National Labor Relations Board v. Carlisle Lumber Co.

• Decision Date: 13 December 1937
• Docket Number: No. 8361.,8361.
• Parties: NATIONAL LABOR RELATIONS BOARD v. CARLISLE LUMBER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

94 F.2d 138 (1937)

NATIONAL LABOR RELATIONS BOARD v. CARLISLE LUMBER CO.

No. 8361.

Circuit Court of Appeals, Ninth Circuit.

December 13, 1937.

COPYRIGHT MATERIAL OMITTED

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, A. Norman Somers, Senior Litigation Atty., and Philip Levy, Atty., National Labor Relations Board, all of Washington, D. C., for petitioner.

Theodore B. Bruener, of Aberdeen, Wash., and Charles H. Paul, of Seattle, Wash., for respondent Carlisle Lumber Co.

C. D. Cunningham, of Centralia, Wash., for Associated Employees of Onalaska, Inc.

Before WILBUR, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

The National Labor Relations Board has petitioned this court for the enforcement of an order made by it in a proceeding instituted against respondent.

On January 16, 1936, Local No. 2511 of the Lumber & Sawmill Workers Union, hereinafter called the union, filed a charge with a Regional Director appointed by the National Labor Relations Board, hereinafter referred to as the Board, pursuant to 29 U.S.C.A. § 160(b). On the same date, the Regional Director issued a complaint on behalf of the Board, as provided in 29 U.S.C. A. § 160(b), and gave notice of hearing.

The complaint charged that respondent had engaged, and was engaging in an unfair labor practice, as provided in 29 U.S. C.A. §§ 157, 158(1-3) and (5). These provisions are as follows:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. A. § 157.

"It shall be an unfair labor practice for an employer —

"(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.

"(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. * * *

"(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. * * *

"(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a)¹ of this title."

On January 23, 1936, respondent filed a bill of complaint in a United States District Court in which it sought to enjoin the Board from proceeding with the hearing on the complaint. That court entered an order dismissing the bill of complaint on March 24, 1936. Respondent thereupon appealed to this court and applied for an injunction pending such appeal. On March 31, 1936, this court denied the application (Carlisle Lumber Co. v. Hope, 9 Cir., 83 F. 2d 92), saying:² "We are not persuaded that irreparable injury would result to the appellant from the hearing before the Board where the order of the Board is without force until a hearing before a court and an order of the court based thereon."

Upon the announcement of that decision, respondent apparently abandoned its appeal.

On April 7, 1936, there was filed in the proceeding before the Board a motion for leave to intervene, and a petition in intervention by Associated Employees of Onalaska, Inc., hereinafter referred to as the company union. The petition prayed, among other things, that the company union be designated as the sole and exclusive collective bargaining unit for all employees of respondent.

The following day, on April 8, 1936, respondent filed its answer with the Board in which it denied that it had engaged in the unfair labor practices alleged, and admitted that since July 5, 1935, it had refused to bargain collectively with the union.

On April 7, 1936, hearings began. Before any testimony was taken, respondent moved to dismiss the complaint on the following grounds: (1) That neither respondent nor its employees were engaged in interstate commerce; that neither the logging nor the manufacturing operations of the respondent, nor the alleged unfair labor practices directly affected interstate commerce; that therefore the National Labor Relations Act, hereinafter called the act, did not apply to respondent; and (2) that the act violated article 1, § 8, article 3, §§ 1 and 2, of the Constitution, and the Fifth, Ninth, and Tenth Amendments thereto. The motion was denied. A like motion on the same grounds was made when the Board rested its case, and, when ruling thereon was reserved, such motion was renewed at the close of all the evidence. The motion was thereafter overruled. On September 26, 1936, the Board made its decision.

