Scott Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1954

109 N.L.R.B. 1373 (N.L.R.B. 1954)

SCOTT LUMBER COMPANY, INC. 1373
fully set out in its decisions involving those operations,' the Board
finds that the contract between the Employer and the UE is not a bar
to this proceeding.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The prior certification of the Intervenor in Case 2-RC-4634
(not reported in printed volumes of Board Decisions and Orders)
stated the unit as all hourly rated production and maintenance em-
ployees. The Employer and the Pettioner desire the unit composition
stated as "all hourly rated production, maintenance and warehouse em-
ployees." It appears that the latter definition is a further clarifica-
tion of the former unit definition and includes the same employees.
Therefore, we find that all hourly rated production, maintenance, and
warehouse employees at the Employer's reconditioning shop located
at 21-02 44 Avenue, Long Island City, New York, including work-
ing leaders, but excluding salaried office and clerical employees, guards,
watchmen, professional employees, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Decision and Direction of Election.
1 General Electric Company, 108 NLRB 1290; 108 NLRB 1294; 109 NLRB 747.
Member Peterson , although he concurred in the decisions in 108 NLRB No. 183 and 184
on other grounds , considered himself bound by the majority view in those cases.
SCOTT LUMBER COMPANY , INC. and INTERNATIONAL WOODWORKERS OF
AMERICA, LOCAL 13-269 , CIO. Case No . 2O-CA-835, September 17,
1954
Decision and Order
On January 8, 1954, Trial Examiner Martin S. Bennett issued his
Intermediate Report in this proceeding recommending that the com-
plaint be dismissed in its entirety, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the General Counsel's exceptions and brief, the Re-
spondent's brief, and the entire record in the case, and hereby adopts
109 NLRB No. 196.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the findings, conclusions , and recommendations of the Trial Examiner
with the following modifications and additions :
The Board has carefully reviewed the record in this proceeding,
and like the Trial Examiner, has concluded that the Respondent has
not engaged in unfair labor practices within the meaning of 8 (a)
(3) and (1) of the Act. However, unlike the Trial Examiner who
recommended dismissal of the complaint on the basis of a settlement
agreement, the Board predicates this conclusion on the merits of the
case.'
During the evening of April 9, 1953, the complainants, four lum-
ber pilers on the night-shift green chain gang, who performed part
of their work in areas that were not fully protected from the ele-
ments, selected one of their group, employee Snelling, to speak to
Foreman Martin about closing down operations of the mill 2 several
hours before the end of the shift. Martin agreed to close down at 8
p. in., and employee Snelling so informed the others. The lumber
pilers then piled up all remaining lumber. The whistle blew at 8
p. m., and they, together with the rest of the green chain crew, and
most of the mill employees, punched out and left. However, Fore-
man Martin later reported to Superintendent Startt that the green
chain crew had left without permission and thereby caused the mill to
close down.
When Vice-President Berry arrived at the mill the next morning,
April 10, Startt informed him of the incident of the preceding eve-
ning, and added hat the same employees had been warned with re-
spect to similar conduct during the prior month. Thereupon, Berry
told Startt, that under these circumstances, the 7 members of the
green chain crew, including the 4 lumber pilers, should be terminated,
and requested that a meeting with the union committee be arranged.
The meeting was held at 11 a. m. that day. Berry informed the com-
mittee that all seven would be discharged unless the Union could
show they were not at fault. At a subsequent meeting later that day,
the Union stated that 3 of the 7 could not possibly have been in-
volved as they were not exposed to the elements, and that the 4 lum-
ber pilers probably "influenced them." The Respondent then put
the 3 back to work that evening, but adhered to its decision that the
4 lumber pilers had left without permission and accordingly refused
to reinstate them at that time.
