal business
and the employees did not wish to lose the opportunity of earning wages while they
could. Castle, in effect, told the group that there was nothing he could do to post-
pone the strike but that a meeting of the executive board would be held the next eve-
ning, August 3, and that they could come and be heard before that committee.
On Friday, August 3, after work, Oscar Scherrer was driving one of the trucks
hauling employees back to Sultan from the woods, and William Stanton, 1 of the 2
hook tenders or high riggers, was riding in the cab of the truck with him. Each gave
a different version of a conversation occurring during part of the ride. Stanton testi-
fied that Scherrer said, "Well, it looks like we go on strike Monday," that he replied,
"Well, it makes no difference to me because I plan to quit the woods anyway," that
Scherrer asked, "How about another union?" Stanton testified that he answered, "I
definitely won't joint a company union," and that Scherrer then asked, "How about
the AFL [LSW]?" Stanton then paraphrased Scherrer as going on to say that he
would contact the LSW representative and get an injunction against the picket line
if there should be one, that it would take about 2 days to get an injunction and
that that would be the only time they would lose from work. Stanton further
quoted Scherrer as saying that he would probably sign [a contract] if it were not
for Castle. On cross-examination, Stanton conceded that his statement to Scherrer
about leaving the woods could have been made a week or so earlier. According to
Scherrer's version of the conversation, he had commented on the fact that Stanton
was taking home his tree-climbing spurs and asked why, and, when Stanton had said
that he might have to use them, Scherrer asked if Stanton meant he thought there
was going to be a strike. He testified that Stanton answered that he supposed there
would be one and that he (Scherrer) had concurred and said that it was too bad, that
Stanton had remarked that "we're either going to have to get rid of Castle or join
another union or something," and that he had said to Stanton, "Well, go ahead but
we can't help you, that's your business." Resolution of the conflict is not easy be-
cause each of the witnesses appeared to be giving what he believed to be a correct
version of the conversation, although I deem it unlikely that either would have
been able to reproduce the conversation exactly or in its entirety. In view of Stanton's
admission that it might have been a week before August 3 when he commented about
leaving the woods to get a different kind of job, there is some basis for accepting
Scherrer's version of the manner in which the conversation started. On the other
hand, Scherrer did not specifically deny that he had talked about the possibility of
getting an injunction if the employees signed up with LSW and it appears not an un-
likely thought to express. If the possibility of another union had come up, Scherrer
may well have asked, "What about the AFL?" Although I believe Stanton was an
honest witness, in the sense that he believed he was telling the truth, I am not con-
vinced that he had the kind of memory that could accurately or completely recall
casual conversations some months later. Stanton's quotation of Scherrer as saying
that he would probably sign a contract if it were not for Castle sounds particularly
like a misquotation resulting either from misunderstanding or failure of memory.
There is every reason to believe that the Respondent would have signed a contract
containing the terms of the Respondent's offer of August 1, an offer which differed
from IWA demands merely in respect to effective dates of certain benefits and in the
terminal date, for the parties had bargained to a point where they were not far
apart. Because of the unyielding attitude of IWA on August 1, it appears much
more likely that Scherrer would have said that there would have been a contract
signed but for Castle than that he would have said he would (in the future) sign
a contract but for Castle. Because of my lack of confidence in Stanton's complete
2 One dues payer was not initiated. Twelve of them paid under checkoff authoriza-
tions. Some paid direct. One employee had been exonerated from payment of dues from
January to May 1956 but had paid no dues thereafter although employed. Only one of
the 18 paid dues for August. The others paid, if at all, only through June or July.
SCHERRER AND DAVISSON LOGGING COMPANY 1595
accuracy, I find that Scherrer did not make the foregoing statement about Castle.
Although I am inclined to believe that Scherrer made statements about some of the
subjects mentioned by Stanton, such as those concerning the suggestion of LSW as
a possible representative of the employees, the possibilities of working unaffected
by the strike if the employees were represented by LSW, and even of enjoining
picketing, I am not convinced that Scherrer made the statements in the context as
given by Stanton nor that Scherrer was accurately quoted by Stanton. Because of
this, I refrain from finding that Scherrer offered, himself, to contact a representative
of LSW. Unless Stanton had, himself, evinced some dissatisfaction with IWA or
Some interest in the possibilities of other union representation, I doubt that Scherrer
would have risked speaking to an IWA adherent about alternatives and about getting
an injunction against picketing by IWA. It must be remembered that on the day
before this conversation took place, the crew had gone to see Castle about the
possibility of calling off the strike or at least of taking a new strike vote and that at
that time, some of the crew had told Castle that they intended to leave IWA if
there was a strike. It is not unlikely that Oscar Scherrer had heard of this, if not
direct from employees involved at least from his brother, Werner, or from Davisson,
both of whom worked along with the employees in the woods. Thus, the strike, the
effect of it on work, and the possibility of a repudiation of IWA as collective-bargain-
ing representative had all been topics of conversation by the employees before Oscar
Scherrer spoke with Stanton about the subjects on August 3. When asked whether
or not Scherrer had attempted in this conversation to persuade him to join another
union, Stanton replied, "Not exactly, no." Scherrer's statements were not coercive
in form, and Stanton conceded that the subject "came up generally . . . because
of the threatened strike." Scherrer's statements, therefore, appear merely a discussion
of a topic uppermost in the minds of both employees and employer rather than an
attempt to put pressure on Stanton.
