The Crossett Co.

National Labor Relations Board - Board Decisions

Jan 17, 1963

140 N.L.R.B. 667 (N.L.R.B. 1963)

THE CROSSETT COMPANY 667
WE WILL NOT threaten any employee with reprisals because he seeks to
persuade other employees to engage in union or concerted activity protected
by the National Labor Relations Act.
WE WILL offer Harry Miller his former position or ^a substantially equivalent
position , without loss of any rights or privileges he had in such position.
WE WILL make Harry Miller whole for any loss of pay he may have suffered
by reasons of our discrimination against him.
GREENWOOD FARMS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any
questions concerning this notice or compliance with its provisions.
The Crossett Company and International Brotherhood of Pulp,
Sulphite and Paper Mill Workers , AFL-CIO
International Woodworkers of America , Local No . 5-475, AFL-
CIO and International Brotherhood of Pulp , Sulphite and
Paper Mill Workers, AFL-CIO. Cases Nos. 26-CA-1213 and
26-CB-1892. January 17, 1963
DECISION AND ORDER
On July 6, 1962, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and supporting briefs.
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 [Members Rodgers, Fanning, and Brown].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and adopts the findings,
conclusions, and recommendations of the Trial Examiner to the extent
consistent with the decision herein.
The Crossett Company, herein called the Respondent Company or
Crossett, is engaged in the manufacture of lumber, paper, and related
products at Crossett, Arkansas. For 15 years or more Crossett has
been party to various collective-bargaining agreements with the
International Woodworkers of America, Local No. 5-475, AFL-CIO,
herein called the Respondent Union or IWA, covering the employees
engaged in these operations. Currently, there are approximately 700
employees covered by these collective-bargaining agreements. One
140 NLRB No. 62.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such agreement covers a Board -certified unit of employees of the
lumber division which consists of a sawmill and auxiliary operations.
In 1960, as part of its lumber division , Crossett began construction
of a flakeboard plant designed to produce , by modern automated
manufacturing methods, a new wood product composed of pressed
and glued wood shavings . The TWA then in the midst of negotiations
for the sawmill contract, expressed interest in obtaining recognition
as the bargaining representative of the employees in the new flake-
board plant. The request was denied by Crossett as premature.
Again in November 1961 , as the plant was nearing completion, TWA
reiterated its bargaining request. Crossett again rejected these de-
mands, but offered to extend recognition to IWA if and when the
IWA could demonstrate that it had secured authorization or member-
ship cards from a majority of the employees in the proposed flakeboard
plant unit.
By November , Crossett had already assessed its personnel require-
ments, interviewed some 400 applicants for employment , and had se-
lected for employment at the flakeboard plant some 53 persons. In-
deed, some 24 of the 53 applicants selected had already been hired and
were working in the new plant. In addition , the remaining 29 indi-
viduals had been notified of and had accepted Crossett 's offer of em-
ployment . Their reporting date, however , was conditioned upon
Crossett 's progress in reaching full production at the new plant, a
matter subject to many variables including the arrival time of the
new machinery and its installation. Under the proposed schedule,
the plant was to be fully operational and staffed by January 15, 1962.
Pursuant to a request by IWA, and only after all 53 prospective
employees were either working or notified of hire, Crossett furnished
the IWA their names and classifications . At the same time, Crossett
advised the I117A representatives that it would furnish these names
to any labor organization which made an appropriate request for the
information . By December 21, 1961 , TWA formally notified Crossett
it had obtained authorization cards from a majority of the persons
named on the employee list previously furnished by Crossett.
On January 4, 1962, representatives of Crossett and officials of TWA
met, and Crossett agreed to extend to IWA recognition as the bargain-
ing representative of the flakeboard employees . However, recognition
was conditioned upon the authentication of the authorization cards
held by the TWA. At a meeting on January 11, 1962, the terms of the
collective-bargaining agreement covering the employees at the flake-
board plant were agreed upon. On January 15, 1962, Crossett checked
the authorization cards obtained by the IWTA against its employee list
and against employee signature cards. The card check revealed that
TWA possessed 28 valid authorization cards from among the 53 per-
sons appearing on the list of current employees and prospective em-
THE CROSSETT COMPANY 669
ployees furnished by Crossett. TWA, however, possessed only 10 cards
from among the 24 employees then physically at work in the flakeboard
plant.' Thereafter the parties executed a 1-year collective-bargaining
agreement. Two days after the agreement was executed, Crossett re-
ceived a request from the International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, AFL -CIO, herein called the Pulp Work-
ers, to recognize it as the collective-bargaining representative of the
flakeboard plant employees.2 Crossett notified the Pulp Workers that
it had already entered into a collective-bargaining agreement for such
employees with Respondent Union. Thereafter, the Pulp Workers
filed the charges which give rise to this proceeding.
