Northern Crate & Lumber Co.

National Labor Relations Board - Board Decisions

Jun 1, 1953

105 N.L.R.B. 218 (N.L.R.B. 1953)

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director concluded that the objections filed by
Local 294 were in the nature of post-election challenges, and
he recommended that the Board overrule the objections and
certify the Petitioner as the collective -bargaining representa-
tive.
In its exceptions , Local 294, while not controverting the
facts -found by the Regional Director , contends that the refusal
of the Employer to permit a payroll check more than 2 hours
in advance of the election was discriminatory and deprived
the Union of a material right, necessitating that the election
be set aside.
Assuming that Local 294 was unable to determine precisely
who the eligible voters were in the 2 hours before the election,
it was incumbent upon the Local , through its observer, to
challenge any and all voters as to whose eligibility it had any
doubts.3 It is too late to raise the issue of eligibility now .4 We
will accordingly overrule the exceptions.
Our Decision and Direction of Elections herein providedthat
the employees in voting groups ( 3) and ( 4) set forth therein
would be taken to have indicated their desire to constitute a
single unit if a majority in each group voted for the same labor
organization . Inasmuch as a majority in each of these voting
groups voted for the Petitioner , we find that a unit comprising
the employees in voting groups ( 3) and ( 4) is appropriate for
the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act and will certify the Petitioner as the
representative of the employees in that unit.
[The Board certified Bonded Drivers and Mechanics Inde-
pendent Union as the designated collective -bargaining repre-
sentative of all truckdrivers and mechanics employed by the
Employer at its Rennselaer terminal, excluding all other em-
ployees, guards , and supervisors as defined in the Act.51
3 The number of voters actually challenged by any party was only seven, which was not
sufficient to affect the results of the election. We find it unnecessary, therefore, to rule on
the challenged ballots.
4N L R B v A. J Tower Co., 329 U S. 324
5 The Regional Director has already certified the Petitioner as the representative of the
employees (a) in voting group 1, and (b) in voting group 5, and has certified the results of
the election in voting group 2
NORTHERN CRATE & LUMBER COMPANY and LOCAL 12-15,
INTERNATIONAL WOODWORKERS OF AMERICA, CIO and
FRANK SUDER, RECEIVER FOR NORTHERN CRATE &
LUMBER COMPANY.' Case No. 18-CA-325. June 1, 1953
DECISION AND ORDER
On March 14, 1952, Trial Examiner George A. Downing
issued his Intermediate Report in the above - entitled pro-
i After the Intermediate Report was issued in this proceeding the Respondent was adjudged
insolvent under the laws of the State of Wisconsin. Frank Suder, the duly appointed receiver,
thereupon was permitted to intervene as a party respondent.
105 NLRB No. 22.
NORTHERN CRATE & LUMBER COMPANY 219
ceeding, finding that the Respondent had engaged in and was
en aging in certain unfair labor practices in violation of Section
8 (a) (1) and ( 5) 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 further found that the Respondent's con-
duct was not violative of Section 8 (a) (3) of the Act and rec-
ommended that the complaint be dismissed in this respect.
Thereafter , the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
In his brief , the General Counsel stated that it was dis-
covered after the Intermediate Report was issued that the
charging party, Local 12-15, International Woodworkers of
America, CIO, had a sublocal in the plant which has never
achieved compliance with the filing requirements of the Act.
Based upon this admission , the Respondent filed a motion to
dismiss the complaint in its entirety . However , as the original
record was silent concerning the organization and functions of
the Sublocal, the Board on October 23, 1952, remanded the
proceeding to the Regional Director to afford the Respondent
and the General Counsel an opportunity to produce such evi-
dence and advance arguments concerning the necessity of the
Sublocal ' s compliance with the filing requirements of the Act.
On January 7, 1953, Trial Examiner Downing issued a
Supplemental Intermediate Report , a copy of which is attached,
recommending that the entire complaint be dismissed because
of the Sublocal ' s noncompliance . Thereafter , exceptions and a
supporting brief were filed by the charging party.'
The Board has reviewed the rulings made by the Trial Ex-
aminer at both hearings and finds that no prejudicial error
was committed . The rulings are hereby affirmed . The Board
has considered the Intermediate Report , the Supplemental
Intermediate Report, the exceptions and briefs , and the entire
record in the case, and hereby adopts the findings, con-
clusions , and recommendations which the Trial Examiner made
in the original and Supplemental Intermediate Reports insofar
as they are consistent with this Decision and Order.
1. At the supplemental hearing it was demonstrated that the
constitution of the Woodworkers contains no express authority
for the establishment of sublocals; however, they are allowed
to exist and operate as functioning organizations as a matter
of policy . Further, the record now establishes , as the Trial
Examiner has found in his Supplemental Intermediate Report,
2 After the Supplemental Intermediate Report was issued the charging party also moved,
in the alternative, that: (I) The Board reverse the Supplemental Intermediate Report and
hold that the Sublocal was not required to comply with the filing requirements of the Act;
or (2) the Board allow the Sublocal to achieve compliance within 30 days from the date of
any further Board order; or (3) the Board again remand the proceeding to allow the charging
party an opportunity to adduce evidence and arguments concerning the necessity for com-
pliance by the Sublocal. The first two of these motions are denied for reasons set out below.
The third is denied because, contrary to the charging party's contention, there is no per-
suasive evidence in the record that it was denied the opportunity for full participation in the
remanded hearing
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Sublocal 12-15 enjoys substantially the same autonomy as
a local union . Thus its members at the Respondent ' s plant
hold regular meetings and elect their owl officers . The Sub-
local's officers, with the full knowledge of Local 12-15, nego-
tiate contracts with the Respondent . Sometimes negotiations are
carried on with a representative of Local 12-15 present, but
on occasion the officers of the Sublocal have done all of the
negotiating on their own and have signed contracts in the name
of the Local without the signature of any local officer . In these
circumstances , and upon the entire record , we find that the
Sublocal is a labor organization within the meaning of the Act.
However , this holding does not compel us to find , as has the
Trial Examiner, that the complaint is invalid and should be
dismissed in its entirety because the Sublocal has never com-
plied with the filing requirements contained in Section 9 (f),
( g), and (h) of the Act.
The Act does not require compliance by labor organizations
subordinate to a charging party,' except where it has been
proved that the charging party filed a charge on behalf of its
subordinate as a subterfuge to circumvent the Act ' s filing
requirements .' Here the Trial Examiner has found that there
was no showing that Local 12-15 was "fronting" for its Sub-
local. We agree. Accordingly we find no inherent defect in the
complaint itself.'
We shall, however , dismiss the complaint insofar as it
alleges that the Respondent violated Section 8 ( a) (1) and (5) of
the Act by refusing to bargain with Local 12-15, and by granting
unilateral wage increases in September and December 1951.
The record establishes that Sublocal 12-15 was active among
the Respondent ' s employees , both before the 1950 representa-
tion proceeding in which the Local was certifiedand after cer-
tification of the parent organization . Under well - established
principles of the Board, as the Sublocal has never complied
with the filing requirements of the Act, neither it nor its
parent was entitled to appear on the ballot in that election, or
to be certified.' Because the certification resulting from that
election was the sole evidence of the majority status of the
charging union in this proceeding, we find , as we did in Sunbeam
Corporation,? that the Respondent was never under a duty to
bargain with Local 12-15.
2. For the reasons set out in his Intermediate Report, we
agree with the Trial Examiner that the strike of June 22, 1951,
was in violation of the no - strike clause inthe contract between
the Respondent and Local 12-15, and that the Respondent's
subsequent discharge and refusal to rehire the employees
named in the complaint was not , therefore , violative of the Act.
Accordingly we adopt the Trial Examiner's recommendation,
3See United States Gypsum Company, 100 NLRB 1100.
4See Wood Parts, Inc., 101 NLRB 445; N. L R. B. v. Happ Brothers, 192 F 2d 195 (C. A. 5);
N. L. R B. v. Alside, 192 F. 2d 678 (C. A. 6)
SSee Lima Electric Products, Iac., 104 NLRB 338.
6 Sunbeam Corporation, 98 NLRB 525.
lSee footnote 6, supra.
NORTHERN CRATE & LUMBER COMPANY 221
and shall dismiss the complaint insofar as it alleges that the
Respondent has violated Section 8 (a) (3) of the Act.
3. We also agree with the Trial Examiner's holding in the
Intermediate Report that the Respondent violated Section 8 (a)
(1) of the Act by attempting to instigate and foster a company
union, and by sponsoring, instituting, and circulating decertifi-
cation petitions. Although we have here determined that Local
12-15 was never properly certified, these actions of the Re-
spondent nevertheless constituted a violation of Section 8 (a)
(1), because this represented an attempt on the part of the
Respondent to interfere with the rights guaranteed employees
by Section 7 of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Northern Crate & Lumber Company, Eagle River,
Wisconsin , its officers , agents, successors , assigns, and Frank
Suder, the duly appointed receiver, shall:
1. Cease and desist from:
(a) Attempting to instigate and foster a company union among
the employees, or instituting, sponsoring, and circulating de-
certification petitions.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization, to farm, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes
of collective bargaining and other mutual aid and protection,
or to refrain from any and all such activities except to the
extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Post at the Respondent's plant at Eagle River, Wisconsin,
copies of the notice attached hereto marked "Appendix A." 8
Copies of said notice, to be furnished by the Regional Director
for the Eighteenth Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent
immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by
any other material.
8 In the event that this order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
Z22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Eighteenth Region
in writing within ten (10) days from the date of this Order what
steps it has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges that the Re-
spondent violated Section 8 (a) (3) and 8 (a) (5) of the Act or
that it violated Section 8 (a) (1) of the Act by granting uni-
lateral wage increases.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT attempt to instigate or foster a company
union among our employees nor will we institute or cir-
culate any decertification petition.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their right to self - organization , to form, join , or assist
any labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain
from any and all such activities except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
NORTHERN CRATE & LUMBER COMPANY,
Employer.