The Board found that respondent is a Washington corporation engaged in the general logging, sawmill and mill business, in the cutting of timber into logs, in the sawing and milling of logs into shingles and lumber, and in the sale and distribution of such products. All respondent's logging and milling operations are carried on within the state of Washington. The daily capacity of respondent's sawmill is over 250,000 feet; the mill being one of the largest in the Pacific Northwest. The daily capacity of respondent's shingle mill is about 200,000.

Although respondent keeps a large inventory of lumber on hand, 80 per cent. of its daily production is milled and shipped in response to orders on hand. During the year 1934, respondent produced 38,559,061 feet of lumber; the total sales of lumber and shingles for that year being approximately $700,000. During the year 1935, respondent produced 34,483,381 feet of lumber; its total sales of lumber and shingles being approximately $515,000.

Ninety per cent. of the lumber manufactured by respondent is shipped by it to points outside the state of Washington. Between the months of August, 1935, and February, 1936, a total of 861 carloads of lumber were shipped from respondent's plant. Of that number, 776 carloads were shipped to points within the United States and outside the state of Washington; 8 carloads were shipped to docks in the state of Washington for shipment to foreign countries; and 77 carloads were shipped to points within the state of Washington.

In all its operations the respondent employs, on the average, about 400 men, including its clerical and office staff of about 45.

About June, 1933, respondent's manager introduced among its employees a labor organization which we will call the 4 L's. At one time 251 of respondent's employees were members of the 4 L's. About February, 1934, a group of respondent's employees organized the union, which was affiliated with the American Federation of Labor. By December, 1934, more than 50 per cent. of respondent's employees were members of the union. The officers of the union then requested respondent to meet with such officers as the representatives of the majority of its employees. Respondent refused, and an election was held by the National Labor Relations Board, under the National Industrial Recovery Act, 48 Stat. 195, at the request of the officers. A majority of respondent's employees voted. Of the 206 ballots, 191 were cast, for the union as representatives of the employees, 12 for the 4 L's, and 3 were declared void.

Between the time of the election and May 1, 1935, several attempts were made by officers of the union to bargain with respondent. Some meetings were held, and the demands of the union were presented to an officer of respondent, who either refused the demands, or stated that nothing could be done in the absence of respondent's president and general manager.

On May 1, 1935, a meeting was held in regard to an agreement proposed by a convention of members in the American Federation of Labor. The convention had agreed that in the event the employers refused to sign the agreement a strike was to be called. At the conclusion of that meeting the union's demands were refused.

The Board found that the union was sincere in the foregoing efforts to bargain. With respect to respondent it said: "* * The respondent, however, did not prefer to settle its differences with the union, nor did it have at any time a sincere intention of settling its differences or of perfecting an agreement with the union. Even though the respondent through its officers met with the union at various times, the meetings were not attended by such officers with a sincerity of purpose, but rather with a desire to conceal the respondent's actual refusal to bargain. * * *"

From the time of the election, the union's membership increased, so that by May 1, 1935, the membership in the union was 263. The Board found: "That these 263 members of the union had designated the union as their representative for the purposes of collective bargaining in that unit is not questioned."

On May 3, 1935, the number of respondent's employees was 344, which did not include any of respondent's "shingle mill employees nor any other of its employees who had been temporarily laid off during the latter part of April, 1935." The number of workmen referred to in the quoted language is not disclosed. Of the 344 employees, 263 went on strike on May 3, 1935. On the following day the secretary of the union wrote respondent that: "At any time you may wish to confer you will please notify the union hall as the men on picket duty are not allowed allowed to conver confer with anyone connected with the" respondent. Respondent notified the union that its operations had closed down indefinitely, and therefore there was nothing about which to negotiate with the union.

On May 6, 1935, respondent posted a notice as follows:

"Last Friday morning at 10:00 A. M. a small minority of our employees walked off the job, quit their jobs, intimidating the other employees and shut down our operations.

"We were never served with a strike notice; but the demands of the minority, by press reports, to obtain wages and conditions which are impossible for us to meet, after...