On the evening of August 3, 10 of the Respondent's employees attended the IWA
executive board meeting and were given an opportunity to speak. Then they were
told, in substance, that, as a strike vote had been taken and as time did not permit
the calling of a special meeting before the date set for the strike, there would be no
new vote taken and the strike would take place unless an agreement with the
employers were reached before then. Some of the employees told the committee
that they would withdraw from IWA if the strike took place. After this meeting,
two of the employees, Dewitt Dunlap and Fred Lewis, talked about the possibility
of switching to LSW. Lewis said that the president of LSW lived in Granite Falls
where he lived. Dunlap told Lewis that he would get in touch with him the next day.
That same evening, August 3, the IWA negotiating committee voted to modify
the IWA demands by accepting the retroactive increase date in the employers' last
offer. This modification did not eliminate 1 or 2 other small differences. Castle
notified the conciliator of the modification in its demands and the conciliator notified
employer representatives to see if they wished to hold another meeting. The
)Respondent had been represented at the negotiating meetings by Walter Durham,
manager of the Lumbermen's Industrial Relations Committee (which had offices in
Seattle and Portland) and by two of the partners, Oscar Scherrer and Philip Davisson.
The conciliator reached Durham by telephone in the vicinity of San Francisco,
California, on August 4 to present IWA's concession and to determine whether or
not the employers represented by Durham wished another meeting with IWA. Dur-
ham told the conciliator that he believed it unlikely that the employers would wish
to meet with the IWA on the slight concession offered but agreed to get in touch with
the employers whom he represented. Durham testified that he telephoned an attorney
in Everett, Washington, by name of Studebaker, on the same day and asked Stude-
baker to get in touch with the employers. Studebaker had been representing several
employers other than the Respondent in negotiations with TWA, and all had been
present at the August 1 meeting when the Respondent was. Durham heard nothing
further from the conciliator or from Studebaker. If Studebaker notified the
Resnondent, the latter took no steps to renew negotiations with IWA.
On Saturday, August 4, Dunlap, one of the Respondent's hook tenders, who lived
in Sultan, drove to Granite Falls and went to the house of Philip Davisson, one of
the partners. Lewis, who also lived in Granite Falls, testified that on Saturday he
cut wood for Werner Scherrer and that on the way there he met Oscar Scherrer, who
asked him the outcome of the TWA executive board meeting of the night before.
Lewis told him that there was no hope, that "they wouldn't listen to us," that a strike
was n--ihle on Monday. and he asked Scherrer if the Respondent would recognize
the LSW if a majority of the crew were willing to join it. Scherrer, according to
Lewis, answered affirmatively. Oscar Scherrer arrived at Davisson's house while
bunlan was there. Dunlap asked them the same question that Lewis had asked
Oscar Scherrer. According to Dunlap, Scherrer said that "there would have to be
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something done, that they couldn 't go on that way," but Scherrer believed he had not
made a statement such as this. They discussed the effect of recognition of LSW on
the strike if it occurred and that it would help the Respondent to keep operating.
Shortly after this, Dunlap telephoned Lewis from Davisson 's house and suggested
that Lewis come over. Lewis did so, and he and Dunlap then went to speak with
Lloyd Campbell, president of the LSW in Granite Falls.
Lewis and Dunlap asked Campbell about the possibility of joining the LSW
and getting LSW to represent the crew. Campbell telephoned to Willis Nazer, an
international representative in Seattle . After telling Nazer what Dunlap and Lewis
had said, Campbell asked Nazer to come over to meet them . Nazer did so, and when
Dunlap and Lewis asked him what they had to do to get out of the IWA and into
LSW, Nazer told them that they would have to get a majority of the employees
signed. Nazer gave them authorization -application cards on which to get signa-
tures, but told them to hold on to the cards until Nazer first got approval from the
District Council. On Sunday afternoon Nazer called Lewis and told him that it
was all right to go ahead and talk to the employees , but to let them think it over a
day or so before signing them up. Lewis notified Dunlap and the two of them began
that day to talk to employees about joining LSW. They passed out cards, and by
Monday afternoon each had procured signatures on a number of cards. Nazer
arranged a meeting for Monday afternoon , August 6, at the O. K. Garage in Sultan,
where the Respondent customarily left one of its trucks after delivering homeward
bound employees to that point.
On Monday morning one of the partners drove employees from Granite Falls
to the meeting place in Sultan as usual when going to work . When they arrived
in Sultan they saw IWA pickets at their meeting place. Davisson walked over to a
group of employees who were already standing on the street corner when he
arrived and asked who was there to represent IWA. Stanton said that he was the
shop steward .3 Davisson then told Stanton that as of that time there was no contract
between the Respondent and IWA and that that would be confirmed by mail in the
afternoon . He asked Stanton to pass the message along to Castle. Stanton did
so, but he testified that Castle kept walking on past him and paid no attention.
Castle denied having heard Stanton. He acknowledged , however , that he had heard
"a lot of general remarks about that time to the extent , `we are not dealing with
them guys any more."'
While the employees were standing about, some employees were attempting to
get authorizations for one union and some for the other . Stanton testified that he
offered an IWA card to Arnold Scherrer , the son of Werner Scherrer . Arnold told
Stanton that he already had an LSW card in his pocket . According to Stanton,
Werner Scherrer told Arnold , "Don't take that, they are a bunch of Communists."
According to William Doming, another employee, who was acting as a picket,
Werner Scherrer told Arnold , when Stanton handed him the IWA card, not to sign
it because "we're all through with that outfit ." Werner denied that he had made any
such remark to Arnold, and Arnold denied that he had heard his father say
anything . The disparity between Stanton 's and Doming 's quotation of Werner
Scherrer , considered together with Castle's testimony that he had heard "a lot of
general remarks about that time , and remarks to the extent , `we are not dealing
with them guys any more ,' " a type of remark that Stanton or Doming may have
heard either at that time or in later conversations about events of the morning of
August 6, deters conviction . In the face of the denials of Arnold and Werner
Scherrer , therefore , I am constrained to find that Stanton and Doming either mis-
quoted what they heard or attributed the statements to the wrong person. Hence,
I base no finding thereon.