Date .................. By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations Act as
amended (61 Stat. 136), was heard at EagleRiver, Wisconsin, on January 21, 22, and 23, 1952,
pursuant to due notice to all parties.Thecomplaint, issued on January 15, 1952, by the General
NORTHERN CRATE & LUMBER COMPANY 223
Counsel of the National Labor Relations Board,i and based on charges filed by the Union
and served on Respondent, alleged in substance that Respondent had engaged in unfair labor
practices proscribed by Section 8 (a) (1), (3), and (5) of the Act by: (1) Refusing on or about
April 4, 1951, 2 and since, to bargain with the Union which had been certified by the Board'
on or about June 2, 1950, as the exclusive representative of Respondent's employees in
an appropriate unit, in that, among other things, Respondent had refused to bargain con-
cerning the issue which caused a strike on June 22, had solicited individual strikers to
return to work, had sponsored, circulated, and filed with the Board 2 separate decertification
petitions, and had granted unilateral wage increases to its employees; (2) discharging, dis-
criminatorily, on June 25, 69 named employees (who had gone on strike because of Respond-
ent's unfair labor practices), and refusing after July 30 to reinstate 22 of them, and refusing
to reinstate 20 others until specified dates; and (3) engaging from April 1, 1951, in specified
acts of interference, restraint, and coercion.
Respondent, by its answer, denied the commission of the alleged unfair labor practices.
Respondent admitted the certification of the Union but denied that the Union had, since on or
about June 25, 1951, represented a majority of the employees. It admitted the discharges and
the refusals to reinstate, but averred that the cause was the participation by the employees
in the strike on June 22 in violation of a no-strike clause in an existing contract, and that
the employees had also lost their employee status by going out on strike within the 60-day
period provided in Section 8 (d) (4) of the Act. The answer also averred that the Union "was
not entitled to any relief" because it had intimidated and coerced Respondent's employees
in violation of Section 8 (b) (1) of the Act, and because it had violated Section 8 (b) (3) of the
Act by causing the strike to compel the Respondent to agree to changes in an existing lawful
agreement, in violation of Section 8 (d) (4).
All parties were represented at the hearing by counsel or by representatives, and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions.
Various motions were made and disposed of during the hearing, except that rulings were
reserved on certain motions to dismiss portions of the complaint and answer. The latter
motions are disposed of by the findings herein. Oral argument was waived. Briefs have
been filed by the General Counsel and the Respondent.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Wisconsin corporation with its principal office, place of business, and a
plant at Eagle River, where it is engaged in the manufacture of wooden crates and pallets.
During the calendar year 1951, Respondent made purchases of raw materials aggregating a
sum in excess of $250,000, of which amount approximately 25 percent was from points out-
side the State of Wisconsin. During the same period Respondent made sales of crates and
pallets aggregating more than $500,000, of which approximately 50 percent was to points
outside the State of Wisconsin. It is therefore concluded and found that Respondent is engaged
in interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to membership employees of Respondent.
III, THE UNFAIR LABOR PRACTICES
A. The evidence
1. Introduction ; the contract ; synopsis of main events and issues
Respondent 's president was Robert K. Ashton and its vice president was Frank Suder.
Other supervisors were Elmer Spaeth, Robert Ashton , Jr., and Lester Lena , as was Oliver
i The General Counsel and his representatives at the hearing are referred to herein as the
General Counsel and the National Labor Relations Board as the Board The above-named
Respondent is referred to as Respondent and Company, and the charging union, above named,
as the Union
2All events occurred in 1951 unless otherwise specified
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brenwall until the occurrence of the strike . The Union 's representatives were Edward
Lambert , international representative , Oliver J, Rasmussen , president of District 12 of
the International , James Skalecki , preside;; of Sublocal 12-15 of Respondent 's employees
until May 15 , and George jolly, president of the Sublocal after May 15 . The Union was
represented in addition , during various grievance and negotiation meetings , by a commit-
tee of 4 to 5 members.
Following representation proceedings in Case No . 18-RC-661 , the Board , on June 2, 1950,
certified the Union as the representative of Respondent 's employees . A contract was entered
into on July 28, 1950, to be effective until July 27 , 1951 , and from year to year thereafter,
with a 60-day termination or reopening clause . The contract contained a union -shop clause,
which had followed due certification by the Board . The contract also established a formal
grievance procedure , with a provision for arbitration as its final step as follows:
(4) In the event that an agreement satisfactory to both parties cannot be reached in
relation to a grievance or in relation to the interpretation of any provision of this con-
tract, after resort is had to the steps above , the matter shall be submitted to arbitration.
The arbitration board shall consist of one person to be selected by the Company and one
person to be selected by the Union , said two persons to agree upon a third member.... In
all arbitrations , the decisions rendered by the arbitration board shall be final and binding
on both parties....
The contract also contained the following no-strike clause:
Throughout the life of this contract there shall be no stoppage or partial stoppage of
work by employees for any cause and no boycott of any kind unless the Company refuses
to arbitrate an arbitrable dispute or , after abritration , refuses to abide by the decision
of the arbitrator . Reciprocally , the Company agrees there shall be no lockout.
In view of the provisions of the "Labor Management Relations Act, 1947," it is stipu-
lated and agreed that if any of the employees strike in violation of the provisions of this
contract the Company will not avail itself of its right under said act against the Union,
provided (a) the Union has not authorized such a strike (b) the Union promptly denounces
publicly such strike (c) the Union and its officers and agents use prompt, honest and
diligent efforts to end such a strike.
In the event of a disagreement between the Union and the Company as to whether the
Union has carried out its obligations under (a), (b), and (c) above , such dispute shall be
submitted to arbitration as provided in the contract.
The Company will not cause or sanction any undue or unfair delays in the handling or
settling of grievances , and will not lock out the employees covered by the agreement on
account of any controversy with the employees respecting the provisions of the Agree-
ment....
In January 1951 Respondent laid off Helen Anderson and Helen Holowinski . A grievance was
filed and carried to arbitration . The arbitration board issued its decison on March 13, in
which it found against the Company on the issues , but did not fix the amount of back pay
to which the claimants were entitled . The Respondent thereafter asserted inability to comply
pending "an interpretation " or a determination of the amounts due.
On May 21 the Sublocal gave notice of its desire to reopen the contract , and negotiations
were begun in June . On June 22 a spontaneous or wildcat strike occurred because of employee
resentment at Respondent 's failure to pay the arbitration award. Respondent immediately
denounced the strike as in violation of the contract , but the Union took the position that the
strike was justified because of Respondent 's refusal to comply with the arbitration award.
On June 25 Respondent discharged the striking employees because of their violation of the
no-strike clause. On July 20 the arbitration board prepared computations of the amounts due
the two claimants , and Respondent paid the awards on or about July 27 . On July 28 the Union
formally terminated the strike and notified the Respondent the employees would return to
work on July 30. When the strikers applied on that date they were given applications for
reemployment and treated as new employees.
In July and August two separate decertification petitions were circulated in the plant, both
of which were subsequently dismissed by the Regional Director . On or about September 15
and December 3, Respondent granted general wage increases without consulting the Union.
The bulk of the issues litigated at the hearing related to the strike ; they turn on the basic
question whether the strike was in violation of the contract or whether it was justified there-
under because of Respondent 's failure to comply with the arbitration award. The determi-
NORTHERN CRATE & LUMBER COMPANY 225
nation of that question will resolve the issues concerning the discharge and the refusal to
reinstate striking employees . Other issues are whether Respondent refused to bargain , whether
it sponsored the decertification petitions , whether it attempted to foster the formation of a
company union , and whether it engaged in interrogation and other acts of interference,
restraint , and coercion . Respondent offered no evidence to support the answer 's averments of
intimidation and coercion of employees by the Union.
Since the major issues revolve around the strike , the evidence will be first summarized
which relates directly to the causes of the strike and its continuation , before turning to
evidence which the General Counsel relies upon, independently thereof, to establish other
alleged unfair labor practices.
2. The arbitration ; other events preceding the strike
Arbitration was resorted to in March after the earlier grievance steps had failed to ac-
complish a solution of the Anderson -Holowinski grievance. 3 The Union appointed as its mem-
ber (without objection by Respondent ) Robert D. Martinson , a local attorney who had repre-
sented the Union from time to time including the negotiations for the first contract. Re-
spondent named Joseph Trinka , and thereupon Martinson and Trinka selected as the third
member Frank W. Carter, Jr., another local attorney who was currently representing Re-
spondent in connection with an RFC loan . Carter divulged his representation of the Company
on the RFC matter, but Martinson nevertheless agreed that Carter should act as an arbi-
trator.4
The arbitration hearing was held on March 9 in Martinson 's office, with Ashton, Sr.,
representing Respondent , and Skalecki the claimants . Though no chairman was named,
Martinson acted as chairman and later prepared the decision of the board . The arbitrators
had agreed , after -discussion among themselves , that the issue which they were to decide was
whether the claimants had been improperly laid off, and that it was not within the province
of the board to fix or determine the amount of the award in the event the basic issue was
decided against the Company . Skalecki testified that before the hearing opened Martinson
explained that the only decision the board would make was whether the layoff was according
to the contract , and that if the Union won. the Company would be liable for the back pay of the
two employees ; that Martinson also "suggested" to Ashton that if the claimants had worked
elsewhere , or if they had received unemployment compensation , such earnings or payments
could be deducted , and that Ashton agreed . In any event , neither Ashton nor Skalecki requested
or suggested that the board determine the amount , and the arbitrators accordingly took no
evidence on such items , for example , as interim earnings, wilful loss of earnings if any,
illness during layoff, unemployment benefits , or absenteeism , though the latter factor was
relied upon by Respondent as justifying the layoff.
On March 13 , the board issued its decision , finding against the Company on the merits of
the layoff issue , and concluding:
The Board therefore awards totheclaimantssuchrights as they have by law and agree-
ment in consequence of such layoff as found and determined.
Approximately a week later, during a grievance meeting , Skalecki inquired of Ashton
whether the award would be paid , and Ashton replied that he had submitted the matter to his
attorney (and brother ), R. W. Ashton , and that the attorney 's decision would be final. The
attorney's opinion was contained in his letter of March 21 , which need not be set forth in
full. The first paragraph analyzed thedecisionon its merits and concluded that it was correct.