It further appears from the record, and the Trial Examiner so
found, that there was no evidence of antiunion animus on the part of
either Vice-President Berry or Superintendent Startt with respect
to these four complainants, and that both Berry and Startt in dis-
charging them did so because they entertained a good-faith belief
1 See West Texas Utilities Company, 108 NLRB 407, footnote 1.
2 The record indicates that the sawmill can operate for only a brief period of time with-
out the services of the green chain crew.
SCOTT LUMBER COMPANY, INC. 1375
that they had left without permission. Moreover, the record is clear,
and the Trial Examiner found, that the Respondent acted in good
faith in all its dealings with the Union. Thus, in view of the absence
of evidence that these discharges were prompted by antiunion con-
siderations, we perceive no basis for finding a violation of the Act.'
Under these circumstances, we are persuaded that the evidence ad-
duced by the General Counsel did not preponderate in favor of a find-
ing that the Respondent had discharged the four complainants for
reasons deemed discriminatory under the Act.
Furthermore, we perceive no valid basis for finding that the four
employees left work in concert during the evening of April 9, and
thereby engaged in a protected concerted activity. On the contrary,
as the record shows, and the Trial Examiner found, that the employ-
ees left with permission, the facts clearly do not support a finding
that the occurrence of April 9 in any sense constituted a concerted
withholding of employment for their mutual aid or protection. Nor
do we find any merit in the General Counsel's contention that dur-
ing the negotiations for an extension of the contract, the Respondent
utilized the discharge of the complainants and ultimate reinstate-
ment as a means of forcing the Union to capitulate to the Respond-
ent's demand that the parties renew the 1952 agreement rather than
consummate a new contract containing increased wage rates and
other additional benefits. The General Counsel's own witnesses testi-
fled that the reason the Respondent gave during all of the negotia-
tions for refusing to grant economic concessions was its asserted finan-
cial inability to do so.
Accordingly, we find that the Respondent, by discharging and re-
fusing to reinstate the four complainants, did not violate Section 8
(a) (3) and (1) of the Act, and we shall therefore dismiss the com-
plaint in its entirety.4 In view of this determination, we find it un-
necessary to pass upon what effect, if any, should be given to the May
15 settlement agreement upon which the Trial Examiner predicated
his recommended dismissal of the complaint.
[The Board dismissed the complaint.]
MEMBERS MURDOCK and PETERSON took no part in the consideration
of the above Decision and Order.
37Jes Moines, Springfield and Southern Route, 78 NLRB 1215, at pp. 1218, 1219.
4In agreement with the Trial Examiner, we find that allegations of coercive threats
were not established by the record and, in any event, would not warrant the issuance of
a remedial order.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act, is based upon charges duly filed by Inter-
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Woodworkers of America, Local 13-269, CIO, herein called the Union,
against Scott Lumber Company, Inc., herein called Respondent. Pursuant to said
charges, the General Counsel of the National Labor Relations Board issued a com-
plaint dated July 29, 1953, against Respondent, alleging that Respondent had
engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3)
of the Act. Copies of the charges, the complaint, and notice of hearing thereon
were duly served upon Respondent.
Specifically, the complaint alleged that Respondent, on April 10, 1953, had dis-
charged four employees, James Snelling, Tomilee Armour,' Edward Brewer, and
Olen Bray, and had failed to reinstate them until a later date because of their union
and concerted activities; the complaint also alleged two instances of coercive threats
by representatives of management. The answer of Respondent denied the com-
mission of any unfair labor practices; it alleged that the four above-named employees
had quit the employ of Respondent on the indicated date, and that Respondent had
offered to reemploy them on or about May 20, 1953.
Pursuant to notice, a hearing was held at Redding, California, from November
5 through 13, 1953, before the undersigned Trial Examiner, Martin S. Bennett,
duly designated by the Associate Chief Trial Examiner. All parties were repre-
sented by counsel who participated in the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce rele-
vant evidence. At the close of the hearing, the parties were given an opportunity
to argue orally and to file briefs and/or proposed findings and conclusions. Oral
argument was presented and a brief has been received from Respondent.
