Matheny Creek Lumber Co.

In the Matter Of MATHENY CREEK LUMBER CO.,' EMPLOYER; and,' INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL No. 7-116, CIO;, PETITIONER Case No. 36-RC-262.-Decided August ^?, 1949 DECISION AND DIRECTION OF ELECTIONS . Upon a petition duly filed, a hearing was held before H. J. Mer- rick, hearing officer of the National Labor Relations Board. Thee 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 In the Matter Of MATHENY CREEK LUMBER Co.,' EMPLOYER and` 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 and the Intervenor 2 are labor organizations. claiming to represent employees 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 appropri ate unit : The Petitioner seeks a unit consisting of all production and mainte- nance employees engaged in the Employer's logging, booming, and, sawmill operations in Coos County, Oregon.a The Employer con- tends that the unit should be confined to its booming and sawmill operations, and that the employees engaged in its logging opera- tion should constitute a separate unit. The Employer also con- tends that sawmill watchmen should be excluded as guards, and- that buckers and fallers should be excluded as employees of an inde I The Employer's name appears as amended at the hearing. 2 United Brotherhood of Carpenters and Joiners of America , Coos Bay District Council,_ Lumber and Sawmill Workers, AFL. 3 The unit description appears as amended at the hearing. 85 N. L. R. B., No. 88. 515 857829-.-50-vol. 85-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendent contractor. The Intervenor seeks a unit of production and maintenance employees in the Employer's booming and sawmill op- erations only, including watchmen. There is no prior history of collective bargaining. The Employer is engaged in the production of lumber. It operates a sawmill in Coos County, Oregon,. and conducts logging operations at a site 21 miles from the mill. Logs are transported by truck from the woods to a log dump a half-mile from the mill, rafted by boom men and moved to a pond, then started into the mill. The logging and mill operations are under separate supervision. Mill operations continue the year round, but logging operations are seasonal, lasting only about 4 months a year. The mill crew presently consists of be- tween 30 to 38 employees. The logging crew consists of about 20 em- ployees, in addition to 12 . buckers and fallers. There are 4 boom men, which number will increase to 9 during the summer. Employees in both the mill and logging operations are paid llourly,4 and normally work 40 hours a week.5 Apparently there has been some interchange of employees between these 2 operations in the past, but there is none at present, and none is contemplated in the future. There are separate pay rolls and time cards for the logging operation. These is no fixed pattern in the lumber industry with respect to the placement of logging employees within units of manufacturing em- ployees. In certain instances, the Board has found that production and maintenance employees in a lumber manufacturing operation may constitute a bargaining unit apart from the logging employees.6 In other instances, the Board has found that logging employees together with mill employees may constitute a single appropriate unit.' Where, as here, the Employer's activities are integrated, and no labor organization is claiming the logging employees in a separate unit, we are of the opinion that a single unit of production and maintenance. employees, including the loggers, may be appropriate. However, we shall make no present determination of the appro- priate unit or units, but shall reserve such finding pending an expres- sion of the desires of the employees as revealed in the elections which we shall hereinafter direct in two voting groups: one consisting of the employees engaged in the Employer's logging operation, and the 2nzn other of the employees engaged in the Employer's sawmill operation. Certain questions have arisen concerning the specific composition of the above-mentioned voting groups. The Employer contends that ' The rate of pay for the loggers is higher than that of the sawmill employees. 5 Sometimes, because of weather conditions , the logging crew works different hours from the mill crew. 6 Matter of Swan Flodin, Walter Flodin, and Eric Brice, d/ b/a Flodin Lumber Com- pany, 82 N. L. It. B. 889 , and cases cited therein. T Matter of The J. N. Bray Company, 83 N. L. R . B., 388, and eases cited therein. -.MATHENY CREEK LUMBER CO. 517 mill watchmen should be excluded for the reason that they are guards. It appears that these watchmen spend about 25 percent of their work- time in patrolling the plant and punching time clocks. They'spend about 40 percent of their time in clean-up work. The record does not disclose the nature of their duties for the remaining 35 percent of their worktime. The Board has found that an employee who devotes all his working time to duties such as those performed by the employees in question in their capacity as watchmen is "employed as a guard," within the meaning of the amended Act.s The Board has