Joe Hearin

National Labor Relations Board - Board Decisions

May 21, 1946

68 N.L.R.B. 150 (N.L.R.B. 1946)

In the Matter .of JOE HEARIN, LUMBER and LUMBER AND SAWMILL
WORKERS UNION LOCAL No. 2795, A. F. OF L.
Case No. 19-C-1323
SUPPLEMENTAL DECISION
May 21, 1946
On March 28, 1946, the National Labor Relations Board , herein
called the Board, issued a Decision and Order in the above-entitled pro-
ceeding,) in which it held that the respondent, Joe Hearin, Lumber,
Ashland, Oregon, had not engaged in unfair labor practices within the
meaning of Section 8 (1) and (5) of the Act, as alleged in the com-
plaint, and ordered that the complaint be dismissed. Thereafter, on
April 25, 1946, the Regional Attorney for the Nineteenth Region filed
a motion with the Board, in which he requested that the Board recon-
sider said Decision and Order and issue a Supplemental Decision and
Order either requiring the respondent to bargain with Lumber and Saw-
mill Workers Union Local No. 2795, A. F. of L, herein called the
Union, or, in the alternative, clarifying the intent of the Board with
respect to the cross-check procedure presently used by the Regional
Offices. Thereafter, the respondent filed a statement in opposition to the
motion of the Regional Attorney. Except to the extent indicated below,
the motion is hereby denied.
As stated in our original decision, we do not believe that the type of
card check conducted in this case in 1944 reflected the employees' true
desires with respect to representation with the same degree of certainty
as would an election by secret ballot conducted under the auspices of
the Board in accordance with express statutory provisions. Accordingly,
where a determination of representatives was made solely on the basis
of such a card check, under our former procedure, and no additional
measures were taken to insure that the card check reflects the employees'
true choice, we are not inclined to accord to such determination the con-
clusive effect normally given to a certification of representatives after a
Board-directed election or a determination of representatives based on a
consent election.
' 66 N. L. R B 1276
68 N. L. R. B., No. 21.
150
JOE HEARIN, LUMBER 151
The Regional Attorney contends, however, that under the procedure
presently followed by the Regional Offices of the Board in cases of cross-
check agreements, adequate safeguards are provided to protect employees
in the exercise of their choice of a bargaining representative. Under
this procedure, if it appears, as a result of the cross-check, that the
union involved has been designated by a majority of the employees in
the agreed unit, notices to that effect are posted on the employer's premises
for a period of 5 days, during which the employees or any interested
party can show cause to the Regional Director why he should not issue
a Report on Cross-Check finding that the union has been designated and
selected as the exclusive representative of the employees in the unit. At
the conclusion of the 5-day posting period, if the Regional Director is of
the opinion that no valid cause to the contrary has been shown, he issues
his Report on Cross-Check, finding and determining that the union has
been so designated and selected.
We perceive no valid reason for drawing any distinction between the
procedure outlined above and our election procedures as a method of
establishing employees' true desires. Had our present procedure been
followed in the instant case, we might well have held that the Regional
Director's determination that the Union was the exclusive representa-
tive of the respondent's employees was entitled to the same probative
value as a Board-conducted election. However, the record does not in-
dicate, nor does the Regional Attorney contend, that this procedure was
followed in the present case, or that interested parties were afforded any
opportunity to challenge the results of the cross-check before the Regional
Director made his finding. On the contrary, the Agreement for Cross-
Check entered into on March 15, 1944, by the respondent and the Union
provided merely that:
The Regional Director shall, upon the completion of the cross-
check, issue a Report on Cross-Check. If the Regional Director
advises that the Union has been designated by the employees in
[the agreed] unit, the Employer will recognize the Union as the
exclusive representative of such employees for the purpose of collec-
tive bargaining.
Pursuant to said agreement, the Regional Director, on March 21, 1944,
issued his Report on Cross-Check, in which he announced the results of
the cross-check and found and determined 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.
In the circumstances of this case we perceive no grounds for reversing
our former decision that in view of the clear and cogent evidence that
in June 1944 a majority of the employees in the unit no longer desired
representation by the Union and the complete absence of evidence that
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent had interfered with the employees' statutory rights, the
respondent was justified in questioning the Union's majority status and
in good faith refusing to continue negotiations for this reason, even
though less than 4 months had elapsed since the time of the cross-check.
Our decision is, however, limited to the facts of this case, and should
not be construed as holding that a determination of representatives based
on a cross-check may not, with the safeguards provided in our present
procedure, be equivalent to a determination based on a Board-conducted
election.