The Board and the courts have long held that a, collective-bargaining
agreement, entered into between an employer and a labor organization
which does not represent a majority of employees employed in an ap-
propriate collective-bargaining unit, provides illegal assistance to the
labor organization in violation of Section 8(a) (1) and (2) of the Act,
and restrains and coerces employees in violation of Section 8 (b) (1) (A)
of the Act? Here, on January 15,1962, when the Respondent executed
the collective-bargaining agreement covering the flakeboard plant
employees, the Respondent Union represented only 10 of the 24 indi-
viduals then on Respondent Crossett's flakeboard plant payroll. While
it is true that the Respondent Union had also obtained additional cards
from persons who were to be. employed in the flakeboard plant in the
near future, it is clear that such individuals were not yet employees of
Crossett at the time the contract was executed. Thus, contrary to the
Respondents' contentions, we do not include those cards received from
the prospective employees in determining the Respondent Union's
majority status' on January 15, 1962. Accordingly, we find, as did
the Trial Examiner, that Respondent Crossett violated Section
8(a) (1) and (2) of the Act by recognizing the TWA as the exclusive
bargaining representative of its production and maintenance em-
ployees at the flakeboard plant, and by executing a collective-bargain-
ing agreement with the TWA at a time when the TWA did not rep-
resent a, majority of said production and maintenance employees then
currently employed. We also find, as did the Trial Examiner, that Re-
1 The record shows that some time after January 15 , all 29 of those persons who had
been notified of their hire, but who were not yet working at the flakeboard plant when the
contract was executed , were called and did report for work at the plant
2 On October 9, 1961 , the Pulp Workers had requested the Board 's Regional Office to
notify it if a petition were filed on behalf of the flakeboard employees . Crossett received
a copy of this letter. However , it does not appear from the record that the Pulp
Workers engaged in any organizational campaign among the flakeboard employees, and
there is no evidence showing that the Pulp Workers possessed any authorization cards
from the employees in question at the time it made its request for recognition.
8 Bernhard-Altmann Texas Corporation, 122 NLRB 1289 , enfd. 280 F . 2d 616 (C.A D C ),
affd. 366 U S 731; Stokely-Van Camp, Inc and Bordo Products Co , d/b /a Stokely-Bordo,
130 NLRB 869; Adam D. Goettl and Gust Goettl, d/b/a International Metal Products
Company, 104 NLRB 1076; Ken-Rad Tube & Lamp Corporation , 62 NLRB 21
4 See Stokely-Bordo, supra.
670 DECISIONS OF NATIONAL LABOR RELATION S BOARD
spondent IWA violated Section 8(b) (1) (A) of the Act by executing
the January 15, 1962, contract in the above-described circumstances.s
All the evidence indicates, however, that, despite Respondent IWA's
premature recognition, it therefore was and still is the free choice of a
majority of the employees presently working in the bargaining unit;
and, in view of the prior acceptance of employment, the only factor
remaining, at the execution date of the agreement, to consummate the
employee status of a majority of the present work force was to report
for work, which they later did. Although we have found the Re-
spondents to have violated the Act, we do not believe in these unique
circumstances that it would serve any useful purpose to issue an Order.
[The Board dismissed the complaint.]
°The Trial Examiner also found the IWA's conduct to have violated Section 8(b) (2)
of the Act. As a violation of this section of the Act was neither alleged nor litigated, the
Trial Examiner's finding appears to have been an inadvertent error, and we do not
adopt it.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges, which were duly consolidated , the General Counsel of
the National Labor Relations Board , through the Regional Director for the Twenty-
sixth Region ( Memphis, Tennessee ), issued a complaint dated March 12, 1962, as
amended , alleging that the Respondent Company and the Respondent Union have
engaged in and are engaging in unfair labor practices in violation of Section 8(a)(1)
and (2 ) and Section 8(b)(1)(A) and (2 ), respectively, of the National Labor
Relations Act, as amended , herein called the Act. The answers of the Respondents
admit certain allegations of the complaint but deny the commission of any unfair
labor practices . Pursuant to notice , a hearing was held before Trial Examiner
Reeves R. Hilton in Crossett , Arkansas, on May 10 and 11, 1962. All parties were
represented at the hearing and were afforded opportunity to adduce evidence, to
examine and cross-examine witnesses , to present oral argument , and to file briefs.
About June 14 , all parties except the General Counsel submitted briefs which I have
fully considered.
