National Labor Relations Board v. Potlatch Forests

Citation189 F.2d 82
Decision Date06 July 1951
Docket NumberNo. 12532.,12532.
PartiesNATIONAL LABOR RELATIONS BOARD v. POTLATCH FORESTS, Inc.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robert N. Denham, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Fannie M. Boyls, Albert M. Dreyer, Maurice Alexandre, Attorneys, N.L.R.B., Washington D. C., for petitioner.

R. N. Elder, Robt. H. Elder, Sidney E. Smith, Coeur d'Alene, Idaho, George W. Beardmore, Lewiston, Idaho, for respondent.

Before ORR and POPE, Circuit Judges, and FEE, District Judge.

ORR, Circuit Judge.

National Labor Relations Board seeks enforcement of its order requiring respondent Potlatch Forests to cease and desist from maintaining the "strike seniority" policy, hereinafter described, on the ground that said policy discriminates against union members in violation of Sec. 8(a)(3) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a)(3).

In 1944 the International Woodworkers of America was certified, and has since been recognized, as the exclusive bargaining agent for Potlatch's production and maintenance employees in its various establishments in Idaho. On April 1, 1946 Potlatch and the Union (the I.W.A. and its four locals) executed a Master Working Agreement, to expire at the end of one year, providing inter alia for seniority rights to govern in case of a reduction in force. Negotiations to renew this agreement in the spring of 1947 were disrupted over the question of wage differentials. An agreement extending all other provisions of the 1946 agreement until April 1, 1948, was executed, leaving the disputed question for further negotiations.

The parties being unable to agree, the Union called a strike in August 1947, thereby causing a shutdown of all the operations of Potlatch. Near the end of August 1947 Potlatch managed to resume operations, gradually accumulating both new employees and former employees who crossed the picket lines. The strike was later terminated and this group (hereinafter termed the "replacements") numbered about 1750 out of a normal complement in the bargaining unit of about 2600.

On October 10, 1947, the strike being hopelessly lost, the Union initiated negotiations to settle it. In the course of settlement negotiations, Potlatch vigorously asserted its desire to protect the job security of the replacements, as against possible displacement by those who would return on termination of the strike. The Union, on the other hand, desired that the seniority rights of this latter group (hereinafter called the "strikers") be fully protected. An agreement was reached and the strike terminated on October 13, 1947.

Immediately thereafter (apparently on October 14), Potlatch drafted in writing the "strike seniority" policy which gave rise to these proceedings. Under this policy, the strikers (those who returned to work on or after October 13) were to be laid off ahead of the replacements (those new or former employees who were working on or before October 12), in case a reduction in force should become necessary by reason of a curtailment of Potlatch's activities. While this draft was not publicized at that time, the Board has stipulated that Potlatch has maintained the "strike seniority" policy without deviation since October 13, 1947.

In the spring of 1948 Potlatch and the Union undertook negotiations to renew their agreement and consolidate all prior agreements into one master agreement. They apparently reached an agreement, and initialed a memorandum to that effect. However, when the proposed master agreement was prepared by Potlatch and submitted to the Union for signature, the Union representatives refused to sign on the ground that a provision purporting to incorporate the "strike seniority" policy had not been agreed upon, or discussed, in the negotiations. Hence, the 1948 master agreement never became effective, but the parties continued to operate under previous understandings.

Meanwhile, Potlatch continued to maintain the "strike seniority" policy. We have no knowledge as to the exact time this policy was in fact applied to an individual case. The Board bases its petition not only on the maintenance of this general policy but also to its application in the case of two individuals, Cloninger and Walters, on December 30, 1948 and January 18, 1949. Both of these men were strikers who had remained out until the strike was terminated, and both were "bumped" by workers with inferior seniority rights, as measured on the pre-strike basis. Cloninger filed a grievance, which was carried by the Union to the highest authority provided for in the grievance procedure, short of conciliation. At that point, the grievance was settled and the Union agreed that Cloninger be put back to work under the "strike seniority" policy, but expressly noted that the Union was not agreeing to the general validity of that policy. Walters filed no grievance.

