Weyerhaeuser Timber Co.

National Labor Relations Board - Board Decisions

Mar 16, 1951

93 N.L.R.B. 842 (N.L.R.B. 1951)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive representative of the employees in the collective bargaining unit herein
found to be appropriate.'
CONCLUSIONS of LAW
In the light of these findings of fact and upon the entire record in the case, I
make the following conclusions of law:
1. The Respondent, Phelps Brothers Service, is engaged in trade, traffic, and
commerce, and business activities which affect commerce, within the meaning
of Section 2 (6) and (7) of the Act.
2. Lodge No. 750, international Association of Machinists, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3. All of the mechanics at the Respondent's retail automobile agency and
garage at Colorado Springs, Colorado, including body and fender men, greasers,
washers, parts men, painters, and the body shop handy man, but excluding
office and clerical employees, supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. The Union was on September 6, 1950, and at all times since has been, en-
titled to act as the exclusive representative of the employees in the aforesaid
unit, for the purposes of collective bargaining, within the meaning of Section
9 (a) of the Act.
5. By its refusal, on October 6, 1950, and at all times thereafter, to bargain
collectively with the Union as the exclusive representative of its employees in
a unit appropriate for collective bargaining, the Respondent engaged and has
continued to engage in unfair labor practices within the meaning of Section 8
(a) (5) of the Act.
6. By its interference with the efforts of the Union to bargain collectively on
behalf of the employees in the aforesaid appropriate unit, the Respondent en-
gaged and has continued to engage in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
4 May Dept. Stores v. N. L. R. B., 326 U. S. 376; N. L. R. B. V. Express Publishing
Company, 312 U. S. 426.
WEYERHAEUSER TIMBER COMPANY (KLAMATH FALLS BRANCH and
HERBERT W. SHULTS, PETITIONER and INTERNATIONAL WOODWORKERS
OF AMERICA, LOCAL 6-12, CIO. Case No. 36-RD-30. March 16,195.1
Decision and Direction of Election
Upon a petition for decertification duly filed, a hearing in this case
was held before Robert E. Tillman, hearing officer. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.'
I The hearing officer referred to the Board for ruling thereupon the Union's motion to
dismiss the petition . For reasons hereinafter stated the motion is hereby denied.
93 NLRB No. 43.
WEYERHAEUSER TIMBER COMPANY 843
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
-the National Labor Relations Act.
2. The Petitioner asserts that the Union is no longer the bargaining
representative of the employees of the Employer as defined in Section
'9 (a) of the Act.2
3. The Union contends that an oral agreement extending the terms
of its 1949 contract, pending negotiations for a new contract, is a
bar to this proceeding.3 It is well settled that an oral agreement can-
not operate as a bar to a petition for certification,4 or a petition for
decertification.5 As the petition was filed after the expiration date
-of the old contract and before execution of the new agreement, it
follows therefore that neither contract can operate as a bar to this
proceeding. Accordingly, we find no merit in this contention.
There is no evidence to support the Union's motion to dismiss upon
the ground that the petition herein sterns from a back-to-work move-
ment sponsored by the Employer. Furthermore, it is well-established
Board procedure to exclude from representation proceedings all mat-
ters relating to unfair labor practices .r- Accordingly, the motion is
denied.
There remains for consideration the Union's motion to dismiss the
petition upon the ground that the Petitioner is presently a super-
visor. The parties agree that at the time the petition was filed the
Petitioner was employed as a common laborer.7 The Board has held
that a supervisor may not file a decertification petition either in his
capacity as a management representative or as an "individual" acting
on behalf of the employees within the designation of Section 9 (c)
2 The Union was certified by the Board as the bargaining representative of the employees
-concerned herein on August 21 , 1945 , and has since that time, been the recognized bar-
gaining representative for such employees
3 On May 26, 1948, the Union and the Employer signed a contract which provides, in
part , that it shall remain in effect until April 1 , 1949 , and from year to year thereafter
unless either party notifies the other in writing of a desire to terminate , revise , or amend
the agreement not later than January 26 of any year . On January 25, 1950, the Union
notified the Employer of its desire to negotiate for a new contract Negotiations between
the Employer and the Union began sometime in April 1950 , and continued until July 25,
1950, when a new agreement was signed During this period the Union struck the Em-
ployer's operations from May 15 until the new agreement was signed on July 25 The
decertification petition herein was filed on July 11, 1950, during the period of the strike.
4 See Escor, Inc, 46 NLRB 1035; Amertican Can Company, 89 NLRB 1220 , and Asso-
ciated Motion Picture Producers , Inc, 87 NLRB 657.
5 Goodyear Tire and Rubber Company, 78 NLRB 838.
9 Jell-Well Dessert Company , 82 NLRB 101 , and cases cited therein.
7 As already noted, the petition was filed during the strike , July 11, 1950 Immediately
upon the Petitioner ' s return to work , following the strike, July 25 , 1950 , he was advised
that he was to be made permanent night yard foreman, and it week or two later he
assumed that position . The parties agree thatthe Petitioner is presently a supervisor
within the meaning of the Act.
The Petitioner acted in a supervisory capacity for two 3-week periods in January and
March 1950 prior to the filing of the petition on July 11 , 1950 Also he acted as yard
foreman for 1 day in the fall of 1949
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) (A) of the Act ." . In this case, however, the Petitioner was not a
supervisor at the time of the filing , and was, therefore, a proper
party to file the petition in this proceeding.9 In our view, this pro-
ceeding does not abate because of any supervening disqualification of
the Petitioner. Here, the Petitioner , pursuant to Section 9 (c) (1)
(A) (ii), filed his petition in behalf of employees of the Employer
asserting that the Union is no longer the bargaining representative of
such employees . In so doing, the Petitioner was not seeking to obtain
any individual status or recognition , but was acting in a representative
capacity. At the time he filed his petition, the Petitioner was a proper
