Graves Co.

In the Matter of GRAVES COMPANY and LUMBER AND SAWMILL WORKERS UNION, LOCAL 2788, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. OF L. Case No. C-1368.-Decided March 26, 1940 Lumber and Lumber Products Industry-Interference, Restraint, and Coercion: charges of, not sustained-Discrtimination: charges of, not sus- tained-Complaint: dismissed. Mr. Charles M. Brooks, for the Board. Mr. George I. Devor, of Los Angeles, Calif., for the respondent. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Lumber and Sawmill Workers Union, Local 2788, United Brotherhood of Car- penters and Joiners of America, A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated May 17, 1939, against Graves Company, Los Angeles, California, the respondent herein, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. The complaint alleged in substance (1) that the respondent had discharged and thereafter refused to reinstate Frank Brady because of his affilia- tion with the Union and his activity therein as shop steward, and because he had engaged in concerted activities for the purpose of collective bargaining and other"mutual aid and protection, and (2) that by the foregoing acts, by urging, persuading, and warning its employees to refrain from becoming or remaining members of the Union, and by other specified acts and conduct, the respondent in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 21 N. L. R. B., No 109. 1102 GRAVES COMPANY 1103 Copies of the complaint and notice of hearing were duly served upon the respondent and upon the Union. On June 7, 1939, the respondent filed a written answer to the complaint, admitting cer- tain allegations pertaining to its business but denying that its opera- tions affected commerce among the several States or that it had engaged in unfair labor practices alleged therein. Pursuant to notice and notices of postponement , a hearing was held in Los Angeles, California, from June 20 through July 7, 1939, before William P. Webb, the Trial Examiner duly designated by the Board . The Board and the respondent were represented by counsel, participated in the hearing , and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon *the issues. At the close of the hearing, the respondent made several motions to dismiss the com- plaint. The Trial Examiner denied these motions . During the course of the hearing, rulings were made by the Trial Examiner on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. The Trial Examiner thereafter filed his Intermediate Report, dated September 29, 1939, copies of which were duly served on the parties, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and Section 2 (6) and (7 ) of the Act. He accordingly recommended that the re- spondent cease and desist from such unfair labor practices. He fur- ther found that the respondent had not engaged in unfair labor prac- tices within the meaning of Section 8 (3) of the Act. Exceptions to the Intermediate Report were filed subsequently by the respondent. The Board has reviewed the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions , and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a California corporation engaged in the manu- facture and sale of sash , doors, millwork and sash balances, and the sale of rough lumber, hardwood , and general building supplies. Its principal office and plant are located at Los Angeles, California, and a retail store is maintained at Long Beach, California. The prin- cipal raw materials purchased by the respondent include lumber, sheet 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steel, veneer, and glass. In 1938 the gross volume of the respondent's purchases of raw and fabricated materials totaled $392,849.21, of which $85,300 was expended for materials shipped from States other than California. During the same period, the respondent's gross vol- ume of sales amounted to $628,467.72, of which approximately 5 per cent were shipped to points outside the State of California. H. THE ORGANIZATION INVOLVED Lumber and Sawmill Workers Union, Local No. 2788, United Brotherhood of Carpenters and Joiners of America, A. F. of L., is a labor organization admitting to membership all lumber production and yard employees within the city of Los Angeles, California, and the surrounding area. M. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union commenced its organizing activities at the respondent's plant in July 1936, and thereafter a substantial majority of the re- spondent's production employees, including foremen, became mem- bers thereof. On June 6, 1937, the Union entered into a written contract with the Lumber and Allied Products Institute, herein called the Institute, a trade association composed of 41 lumber com- panies operating in the Los Angeles area, including the respondent. The contract provided for certain wage scales and working condi- tions covering the employees of all members of the Institute and was to remain in effect until June 4, 1938. On April 27, 1938, almost all of the respondent's employees partici- pated in a strike called by the Union because of a current dispute with the respondent over working conditions. A settlement was effected about 1 week later, and soon after the Union began negotia- tions with the Institute for a new working agreement. On July 20, 1938, a written contract was signed between the Union and the Institute providing for a continuance of the wage scales and working conditions contained in the 1937 agreement, and also providing, inter alia, that : The employers intend to continue the cooperative attitude which has prevailed in the past on the part of a large majority of the employers. Whenever vacancies occur, they agree to give preference in employment to old employees previously regularly employed, subsequent to June 6, 1937, in the lumber industry in this area, provided they have the qualifications to fill the vacant positions. But there is to be no question as to the right of the employer to use his own judgment