Hitchner & Hitchner, Inc.

In the Matter of HITCrINER & HITCHNER, INC. and INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL No. 239, AFFILIATED WITH THE •C. I. O. Case No. C-1962.-Decided October 16, 1941 Jurisdiction : pole, post, and piling processing industry. .Settlement : stipulation providing for compliance with the Act. Remedial Orders : entered on stipulation. Mr. Wm. A. Babcock, Jr., for the Board. Mr. Everett E. Hunt, of Sandpoint, Idaho, for the Company. .Mr. H. B. Fuller, of Sandpoint, Idaho, for the Union. .Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the International Woodworkers of America, Local No. 239,1 affiliated with the C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by Elwin J. Eagen, Regional Director for the Nineteenth Region (Seattle, Washington), issued its complaint dated March 29, 1941, against Hitchner & Hitchner,•Inc., Sandpoint, Idaho, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and upon the Union. Concerning' the unfair labor practices, the complaint alleged in .substance that: (1) the respondent terminated the employment of (a) Wesley Paynor on or about August 28, 1939, (b) Ira Cave on or about October 25, 1939, (c) Mike Thurlow on or about February -3, 1940, and (d) certain other employees on or about November 18, 1 The original charges were filed by Local 119, the amended charges by Local 289. 36 N. L. R. B., No. 24. 138 HITCHNER & HITCHNE'R, INC. 139 1939, and has since refused to reemploy any of them, because of their membership in and activities on behalf of the Union; (2) the re- spondent, from on , or about June 28, 1939, failed and refused to assign overtime work to certain named employees to the same extent and in the same manner as such work was assigned to other employees of the respondent for the reason that said individuals were members of and active in the affairs of the' Union; (3) by the acts set forth above and by (a) criticizing and denouncing the Union and its rep- resentatives and affiliate organizations, (b) interrogating employees concerning their membership in and activities on behalf of the Union, (c) attempting to create dissension in the Union by calling meetings of certain of the union members without inviting other members thereof, (d) threatening employees with discharge because of their activities and membership in the Union, (e) representing to its em- ployees on numerous occasions that certain employees had been laid off by the respondent, and would not be reemployed because of their membership in arid ^activ'ities on behalf of the Union, (f) threatening to close the Sandpoint plant or lay off some of its employees because of the membership of some of its employees in the Union, (g) assert- ing to the employees that .certain of the employees, by their activities ,on behalf of the Union, were depriving other employees of reemploy- ment, (h) attempting to induce members of the Union to withdraw their membership therein, (i) representing to the employees that certain other employees had withdrawn from the Union, (j) threat- ening to refuse to reemploy certain employees previously laid off if a majority of the employees retained their membership in the Union or voted for the Union in an election to be conducted by the Board, .(k) attempting to cancel, and treating as canceled, a collective bar- gaining agreement entered into between the respondent and the Union under date of January 2, 1940, in violation of the terms of said agreement, and (1) averring that the respondent would never sign another contract with the Union; the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section,7 of the Act. On April 4, 1941, the respondent filed its answer to the complaint and the amended charge, in which it admitted the general interstate nature of its business but denied that the respondent had engaged in any unfair labor practices. Pursuant to notice, a hearing was held from June 16 to 19, 1941, inclusive, at Sandpoint, Idaho, before A. Bruce Hunt, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and par- ticipated in the hearing.. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce 140 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD evidence bearing upon the issues . On August 26, 1941, the respond- ent, the Union , and the Board entered into a stipulation , subject to approval by the Board, in settlement of the case . The stipulation provides as follows : STIPULATION It is hereby stipulated by and between Hitchner & Hitchner, Inc., hereinafter called the Respondent, by Everett E. Hunt, its attorney ; International Woodworkers of America, Local No. 239, by and through H. B. Fuller, its financial secretary ; and William A. Babcock, attorney for the National Labor Relations Board, that : I The Respondent is a corporation duly°org€mized, under and existing by virtue of the laws of the State of Idaho, with its principal office at Sandpoint, Bonner County, State of Idaho. Respondent is engaged in the business of buying , treating, season- ing and selling of poles, posts and piling. In the course and con- duct of said business the Respondent owns and operates, and at all times during the year 1936 and since said year, has owned and operated a treating plant and yard at Sandpoint , Idaho, and owns and operates, and at all times since July, 1940, has owned and operated a similar plant at Plummer, Idaho. Approximately five percent ( 5%) of the poles, posts and piling purchased and received by Respondent for treating and sale at its Sandpoint plant is and at all times has been purchased and received from points outside the State of Idaho. In excess of Ninety-five per- cent (95%) of the products of Respondent at said plant is and at all times has been sold and shipped to points outside the State of Idaho. During the year 1940 the Respondent sold and shipped two hundred forty eight (248) car-loads of products from its Sandpoint plant and fifty-one ( 51) car-loads from its Plummer plant. During the first five months of the year 1941 the Respond- ent sold and shipped Fifty-six (56) car-loads of products from its Sandpoint plant and thirty-eight ( 38) car-loads of products from its Plummer plant. The Respondent admits that its business and operations are of such a character that labor disputes among its employees affect or tend to affect commerce within the meaning of the National Labor Relations Act. II International Woodworkers of America , -L- ocal,- 119, affiliated with the Congress of Industrial Organizations, is a labor organiza- HITCHUNER . & HITCIiNE'R, INC. 141 tion within-the mbdning of Section 2, sub-section (5) of the Na- tional Labor Relations [sic].