St. Paul and Tacoma Lumber Co.

In the Matter of ST. PAUL AND TACOMA LUMBER COMPANY,' EMPLOYER and INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 2-9, CIO, PETITIONER Case No. 19-U-4-582.-Decided February 1,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section (3) (b) of the National Labor Relations Act, the Board has delegated its powers in connec- tion with this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in this case,2 the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner represents employees of the Employer. 3. The petition herein alleges that more than 30 percent of the em- ployees in the unit represented by the Petitioner desire to authorize the Petitioner to make an agreement with the Employer requiring membership in the Petitioner as a condition of employment in such unit, which allegation was supported by documentary evidence submitted by the Petitioner. The Employer currently recognizes the Petitioner as the collective bargaining representative of its employees and no question affecting commerce exists concerning the representation of employees of the Employer in the unit hereinafter found appropriate. Accordingly, we find that the Petitioner has satisfied the preliminary requirements for a union-ship authorization election as set forth in Section 9 (e) (1) of the amended Act. 4. The appropriate unit : 1 As amended at the hearing. *Chairman Herzog and Members Houston and Gray. 1 As we find that the record, and the brief submitted by the Petitioner, fully present the !sues here involved, the Petitioner's request for oral argument is hereby denied. 81 N. L. R. B., No. 76. 434 ST. PAUL AND TACOMA LUMBER COMPANY 435 The Employer is engaged, inter alia, in logging operations in Pierce County, Washington, and in the operation of a sawmill at Tacoma, Washington. With certain exceptions discussed hereinafter, the parties are in agreement that the unit appropriate for the purposes of this proceeding consist of all employees of the Employer in its Pierce County logging and Tacoma mill operations, subject to certain exclusions.' The Employer would also exclude from the unit in this proceeding mill watchmen, including a head watchman and a gateman, and camp caretakers, on the ground that they are guards within the meaning of Section 9 (b) (3) of the Act, and hook tenders on high lead yarding crews, and head riggers on slack line and skidder yarding crews, on the ground that they are supervisors within the meaning of Section 2 (11) of the Act. These employees have heretofore been included in the bargaining unit. The Petitioner contends that these employees should be included in the unit in this proceeding, on the grounds that (1) the Board is without authority to alter the composition of an es- tablished bargaining unit for the purposes of a proceeding to authorize the execution of a union-security agreement, and (2) in any event, none of the foregoing employees are guards or supervisors within the meaning of the Act. With respect to the broad proposition advanced by the Petitioner's first contention, the Board has heretofore held, in two cases involving the application of Section 14 (b) of the Act 4 and in another case in which the parties wished to continue in effect the provisions of a previous contract which contained union-security provisions appli- cable to only part of an established bargaining unit,5 that a unit ap- propriate for the purposes of Section 9 (e) (1) need not be coextensive with, but may consist of only a part of, a unit established for repre- sentation purposes under Section 9 (c). Such findings were made despite the fact that in each of the cases the established bargaining unit was one which the Board could, pursuant to the provisions of the amended Act, have found to be appropriate for the purposes of Section 9 (c). $ Shingle weavers , boommen and rafters, bull buckers, car scalers, check scalers, civil engineers , office employees, and all supervisors of the rank of foreman or higher. This is substantially the bargaining unit established in connection with a consent election held August 19, 1939, and won by the Petitioner , and with respect to which the Peti- tioner and the Employer have since bargained . The agreements between the parties have been embodied in two contracts, one pertaining to the logging operations and one to the mill operations . The most recent contracts expired April 1, 1948. In substantial agreement with the parties , we find that all employees in the Employer's Pierce County logging operations and Tacoma mill operations , subject to the foregoing exclusions and such further exclusions as shall hereinafter be determined to be proper , constitute a unit appropriate for the purposes of conducting an election pursuant to Section 9 (e) (1) of the amended Act. 4 Matter of Giant Food Shopping Center, Inc., 77 N. L R. B . 791 (Messrs . Herzog and Houston dissenting ) ; Matter of Northland Greyhound Lines, Inc., 80 N. L. R. B. 288. 5 Matter of Benjamin Eastwood Company, 77 N. L R B. 1383. 829595-50-vol 81-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this case we are presented with the obverse face of the coin. It is beyond question that if this were a proceeding pursuant to Section 9 (c) of the amended Act, we could not include in any unit, together with other employees, guards as defined in Section 9 (b) (3),6 nor could we include in any unit supervisors as defined in Section 2 (11).7 Yet, the Petitioner urges in substance that we must, for the purposes of this proceeding, find appropriate the unit established by the agree- ment of the parties, even though we are prohibited by law from finding such a unit to be appropriate in the first instance in a 9 (c) proceeding. We find no merit to this contention. It is clear from the language of Section 9 (e) (1) of the amended Act 8 that only "employees" may be included in any unit established for the purpose of conducting a union-shop authorization election, and that