Blue Mountain Mills

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent cease and desist from in any manner interfering with, restraining, or coercing Its employees in the exercise of rights guaranteed by the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following : CONoIusIONs OF LAW 1. United Textile Workers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Wheeler Roberts and the employees listed on Appendix A, attached hereto, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by 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. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A Harry Ruffner Irene Hill Felix Alley Liner Newby Raymond Wolfe Margaret Strader Teddy Manday Jim Thompson Robert Reed Lawrence Hemby Jim Galloway Russell Kincannon Edward Hollaway Ted Barnett Faye Schoolfield Henry Hill Eugene Gillum Floyd Reed, Jr. Frank Knox Dallas Knox Earl Fugate Effie Fugate Paul Agee Harold Garden G. C. Thurman Howard Laman Raymond Brady Virgil Smith Edward Steincipher Frank Cunningham Lois Dye Harold Strader James A. Smith Evie Jo Fugate June Schoolfield Dawes D. Hall Nettie Romines Harold Cawood James D. Wilkey BLUE MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY and LUM- BER AND SAWMILL WORKERS, LOCAL UNION No. 2545, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No. 36-CA-229. October 91, 1952 Decision and Order On February 11, 1952, Trial Examiner Martin S. Bennett issued his Intermediate Report in this proceeding, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the com- plaint, and recommending that the complaint be dismissed in its en- tirety, as set forth in the copy of the Intermediate Report attached 101 NLRB No. 11. BLUE' MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY 11 hereto. Thereafter, the Union filed exceptions to the Intermediate Report and a supporting brief. The Respondents requested and were granted permission to file a reply brief. The Board 1 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 Inter- mediate Report,2 the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the qualification noted below. In adopting the Trial Examiner's finding that the General Counsel has not sustained his burden of proving, by a preponderance of the evidence, that the Respondents have engaged in unfair labor prac- tices as alleged in the complaint, the Board is not to be considered as adopting all of the Trial Examiner's subsidiary findings or all the details of the reasoning by which the Trial Examiner reached his conclusion. We shall dismiss the complaint in its entirety. 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 Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston , Murdock, and Styles]. In describing the composition of the board of directors of the Walker Logging Company, the Trial Examiner by inadvertence listed as such directors only members of the Welch family and Nye. The record, however, shows, and we find, that the board of directors consisted of J. D. Welch , Oscar H. Welch, Elwood C. Welch, Jr., Harry C. Welch, T. L. Nye, and Lewss Walker. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed on June 5, 1951 , by Lumber and Sawmill Workers, Local Union No. 2545, United Brotherhood of Carpenters and Joiners of America, AFL, herein called the Union or Local 2545 , against Blue Mountain Mills , and on an amended charge filed on October 26, 1951 , by the Union against Blue Mountain Mills and Dayville Lumber Company, herein jointly called Respondent,' the General Counsel of the National Labor Relations Board , by the Regional Direc- tor for the Nineteenth Region ( Seattle, Washington ), issued a complaint dated October 26, 1951, against Respondent. The complaint, as amended, alleged that Respondent had engaged 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, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, com- plaint, and notice of hearing thereon were duly served upon the parties. 1 The complaint was amended at the hearing to reflect the correct name of Blue Mountain Mills. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Specifically, the complaint alleged that (1) the Union had represented a ma- jority of Respondent's employees at the Dayville Lumber Company operation since July 25, 1944, in an appropriate bargaining unit; (2) on or about March 30 and May 22, 1951, the Union had requested Respondent to recognize and to bargain with it as the representative of the aforesaid employees; and (3) on and after March 30, 1951, Respondent has refused to bargain with the Union. Sepa- rate answers were filed by Blue Mountain Mills and Dayville Lumber Company ; the former alleged that during the period specified by the complaint the premises in question were leased and operated by Dayville Lumber Company ; the latter, inter alea, alleged that the Union was not the majority representative of the em- ployees in the above-described unit and that no demand had been made upon Dayville Lumber Company to bargain with the Union. Pursuant to notice, a hearing was held at Canyon City, Oregon, on December 11 and 12, 1951, before the undersigned Trial Examiner, Martin S. Bennett. All parties were represented by counsel who participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the hearing, the under- signed granted a motion by the Union to substitute Lumber and Sawmill Workers, Local Union No. 2924, United Brotherhood of Carpenters and Joiners of America, AFL, herein called Local 2924, in place of Local 2545 as the aggrieved labor organization. At the close of the hearing, the undersigned reserved ruling on a motion by Respondent to dismiss the complaint ; it is disposed of by the findings hereinafter made. The parties were then afforded an opportunity to present oral argument and to file briefs and/or proposed findings and conclusions with the undersigned. Oral argument was waived and a brief has been received from Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Blue Mountain Mills is an Oregon corporation which maintains its principal office and place of business at John Day, Oregon, where it is engaged in the opera- tion of a sawmill and the processing of lumber. It annually produces and sells lumber and lumber products valued in excess of $4,000,000, of which approxi- mately 90 percent is shipped to points outside the State of Oregon. Its corporate stock is completely owned by John and Fred Hudspeth and members of their families, these interests having acquired control in December 1950; active opera- tion of Blue Mountain Mills by the Hudspeth interests commenced on or about February 9, 1951. Dayville Lumber Company, a limited partnership consisting of John and Fred Hudspeth and their wives, operated a sawmill at Dayville, Oregon, from April 9, 1951, up to and including June 14, 1951. Dayville Lumber Company, an Oregon corporation which maintains its principal office at Prineville, Oregon, was in- corporated on or about June 15, 1951. On the latter date the limited partner- ship, which had operated its sawmill under a lease from Blue Mountain Mills, assigned the lease to Dayville Lumber Company, a corporation, which proceeded to operate the same sawmill during 1951. The latter corporation is also owned and controlled by John and Fred Hudspeth and their wives. During 1951 and subsequent to June 12, 1951, Dayville Lumber Company, a corporation, produced lumber and lumber products valued in excess of $500,000, of which approximately BLUE MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY 13 '90 percent was shipped to points outside the State of Oregon.2 It is clear and the undersigned finds that Blue Mountain Mills and Dayville Lumber Company are each engaged in commerce within the meaning of the Act. Moreover, the record demonstrates that these concerns are parts of a unitary enterprise and that they constitute a single employer within the meaning of the Act. Thus, the two Hudspeths and their families own all of the stock and com- pletely control the operations of both concerns. The record demonstrates that Dayville is actually a satellite of Blue Mountain Mills. All of the mill equipment used by Dayville is leased to it by Blue Mountain. The very land on which the Dayville sawmill is set up was leased by persons not involved herein to Blue Mountain, which, in turn, sublet the land to Dayville as a partnership. In May 1951 the lease expired and a new lease of the land was undertaken by the two Hudspeths as individuals and they in turn, on or about June 15, assigned the lease to Dayville, the newly formed corporation. Dayville operates a sawmill with no other facilities, whereas Blue Mountain operates a sawmill and has dry kiln and planning facilities. Blue Mountain frequently contracts with Dayville to take over the rough lumber, process it, and ship it to the purchaser via Blue Mountain trucks at a charge of so much per unit. While each corporation has its own trucks, they frequently truck for each other ; bills are rendered and payment made for such services. Some of the Dayville books are maintained at the Blue Mountain office, and in fact the pay- roll clerk of the latter concern makes up the payroll for Dayville. Similarly, the Blue Mountain office handles and pays the Dayville bills ; charges are rendered for all such services. A similar policy is followed with respect to Blue Mountain electricians who perform all Dayville electrical work. In fact, a house organ published by Blue Mountain on March 31, 1951, the format of which has since been changed, refers to the assuming of full interest in the corporation by the Hudspeths and also to the contemplated opening of Blue Mountain Mills at Dayville. Dayville closed down its sawmill on or about August 24, 1951, instead of the customary closing date in November or December with the advent of winter weather. It is contended that Dayville was formed to handle one contract for lumber ; that this contract was about complete ; that operations will be discon- tinued when this contract is complete ; and that at that time the mill equipment will be sold, presumably by Blue Mountain, or else put to use by Blue Mountain. Be that as it may, the record still amply demonstrates that the two corporations are currently in existence and are closely interwoven parts of a unitary enterprise which, as a single employer, is engaged in commerce within the meaning of the Act. N. L. R. B. v. Wentworth Bus Lines, 191 F. 2d 849 (C. A. 1) ; Hill Trans- portation Company, 75 NLRB 1203, enfd. without opinion December 7, 1948 (C A. 1) ; Bemvis Bros. Bag Co., 95 NLRB 44; and Launderepair Company, 90 NLRB 778. II. THE ORGANIZATIONS INVOLVED Lumber and Sawmill Workers, Local Union No. 2545, United Brotherhood of Carpenters and Joiners of America, AFL, and Local Union No. 2924 of the same organization, are labor organizations admitting to membership employees of Respondent' s Except where otherwise Indicated, reference to Dayville Lumber Company, herein called Dayville, will be to the corporation which replaced the partnership. There is no evidence of any later business activity by the partnership. 