From the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The Company , an Arkansas corporation , maintains its principal office and place
of business , as well as various plants, at Crossett, Arkansas , where it is engaged
in the production of lumber , paper , and related products . In the 12 months preceding
the issuance of the complaint the Company manufactured , sold, and shipped from
these plants finished products valued in excess of $500,000 to places outside the
State of Arkansas . I find the Company is engaged in commerce within the meaning
of Section 2(6) and (7 ) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Woodworkers of America , Local No . 5-475, AFL-CIO, herein called
the Respondent Union or IWA , is a labor organization within the meaning of
Section 2 (5) of the Act.
International Brotherhood of Pulp , Sulphite and Paper Mill Workers , AFL-CIO,
herein called the Charging Party or the Pulp Workers, is a labor organization within
the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The issues
This case stems from the execution of a collective-bargaining agreement, effective
from January 15, 1962, to January 14 , 1963 , between Crossett Lumber Company, a
THE CROSSETT COMPANY 671
division of the Crossett Company, and the TWA covering the production and main-
tenance employees (with the usual exclusions) of the flakeboard mill, a division
or branch of Crossett Lumber Company. The complaint alleges that at the time of
the execution of the agreement, January 15, 1962, the IWA was not the representa-
tive of an uncoerced majority of the employees in the bargaining unit, hence by
executing the agreement the Company thereby violated Section 8(a)(1) and (2)
of the Act and the IWA violated Section 8(b)(I)(A) and (2) of the Act.
Concededly, the General Counsel offered no evidence to prove the IWA obtained
its alleged majority through coercive means, so coercion is not an issue in the
case. However, the issue as fully litigated at the hearing is whether the TWA
represented a majority of the employees in the unit and, as a corollary thereto, the
question presented is whether persons who had been notified of their acceptance for
employment, and who had accepted employment, but were not actually working
or on the flakeboard mill payroll as of January 15, 1962, were employees and there-
fore properly included in the unit in determining the representative status of the
TWA.' This case involves only the flakeboard mill.
B. The flakeboard mill
At times material herein the following persons held the positions appearing beside
their names: Richard P. Meredith, director of personnel division, The Crossett
Company; H. S. Mersereau, manager of Crossett Lumber Company; Robert J. Du-
Chaine, plant superintendent of the flakeboard mill; W. D. Morse, production man-
ager of the flakeboard mill; Basil Garrett, regional representative of IWA; and A. S.
O'Bannon, business agent of IWA.
While the history of the flakeboard mill is rather sketchy, the composite testimony
of company officials, particularly Morse, shows that for some years the Company
had plans to manufacture a high quality, medium density, composition board to be
used primarily as a core material for furniture and high quality cabinet work.
After much study and research the Company decided to install the German Bear
system, which it found to be the most advanced and highly automated process
available. In line with these plans the Company constructed a new building in
the general area of its other planis (apparently construction commenced in the
second half of 1960) and obtained about 90 percent of its machinery and equipment
from West Germany. Meredith said the plant was scheduled for operation in late
September or early October 1961, but the startup date was delayed for various reasons
including faulty machinery, delay in receiving equipment, and labor disputes arising
in connection with the construction of the plant. Consequently, according to
Meredith, the plant did not get into production until sometime after January 15,
1962 However, Meredith stated that arrangements for a full complement of workers
had been completed in the period October, November, and December. Morse said
the Company started checking out the equipment in late December or early January
1962, calling in such employees as were necessary, and that the first board was
actually manufactured on January 24. Mersereau stated the Company produced only
18 boards in January, but by the middle of April it had manufactured about
2,000,000 board feet, practically all of which went into inventory. However, in
March the Company made a few shipments on a limited basis.
C. The relationship between the IWA and the Company; early requests for recognition
Garrett was employed by the Company in 1947, was a member of the union
negotiating committee, and left his employment in 1951 to become staff representative
of the TWA. Since the latter date, except for a brief period, Garrett has represented
the IWA in its dealings with the Company. According to Garrett the TWA has had
continuous agreements with the Crossett Lumber Company since about 1946, the
last agreement, known as the sawmill division contract, being effective from July 3,
1960, to April 30, 1962. The TWA also has agreements covering employees of the
Crossett Chemical Company and the Public Utilities Company, divisions or branches
of The Crosse't Company.
