Roche Harbor Lime and Cement Co.

In the Matter of ROCHE HARBOR LIME AND CEMENT COMPANY and FEDERAL LABOR UNION, LOCAL No. 20438 AFFILIATED WITH THE A. F. OF L. Case No. C-994.-Decided November 21, 1938 Limestone Quarrying Industry-Settlement : stipulation providing for rein- statement without back pay to discharged and laid -off employees , upon resump- tion of operations, in order of seniority ; recognition of union as exclusive collective bargaining representative of employees for fixed period ; and dismissal of complaint as to three employees-Order: entered on stipulation. Mr. G. L. Patterson, for the Board. Kerr, McCord cC Carey, by Mr. W. Z. Kerr, of Seattle, Wash., for the respondent. Mr. Leo F. Flynn, of Seattle Wash., for the Union. Mr. Ivar Peterson, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Federal Labor Union, Local No. 20438, affiliated with the A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by Elwyn J. Eagen, Regional Director for the Nineteenth Region (Seattle, Washington), issued its complaint dated August 26, 1938, against Roche Harbor Lime and Cement Company, Roche Har- bor, Washington, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. Concerning the unfair labor practices, the complaint, in substance, alleged that the respondent through various supervisory officials attempted to interfere with the internal affairs of the Union by instructing members thereof how to vote in elections and on pro- posals coming before union meetings and threatening members with 9 N. L. R. B., No. 96. 1047 1048 NATIONAL LABOR RELATIONS BOARD discharge for statements made in union meetings; that the respond- ent instituted ejectment proceedings against named employees for the purpose of intimidating and coercing said employees because of their union membership and for the purpose of discouraging mem- bership in the Union; that the respondent violated the seniority clause of the labor agreement between it and the Union ; that the respondent discharged named employees because they joined and assisted the Union; that the respondent laid off other named em- ployees and on or about April 23, 1938, laid off all other employees who were members of the Union for a period of a week for the pur- pose of breaking the Union and discouraging membership therein ; that on or about June 9, 1938, the respondent locked out all members of the Union because representatives of the Union refused to accept a proposed contract offered by the respondent; and that since March 3, 1938, the respondent has refused to bargain collectively in good faith with the Union as the representative of the employees at the Roche Harbor plant, although the Union had been designated prior to March 3, 1938, by a majority of the employees in an appropriate unit as their representative for such purposes. On September 2, 1938, the respondent filed its answer to the com- plaint admitting its corporate existence, that the Union is a labor organization within the meaning of Section 2 (5) of the Act, and that the unit alleged in the complaint is appropriate for the purposes of collective bargaining, but denying all other material allegations of the complaint. On September 24, 1938, the Regional Director issued his order postponing the hearing. On October 20, 1938, counsel for the respondent, counsel for the Board, and the business agent of the Union, entered into a stipula- tion in settlement of the case. This stipulation provides as follows : This stipulation made and entered into by and between G. L. Patterson, Regional Attorney, National Labor Relations Board, Nineteenth Region, and the Roche Harbor Lime and Cement Company by and through its attorney, Kerr, McCord, and Carey, and Local No. 20438, by and through Leo Flynn, its business agent. Witnesseth : Whereas, the operation of the Roche Harbor plant of the Roche Harbor Lime and Cement Company (respondent herein) was suspended on June 9, 1938, and operation resumed thereafter on September 12, 1938, and, Whereas, upon charges duly filed by Federal Labor Union, Local No. 20438, affiliated with the A. F. of L., the National Labor Relations Board by the Regional Director for the Nine- teenth Region, acting pursuant to the authority granted in See- DECISIONS AND ORDERS 1049 tion 10 (b) of the National Labor Relations Act (49 Stat. 449) and its Rules and Regulations, Series 1, as amended, Article IV, Section 1, issued its complaint on the 26th day of August, 1938, against the respondent herein ; Now therefore, it is stipulated, admitted and agreed as follows: I That the respondent is a corporation organized under and existing by virtue of the laws of the State of Washington, having its principal production plant and office at Roche Harbor, San Juan Island, State of Washington. The respondent also owns limestone quarries on Orcas Island, and in King County and Snohomish County, all in the State of Washington. Respond- ent at Roche Harbor, Washington, also operates a store, a garage, a hotel, a restaurant, and residential houses for the use and convenience of its employes. The respondent is engaged in quarrying, burning, and processing of