Succeeding paragraphs pointed out the inadequacies of the award with respect to the determi-
nation of the amount due and advised that:
31t is unnecessary to explore the events preceding the first arbitration award. Respondent
defended the layoff at all stages of the grievance procedure, including the arbitration hearing,
on the ground that the high percentage of absenteeism by Anderson and Holowinski rendered
them incapable of performing available work and that Respondent was therefore entitled to
disregard strict seniority.
4 The fact that Martinson and Carter were employed at times as attorneys by the Union and
Respondent, respectively , did not affect their competency to act as arbitrators 6 C. J S 186,
Arbitration and Award, sec. 46. Nooblectionwasmade to either , and if made, would have been
waived by submitting the case to them, with knowledge of the facts Ibid.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In awarding back pay, the average earnings of the employees prior to discharge for a
normal workweek should be used, and deducted therefrom should be any earnings of the
employees for the period, but unemployment compensation benefits are not considered
as earnings and not to be deducted from a back-pay award (Pennsylvania Furnace &
Iron Company, 13 NLRB 49). If the employee was confined at home by illness during the
period, she is not to be repaid for the period of confinement. If the employee accepted
permanent employment elsewhere with equal or greater pay, no back-pay should be
awarded from the date of the acceptance of such other permanent employment.
The letter concluded that it was unfortunate that the Board did not receive testimony as
to interim earnings and make some actual determination of amounts to be deducted , and that:
Unless this matter can be satisfactorily negotiated with the claimants, it may be neces-
sary to reconvene the Board for this purpose, but this involves expense to both sides, and
you should be able to satisfactorily adjust the matter.
Ashton later read to Skalecki and to the sublocal committee only the first paragraph of the
above letter, and thereafter took the position that it was necessary, in order for Respondent
to comply with the award, for the arbitration board to furnish him with the amount. Carter
testified that on two occasions prior to the strike Ashton requested him to get the board back
together and have it inform him oftheexact amount, or the method of determining the amount,
that the Respondent should pay. Carter later discussed the matter with Martinson, whose
position as finally stated was that the board had done its job and had been dissolved, and that
he would not agree to proceed on any basis other than the reconvening of the full board at
the request,of both the Union and the Company.5
Skalecki testified that as a result of one discussion with Ashton he agreed to and did con-
sult with Martinson about having the arbitrators fix the amount of their award. Martinson's
position as stated to Skalecki was that the issue involved in the arbitration did not include
the question of the amounts; that since the board had taken no evidence and had no information
as to time lost, rates ofpay,orwages received, it would be impossible for the board to arrive
at a figure; that the board "was completely dissolved," and that if Ashton wanted an arbitra-
tion board to fix the amount, then a new board would have to be set up, either with the same
or different members. Martinson also stated that the Company should be able to arrive at a
figure since it had a record of the time off and the hours lost. Skalecki requested that
Martinson contact the Company and endeavor to straighten out the matter, and Martinson
replied that if he was needed by the Company he would come, but voluntarily he did not see
why he should.
Skalecki reported to Ashton his entire conversation withMartinson and adopted Martinson's
position that the arbitration board could not do anythuig further about determining the matter.
Skalecki testified that at that time Ashton agreed with him that it was unnecessary to incur
the additional expense of another arbitration. Skalecki admitted that Respondent and the Union
could "possibly" have reassembled the board to determine the amount, admitted that there
was dispute over Respondent's contention that an appropriate deduction for absenteeism
should be allowed, and admitted that he had no information as to other employment of the
claimants and that he made no suggestion for determining that matter or the question of
absenteeism.
The subject of compliance with the award was discussed at various grievance meetings
prior to June 20, but without change in the positions of the parties. Ashton continued to
urge that the matter be referred to the board and to express willingness to pay the award if
the board or Martinson (who was referred to as the "Union's attorney") would fix the
amount or instruct Respondent as to the proper method of determining it The Union adhered
to the position which had been stated by Martinson, and contended that it was Respondent's
obligation to compute the amount and that it was able to do so from its records. At no time,
however, did either party suggest that they negotiate concerning the amount or a method of
determining it.
In the meantime Skalecki, as chairman of the Sublocal, had given Respondent written
notice that it desired to reopen the contract, and requested a meeting. Respondent agreed
5 This would have meant, as Carter pointed out in his testimony, that the arbitrators would
again be compensated for their services Although not spelled out explicitly in the testimony,
the inference was suggested that Martinson wanted another fee because he felt that the board
had completed the job for which it had been compensated.
NORTHERN CRATE & LUMBER COMPANY 227
(though no written proposed changes were submitted as required by the contract), and sug-
gested that a preliminary meeting be held sometime in June. The evidence does not indicate,
however, to what extent actual bargaining negotiations for a new contract were undertaken
prior to the strike.
A lengthy grievance meeting was held on June 20, in which the subject of Respondent's
failure to pay the award was also discussed. Suder, who was Respondent's representative
in that meeting, stated that Ashton had been handling that matter and that Ashton was awaiting
a decision from Martinson as to the determination of the amount of the award. On June
21 Respondent posted on its bulletin board and delivered to union representatives copies
of a memorandum in which it stated its position on, or disposition of, the various grievances
which had been discussed the preceding day.6 That memorandum contained the following refer-
ence to the arbitration matter:
3--Helen Anderson and Helen Holowmski arbitration case--The Union attorney has
never given us written opinion and the necessary order to pay as required by the law.
The Union Committee has been notified on three different occasions as to why the claim
is unpaid,
3. The strike; subsequent events connected therewith
On the morning of June 22 all but a few of the employees engaged in a spontaneous strike
because of their resentment at Respondent's failure to settle the arbitration matter. Shortly
thereafter Jolly and the sublocal committee were called into Ashton's office, and Ashton
informed them that the strike was illegal and dema-ded that they order the employees to
return to work. Jolly contended that the strike was not illegal (for reasons which some of
the striking employees had expressed to hum), but he did not inform Ashton of the basis for
his contention. Ashton called in a stenographer and dictated the following memorandum, which
was typed and delivered to Jolly:
22 June 1951
To: Union Committee, Sub-Local 12-15
This is to inform you that a work stoppage occurred in our plant at 9:35 A.M. 22 June
1951 in violation of the contract dated July28 , 1950 , Article 2 . Consider this your official
notice delivered in hand at 11:10 A.M. this 22nd day of June that you are to immediately
take steps to have the people return to work and the work stoppage eliminated . If this is
not done by 7:00 o'clock A.M. June 23, 1951, under the rulings of the Taft -Hartley Act
and the National Labor Relations Board , this company will stand on its rights to termi-
nate the contract and ignore the Union "at least with respect to matters relating to the
strike" until it has taken effective steps to correct "the violation."
On Monday 25th, June , 1951, under the Taft-Hartley Act and ruling of the National
Labor Relations Board the next step of procedure of giving a discharge notice to strikers
who have not returned within the prescribed time limit will be effectuated
It is hoped that the Committee realizes the violation of the contract , the Taft-Hartley
Act and the decisions of the National Labor Relations Board and will make every effort
and attempt to have the people return to work . It is hoped that the steps prescribed will
not be necessary to be taken . However, as the Company received no warning , no notice,
no arbitration , no arbitrable dispute in question , it will be forced to take what legal steps
are provided to them under the laws of the United States.
The committee refused to order the employees back to work, and stated their desire for a
further meeting at which their outside representatives mightbe present. However, at Ashton's
request, Jolly later read the above notice to the striking employees.
A further meeting was held on the next afternoon, the Union being represented by Lambert,
Rasmussen, Jolly, and the sublocal committee, and Respondent by Ashton, Sr., Ashton, Jr.,
Suder, and Carter, the latter whom Respondent had employed on matters connected with the
dispute after the outbreak of the strike. Ashton, Sr., requested the Union to sign an agree-
6 Though the Union sometimes expressed objection to Respondent's practice of answering or
disposing of grievances in this manner, it made no issue thereon either during the grievance
meetings or in negotiations for a new contract.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment to arbitrate the question whether the Union had carried out its obligations under the
no-strike clause. The Union refused to agree, but Rasmussen and Jolly acknowledged receipt
of the document tendered by the Company, which read as follows:
June 23, 1951
To: UNION COMMITTEE, SUB LOCAL 12-15
International Woodworkers of America--CIO
RE: NOTICE OF DISPUTE TO BE SUBMITTED TO ARBITRATION
Hereby take notice that under the terms of the Agreement made and executed on the
28th day of July 1950 by and between the Northern Crate & Lumber Company of Eagle
River, Wisconsin, and Local 15, International Woodworkers of America, CIO, ARTICLE
II, that the company declares that the Union has failed to carry out its obligations under
subsections (b) and (c) of said ARTICLE II by failing to promptly denounce publicly the
now-existing strike, and by failure of the Union and its officers and agents to use prompt,
honest and diligent efforts to end such a strike.
Further, the Union Committee declared to the company that the Union did not know
why the present stoppage of work occurred and indicated that said stoppage was not au-
thorized by the Union. That the company has had no notice of said stoppage of work, no
nonce of the reasons for the stoppage of work.
Further, the company gives notice that the matter be submitted to arbitration im-
mediately and without delay.
Further, that the Company hereby selects Frank W. Carter, Jr., of Eagle River, Wis-
consin, as its representative on the arbitration committee.