Garrett stated the TWA first learned the Company was planning to build the
flakeboard mill prior to or during the negotiations in 1960 leading to the sawmill
i Counsel for the Respondents , in their briefs, discuss the "uncoerced majority" alleea-
tion and the absence of any proof of coercion. Since counsel do not claim thev were
surprised by the theory of the General Counsel 's case or that the issues as litigated were-
not within the scope of the complaint , I see no merit In this contention , if It is a conten-
tion. (New England Webb, Ino., at al., 135 NLRB 1019 )
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
division contract and at that time requested recognition for the flakeboard mill
employees. The IWA also requested the Company to transfer as many employees
as it could from the sawmill and other divisions to the flakeboard mill The Com-
pany refused to grant recognition and stated it contemplated using as many lumber
employees as it could in the new plant. Thereafter the subjects of recognition and
transfer may have been mentioned a few tunes but no firm request for recognition
was made until about October 1961.
D. The recruitment of employees
After much study and consideration the Company decided that it would need a
startup crew of about 52 men, working on a 3-shift, 5-day-a-week basis, to staff the
mill. Meredith stated that during the fall of 1961, while the machinery was being
set up, the Company posted notices in other divisions advising employees therein of
openings in the new mill so that these employees, in line with company policy, could
apply for transfer to these jobs. In connection with employee requirements at the
new mill, DuChaine prepared a "manning chart" showing, inter alia, the various
job classifications, hourly rates, the names of employees selected for such jobs, the
"present status" of each such employee, and the date the employee was notified of
his acceptance as an employee (General Counsel's Exhibit No. 8). Gus R. Phillips,
director of employment and in charge of recruitment, stated the manning chart was
prepared sometime in November 1961, although he was not certain whether the chart
was made before the 52 men in the startup crew had been notified they had been
accepted for employment. According to Phillips the Company had some 350 to 400
applications for employment at the flakeboard mill. He further stated that prior to
December 1, 1961, all 52 men had been notified they had been accepted for employ-
ment but no definite date had been set for their reporting for work.
DuChaine testified he interviewed the "outside" applicants for employment, that
is, those not working in other divisions of the Company, and between October 30 and
November 4, 1961, he verbally notified those selected that they had been accepted
for employment.
Morse testified he, DuChaine, and Phillips interviewed the "inside" applicants for
employment, that is, those employed in the sawmill and other divisions of the Com-
pany, and by the end of October 1961 they had completed their selection of em-
ployees in this category for employment in the new mill. Morse also stated that
within 1 or 2 days after these employees had been interviewed and accepted for em-
ployment he notified Mersereau, of the personnel department, of this action. While
all 52 men in the startup crew had been selected prior to December 1961, the mill
was not then operating insofar as production was concerned, so in December and
January the Company called in these men as needed.
It is undisputed that on January 15, 1962, the Company had 24 production and
maintenance employees working in, and on the payroll of, the flakeboard mill.
(General Counsel's Exhibit, No. 3 )
Meredith said the remaining 29 men in the startup crew (General Counsel's Ex-
hibit No. 5) were called in when the finishing and shipping department went into
operation subsequent to January 15, 1962, and some of these men did not actually
report for work until the following March or April.
Meredith further stated that 33 of the 52 men in the startup crew transferred from
other divisions of the Company, which were covered by IWA contracts, to the flake-
board mill.
At the hearing much time was spent on the use and applicability of a company
personnel or payroll form known as Form 350. Meredith testified that when a per-
son is newly hired or transferred from one division to another he must sign a Form
350 in order to be placed on the payroll for the division in which he is working either
as a new employee or as a transferee. Meredith admitted that each of the 24 em-
ployees who were working at the mill on January 15, 1962 (General Counsel's Ex-
hibit No. 3), had signed a Form 350 prior to that date. He also admitted that none
of the 29 employees subsequently employed at the mill (General Counsel's Exhibit
No. 5) signed a Form 350 on or before January 15, 1962. Concerning the effect of
Ferm 350 on the employment status of this latter group, Meredith said:
The 350 form is the thing that gets the guy on the payroll as far as the com-
pany's obligation to a man and when he has been offered employment or transfer
the 350 has nothing to do with that. The 350 has to do with getting his dough
and the guy is not going to get his money from the Flakeboard Plant until he
actually performs some work there, but that does not mean he was not guaran-
teed employment by the Crossett Company in the Flakeboard Plant.
THE CROSSETT COMPANY 673
The Temporary Use of Sawmill Employees at the Flakeboard Mill;
Additions to the Work Force
Morse testified that for some time prior to January 15, 1962, the Company used
some of the employees in the sawmill cleanup crew, who were hired by and under
the supervision of Sawmill Foreman Vernon Bays, to perform similar work at the
flakeboard mill. Morse stated Bays would receive work instructions and it was
his responsibility to transport the men between the sawmill and the flakeboard mill
and to see that the work instructions were carried out. Morse further stated that
prior to January 15, 1962, the Company had no intention of transferring any of these
men to the flakeboard mill payroll (except possibly Roy W. Nutt) but subsequent
thereto it did transfer some of the sawmill employees to the new mill.