only employees may vote in such an election. As supervisors are not employees within the the meaning of the amended Act,9 they may not be included in such a unit, nor may they be permitted to vote in such an election.10 Although Section 14 (a) of the amended Act 11 may, as urged by the Petitioner, permit an employer voluntarily to bargain collectively with a labor organization which includes super- visors among its members, the section also prohibits the Board from lending its processes to such activity. With respect to the guards, the Board recently, in a decision on appeal,12 upheld the dismissal of a petition for a union-shop authoriza- tion election, in a unit of guards, filed by a labor organization affiliated with an organization which admits to membership employees other than guards. The Board concluded that if it entertained the petition in that case, it would give encouragement to a type of representation which was contrary to the policy of the Act, as expressed in Sec- tion 9 (b) (3). As the same considerations apply to the issue in this case, we shall exclude guards from the election unit. 8 See, for example : Matter of Stonewall Cotton Mills, 75 N L. R. B. 762. ' See, for example • Matter of Wilson Transit Company, 75 N. L. R. B. 181. 8 "(e) (1) Upon the filing with the Board by a labor organization , which is the repre- sentative of employees as provided in Section 9 (a), of a petition alleging that 30 per centum or more of the employees within a unit claimed to be appropriate for such pur- poses desire to authorize such labor organization to make an agreement with the employer of such employees requiring membership in such organization as a condition of employment in such unit, upon an appropriate showing thereof the Board shall, if no question of representation exists, take a secret ballot of such employees , and shall certify the results thereof to such labor organization and to the employer." 8 Footnote 7, supra. 10 See Matter of Lloyd Corporation, Ltd , 79 N. L. R. B. 1477 , in which the Board, in an election pursuant to Section 9 (e) (1), sustained a challenged to the ballot of a supervisor. 11 "Sec. 14 . (a) Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization , but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local , relating to collective bargaining " 11 Matter of American Radiator and Standard Sanitary Corporation , Case No. 20-UA- 1613, dated December 13, 1948. ST. PAUL AND TACOMA LUMBER COMPANY 437 The contested categories The mill watchmen: At its Tacoma mill the Employer employs nine watchmen, a head watchman, and a gateman . The watchmen work nights, holidays, and at other times when the mill is not operat- ing; their shifts do not coincide with those of the production workers, although both watchmen and production workers are on duty from 4 p. m. until midnight and from 7 a. ill. until 8 a. m. The watchmen walk regular patrols, for the most part inside the mill. Their primary function is that of fire watchers. They are also authorized to guard against trespass on tile Employer's property, to guard against theft, and to enforce rules against smoking, and other unspecified rules. Their authority with respect to such matters extends, however, only to warning any offenders to desist, and to report any offender to the management or the civil authorities in the event the offense continues. There is testimony that the watchmen have reported employees for theft, and that they have reported employees for other rule infrac- tions. The watchmen are not empowered to enforce order or quell disturbances, and they are neither deputized nor armed. The gateman is stationed at the plant gate and has duties and au- thorities similar to that of the watchmen with respect to guarding against trespass and unauthorized entry. He does not check em- ployees in or out of the mill, or identify them by badge number. In addition, the gateman has duties of a clerical nature, such as preparing time cards and forms for the use of the timekeeper. Although at one time the Employer had sought to classify this employee as an office employee, he was classified as a gateman at the request of the Peti- tioner, so that he might be included in the bargaining unit. The gateman and the watchmen all have plant-wide seniority with respect to lay-offs, provided positions are available that they are qualified to fill; they have no seniority with respect to hiring for posi- tions other than those they now occupy. They are paid the minimum wage provided in the contract between the Employer and the Peti- tioner. The head watchman's duties and responsibilities are similar to those of the other watchmen, except that he does not walk a regular patrol. In addition, he is responsible to the plant superintendent and the mechanical superintendent for the performance by the watchmen of their assigned duties 13 Upon the basis of the entire record, we find that the mill watchmen, the head watchman, and the gateman possess and exercise authority "The record is not sufficiently complete to permit us to determine whether the head watchman is a supervisor within the meaning of Section 2 ( 11) of the amended Act. However, in view of our decision that these watchmen are guards, we find it unnecessary to decide this question. 