in the employment of or dis- GRAVES COMPANY 1105 missal of his men. It is also understood that the employers will observe in good faith the policy of not replacing present em- ployees with outsiders. In its negotiations, the Union had attempted to obtain a closed- shop agreement, and at the hearing it contended that the provision set forth above was intended to create, by inference, a closed shop. It is clear, however, and we find, that the wording of the contract permits no such construction; nor does the evidence establish that it was the intention of the parties to make membership in the Union a prerequisite to employment under the terms of the contract. Following the strike on April 27, 1938, a number of employees had become dissatisfied with membership in the Union and discontinued their payment of dues. This dissatisfaction was attributable to their claims that the Union had failed to keep its promise to pay $2.00 a day for picket duty, had levied unjust fines and assessments, and had not permitted the membership to have sufficient voice in the conduct of union affairs. Failing in its efforts to overcome this sentiment among 10 or 12 employees whose delinquency in the payment of dues continued, the Union, on September 12, 1938, mailed to all of its members in the respondent's employ post cards containing the follow- ing notice : By ruling voted by Local, no member will be permitted to work after Oct. 1st, if owing a sum equal to three months dues, unless there are extenuating circumstances. If you are not in good standing, see Financial Secretary at once. Don't forget to vote NO on Proposition 1, and YES on No. 2 at the special election Sept. 16th.1 A few days later, A. W. Hughes, business agent for the Union, held a meeting of employees near the entrance to the respondent's plant. He told those assembled that if the delinquent members did not pay their dues the Union would force them out of work by withdrawing from the plant all members in good standing and would prevent their employment elsewhere by placing their names on a "blacklist." Hughes also threatened to institute a boycott against the respondent. Both the post cards and Hughes' statements caused considerable discussion among the employees as to whether or not the Union's contract with the respondent made their employment dependent upon the payment of dues. A number of employees made inquiries of their foreman and several went to the office of Howard Coor-Pender, the respondent's general manager, to read the contract. Inquiries from ' "Proposition 1" referred to a proposed city ordinance for the regulation of picketing which the Union was opposing, and No. 2" had reference to a picketing ordinance spon- sored by the Union 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both foremen and employees were also received by William H. Gamble, plant superintendent, who requested Coor-Pender to speak to the men and "try to straighten it out." On or about September 17, 1938, Coor-Pender held a meeting in the plant of those employees who had inquired concerning the union post cards and the statements made by Hughes. Gamble also secured the attendance of the three members of the union shop committee because, as he testified, "they were representatives and I wanted them to be there to hear whatever was said." Coor-Pender prefaced his remarks by stating that a number of employees had inquired as to the termination of their employment if they failed to pay dues in the Union and also as to the respondent's position with reference to the strike and boycott threats made by Hughes. He then read the following prepared statement: I wish to make the statement for Graves Company, that we are not interested in your Union activities or viewpoints. We are not concerned with whether you do or do not belong to as Union, whether you pay or do not pay dues and assessments. As far as this Company is concerned you may use your own time and wages -for any- purpose you choose. If you devote your entire time and earnings to Union activities, we are not con- cerned ; por - are we concerned if you do not devote any time or money to such activities. That is a matter for your decision and is not of even the slightest interest to us; but when Union representatives make such claims as you state they have made, namely : "that you will not be permitted to work after October 1st, and that this company's work will be boycotted," I wish to call your attention to provisions in the documents just submitted to you, so that you may judge for yourself whether these-things, can be done. It has become necessary to make this statement because of the unrest and loss of time and efficiency in your work, and I hope that this will clear the atmosphere so - that there will be no further trouble. Coor-Pender had in his possession two of the post cards mailed by the Union on September 12, 1938, together with copies of the anti- picketing ordinance 2 and the union contract of July 20, 1938. In response to an inquiry by one of the employees, he read those portions of the ordinance pertaining to boycotting and striking, and indicated that a boycott would be ineffective and that the respondent was not 2 The ordinance for the regulation of picketing which had been opposed by the Union was passed at the Los Angeles city election on September 10, 1938. See footnote 1, supra. GRAVES COMPANY 1107 afraid of a strike. Coor-Pender then offered the copies of the ordi- nance and contract to those present for their further examination. It is clear that the respondent was under no obligation to enforce the payment of dues either by virtue of its contract with the Union or otherwise, and we agree with the Trial Examiner that in so inforul- ing the respondent's employees Coor-Pender engaged in conduct that, under the circumstances, was not censurable. We are not in accord, however, with the Trial Examiner's finding that Coor-Pender's refer- ence to the anti-picketing ordinance and his statement that the respondent