Joe Hearin

National Labor Relations Board - Board Decisions

Mar 28, 1946

66 N.L.R.B. 1276 (N.L.R.B. 1946)

In the Matter of JOE ]-IEARIN, LUMBER and LUMBER AND SAWMILL
WORKERS UNION LOCAL No. 2795, A. F. OF L.
Case No. 19-C-1323.Decided March 28, 1946
Mr. John E. Hedrick, for the Board.
Mr. C. L. Irving, of Klamath Falls, Oreg., for the respondent.
Mr. J. G. Wolf, of Medford, Oreg., for the Union.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDETI
STATEMENT OF THE CASE
Upon a charge duly filed by Lumber and Sawmill Workers Union,
Local No. 2795, affiliated with the American Federation of Labor,
herein called the Union,' the National Labor Relations Board, herein
called the Board, by its Regional Director for the Nineteenth Region•
(Seattle, Washington), issued its complaint, dated January 11, 1945,
against Joe Hearin, Lumber, herein called the respondent,2 alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
together with notice of hearing thereon, were duly served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance that on or about March 15, 1944, a majority of the re-
spondent's employees in an appropriate unit placed their respective
signatures on cards designating the Union as their collective bargain-
ing agent ; that on or about the same date, the respondent and the
'Although tl4, charge was signed by Klamath Basin District Council, Lumber & Saw.
mill Workers Union, A . F of L., the record shows that it was filed by that organization
on behalf of the Union.
9 Erroneously referred to in the charge and in the complaint as "Joe Hearin Mills
At the heating , the Trial Examiner granted a motion of counsel for the Board , to which
there was no objection, to amend the formal papers to show the cori Oct name of the
respondent, as set forth above.
66 N. L. R. B., No. 150.
1276
JOE HEARIN, LUMBER 1277
Union entered into a written agreement for a cross-check of appro-
priate records of the respondent and the Union, to be made under
the direction and supervision of the Regional Director for the Nine-
teenth Region, pursuant to which agreement the respondent agreed
to recognize the Union as the exclusive collective bargaining repre-
sentative of the employees in the appropriate unit upon the advice
of the Regional Director that the Union had been so designated;
that on March 21, 1944, a cross-check was made in accordance with
the provisions of the agreement, and the Regional Director advised
the respondent that the Union had been designated and selected by
a majority of the employees in the unit as the exclusive bargaining
representative of the employees within the unit; that at all times
since March 21, 1944, the Union had been and still was the exclusive
collective bargaining representative of said employees; and that on
or about July 11, 1944, and at all times thereafter, the respondent
had refused, and was continuing to refuse, to bargain collectively
with the Union as such representative. On January 20, 1945, the
respondent filed its answer, in which it admitted certain allegations
of the complaint, but denied that it had engaged in the alleged unfair
labor practices, and affirmatively alleged, in effect, that the Union
was not, at the time of the alleged refusal to bargain, the repre-
sentative of the employees in the appropriate unit.
Pursuant to notice duly served upon the parties, a hearing was
held at Ashland, Oregon, on February 8, 1945, before Howard Myers,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board was represented by counsel, and the respondent and the
Union by representatives. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the close of the case, a motion
of counsel for the Board to conform the pleadings to the proof was
granted without objection. During the course of the hearing, the
Trial Examiner made rulings on other motions and on objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.
Thereafter, the Trial Examiner issued his Intermediate Report,
copies of which were duly served upon the respondent and the Union.
In the Intermediate Report, the Trial Examiner found that the re-
spondent had not engaged in the unfair labor practices alleged in the
complaint, and recommended that the complaint be dismissed. There-
after, counsel for the Board filed exceptions to the Intermediate
Report and a supporting brief, and the Union filed exceptions. None
of the parties requested oral argument before the Board, and none
was held.
1 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the exceptions filed by the counsel for
the Board and by the Union and, insofar as they are inconsistent with
the findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Joe Hearin is a private individual doing business under the trade
name and style of Joe Hearin, Lumber, a proprietorship licensed to
do business in the State of Oregon. The respondent's plant and office
are located at Ashland, Oregon, where it is engaged in the manu-
facture of pine and fir lumber products. All the raw materials used
by the respondent are obtained locally in the State of Oregon. Dur-
ing the year 1914, the respondent produced approximately 10,000,000
board feet of finished lumber, of which approximately 90 percent was
shipped to points outside of the State of Oregon, and approximately
35 percent was used in fulfillment of government contracts.