also found that an individual is "employed as a guard" only if his guard duties constitute a dominant aspect, and not merely an incidental feature, of his total work pattern.' As the record in the instant case does not disclose the division of time spent by these employees in their dual capacity of watchmen and janitors, they shall be deemed excluded if more than 50 percent of their time is spent in the performance of their watchmen duties ; otherwise, they shall be deemed included within the unit of mill employees. The Employer also contends that the buckers and fallers are em- ployees of an independent contractor, and therefore should be excluded. These employees are hired by two individuals 10 who have a contract with the Employer to cut all its timber. The contractors are paid a certain rate for each thousand board feet of lumber produced. They furnish the necessary equipment, exercise sole supervision and control over the employees in question, set wage rates, and retain the authority to hire and discharge. These employees are paid their wages directly by the Employer 11 on the basis of time sheets submitted by the con- tractors. The Employer also pays workmen's compensation for them. Although the Board has found buckers and fallers to be company em- ployees rather than those of an independent contractor where the Company retained the right to discharge and discipline them 1 12 the Board has also found them not to be company employees where the Company had no control over them and the independent contractor retained the sole power to hire and discharge them 13 Under the pres- ent circumstances, since the Employer has no power to hire, discharge, or discipline the backers and fallers, we are of the opinion that they are not employees of the Employer within the meaning of the Act, and we so find. We shall therefore exclude them from either of the voting groups hereinafter established. 8 Matter of C. V . Hill d Company, Inc., 76 N . L. R. B. 158. ° Matter of Radio Corporation of America , 76 N. L. R. B. 827. 1° Cox and Clinkenbeer. "At the hearing, the Employer explained that this direct wage payment is made in order to avoid labor liens. 12 Matter of Great Bear Logging Company, 59 N. L. R. B. 701. 13 Matter of Daniel Crock Logging Company, 13 N. L. R. B. 184. 518 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD There are four pond men who handle logs at the mill pond. They- work the same hours as the mill crew, and are considered by the Eln-- ployer as part of the production force of the mill. We shall include. them within the voting group of mill employees. There remains for consideration the placement of boom men. The- boom men are engaged primarily in the moving of logs from log dumps- to a mill pond from which they are started into the mill. The Em- ployer and the Intervenor contend that they have a closer connection; to the mill operation than to the logging operation, and urge that they be grouped with the mill employees. The Petitioner takes no- ,position with respect to the grouping of these employees. We shall include the boom men within the voting group of mill employees. We direct that separate elections by secret ballot be held among the- employees of the Employer's operations in Coos County, Oregon,. within the following voting groups, excluding office and clerical em- ployees, guards, professional employees, and supervisors as defined in the Act : (1) All employees engaged in the Employer's logging operation,. excluding the buckers and fallers employed by Cox and Clinkenbeer Y (2) All employees engaged in the Employer's sawmill operation, in- cluding watchmen'14 boom men, and pond lnen. DIRECTION OF ELECTIONS 16 As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, elections 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 supervision of the Regional Director for the Region in which this case was heard,. and subject to Sections 203.61 and 203.62 of the National Labor Rela- tions Board Rules and Regulations, among the employees in the two voting groups set forth in paragraph numbered 4, above, who were, employed during the pay-roll period immediately preceding the date- of this Direction of Elections, 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 rein- stated prior to the date of the elections and also excluding employees on strike who are not entitled to reinstatement, to determine (1) whether or not the employees in voting group 1 desire to be represented, 14 Under the circumstances hereinabove provided for. 15 Either participant in the elections directed herein may, upon its prompt request to and approval thereof by the Regional Director, have its name removed from the ballot. MATHENY CREEK LUMBER CO. 519 for purposes of collective bargaining, by International Woodworkers of America, Local No. 7-116, CIO; and (2) whether the employees in voting group 2 desire to be represented, for the purposes of collec- tive bargaining, by International Woodworkers of America, Local No. 7-116, CIO, or by United Brotherhood of Carpenters and Joiners of America, Coos Bay District Council, Lumber and Sawmill Workers, AFL, or by neither.