limestone, and distri- bution of raw limestone and building lime products at and from its Roche Harbor plant. II That all of the products are sold and shipped by respondent from its Roche Harbor plant through the navigable waters of Puget Sound via common carrier vessels. Likewise, respondent's products are transshipped via common carriers engaged in inter- state commerce, to wit: Union Pacific, Great Northern, Chicago, Milwaukee and St. Paul, and Northern Pacific railway systems. III That the respondent in the course and conduct of the opera- tion of its plant at Roche Harbor, Washington, causes and has continuously caused large quantities of products manufactured by it to be sold, shipped, and transported in interstate commerce to, into, and through States of the United States other than the State of Washington, as hereinafter and more particularly set out in Exhibit A, attached hereto and made a part hereof, to which reference is hereby made; that the spall limestone men- tioned in said Exhibit A is sold exclusively to the American Smelting and Refining Company, Tacoma Smelter, and there- after by it utilized in the smelting and refining of raw ores received by it from several of the States of the United States, Republic of Mexico, Union of Soviet Socialist Republics, Central America, South America, and the Dominion of Canada; there- 1050 NATIONAL LABOR RELATIONS BOARD after refined metals derived from the smelting process are sold, shipped, and transported in interstate commerce to, into, and through States of the United States other than the State of Washington, and in foreign commerce; that in Exhibit A the use of products of respondent, sold to pulp and paper mills, is an indispensable integral part of the production of finished products of said companies. All of the pulp and paper com- panies mentioned in Exhibit A sell, ship, and transport in inter- state commerce to, into, and through the several States of the United States other than the State of Washington, and in foreign commerce, their finished products. IV That the respondent purchases on the mainland of the State of Washington and causes to be shipped by common carrier vessels through the navigable waters of Puget Sound a sub- stantial part of the supplies required by respondent in the operation of its plant and other facilities at Roche Harbor, Washington. V That respondent, Roche Harbor Lime and Cement Company, is engaged in interstate commerce within the meaning- of the National Labor Relations Act and decisions of the United States Supreme Court thereunder. VI That said Labor Union, Local No. 20438, affiliated with the A. F. of L., is a labor organization within the meaning of Section 2, subdivision (5) of the Act. VII All of the employes of the respondent, with the exception of foremen, office, store, and hotel employes, constitute a unit ap- propriate for collective bargaining purposes in order to insure to its employes full benefit of their rights to self-organization and to collective bargaining and otherwise to effectuate the policies of the Act within the meaning of Section 9, subdivision (b) of the Act.. VIII That the unfair labor practices alleged in the complaint oc- curred only at the Roche Harbor plant of the respondent. DECISIONS AND ORDERS IX 1051 That all of the persons named in Paragraph X and XI of said complaint are employes of respondent within the meaning of Section 2, subdivision (3) of the National Labor Relations Act. X That the employes named in Paragraph XI (2) (a), expressly forego any losses of pay they may have suffered by reason of their discharge. XI Upon the basis of this stipulation the respondent hereby waives the right to hearing, the making of findings of fact and conclusions by the Board and expressly consents that an order may be entered by the Board and, upon application by the Board without notice to the respondent of the filing of a peti- tion by the Board, which notice the respondent hereby expressly waives, the respondent further expressly consents that the Cir- cuit Court of Appeals for the appropriate circuit may enter a decree enforcing the order of the Board ordering that; (1) Respondent will cease and desist as follows : (a) From in any manner interfering with, restraining, or coercing its employes in the exercise of their rights to self -organ- ization, to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; (b) From discouraging membership in Local No. 20438, or in any other labor organization of its employes, by discharging, threatening, or refusing to reinstate any of its employes, for joining Local No. 20438, or any other labor organization of its employes ; (c) From permitting its foremen and overseers and other supervisory officials to participate in the activities of any labor organization of which employes of the respondent are members; (d) From in any manner discriminating against any of its em- ployes in regard to hire or tenure of employment, or any term or conditions of employment, for joining Local No. 20438 or any other labor organization of its employes; (e) From refusing to recognize Local 20438 as the exclusive representative of its