Smith Wood Products, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1938

7 N.L.R.B. 950 (N.L.R.B. 1938)

In the Matter of SMITH WOOD PRODUCTS, INC. and PLYWOOD AND
VENEER WORKERS LOCAL No. 2691, INTERNATIONAL WOODWORKERS OF
AMERICA
Case No. C-404.-Decided June 16, 1938
Woodworking Industry--Interference, Restraint, and Coercion: advising
employees to join a particular labor organization ; assisting formation of
such organization-Discrimination: discharge of employees under "closed shop"
,contract where contract is made with local union and local union has changed
name and affiliation-Reinstatement Ordered: discharged employees, dismissing
newly hired employees, if necessary ; preferential list ordered : to be followed in
further reinstatement-Back Pay: not awarded, because of doubt in which
employer's legal rights and obligations under contract had been involved ;
ordered, to discharged employees who are not reinstated or placed on preferen-
tial list within 5 days of application for reinstatement.
Mr. G. L. Patterson and Mr. Patrick H. Walker, for the Board.
Mr. J. B. Beding fiield, of Marshfield, Oreg., and Mr. J. Arthur
Berg, of Coquille, 'Oreg., for the respondent.
Mr. Tom Boeke, of Coquille, Oreg., for the Carpenters' Local.
Mr. Julius Schlezinger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Plywood and Veneer Workers Union,
Local No. 2691, of the International Woodworkers of America, herein
called I. W. A. Local 2691, the National Labor Relations Board,
herein called the Board, by Charles W. Hope, Regional Director for
the Nineteenth Region (Seattle, Washington), issued its complaint
dated January 15, 1938, against Smith Wood Products, Inc., herein
called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (3), and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act, in that the respondent had, on several occasions
during August and September 1937, advised its employees that the
950
DECISIONS AND ORDERS 951
respondent would discontinue the operation of its plywood plant in
Coquille, Oregon, if said employees continued their membership in
I. W. A. Local 2691, and in that the respondent had refused to
employ since September 21, 1937, at such plywood plant, 78 named
employees because of their membership in I. W. A. Local 2691 and
their failure to maintain membership in Local No. 2691 of the United
Brotherhood of Carpenters and Joiners of America, herein called
New Carpenters' Local 2691. The complaint and accompanying
notice of hearing were duly served upon the respondent, I. W. A.
Local 2691, and New Carpenters' Local 2691. The respondent filed
an answer to the complaint in which it denied that it had engaged
in unfair labor practices.
On January 20, 1938, New Carpenters' Local 2691 filed a motion to
intervene. The motion was granted.
Pursuant to notice, a hearing was held at Coquille, Oregon, on
February 2 and 3, 1938,1 before Mapes Davidson, the Trial Examiner
duly designated by the Board. The Board, the respondent, and New
Carpenters' Local 2691 were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to produce evidence bearing upon the issues
was afforded to all parties. During the course of the hearing the
Trial Examiner made several rulings on motions and on objections to
the admission of evidence. The Board has reviewed these rulings and
finds that no prejudicial errors were committed. All rulings of the
Trial Examiner are hereby affirmed.
On February 15, 1938, the Board, pursuant to Article II, Section
37, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered that the proceeding be transferred to
and continued before it.
On May 6, 1938, the Board, pursuant to Article II, Section 38 (d),
of the Rules and Regulations, issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, which were duly
served upon. the parties. At the same time, the Board granted to the
parties the right, within 10 days from the receipt of such Proposed
Findings of Fact, Proposed Conclusions of Law, and Proposed Order,
to file exceptions, to request oral argument before the Board, and to
request permission to file a brief with the Board. Thereafter, such
exceptions were duly filed by I. W. A. Local 2691. The Board has
considered these exceptions and finds them to be without merit.