Respondent requested that the Union send the employees back to work, but the Union de-
clined on the ground that the strike was a legal one under the contract because Respondent
had not complied with the arbitration award. Carter stated that the Respondent would not dis-
cuss the award or any issues as to the cause of the strike. Lambert suggested that in that
case they discuss wages. Various matters concerning a new contract were then discussed,
but periodically the discussions returned to the question of the award and getting the employees
back to work. Respondent continued to urge that no determination had been made of the
amount, and Lambert suggested that Respondent figure it by using an average factory work-
week. Carter raised the question of deductions for unemployment compensation. Lambert
then urged Respondent to pay the award on any basis it saw fit, and suggested it pay a flat $10,
or some such sum, and the Union would take steps to see to it that the employees returned
to work.7
Rasmussen testified that the Company also suggested during the meeting that the arbitra-
tion matter be referred back to the board for a determination of the amount, and that the Union
agreed; but he was unable to explain why, in view of the Union's alleged agreement, the pro-
posed disposition was not resorted to. Rasmussen admitted that Respondent produced a draft
of the following letter, bearing date June 23 (later mailed on June 25, after the employees
failed to report to work), and stated its intention to mail it to all striking employees who did
not return to work:
In compliance with the Labor Management Relations Act of 1947 (Taft-Hartley Act)
and due to the fact that an unauthorized stoppage of work occurred at the Northern Crate
& Lumber Company on June 22, 1951 . Further that all terms of the Agreement dated
July 28 , 1950 by and between the Northern Crate & Lumber Company and Local 12-15 of
the International Woodworkers of America --CIO have been met in all respects by the
company , and that the Local 12-15 has failed to live up to the terms of said agreement
as set forth under ARTICLE II thereof and in particular subsections (b) and (c) of
ARTICLE U. Further , that since there has been a violation of the "no-strike clause" of
the Agreement , since the Union has failed to meet the requirements of the contract, and
since you as an individual have failed to report for work and failed to actually work, your
services with the Northern Crate & Lumber Company are hereby terminated immediately.
7Rasmussen explained that if Respondent had adopted Lambert's suggestion of paying a flat
sum, the Union would again have had recourse under the contract to the grievance procedure, if
not satisfied with the amount This would have presented the anomalous , if not ridiculous,
situation of starting a fresh grievance to settle one which was supposed to have received final
determination in the arbitration proceeding.
NORTHERN CRATE & LUMBER COMPANY 229
However, if you so desire, you may make application for a job with this company any-
time after receipt of this notice and your application will be considered. Jobs so given
after this notice will be on a rehiringbasis and not under re-instatement procedure.
The Company can and will guarantee all those re-hired the full protection of the laws
of the United States, and irrevocably states that any person so rehired cannot be dis-
charged for any cause whatsoever by the union.
The meeting concluded with a request by the Union for another meeting the following day.
Ashton stated his refusal to meet on issues as to the cause of the strike; but when Lambert
suggested they meet on the question of wages, Ashton agreed.
The Sunday meeting was held in Respondent's office with the same participants, except
Sunder. The wage question was first mentioned, but Respondent's position was that it could
not intelligently discuss the subject until after the receipt of its auditor's report sometime
after the first of July. Periodically, again, the discussions returned to the strike, with the
reiteration of the respective positions taken the previous day. Finally Lambert stated that
he wanted to go to the membership with a basis for settlement of the strike, and inquired
whether Ashton would put all the employees back to work. Ashton replied that their cards
would all be in the rack for at least 4 hours on Monday morning8 but he made no commit-
ment as to how long the employees might be allowed to work after reporting and punching in.
The union representatives stated their intention of meeting again with their membership to
discuss the possibilities of settlement, and requested a further meeting with management
thereafter . Ashton, Sr., stated that they might reachhim by telephone. During the membership
meeting the employees requested their representatives to ascertain whether Respondent
would pay the award and would reinstate all striking employees. The representatives then
endeavored to call Ashton, Sr., but were informed by Ashton, Jr., that he could not be reached
by telephone. The membership then voted to reject the Company's request that they return to
work. On Monday the Respondent mailed all striking employees discharge letters in the form
above set forth.
On June 26 Rasmussen wrote Respondent two letters. One of them informed Respondent that
the reason of the strike was the Company's failure to comply with the arbitration award, re-
quested compliance therewith, requested a meeting to discuss the matter "in order to settle
the strike," and expressed the Union's willingness to induce the employees to return to work
as soon as Respondent should carry out its obligations under the contract. The second letter
protested the discharges as "unjustifiable" and "in violation of the Union contract and rights
of the employees under the law" and as constituting unfair labor practices; it also expressed
the Union's desire to continue negotiations "of the issues in dispute," and requested a meet-
ing.
Respondent did not reply to either letter. On June 25 it filed charges with the Board's Re-
gional Office in Minneapolis, under Case No. 18-CB-32, charging that the Union was engaged
in an illegal strike.9 On June 27 the Union filed the original charge in the present proceeding,
charging the Respondent with a refusal to bargain concerning the computation of back pay
under the arbitration award and with "other acts" of interference, restraint, and coercion.
In the meantime, Rasmussen had also notified the United States Conciliation Service of the
dispute, but he gave no notice to the Wisconsin Employment Relations Board.
Thereafter an investigation of the respective charges was made by Field Examiners Meter
and Sandberg of the Minneapolis Regional Office. Luecke, of the Conciliation Service, also
came to Eagle River and conferred with Respondent and with Carter. Carter testified that
shortly prior to the preparation of the "interpretation" of the award, he and Luecke had the
following conversation:
[Luecke] asked me if there was any reason why the Board couldn't meet and give them
he decision and get the strike over with. I told him no, there was no reason why we
couldn't but members of the Board felt that we had to have a request by both the Union
and the company to reconvene. He then asked me if there was any reason why we couldn't
meet informally and give a decision, without meeting with the Board, but just give him an
interpretation of our original award. My answer was no, and there was no reason why it
couldn't be done....
8 Paul E. Nickell, a member of the sublocal committee, testified that this meant the em-
ployees could punch in and go to work
9 The Regional Director, on December 13, refused to issue a complaint on said charges after
reaching a settlement agreement with the Union.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carter testified that on July 19 Meter put to him the same question that Luecke had, that
acting on Meter's request , Carter and Trinka met , in Martinson 's absence from the city; and
that Carter on July 20 prepared an "opinion " of the amounts due under the previous award, a
copy of which is attached hereto as Appendix A.10 Carter testified that he prepared the com-
putations from records and information submitted to him by Respondent . Ashton, Sr ., testified
that at least in the case of HelenHolowinski , his bookkeeper had contacted her after the strike
on the subject of earnings and other employment during her layoff, and that Holowinski re-
ported that she had not worked during that period because of illness.
On July 20 Respondent wrote the two claimants as follows:
In accordance with a decision handed to us at 1:40 P . M. 20 July 1951 by the Arbitration
Committee , we are to pay you the sum of $216 .63 back pay award.
Delivery of the checks was not made , however, until July 27, after Carter had obtained
Martinson 's concurrence in and signature to the supplemental award , and was made by repre-
sentatives of the Wisconsin-Unemployment Commission at their request.
The Union held a membership meeting on July 28, at which it was decided to send an un-
conditional notice to the Company that the employees would return to work on July 30. The
following letter was thereupon prepared and served on Respondent:
Upon receiving word that the Arbitration Award of March 13, 1951 has been paid, we
wish to notify you that the employees of the Northern Crate & Lumber Company who have
been on strike will return to work on Monday morning July 30, 1951.
When the striking employees reported for work on July 30, they were handed applications
for new employment and treated as applicants for new employment. Nine of them were re-
employed and 5 others were offered employment but refused it. Thereafter on various dates
from August 10 to September 10 Respondent reemployed 20 others.
In the meantime Luecke had attempted early in July to arrange a meeting between the
parties on the issues of the dispute , but was able to get them together for face-to-face
bargaining only on the question of wages and a new contract . Lambert fixed that meeting as
on or about July 9, and testified , amongother things, that Respondent sought to drop the union-
shop provision from the contract and sought to deny the Union the right to strike . Its position
on wages was that it could not afford to grant a wage increase . No agreement was reached and
no other bargaining conferences were held during the strike.
4. Miscellaneous incidents
Genevieve Adomytes testified that around the middle of March 1951 Ashton, Sr ., spoke to
her in downtown Eagle River and requested her to get into his car with him, referring to him-
self as "Old Pops." She testified that Ashton stated he had heard rumors of a strike and
wanted to know if there were going to be one. He also stated he had heard she was a good
union member and that he did not see that the Union was doing the employees any good, since
they were paying out good money and getting nothing out of it . Ashton then requested that she
talk to the employees and ask them to organize an independent union . Adomytes refused.
Ashton denied the incident in its entirety and denied he had ever been referred to or had
ever referred to himself as "Old Pops ." Anthony Adomytes , called by the General Counsel
in rebuttal , corroborated his wife's testimony astothe encounter with Ashton, and to Ashton's
invitation to Mrs . Adomytes to get into his car, in the words , "Come on in , Pops wants to
see you." Adomytes remained in his own car and did not hear the later conversations.
Genevieve Adomytes ' testimony is credited in view of the substantial corroboration afforded
by her husband 's testimony.
George Jolly testified that the day following a meeting on May 25 Ashton came to his farm
and stated that he had been studying the proposals discussed the day before ( in a meeting at
which Rasmussen had been present), that he wanted the union representatives to consider
certain new proposals he had made , and wanted Jolly to approve them . Jolly refused , stating
that he could approve nothing without the rest of the committee. From Respondent's mem-
orandum of May 26 ( posted, as customary), summarizing happenings at grievance meetings
10 In the meantime Lambert had written Respondent under date of July 19 , requesting a meet-
ing "at the earliest opportunity to discuss the amount of back pay due under the award and the
payment thereof." Rasmussen admitted that the Union had made no prior request to negotiate
on the subject of the amount of the award
NORTHERN CRATE & LUMBER COMPANY 231
on May 24 and 25, it appeared that the matters under consideration were three union griev-
ances relating to operational problems . Ashton's visit was apparently to solicit Jolly's
approval of Respondent 's proposed disposition of them.
Jolly testified further that some time later, he and the sublocal committee met with
Ashton one evening when Rasmussen and Lambert were not present and that after dis-
cussion by Ashton of certain changes he proposed to make , Ashton suggested that Jolly
and the committee get together with him sometime " in a little special meeting of our own
and draw up a contract between ourselves in a mutual fashion, as he put it , without outside
representatives " [i.e., Lambert and Rasmussen ]. " Al Hebert , a member of the committee,
substantially corroborated Jolly's testimony . Hebert also testified that around July 12
or 15 , while he was on the picket line , Ashton , Jr., approached him and that the following
'onversation ensued:
Well, he said to me , "Al, why don ' t you folks get an independent union and instead
of paying out this twenty four or twenty five dollars a year for these guys running
around with a big car that you could have it at home here ," and I suggested, I said
to him, "Well , Mr. Ashton it's like this .... Your dad could be president and you
could be vice -president ... what the hell of a chance could we have of getting any
benefit out of a union " He said, "I think you are all wrong ." I said , "I don't think
so." He said, "You think it over."