8 Local 2924 represents the employees of Blue Mountain Mills who are not directly involved herein. As will appear below in more detail, Local 2545 is no longer actively in existence and In some degree at least has consolidated with Local 2924. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Introduction 1. The issue ; background The present issue, set forth hereinafter in more detail and involving a some- what intricate corporate history, reduces itself to the following : Does a 2-year contract between Local 2545 and Walker Logging Company, the operator of the Dayville sawmill under a lease from Blue Mountain Mills for the 1950 season, bind the new owners of the lessor, Blue Mountain, in their operation of the saw- mill at Dayville during 1951? Complicating this further is the factor that the Union has passed out of existence and has been replaced by a sister local as the would-be beneficiary of an order to bargain. Blue Mountain Mills was originally a partnership until 1948 when it was incorporated in Oregon. It thereafter operated two sawmills at John Day and Dayville, Oregon, respectively, both under the name of Blue Mountain Mills. This proceeding is concerned solely with the Dayville operation. The John Day operation has been for some years under contract with Local 2924, which is cur- rently recognized as the bargaining representative of its employees. The Day- ville operation has been under contractual relations with Local 2545 since some- time in 1944, subsequent to its certification by the Board that year. There is some evidence, though not developed by direct testimony, that Local 2545 won a union-security election in June of 1948 covering the Dayville operation. After its incorporation in 1948, control of Blue Mountain was largely in the hands of various members of the Welch family. Three of them were its officers during 1950 and four, plus one T. L. Nye, constituted its board of directors. These sawmills customarily close down with the advent of inclement weather in December, and do not reopen until late February or early March. Such was the case in the spring of 1950, although there was then a change in the operator of the mill at Dayville. According to the uncontroverted testimony of Oscar Welch, the board of directors of Blue Mountain had tentatively decided in De- cember of 1949 to abandon the Dayville operation. The minutes of the corpora- tion disclose a vote, at a meeting of the board of directors held on December 21, 1949, to abandon the Dayville operation when the existing supply of logs in storage there had been processed ; to move the dry kiln from Dayville to the sawmill at John Day ; and to operate the latter mill on two shifts. However, after so voting, another development arose at the very same meeting. Walker Logging Company, an Oregon corporation and herein called Walker, proposed that it lease the sawmill for the 1950 season. The board of directors then voted to accept the proposal and further voted to authorize a lease of the Dayville plant to Walker for a period of 1 year at a rental predicated upon so much per thousand board feet of production. The lease was duly executed ; the mill was operated by Walker during the 1950 season with substantially the same employees who worked during the previous season, the latter having been informed that they were employees of Walker and in fact receiving their remuner- ation from that source. The season terminated on or before December 15, 1950, and Walker turned the mill back to Blue Mountain which did not, under its then ownership, operate the mill again. Nor has Walker been back in the pic- ture. The contract in question herein was entered into by Local 2545 and Walker on June 10, 1950. It may be noted that the position of the General Counsel is solely that the duty to recognize and bargain pursuant to the provisions of this contract binds the present operator of the Dayville sawmill until its expiration in June of 1952. BLUE: MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY 15 Before turning to the change of ownership in Blue Mountain, the following may be noted with respect to Walker. On the one hand, there is some evidence that Walker and Blue Mountain, under its original ownership, were an integrated concern and a single employer under the Act. Thus, although Lewis Walker owned 50 percent of the Walker stock, the remainder was owned by various members of the Welch family and Nye, the same