After the expiration of the time for filing biiefs, and in response to Respondent's
brief, the General Counsel filed a motion on December 15 to reopen the record for
the purpose of litigating subject matter relied upon by Respondent in its brief.
Respondent, on December 16, responded thereto and opposed the motion. The
motion to reopen has been duly considered and is hereby denied for, as will appear
below in more detail and as I now find, the matter in question was litigated at the
hearing.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Scott Lumber Company, Inc., is a New Jersey corporation which maintains a
plant at Burney, California, where it is engaged in the manufacture and sale of
lumber and lumber products. During the year 1952, Respondent sold lumber and
lumber products valued in excess of $100,000; of this, lumber and lumber products
valued at $100,000 were shipped from the Burney plant to points outside the State
of California. I find that Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, Local 13-269, CIO, is a labor organi-
zation admitting to membership the employees of Respondent.
IN. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and background
The primary issue herein is whether Respondent on April 10 unlawfully dis-
charged four employees who left work in concert on April 9. The Union has been
the recognized representative of the employees of Respondent for a number of
years and still is. A 1952 agreement between the parties expired on April 1, 1953,
and the conduct of Respondent attacked herein by the General Counsel took place
thereafter during the months of April and May. As will appear, the parties agreed
on May 15, 1953, inter alia, to extend the previous contract until April 1, 1954, and
that has been done.
The operations of Respondent include logging and the operation of a sawmill;
most of its work is conducted on a two-shift basis. In connection with the saw-
mill, Respondent operates a mechanism known as the "green chain" which is an
endless chain whereby cut lumber is automatically moved from the sawmill to a
1 Inadvertently referred to in the complaint as Tommy Armour.
SCOTT LUMBER COMPANY, IN C. 1377
location where it is assorted by size and type and stacked by lumber pilers. The
incident giving rise to the present proceeding took place among the members of
the night shift of the green chain crew. This night shift crew consisted of 7 men,
4 of whom are lumber pilers and are the complainants herein; the other 3 men per-
formed other operations such as sorting and tagging the lumber. The primary
function of the pilers was to pile the lumber after it came to rest at various locations.
The foreman of the green chain crew is one Asa Lakey. As is the case with
every other foreman but one, he works the day shift from 7 a. m. to 4 p. in. but
is on call during the other shift as well. The one exception is Edward Martin, night
foreman of the sawmill, who plays a leading role in the instant problem. Respondent
contends that Martin has no authority over the green chain crew and that his respon-
sibility is limited solely to the sawmill proper. The record will not support this con-
tention.
Respondent has a line of authority descending from Vice-President Berry and
Production Superintendent Startt to the various foremen. Martin is the only repre-
sentative of management on duty during the entire night shift. If this contention
of Respondent were accepted, the end result would be that the entire operation, save
the sawmill itself, would be operating without any supervision. Respondent's theory
that employees on the night shift, not in the sawmill proper, were to look to absent
supervisors for instructions via telephone, is, in my view, incredible. The simple fact
is that Martin was the sole agent of management on the premises at night; he was
regarded by the night-shift employees as the management representative to contact
on major problems and the employees have never been instructed that Martin's
authority to represent management in this area was less than his apparent authority.
In addition, Martin admittedly sends the green chain crew home early, along with
other employees, when mechanical failure causes a breakdown in operations.
Accordingly, I find that Martin had ostensible authority to act as an agent of
Respondent in the area of deciding to close down the mill during a shift, a basic
issue herein , despite the fact that he may have been under instructions from top
management to clear with Production Superintendent Startt or another level of
supervision. See International Longshoremen & Warehousemen's Union, C. I. 0.,
(Sunset Line and Twine Company), 79 NLRB 1487. I further find that the em-
ployees of the green chain properly looked to him for instructions in the matter of
closing down operations due to adverse weather conditions.