The General Counsel produced four witnesses, Allen P. Biggs, Olin Carter, Robert
Wallace, and Carl Hunter, who testified that they, plus V. L. Streeter, were em-
ployed under Bays in the sawmill cleanup crew and worked regularly at the flake-
board mill, commencing at various intervals between October and December 1961,
and were so working on January 15, 1962. Thereafter Wallace was transferred to
the flakeboard mill payroll about January 31, 1962, and Biggs, Carter, Hunter, and
Streeter were transferred at various dates the following March. Counsel also stipu-
lated that six other employees were placed on the flakeboard mill on different dates
in the interval January 31 to May 2, 1962. It is clear the Company did not notify
any of the 11 above-mentioned employees that they had been accepted for employ-
ment at the flakeboard mill at any time prior to January 15, 1962, and their names
do not appear on the list of employees working at the mill on January 15, 1962 (Gen-
eral Counsel's Exhibit No. 3), or the list of employees notified of their acceptance
for employment (General Counsel's Exhibit No. 5).
Nutt was employed in the sawmill cleanup crew and worked continuously at the
flakeboard mill commencing in June 1961. Nutt applied for transfer to the flakeboard
mill and spoke to Morse about his transfer on several occasions While Morse did
not give a definite answer, Nutt was transferred to the new mill, apparently about
January 31, 1962.
Morse testified that many times Nutt asked to be transferred to the new mill and
he promised to consider him when and if he had a full-time job that Nutt was quali-
fied to fill. Morse stated in December it became obvious he would need a full-time
janitor, so when it became necessary to fill the job, shortly after January 15, 1962,
Nutt was notified he was being transferred to the flakeboard mill
Nutt's name appears on the list of employees notified of their employment. (Gen-
eral Counsel's Exhibit No. 5.)
E Events leading to the agreement between the Company and IWA
Garrett stated that around the middle of October 1961, the IWA requested recog-
nition as the barganing representative for the flakeboard mill workers and Meredith
and Mersereau conditioned recognition upon a showing that the IWA represented
51 percent of the startup crew, which would number somewhere between 50 and 60
workers. The Company also agreed to furnish the IWA, or any other union re-
questing such information, with the names of workers selected for employment at
the new mill, after they had been notified of their acceptance for employment. Gar-
rett said, among other reasons, he wanted the names for organizational purposes and
between October and December Mersereau gave him the names of about 29 men
who had been selected for employment at the new mill.
O'Bannon testified Meredith and Mersereau stated there would be about 52 men
in the startup crew and thereafter the Company supplied Garrett with the names of
these men Mersereau stated he telephoned the names to Garrett about October 13
and 27 and November 2, and on November 6 he gave Garrett a recap of all the
names previously submitted, numbering about 51 men.
In the period October to December, the IWA obtained signed authorization cards
from about 29 men in the startup crew and as Garrett considered the IWA had a
majority of the men working or selected for employment he made no attempt to
secure additional cards.2
About December 21, Attorney Youngdahl addressed a letter to the Company re-
questing recognition of the IWA and for a meeting to discuss contract terms.
O'Bannon identified 29 authorization cards which were received in evidence as General
Counsel's Exhibit No 4 There is no question concerning the validity of these cards.
One of the cards is dated October 11, 1961, and the remainder bear various dates in
November and December, the last date being December 18, 1961
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Around January 4, 1962, the parties held a meeting at which time Youngdahl,
displaying a batch of cards, announced that the IWA represented a majority of the
production and maintenance employees at the flakeboard mill and requested recog-
nition as their bargaining representative. Meredith said he would accept Young-
dahl's word that the IWA had a majority but the cards would have to be checked
sometime later.
Meredith stated negotiations began "officially" at their next meeting which was
held about January 11, and this meeting resulted in the parties reaching agreement
on "major aspects" of the contract.
On January 15, the parties held another meeting and this time they reached final
agreement on contract terms. Prior to the execution of the contract the Company
checked the authorization cards against its records.
Meredith said Garrett or O'Bannon submitted 30 authorization cards which were
checked for signature by Phillips, DuChaine, or Morse against various personnel
records, including applications for employment, the 350 forms, physical examination
records, and payroll records. If the signature on the card appeared genuine and the
man's name was included on the manning chart (General Counsel's Exhibit No. 8),
the card was considered valid and counted in determining the IWA's majority status.