On the afternoon of August 6 the employees who favored LSW met at the O. K.
Garage and were addressed by Nazer and Earl Hartley , president of Puget Sound
District Council of LSW. Among other things , Hartley briefly discussed the LSW
contract and told them that, if they had a sufficient number of cards signed, a
negotiating committee should be set up and that he and Nazer would meet with the
Respondent 's management and discuss the LSW standard contract . Lewis turned
over to Nazer all the authorization cards that had been procured up to that time,
and Hartley commented that they appeared to have only a bare majority. Lewis
told him that several other cards were out and that he would collect them later.
Under the chairmanship of Nazer, the employees nominated and selected a negotiat-
ing committee composed of Dunlap, Lewis , and Bill Murphy.
At about the time that this meeting was going on , Oscar Scherrer and Davisson
went to Everett and had a lawyer draw up for them a formal notice of the termina-
tion of their contract with IWA. On the way back they mailed the letter, registered
3 Stanton had been appointed shop steward Friday evening, August 3.
SCHERRER AND DAVISSON LOGGING COMPANY 1597
mail; at, Snohomish addressed to the IWA in Sultan. Castle did not go to his post
office box for several days and did not receive the letter until August 9. The
inference is that it was there earlier, probably on August 7, and was not picked up
until later, but I do not deem it important as to when the letter was received, because
Davisson had already informed IWA of the termination of the contract through
Stanton and because the strike of IWA on August 6 was inconsistent with the
existence of the no-strike clause of the contract and would, in effect, have terminated
the contract anyway.
. After the August 6 meeting at the O. K. Garage, Hartley and Nazer went to
Campbell's house in Granite Falls and drew up a letter to the Respondent, claiming.
to represent a majority of the employees and asking for a meeting to negotiate a
contract. That evening Hartley and Nazer went to Davisson's house and presented.
the letter and authorization cards that had been procured to that time. No witness,
was able to identify the individual cards among those that were presented at this
time, but Davisson testified that there were 13 cards, and Nazer testified there were
between 13 and 15. Davisson telephoned Oscar Scherrer and had him come over.
When he came, they looked at the authorization cards and acknowledged that they
appeared to be genuine, and they agreed to meet with LSW the next day at the
Elks Club in Everett. Nazer informed Lewis of this and arranged to have the
negotiating committee arrive at the Elks Club before management representatives
got there, in order to go over the contract among themselves first.
At 11 a. m. Oscar Scherrer, Davisson, and Attorney Studebaker arrived and
met with the employees' negotiating committee, and with Campbell, Hartley, and
Nazer. Nazer again presented the cards to the Respondent's representatives, having
at this time two additional cards bearing date of August 7. Scherrer looked the
cards over and acknowledged them to be genuine. The parties then proceeded to
discuss the LSW standard contract, going over each paragraph. It was accepted
as written, with the exception of a few blank spaces that had to be filled in. By
this contract the employees received the same wage increase which the Respondent
had, on August 1 offered IWA, except that there was no retroactive date. The
contract was signed by the respective parties subject to approval of the LSW mem-
bers. That night the Respondent's employees who were LSW members met at
the Fire Hall in Sultan for the purpose of approving the contract. However, a large
group of IWA members, only a few of whom were Respondent's employees, came
to the meeting and so disrupted the meeting that it prevented any action being
taken. The LSW contract was, however, approved by the LSW members about a
week later.
Meanwhile, late in the afternoon of August 6, the IWA negotiating committee,
having heard from the conciliator that certain employers were willing to amend
their proposal if the IWA likewise did, decided to accede. The negotiating com-
mittee made a recommendation to the executive board, and at a special meeting
of the membership, called thereafter IWA, decided to make a settlement with the
employers. No attempt was made, however, to transmit this information direct
to the Respondent, and there is no evidence that the conciliator or anyone else
notified the Respondent of the IWA decision of August 6.
B. The question of the LSW majority
Evidence of majority representation of LSW adduced at the hearing was divided
into three types: (1) the authorization cards themselves; (2) testimony of witnesses
who had possession of the cards; and (3) typewritten letters and lists of card signers
bearing date of August 6 and 7. Because of slight discrepancies in the three types
of evidence some doubt is cast upon the accuracy of one or the other type of
evidence.
. The cards themselves, 15 in all, bear date of August 6 with the exception of 3.
One of these (that of employee Niegiemann ) bore date of August 4, but there was
testimony that this was signed on the morning of August 6. The other two (those
of employees named Sawyer) bore date of August 7 and were the ones testified to
have been presented to the Respondent at the Elks Club on August 7.
One exhibit in evidence is the letter testified to have been prepared at Campbell's
house on August 6 and to have been presented by Nazer and Hartley to Davisson
that night. Attached to this letter, as offered in evidence, is a list of 13 names
of employees of the Respondent who were members of LSW. Nazer testified that
he was not sure he presented this list to Davisson on the night of August 6. He
testified that he thought the-list was presented at the August 7 meeting at the Elks
Club. One of the 13 names on this list is that of Arnold Scherrer. Another name
listed was that of an employee named Thomas. Thomas' card was not among those
offered in evidence at the hearing and Thomas was not called as. a witness . Davisson
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he could not remember if Thomas' card was among those shown him
on the night of August 6. Lewis, however, testified that he contacted Thomas "on
Monday" (supposedly August 6 but not expressly so fixed at this point in his testi-
mony) and that Thomas signed a card in his presence. Later, when asked where
it was signed, Lewis testified that "I think we stopped at his house and talked to him
and he signed it," and "I believe it was the day of the 6th. We was going over to
have the meeting in the O. K. Garage. He lived in Monroe, we went through there
and stopped to see him." As the last testimony of Lewis was not contradicted and
as it appeared to be based on definite enough memory, I conclude that Thomas did
sign a card as testified on August 6 and that the card was later lost or mislaid .4
A card was offered in evidence for an employee named Niegiemann, but the
latter 's name was not included on the list of names attached to Respondent 's Exhibit
No. 2, which is the LSW letter requesting recognition and a negotiating meeting.