B. Sequence of events
The evidence concerning relevant events on April 9, 1953, may be summarized as
follows. The four lumber pilers on the night-shift green chain gang, the complainants
herein, perform a portion of their work in areas where they are not fully protected
from the elements. On the evening of April 9, a light to moderate storm passed
through the Burney area, with accompanying wind, snow, and rain. The four lumber
pilers were getting wet in varying degrees as a result of the stormy condition, which is
not unusual in winter in the Burney area. At approximately 7:40 or 7:45 p. m., they
delegated James Snelling to speak to Foreman Martin relevant to closing down opera-
tions of the mill prior to the end of the shift at 1:30 a. m. It may be noted that the
sawmill proper cannot operate unless the green chain is also in operation for the
purpose of removing cut lumber from the mill.
Snelling immediately went to the sawmill and spoke to Martin in the presence
of one Beacher Songer, sawyer of the night shift; it was then approximately 7:48
p. in. According to Snelling, he stated that, "It is pretty rough out there. How about
closing the mill down?" Martin then stated. "How about running it until 8:00
o'clock so the timecards will punch out even?" Snelling agreed to this and left to
inform his colleagues of the conversation.
The testimony of Songer substantially corroborates that of Snelling, although it
does contain one partial inconsistency. His initial testimony on the topic of this
conversation is closely parallel to that of Snelling and, in a later version, he repeated
this original testimony to the effect that Snelling announced the elements were rough
on the lumber pilers, whereupon Martin proposed that the men work until 8 o'clock.
Songer, in his initial testimony, stated that Snelling asked Martin "about shutting
down," but he later testified that he did not hear Snelling ask Martin if it was possible
to shut the mill down.
Martin was an unimpressive witness who demonstrated reluctance to testify, ap-
parently in an effort to refrain from presenting testimony adverse to Respondent.
I believe that his demonstrated lack of comprehension of some of the questions put
to him was for the above-stated reason. Even he, however, originally testified, in
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Substantial agreement with Snelling, that Snelling approached him shortly before 8
p. m., announced that the lumber pilers wanted to go in because of the elements,
and that he, Martin , told him to wait until 8 p. m. He later testified substantially
to the same effect.
In view of the foregoing , I believe and find that Snelluig 's testimony substantially
reflects what took place on April 9 in this respect . I find that the four lumber
pilers in concert delegated Snelling to ask Martin to close the mill down early,
that Martin , as the General Counsel contends , agreed to do so at 8 p. m.; that Snelling
assented to this proposal ; and that Snelling duly informed his coworkers to this
effect. Snelling and his colleagues proceeded to pile up all lumber remaining to be
piled within a matter of minutes . The whistle blew at 8 p. m., whereupon they,
together with the remainder of the green chain crew and all other employees of the
sawmill , punched out and left.
Respondent attempted to adduce testimony to the effect that the whistle was blown
for the purpose of changing saws. The record does not support this contention.
While it was time to change saws at 8 p . m. on April 9 , the testimony of Sawyer
Songer , which I credit, demonstrates that Martin decided that Songer should not
change saws , although he later reversed his decision after the whistle had been blown.
Significantly , Songer customarily blows the whistle for the brief shutdown when
saws are to be changed , but he did not, pursuant to Martin 's instructions , blow the
whistle on April 9.
On the following morning, top management of the mill concluded that the depar-
ture of the green chain crew had been unauthorized . Presumably this conclusion
must have resulted from talks with or a communication with Martin , although his
testimony in this respect is unimpressive and not clear . Be that as it may, both
Vice-President Berry and Superintendent Startt were of the belief that the men had
left without permission . I further believe and find that they entertained this belief
in good faith . I can only conclude that Martin granted permission to the green
chain crew to leave , later decided that his decision was unsound , and subsequently
reported to his superiors that the departure had not been authorized by him. It
may be noted that there is no evidence of antiunion animus on the part of Berry or
Startt directed to the complainants herein; the evidence shows only that Berry bore a
hostility to some members or leaders of the Union because of what he considered
to be their radical views, but that, significantly , none of this hostility was directed at
the complainants herein.