Doris Evans testified that during the strike Ashton , Sr., came to her home and inquired
whether her husband, Donald Evans (a striking employee), would come back to work and
stated that he "would hate to see him lose his seniority rights and he would Edo so] if he
didn 't come back by that next Monday."
Early in July Jerome Plude , who had returned to work after solicitation by Ashton, inquired
of Suder how he could go about decertifying the Union . Suder stated that he "happened" to
have some applications in the office at the time, and requested Plude to fill one out. Plude
stated that he was not familiar with the necessary phrasing , and requested Suder to fill out
the form, Suder did so . Suder also prepared and circulated in the plant an informal support-
ing petition , which read as follows:
We, the undersigned employees of the Northern Crate & Lumber Company Eagle River,
Wisconsin , do hereby declare that the Petition for Decertification of Local 12-15,
International Woodworkers of America , C.I.O. signed by Jerome Plude is in accordance
with our wishes for the reason that said Union no longer represents us. That our signa-
tures set forth below are given freely and voluntarily.
The petition was signed by 24 persons , including Suder himself , Ashton , Jr., Elmer
Spaeth , Lester Lena , and Oliver Brenwall . The formal and informal petitions were there-
upon mailed to the Regional Office from Respondent 's office on or about July 14. After
investigation the Regional Director dismissed the petition on July 31 because " It does
not appear that further proceedings are warranted inasmuch as the petition was not filed
in conformity with Section 9 (c) (1) (A ) of the Act as amended."
After receipt of the Regional Director 's letter of dismissal, Plude consulted Judge Frank
Carter (the father of Carter , Jr., but not professionally connected with him) who prepared
for Plude new formal and supporting petitions , the latter reading as follows:
Proof of Interest
We the undersigned employees of the Northern Crate and Lumber Company, Eagle
River, Wisconsin , do hereby designate Jerome Plude to secure and sign a Petition
for Decertification of Local 12 -15, International Woodworkers of America, C.LO.
It is our wish that said Union no longer represent us in name or in fact.
ii Jolly testified that he did not know whether the sublocal officers and committee had au-
thority to negotiate a contract , nor does the evidence establish whether they did. It is signifi-
cant, however , that the existing contract was signed only by Skalecki ( former president) and
by a committee , under an attestation clause which read as follows
IN WITNESS WHEREOF, the parties hereto authorize these presents to be signed by
their proper authorized off :ers and agents .. (Emphasis supplied )
291555 0 - 54 - 16
2 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plude testified that he did not talk to Suder, but that he did talk to other employees, and
that among those, who like himself were "interested" in filing the petition, was Lester Lena.
Plude circulated the supporting petition in the plant openly during lunch and rest periods
and partly during working hours. He obtained 29 signatures including those of Lester Lena,
Elmer Spaeth, Oliver Brenwall, and Don Ashton (another son of Ashton, Sr) Plude thereafter
returned the petitions to Judge Carter who readied them for mailing, and Plude mailed
them to the Regional Office where they were receved on August 20,
Plude testified that thereafter Field Examiner Sandberg questioned him about the second
petition and requested him to withdraw it because "it was tainted like the first one." When
Plude refused, Sandberg stated, "You will hear from me shortly with the necessary papers
to dismiss this case, dismiss this petition." Thereafter, on November 8, the Regional
Director wrote Plude a letter identical with the earlier one of July 31, informing Plude
of the dismissal of the petition.
B. Concluding findings
1. Questions concerning the legality of the strike
The validity and binding effect of the no-strike clause are not here in issue, for at the
outset of his brief the General Counsel concedes, as he must, that if the employees engaged
in a strike in violation of the terms of the contract, Respondent was lawfully entitled to
discharge them and to pick and choose whom it would rehire. 12 The major issues presented
here turn, then, on the question whether the strike in fact violated the contract, specifically
whether the Respondent's failure to pay the arbitration award constituted, in the language
of the no-strike clause, 13 a "refusal to abide by" the arbitrators' decision. This pivotal
issue requires that careful attention be given to the award and to whether it was sufficiently
definite and final to require or to enable compliance with its terms.
Of prime significance are the general principles which govern the subject of arbitration
and award. Arbitrators have the power and the duty to make a final disposition of the whole
matter submitted to them for decision. 3 Am. Jur. 923, Arbitration and Award, sec. 92;
6 C J S 190, Arbitration and Award, sec. 48 (b), cf Kellor, Arbitration in Action (Harper,
1941), p. 118. This is because the object of arbitration is to obtain such a settlement as
will put an end to dispute, conclude the matter submitted, and give the parties repose and
quiet thereon, 6 C. J. S. 226, sec. 81 (a) (1), cf. Kellor, supra p. 118; i. e., the settlement
should be such as will effectually end present and prevent future litigation on the points
involved. 3 Am. Jur. 949, sec. 128. Were it otherwise, arbitration would fail of its chief
purpose, for instead of being a substitute for litigation, it would merely be the beginning
of litigation."' Updegraff and McCoy, Arbitration of Labor Disputes (C.C.H., 1946), p. 127.
`,Consequently. an award which leaves anything for future adjustment, other than by mere
mechanical computation or measurement, is not final and cannot be sustained. 3 Am. Jur.
949-50, sec. 128. Thus, to be final, an award must be such a disposition of the matter
submitted that nothing further remains to fix the rights and obligations of the parties, so
that the party against whom it is made can perform or pay it without any further ascertain-
i2See, for example, N.L R.B. v, Sands Mfg. Co., 306 U.S. 332; Dorsey Trailers, 80 NLRB
478, and cases there cited at footnote 5. Though the binding effect of no-strike clauses was
first recognized in cases where the strike was neither provoked nor preceded by unfair labor
practices of the employer ( see, e g. , Scullin Steel Co , 65 NLRB 1294; Joseph Dyson & Sons,
Inc , 72 NLRB 445; Fafnir Bearing Co., 73 NLRB 1008), the principle was later extended to
cases where the employer was found to have engaged in unfair labor practices (National
Electric Products Corp., 80 NLRB 995; United Elastic Corporation, 84 NLRB 768). Such ex-
tension was due to recognition that the very essence of a no-strike agreement is that it sub-
stitutes completely and unreservedly collective bargaining in place of strikes and lockouts
(the usual permissive economic weapons), Consolidated Frame Co , 91 NLRB 1295, 1297, and
cases cited, and that the provisions of the Act and the processes of the Board exist for the
protection of the rights of employees and the remedying of the employer's unfair labor
practices, thereby obviating any necessity for the breaching by employees of their agreement
not to strike. National Electric Products Corp., supr.
13 The pertinent provisions of that clause and of the arbitration award have been set forth
under section A, 1 and 2, supra, and will not be restated.
i4Compare, here, Rasmussen's testimony that the Union proposed to start a new grievance
if Respondent had followed Lambert' s suggestion that it pay a flat $10 to each claimant.
NORTHERN CRATE & LUMBER COMPANY 233
ment of his obligations, and that further litigation shall be unnecessary. 6 C. J. S. 226, sec.
81 (a) (1); supra pp. 119-20. This does not mean that an award must necessarily state in
figures the exact amount to be paid, for it is sufficiently certain if it gives a basis or rule
by which the parties can ascertain the amount, or nothing remains but a mere mathematical
calculation. 6 C. J. S. 233, sec. 84 (e).
Application of the foregoing principles to the facts in this case discloses that the award
of March 13 was not sufficiently definite and final to enable Respondent to comply. What
it left open was not a mere matter of computation, nor was Respondent able to comply
merely by reference to a prescribed standard of law. For example, the entire record in
this case suggests the following items on which the arbitrators could properly have taken
evidence and to which they could properly have given consideration in fixing the amount of
the back pay due the claimants: (a) Interim earnings in other employment; (b) willful loss
of earnings if any; (c) periods of illness during the layoff; (d) the question of deductibility
of any unemployment benefits received; (e) the question whether a factor should be established
and allowed for alleged excessive absenteeism.
Simply to award, as the decision did, such rights as were provided by law and agreement
could not shift to Respondent the obligation to make an investigation and determination on
matters which were peculiarly within the province of the arbitrators and obviously incidental
and necessary to the ultimate decision. Cf. 6 C. J. S. 191, sec. 48 (b). Nor, obviously, could
Martinson's informal suggestions at the hearing have constituted a proper guide or standard
by which Respondent could have determined its obligations under the award, since they
were neither complete nor accurate. 15
Nor was Respondent in fact able to make the determination from its records, as claimed
by the General Counsel. In the first place there was disagreement on items (d) and (e), supra,
Respondent contending that it was entitled to deduct unemployment compensation and to an
allowance of a factor to offset the claimants'excessive absenteeism. When originally asserted.
Respondent's position on item (d) was supported byMartinson's suggestion that unemployment
compensation was deductible, though on March 21 Respondent's attorney advised it to the
contrary. In the next place, neither Respondent nor the Union had the necessary information
by which to resolve items (a), (b), and (c). Though Carter finally prepared the supplemental
award from Respondent's records and other information supplied by it, the information as
to other employment was not obtained in Holowinski's case until after the strike; and though
the supplemental award gave no consideration to a possible willful loss of earnings nor to
a deduction for illness during the layoff, Holowinski had explained her failure to work else-
where by the claim of illness.16
The General Counsel relied heavily on the letter from Respondent's counsel on March 21
to establish his contention that Respondent was fully advised as to what it might and might
not deduct. Aside from the fact that the arbitrators could not shift to Respondent the obliga-
tion to make the determination of disputed and uncertain items, it has been pointed out that
Respondent could not have made the determination, that is, except by negotiation and agree-
ment with the Union. Though such negotiation was suggested by the attorney's letter of
March 21, in lieu of reconvening the board, 11 neither party thenceforth suggested that the
matter be settled by negotiation, prior to the Union's letter of July 19, which was apparently
inspired by knowledge of the suggestions which Luecke and Meter had made to Carter.