was not afraid of a strike were calculated to intimidate, restrain, and coerce the respondent's employees. The inquiries raised by the employees were directed to both the ordinance and the threats made by Hughes, as well as to the provisions of the contract. In view of all the circumstances surrounding the incident, we find that the respondent, by the statements made by Coor-Pender, did not in fact interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act. During the month of October, the unrest caused by the contention over the non-payment of union dues was considerably lessened, but following the failure of the city anti-picketing ordinance to become a State law in the general election on November 8, 1938, the question of dues delinquencies and the relationship between the Union and the respondent again became the subject of much debate among the respondent's employees. On November 16, 1938, Frank Brady, shop steward of the Union, was temporarily laid off by the respondent. A week later, the Union filed charges against the respondent with the joint arbitration committee provided for in the 1938 contract.3 The charges alleged that Brady had been "laid off and/or dis- charged" because of his union activities, and that the respondent had induced its employees to remain away from union meetings, violated the wage agreement, hired employees in violation of the contract, and maintained a system of espionage for the purpose of intimidat- ing and discriminating against union members. The respondent filed an answer denying these charges and on November 29, 1938, a hearing was held before the three employers and three union representatives composing the joint committee. At the suggestion of the committee, Hughes and A. W. Muir, international representa- tive of the Union, thereafter held two conferences with Coor-Pender and George I. Devor, the respondent's attorney, in an effort to settle 8 Paragraph 5 of the contract provides : Any difficulties or misunderstandings which may arise are to be submitted to a committee, the members of which are to be selected as set forth hereafter, which com- mittee is to atterrypt a voluntary settlement, with the understanding, however, there is to be no enforced arbitration, and with the further understanding that, so long as the matter is being considered by the committee, there shall be no stoppage of work . . . This committee is to consider complaints promptly and dispose of each within three weeks of the time the complaint is lodged with both parties. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their differences. Although the discussion at these conferences in- cluded the alleged underpayment of employees in violation of the contract and the discharge of Brady, it centered around the problem of inducing delinquent members of the Union'to pay their dues. At the opening of the first conference, Hughes and Muir sought to examine the respondent's pay roll to substantiate the Union's claim that numerous employees were receiving less than the wage scale provided for in the contract. Coor-Pender denied this request, but offered to submit the individual pay-roll records of any named em- ployees claimed to be underpaid. The union representatives, how- ever, refused to divulge the names of any employees, allegedly fear- ing reprisals. From then on, the main point of consideration was whether or not the respondent would assist in securing the payment of delinquent dues. Although Coor-Pender refused to call or par- ticipate in a meeting of the respondent's employees for the purpose of discussing the question of dues, he offered to supply the Union with a meeting place. The suggestion that the delinquent members be summoned for individual questioning in Coor-Pender's presence was likewise rejected, Coor-Pender maintaining the position that the payment or non-payment of dues by members of the Union was neither the respondent's concern nor responsibility under the contract and that any interference by the respondent in the matter would be unlawful. On December 7, the day following the second conference with Muir and Hughes, Coor-Pender summoned to his office the union shop committee and in their presence submitted to each of approximately 20 employees in "split classifications."' questionnaires reading as follows : Union representatives were in our offices yesterday and made the statement that we are not paying you according to scale. The company has you classified as a split classification of -------------------- Is this classification correct according to the work you are habitually doing? Answer -------------------- If answer is no, what work are you habitually doing? Answer -------------------------------------------------- What is you present rate of pay? Answer -------------------- Do you consider this rate of pay consistent with your classification ? Answer ---------- 4 Employees engaged in work involving more than one type of operation GRAVES COMPANY 1109 Will you notify your foreman if you find your classification is changing? Answer ---------- Signed ------------------------ Date ----- ----------------- Witnesses : - ------------------------ ------------------------ ------------------------ Coor-Pender testified that he had not participated in the actual fixing of • the split classification rates and since the Union had charged the respondent with violating its wage agreement "felt that it was wise, under the circumstances, to reduce the agreement which I understood already existed between the employees and the em- ployer, to writing, so I would know first hand whether or not there could be any wage discrepancies complained about in regard to those split classifications." 