A word may be devoted to Respondent's contention that the men were under
instructions from Foreman Lakey of the green chain crew to call him if anything
untoward took place. Much testimony was developed on this topic , most of which
is immaterial herein. The fact is, as found, that Martin was the only agent of
Respondent on the premises during the night shift of April 9; that he was the only
night foreman of Respondent , and that the men properly went to him on the occasion
under discussion . Moreover , while Martin may have privately contemplated tele-
phoning Lakey or may have unsuccessfully attempted to telephone Lakey, as he
testified , the controlling fact is that Martin admittedly did not tell the men on April 9
that he had to clear the shutdown with Lakey. Significant here, too, is the fact
that on an earlier occasion in March Martin had discussed with the green chain
crew the possibility, of closing the plant down early due to adverse weather conditions,
never told them that the matter was one to be taken up with Lakey , and had in fact
sent them home early that night .2
At approximately 11 a. m. on April 10, Respondent decided to discharge the
7 members of the green chain crew , including the 4 lumber pilers, the complainants
herein . A representation was made to management by a union committee that the
members of this crew were innocent of any wrongdoing . Later that day, manage-
ment concluded that the three other members of the crew were innocent of any
wrongdoing and they were put back to work that evening without any loss of time.
Respondent adhered to its decision that the lumber pilers had left without per-
mission and decided not to reinstate the four complainants , although they were
offered reinstatement at a later date , as described below. Accordingly, I find that
they were discharged on April 10; it may further be noted that these discharges
were carried out prior to any hiring of replacements for them.
2I deem it unnecessary therefore to determine whether , as Respondent contended, mem-
bers of the green chain crew had previously been instructed by Lakey to contact him in
the event a crisis of any nature developed or whether , as the witnesses for the General
Counsel testified , Lakey had merely told them to contact him in the event of a mechanical
breakdown
SCOTT LUMBER COMPANY, INC. 1379,
C. Analysis and conclusions
(1) There are several troublesome aspects of the case which I deem unnecessary
to develop in full, inasmuch as in my belief the last-enumerated paragraph below
disposes of the entire matter. On the basis of the primary position maintained by
the General Counsel , and as found above, the men left work on April 9 with the
permission of a representative of management . I have serious doubts whether, in
the absence of any antiunion animus, their discharge on the following day, carried
out in good faith by top management , constitutes a violation of the Act . The fact
that they left with permission would seem to rebut the existence of a concerted with-
holding of employment for their mutual aid or protection in the customary sense
of the term.
(2) If it is claimed that the men left without permission , this presents a serious
question whether their departure was a protected concerted activity for their mutual
aid or protection , in an effort to better conditions of employment ( see N. L. R. B. v.
Gullett Gin Company , Inc., 179 F. 2d 499 (C. A. 5) enforced in this respect) or
whether, on the other hand, their departure , because of their unwillingness to work
in stormy weather, a not unusual circumstance , constituted insubordination and an
unprotected rejection of their terms of employment . ( See Robert H. Snow, d/bla
Auto Parts Co., 107 NLRB 242.)
(3) Respondent adamantly insisted that the discharge of the four men was proper
and refused to reinstate them. I deem it unnecessary to set forth the extensive evi-
dence with respect to subsequent negotiations between the parties , both as to a new
contract and concerning reinstatement of the four men. The simple fact is that the
Union, as the recognized representative of the employees , continued to negotiate in
behalf of a new contract , as it had since March , and that it also sought to bring about
the reinstatement of the four men. While the testimony is conflicting as to whether
Respondent insisted on treating the two matters in the conjunctive or in the disjunctive,
this too is not controlling . The diapositive factor, as I view the issue, is that the
parties executed an agreement on May 15 which disposed of all matters in dispute
between them . And, save for the filing of charges herein , the agreement has been
honored and lived up to.
