National Labor Relations Board v. Biles Coleman L. Co.

• Decision Date: 11 July 1938
• Docket Number: No. 8764.,8764.
• Citation: 98 F.2d 18
• Parties: NATIONAL LABOR RELATIONS BOARD v. BILES COLEMAN LUMBER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

98 F.2d 18 (1938)

NATIONAL LABOR RELATIONS BOARD v.BILES COLEMAN LUMBER CO.

No. 8764.

Circuit Court of Appeals, Ninth Circuit.

July 11, 1938.

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Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Robert S. Erdahl and Bertram Edises, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

F. M. Roberts and Charles C. Hall, both of Seattle, Wash.(Weter, Roberts & Shefelman, of Seattle, Wash., of counsel), for respondent.

Herman E. Anderson, of Tacoma, Wash., and Lyle K. Summers, of Seattle, Wash. (Dent & Summers, of Seattle, Wash., of counsel), for interveners.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

The National Labor Relations Board petitions this court for enforcement of its order, dated December 23, 1937, requiring the respondentBiles Coleman Lumber Company, of Omak, Washington, to cease and desist from certain unfair labor practices under the National Labor Relations Act(49 Stat. 449,29 U.S.C.A. § 151 et seq.) and to take affirmative action designed to effectuate the policies of the Act.

In response to the Board's petition, respondent has filed an answer which expressly admits that the Board made the order here sought to be enforced, and also admits, by failing to deny, the Board's allegation that the order was made after due notice and hearing, upon a complaint duly issued, pursuant to section 10 of the National Labor Relations Act(49 Stat. 453,29 U.S.C.A. § 160).The order does not, on its face, appear to be unlawful or improper.The answer does not challenge the Board's jurisdiction, the sufficiency of the evidence to support the findings, or the sufficiency of the findings to support the order.It does not state or attempt to state any reason why the order should not be enforced, except what was stated in the so-called affirmative defense which, in a former opinion (9 Cir., ___ F.2d ___), we held was no defense and, accordingly, ordered stricken from the answer.Since the respondent has shown no reason in its answer why the order should not be enforced, certain of the issues, at least, could be decided against the Lumber Company on the pleadings.

However, the case was fully argued on the merits, both in the briefs and at the hearing, and the Board does not urge the absence of denials in the answer.Hence the merits are considered on the theory that the answer be deemed amended to raise the argued issues.

The bar is cautioned that, while the Act does not require common law formality of pleading, there must be the substantial elements of due process.Cf. our first opinion in this case.9 Cir., 98 F.2d 16.Obviously, the requirement rests as much on the one party as the other.So far as concerns the enforcement of the Board's order this is a nisi prius tribunal, and the resistive respondent by its answer, rather than by brief, should raise the issue as to any allegation of the petition which is contested.

Pursuant to the charges filed against respondent on behalf of Carpenters' UnionNo. 2570 of Omak, Washington, Lumber and Sawmill Workers, hereinafter called the Union, a complaint was issued by the Board and a hearing held before a Trial Examiner from May 17 to June 14, 1937.On July 20, the case was transferred to the Board where respondent presented its cause by brief.The order followed.

The Board found that the respondent was a corporation of the State of Washington, having its principal place of business in Omak.It is engaged in the business of logging timber and operating a sawmill factory.At least 75 percent of its manufactured products are shipped to points outside the State of Washington.It employs approximately 600 men.

The Board found that the appropriate unit for collective bargaining (section 9(b),29 U.S.C.A. § 159(b) was composed of the employees of respondent at its plant and sawmill, including the "lower end section crew" which worked out of Omak, the seat of the plant and sawmill, on a portion of the respondent's logging railroad, and excluding the loggers in the woods, supervisory and clerical employees, and janitors and watchmen at the plant and sawmill.It found that the Union included a clear majority of the employees in the appropriate unit.

It was found further that on April 27, 1936, the respondent refused to bargain collectively with the representatives of the Union, and restrained employees in the right to bargain collectively through such Union in violation of section 8(1) and (5), 29 U.S.C.A. § 158(1, 5); that in consequence of such unfair labor practices a strike of respondent's plant and sawmill employees was initiated, which strike was still in progress at the time of the Board's order (according to respondent's counsel, it is still in effect at the time of the argument in this court); and that on May 8, 1936, and for several days thereafter, respondent again violated section 8(5) by refusing to bargain collectively with the Union delegates as the representative of all the employees in the unit as required by section 9(a),29 U.S.C.A. § 159(a).

On the basis of its findings the Board ordered the respondent to cease and desist from refusing to bargain collectively with the Union "as the exclusive representative of all its employees in its sawmill, factory, powerhouse, kilns, yards, and lower end section railroad crew, excluding all the employees in the woods, supervisory officials, foremen, salesmen, clerical and office employees, watchmen and janitors", and to cease and desist from interfering with, coercing, or restraining its employees in the exercise of their rights to self-organization and collective bargaining.

It was further ordered that the respondent upon application offer reinstatement to all employees who went on strike on May 4, 1936, or thereafter, excluding those who have obtained regular and substantial employment elsewhere; discharging, if necessary, those employees who were hired to fill the places of the strikers after the strike began on May 4, 1936; that respondent make whole any loss of wages by each striking employee for the period between the time of any application for reinstatement which should be refused and the time of compliance with the reinstatement order; and that respondent, upon request, bargain collectively with the Union as to rates of pay, wages, hours and conditions of employment, etc.

We will review the findings in their order.

The respondent and interstate commerce.The respondent admits on this appeal that its operations substantially affect interstate commerce and that it is subject to the Act.

The appropriate bargaining unit and the Union's majority.Some consideration of the bargaining unit is necessary, although the respondent does not contest the finding in this respect.Section 9(b),29 U.S.C.A. § 159(b), provides: "The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act chapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof."

Respondent's employees may be roughly classified in two divisions: The plant and sawmill workers on one hand, and the woodsmen on the other.The logging work in the woods is carried on at distances from Omak of between 15 and 30 miles.Most of the woodsmen do not live in Omak, whereas the great majority of the plant and sawmill workers do.The Board took all these factors into consideration, plus the desires of the plant workers and loggers themselves, in making its finding as to the appropriate unit.Respondent questions the inclusion in the unit of the lower end section crew, numbering about 5 individuals.This crew lived at Omak and worked out of Omak on the logging railroad every day.Their permanent location plus their personal desires in the matter are sufficient to sustain the Board's finding in this respect.

The respondent does not contest the finding that the Union was composed of a clear majority of employees in the appropriate unit, regardless of whether or not the section crew was included.

The unfair labor practices.The gist of the...