group associated in the opera- tion of Blue Mountain. The board of directors of Walker was comprised of the Welches and Nye. Moreover, Lewis Walker had been employed by Blue Mountain for several years as superintendent of the Dayville operation. On the other hand, according to Oscar Welch, there was no connection between the two corpo- rations. He claimed that Walker was engaged primarily in the business of logging since its incorporation in 1948 and that it was still so engaged. In fact, Walker is currently engaged in logging operations in Idaho. And as Lewis Walker would have been out of work for the 1950 season, in view of the impending shutdown of Dayville, it would seem that Walker, through its principal stock- holder, Lewis Walker, decided to lease the sawmill for the 1950 season. Note- worthy too herein is the fact that Lewis Walker was not a stockholder in Blue Mountain. Under the circumstances, with their sole common factor being some degree of parallel ownership, the evidence does not preponderate in favor of a finding that Blue Mountain and Walker, at the time of the lease to the latter, were an integrated and unitary enterprise and therefore a single employer under the Act. There is, furthermore, nothing to indicate that the Walker lease re- sulted from an intent to evade collective bargaining. Finally, in the view of the undersigned, a resolution of the principal issue herein does not turn on whether or not they were in fact integrated. B. The facts 1. The 1950 contract at Dayville On June 10, 1950, Lewis Walker, in behalf of Walker, and representatives of Local 2545 agreed in writing to be bound by the agreement currently being negotiated by Blue Mountain with Local 2924. It appears that the latter agree- ment was agreed upon late in May but was not executed in final form until June 24, 1950. This agreement provided for recognition of Local 2924 as the representative of the production and maintenance employees at the John Day operation ; it further provided that it would remain in force until June 1, 1952, and for a 2-year period thereafter absent notice to modify within prescribed periods. While some testimony was presented by Oscar Welch to the effect that Lewis Walker had no authority to execute the agreement, it was of an uncon- vincing nature. Walker was president of the corporation and owner of 50 per- cent of its stock. Furthermore, Welch sat in on some of the contract meetings and at no time informed the union representatives that Walker had no authority to execute the agreement ; In fact, there is no evidence that the claim was ever raised during the operation of Dayville or prior to the instant hearing. Accord- ingly, this testimony by Welch is not credited. 2. The sale of Blue Mountain Mills On December 9, 1950, all of the stock of Blue Mountain Mills was purchased by outside interests consisting of John Hudspeth, Fred Hudspeth, and their wives. They did not assume active control until on or about February 9, 1951, at which time new stock certificates were issued. It may be noted that Blue Mountain, as then constituted, consisted of the John Day operation and the 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dayville sawmill operation , the latter consisting of land leased to Blue Moun- tain by persons not involved herein and theretofore operated by Blue Mountain, and in 1950, by Walker, with Blue Mountain equipment. John Hudspeth's testimony relative to his knowledge , at the time of pur- chase, of labor contracts was not clear . While in one place he testified that he made no inquiry concerning any labor contracts at John Day, he later testified that the matter had been discussed and also that he had been informed there was a union contract at Dayville. The undersigned finds therefore that at the time the Hudspeth interests purchased Blue Mountain Mills they were on notice that there were contracts with labor organizations at both Blue Mountain operations. 3. Formation of Dayville Lumber Company As heretofore found, the Hudspeths set up a family limited partnership under the name of Dayville Lumber Company to operate the sawmill at Dayville. The real estate at Dayville was at the time under lease to Blue Mountain which sublet it to Dayville together with the necessary mill equipment . In May of 1951 , the land lease expired and a new lease was made by the lessors to the two Hudspeths who, on June 15, assigned it to the newly formed corporation, also called Dayville Lumber Company. The latter concern operated the mill until on or about August 24 , 1951, when milling operations ceased. According to John Hudspeth, the corporation was formed to handle one contract which, at the time of the hearing, was substantially complete ; that he did not plan to operate Dayville during the 1952 season ; and that the mill equipment would be sold or turned back to Blue Mountain. As found above , Blue Mountain and Dayville , both as a partnership and a corporation, are integral parts of a unitary enterprise which is owned and operated by the Hudspeths . In practical effect there has been no change of any substance in the method of operation of the two mills from the time when Blue