Upon the entire record in the case the Board makes the following :
1 The healing was originally scheduled for January 26, 1938 Notice of postponement
was duly served upon the pasties
106791-38-vol vit--61
952 NA'T'IONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Smith Wood Products, Inc., is a Missouri corporation having
its principal office at Kansas City, Missouri. It operates at Coquille,
Oregon, a cedar mill, a fir mill, and a plywood plant. The respondent
owns approximately 300,000,000 feet of standing timber in Coos
County, Oregon.
During 1937 approximately 16,000,000 feet of cedar, 37,000,000
feet of Douglas fir, and 30,000,000 feet of plywood were processed
at the respondent's plants. The respondent purchased a portion of
this,timber in the open market and obtained the balance from its own
supply in Coos County. Between 80 and 90 per cent of its finished
products were sold by the respondent to customers located outside
the State of Oregon. In 1937 the respondent shipped products to pur-
chasers in 43 States and 20 foreign countries.-
The only plant of the respondent involved in this proceeding is
the plywood plant at Coquille, Oregon, herein called the Plywood
plant.2 The products of the Plywood plant are sold through the
Portland, Oregon, office of Ralph L. Smith Lumber Company, a sales
company, to jobbers and wholesalers, throughout the United States-
The largest volume is sold in California, Pennsylvania, and Illinois-
II. THE UNIONS
Local Union No. 2691 of the International Woodworkers of
America is a labor organization affiliated with the Committee for
Industrial Organization. Its membership is limited to employees
of the Plywood plant.
Local Union No. 2691 of the United Brotherhood of Carpenters
and Joiners of America is a labor organization affiliated with the
American Federation of Labor. It also limits its membership to em-
ployees of the Plywood plant.
III. THE UNFAIR LABOR PRACTICES
A. The background of the dispute
Organization among the employees of the Plywood plant began
shortly after the opening of the plant during the last week of De-
cember 1936. In January 1937, a union was formed which affiliated
with the United Brotherhood of Carpenters and Joiners of America
as Local No. 2691, herein called Carpenters' Local 2691. It grew
rapidly and within a short time succeeded in obtaining as members,
practically all the workers at the plant.
2 This plant was placed in operation in December 1936.
DECISIONS AND ORDERS 953
On April 1, 1937, Carpenters' Local 2691 entered into a written
contract with the respondent covering hours, wages, and other con-
ditions of employment. The contract also contained a "closed shop"
provision requiring the respondent to employ only members of the
Local in good standing. The contract was to run until March 1,
1938.
In July 1937, Carpenters' Local 2691 participated, together with
other locals in the lumber industry of the Pacific Northwest, in a
referendum on the question of seceding from the United Brother-
hood of Carpenters and Joiners of America, herein called the Car-
penters' Union, and affiliating with the Committee for Industrial.
Organization, herein called the C. I. O. The ballots were counted at
a convention of the Federation of Woodworkers in Tacoma, Wash-
ington. Between 86 and 87 per cent of those cast by members of
Carpenters' Local 2691 were in favor of affiliating with the C: I. O.3-
Following the convention, Carpenters' Local 2691, at a regular
meeting held on July 25, 1937, voted unanimously to request a charter
from the International Woodworkers of America, herein called thee
I. W. A., an international union affiliated with the C. I. O. On.
August 22 it voted to install the I. W. A. charter as soon as a mem-
her of the Executive Board of the I. W. A. could be obtained toy
conduct the installation ceremony.
The I. W. A. charter was installed on August 29, 1937, at a special'_
meeting of Carpenters' Local 2691, attended by between 120 and 125>
of its 180 members. Just prior to its installation a motion to close
the books and records of Carpenters' Local 2691 forever was adopted
with but one dissenting vote. Also, a committee was elected which
returned to the Carpenters' Union at its national offices in Indian-
apolis, Indiana,. the charter of Local No. 2691. Following the in-
stallation of the new charter a motion was passed retaining as officers
of I. W. A. Local 2691 all of the officers of Carpenters' Local 2691_
The Plywood plant was closed down from September 1' until Sep-
tember 8. During this period an attempt was made to "reorganize"
Local No. 2691 of the Carpenters' Union. On September 4 a meet-
ing, attended by about 13 or 14 employees of the Plywood plant,
was held at the Coquille City Hall. At this meeting it was decided
to try to obtain the charter of Local 2691 of the Carpenters' Union.