The Company rejected two of the cards because one was signed by a technical em-
ployee not included in the unit and the other was signed by a man whose name did
not appear on the manning chart. When Nutt's card was being considered Phillips
pointed out that while he fully intended to transfer Nutt to the new mill as Janitor
he had not placed his name on the manning chart. Meredith said his card should
be counted and put his name on the manning chart. The check showed that the
IWA had 28 valid cards of the 53 men whose names appeared on the manning chart
as working or who had been employed and were awaiting assignment to the flake-
board mill. Following the check the parties signed the contract.
Meredith admitted the IWA did not represent a majority of the employees who were
working and on the payroll of the flakeboard mill on January 15, 1962.
John W. Allen, assistant to Meredith, tallied the card check and stated that of
,the 28 valid cards, 10 were signed by employees who were working at the flakeboard
mill on January 15, and 18 were signed by men who had been notified they had
been accepted for employment but were not working on that date. General Counsel's
Exhibit No. 3 discloses the Company had 24 employees working on January 15, and
General Counsel's Exhibit No. 5 contains the names of 29 persons who had been
notified they had been accepted for employment prior to January 15, but were not
actually working at the flakeboard mill, or on its payroll, as of that date Meredith
testified that the Company and the TWA considered the names on these exhibits
,as constituting all employees in the unit for the purpose of the card check. However,
Meredith made it clear that the Company did not consider the men whose names
appear on General Counsel's Exhibit No. 5 as employees insofar as pay, seniority,
insurance, or other employee benefits were concerned.3
There is no evidence the Pulp Workers, or any other union , was engaging in any
organizational activities among the employees of the Company or the flakeboard
mill during the period in question. The only indication of any concern with the
flakeboard mill on the part of the Pulp Workers is its letter dated October 9, 1961,
addressed to the Regional Office of the Board, wherein it expressed an interest in
the new plant and asked to be advised of the filing of any representation petition
covering these employees. A copy of this letter was sent to the Company. The
Company heard nothing further from the Pulp Workers until about January 17, 1962,
when Wayne E. Glenn, International representative. telephoned Meredith. The gist
of their conversation, as related by Meredith, was that Glenn requested recognition
and Meredith replied the Company had already signed an agreement with the TWA.
Glenn then claimed the letter should have raised a good-faith doubt concerning
the majority of the TWA, which Meredith denied. The conversation ended with
Glenn saying the Company would hear from him.
Concluding Findings
In brief, the undisputed facts show that in October and December 1961, the TWA
requested recognition as the exclusive bargaining representative for all the produc-
8Hershel Hamm, whose name appears on this exhibit, stated he signed an IWA card,
dated November 11, 1961 , when he was employed by the Chase Bag Company, which was
noted on his card , and that he was so employed on January 15, 1962 Hamm filed an
application for employment at the flakeboard mill and was promised a job when Inter-
viewed in the late fall of 1961. He reported for the work at the new mill about
March 12, 1962.
THE CROSSETT COMPANY 675
tion and maintenance employees at the flakeboard mill and after two or three meet-
mgs in January 1962, the parties, on January 15, succeeded in reaching an agreement
covering terms and conditions of employment. Prior to signing the agreement the
Company conducted a card check of the IWA's authorization cards to determine
its majority status as the exclusive representative of the employees in the unit and
being satisfied that the 1WA had established its majority status executed the
agreement.
Admittedly, the IWA did not represent a majority of the employees working at
the flakeboard mill and on its payroll as of January 15, for it had only 10 cards out
of 24 employees employed as of that date. However, by including the remaining
29 men who had been accepted for employment, but who were not working, 18 of
whom had signed cards, the IWA came out with a majority of the men in the
startup crew. Thus, the case turns on the narrow issue of whether the individuals
in the latter group were employees employed within the appropriate unit on Janu-
ary 15, and, theretoie, properly included in the determination of the IWA's majority
status.
The Act requires that an employer bargain with the representative selected by a
majority of his employees in a unit appropriate for collective bargaining but it does
not require that the representative be selected by any particular procedure as long
as the representative is clearly the choice of a majority of the employees.4 One of
the procedures long recognized by the Board as appropriate in determining a union's
majority status is the card check method adopted by the Company and the IWA in
this case. In line with the Board's policy concerning procedures for determining
majority status, as well as decisions in Board-directed elections, it follows that where
the parties resort to the card check method they must conduct the check among
employees employed in a unit appropriate for the purposes of collective bargaining.