Mountain , under its original ownership , operated them . It is further found, however, in view of the complete change of ownership in Blue Mountain, that Blue Mountain and Dayville, as presently constituted , are distinct and entirely separate from Walker Logging Company and that there is no relationship between the two. 4. Communications between the Union and Respondent The Dayville operation closed down for the winter of 1950; it was not re- opened for production activities until on or about April 9, 1951, although some preliminary maintenance work was done after February 24. Actual operations began on April 9, with 25 to 30 employees , and rapidly expanded ; after several weeks a second shift was added , this increasing the complement to approximately 70. These 1951 operations were under the control of the Hudspeth interests who established the Dayville Lumber Company, originally a limited partnership and thereafter, subsequent to June 15, a corporation. The evidence in support of the alleged refusal to bargain consists of two letters and one telephone conversation . The telephone conversation was between Representative Clarence Briggs of United Brotherhood of Carpenters and Joiners of America , and John Hudspeth , president of Dayville. Both testified concern- ing the talk and the versions are diametrically opposed. According to Briggs, he telephoned Hudspeth on or about March 17 or 18, 1951 , and asked for a meeting concerning the John Day and Dayville operations . Hudspeth allegedly declined to have such a meeting , stating that he was opposed to unions and that BLUE, MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY 17 Dayville would be operated as a nonunion operation or not at all. According to Hudspeth, Briggs asked for an appointment to discuss the labor problems at Dayville. He replied that his attorney in Portland, whom he identified, was handling the matter and that Briggs should contact him . Briggs, in his testi- mony, did not recall any such statement by Hudspeth. In view of the findings which follow hereinafter, it is deemed unnecessary to resolve this conflict. Briggs did not contact Hudspeth or any representative of management again, although he did help in the preparation of the two letters which appear below. On March 30, 1951, and still prior to the commencement of actual operations at Dayville, the following letter was sent to William Powell, who has been manager of Blue Mountain Mills at John Day since January 1, 1951, but has no official connection with the Dayville operation. While, on occasion, he makes trips to Dayville, the latter is under the direct supervision of Superintendent Joseph Salasbery. The letter, in whose preparation Briggs assisted, read as follows : BEND, OREG., March 30, 1951 BLUE MOUNTAIN MILLS CO., John Day, Oregon. (Attention: Mr. Wm. Powell, Gen. Mgr.) DEAR SiR: This letter is in behalf of Local Union #2545, Lumber and Sawmill Workers, A.F. of L., at Dayville, Oregon and the Central Oregon District Council, A.F. of L., at Bend, Oregon, representing all local unions under the jurisdiction of this Council, which Local Union #2545 is one. Therefore, I would like to draw your attention to our feelings regarding your plant at Dayville, Oregon. In the past, this plant was, and we feel now is, a part of the Blue Mountain Mills Company. We have had this plant under contract with Local Union #2545 and the Walker Logging Company or Mr. Louis Walker, Manager, to whom the Blue Mountain Mills Company leased this plant. Therefore, we demand that your Company, the Blue Mountain Mills Com- pany, recognize our organization, the Lumber and Sawmill Workers, A.F. of L., affiliated with the Brotherhood of Carpenters and Joiners of America, as the exclusive bargaining agency at your plant in Dayville, Oregon, under the present existing agreement. I feel that it is better that we try to under- stand this situation as it is, so that we may have good labor-management relations. Wishing a favorable reply on this matter, I remain, Yours very truly, (S) Floyd Thomas, Central Oregon, District Council. FLOYD THOMAS, Secretary. Powell did not reply to this letter. According to his uncontroverted testi- mony, he was visited shortly thereafter by Thomas who spoke to him about union recognition at Dayville. Powell informed him that he had no connection with Dayville ; that the latter "was a separate and distinct company of its own" ; and that he, Thomas, would have to take up the matter with the owners of Dayville. According to the uncontroverted testimony of Dayville Superin- tendent Joseph Salasbery, Thomas appeared at the mill on one occasion in July but made no claims with respect to recognition or collective bargaining. It may be noted at this point that although Blue Mountain and Dayville constitute an integrated employer, they were nevertheless separately managed at that plant superintendent level. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas addressed another communication to Powell . It read as follows : BEND, OREG., May 22, 1951. Mr. WILLIAM PowELL, General Manager, Blue Mountain Mi118 Company, John Day, Oregon. (Attention : Mr. Powell.) DEAR SIR : On March 30, 1951, this office wrote you a letter regarding our position as a legitimate Labor Organization and your company's operation at Dayville, Oregon. We contend that Local Union #2545 and the Central Oregon District Council, A. F. of L., of which Local Union #2545 is an affiliate, have had said plant under contract for several years past. Our organization, through a National Labor Relations Board election, secured certification as the Bargaining Agency for your plant at Dayville, Oregon. Again, on June 22, 1948, a National Labor Relations Board Union Shop Election was held and was won by a large majority. At the time these elections were held, this plant was owned and operated by the Blue Mountain Mills Company of John Day, Mr. J. D. Welch, Jr., President and General Manager. I am setting out this information that you may have a clear-cut picture of our thinking. Now regard further, the letter this office wrote you on March 30, 1951, from which we received no reply. Once more we are asking you and your Company to recognize Local Union #2545 as the sole Bargaining Agency for your operation at Dayville. If this cannot be done, you are forcing us into the position of resorting to the proper Federal Agencies to protect our interest and our rights as organized people. I wish to say, also, that we are reluctant to resort to a third party in settling our problems that may arise. We also feel that if Management and Labor can set down and discuss our problems, a settlement can be reached on some of the most distasteful problems. We are willing at any time to set down and talk over any problem that might confront us and with this feeling, we would appreciate your reply on this matter. I am, Yours truly, CENTRAL OREGON DISTRICT COUNCIL, ( S) FLOYD THOMAS. Floyd Thomas, Secretary & Buaineaa Agent for Local Union #2545, Dayville, Oregon. [Emphasis added.] Powell did not reply to this letter. One other matter may be pointed out at this point. Certain testimony, disputed by the Union and set forth below, demon- strates that Local 2545 disbanded in April of 1951. The foregoing signature of Thomas to the May 22 letter supports such testimony inasmuch as there is no evidence of Thomas prior thereto being directly active in the affairs of Local 2545: In addition the earlier letter of March 30 is signed by him in a different manner, solely in behalf of the District Council. 5. Abandonment of the Union Local 2545 was certified by the Board In 1944 and there Is evidence that it won a union-security election in 1948. Its membership, insofar as the record indicates, BLUE MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY 19 appears to have been confined to the Dayville plant which changed hands in December 1950 at a time when it was shut down for the winter. For reasons undisclosed by the record. interest in the Union dwindled at Dayville and its membership fell off sharply. Finally, early in April of 1951, and prior to the reopening of Dayville on April 9, a certain significant meeting of its membership took place. According to Briggs, who did not attend the meeting, Local 2545 had 12 to 14 members at the time. The meeting was duly called and was attended by Financial Secretary Moulton and member Vernon Officer of Local 2545 who testified herein for the General Counsel' The meeting was attended by a group which was variously estimated as being between 8 and 11 in number. This group, it is clear, comprised about all if not all of the then members. They voted, as Lahman testified, "to dis- continue being a union." The testimony of those present is that as a result of their dwindling membership, the reasons for which are not furnished by the record, they voted to abandon further participation in Local 2545. There is also some testimony to the effect that this vote was unanimous. Save for the telephone call and two letters set forth above, there were no further union activities by Local 2545 as such. According to Superintendent Salasbery of Dayville, he was never contacted by any officials from Local 2545; the testimony of Moulton is in agreement. Conditions remained in this state until the fall of 1951. According to Financial Secretary Moulton, the membership of Local 2545 decided in September of 1951, as a result of their dwindled mem- bership, to merge with Local 2924, the bargaining representative at Blue Moun- tain's operation at John Day. Moulton testified that the membership of Local 2545 was summoned to a meeting to treat with this proposal and that 6 or 7 of the 12 members attended. In his testimony, he did not attempt to reconcile this meeting with the earlier action in April. According to Representative Briggs, this meeting was held late in August or early in September at his request and the question of the merger was taken up. It is claimed that, as a result of this meeting, Moulton sent a letter, which was introduced in evidence by the Union and appears below, to the recording secretary of Local 2924 on September 20. It reads, in part, as follows : Inasmuch as local union 2545 is as of the end of September 1951 consolidat- ing with your local union no. 2924, John Day, Oregon, we herewith take this official