Cape Arago Lumber Co.

In the Matter Of CAPE ARAGO LUMBER COMPANY, EMPLOYER and LUMBER AND SAWMILL WORKERS LOCAL UNION No. 2573, AFL, PETITIONER Case No. 36-RC-162O.-Decided May 6, L940 DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed, hearing in this matter was held at North Bend, Oregon, on January 12 and 13, 1949, before Eleanor Nygren, hearing officer. 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 connection with this case to a three-member panel [Members Reynolds, Murdock, and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner, a labor organization, claims to represent em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks a unit of all production and maintenance em- ployees of the Employer at its lumber manufacturing plant at Empire, Oregon, together with boom-men 1 and rafters at the Employer's logging dumps at Delmar and Allegany, Oregon, and at intermediate dumps,2 including employees temporarily assigned to railway carload- ing operations, but excluding the crane operator, office clerical em- ployees, and supervisors. The Petitioner and Employer are generally in agreement as to the composition of the unit. However, the Em- ployer would exclude boom-men, rafters, and employees temporarily assigned to railway carloading operations. 'These boom -men are distinguishable from the boom-men who are employed in the millpond at the Empire plant, and as to whom there is no dispute 3 The Employer presently operates only the Delmar and Allegany dumps; however, it is occasionally necessary to operate intermediate dumps. 83 N. L. R. B., No. 5& 394 CAPE ARAGO LUMBER COMPANY 395 Since 1941, the Employer, an Oregon corporation, has been engaged in the manufacturing of lumber at Empire, Oregon. Empire is lo- cated on the shore of Coos Bay, Oregon. It is on this bay that a sub- stantial number of logs used at the Empire plant are rafted and towed from the Employer's logging dumps at Delmar and Allegany, Oregon.3 Both dumps receive logs by truck from the Employer's logging camps' From these dumps the logs are rafted and towed to the Empire plant. Lumber shipped from the Empire plant is transported by trucks of independent contractors to the towns of North Bend and Coos Bay, Oregon,' and there loaded onto railway cars. Boom-men and rafters Boom-men and rafters who, at the various logging dumps, assemble logs which are thereafter towed to the Empire plant, perform an integrated operation under a common over-all supervision with the production and maintenance employees at the Empire plant. The Em- ployer contends that boom-men and rafters should be excluded from the proposed unit upon the grounds : (1) that they are not employees of the Employer but are employees of Millicoma Boom Company; 6 and (2) that the bargaining pattern in the industry and the Employer's own bargaining history' establish the appropriateness of a separate unit for such employees. The Millicoma Boom Company, an Oregon corporation, has a fran- chise from the State of Oregon, pertaining to certain booming rights on the Allegany River, a tributary of Coos Bay. The Employer con- trols Millicoma Boom Company; both corporations have an inter- locking directorate ; and the superintendent of the Employer is the manager of Millicoma Boom Company, and as such hires and directs its employees. The main office of the Employer is the main office of Millicoma Boom Company and the books of both concerns are kept by the same office force. Thus, it appears that the Employer through its superintendent, hires, directs, and otherwise controls, if not ex- clusively, at least in common with Millicoma Boom Company, the boom-men and rafters involved in this proceeding. In view of the common control exercised by the Employer and Millicoma Boom Com- pany over the boom-men and rafters and the fact that the Employer and Millicoma Boom Company are to a large extent subject to a com- mon supervision and operated by the same or closely related interests, s Delmar and Allegany are respectively 15 and 25 miles from the plant at Empire. 4 The Employer 's logging employees are presently represented by another union and are not involved in this proceeding. 5 Both towns are about 4 miles from Empire. "This view is supported by the fact that Millicoma Boom Company reimburses the Employer for wages which the latter pays out to boom-men and rafters. 4 The record is inconclusive as to whether boom-men and rafters have been covered by the recently expired agreement between the Employer and the Petitioner. 396 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD -we find that, for purposes of this proceeding, boom-men and rafters -are employees of the Employer within the meaning of the Act. There remains for consideration the. further contention of the Employer that boom-men and rafters should be excluded from the unit because of the Employer's bargaining history and the pattern of collective bargaining in the industry. Although such factors might, under'other circumstances and in conjunction with other fac- tors, warrant a finding that boom-men and rafters should be excluded from the production and maintenance unit and established as a separate unit for purposes of collective bargaining, there is, in the present instance, no labor organization presently representing or claiming to represent boom-men and rafters in a unit apart from the production and maintenance employees at the Empire plant ; accordingly, we find no reason to exclude boom-men and rafters from the broader unit sought by the Petitioner in this proceeding, and we shall, there- fore, include them in the production and maintenance unit." Railway carloaders The Employer contends that employees who temporarily assist in railway carloading operations are employees of independent con- tractors who truck lumber from Empire to the railway loading points in North Bend and Coos Bay, Oregon. We do not agree. The only basis for such contention is that the wages earned by these employees during the loading operations are charged to the account of inde- pendent contractors. The record discloses that on occasion the independent contractors request the Employer for employees to aid in the loading operations. Such employees are assigned by the Em- ployer from their regular jobs at the plant to the carloading jobs and are recalled to the plant when a particular carloading job is finished. These employees are paid by the Employer and are at all times under its control. It appears, therefore, that these .employees are merely loaned on a temporary basis to the independent contractors. We find that such railway carloaders are employees of the Employer; 9 accordingly, we shall include them in the unit hereinafter found appropriate. We find that all production and maintenance employees of the Employer at its lumber manufacturing plant at Empire, Oregon, together with boom-men and rafters at the Employer's logging dumps at Delmar and Allegany, Oregon, and at intermediate dumps, includ- ing employees who temporarily assist in railway carloading operations, but excluding the crane operator, office clerical employees, and super- 8 See Matter of California Almond Growers Exchange, 73 N. L. R. B. 1367, and Matter of Scrapto Manufacturing Company, 65 N. L R. B. 222. 1 See Matter of Best Motor Lines, 80 N. L. R B. 314. CAPE ARAGO LUMBER COMPANY 397 visors,10 constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding 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 be represented, for purposes of collective bargaining, by Lumber and Sawmill Workers Local Union No. 2573, AFL. "The' record is inadequate to determine whether or not the retail yardman and the planer "foreman" on the night shift are supervisors within the meaning of the Act. If either exercises supervisory powers within the meaning of the Act, he is to be excluded from the unit ; otherwise he is to be included.