Instead, Respondent consistently stated its willingness to pay, but suggested either that
Martinson (who had prepared the original award) should fix the amount, or that the matter
should be re-referred to the board for that purpose. The Union contended just as consistently
that it was Respondent's obligation to determine the amount, that it was able to do so from
its records, and that resubmission to the board' was unnecessary and, in fact, impossible
because the board was dissolved.
is As one example, no reference as made to the deductibility of periods of illness during
the layoff (cf Waterfront Employees of Washington, 98 NLRB 284; Olin industries, 86 NLRB
203; Harris-Woodson Co. Inc., 77 NLRB 819); and, as another, the suggestion that unemploy-
ment compensation was deductible was erroneous (N. L R. B v. Gullett Gin Company, Inc.,
340 U S. 361).
16 It is significant, on the question of Respondent's good faith, that it accepted the supple-
mental award as final and binding in the face of its attorney's advice that the claimants need
not be repaid for periods of illness during the layoff.
17 The letter suggested negotiations with the claimants, but that, of course, would have been
improper, as Respondent's counsel pointed out at the hearing herein, since the Union was
their representative.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent ' s position was correct and the Union 's unsound for reasons stated above. Yet
the Union 's views were adopted by the employees , for the evidence is undisputed that they
struck for the sole reason that Respondent had not paid the award and that they did so with
knowledge "all along" that Respondent had stated its willingness to pay the award if it
knew how much to pay ( Nickell , a committee member , so testified).
It is, therefore , concluded and found that Respondent had not , prior to June 22 , .efused
to abide by the decision of the arbitrators , and that the strike was, in its inception, in
violation of the no-strike clause. Subsequent events support and emphasize the correctness
of these conclusions and establish further that the strike was continued in violation of the
contract. Thus , the contract plainly committed the Union , upon the occurrence of the strike
(which it had not authorized ) (1) promptly to denounce the strike publicly ; (2) to use prompt,
honest , and diligent efforts to end the strike ; and (3 ) to submit to arbitration any dispute
or disagreement whether the Union had carried out commitments (1) and (2). Though Re-
spondent repeatedly urged , on June 22 , 23, and 24, compliance with those obligations, the
Union ignored them , and the striking employees likewise refused the tendered opportunity
of returning to work . 'a Respondent was not required to commit itself as to how long the
returning strikers would be permitted to continue working , since it was privileged to disci-
pline or discharge any whom it considered responsible for the illegal strike or , for that
matter , any who participated in it. Mackay Radio and Telegraph Company, Inc., 96 NLRB
740, and cases cited.
But the General Counsel urges that subsequent to June 22 the strike was converted into
an unfair labor practice strike and that the participants were , therefore , entitled to rein-
statement upon their application on July 30 . That contention ignores the three following
countervailing facts: (1) The status of the strikers as employees had been terminated by
their discharge on June 25 ; (2) since a strike in violation of a no-strike clause cannot be
justified though it results from or is caused by the employer 's unfair labor practices (see
footnote 12, supra), it follows that a strike which is continued in violation of such a clause
cannot be converted into an unfair labor practice strike because prolonged by subsequent
unfair labor practices of the employer ; and (3 ) the evidence clearly establishes that Re-
spondent 's subsequent unfair labor practices were without effect in prolonging the strike,
which was continued for the sole reason that Respondent had not paid the arbitration award.
It is , therefore concluded and found on the entire evidence that (a) the strike was begun
and continued in violation of the no-strike clause; (b) Respondent was justified in discharging
the striking employees and in refusing to reinstate them; (c) Respondent lawfully refused
to bargain with the Union concerning the causes of the strike ; (d) Respondent did not dis-
criminate against its employees because of their union membership and activities ; and (e)
Respondent was legally entitled to solicit the return of individual strikers . Chas . E. Reed
& Co., supra; Fafnir Bearing Co ., supra; Mackay Radio and Telegraph Company, Inc.,
supra,
The foregoing conclusions render it unnecessary to consider Respondent 's further defense
to the discharge cases that the employees had lost their employee status because their
strike was in violation of Section 8 (d), or the General Counsel's opposing contention that
said section applies only to cases where the employees engage in a strike during the 60-day
period for the purpose of forcing a modification or termination of a contract. There is,
moreover , no evidence to support the averments of the answer that the Union called the
strike for the purpose of compelling Respondent to agree to changes in the existing contract
in violation of Section 8 (d) (4).
2. Interference , restraint , and coercion
Ashton , Sr.'s, conversation with Adomytes in March and Ashton , Jr.'s, conversation with
Hebert in July plainly constituted attempts to instigate and foster a company union and,
therefore , constituted interference , restraint , and coercion within the meaning of Section 8
(a) (1), as charged in the complaint. The General Counsel also contends that Ashton's sug-
gestions , testified to by Jolly and Hebert , constituted attempts to eliminate the Union and
to substitute a company union as the representative of the employees . The evidence , however,
is Though Respondent periodically stated that it would refuse to negotiate concerning the
causes of the strike , it was within its rights in so doing, in view of the violation of the no-
strike clause and the Union ' s failure to acknowledge or live up to its obligations thereunder.
United Elastic Corporation , 84 NLRB 768 ; cf. Chas E. Reed & Co , 76 NLRB 548; Higgins,
Inc., 90 NLRB 184.
NORTHERN CRATE & LUMBER COMPANY 235
is too equivocal in nature to support the requested finding Thus , Ashton's conversation at
Jolly's farm appeared to relate only to grievance matters currently under consideration
It is difficult to ' 'ew Ashton ' s inquiry whether jolly would approve Ashton's proposed dis-
position of the grievances as an attempt to instigate and foster a company union Though
the inferences are plainer from Ashton ' s subsequent suggestions to the sublocal committee,
yet so far as the evidence (particularly the contract ) shows, that committee was fully author-
ized by the Union to negotiate and execute formal contracts indeed, it was the sublocal
which, shortly before, had given the notice of reopening and had requested negotiations with
Respondent
Respondent obviously sponsored the first decertification petition by Suder's preparation
and circulation of it and by the execution of it by Suder , Ashton, Jr , Elmer Spaeth, and
Lester Lena (all supervisors at the time) Though ostensibly holding aloof from the second
petition , Respondent must similarly be charged with aiding in its institution and circulation.
Thus the second petition designated the same agent , Plude, whose sponsorship of the first
petition Respondent had openly assisted Plude concededly discussed the circulation and
filing of the petition with Lena , who was "interested in it" , and Lena and Spaeth again
signed the petition Furthermore , elude circulated the petition openly, and partly during
working hours These circumstances suffice to establish a direct and clear connection
between the two petitions , the first of which Respondent had at no time disavowed The
second must , therefore , be considered as constituting only a continuation of the first
By sponsoring , instituting , and circulating said decertification petitions , and by granting,
unilaterally , general wage increases on September 15 and December 3 (Dixie Culvert Mfg
Co , 87 NLRB 554), Respondent engaged in interference , restraint, and coercion proscribed
by Section 8 (a) (1) of the Act
3 The refusal to bargain
a The appropriate unit
All production and maintenance employees employed by Respondent at its Eagle River
plant, excluding contract sawyers and their crews , office and clerical employees , professional
employees, master mechanic , head saw filer , and supervisors as defined in the Act, constitute
a unit appropriate for the purpose of collective bargaining within the meaning of Section 9
(b) of the Act
b The Union's majority representation
Following representation proceedings in Case No 18-RC-661, the Board on June 2, 1950,
certified the Union as the representative of the Respondent ' s employees There is no evidence
and no contention that the Union lost its majority status prior to June 25 , 1951 The question
is whether , under the circumstances in this case , the Union ' s continuing majority is to be
presumed. 19
The fact of the Union ' s majority during the certification year was established , of course,
by the Board ' s certification During that year Respondent might not , absent unusual cir-
cumstances , have predicated a refusal to bargain even on a good-faith doubt of the Union's
majority . Celanese Corporation of America, 95 NLRB 664 After the first year of the cer-
tificate had elapsed , the certificate still created a presumption as to the fact of majority
status by the Union , though the presumption was then rebuttable even in the absence of
unusual circumstances Ibid Competent evidence might have been introduced , then, to
demonstrate that, in fact , the union did not represent a majority of the employees at the
time of the alleged refusal to bargain , and, as a corollary of this proposition , Respondent
19 Unless it is to be presumed , it cannot be found on the record here, since no evidence was
offered by either party as to the number of employees in the unit at any time subsequent to
June 25, nor as to the number who were union members Though Respondent discharged on
June 25 all but a few of the employees for engaging in an unlawful strike, those who remained
were presumably union members in view oftheunion - shop clause of the contract , under which
employees were required to become and remain members The record does not disclose how
many employees returned to work prior to July 30 , nor how many new employees were hired
It showed that 9 of the strikers were reinstated on July 30 , and that 20 others were reinstated
on various dates between August 10 and September 10, but it does not disclose the total number
of employees in the unit
2 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might lawfully have refused to bargain on the ground that it doubted the Union's majority,
provided that doubt was in good faith. Ibis; cf Atlanta Journal Company, 82 NLRB 832,
833, Toolcraft Corporation, 92 NLRB 655.20
Though the question of the employer's good-faith doubt must be answered in the totality
of all the circumstances involved in a particular case, these two factors are essential
prerequistes to any findings that the employer raised the majority issue in good faith in
cases where the union has been certified (1) There must have been some reasonable grounds
for believing that the union had lost its majority status since its certification, and (2) the
majority issue must not have been raised by the employer in a context of illegal antiunion
activities or other conduct by the employer aimed at causing disaffection from the union
or indicating that the employer was merely seeking to gain time to undermine the union.
Celanese Corporation, supra.