action this 20th day of September 1951. That we, the members of local union 2545, Dayville Oregon assign, grant and convey to the said local union 2924 John Day, our agreements, actions, papers or rights we may have now and forever. To become the sole and complete property of the said local 2924 John Day, Oregon, the same as if they had signed the said agreements, actions, papers or other documents. This expressly conveys all rights of local 2545 Dayville, Oregon in the unfair charges case now pending before the National Labor Relations Board, against the Blue Mountain Mill and its owners, covering the plant located some few miles west and north of Dayville, Oregon. However, the testimony of the five then members who attended the April meeting described above throws considerable doubt upon the reliability of this testimony by Moulton. Thus, Martin, Starrett, Smoczynski, Lahman, and 4 Findings herein are based upon the testimony of Daniel Lahman, a clear and forthright witness whose testimony is corroborated by that of then members Martin, Starrett, Smoczynski, and Valade who attended the meeting. The testimony of Moulton sub- stantially agreed with theirs. Officer presented some contrary testimony which is not credited. 242305-53-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valade received no notice of a meeting held late in August or early in September; they did not know of such a meeting. Surely, so large a proportion of the ad- mittedly small membership would have been familiar with the meeting had one been held as claimed. Moreover, still other factors cast doubt upon the correctness of the facts stated in this letter of September 20, insofar as it implies that Local 2545 did not abandon all activity during the previous April. Thus, the letter refers (1) to the fact that the two locals were consolidating and (2) that as of that date, September 20, all interests of Local 2545, including its interest in the instant proceeding, were being assigned to Local 2924 which has become the party in interest herein. However, 2 days earlier, on September 18, a letter was sent by Briggs to the membership of Local 2545, as reflected in its records. This letter, introduced in evidence by Respondent, is (1) silent con- cerning any vote to consolidate, though this purportedly took place some weeks prior to September 18, and is (2) silent concerning any meeting late in August or early in September ; it further offers the respective members an opportunity to transfer into Local 2924 and invites them to attend a meeting to be held on October 8 to complete the affairs of Local 2545. In sum, the September 18 letter invited the members of Local 2545 to trans- fer to Local 2924 and scheduled a meeting of Local 2545 on October 8 for that purpose. Although it referred to the Dayville mill being shut down, it was silent concerning any proposed merger of the two locals. Yet 2 days later, in the September 20 communication introduced herein by the Union, mention is made of the fait accompli of a previously voted-on merger and transfer of all records. In the view of the undersigned, this letter of September 20 is incom- patible with the facts developed herein and serves only to buttress the testimony of the five witnesses for Respondent that there had been no merger meeting in September and that the membership had voted to abandon all union activity at the meeting held early in April, prior to the opening of Dayville for the 1951 season. The undersigned finds, therefore, that Local 2545 disbanded in April of 1951, constitutionally or otherwise, and that, in the posture most favorable to the General Counsel, an attempt was made approximately 5 months later by officials of the Union to transfer such rights as existed in the 1950 contract covering the Dayville operation to Local 2924. In so finding, the undersigned does not pass upon the validity and legality of the amalgamation of the two locals. C. The alleged refusal to bargain 1. The appropriate unit The complaint alleges, there is no evidence to the contrary, and the under- signed finds that all employees of Dayville Lumber Company, excluding con- struction workers, guards, independent contractors and employees thereof, clericals, and office and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation of a majority in the appropriate unit ; alleged refusal to bargain The position of the General Counsel is solely that Respondent had a duty to bargain with the Union pursuant to the unexpired Walker contract. However, for the reasons set forth below, the record will not support a finding that the Union, at the time of the alleged unfair labor practices, represented a majority of the employees in the above-described appropriate unit. The record will like- BLUE MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY 21 wise not support a finding that Respondent refused to bargain with the duly designated majority representative of its employees. (1) Control of Blue Mountain Mills and its two installations at John Day and Dayville, respectively, was taken over by entirely new interests in December of 1951. There was no agreement by the new management to take over the