This suggests that the Niegiemann card was not in the possession of Nazer on
the night of August 6 when the cards were presented to Davisson or even when
the list was prepared on August 7 unless the name was erroneously omitted. No
explanation was given, however, by any of the witnesses as to why Niegiemann's
name was not included in the list. Although Niegiemann's card itself was dated
August 4, Lewis was quite positive in his testimony that Niegiemann had signed
the card on August 6. Again no evidence was adduced to contradict Lewis' testi-
mony Nazer testified that, on August 7 at the Elks Club meeting, Lewis brought
"two or three" more cards. Campbell testified that Lewis had told him on August
6 that he would bring "two or three" more cards to the meeting on August 7 and
that he brought them. Two of the additional cards were supposedly those of the
Sawyers. It is conceivable that Niegiemann's card was a third one. This might
also explain the fact that Niegiemann 's name was not included on the list of
names offered in evidence if the list had been prepared before Lewis arrived at
the Elks Club on August 7. On the other hand, if Lewis had the card in his
possession on the morning of August 6, when he testified he got it, the card
should be counted in the LSW majority on that day even if it was not delivered by
Lewis to Nazer until the morning of August 7.
Nazer testified that on the morning of August 7, after Lewis delivered to him
the 2 or 3 more cards previously mentioned, he then had all the cards which
had been offered in evidence . Those offered in evidence included cards signed by
Raymond and David Sawyer. A letter to the Respondent, bearing date of August
7 and signed by Campbell at the Elks Club, identified the Sawyers as additional
members of LSW, increasing its majority by two. This letter, it was testified, was
delivered to the Respondent at the opening of the meeting on August 7. Neither
Campbell nor Nazer knew who had typed this letter. Campbell thought it must
have been typed at the Elks Club. As the letterhead and the style of type in this
letter appear to be identical with what appears on the letter demanding recognition,
which, it was testified, was typed at Campbell's home on the evening of August 6,
and as Campbell was at the August 7 meeting, it strikes me as peculiar that Camp-
bell would not know who had prepared the letter dated August 7, apparently on the
same typewriter that he had in his home. This oddity, added to Lewis' somewhat
confused testimony about the Sawyers' cards, creates a suspicion that one or both
the Sawyer cards were not signed by the time of the August 7 meeting at the Elks
Club. Although Lewis testified that David Sawyer signed on August 6, the card
bore date of August 7. Lewis testified that Raymond Sawyer was in doubt and
would not sign the card for a day or so. When questioned by the Trial Examiner,
Lewis testified that he did not know when or where the Sawyers had signed their
•cards or where he received them. He remembered that he turned the cards over to
Nazer. He thought he gave Nazer the cards at the second meeting held for contract
ratification. This meeting was held on about August 14. He was not sure if he gave
Nazer the cards of both Sawyers at the same time. Subsequent to this testimony, on
examination of counsel for LSW, Lewis was shown the letter of August 7 naming
the two Sawyers as additional members of LSW, and he then testified that "it must
have been the 7th" when he delivered the Sawyers' cards to Nazer. This testimony
appeared to be based more on a deduction than a memory . However, in view of
the evidence showing a majority for LSW without the cards of the Sawyers, it is
not necessary to determine when they were signed or delivered.
In his brief, the General Counsel contends that the authorization cards of Arnold
Scherrer and Dewitt Dunlap should not be counted for LSW, the former because
4 It was suggested by LSW counsel that the Board field examiner who had possession
of the cards may have mislaid Thomas' card and failed to return it to LSW. Failure
to produce the card, in any event, does not prevent its being counted in the majority.
Howard-Cooper Corporation , 117 NLRB 287.
SCHERRER AND DAVISSON LOGGING COMPANY 1599
he is the son of a partner and therefore not an employee within the meaning of
Section 2 (3) of the Act, the latter because he is contended by the General Counsel
to be a supervisor. That Arnold Scherrer should be excluded from the appropriate
unit for the reason stated is clear .5 Dunlap's position is less clear. Before he
joined LSW, Dunlap had been a dues-paying, voting member of IWA. Obviously
that organization (as well as LSW) treated Dunlap as in the appropriate unit along
with other employees. The contention that Dunlap was a supervisor rests on the
fact that he is a hook tender, a kind of leadman, who had eight men under his
direction on one side of the Respondent's operations. Although Dunlap's status may
have to be resolved to determine the Respondent's responsibility for his acts, for
the purposes of determining the LSW majority I find it unnecessary to decide whether
or not Dunlap was a supervisor. The evidence discloses that Stanton occupied a
position similar to Dunlap's but on the other side of the operation. Stanton, there-
fore, would also have men under his direction. If one were to be held to be a
supervisor within the meaning of the Act, both would have to be so classified.
Hence, if they, as well as Arnold Scherrer, were eliminated from the appropriate
unit, that would leave 21 employees in that unit. Unless some of the testimony con-
cerning the execution of the other authorization cards is discredited, LSW held cards
for 12 of that remaining group of 21 employees on August 6. If only Scherrer's card
is eliminated, LSW on August 6 held authorization cards for 13 of 23 employees
(counting the cards of Niegiemann and Thomas).