- A sub-local of said local was main- tained at Sandpoint from on or about June 17, 1939 to August 17, 1940. Said sub-local was chartered on or about August 17, 1940 by the International Woodworkers of America as Interna- tional Woodworkers of America, Local No. 239. Local 239 is and at all times since on or about August 17, 1940 has been a labor organization within the meaning of Section 2, sub-section (5) of said Act. III The answer-of the Respondent to the complaint herein and its Reply to Amended-Charge herein shall be considered withdrawn. Such withdrawal and the execution of this stipulation, and the provisions of this stipulation, shall not be construed as an admis- sion of any of the allegations of the complaint except where specifically admitted in this' stipulation; nor as an admission that the Respondent has engaged in unfair labor practices within the meaning of the National Labor Relations Act. IV All parties hereto expressly waive their right to a further hear- ing in this.matter and to appear further in person, or otherwise, to give further-.!.,testimony and to further examine or further cross-examine witnesses (as provided in Section 10 (b) of the National Labor Relations Act, and in the Rules and Regulations of the National-Labor Relations Board, Series 2, as amended). And all' parties,,hereto expressly waive the making of Findings of Fact and•'Conclusions of Law by the National Labor Relations Board in the above entitled matter. V It .is expressly consented and agreed by the parties hereto that upon the basis of the pleadings and formal papers herein (con- sisting of -amended-- charge, complaint and notice of hearing, A- davit as to-service of complaint, notice of hearing and amended charge, answer of respondent, reply to amended charge, petition for continuance and affidavit of Everett E. 'Hunt in support of said petition, order postponing order dated April 22, 1941, affi- davit as to service of order postponing hearing, order postponing hearing dated May-22, 1941, affidavit as to service of order post- poning hearing, certified copy of order designating trial exam- iner) and this 'stipulation, the following order may be made and entered by the National Labor Relations Board: 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent, Hitchner & Hitchner, Inc., and its officers, agents, successors and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Woodworkers of America, Local No. 239, or any other labor organization of its employees, by the discharging of its employees, refusing to reem- ploy employees, threatening to discharge or to refuse to reemploy employees, or by in any other manner discriminating against employees in regard to hire or tenure of gwployment or any term or condition of employment. (b) Interfering, restraining, or coercing its employees in their rights to self-organization to bargain collectively through repre- sentatives of their own. choosing, and engaging in concerted ac- tivity for their mutual aid and protection, and from discouraging membership of its employes in any labor organization by can- celling or repudiating any collective bargaining agreement duly entered into with any such labor organization. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the National Labor Relations Act. 2. Take the following affirmative:actibn which the Board finds will effectuate the policies of the National Labor Relations Act : (a) Offer Bernard Deubel and Harold Hunter immediate re- employ [sic] at its Standpoint plant in their former or substan- tially equivalent positions, without prejudice to their seniority or other rights or privileges. (b) Make whole the following named employees for any loss that they may have suffered by reason of any alleged discrimina- tion against them by the Respondent, by the payment to them of the sums of money set after their names Mike Thurlow------------------------------------- $850.00 Wesley Raynor------------------------------------ 500.00 Bernard Deubel-------------------------- -------- 300.00 H. B. Fuller--------------------------------------- 500.00 (c) Place upon a preferential hiring list and, upon the filling of vacancies at the plant or upon the hiring of additional employees at its Sandpoint plant, offer the following named em- ployees first preference in such employment in.. the order in which their names appear below : Julian Solberg Earl Rheinschmidt J. B. Cochran Henry Hansen -Ira Cave HITCHNER & HITCHNER, INC. 143: (d) Post immediately in a conspicuous place at its Sand- point plant, and maintain for a period of at least Sixty (60) consecutive, days from date of posting, notice to its employees stating: (1) That the Respondent will not engage in the conduct from which it is ordered to cease and desist in Paragraph 1 (a), (b), (c). (2) That the Respondent will take the affirm- ative action set forth in Paragraph 2 (a), (b), and (c) of this. order. (3) That the Respondent's employees are free to become, or to remain members of the International Woodworkers of America, Local 239, and that the Respondent will not discrim- inate against any employee because of his membership or activity, in that