The Crossett Co.

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