The General Counsel did not question the signatures on any of the cards and did
not attempt to rebut the prima facie proof of the date of execution of the cards as
it appeared on the face of them, nor did he call any of the signers to testify that they
had not signed or delivered their cards at the time Lewis testified they did. As
pointed out, even elimination of the Sawyer cards, concerning which there was some
doubt raised, would not affect the LSW majority. In his oral argument, the Gen-
eral Counsel conceded the LSW majority. On the entire record, therefore, I find that
LSW did present authorization cards for a majority of the nonsupervisory employees
in the unit to the Respondent at the time of its request for recognition.
C. Conclusions respecting interference, restraint, and coercion;
assistance to LSW
The complaint alleges that the Respondent interfered with , restrained , and coerced
its employees in the exercise of the rights guaranteed them in Section 7 of the Act
by three types of conduct and that the same conduct interfered with the administra-
tion of, and contributed support to , LSW. Each will be considered here.
1. Inducing and encouraging its employees to withdraw from membership in, and
support of, IWA and to join LSW and designate LSW as collective -bargaining
representative
The case presented by the General Counsel in his brief portrays the Respondent,
by its partners and supervisor (Dunlap ), as having engaged in a campaign of in-
fluence to induce the employees to abandon IWA and select LSW as their collective-
bargaining representative . In his brief , the General Counsel states that Oscar
Scherrer admitted that "a switch to LSW had been a topic of discussion between
him and his crew for six months prior to its actual effectuation ." This statement
implies more than the evidence justifies, for it apparently is based on Scherrer's
answers to questions by counsel for the General Counsel as follows:
Q. Was that the only time the men came and talked to you about the
AFL [i. e. LSW]?-A. Oh, I don't know . They have been talking about it for
six months.
Q. To you?-A. Everybody . You could hear it, talking among themselves,
couldn't help but hear.
Such answers are far from an admission that Scherrer had engaged in a 6-month
campaign to influence employees to switch from IWA to LSW as the statement in
the General Counsel's brief implies.
But aside from this type of evidence 6 the General Counsel argues that it should
be inferred that the Respondent induced and encouraged its employees to withdraw
5 City Tire Company, 117 NLRB 753; International Metal Products Company, 107
NLRB 65.
`'6 T' have not based a finding on the testimony of Stanton and Dorning about Werner
Scherrer's alleged statement to his son, Arnold. But if, disregarding the portion of the
quoted statement on which Stanton and Dorning disagreed, the balance should be creditea,
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from IWA and• join LSW by a congeries of circumstances , including: Oscar
Scherrer 's conversation with Stanton on August 3; the participation of Dunlap,
alleged to be a supervisor , in the LSW organizational drive; the gathering of Dunlap,
Lewis, Oscar Scherrer , and Davisson at the latter 's house on August 4 , and the
mention there of the strike and the topic of recognition of LSW if it got a majority;
the prompt action by Lewis and Dunlap in starting the organizational drive
immediately upon leaving Davisson 's house.
If Dunlap were to be deemed an agent of the Respondent because of supervisory
functions , the General Counsel's argument might have merit. But on the evidence
as a whole I am not satisfied that the Respondent was to be charged with Dunlap's
acts on the ground that he was a supervisor . As hook tender and high rigger,
Dunlap, who spends most of his time working along with the crew in physical labor,
had about eight men under his direction . A high rigger could "run a man off,"
that is "tell him to go home , he is no good" but could not discharge him. Oscar
Scherrer , however , did the hiring and firing , and before acting on a recommenda-
tion by Dunlap would make his own observations . Except as mentioned , Dunlap
appeared to have no supervisory authority. It does not appear that Dunlap ever
did "run a man off." As 2 , and sometimes 3 of the partners were present working
on the job with Dunlap and the other men, they would be in a position to exercise
most of the authority required to be exercised . Werner Scherrer acts as bull buck
and Davisson runs the donkey engine. The operation is a comparatively small one,
and it is less likely that , in the eyes of other employees , the hook tender 's status
would be considered as close to managerial status as in a larger operation.? But
whether or not the Respondent 's hook tender would, in a representation case before
the Board , be excluded from the appropriate unit, I conclude for the following
reasons that in this case the Respondent is not to be charged with responsibility for
the acts of Dunlap merely because of his status. IWA as well as LSW takes hook
tenders into its organization as voting members. Stanton , the other high rigger,
was an active member of IWA, was elected steward of that organization on August 3,
and solicited signatures on IWA authorization cards on August 6, the same day
when Dunlap was getting them. If the Respondent is said to have assisted LSW by
Dunlap's activities , it would also have to be said that it assisted IWA by Stanton's
activities . This would place the Respondent in the middle . I conclude , therefore,
that by soliciting authorization cards for LSW, Dunlap was acting in his capacity
as an employee entitled to union membership and that he would not have been
looked upon by the other employees as a supervisor in the sense that they would
attribute his actions to management.8
Any agency of Dunlap which would bind the Respondent , therefore , would have
to be such as would be expressly conferred on him by management and not such as
might be implied from his position . There is no direct evidence that such express
authority was conferred . The General Counsel argues that it should be inferred
from the fact that Dunlap went to Davisson 's house on August 4 and spoke to
Davisson and Scherrer about organizing the LSW before taking steps to do so. Dun-
lap testified that he asked Davisson and Oscar Scherrer if they would recognize
LSW in the event that the majority of the employees selected that union. The
fact that he would consult with his employers before taking steps to organize suggests
that Dunlap may have shown a greater degree of dependence upon the employers'
opinion than he needed to . However , to say that Dunlap should have gone ahead
independently and organized LSW without advance notice might result in attributing
to him a degree of knowledge of labor relations which he would not be likely to have.