organization. (e) Notify the Regional Director of the National Labor Rela- tions Board of the Nineteenth Region within ten (10) days after the entry of its order, what steps it has taken to comply therewith. VI It is expressly consented and agreed, that upon application by the National Labor Relations Board, a decree may be entered by the Circuit Court of Appeals for the Ninth Circuit, enforcing the order of the said Board. The Respondent ex- pressly waives the right to contest entry of said decree or receive notice of such application. VII The complaint shall be dismissed as to any alleged discrimina- tion against Martin Hanson, Harold Thurlow, Martin Bixel and George Saunders. VIII It is' hereby agreed by and between the Respondent and Inter- national Woodworkers of America, Local No. 239, that that certain collective bargaining agreement between the Respondent and International Woodworkers of America, Local No. 119, dated January. 2, 1940, shall be considered to remain in full force and effect until January 1, 1942 subject to the right of the said union to at that time request the renewal of said contract or a new con- tract with said union as the sole collective bargaining agency of the employees of the Respondent. Iii The entire agreement between the parties is contained herein and there is no agreement either written or oral, which alters, varies or`adds to it. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Z This stipulation is subject to the approval of the National Labor Relations Board after its submission to the Board in Washing- ton, D. C. On September 5, 1941, the Board issued its Order approving the above stipulation and transferring the case to the Board. Upon the above stipulation and the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Hitchner & Hitchner, Inc., is an Idaho corporation with its prin- cipal office at Sandpoint, Idaho. It is engaged in the business of buy- ing, treating, seasoning, and selling poles, posts, and piling. The respondent owns and operates a treating plant and yard at Sandpoint, Idaho, and a similar plant at Plummer, Idaho. Approximately 5 per cent of the poles, posts, and piling purchased by the respondent for treating and sale at its Sandpoint plant is obtained from points out- side the State of Idaho. More than 95 per cent of the products of the respondent at its Sandpoint plant is shipped to points outside the State of Idaho. We find that the above-described operations constitute a continu- ous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact, Stipulation, and the entire record in these proceedings, and pursuant to Section 10 (c) of the Act, the National Labor Relations Board hereby orders that the respondent Hitchner & Hitchner, Inc., Sandpoint, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Woodworkers of America, Local No. 239, or any other labor organization of its employ- ees, by the discharging of its employees, refusing to reemploy em- ployees, threatening to discharge or to refuse to reemploy employees, or by in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (b) Interfering, restraining, or coercing its employees in their, rights to self-organization to bargain collectively through representa- tives of their own choosing, and engaging in concerted activity for their mutual aid and protection, and from discouraging membership HITCHNER & HITCHNER, INC. 145 of its employees in any labor organization'by cancelling, or repudiating any: collective bargaining agreement duly entered into . with any such labor organization. ('c). In any. other manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed to them. in, Sec- tion 7 of the National Labor Relations Act. 2: Take the following affirmative action which the Board finds. will effectuate the policies of the National Labor Relations Act.: (a) Offer Bernard Deubel and Harold Hunter immediate reem- ployment at its Sandpoint plant in their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges. (b) Make whole the following named employees for any loss that they may have suffered by reason of any alleged discrimination against them by the respondent , by the payment to them of the sums of money set after their,names : Mike Thurlow----------------------------- _------------ $850.00 Wesley Raynor----------------------------------------- 500.00 Bernard Deubel---------------------------------------- 300.00 H. B. Fuller--------------------------.----------------- 500.00 (c) Place upon a preferential hiring list and, upon the filling of vacancies at the plant or upon the hiring of additional employees at its Sandpoint plant, offer the following named employees first prefer- ence in such employment in the order in which their names appear below : Julian Solberg Earl Rheinschmidt J. B. Cochran Henry Hansen Ira Cave (d) Post immediately in a conspicuous place at its Sandpoint plant, and maintain for a period of at least sixty (60) consecutive days from date of posting, notice to its employees stating: (1) that the respond- ent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a), (b), (c). ( 2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), and (c) of this Order. '(3) that the respondent's employees are free to be- come or to remain members of the International Woodworkers of America, Local 239, and that the respondent will not discriminate against any employee because of his membership or activity in that organization. (e) Notify the Regional Director of the National Labor Relations Board of the Nineteenth Region within ten (10) days after the entry of its order, what steps it has taken to comply therewith. 433118-42-vol . 36--11 146 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent, has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act by discharging Martin Hanson, Harold Thurlow, Martin Bixel, and George Saunders. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order.