II. THE ORGANIZATION INVOLVED
Lumber and Sawmill Workers Union, Local No. 2795,, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events; the alleged refusal to bargain
In December 1943, the Union began organizational activities among
the respondent's employees. Thereafter, on or about January 20,
1944, J. G. Wolf, general representative of the Union, handed Joe
Hearin a letter, which stated that a majority of the respondent's em-
ployees had designated the Union as their bargaining representative
and that the Union was prepared to submit proof of such designation,
and asked whether the respondent would recognize the Union on
the basis of such proof. Hearin told Wolf that before granting recog-
nition he wanted to see the Union's proposed contract. Wolf replied
that the Union had no proposal to make at that time, but that "the
first thing that must be established would be to determine whether
[the Union was] the bargaining agency under the law." Wolf then
handed Hearin a copy of the Act and the Board's Rules and Regu-
lations, and Hearin stated that he wanted to consult his attorney.
JOE HEARIN , LUMBER 1279
At a union meeting on January 30, 1944, Wolf was instructed by
the membership to prepare a working agreement. Thereafter, he
tried on several occasions to reach Hearin, and finally had a con-
ference with him on or about February 10. At that time, Hearin
asked Wolf to take up with the respondent's attorney the question
of the recognition of the Union. A few days later, Wolf conferred
with the attorney, who informed him, in effect, that the respondent
desired "official certification from the Board" as proof of the Union's
claim. It was agreed that Wolf would prepare a letter to the Board,
to be signed by the Union and the respondent, regarding certification
on a cross-check. Wolf did not prepare such a letter, but on February
16, 1944, filed with the Board, on behalf of the Union, a petition for
investigation and certification of representatives. Thereafter, he
made several attempts to communicate with the respondent's attorney.
and when he was unable to do so, filed a charge with the Board
alleging that the respondent had refused to bargain collectively with
the Union. On or about March 15, 1944, however, the parties met
with a Board agent, a cross-check agreement was signed, and the
Union withdrew its charge.
The cross-check agreement provided, in substance, that all pro-
duction and maintenance employees of the respondent, excluding
supervisory and clerical workers, employed at the Ashland, Oregon,
operations of the respondent, constituted a unit appropriate for the
purposes of collective bargaining; that a cross-check of appropriate
records of the Union and the respondent should be made under the
direction and supervision of the Regional Director to determine
whether or not the employees in the agreed unit desired to he repre-
sented by the Union for the purposes of collective bargaining; that
the Regional Director should, upon completion of the cross-check,
issue a Report on Cross-Check ; and that if the Regional Director
should advise that the Union had been designated by the employees
in said unit , the respondent would recognize the Union as the ex-
clusive representative of said employees for the purposes of collective
bargaining. Pursuant to this agreement, the cross-check was made.
and on March 21, 1944, the Regional Director issued his Report on
Cross-Check in which he reported that of 50 employees in the agreed
unit, 32 had designated the Union, and accordingly found and deter-
mined that the Union had been designated and selected by a majority
of the employees in the agreed unit as .the exclusive bargaining
representative of the employees within the unit.
In the latter part of March, Wolf presented the Union's proposed
working agreement to Hearin ; and early in May, Hearin submitted
a counter-proposal to the Union. The counter-proposal was not ac-
ceptable to the Union's plant committee, and Wolf was instructed
1 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to accept it. On May 15, Wolf and Hearin again met and dis-
cussed the contract. At this meeting, according to Wolf, some pro-
visions of the respondent's counter-proposal were tentatively agreed
to, but "on some of them we were dead-locked. We got nowhere on
vacations or hours of work provisions." Thereafter, Wolf requested
the assistance of the United States Conciliation Service, and a meet-
ing of the parties with a conciliator was arranged for June 26.
In the meantime, the respondent's force had been reduced by ap-
proximately 50 percent from the time of the cross-check. This reduc-
tion was due in part to the elimination of the night shift,3 and in
part to the fact that some employees had voluntarily left the re-
spondent's employ because the West Coast Lumber Commission had
ordered a "roll back" of wages in certain classifications? On or
about Time 22, 1944, two of the respondent's employees submitted to
Rearm a petition. signed by 16 of the 25 employees then in the re-
spondent's employ, which read as follows :
We the under Sign wish to drop all A. F. L. union rights.