Here there is no doubt regarding the appropriateness of the unit but the question
centers on the eligibility of employees included in the unit and considered in deter-
mining the IWA's majority status. Since a card check and a Board-directed election
are simply different methods of resolving the majority status of the bargaining
representative, it is certainly reasonable to apply the same standards to card check
procedures as promulgated by the Board in directed election cases insofar as the
eligibility of employees to participate therein is concerned. Speaking on the voting
eligibility of employees, the Board clearly stated: 5
An employee's voting eligibility depends generally on his status on the eli-
gibility payroll date and on the date of the election. To be entitled to vote, an
employee must have worked in the voting unit during the eligibility period and
on the date of the election. However, as specified in the Board's usual direction
of election, this does not apply in the case of employees who are ill or on vaca-
tion or temporarily laid off, or employees in the military service who appear in
person at the polls.
Admittedly, not one of the above-mentioned individuals was employed at the
flakeboard mill or on its payroll as of January 15, and Meredith freely conceded
these individuals were considered as employees only for the purpose of the card check.
In essence the Respondents assert that the Company was under legal obligation
to put the foregoing individuals to work as soon as it had jobs available for them
and as the term "employee" has been given a broad and comprehensive meaning
they should be deemed employees for the purposes of the card check. Unques-
tionably the term "employee" has been construed liberally and the concept of the
term may well depend upon the circumstances of the particular case or circum-
stances. Indeed the Supreme Court stated, in N.L.R.B. v Hearst Publications, Inc.,
322 U.S. 111, 130, "It is not necessary in this case to make a completely definitive
limitation around the term `employee.' That task has been assigned primarily to
the agency created by Congress to administer the Act." 6 The Board, in accordance
with its statutory duty, has prescribed rules governing an employee's voting eli-
gibility and I find nothing in these rules which would justify the conclusion that the
29 men in the disputed group should have been included in the unit. In fact, decisions
of the Board compel a contrary finding and conclusion.
Thus, in Pacific Motor Trucking Company, 132 NLRB 950, footnote 5, the Inter-
venor contended that certain employees who were not presently employed in the
4 Twenty-sixth Annual Report of the National Labor Relations Board, p. 32
B Twenty-sixth Annual Report of the National Labor Relations Board. p 67
9 See also National Van Lines, Inc. v. N L R.B , 273 F. 2d 402, 403-404 (C A. 7)
Operating Engineers Local Union No 3 of the International Union of Operating Engineers,
AFL-CIO (St. Maurice, Helkamp & Musser ) v. N.L R B., 266 F. 2d 905, 909 (C A.D.C.).
681-492-63-vol. 140---44
,676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit should be eligible to vote on the ground that they have replacement and/or
bidding rights under certain circumstances to classifications within the unit. The
Board held this ground was insufficient to warrant a change in its usual eligibility
rules and found these employees ineligible to vote.
In Tamiami Trail Tours, Inc., 123 NLRB 1501, footnote 4, the Intervenor indi-
cated that student motorcoach operators should be allowed to vote in a unit including
motorcoach operators. These students are applicants for lobs whose qualifications
are observed by the employer. In turn the students spend their time observing the
employer's operations and learning Interstate Commerce Commission rules. Al-
though they may be hired later and placed on probation for 90 days, students are not
on the payroll and do not drive buses. The Board held the students were not em-
ployees but applicants for employment and therefore not eligible to vote in the
election
In Ra-Rich Manufacturing Corporation, 120 NLRB 1444, the employer contended
that an employee hired and placed on its payroll on March 15, 1957, the eligibility
date, was eligible to vote in the election which was held on April 2, although she
did not actually start work until March 18, 1957. The Board rejected this contention
for the reason it is well settled that, in order to be eligible to vote, an individual
must be employed and working on the established eligibility date, unless absent for
one of the reasons set out in the Direction of Election.
In St. Regis Paper Company, 118 NLRB 1560, the Board held an employee not
actually working in the appropriate category in the unit during the payroll eligibility
period and on the date of the election was ineligible to vote. The Board specifically
stated. "The fact that he was awarded the job in the appropriate category and was
accruing seniority therein on the critical dates in insufficient reason to depart from
The Board's established voting eligibility rules."
In Schick, Incorporated, 114 NLRB 931, 934, one of the questions involved the
voting eligibility of applicants for employment. The employer was in the process
of hiring new employees to bring its employee complement to full strength and ap-
proximately 134 applicants for employment had been notified to report for work
on a specified future date, or had been notified that they were acceptable for employ-
ment and would he called as soon as possible. Past experience indicated that about
25 percent of the "notified" employees would fail to accept employment. The
employer contended these applicants had a status equivalent to laid-off employees
and should be permitted to vote regardless of whether they actually reported for
work on or before the established payroll eligibility date, that is, the payroll period
immediately preceding the date of the Direction of Election. The Board found no
reason to depart from its established rules that, in order to vote, an individual must
be employed and working on the established eligibility date, unless the individual
was absent for one of the reasons set out in the Direction of Election.