5 He further explained that when submitting the questionnaires he had desired the shop committee to be present "for the purpose of having them witness what was said as union representatives together with the thought on my part if there were any questionable items the committee, composed of men from dif- ferent departments, would be able to give practical assistance and advice on what the men in question might be doing." All but two of the employees to whom the questionnaire was submitted indicated that their classification was correct and the rate of pay consistent therewith. Of the two, Emery Smith refused to sign, stating that the Union should determine his wage rate. Jack Mortesen stated that his classification was incorrect but that he "didn't know" what his rate of pay should be. After some discussion, in which the union committee participated, an agreement was reached raising Mortesen's pay from 75 cents to 771/2 cents per hour. The respondent's submission of the above questionnaire was found by the Trial Examiner to be violative of both the union contract and the Act. We believe this finding to be in error. The contract specifically provided that the rate of pay for split classification employees 'be determined by mutual agreement between the respond- ent and the individual employee concerned and, in view of the Union's Paragraph 3 of the contract executed on July 20, 1938, provides: It Is agreed that, if an employee is habitually employed at work embracing two or more classifications , an average wage, mutually agreed upon between the employer and the employee will be paid Any misunderstanding as to the proper rate of pay under this provision shall be adjusted by the joint committee. Although the wage rates for split classification employees had been discussed and a few of them adjusted following the strike in April 1938 , the agreement as to such rates was not incorporated in the 1938 contract as was the wage scale for each of the various employ- ment classifications enumerated therein. 283032-41-vol. 21-71 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD general charges of widespread wage violations and its refusal to divulge the names of those employees allegedly receiving less than the rate provided for in the contract, it was only a reasonable precaution for the respondent to reduce to writing the only wage agreements not set forth therein. The evidence convinces us that the respondent was not attempting to settle with its split-classification employees any dispute or misunderstanding with respect to the rates of pay previ- ously agreed upon, but was endeavoring to assure itself that there existed no violations of its agreement with these employees. We find such action under the circumstances not violative of the contract - and constituting no such interference with the rights of the respond- ent's employees as is prohibited by the Act. On or about January 3, 1939, the Union advised the joint com- mittee that no progress had been made toward reaching a settlement in its conferences with the respondent and that, since the period for consideration of the charges by the joint committee had expired, further action by the committee would be of no benefit. The same week, the Union filed charges with the Board. In the latter part of January 1939, the continued efforts of the Union to compel delinquent members to pay their dues, including the threat of a strike, again became the cause of considerable debate and unrest among the respondent's employees. On February < 14;. 1939, S. A. Collins, Brady's successor as union shop steward and a former member of the shop committee, together with five other em- ployees composing a representative committee, conferred with Coor- Pender. The sole topic of discussion was whether or not the respondent would prevent the impending strike by influencing the delinquent members to pay their dues. Coor-Pender again refused, reiterating the respondent's position that the enforcement of dues payments was neither its concern nor a matter in which it could lawfully participate. The following day, February 15, 58 of the 76 employees eligible to membership in the Union participated in a strike called because of the refusal of the delinquent members to pay their dues and the refusal of the respondent to compel them to do so. The strike was still in progress at the time of the hearing. We find that the strike was not caused by any unfair labor practices on the part of the respondent. Several witnesses testified to anti-union statements made by super- visory employees during the period described above. The evidence, however, is insufficient to warrant a finding that, such statements constituted interference, restraint, or coercion within the:-meaning of the Act. GRAVES COMPANY B. The alleged discriminatory discharge The complaint alleges that on or about November 16, 1938, the respondent discharged Frank Brady and thereafter refused to rein- state him for the reason that he joined the Union, was its shop steward, and otherwise assisted in its activities . The Trial Examiner found that "the evidence fails to establish that Brady was either laid off or refused reinstatement because of his union activities," and recommended that the complaint in so far as it related to Brady be dismissed. The Union filed no exceptions to the aforesaid finding and recommendation of the Trial Examiner . We have examined the record and find that it does not support the allegations of the complaint with respect to Brady. We find that the respondent has not discriminated in regard to the hire and tenure of employment of Frank Brady , thereby encouraging or discouraging membership in a labor organization. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent occur in commerce, within the meaning.-of Section 2 (6)-of the Act. 2. Lumber and Sawmill Workers Union, Local No. 2788, United Brotherhood of Carpenters and Joiners of America, A. F. of L., is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. 4. The respondent has not discriminated against Frank Brady in regard to hire or tenure of employment or terms or conditions of employment, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the complaint against. the respondent, Graves Company, Los Angeles, California, be, and it hereby is, dismissed.