On June 26, 1944, the meeting with the conciliator took place. At
this meeting, according to Wolf, the parties "got nowhere with nego-
tiations on the working agreement," and Hearin, after referring to
the petition, described above, stated that "he was considering whether
or not he should deal with [the Union] any further." He then re-
quested and was given 1..5i days in which to consider the matter and
notify the Union of his decision. On July 14, 1944, he wrote Wolf
as follows :
At our meeting on June 26, 1944, with Mr. Louis Ziman of the
Conciliation Service present. I stated that I would give you my
decision regarding further contract negotiations on or before
July 15, 1944.
In March of this year, a representative of the National Labor
Relations Board cross checked against the Company's payroll the
names of employees of this company who had signed membership
cards in your organization . Since it appeared obvious that a
majority of the employees desired to be represented by your
organization, the company entered into negotiations with the
union on a working agreement. The working agreement has not
been completed to date.
Since negotiations were entered into, the company has found
it necessary to curtail the operation by closing down the night
shift and, at the present time, approximately 25 men are em-
ployed.
$ when the night shift was eliminated , it was the respondent 's intention to discontinue
it permanently However, it was reestablished in October or November 1944.
4 The "roll back" was ordered and put into effect early in January 1944 The respond-
ent spent considerable time thereafter in an unsuccessful attempt to have the Commis-
sion revise its order.
JOE HEARIN, LUMBER 1281
We are now in receipt of a petition , dated June 22, 1944, and
signed by 16 employees of the company. The petition purports
to express the desire of the signers to "drop all A. F. of L. Union
rights" . We must take the position, therefore, that to continue
negotiations with your organization would constitute a breach
of faith with our employees. A majority of them have by volun-
tarily signing the above mentioned petition, indicated their de-
sire not to be represented by your organization.
This company has no objection to any employee joining, or
continuing membership in, any union or organization, nor will
such affiliation affect his employment with the company. In the
event that the National Labor Relations Board feels an election
is necessary to determine the wishes of the majority of our em-
ployees, the company will enter into a consent election agreement,
if the I. W. A.-C. I. 0. appears on the ballot or will formally
indicate to the National Labor Relations Board that it has no
interest in so appearing.
A few days later, according to Wolf's testimony, he met I learin on
the street and asked him whether "he could foresee anything that
could cause him to change his position from that stated in his letter,
and he said lie couldn't think of anything that would change his
position ." Wolf reported Hearin's decision to the Union, and on in-
structions from the Union, prepared the charge in the present pro-
ceeding, alleging that the respondent had refused to recognize and
deal with the Union as the bargaining representative of its employees.
By the time of the hearing before the Trial Examiner in February
1945, the night shift had been resumed, and there were approxi-
mately 45 employees in the respondent's employ, only about 18 of
whom had been on the respondent's pay roll at the time of the card
check in March 1944.
B. Conclusion
Upon the above facts, we agree with the Trial Examiner's con-
clusion that the respondent has not engaged in unfair labor practices
within the meaning of Section 8 (1) and (5) of the Act.
As previously stated. the Regional Director, in his Report on
Cross-Check, issued March 21, 1944, found that the Union had been
duly designated as the exclusive bargaining representative of the re-
zpondent's employees in an agreed unit.-' The respondent did not
R No question has been raised as to the appropuateness of the unit agreed on for the
purpose of the consent cross -check We therefoie find, as did the Trial Examiner, that
the respondent 's production and maintenance eoiployees, exclusive of supeivisorv and
clerical workers, at all times material herein constituted, and that they non constitute.
a unit appropriate for the purposes of colhetive ham gaining, within the meaning of
Section 9 (b) of the Act.
686572--46-82
1 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then, and does not now, contest the validity of this finding as of the
date thereof. On the contrary, it thereafter recognized the Union and
entered into bargaining negotiations with it, as a result of which
some provisions of a contract were tentatively agreed to. We agree
with the Trial Examiner that there is nothing in the record to indi-
cate that in these negotiations the respondent acted otherwise than
in good faith" Moreover, although it appears that some provisions
of the proposed contract were still in dispute at the time of the final
meeting of the parties on June 26, 1944, we are not convinced, on
the record before us, either that an impasse had been reached or that
the respondent would have refused to continue negotiations had cir-
cumstances not arisen which raised a question as to the continued
representative status of the Union.
Admittedly, however, the respondent, on July 14, 1944, refused to
continue negotiations with the Union, on the ground that a majority
of its employees had, by signing a petition, indicated their desire not
to be represented by the Union. In support of this position, the
record establishes that the number of the respondent's employees
had been reduced by 50 percent from the time of the cross-check in
March, and that 16 of the 25 employees remaining in the unit had
signed a petition, dated June 22, 1944, and submitted to the respondent
before it refused to bargain with the Union, stating that they wished
to "drop all A. F. L. union rights."" There is no evidence that the
respondent had engaged in unfair labor practices responsible, either
in whole or in part, for the reduction in force or for the prepara-
tion and circulation of the petition. The crucial question is whether,
under these circumstances, the respondent can be heard to question
the prior designation of the Union as the exclusive bargaining repre-
sentative of the employees in the unit, and thus justify its conduct in
discontinuing negotiations with the Union.