From the foregoing authorities, I find and conclude that the 29 individuals in
question were not working in the appropriate unit at the flakeboard mill on
January 15, 1962, the critical date, therefore they were improperly included as em-
ployees in the determination of the TWA's majority status.
Other points and arguments advanced by the parties require but brief discussion.
To support their claims of the IWA's majority status the TWA argues that the flake-
board mill is merely an accretion to the existing sawmill division and the Company
stresses the point that some 33 men who were transferred from other divisions,
principally the sawmill division, were employed in divisions represented by the IWA.
I find no merit in these contentions. Assuming Garrett made a premature request for
recognition on the accretion theory his request was promptly rejected and subsequent
demands for recognition, negotiations, and the ultimate agreement were all on the
basis of a separate and independent bargaining unit of flakeboard mill employees.
The Company's argument strikes me as contradictory, for if the transferees were
employees in established bargaining units on the crucial date herein they could hardly
be termed employees in a new and different bargaining unit.?
7 The Company quotes certain language in N L R R v The Wheland Company and
Local ft176, Allied Industrial Workers of America, AFL-CIO. 271 F 2d 122 (CA 6),
which it asserts carries the "Implication" that authorization cards could be solicited from
employees not yet transferred but scheduled for transfer. In that case the company
consolidated its manufacturing and ordnance divisions into one new plant. At the time
of the consolidation the employees in these divisions were treated as separate units and
represented by different unions Subsequently, the representative of the ordnance divi-
sion obtained 206 newly signed authorization cards from employees who were formerly
employed in the ordnance division , but it did not seek or receive any cards from em-
THE CROSSETT COMPANY 677
As asserted by the IWA the record is wholly insufficient to show a timely claim for
representation of the employees by a rival labor organization.
The Charging Party argues that by furmshmg the IWA representatives with the
names of persons who were working or notified they had been accepted for employ-
ment constituted unlawful assistance to the IWA. Admittedly, the Company com-
plied with the IWA's request for these names and at the same time the Company an-
nounced it would make this information available to any other union that might
request it. There is no evidence remotely suggesting that the Pulp Workers, or any
other union, ever requested any such information from the Company. Moreover,
there is not the slightest indication that the Pulp Workers, or any other labor
organization, except the IWA, was engaging in any organizational activities among
the employees at any time during the period in question. In Perry Coal Company, et
al., 125 NLRB 1256, the Board held that the furnishing of such information to a
union in the context of other unlawful acts of assistance constituted a violation of
Section 8(a) (2) of the Act. However, the Board made it clear it was not passing
on the question of whether such conduct was per se violative of the Act. Apart
from the granting of recognition and executing the agreement the Company rendered
no assistance to the IWA other than supplying it with the foregoing information. In
my opinion -this conduct is insufficient to warrant an independent finding of unlawful
assistance. It must also be noted the complaint is barren of any allegation respect-
ing this conduct and the General Counsel did not even refer to it in the course of his
oral argument at the conclusion of the hearing.
The record shows that employees in Bay's sawmill crew performed certain labor
services at the mill on a temporary basis. The fact that these employees were
physically working in the null has no bearing on the issues for they were clearly
sawmill employees at times material herein, albeit some of these men may have
been subsequently transferred to the flakeboard mill.
For the reasons stated above, I find the IWA did not represent a majority of the
production and maintenance employees at the flakeboard mill on or about January 15,
1962. I further find that by recognizing the IWA as the exclusive bargaining rep-
resentative for these employees in these circumstances and by executing an agreement
with the IWA the Respondent Company violated Section 8(a)(1) and (2) of the
Act and the Respondent IWA violated Section 8(b)(1) (A) and (2) thereof. (In-
ternational Ladies Garment Workers Union (Bernhard-Altmann Texas Corp.) v.
N.L R.13 , 366 U.S. 731.)
IV. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices in
violation of the Act, I recommend that the Respondents cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent Company occur in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union and the Charging Union are each labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent Company, by recognizing and executing an agreement with the
Respondent Union when the Respondent Union had not been designated as the
exclusive bargaining representative by a majority of the employees in an appropriate
bargaining unit, has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) and (2) of the Act.
4 The Respondent Union, by executing the agreement in the above-described cir-
cumstances, has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (b) ( 1 ) (A) and (2) of the Act
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication ]
ployees "who came or were to come" from the manufacturing division As there were
115 employees in the new division the company recognized the representative ae the
bargaining agent of all the employees. Since the union had a clear majority of all the
employees in the new unit, without cards from the former manufacturing employees, I
hul to see how this case has any bearing on the present issues