person to initiate this proceeding . Thereafter , the Petitioner was
only nominally involved in the case . His further presence and par-
ticipation in the matter was unnecessary to the ultimate conclusion
of the proceeding . Once the petition was filed, responsibility for all
further action in the matter devolved upon the Board. Thereafter,
the Board investigated the petition , the Board conducted the sub-
sequent hearing and the Board directs and supervises any election in
the matter. Finally, any order which the Board may issue terminating
this proceeding will not directly affect the Petitioner. The Board's
ultimate order herein will either certify or decertify the Union, but
will not confer any particular status upon the Petitioner. Therefore,
the Petitioner is not "prosecuting " his petition . This proceeding also
is unlike one where a labor organization seeks certification as bargain-
ing representative of employees . In the latter case , if during the
pendency of the matter, the labor organization should become dis-
qualified to act as bargaining representative, then of necessity the
proceeding would abate because in such case there -would remain no
organization which could be certified . It is our opinion that the peti-
tion herein initially having been properly filed, the proceeding does
not abate regardless of any subsequent disqualification or incapacity
of the Petitioner . The employees of the Employer , who are currently
being represented by the Union , are principally involved rather than
the Petitioner . To dismiss the petition herein would be to their preju-
dice, not the Petitioner. Accordingly, the Union's motion is hereby
denied.
Our dissenting colleagues argue that the petition herein would have
been dismissed had the petitioner withdrawn from the case and cite
this fact as evidence of more than a nominal participation in the pro-
ceedings by him. We find no merit in this point of view. Although
it is true that petitions are generally dismissed when the petitioner
fails to appear at a hearing or otherwise seeks to withdraw , one of the
reasons for this procedure is our reluctance to conduct an ex parte
8 Clyde J Merras , 77 NLRB 1375.
0 Goodyear Tire and Rubber Company, supra
WEYERHAEUSER TIMBER COMPANY 845
proceeding. The difference from this type of proceeding and one in
which a certification has been sought has already been noted. In
answer to our colleagues' other objection to the result we have reached,
we are of the opinion that the Board's rules and practices in connection
with the conduct of elections are adequate safeguards for the election
here ordered and the current status of the Petitioner will not result
in prejudice to the parties. The Union's motion is therefore denied.
We find that a question affecting commerce exists concerning 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 following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's
Klamath Falls Branch Mill Operations, Klamath Falls, Oregon, ex-
cluding employees in the machine shop, electricians, car men, mill-
wrights, and their helpers, conductors, brakemen, firemen, engineers
and hostlers on the Employer's logging operations, all clerical em-
ployees, foremen, and any other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action.b0
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERzoG and MEMBER MURDOCK, dissenting :
We cannot agree with our colleagues' decision to proceed upon this
petition. We think that the advancement of the Petitioner to the
position of a supervisor before the hearing requires dismissal of the
petition.
As the majority recognizes, this Board has interpreted the Act to
preclude a supervisor from filing a decertification petition either in
his capacity as a management representative or as an individual acting
on behalf of employees within the designation of Section 9 (c) (1)
(A). The same considerations which constrained us to hold that a
supervisor is not eligible to file a petition, in our opinion, compel the
conclusion that a supervisor may not prosecute a petition.
Although the Petitioner at the time he filed the petition herein could
properly do so as an employee, upon his promotion a few weeks
later to the position of supervisor, he became unfit any longer to act
in behalf of rank-and-file employees. His status therefore differs
from that of the petitioner in the Goodyear case cited by the majority.
In that case the disqualification of the petitioner to act as a decertifi-
10 The unit description appears as stipulated to by the parties.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation representative because of his position as a supervisor had-been
removed at the time of the filing of the petition and thereafter by his
loss of supervisory rank. Admittedly, the Petitioner here was not
at the time of the hearing qualified to initiate a decertification pro-
ceeding; we consider that he was no more qualified to maintain such
a proceeding.
We cannot agree with the argument of the majority that after the
decertification petition was filed the Petitioner became only "nomi-
nally" involved, and his further "presence and participation" unneces-
sary to the ultimate conclusion of the proceeding. Clearly had the
Petitioner withdrawn without the substitution of someone else (as we
believe he should have done after becoming a supervisor), the pe-
tition would have fallen for want of a petitioner; therefore his con-
tinuation as a petitioner was indispensable, not "nominal." This
conclusion finds further support in the practice in the field to dismiss
a decertification petition at the hearing if the petitioner does not then
appear. Moreover, a decertification petitioner has more than "nom-
inal" responsibilities to exercise in connection with any election di-
rected pursuant to his petition. He as well as the Employer and the
Union may select observers of the election, challenge the eligibility of
voters, object to the conduct of the election or conduct affecting the
results of the election, and except to any report made concerning chal-
lenged ballots or objections by other parties to the election. In our
opinion, therefore, a qualified petitioner is necessary to the continua-
tion as well as to the filing of a decertification petition.
For the foregoing reasons we would dismiss the petition.
TENNESSEE EGG COMPANY and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA , A. F. L.
TENNESSEE EGG COMPANY and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN or NORTH AMERICA, A. F. L. Cases Nos.
10-CA-158 and 10-CA-169. Mardi 20, 1951
Decision and Order
On October 13, 1950, Trial Examiner Josef L. Hektoen issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also found that the Respondent had not engaged in
93 NLRB No. 141.