It cannot be found that the evidence here establishes the existence of either of the foregoing
factors As to the first one, if the Respondent in fact had believed that the Union had lost
its majority status at sometime subsequent to June 25, it could easily have established
that fact by its payroll records, since the identities of the discharged strikers and of all
union members (because of the union-shop clause) were known to it Furthermore, Respondent
failed to assert any such belief or contention during the negotiations with the Union sub-
sequent to June 25, as late as September, nor, so far as the record shows, at any time
prior to the filing of answer on December 28 The absence of the second factor is established
by the findings herein made that Respondent had in fact engaged in unfair labor practices
aimed at causing disaffection and procuring rejection by the employees of the Union as
their bargaining representative
It is therefore concluded and found that Respondent had no reasonable grounds for question-
ing the Union's majority standing, and that it has failed to rebut the presumption, under the
Board certification, that the Union's majority status had in fact continued it is therefore
concluded and found that on June 2, 1950, and at all times thereafter the Union represented
a majority of Respondent's employees in the above-described unit
c The refusal to bargain
The evidence does not establish that there was any refusal to bargain by Respondent at any
time prior to the strike During the strike period, Respondent's position was that it would
bargain only on matters which were not connected with the strike That position was sound,
of course, being apparently based on United Elastic Corporation, supra, indeed, its notice
to the Sublocal on June 22 tracked and quoted some of the language which appeared in that
decision However, around July 9, and at a time when Respondent was ostensibly negotiating
with the Union for a new contract, it sponsored, instituted, and circulated a petition among
its employees to obtain the decertification of the Union It similarly assisted and sponsored
the circulation of a second such petition in August, as found under section 2, supra Further-
more, though Respondent had maintained during the July 9 negotiations, and earlier, that
it was financially unable to grant a wage increase, it admittedly put two general wage increases
into effect, unilaterally, on September 15 and December 3. Respondent's foregoing actions
plainly constituted refusals to bargain with the Union unless it can be found, under the
evidence, that legal justification existed
Respondent's defense of the Union's loss of majority has been disposed of in the preceding
section. It defends its actions otherwise by the assertion that the Union had itself refused
to bargain in violation of Section 8 (b) (3) of the Act by causing and calling the strike for
the purpose of compelling Respondent to agree to changes in the existing contract, in viola-
tion of Section 8 (d) (4).
It has been found that the strike resulted solely from Respondent's failure to pay the
original award and that the Union sanctioned and supported the strike on that basis There
is no evidence that the strike was in any way related to the reopening notice or to the negotia-
tions for a new contract, or that it was to compel changes or modifications in the contract.
Furthermore, Respondent's defense, if valid, would have excused its own refusal to bargain
only down to July 30, when the strike was terminated Respondent's subsequent refusals to
bargain could not, in any event, have been justified because of the Union's past sins N.L R.B.
20 The language and structure of the Toolcraft case show that had the Board there concluded
that the employer had acted in good faith, it would not have been necessary for the Board to
determine whether the union actually had majority status See Celanese Corporation, supra,
footnote 19
NORTHERN CRATE & LUMBER COMPANY 237
v Remington-Rand Inc , 94 F 2d 862 (C. A. 2); N.L.R.B. v Carlyle Lumber Co , 74 F 2d
138 (C. A. 9), Consumers Lumber & Veneer Co., 63 NLRB 17, footnotes 16 and 45, and cases
there cited.
It is, therefore, concluded and found that on July 9, 1951, and thereafter, Respondent
refused to bargain with the Union and thereby engaged in unfair labor practices proscribed
by Section 8 (a) (5) and (1).
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 described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices, it will
be recommended that Respondent cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act
It having been found that Respondent engaged in certain acts of interference, restraint,
and coercion, it will be recommended that Respondent cease and desist therefrom It having
been found that on July 9, 1951, and thereafter, Respondent refused to bargain collectively
with Local 12-15, International Woodworkers of America, CIO, it will be recommended that
Respondent, upon request, bargain collectively with said union
The violations of the Act which Respondent committed are, in the opinion of the under-
signed, persuasively related to the other unfair labor practices proscribed by the Act,
and the danger of their commission in the future is to be anticipated from Respondent's
conduct in the past The preventive purposes of the Act will be thwarted unless the order
is coextensive with the threat. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize the industrial strife which burdens and obstructs commerce and thus effectuate
the policies of the Act, it will be recommended that Respondent cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act
Upon the basis of the above findings of fact and upon the entire record in the case, the
undersigned makes the following.
CONCLUSIONS OF LAW
1 The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2 All production and maintenance employees employed by Respondent at its Eagle River
plant, excluding contract sawyers and their crews, office and clerical employees, profes-
sional employees, master mechanic, head saw filer, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective bargaining within the meaning
of Section 9 (b) of the Act
3 At all times since June 2, 1950, the Union has been and now is the exclusive repre-
sentative of all the employees in the aforesaid unit for the purpose of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By failing and refusing at all times since July 9, 1951, to bargain collectively with
the Union as the exclusive representative of the employees in the aforesaid unit Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(5) and (1) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in,
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. Respondent has not engaged in discrimination within the meaning of Section $(aj (3)
of the Act
[Recommendations omitted from publication.]
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Northern Crate & Lumber Company
Eagle River , Wisconsin
Gentlemen:
Pursuant to repeated requests on your part in regard to computation of back-pay due to
Helen Holowinski and Helen Anderson per decision of the Arbitration Committee , consisting
of the undersigned and Robert D. Martinson , as set forth in writing on March 13, 1951,
the following is our opinion ( and therefor the opinion of said Arbitration Committee) as
to amounts due under the award
1 We have ascertained , to the best of our knowledge and ability , that neither Helen
Holowinski nor Helen Anderson worked elsewhere during the " lay-off' period involved
in the award
2 That both were physically able to and did return to work upon being notified to return.
3 That both are entitled to full pay during the ', lay-off', period, based upon the same
hourly rate they were given prior to that period, and based upon number of hours per week
worked by other employees on similar jobs in your plant during that period
4 Upon our request you have furnished us with the following rates and number of hours
worked during that period:
(a) Both Helen Holowinski and Helen Anderson had been receiving 83¢ per hour prior to
the "lay-off "
(b) During the " lay-off" period other employees who actually did work were entitled to
and did receive pay for hours worked as follows
Week ending January 6 , 1951 - - - - - - - 302' hours
January 13 , 1951 - - - - - - - 52 hours
January 20 , 1951 ------- 514 hours
January 27, 1951 -- - - - - - 52 hours
February 3, 1951 - - - - - - 40 hours
February 10, 1951 51$ hours
277 hours TOTAL
5 Thus, making a total of 277 hours worked by others on comparable jobs during the
period of the "lay-off ." However, you have also indicated that both Helen Holowinski and
Helen Anderson worked and were paid for 16 hours during the week ending February 10,
1951 Therefor , they would each now be entitled to a total of 261 hours back-pay at the
rate of 834 per hour , or a back-pay award of $ 216 63 each
6 In so computing the amount due the undersigned have given full consideration to possible
deductions , and find that since they did not work elsewhere during that period and since
they did come back to work on the day notified , they were entitled to full pay as to hours
they would have worked had they not been " laid-off " This , in spite of the fact that in the
previous 6-month period both had been absent from work 22% of the time, since we cannot
assume that they would have also been absent during that particular period between January
6 and February 10.
7. Although this committee consisted of the undersigned and Mr Robert D. Martinson,
who acted as chairman of said committee at the time of the hearing , we have been unable
to meet as a body due to a question as to authority of the committee to reconvene and as to
whether setting the amount due was in the province of the committee ' s powers Mr
Martinson ' s concurrence in this opinion is unavailable at this time due to the fact that he
is out of town However, we believe he would concur with this opinion, both as to method
of computation and results
Dated this 20 day of July, 1951
By the Arbitration Committee
Joseph Trinka
Frank W. Carter, Jr
Concur Robert D. Martinson
Received 1 40 P.M.--20 July, 1951.
NORTHERN CRATE & LUMBER COMPANY 239
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations ofa Trial Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the National Labor Relations Act, we hereby notify
our employees that:
WE WILL NOT attempt to instigate or foster a company union among our employees,
institute, spinsor, or circulate petitions to decertify the Union as the bargaining repre-
sentative of our employees , or grant, unilaterally , general wage increases to our
employees
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to join
or assist Local 12-15, International Woodworkers of America, CIO, or any other labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in Section 8 (a) (3) of
the Act
WE WILL bargain collectively, upon request , with Local 12-15, International Wood-
workers of America, CIO, as the exclusive representative of all our employees in the
bargaining unit described below with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and, if an agreement is reached, embody
such understanding in a signed contract
The bargaining unit is.
All production and maintenance employees employed at our Eagle River plant, exclud-
ing contract sawyers and their crews, office and clerical employees, professional
employees, master mechanic, head saw filer, and supervisors as defined in the Act
NORTHERN CRATE & LUMBERCOMPANY,
Employer.
Dated. .