On February 16, 1949, a charge was filed by the International Woodworkers of America, Local 10-364, signed by the vice-president of the International. This charge, as later amended, alleged that Potlatch violated Sec. 8(a)(1) and (3) of the Act, in maintaining and giving effect to the "strike seniority" policy. At the hearing before the Trial Examiner, the general counsel conceded that Sec. 8(a)(1) was involved only to the extent that the alleged violation of Sec. 8(a)(3) would itself constitute a violation of the broader Sec. 8(a) (1), there being no issue of an independent interference with the rights of employees guaranteed by Sec. 7. The Board held that Potlatch's conduct violated Sec. 8(a)(3), which provides that it "shall be an unfair labor practice for an employer * * * 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 * * *." The Board ordered Potlatch to cease and desist from maintaining or giving effect to the "strike seniority" policy and to post the customary notices. 87 N.L.R.B. 1193. The Board made no order relative to reinstatement of Cloninger and Walters, as they had already returned to work. No back pay was ordered for the reason that no claim was made in one case and was not justified in the other.

The Act does not confer upon Cloninger and Walters, nor upon the other strikers, specific seniority rights of which it is alleged they are being deprived; the Act merely prohibits discrimination in establishing and applying seniority policies. Seniority rights generally derive their scope and significance from union contracts. Aeronautical Industrial Lodge v. Campbell, 1949, 337 U.S. 521, 526, 69 S.Ct. 1287, 93 L.Ed. 1513. The Board found that Potlatch in 1947 agreed to, and has at all times since been bound by, contractual provisions conferring upon the strikers seniority rights of which they are being deprived by the application of the strike seniority policy. This finding was made despite Potlatch's contentions that the Union in 1947 agreed to, and has at all times since been bound by, the strike seniority policy.

Contrary to the significance given the various agreements by the Board, we deem it unnecessary to consider the validity of the Board's finding because a charge that the maintenance by Potlatch of the "strike seniority" policy constitutes a breach of a collective bargaining agreement should properly have been brought under Sec. 8 (a)(1) or (5). That the charge in this case is confined to Sec. 8(a)(3) was conceded by counsel for the Board at the hearing before the Trial Examiner. (Record p. 88) Sec. 8(a)(3) prohibits discrimination, not breach of contract. So far as Sec. 8(a)(3) is concerned, Potlatch may adopt any rule of seniority it desires — whether or not that rule violates an existing agreement — so long as that rule does not discourage union membership by...

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13 cases
  • National Labor Relations Board v. Erie Resistor Corporation
    • United States
    • United States Supreme Court
    • 13 Mayo 1963
    ...strike and return to work. The Court of Appeals for the Third Circuit in this case joined the Ninth Circuit, National Labor Relations Board v. Potlatch Forests, Inc., 189 F.2d 82 (and see National Labor Relations Board v. Lewin-Mathes Co., 285 F.2d 329, from the Seventh Circuit), to hold th......
  • LODGE 743, INT. ASS'N OF MACHINISTS v. United Aircraft Corp.
    • United States
    • U.S. District Court — District of Connecticut
    • 27 Mayo 1969
    ...Reasonable `discrimination' in the exercise of this right is justified by the employer's legitimate interest." NLR B v. Potlatch Forests, 189 F.2d 82, 86 (9th Cir. 1951). See also, Olin Mathieson Chem. Corp. v. NLRB, When negotiations broke down between the parties on July 7, 1960, the defe......
  • Bixby v. Wilson & Company
    • United States
    • U.S. District Court — Northern District of Iowa
    • 21 Agosto 1961
    ...that they were given seniority so far as lay-offs were concerned over the plaintiffs. In the case of National Labor Relations Board v. Potlatch Forests, Inc., 9 Cir., 1951, 189 F.2d 82, the employer employed workers to take the place of those of its employees who had gone on a strike. Upon ......
  • NLRB v. Transport Company of Texas
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 22 Marzo 1971
    ...the replacements that their jobs will be permanent. As authority for its position the Company cites the case of N. L. R. B. v. Potlatch Forests, Inc., 9 Cir. 1951, 189 F.2d 82. A close examination of Justice White's opinion in Erie Resistor, however, exposes the flaws in the Company's argum......
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