We have consistently held that when a union has been certified,
after a Board-directed election, as the duly designated bargaining
representative of employees in an appropriate unit, or when its repre-
sentative status has been determined by means of a consent election
conducted by the Board, its status as such representative continues
for a reasonable time thereafter, normally a year; and that during
that time neither a substantial turn-over among the employees in the
bargaining unit, nor an attempt on their part to revoke, by means
of a petition, their designation of the representative, is sufficient to
• We also note that the respondent 's good faith in these negotiations , all of which
took place between March 21 and June 26, 1944, is not put in issue by the complaint,
which alleges a refusal to bargain "on or about July 14, 1944 , and at all times there-
after."
T We find , as did the Trial Examiner , that the language of the petition sufficiently
evinces a desire on the part of the signatories thereto to revoke the Union 's authority
to act as their representative.
JOE HEARIN, LUMBER 1283
justify an employer in refusing to bargain with the representative.8
Counsel for the Board contends that the same rule should apply when
the determination of representatives has been made on the basis of a
consent card check. We do not agree.
As we have previously stated, "The fruition of collective bargain-
ing in an agreement often requires negotiations lasting several
months. It is therefore essential to the effectuation of the Act that
the representative status, once established, be vested with a substan-
tial degree of stability." 9 We have accordingly held that when that
status has been established in an election by secret ballot conducted
under the auspices of the Board in accordance with express statutory
provisions, a method of determination which leaves no room for doubt
as to the employees' true desires, repudiation of their selection can be
established only through the medium of an equally probative tech-
nique.10 We do not feel, however, that a card check reflects employees'
true desires with the same degree of certainty as such an election."
Accordingly, in the circumstances of this case, where there is clear and
cogent evidence that a majority of the employees within the unit no
longer desired representation by a union whose representative status
had been determined by a card check, and a complete absence of evi-
dence that the respondent interfered with the employees' statutory
rights, we are of the opinion that the respondent was justified in
questioning the Union's majority status and in good faith refusing
to continue negotiations for this reason . Accordingly, we find that
the respondent has not refused to bargain with the Union, within
the meaning of Section 8 (5) of the Act.
Having found that the respondent has not engaged in the unfair
labor practices alleged in the complaint, we shall dismiss the com-
plaint in its entirety.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
s See , for example , Matter of Appalachian Electric Power Co., 47 N. L. It. B. 821,
enf'd. 140 F . ( 2d) 217 (C. C. A. 4), and Matter of The Century Oxford Manufacturing
Corporation, 47 N. L. It. B. 835, enf 'd. 140 F. (2d) 541 (C. C. A. 2).
" Matter of Appalachian Electric Power Co, 47 N. L. It. B. 821.
Matter of The Century Oxford Manufacturing Corporation, 47 N. L. It. B. 835.
n For this reason , the Board , in formal representation proceedings , almost invariably
resorts to an election by secret ballot as the means of ascertaining which union , if any,
the employees desire to designate as their collective bargaining representative. See
Ninth Annual Report of the National Labor Relations Board, p. 28. Statistics show,
moreover , that consent cross -checks are used much less frequently than either Board-
ordered or consent elections as the means of determining bargaining representatives
Thus, during the fiscal year ending June 30, 1945, there were 1554 Board-ordered elec-
tions, 2887 stipulated or consent elections, and only 478 stipulated or consent card
checks.
128 1^1.CIS1l1y^ OF NATIONA1. L.)LB OP RELATIONS BOARD
CONCLUSIONS OF LAW
1. The operations of the respondent, Joe Hearin, Lumber, Ash-
land, Oregon, occur in commerce, within the meaning of Section 2 (6)
of the Act.
2. Lumber and Sawmill Workers Union, Local No. 2795, affiliated
with the American Federation of Labor, is a labor organization, with-
in the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices with-
in the meaning of Section S (1) and (5) of the Act, as alleged in
the complaint.
ORDER
Upon the basis of the foregoing findings of fact, conclusions of
law, and the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board orders that the complaint against the respondent, Joe Hearin.
Lumber, Ashland, Oregon, be, and it hereby is dismissed.