employes in the unit heretofore described 1052 NATIONAL LABOR RELATION'S BOARD in Paragraph VII, for the period from September 12, 1938, to and including July 26, 1939. (2) That the respondent shall take the following affirmative action to effectuate the policies of the National Labor Relations Act : (a) Offer to George Falk, John Gasho, Gus Landahl, Walter Scott, Clarence Spangler, Richard Chevalier, Al Zettle, Dave Smith, James Peterson, Sam Mills, Carl Friberg, Ted McKay, William Mason, Donald Fowle, Claire Pease, Clyde Spangler, Sr., Joe Neff, Floyd Gilman, Tom Jones, O. D. Strausbough, Wil- bur Ramsdon, and Alfred Johnson, Jr., full and complete rein- statement to their former positions held on June 9, 1938, or any other prior date of last employment, without prejudice to any rights and privileges previously enjoyed or accruing to them, such reinstatement to be upon the resumption of operations at full capacity by the respondent subsequent to September 12, 1938; pro- vided, however, that if operations upon resumption subsequent to September 12, 1938, are at less than full capacity, all of re- spondent's employes, including the employes named above, shall be reinstated according to their length of service or seniority with the respondent, which shall be determined on the basis of service accruing before December 24, 1937; and that respondent shall place on the preferred list the names of any employes for whom -employment is not immediately available, such employes to be offered employment in the order of seniority 'from said list before any other persons are hired ; provided, however, that as to Claire Pease, Clyde Spangler, Sr., and Joe Neff, they shall not, be rein- stated until 30 days have elapsed subsequent to September 12, 1938. (b) Bargain collectively, on request, with Local No. 20438 as the exclusive representative of its employes in the unit heretofore described in Paragraph VII for the period from September 12, 1938, to and including July 26, 1939; (c) Immediately post and keep visible in a conspicuous and prominent place in the Roche Harbor, Washington plant for a period of 30 days after receipt thereof, a copy of the order to be entered by the National Labor Relations Board and to be made herein. (3) The complaint is dismissed as to Mike Vertis, John Kin- killa, and Harry Martin. This Stipulation is subject to the approval of the National Labor Relations Board after submission to the Board in Wash- ington, D. C. DECISIONS AND ORDERS EXHIBIT "A" GROSS SALES LIMESTONE 1053 Percent Intrastate Interstate' Total of total inter- state 1936_____________________ $42,977.44 ---------- $42,977.44 -------- 1937 -------------------- 70, 939. 00 ---------- 70, 939.00 -------- 1938-To July 31, 1938 ---- 14, 099. 81 ---------- 14, 099.81 -------- 128,016.25 __________ 128, 016. 25 ________ SPALLS 1936--------------------- $72,632.45 -------- -- $72,632.45 1937--------------------- 67, 303. 30 -------- -- 67, 303. 30 1938-To July 31, 1938---- 27, 597. 41 -------- -- 27, 597. 41 167, 533. 16 167, 533. 16 LIME 1936--------------------- $168,712.18 $27,056. 64 $195,768.82 13. 8207 1937-------------- ----- 222, 744. 69 22, 259. 54 245, 004. 23 9. 0854 1938-To July 31, 1938---- 88, 281. 11 15, 493. 80 103, 774. 91 14. 8782 479, 737. 98 64, 809. 98 544, 547. 96 11. 9016 1936 Total gross sales ----- 284, 322. 07 27, 056. 64 311, 378. 71 8. 6893 1937 Total gross sales _ _ - _ _ 360, 986. 99 22, 259. 54 383, 246. 53 5. 8082 1938 Total gross sales to July 31---------------- 129, 978. 33 15, 493. 80 145; 472. 13 10. 6507 Grand total-------- 775, 287. 39 64, 809. 98 840, 097. 37 7. 7146 I Represents all direct shipments outside the state. Pulp and paper mills, purchasers of limestone and flour lime of respondent, are. Name Location al plant Puget Sd. Pulp & Timber Co -------------------------------- Aes, Weton Belling ell lingham, Washington. Port Angeles, Washington. Port Townsend, Washington. Crown Zellerbach Corporation _______________________________ Hoquiam, Washington. Shelton, Washington. Camas, Washington St. Regis Craft Company____________________________________ Tacoma, Washington. Sound View Pulp Company_________________________________ Everett, Washington. Everett Pulp & Paper Company____________________________ Everett, Washington. Fidalgo Pulp Company______________________________________ Anacortes, Washington. On October 26, 1938, the Board duly issued its order approving the stipulation and pursuant to Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the proceeding be transferred to and continued before the Board for the purpose of entry of a decision and order pursuant to the provisions of the above stipulation. 