From the standpoint of one who is not versed in the law , he might well have sup-
posed that organizing the LSW would be a futile act, not knowing whether or not
the Respondent could legally recognize the second union. The fact that Dunlap
may have been so influenced to make his inquiry receives some support from the
fact that he did not ask if the Respondent would object to his organizing LSW.
He only asked if the Respondent would recognize LSW. In the state of the law
as hereinafter discussed , an affirmative answer would not alone constitute illegal
assistance . If it be taken as true that in response to Dunlap's question, Oscar
r would not find that Werner Scherrer 's statement in any way interfered with the rights
of the Respondent 's employees because , as a son of a partner , Arnold was not, as I have
previously found, an employee within the meaning of the Act.
T For a general discussion of the status of a hook -tender , see Coos Bay Lumber Com-
pany . 62 NLRB 93.
8 See Wayside Press . Inc. v . N. L. R. B. , 206 F . 2d 862 ( C. A. 9) ; Genesee Foundry
Company , Incorporated , 109 NLRB 1253.
SCHERRER AND DAVISSON LOGGING COMPANY 1601
Scherrer had replied, as Dunlap testified, that something had to be done, that they
couldn't go on the way it was, a finding of assistance is not warranted in view of
the ambiguousness of the statement, which is capable of interpretation not only as
meaning that it was . essential that another union be organized because the
Respondent was unable to get along with IWA or did not want to get along with
IWA, but also that, if the Respondent were to continue operations, something (not
necessarily the organization of LSW) would have to be done. This could have
included the idea that the employees might prevail upon IWA to accept the
Respondent's offer. The General Counsel points to the evidence that Scherrer dis-
cussed with Dunlap and Lewis the possibility that a switch of the employees to LSW
would avoid a strike. However, it is evident that some of the employees had con-
ceived this idea before this discussion took place. It does not appear that any of
the partners planted the idea in the minds of the employees or promised that they
would confer any benefits if the employees switched their union membership.
Although the meeting of Dunlap with Davisson and Scherrer and the later arrival
at Davisson's house of Lewis preceding their first steps to organize LSW gives rise
to the suspicion that Dunlap may have been invited to Davisson's house for the
express purpose of starting the ball rolling, the evidence nowhere reveals that such
an invitation had been issued. On the contrary it indicates that the meeting was a
casual one. Even if there is some reason to doubt the veracity of the witnesses
who testified to the manner in which the meeting took place, the suspicion that the
facts were contrary to the evidence would not justify a finding based on an inference
that the facts were as suspected. An inference must be based upon evidence and
not upon a suspicion as to what the true facts are. The fact that Scherrer may
have looked with favor on Dunlap's suggestion does not, in my opinion, constitute
the type of encouragement that could be considered illegal assistance. On the entire
record, therefore, I find that the evidence fails to prove that the Respondent induced
or encouraged its employees to withdraw from membership in and support of IWA
and to join LSW and designate it as their collective-bargaining representative in
violation of Section 8 (a) (1) or (2) of the Act.
2. Inducing and encouraging its employees to terminate the services of Vern Castle
as secretary-treasurer and business agent of IWA and threatening that Respondent
would not sign a contract with IWA while Castle was acting in that capacity
The first part of this allegation was unsubstantiated by the evidence and the Gen-
eral Counsel does not mention it in his brief. I consider it to have been abandoned.
The second part of the allegation is apparently based on Stanton's testimony of
Oscar Scherrer's statement of August 3. Since I have found that Stanton misunder-
stood or failed accurately to remember and repeat Scherrer's statement about the
signing of a contract, I find that the foregoing allegation of the complaint is not
proved.
3. On August 7 recognizing and bargaining with LSW and signing a contract with
LSW notwithstanding that Respondent had not terminated collective-bargaining
negotiations with IWA and knew or had reason to know that at that time a
majority of its employees in the bargaining unit were still members of IWA
I gather that the complaint was purposely drawn in this fashion with an allega-
tion of membership of a majority of the employees in IWA rather than of authoriza-
tion by a majority of the employees of IWA as bargaining representative, because
the General Counsel's theory is not that IWA was indisputably the exclusive col-
lective-bargaining, representative of the Respondent's employees,9 but that prior
membership in IWA and payment of dues thereto by certain employees who on
August 6 signed authorization cards for LSW should have put the Respondent on
notice that there were possible conflicting claims to representation by two unions
and that the Respondent should have maintained a position of neutrality and refused
to recognize either organization until after a Board-conducted election. In support
of this argument, the General Counsel cites several Board decisions (Midwest Piping
& Supply Co. Inc., 63 NLRB 1060; Sunbeam Corporation, 99 NLRB 546; Corning
Glass Works, 100 NLRB 444; Indianapolis Newspapers, Inc., 103 NLRB 1750).
9 If this had been his theory, I assume that the complaint would have contained an alle-
gation of refusal to bargain with IWA in violation of Section 8 (a) (5) since the original
charge contained such an allegation.