A motion was passed retiring the officers of Carpenters' Local 2691
and new officers were elected for New Carpenters' Local 2691. In
addition, the persons present took a new oath of allegiance to the.
Carpenters' Union. A resolution was also adopted objecting to with-
drawal of the Local from the Carpenters' Union.
All except seven of the Local's 180 members took part in the referendum.
954 NATIONAL LABOR RELATIONS BOARD
On September 9, after the reopening of the Plywood plant, George
A. Ulett, the respondent's manager and vice president, addressed the'
employees in groups of 40 or 50 men. He told them that if they
went C. I. O. the Carpenters' Union would place a boycott on the
products of the Plywood plant and that because of the boycott
and of the ,contract of April 1937, the plant would have to close
down, but that if they remained with the A. F. of L. he could promise
them employment for an indefinite period of time. Ulett also told
the workers that if the law would permit him he would gladly pay
their per capita tax to the A. F. of L.
New Carpenters' Local 2691 continued its "reorganization" cam-
paign during this period. The campaign was aided by the open sym-
pathy and assistance of the respondent. Petitions objecting to the
withdrawal of the Local from the Carpenters' Union were circulated
throughout the plant during working hours. Various supervisory
officials of the respondent participated in the circulation of these pe-
titions and solicited members for New Carpenters' Local 2691.
On September 15 a committee of I. W. A. Local 2691 protested to
A. L. Lung, the superintendent of the Plywood plant, concerning
the discrimination against their union by the respondent. Although
Lung assured the committee that there would be no further dis-
crimination against the I. W. A. the conduct of the respondent con-
tinued the same.
New Carpenters' Local 2691, at a meeting held on September 16,
1937, passed a resolution suspending the officers of I. W. A. Local
2691 from membership and demanding their dismissal by the re-
spondent in accordance with the "closed shop" provision of the con-
tract of April -1, 1937. Following the meeting notice of such action
was transmitted by New Carpenters' Local 2691 to the respondent.
On September 20 a committee consisting of the officers of I. W. A.
Local 2691 again called on Lung to protest the activities of New
Carpenters' Local 2691 within the plant. The members of this com-
mittee were informed by Lung that they had been discharged. At
approximately the same time notices were posted by New Carpenters'
Local 2691 on the bulletin board in the plant demanding the dis-
missal of the officers of I. W. A. Local 2691 and informing the em-
ployees that all workers who did not become members in good stand-
ing in New Carpenters' Local 2691 by 5 o'clock that afternoon would
be discharged. I. W. A. Local 2691 promptly called a strike at the
Plywood plant and, with the exception of about 20 men, all of the
employees of the plant participated in the walk-out.
The members of I. W. A. Local 2691, at a conference held on
September 22 or 23, offered to return to their jobs. This offer was
rejected by the respondent which insisted that only those employees
DECISIONS AND ORDERS 955
maintaining membership in New Carpenters ' Local 2691 would be
permitted to work in the plant. At the time of the hearing in this
case members of I. W . A. Local 2691 were still being denied employ-
ment at the Plywood plant.
B. The contract
The complaint alleges that the refusal of the respondent to retain
in its employ after September 21, 1937, persons who were members
of I. W . A. Local 2691 and who failed to maintain membership in
good standing in Local No . 2691 of the Carpenters ' Union constituted
an unfair labor practice, within the meaning of Section 8 (1) and (3)
of the Act . The respondent denies that such refusal constituted an
unfair labor practice and contends that it was obligated to refuse em-
ployment to such persons by the "closed shop" provision of the con-
tract of April 1, 1937. This provision reads as follows :
The party of the first part agrees to employ only Union labor
in good standing in Local Union No. 2691. Any additional help
required shall be hired through the Union Hiring Hall and will
be issued a Temporary Working Card, and after thirty (30)
days employment , if recommended by the Employer and the
Authorized Union investigating committee, they shall be re-
quired to join the Union.