This agreement was signed by Vice-President Berry and General Superintendent
Startt in behalf of Respondent , and by a six-man negotiating committee in behalf
of the Union . It reads as follows:
STIPULATION
Scott Lumber Company, Inc. agrees to accept the offer of Local No. 13-269
in full settlement of all issues now pending between Local 13-269 IWA-CIO
and Scott Lumber Company, Inc. The agreement is as follows:
1. The contract as agreed upon and set forth in Stipulation and Supple-
ment dated June 27, 1952 which contract expired as of April 1, 1953,
together with the wage scale as existed under this contract shall be renewed
and continued until April 1st, 1954.
2. With regard to the issue concerning four (4) employees , to wit:
Tommy Armour , Olen Bray , James Snelling and Edward Brewer, it is
agreed that they shall be rehired as of May 18 , 1953 with the further
understanding between the Company and the Union that although then
rehired their seniority shall date as of the date of their original employ-
ment by the Company and that they shall have reserved intact for them
all contractual benefits that inure by virtue of their seniority ; it being
further agreed and provided that in the case of Olen Bray his rehiring
shall not begin as of May 18 but as of such date as his physical condition
may warrant , as approved by the Company doctor and if there is any
question on the part of said Bray , or the Union , with regard to the deci-
sion of the Company doctor, then , and in that event, upon notice, a
committee of three doctors, one appointed by the Union and one by the
Company and a third by the other two doctors shall be accepted by the
Company, the Union and said Bray.
It is further understood that in the rehiring of these men there is no
back pay due and that their rehiring shall date as and from the 18th of
May as to the three ( 3) now qualified to be rehired and that Bray's wages
shall start from the day he is able to commence employment. [Emphasis
supplied.]
-334811-55-vol 109-88 -
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to the contention of the General Counsel, (1) the circumstances sur-
rounding this settlement were fully developed at the hearing and (2) it did not
purport to be only a partial settlement of the issues between the parties. In fact,
the stipulation states just the opposite on its face, declaring that it is "in full settle-
ment of all issues now pending between Local 13-269 IWA-CIO and Scott Lumber
Company, Inc."
Nor, as the General Counsel contends, is there any evidence that the parties
understood the topic of back pay to remain as an item of dispute. While Respond-
ent may have bargained hard with the Union, that is its right. N. L. R. B. v.
American National Insurance Co., 343 U. S. 395, and N. L. R. B. v. Dealers Engine
Rebuilders, Inc., 199 F. 2d 249 (C. A. 8). The simple answer is that the parties
did compose all their differences. Indeed, Berry desired precisely to compose all
disputes with the Union and agreed to reinstate the men despite his long-standing
opposition to their reinstatement. Nor is there any evidence of animus directed
at the Union in this episode. Here the Union was the bargaining agent charged
with the responsibility of representing all the employees in the unit and it did pre-
cisely that in this instance. The May 15 agreement, I find, clearly constituted what
the parties considered to be a final settlement between them of the two outstanding
issues. See Ford Motor Company v. Huffman, 345 U. S. 330.
The General Counsel does not claim that Respondent has violated the settlement
agreement but rather contends that this private agreement to which the Board was
not a party cannot constitute a defense to unfair labor practices which public policy
requires the Board to remedy. However, it is noteworthy that, in another context,
an agreement between a labor organization and an employer has been accepted
by the Board and the circuit court as a defense to secondary boycott charges
although the conduct under consideration appeared to constitute an otherwise
unlawful secondary boycott. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 294, 87 NLRB 972, affd. in Raboum,
d/b/a Conway's Express v. N. L. R. B., 195 F, 2d 906 (C. A. 2).3
It would seem therefore that an agreement as the one in the instant case, entered
into after the commission of and with knowledge of unfair labor practices, assum-
ing the discharge of the men to be such, should be accorded, at the very least, equal
dignity with the agreement referred to in the above-cited case which was executed
prior to the commission of the otherwise unlawful conduct.
