Hattiesburg Lumber and Supply Co.

In the Matter of HArrIESBURO LUMBER AND SUPPLY COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA, CIO Case No. 15-CA-70.-Decided May 12,1949 DECISION AND ORDER On March 3, 1949, Trial Examiner C. W. Whittemore 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 certain affirmative action, as set forth in the copy of the Interme- diate Report attached thereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report, and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this proceeding to a three-member panel [Chairman Herzog and Members Reynolds and Gray]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief filed by the Respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. We have again carefully considered the Respondent's contention and argument in its brief that the Board lacks jurisdiction over its operations. We see no reason to depart from our original finding that Respondent's operations affect interstate commerce Y' The fact that there may be no labor dispute presently in existence between Respond- ent and its employees neither deprives the Board of its jurisdiction in this proceeding, nor prevents it from finding that Respondent is engaging in an unfair labor practice by refusing to bargain with International Woodworkers of America, CIO. 1 Case No. 15-R-2176, decided July 1, 1948. See N L. R. B. V. Robert S Green, Inc, 125 F. (2d) 485 (C. A. 4) ; N. L. R. B. V. Suburban Lumbo- Co., 121 F. (2d) 829 (C. C. A. 3), cert. den 314 U. S 693. 83 N. L. R. B., No. 80. 501 844340-50-vol 83-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Re] ations Board hereby orders that the Respondent, Hattiesburg Bum- ber and Supply (company, Hattiesburg, Mississippi,,and its officers, agents, successor`s, and assigns, shall: 1. Cease and desist from : . - ' (a) Refusing to recognize and bargain collectively with Interna- tional Woodworkers of America, `CIO; as'- the exclusive representative of all its production and maintenance employees, including yard and planer mill employees, retail delivery employees, and firemen, but excluding all office and clerical employees, watchmen, and supervisors as defined by the Act; (b) In any other manner interfering with the efforts of Interna- tional.Woodworkers of America, CIO, to negotiate for or represent the employees in the aforesaid unit as their exclusive bargaining agent. 2. Take the following affirmative action which the Board finds will. effectuate the policies of the Act: (a) Upon request, bargain collectively with International Wood-, workers of America, CIO, as the exclusive bargaining representative of all the employees in the aforesaid unit, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, and, if an understanding is reached, embody it in a signed agreement; (b) Post at its Hattiesburg, Mississippi, plant, copies of the notice attached to the Intermediate Report, marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director of the Fifteenth Region, shall, after being duly executed by the Respondent's repre- sentative, be posted by the Respondent . immediately- upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places. where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material; (c) Notify the said Regional Director in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. ' Said notice , however, shall be, and it hereby is, amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order." In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." "IBATTIESBURG LUMBER AND SUPPLY COMPANY - 503 INTERMEDIATE REPORT Mr: Andrew P. Carter, for the General Counsel. Mr. M. M. Roberts, of Hattiesburg, Miss., for the Respondent. STATEMENT OF THE CASE Upon a charge filed October 4. 1948, by International Woodworkers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Fifteenth Region (New Orleans, La.) issued his complaint dated January 17, 1949, against Hattiesburg Lumber and Supply Company, Hattiesburg, Miss., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5)' and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended, herein called the Act. Copies of the complaint, accompanied by notice of hearing and the charge were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent: (1) on or about September 17, 1948, refused and since then has continued to refuse to bargain collectively, upon request, with the Union as the-exclusive representative of its employees in an appropriate unit, although the Board certified the Union on or about September 3, 1948; and (2) by such conduct has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On January 26, 1949, the Respondent filed its answer in which it denied the commission of unfair labor practices, and affirmatively alleged that the Board lacked jurisdiction on several grounds, including: (1) that the Respondent is not engaged in commerce within the meaning of the Act ; and (2) that the Respondent under Board procedure is denied the right of trial by jury, as guaran- teed by the Fourteenth Amendment to the Constitution of the United States. Pursuant to notice a hearing was held at Hattiesburg, Miss., on February 5, 1949, before the undersigned, a trial examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented at the hearing, participated therein, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing the Trial Examiner overruled an objection by the Respondent to proceeding with the hearing; said objection being grounded upon various claims, including the contentions that the Board and the Act violated several articles and sections of the Constitution, and deprived the State of Mississippi of "the rights of its citizenship to local self-government." At the conclusion of the hearing ruling was reserved upon the Respondent's motion to dismiss the complaint; said motion being based upon similar grounds to those 1 The General Counsel and his representative at the hearing are herein called the General Counsel and the National Labor Relations Board is called the Board. 2 The complaint actually alleges violations of Section 8 (1) and (5). It is apparent that "(a)" was inadvertently omitted, since the first paragraph of the complaint refers generally to the amended Act. In any event, the unfair labor practices alleged occurred in September 1948, after the amended Act became effective, and Sections 8 (1) and (5) of the original Act were reinstated as Sections 8 (a) (1) and (5) of the amended Act. Neither in its answer nor its brief does the Respondent raiaa any question as to what, at most, was a typographical error in the complaint. it 504. DECISIONS OF NATIONAL LABOR RELATIONS- BOARD urged in support of its objection to 'the proceeding. The motion is hereby denied' The parties waived oral argument. A brief has been received from the Respondent. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Hattiesburg Lumber and Supply Company is a partnership located at Hatties- burg, Mississippi, where it is engaged in the wholesale and retail and distribution of lumber and building materials. During 1948 the Respondent purchased lumber and other building materials valued at about $375,000, of which approximately 25 percent came from points outside the State of Mississippi ; during the same period it sold and shipped lumber and other building materials valued at about $785,000, of which approxi- mately 23 percent was shipped to points outside the State of Mississippi. On July 1, 1948, the Board found, contrary to the Respondent's contention, that it was engaged in commerce within the meaning of the Act, apparently ba§ing this finding upon the fact "that approximately 28 percent of its purchases, and approximately 17 percent of its sales, are made out of state." ° There is no evidence of any material change in the nature of the Respondent's business since the Board's finding, above noted. It is therefore found, contrary to the Respondent's contention, that it is engaged in commerce within the meaning of the Act. IL THE ORGANIZATION INVOLVED International Woodworkers of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit The complaint alleges and the Board found, in Case No. 15-11r2176, decided July 1, 1948, that the following employees of the Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees, including yard and planer mill employees, retail delivery employees, and firemen, but excluding all office and clerical employees, watchmen, and supervisors as defined by the Act. No evidence was offered at the hearing in these proceedings, by the Respondent, relating to the appropriate unit. It is therefore concluded and found that the above-described unit is appropriate within the meaning of Section 9 (b) of the Act. 3 The Trial Examiner considers it not to be within his province to pass upon Constitution points raised by the Respondent. Most, if not all, have previously been determined by. various Courts to be without merit. 4 15-R-2176. HATTIESBURG LUMBER AND SUPPLY COMPANY 2. Majority representation 505 . • On September 3, 1948, following a Board election conducted on August 24, 1948, the Board certified the Union as the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment. • No evidence was offered by the Respondent at the hearing to show that the Board's certification is invalid or that since the certification there has been any change in the desires of the employees as to their bargaining representative. The Trial Examiner therefore concludes and finds that on September 3, 1948, and at all times since then the Union was, and now is, the exclusive representa- tive of all employees in the appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 3. The refusal to bargain On September 16, 1948, a union representative sent a letter to the Respondent, asking for a meeting as soon as convenient for the.purpose of negotiating a labor agreement. On September 17, 1948, counsel for the Respondent replied to the above request stating that "we do not plan to negotiate with you or your organiza- tion" and adding for the "information" of the union representative, that the Respondent did not believe that the Board had jurisdiction in the matter. The Trial Examiner concludes and finds that on September 17, 1948, the Respondent refused, and at all times since then has continued to refuse, to bargain collectively with the Union as the exclusive representative of its em- ployees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE . The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among several States and tend to lead to,labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the.policies of the Act. It has been found that the Respondent has refused to bargain collectively upon request with the Union as the exclusive representative of Its employees in an appropriate unit. It will be recommended that the Respondent, upon request, bargain collectively with the Union. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. International Woodworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All production and maintenance employees, including yard and planer mill employees, retail delivery employees, and firemen , but excluding all office and .clerical employees, watchmen, and supervisors as defined in the Act, constitute a unit appropriate, for the.purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. International Woodworkers of America, CIO, was on September 3, 1948, and at all times thereafter has been, the exclusive representative of all of the : employees in the above appropriate unit for the purposes of collective bargaining :within the meaning; of Section 9 (a) of the Act. 4. By refusing on September 17, 1948, and at all times thereafter, to bargain collectively with International Woodworkers of America, CIO, as the exclusive representative of all of its employees in said appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. , 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the 'basis of the foregoing findings 'of fact and conclusions of law, and +iipon the entire record in the case, the Trial Examiner' recommends that the -Respondent,. Hattiesburg Lumber and Supply Company, Hattiesburg, Miss., its -officers, agents, successors and assigns , shall: 1. -Cease and ;desist from : (a) Refusing to bargain collectively with International Woodworkers of America, CIO, as the exclusive representative of all ' of its employees in the above-described appropriate unit; , - (b)' In any other manner interfering with the efforts of International Wood- workers of America, CIO, to negotiate for or to represent the employees in the above-described appropriate unit, as their exclusive bargaining agent. 2. Take the following affirmative action, which the Trial Examiner finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Woodworkers of America, CIO, as the exclusive representative of all of its employees inI the ,aforesaid appropriate unit, with respect to grievances, labor disputes, wages, .rates of pay, hours of employment, or other terms or conditions of employment, and, if an understanding is reached , embody it in a signed agreement ; (b) Post at Its Hattiesburg, Miss., plant, copies of the notice attached hereto and marked "Appendix." -Copies of said notice, to be furnished by the Regional Director of the Fifteenth Region, shall, after being duly executed by the Respond- ent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material ; (c) Notify the said Regional Director in writing within twenty (20) days ,from the date of the receipt of this Intermediate Report what steps the Respond- ent has taken to comply with the foregoing recommendations. HATTIESBURG' LUMBER AND ' SUPPLY `COMPANY 507 It is further recommended that unless the Respondent shall, within twenty (20) days from the receipt of this Intermediate, Report notify the Regional .Director for the Fifteenth Region, in writing.that it; will, comply with, the fore- going recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action above stated. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, -file with the Board, Rochambeau Building, Washington 25,- D. C., an original and six copies of a statement in writing setting forth such exceptions ,to, the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Imme- diately upon the filing of such statement of exceptions and/or briefs, the party tiling the same shall serve a copy thereof upon each of the other parties. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire per- mission to argue orally before the Board, request therefor must be made in writ- ing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and rec- ommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, con- clusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 3rd day of March 1949. C. W. WHITTEMORE, Trial Examiner. "APPENDIX" NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a 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 in any manner interfere with the efforts of INTERNATIONAL WOODWORKERS OF AMERICA, CIO, to negotiate for or to represent the employees in the appropriate unit described below, as their exclusive bargaining agent. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, including yard and planer mill employees, retail delivery employees, and firemen, but excluding all office and clerical employees, watchmen, and supervisors as defined in the Act. HATTIESBURO LUMBER AND SUPPLY, COMPANY, Employer. By ------------------ ---- -------------- i T Dated -------------------- (Representat itle) ve) ( This notice must remain posted for 60 days from the date hereof, and must not ,be altered, defaced, or covered by any other material. I