The question before us is similar to the one decided by this Board
in the recent case of M. and M. Wood Working Company and Ply-
wood and Veneer Workers Union Local No. 102, affiliated with Inter-
national Woodworkers of America .' For the reasons stated in that
opinion we believe the respondent was not justified by the contract
of April 1937, in refusing to retain in its employ those persons who
were not members of New Carpenters ' Local 2691.
The contract of April 1937, was made with Carpenters' Local
2691 and not with the national Carpenters ' Union. The parties
thereto, according to its preamble , are the respondent and "Plywood
and Veneer Workers, Union Local 2691, affiliated with the United
Brotherhood of Carpenters and Joiners of America , hereinafter
known as the Union." The only persons to sign the agreement were
Ulett and F. R. Bull, the president of Carpenters ' Local 2691 at the
time. It is clear that the reference to the Carpenters' Union is
merely descriptive of the Local.
We also believe that Carpenters' Local 2691 legally withdrew from
the Carpenters' Union. The constitution of the Carpenters' Union
provides that a local union cannot withdraw so long as 10 members
4 6 N L R B 372.
956 NATIONAL LABOR RELATIONS BOARD
in good standing object thereto. Although it was generally known
throughout the Plywood plant that Carpenters' Local 2691, at its
meeting of July 25, had voted unanimously to affiliate with the
I.,W. A., no objection to such action was raised at the regular meet-
ings of the Local of August 8 or August 22. Notice of the special
meeting of August 29 and of the purpose thereof was posted by the
Local on the bulletin board in the Plywood plant, yet only one mem-
ber voted against the final severance of connections with the Carpen-
ters' Union. Only three of the persons who attended the first meet-
ing of New Carpenters' Local 2691 on September 4, 1937, had not
signed applications for membership in the I. W. A.
Sixty-three persons did sign a petition, after the meeting of August
29, stating that they wished to retain the A. F. of L. charter. How-
ever, the evidence indicates not only that several of the persons who
signed the petition were not members of the Local but that many of
the signatures were obtained within the respondent's plant by super-
visory officials of the respondent. Such petition cannot, therefore, be
considered an objection to the withdrawal of Carpenters' Local 2691
from the Carpenters' Union.
Following their installation of the I. W. A. charter the membership
of I. W. A. Local 2691 constituted in large part the previous mem-
bership of Carpenters' Local 2691. In addition, the officers of Car-
penters' Local 2691 were retained as the officers of I. W. A. Local
2691.
In considering the question of whether the respondent in the M.
and M. Wood Working case was justified in discharging, under the
terms of a "closed shop" contract requiring membership in Local
2531 of the Carpenters' Union, employees who refused to maintain
membership in a "reorganized" Local No. 2531 after the Local No.
2531 referred to in the contract had withdrawn from the Carpenters'
Union and affiliated with the I. W. A. as Local No. 102, we said :
It is not necessary to decide here, however, whether or not the
contract remained in force with the Plylock Local after the
change in name and affiliation. If the contract continued as a
valid contract with Local No. 102, as the successor of Local No.
2531, plainly the respondent had no authority thereunder to re-
quire membership in New Local No. 2531 as a condition of em-
ployment. On the other hand, if the contract expired as a result
of withdrawal of the Plylock Local from the Carpenters' Union,
the respondent likewise cannot rely upon the contract as justi-
fication for requiring membership in New Local No. 2531. In
either event 'the respondent's activities constitute unlawful dis-
crimination against its employees contrary to Section 8 (3) of
the Act.
DECISIONS AND ORDERS 957
Since the contract in the present case has expired , it is not neces-
sary to decide whether such contract remained in force with I. W. A.
Local 2691 after the change in name and affiliation.
We find that the respondent refused to retain at work after Sep-
tember 21 , 1937 , employees who fail to maintain membership in good
standing in New Carpenters ' Local 2691. By such conduct the re-
spondent has discriminated against such employees in regard to hire
and tenure of employment, thereby discouraging membership in a
labor organization.