476321-58-vol. 119-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the Midwest case, the employer consented to and did bargain with one of the
competing unions before it had established its majority, although arrival union, at
the time, had on file with the Board a petition for certification. In the Sunbeam
case, the employer rushed into a contract with one of several competing unions
without stopping to verify the contracting union's claim to majority, although the
contract was made on condition that the Union's majority be established within
a week thereafter. The agreement made was a members-only agreement, but the
Board found that it was, under all the circumstances, effective as an exclusive
-bargaining agreement. In both of these cases, therefore, the employer had recog-
nized and negotiated with one of the competing unions without first requiring
proof of majority.'()
The Board, in the Corning case, found active assistance, during an organizational
drive, by the employer on behalf of one labor organization. Thus, the assistance
was not restricted to recognition and bargaining as is the case here. Another
analogous case, not cited by the General Counsel,ll is distinguishable, because the
rejected union had been certified and a year from the date of certification had not
yet expired when the second union was recognized on a cardcheck. The Board,
relying on the conclusive presumption of majority during the year of certification,
decided that the employer had a duty to deal exclusively with the certified union.
This is not involved here because IWA was never certified.
The Indianapolis case, relied on by the General Counsel does, however, present
facts almost identical to those here involved. After a contract with a certified
union had expired, that union and the employer negotiated for a new contract over
an extensive period of time. Shortly after an impasse had been reached, a rival
organization commenced organizing and soon had an unassisted majority. The
employer, after authenticating the signatures on the authorizations for the second
union, accorded recognition to it and the next day concluded a collective-bargain-
ing agreement for the same employees for which the first union had been bargain-
ing before the impasse. The employer did not notify the first union of withdrawal
of recognition until after it had concluded an agreement with the second organi-
zation. The Board commented that the employer did not give the first organi-
zation an opportunity to contest the claim of the second and found a violation of
Section 8 (a) (2) in the execution of a contract with the second union.
However, in both the Corning and the Indianapolis cases the court denied enforce-
ment of the Board's order.32 In refusing to enforce the Board's order in the
Indianapolis case, the Seventh Circuit Court of Appeals said:
In short, the Board's position is that nothing short of the results of a secret
ballot is a reliable criterion for recognition of a bargaining agent when two
unions are competing for the employees' support.
The postulate is too broadly drawn. The Act forbids interference by an
employer with the rights of his employees to bargain collectively, and, for that
purpose, to select their own bargaining representative. When two unions are
vieing for majority support of his employees, an employer must, of course,
maintain a position of strict neutrality. He must refrain from any action which
tends to give either an advantage over its rival; he may do nothing which
tends to coerce his employees to join or to refrain from joining a particular union.
Recognition of one competitor as bargaining agent during this contest period,
absent proof of majority support, is a proscribed act. See, e. g., Harrison Sheet
Steel Co. v. NLRB, 194 F. 2d 407, 410 (CA-7); NLRB v. Faultless Caster
Corp., 135 F. 2d 559 (CA-7); Elastic Stop Nut Corp. v. NLRB, 142 F. 2d 371,
375-376 (CA-8), certiorari denied 323 U. S. 722.
The Act does not require, however, that this neutrality continue until the
last dissident voice is stilled. Indeed, in keeping with the purpose of the Act,
harmonious employer-employee relations require that the instability inherent
in a contest end when one contestant is able to muster majority support. Al-
though the prize of recognition must not be employed coercively of influence
the employees in making their decision, once indisputable proof of majority
choice is presented to the employer, the Act imposes on him a duty to award
10 See also R. B. Wyatt Manufacturing Co., Inc., 117 NLRB 700; Safeway Stores, Inc.,
111 NLRB 968. Recognition was accorded although union had no majority.
n Genesee Foundry Company, Incorporated, 109 NLRB 1253.
N. L. R. B. v. Corning Glass Works, 204 F. 2d 422 (C. A. 1) ; N. L. R. B. v. Indian-
apolis Newspapers, Incorporated, 210 F. 2d 501 (C. A. 7).
SCHERRER AND DAVISSON LOGGING COMPANY 1603
recognition to the agent so chosen by his employees. NLRB v. W. T. Grant
Co., 199 F. 2d 711 (CA-9), certiorari denied 344 U. S. 928; NLRB v. Gut-
mann & Co., 121 F. 2d 756 (CA-7); Stewart-Warner Corp. v. NLRB, 194 F.
2d 207 (CA-4); NLRB v. Standard Steel Spring Co., 180 F. 2d 942 (CA-6);
NLRB v. Flotill Products Inc., 180 F. 2d 441 (CA-9).
Reiteration of what has been said in these cases would serve only to lengthen
this memorandum unduly. The decisive question in any case is whether there
has been an uninfluenced expression of majority will; it matters not how that
will be expressed. Although the result of a secret election may well be the
most convincing means of expression, the election medium is by no means
exclusive. However expressed, an employer is bound by the employees' de-
termination. In doing so, he should be free of charges of unfair labor practices
absent substantial evidence indicative of bad faith.
In neither of the foregoing cases which went to the circuit court did the Board
seek reconsideration or request certiorari. I assume, therefore, that the Board has
accepted the court decisions as the law on the facts of those cases, and since the
facts in the case at hand are essentially the same as those in the Indianapolis case,
I judge that the same conclusion should be reached here.