(4) But in the final analysis, an even more fundamental consideration is present
herein. One of the basic purposes of the Act, as it states, is to encourage "the
practice and procedure of collective bargaining." In the instant case a voluntary
settlement of all outstanding issues was reached through collective bargaining as
a result of which Respondent gave up a claim that it had the right to terminate the
services of the four men. Significant here is the fact that Berry, in my belief, acted
in personal good faith throughout the negotiations. Moreover, as found, there
was no reservation of any right to process the matter further before the Board and
Respondent was rightly under the belief that the matter had been disposed of.
There was no claim of intent to proceed before the Board, yet, but 10 days later
on or about May 25, the Union itself, although signatory to the settlement, filed
the charges herein. It cannot be contended therefore that Respondent settled the
matter with knowledge of pending charges. Moreover, insofar as the record indi-
cates, the settlement agreement has not been violated, at least not by Respondent.
In view of the foregoing considerations, I do not believe that the policies of the
Act would be effectuated were the Board to go behind this agreement between the
parties which was arrived at through the processes of collective bargaining. This
is not a situation where a settlement agreement is in basic derogation of employees'
rights as guaranteed by the Act. Accordingly, even on the assumption that the
complainants herein were discharged because they had engaged in a protected con-
certed activity, I shall nevertheless recommend that the instant complaint be dis-
missed in its entirety. Corn Products Refining Company, 49 NLRB 1377; cf. Sherry
& Gordon Company, Inc., 107 NLRB 113.4
8 The dissent of former member Reynolds points out that a contract between the parties
was being permitted to "nullify the provisions of the Act "
4 The evidence with respect to the two instances of alleged coercive threats is not sub-
stantial The first, attributed to Foreman Martin, is not established by the evidence.
There are varying versions concerning the second Vice President Berry is alleged to have
said on about May 13, at a bargaining meeting, that he was considering closing down the
mill over the winter months, as did his competitors , in an effort to make the Union less
adamant at negotiations in the spring. Another version attributes to Berry the statement
that he would have to take such action if the Union persisted in its wage demands. I
HARRISON STEEL CASTINGS COMPANY 1381
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The operations of Respondent , Scott Lumber Company, Inc., affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Woodworkers of America , Local 13-269, CIO , is a labor organi-
zation within the meaning of Section 2 ( 5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) and ( 3) of the Act.
[Recommendations omitted from publication.]
deem it unnecessary to pass upon this statement for it is clear that , in the light most favor-
able to the General Counsel , it was an isolated incident and the issuance of a remedial order
is not warranted under ' the circumstances . See Bob Morgan Motor Company , Inc., 106
NLRB 334; Waffle Corporation of America, 103 NLRB 895 ; and The American Thread Com-
pany, 97 NLRB 810.
HARRISON STEEL CASTINGS COMPANY and UNITED STEELWORKERS OF
AMERICA, CIO. Case No. 35-CA-519. September 17, 1954
Decision and Order
On April 13, 1954, Trial Examiner Lloyd Buchanan issued his in-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the Union filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
Intermediate Report and Recommended Order
The complaint herein , as amended at the hearing, alleges that the Company has
violated Section 8 (a) (3) of the National Labor Relations Act, as amended, 61
Stat . 136, by laying off on April 10, 1953, and failing and refusing 1 to reinstate,
because they engaged in union activities , Garnet B. Price, Edgar Rager, Jesse W.
'Except in the case of Johnnie Lyons , the General Counsel does not claim that there
were refusals to reinstate ; he relies on the Company 's failure to reinstate the other seven
named when the duty to do so allegedly existed. The Company admits that the eight were
laid off on or about the respective dates listed.
109 NLRB No. 195.