1054 NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Roche Harbor Lime and Cement Company, a Washington corpora- tion, is engaged in quarrying, burning, and processing of limestone and distributing raw limestone and building lime products, with its principal office and production plant at Roche Harbor, Washington. A substantial amount of the products manufactured at its Roche Harbor plant are sold and shipped directly to points outside the State of Washington. In addition, a substantial amount of the products manufactured at said plant are sold and shipped to indus- trial establishments within the State of Washington where they are utilized in the production of goods which in turn are sold and shipped to points outside the State of Washington. We find that the above-described operations of the respondent constitute a continuous flow of trade, traffic, and commerce among the several States. H. THE ORGANIZATION INVOLVED Federal Labor Union, Local No. 20438, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent at its Roche Harbor plant. III. THE APPROPRIATE UNIT We find that all the employees of the respondent, exclusive of fore- men and office, store, and hotel employees , constitute a unit appro- priate for the purposes of collective bargaining and that such unit insures to the employees the full benefit of their right to self -organ= zation and collective bargaining and otherwise effectuates the policies of the Act. IV. REPRESENTATION OF A MAJORITY WITHIN THE APPROPRIATE UNIT We find that on or about March 3, 1938, a majority of the em- ployees in the appropriate unit designated the Union as their repre- sentative for the purposes of collective bargaining with the respondent; and that on that date and at all times thereafter, the Union was the representative for the purposes of collective bargain- ing of a majority of the respondent's employees in the appropriate unit. By virtue of Section 9 (a) of the Act, therefore, the Union was the exclusive representative of all the respondent's employees in the said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. DECISIONS AND ORDERS ORDER 1055 Upon the basis of the above findings of fact and stipulation, and the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Roche Harbor Lime and Cement Company, Roche Harbor, Washington, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner interfering with , restraining, or coercing its employees in the exercise of their right of self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act; (b) Discouraging membership in Local No . 20438, or in any other labor organization of its employees , by discharging, threatening, or refusing to reinstate any of its employees, for joining Local No. 20438, or any other labor organization of its employees; (c) Permitting its foremen and overseers and other supervisory officials to participate in the activities of any labor organization of which employees of the respondent are members; (d) In any manner discriminating against any of its employees in regard to hire or tenure of employment , or any term or condi- tions of employment , for joining Local No. 20438 or any other labor organization of its employees; (e) Refusing to recognize Local No. 20438 as the exclusive repre- sentative of its employees , exclusive of foremen and office , store, and hotel employees , for the period from September 12, 1938, to and including July 26, 1939. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to George Falk, John Gasho, Gus Landahl , Walter Scott, Clarence Spangler , Richard Chevalier, Al Zettle, Dave Smith, James Peterson, Sam Mills, Carl Friberg , Ted McKay, William Mason, Donald Fowle, Claire Pease, Clyde Spangler, Sr., Joe Neff, Floyd Gilman, Tom Jones, O. D. Strausbough , Wilbur Ramsdon, and Alfred Johnson, Jr., full and complete reinstatement to their former posi- tions held on June 9, 1938, or any other prior date of last employ- ment. without prejudice to any rights and privileges previously en- joyed or accruing to them, such reinstatement to be upon the resump- tion of operations at full capacity by the respondent subsequent to September 12, 1938; provided, however, that if operations upon resumption subsequent to September 12, 1938, are at less than full ca- pacity, all respondent's employees , including the employees named 1056 NATIONAL LABOR RELATIONS BOARD above, shall be reinstated according to their length of service or seniority with respondent, which shall be determined on the basis of service accruing before December 24, 1937; and that respondent shall place on the preferred list the names of any employees for whom employment is not immediately available, such employees to be offered employment in the order of seniority from said list before any other persons are hired; provided, however, that Claire Pease, Clyde Spangler, Sr., .and Joe Neff, shall not be reinstated until 30 days have elapsed subsequent to September 12, 1938; (b) Upon request, bargain collectively with Local No. 20438 as the Exclusive representative of its employees, exclusive of foremen and office, store, and hotel employees, for the period from September July 26, 1939; 12, 1938, to and including2-1 (c) Immediately post and keep visible in a conspicuous and prom- inent place in the Roche Harbor, Washington, plant for a period of thirty (30) days after receipt thereof, a copy of the Order of the National Labor Relations Board in this matter. And it is further ordered that the complaint, in so far as it per- tains to Mike Vertis, John Kinkilla, and Harry Martin, be and hereby is, dismissed.