In arguing that an employer may not legally recognize 1 of 2 competing unions
on a cardcheck, the General Counsel emphasizes the unreliability of authorization
cards in comparison with an election as a means of determining the desires of the
majority of an employer's employees. From this, he appears to assume that a
union is not entitled to recognition on the basis of proof of majority by authorization
cards even if the employer finds no fault with this method of proof. If this is his
position, it is, of course, too broad, for although the Board has declined to find a
refusal to bargain where an employer in good faith insists on an election instead of
a cardcheck,13 it has uniformly held an employer bound to bargain upon proof of
majority by authorization cards when he has no good-faith doubt as to that
majority.14 And court decisions to the same effect are legion.15
Although the Respondent here entertained no doubt concerning LSW's majority,
the General Counsel apparently argues that the Respondent should have entertained
such doubt where LSW's majority was slim and where some of the employees had
previously signed dues deduction authorizations for IWA or been dues-paying
members. The dues-deduction authorizations, however, by their own terms were
valid only until the expiration of the IWA contract and, as I have previously found,
that contract was terminated on the morning of August 6. Those who paid dues
direct to TWA were in much the same position, for there was a maintenance of
membership clause in the contract which also expired with the contract on August
6. Only 1 employee had paid IWA dues beyond the end of July and that 1 had
paid 2 months' dues at one time. This is not, therefore, a case in which employees,
during a heated organizing campaign by 2 or more unions sign authorization cards
for more than 1 of the unions within a short period of time. No doubt the payment
of dues justified an inference that IWA was authorized to bargain for the employees
during the time negotiations were carried on, but in most instances the dues
expired with the negotiations. Under the circumstances, the fact that they had
previously paid dues to IWA should not create a presumption of continuing authori-
zation of IWA which would nullify the later expressed authorizations signed for
LSW after the IWA strike commenced,16 especially where many of the employees
had protested against the strike and some had warned IWA that they would with-
draw if there was a strike. It is probably true that a prima facie (not a con-
clusive) presumption of IWA's representative status existed before the strike, but
it was a rebuttable presumption, and the presumption was here rebutted by proof of
authorization of LSW by a majority of the Respondent's employees.17
Another reason for the Respondent to withhold immediate recognition of LSW,
according to the General Counsel is that employees who sign authorization cards
frequently change their minds, and that if the Respondent had withheld recog-
'' A. L. Gilbert Company, 110 NLRB 2067; Sunset Lumber Products, 113 NLRB 1172.
14 Brown Truck and Trailer Manufacturing Company, Inc., 106 NLRB 999; Harrisburg
Building Units Co., Inc., etc., 116 NLRB 334; Howard-Cooper Corporation, 117 NLRB 287.
1°E. g., N. L. R. B. v. Geigy, 211 F. 2d 553 (C. A. 9), cert. denied 348 U. S. 821;
N. L. R. B. v. Trimfit of California, Inc., 211 F. 2d 206 (C. A. 9).
10 Harcourt and Company, Inc., 98 NLRB 892, 911.
17. See Celanese Corporation of America, 95 NLRB 664, 672-3.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nition from LSW and sought a determination by election of the question of which
union was the chosen representative , the employees might well have changed their
minds and returned to IWA membership.18
Strictly as a matter of policy, the General Counsel 's position may be sound. But
the question here is not one of policy; it is one of law-whether , by recognizing
and contracting with LSW, the Respondent committed an unfair labor practice.
The question is not what course the Respondent might have pursued if it had
recognized the soundness of such policy , but whether it legally had a right to
recognize LSW as the majority representative upon being given satisfactory proof
of its majority. This right has repeatedly been enounced by the courts where the
recognized union has not been given unlawful assistance in gaining its majority.
In these cases it is held that recognition and contracting with such representative,
although this may give the majority representative an advantage over unrecognized
competitors , is not unlawful assistance.19
The General Counsel mentions the "bare" majority of LSW as an element which
he believes should weigh against the Respondent 's right to recognize LSW as the
employees ' chosen representative. I have found that 13 of 23 employees (exclusive
of the Sawyers ) had signed LSW authorization cards before the Respondent
bargained with it. Again, the General Counsel 's argument merely goes to support
the contention that an election would be a more desirable means of ascertaining
the wishes of the employees than authorization cards. But, legally, degrees of
majority are immaterial . A small majority , just as much as a large majority,
suffices to make the designated union the representative of all the employees in
the unit.
The General Counsel also points to the celerity with which the Respondent
reached agreement with LSW as an element which should be taken as proof of
unlawful assistance . But the speedy approval by the Respondent of this contract
should not be considered unusual since the LSW contract tendered to the Respondent
was virtually a form contract such as it had with other employers in the neighboring
area. The Respondent already knew , in a general way, of the terms of such
contract, and those terms did not include the ones to which the Respondent had
objected and upon which IWA had insisted up to the time of the impasse reached
on August 1. If IWA had consented to eliminate such objectionable terms at
the bargaining conference of August 1, no more time would have been required
to reach agreement with the Respondent than was required by LSW and the
Respondent.20
On all the circumstances of the case , therefore , I conclude and find that the
Respondent did not , by recognizing LSW as the collective-bargaining representative
of its employees and entering into an agreement with it , render unlawful support
to LSW.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7 ) of the Act.
2. IWA and LSW are labor organizations within the meaning of Section 2 (5)
of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and ( 2) of the Act.
[Recommendations omitted from publication.]
18 This speculation by the General Counsel apparently stems from the fact that IWA com-
promised and reached agreement with other local employers on about August 7, giving
employees of those employers a retroactive wage increase , which employees of the Re-
spondent apparently (lid not receive under the LSW contract and from the fact that em-
ployees of the Respondent were not immediately put to work as a result of the switch to
LSW as they probably had expected , together with the fact that more than one authoriza-
tion card signer failed to become a member of LSW.
'9N. L. R. B. v. Corning Glass Works , 204 F. 2d 422 ( C. A. 1) ; District 50, United
Mine Workers of America v. N. L. R. B ., 234 F. 2d 565 ( C. A. 4) ; N . L. It. B. v. Standard
Steel Spring Company, 180 F . 2d 942 ( C. A. 6) ; N. L. R. B. v. Indianapolis Newspapers,
Inc., 210 F . 2d 501 (C. A. 7).
21 The actual time consumed at the Elks'Club meeting on August 7 was-estimated-As
about 3 hours.