contract with Local 2545 which had been entered into in June of 1950 by Walker during its 1-year lease. Despite the fact that John Hudspeth had at least general knowledge that there was a union contract in the picture, if not the precise details thereof, the issue is whether this automatically bound him to a contract by the lessee of his vendor ; the undersigned thinks not, in the absence of any express agreement to such effect. This is highlighted by the fact that the Walker agreement, scheduled to run for a period of 2 years, was entered into by Walker who had but a 1 year's lease and then surrendered the premises prior to the expiration thereof. (2) Assuming that the certification of Local 2545 and its victory in a union- security election, dating back to 1944 and 1948 respectively, are some evidence of a continued union majority, this presumption cannot stand in the face of positive evidence that at the time of the alleged demands for recognition in 1951 Local 2545 did not represent a majority of the employees 6 Thus, at the time of the telephone conversation between Briggs and Hudspeth on March 17 or 18, 1951, and the March 30 letter, the plant had not become operative. It opened on or about April 9 with 25 to 30 employees and within several weeks a second shift was added, thereby increasing the complement of personnel to 70. Even the testimony of Briggs, unsupported by any direct evidence of union majority, claims a membership of but 12 to 14 employees in April of 1951. Accordingly, the undersigned finds merit in Respondent's contention, raised in its answer and brief as well as at the hearing, that the Union did not represent a majority of the employees in the unit at the time pertinent herein, and particularly at the time of the May 22 letter. See Celanese Corporation of America, 95 NLRB 664; Acme-Evan Co., 90 NLRB 2107; Home Stores, Inc', 87 NLRB 335; Solomon Co., 84 NLRB 226; Wooster Brass Co., 80 NLRB 1633; and National Distillers Products Corp., 75 NLRB 70.6 (3) Furthermore, Local 2545 voted to disband and abandon all union activity prior to the opening of the plant in April of 1951. A preponderance of the evidence shows that there was no further union activity until a representative of its parent body appeared on the scene in September; thus, Financial Secretary Moulton testified that there was no action at union meetings relative to enforce- ment of the contract at Dayville. Therefore, assuming a duty on the part of Respondent to bargain with Local 2545 with respect to the Dayville operation, pursuant to the Walker contract, it would follow that this duty disappeared with the demise, official or otherwise, of Local 2545. To prevail herein, the General Counsel must perforce contend that this duty to bargain was resurrected by the attempted conveyance in September to Local 2924. This position is deemed to be devoid of merit. Such contract as did exist by a predecessor to the Hudspeth interests was with Local 2545. Assuming the latter organization to have been 6 Any presumption of majority attributable to the certification is rebuttable in view of the passage of so long a period of time. Cf. Krantz Wire & Effg. Co., 97 NLRB 971. The latter case, involving the duty to bargain on the part of a purchaser of a business within the certification year, is distinguishable from the facts in the instant case. ° Assuming that Briggs' version of the telephone conversation with Hudspeth were credited, despite his improbable testimony on the merger of the two locals, the record will not support a finding that this was the cause of the union 's loss of majority . For the record does not disclose when the loss initially came about. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the choice of Respondent's employees, prior to April of 1951, such was not the case in April and thereafter. It is found that there was no duty to bargain with Local 2924 under these conditions. The undersigned will therefore recommend that the complaint be dismissed., Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. The operations of Respondent, Blue Mountain Mills and Dayville Lumber Company, affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local Union No. 2545 and Local Union No. 2924, United Brotherhood of Carpenters and Joiners of America, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. [Recommendations omitted from publication in this volume.] 7 In the final analysis, although it is not dispositive of the present issue, it must be noted that it is improbable that Dayville will resume operations. Thus, both Local 2545 and the business operation involved would be out of existence. BIRDSBORO ARMORCAST, INC.' and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA , AFL, PETITIONER. Case No.4-KC-1668. October °21, 1962 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold Kowal, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Houston, Styles, and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employes of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employes of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: 1 The employer's name appears as amended at the hearing. 101 NLRB No. S.