438 DECISIONS 01' NATIONAL LABOR RELATIONS BOARD to enforce against employees and other persons rules to protect prop- erty of the Employer. They are, therefore, guards within the mean- ing of Section 9 (b) (3) of the amended Act, and we shall accordingly exclude them from the unit 14 The camp caretakers: The Employer employs five camp caretakers. One is stationed at the camp at Lake Kapowsin, one at the gate near Camp No. 1, one at Camp No. 5, one at the dry reload on Lake Ka- powsin, and one is a relief man. The places at which the caretakers are stationed are from 24 to 45 miles from the Employer's mill at Tacoma. During the daytime the caretaker at the camp on Lake Kapowsin tends the gasoline pump, pumping gasoline for the Employer's trucks, and gives signals with respect to the loading of the trucks. At night he pumps gasoline, if necessary, and acts as camp guardian. His duties as guardian include preventing the entry of unauthorized persons onto the camp property and the theft of property stored at the camp. His authority in this respect is limited to warning tres- passers to leave the property, and to reporting any who do not leave to the foreman or superintendent, or, if they are not available, to the sheriff. He is also authorized to report employees for theft, but no instances of the exercise of such authority were cited. The gate near Camp No. 1 blocks the road which leads to the main Camp No. 1 logging operations. The duties of the caretaker at this gate are to prevent unauthorized persons from passing through the gate into the logging area. The only employees who pass through the gate are the truckers, who are let through as a matter of course, and who are not required to display a pass. Other employees going into the woods use another gate which is manned by the United States Forest Service. Employees working at the Camp No. 1 machine shop do not pass through the gate, and the caretaker has no control over their movements. Camp No. 5 consists principally of a small supply depot and gasoline pump; access to this camp is obtained through either the Camp No. 1 gate or the gate manned by the Forest Service. There is no regular employment at this camp. The duties of the caretaker at this camp are to guard the property stored there against theft. He has no control over the movements of employees, and neither keeps a record of the property stored at the camp nor checks it in or out. He is about 80 years old. The duties of the caretaker at the dry reload are to watch for and question trespassers and to act as a fire watcher in dry weather. He has no authority with respect to other employees. The relief man assumes the duties of the caretakers whom he relieves. 14 See Matter of Potlatch Forests, Inc., 80 N. L R. B. 613. ST. PAUL AND TACOMA LUMBER COMPANY 439 None of the caretakers is armed or deputized, and none has had prior training as a guard. All have been recruited from among the regular employees of the Employer. All are paid the minimum rate specified in the contract between the Employer and the Petitioner, except that any caretaker transferred from the higher paying positions of machine tender or hostler retains his former rate of pay. Although certain of these caretakers have some non-monitorial duties, we find, on the basis of the entire record, that their principal duty is to enforce rules to protect property of the Employer. They are, therefore, guards within the meaning of Section 9 (b) (3) of the amended Act, and we must accordingly exclude them from the unit.1o The hook tenders and head riggers: The Employer employs 11 or 12 individuals classified as hook tenders on high lead yarding crews,16 and 6 individuals classified as head riggers on slack line and skidder yarding crews. Each hook tender is in charge of a crew of 12 or 13 employees; each head rigger is in charge of a crew of 22 employees. Considerable testimony was adduced at the hearing per- taining to the alleged supervisory or non-supervisory status of these hook tenders and head riggers. Such testimony was, however, in part contradictory and on the whole inclusive, at least partially because of the lack of close employment association between the witnesses and the employees involved. We are therefore unable on the present inconclusive state of the record to determine whether these hook tenders and head riggers are or are not supervisors within the meaning of Section 2 (11) of the amended Act. Accordingly, we hereby direct the Regional Director to permit these individuals to vote, but to challenge and impound their ballots pending the outcome of the election. If the challenged ballots of these individuals are sufficient in number to affect the result of the election, we shall direct that a further investigation be conducted to determine their eligibility to vote. Accordingly, on the basis of the agreement of the parties and our findings as hereinbefore set forth, we find that all employees of the Employer in its Pierce County logging and Tacoma mill operations excluding shingle weavers, boommen and rafters, bull buckers, car scalers, check scalers, civil engineers, office employees, and guards 17 and supervisors as defined in the Act, constitute a unit appropriate for the purposes of Section 9 (e) (1) of the Act. We shall direct that a union authorization election be held in the foregoing unit. 15 Matter of C. V. Hill h Company, Inc., 76 N. L R. B. 158, 164. 16 Hook tenders on other types of yarding crews are not to be confused with the hook tenders whose status is here in issue . Such other hook tenders are concededly crew members who possess no supervisory authority. 17 The mill watchmen, the head watchman , the gateman , and the camp caretakers. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION Pursuant to Section 9 (e) (1) of the National Labor Relations Act, as amended, an election by secret ballot shall be conducted as early as possible, at such time as the Board shall in the future direct, upon advice from the Regional Director that the Employer has re- sumed normal production, and that an election may appropriately be held under the direction and supervision of the Regional Director for the Nineteenth Region, and subject to Section 203.61 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, in- cluding employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but ex- cluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to authorize International Woodworkers of America, Local 2-9, CIO, to make an agreement with St. Paul and Tacoma Lumber Company, Tacoma, Washington, requiring membership in the aforesaid labor organiza- tion as a condition of employment in such unit.