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material
Supplemental Intermediate Report
On October 23, 1952, the Board issued an order remanding the above case to the Regional
Director for the purpose of affording the Respondent and the General Counsel an opportunity
to adduce evidence concerning the organization and functions of the charging Union's Sublocal
at the Respondent's plant, and arguments concerning the necessity of the Sublocal's compli-
ance with the filing requirements of the Act The Trial Examiner was directed to prepare
and issue an appropriate Supplemental Intermediate Report
Pursuant to said order the Trial Examiner held a hearing, after due notice to all the
parties, at Eagle River, Wisconsin, on December 1, 1952 At the outset of the hearing the
petition of Frank Suder, Receiver for Respondent, for leave to intervene was granted on
proof of his appointment on October 3, 1952, by the circuit court of Vilas County, Wisconsin
The General Counsel and the Receiver were represented by counsel and the Union by a
representative The Company as such was not represented i All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant
iCopies of the notice of hearing had been receipted for by Suder in his capacity as Receiver
for the Company and by Suder individually on behalf of the Company. Suder had been the
secretary of the corporation at the time of the former hearing (January 1952) and was still
a stockholder Under the terms of the Wisconsin statute and the terms of the order of appoint-
ment, Suder, as Receiver, had title to Respondent's property and complete and entire custody
and right to possession of all Respondent's books, records, and files, including the right to
receive its mail The Receiver's objections to the alleged lack of service of the notice of
hearing upon the Company were therefore overruled
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence, to argue orally, and to file briefs and proposed findings. No formal argument
was made, though the General Counsel stated his position during an informal colloquy
No briefs have been filed.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
SUPPLEMENTARY FINDINGS OF FACT
Testimony was given at the hearing by Oliver J. Rasmussen, formerly president of Local
12-15, and by George S. Jolly and Genevieve Adomytes, president and treasurer, respectively,
of the Sublocal at Respondent's plant The findings here made are based on that testimony,
as well as on the testimony given at the former hearing, and are made on a preponderance
of the evidence on the record as a whole 2
The International Union operates through district councils, each of which covers a wide
geographical area. Locals are chartered either on an area basis, where memberships are
small from plant to plant, or on an individual plant basis where the membership is large
enough to assure adequate financial support for an organization There is no constitutional
provision for sublocals as such
The figure 12 in the charging Local's name designates the district of the International
Union, and the figure 15 designates the number of the local within the district District
Council 12 has jurisdiction over the States of Michigan, Wisconsin, Minnesota, and Iowa,
and Local 15 covers a geographical area consisting of the upper peninsula of Michigan
and parts of northern Wisconsin
Though the constitution of the International provides that local unions shall consist of 10
or more workers in the prescribed industry and in a given locality, the International's policy
is generally to issue charters only on an area basis, since it has found that small locals
are unable to function properly on a financial basis, being without adequate funds to finance
their operating expenses, including the sending of delegates to district and council meetings
and to conventions Rasmussen testified, however, that separate locals have sometimes
been chartered within the general area assigned to Local 12-15 at plants where membership
was sufficiently large to function properly as a local union. In one such case the District
Council's decision had been directly influenced by the compliance status of such a local
Thus a separate local, No 12-125, had been chartered at a plant at Laona, Wisconsin, yet
when employees of the woods operations of the same plant were later organized; the District
Council placed them in Local 12-15 for the sole reason that the officers of Local 12-125
had never come into compliance with the Act
Though without express constitutional provision therefor, sublocals are, as a matter of
policy and practice, permitted to exist and to operate as functioning organizations This
was true of the Sublocal at Respondent's plant, since as disclosed by Rasmussen's testimony
at the former hearing (see footnote 2, su ra , and from the evidence as a whole, that Sublocal
enjoyed substantially the same autonomy as a local union, though it was placed within Local
12-15 for reasons of policy and internal management. Thus, the membership at Respondent's
plant held regular meetings and elected their own officers Through their officers and
committees, and with the knowledge and permission of Local 12-15, they negotiated contracts
with Respondent, sometimes with and sometimes without the assistance of an officer of the
Local, they signed said contracts in the name of the Local, sometimes without the signature
of any officer of the Local, they gave notices reopening the contracts, sometimes in the
2To the extent that Rasmussen's testimony at the last hearing conflicts with these findings,
it has not been credited, since it is contradicted in important respects by his testimony at the
earlier hearing and by the testimony of Adomytes and Jolly. For example, Rasmussen had
formerly testified, without qualification, that sublocals had the same autonomy as a local
union would have, that they were "not under an amalgamated setup," that the sublocals held
regular monthly meetings, elected their own officers, who were allowed to make their own
decisions, and that such decisions werebmdmgonLocal 12-15 At the last hearing Rasmussen
testified that Local 12-15 was an amalgamated local, and that the sublocals had only such au-
thority as was delegated to them by the Local. Rasmussen testified also that the term "sub-
local" was in fact one which had been coined by the Company, and that it was not used offi-
cially within the Union. Adomytes' testimony established, however, that the term had been
used by the Sublocal, and known to the Union, from the inception of the organization of Re-
spondent's employees
NORTHERN CRATE & LUMBER COMPANY 241
Local's name and sometimes in the Sublocal ' s name, and their acts , decisions , and contracts
were regarded by the Local as binding upon it.3
Membership was applied for and granted , and dues were collected, in the name of the
Local , though dues collections were made by the treasurer and the stewards of the Sub-
local, who also made the entries onthemembers ' dues books Monthly dues of $2, as provided
in the constitution , were collected and remitted to the treasurer of the Local , but 25 cents
thereof was regularly refunded to the Sublocal (without constitutional provision therefor)
to cover operating expenses The Sublocal has maintained from its inception a bank account
in its own name, on which checks have been regularly drawn in remitting the dues collec-
tions to the Local.
CONCLUDING FINDINGS
The foregoing facts establish that the Sublocal was a functioning organization and that it
was the real party interested in and affected by the contracts entered into with Respondent.
Cf Oppenheim Collins & Co ., Inc , 79 NLRB 435, footnote 1, Minneapolis Knitting Works,
84 NLRB 826 Though not chartered as a local because of the International ' s present policy,
the Sublocal qualified for a charter within the provisions of the constitution because it
consisted of more than 10 members within the prescribed jurisdiction . The situation was,
therefore , one in which the Sublocal though qualifying for de jure existence under the con-
stitution , remained for policy reasons in a continuing de facto status . Thus the case resembles
factually Wells Manufacturing Co , 85 NLRB 22, in which the Board recognized the existence
of a functioning local where it would have had an interest in any contract obtained , though
it had not received a charter and had not perfected its organization . Cf. also United States
Gypsum Co ., 77 NLRB 1098 , Oppenheim Collins & Co ., Inc , supra.
The case is plainly distinguishable from West Texas Utilities Co., 94 NLRB 1638, and
from the cases there cited at footnote 2. The closest in point of those cases is F. Strauss
& Son Inc ., 80 NLRB 26 , where the branch union involved operated only as an administrative
unit of the petitioning union and where only the officers of the latter were entitled to execute
contracts The Board also stressed the absence of any showing that the petitioner was acting
as a front for a noncomplying union. Although there is no showing here that Local 12-15
was actually fronting for its Sublocal at Respondent ' s plant, yet its organization and jurisdic-
tion were shown to have been so manipulated as to enable it to engage in fronting for sublocals
and for sister locals. This was established by Rasmussen ' s testimony concerning the deliberate
manipulation of Local 12 - 15's jurisdiction to cover a sublocal which normally would have
been placed within noncomplying Local 12-125
It is therefore concluded and found on the basis of the entire evidence that the status and
functions of the Sublocal were plainly such as to require compliance by it with the filing
requirements of the Act.
Since it is conceded by the General Counsel that compliance has at no time been effected
by the Sublocal , the question remains as to what recommendation is appropriate for the
disposition of the case . The General Counsel suggested that if the Sublocal should be found
to have such status that compliance was required by it, then the appropriate remedy would
be that prescribed in General Armature & Mfg Co , 89 NLRB 654, i.e , the order to bargain,
previously recommended herein, should be conditioned upon compliance by the Sublocal
within 30 days from the date of the order
The remedy which was applied in the General Armature case had been developed in
Marshall & Bruce Co , 75 NLRB 90, and Cuffman Lumber Co , 82 NLRB 296, to cover cases
where, on complaints issued prior to the Taft - Hartley amendments , the unions in whose
favor the orders to bargain would run had not achieved compliance at the time of the Board's
decisions In General Armature the remedy was applied to a case filed subsequent to the
Taft- Hartley amendments , where the local had come into existence after the certification
of its International
Certainly the situations in the Cuffman and Marshall & Bruce cases are without analogy
to the present Nor is this case sufficiently analogous to General Armature to warrant the
application of the same remedy . Thus, this is not a case where a local , whose formal organi-
zation has not been completed , would at some later time represent Respondent ' s employees
Cf Hess, Goldsmith & Co., Inc ., 101 NLRB 1009 , U. S. Gypsum Co., 100 NLRB 1100. Here
an autonomous sublocal , which was the real party in interest , existed from the inception
3 The situation therefore well justified Jolly's assumption , expressed at the hearing , that.it
was the membership at Respondent ' s plant which constituted the Union.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the organization of Respondent ' s employees and actively represented those employees in
collective bargaining . Cf. Sunbeam Corporation , 98 NLRB 525.
In the opinion of the Trial Examiner it would frustrate the congressional intent as expressed
in Section 9 (f), (g), and (h), and in its legislative history,4 to extend to the officers of the
Sublocal a present opportunity to cure past noncompliance . Indeed, it is difficult to compre-
hend, in view of the turnover in the officers of the Sublocal as shown by the record, how
compliance by its present officers could cure retroactively the noncompliance by an earlier
staff at the time which was crucial to the issuance of the present complaint. 5
In any event , since the noncomplying Sublocal was the real party in interest , it was in fact
the charging party . Wood Parts , Inc., 101 NLRB445 . The complaint , which was based entirely
on its charges , should therefore be dismissed in its entirety . Ibid, and cf. Sunbeam Corpora-
tion , 98 NLRB 525. It is so recommended.
41.e., to "[exert] pressures on unions to deny office to Communists" by withholding Board
assistance from noncomplying unions. American Communications Association v. Douds, 339
U. S. 382, 393.
5 It is also to be noted, from the General Counsel's representations as to noncompliance of
Local 12-15 itself for a period prior to January 15, 1952, that there is present in this case
the same question now before the Supreme Court for decision in N.L.R.B. v. Dant & Russe,
Ltd., 344 U. S. 375. And see N. L. R. B. v. Nina Dye Works, 198 F. 2d 362 (C. A. 3); N.L.RB.
v. American Thread Co., 198 F. 2d 137 (C. A. 5).
CRUSE MOTORS , INC. and LODGE 1017 OF DISTRICT 64,
INTERNATIONAL ASSOCIATION OF MACHINISTS , A.F. L.
Case No. 1-CA - 1333 . June 1, 1953
DECISION AND ORDER
On March 18, 1953, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take cettain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent
did not engage in certain other alleged unfair labor practices
and recommended that the complaint be dismissed with respect
to such allegations . Thereafter , the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board ' has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report , the exceptions and brief,
and the entire record in the case , and hereby adopts the Trial
Examiner ' s findings , conclusions , and recommendations.
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Herzog and Members Murdock
and Peterson].
105 NLRB No. 35