The respondent, by means of the activities described above, has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above; have a close, intimate , and substantial
relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
In the M. and M. Wood Working case, because of the doubt in
which the legal rights and obligations of the parties under the con-
tract had been involved, we did not require the respondent to pay
its wrongfully discharged employees back pay. The respondent's
conduct in this case has been predicated upon a similar interpretation
of the contract of April 1937 . We shall not require it , therefore, to
pay the employees refused employment after September 21, 1937,
because of their failure to maintain membership in New Carpenters'
Local 2691, back pay for the period between their discharge and
the date of this decision.
Since the discharge of these employees constituted an unfair labor
practice, however, we shall, in accordance with our usual custom,
,order the respondent , upon application , to offer reinstatement to their
former or substantially equivalent positions to those employees who
were refused employment after September 21, 1937, because of their
refusal to maintain membership in New Carpenters ' Local 2691.
Further, we shall order the respondent to pay each of such employees
back pay from the date of his application for reinstatement to the
date of the offer of a position or placement upon the preferential list,
its required by the order of the Board explained below.
Such reinstatement shall be effected in the following manner : All
employees hired after September 21, 1937, shall, if necessary to
958 NATIONAL LABOR RELATIONS BOARD
provide employment for those to be offered reinstatement, be dis-
missed. If, thereupon, by reason of a reduction of force, there is not
sufficient employment immediately available for the remaining em-
ployees, including those to be offered reinstatement, all available posi-
tions shall be distributed among such remaining employees in accord-
ance with the respondent's usual method of reducing its force, with-
out discrimination against any employee because of his union affilia-
tion or activities, following a system of seniority to such extent as
has heretofore been applied in the conduct of the respondent's busi-
ness. Those employees remaining after such distribution, for whom
no employment is immediately available, shall be placed upon a pref-
erential list prepared in accordance with the principles set forth in the
previous sentence, and shall thereafter, in accordance with such list,
be offered employment in their former or in substantially equivalent
positions, as such employment becomes available and before other
persons are hired for such work.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following conclusions
of law :
CONCLUSIONS OF LAW
1. Local Union No. 2691, affiliated with the International Wood-
workers'of America, and Local Union No. 2691, affiliated with the
United Brotherhood of Carpenters and Joiners of America, are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of its employees, thereby discouraging member-
ship in a labor organization, has engaged in. and is engaging in un-
fair labor practices, within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and 'coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The afore-mentioned unfair labor practices are unfair labor
practices affecting commerce, within the meaning of Section 2 (6)
and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Smith Wood Products, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local Union No. 2691 of the Inter-
national Woodworkers of America or encouraging membership in
DECISIONS AND ORDERS 959
Local Union No. 2691 of the United Brotherhood of Carpenters and
Joiners of America, by (1) discharging or refusing to reinstate any
of its employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of
their employment, and (2) advising its employees that it desires them
to join, or refrain from joining, any labor organization;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon application, offer to those employees who were refused
employment after September 21, 1937, because of their failure to
maintain membership in New Carpenters' Local 2691, and have not
since been fully reinstated, reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges, dismissing, if necessary, all em-
ployees hired since September 21, 1937, in the manner set forth in
the section entitled "Remedy," above; and place those employees for
whom employment is not immediately available upon a preferential
list and offer them employment as it becomes available, in the manner
set forth in said section;
(b) Make whole the employees ordered to be offered reinstatement
for any loss of pay they will have suffered by reason of the respond-
ent's refusal to reinstate them, upon application, following the issu-
ance of this order, by paying to them, respectively, of a sum of money
equal to that which each would normally have earned as wages dur-
ing the period from five (5) days after the date of such application
for reinstatement to the date of the offer of a position or placement
upon the preferential list required by paragraph (a) above, less any
amount each will have earned during that period;
(c) Post immediately in conspicuous places throughout the Ply-
wood plant, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stat-
ing that the respondent will cease and desist in the manner aforesaid;
(d) Notify the Regional Director for the 19th Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.