Hi-Way Lumber Co.

In the Matter Of UKIAH PINE LUMBER COMPANY, INC. D/B/A HI-WAY LUMBER COMPANY,1 EMPLOYER and GENERAL TRUCK DRIVERS, WARE- HOUSEMEN & HELPERS, LOCAL 980, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, A. F. L., PETITIONER Case No. 2O-RC-626.-Decided December 8, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Nathan R. Berke, a hearing officer. The hearing officer's ruling made at the hearing are free from prejudicial error and are hereby affirmed.2 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 [Chairman Herzog and Members Reynolds 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.3 2. The Petitioner and the Intervenor, Lumber and Sawmill Work- ers, Local No. 2783, affiliated with the United Brotherhood of Car- penters and Joiners of America, AFL, are labor organizations claim- ing to represent certain employees of the Employer. The Employer's name appears as amended at the hearing. 2 The motion of the Intervenor to dismiss the petition because its contract with the Employer is a bar to this proceeding is denied, for the reasons given in paragraph 3 below. Its motion to dismiss because of the alleged insufficiency of the Petitioner 's showing of interest is also denied. The parties in a representation proceeding may not go behind the Board's dc'-termination as to the prima facie showing of interest. a Hi-Way Lumber Company is an unincorporated division of Ukiah Pine Lumber Com- pany, Inc. It is engaged at Ukiah, California, in selling lumber and 'building materials at retail, and in loading lumber transported from the Employer's mill onto railroad cars from a siding at Ukiah. The Employer's other divisions are engaged in lumbering and in operating a sawmill at points approximately 50 and 25 miles distant, respectively, from Ukiah. The Employer stipulated at the hearing that it is engaged in interstate commerce in its lumbering and mill operations, with the reservation, however, that its business operated under the name of the Hi-Way Lumber Company is not so engaged. We find that Hi-Way Lumber Company is an integral part of the Employer's operations, and accordingly, that the Employer is engaged in commerce within the meaning of the Act. Spic/celmier Company, 83 NLRB 452; North Memphis Lumber Co., Si NL1tB 745. S7 NLRB No. 70. 468 HI-WAY LUMBER COMPANY 469 3. The question concerning representation : The Employer and the Lumber Workers contend that their contract of June 27, 1946, which was automatically renewed on April 1, 1949, is a bar to this proceeding. The Petitioner contends that, the contract is not a bar because, among other reasons , it does not include the employees in the retail lumber yard at Ukiah , which is the unit peti- tioned for here. The Lumber Workers was certified in March 1944, after a consent election agreement, as the collective bargaining representative for all the Employer's employees at its plant and logging operations in the vicinity of Potter Valley, California. In June 1946, the Employer and the Lumber Workers entered into a collective bargaining contract covering the employees in the Employer 's woods and mill operations. The contract was automatically renewed in April 1947 and April 1949, without amendment to its coverage clause. Before May 1946, the Employer sold ' a small amount of lumber at retail at its mill near Potter Valley, and used mill employees to load lumber on railroad cars at Ukiah. In May 1946, it established a yard for the retail sale of lumber and building materials , about a quarter mile from the railroad siding where it loaded lumber for shipment. Carloaders from the mill at Potter Valley were transferred to Ukiah, and new employees were hired as yardmen for the retail establishment, under the supervision of the Employer's office manager at Ukiah. In support of its contention that the contract was meant to include the yardmen and carloaders assigned to the lumber yard at Ukiah, the Lumber Workers asserts that there is frequent interchange of em- ployees between the mill and the lumber yard, that the yard employees voted in a union authorization election conducted by the Board in May 1948, and that it has bargained with the Employer concerning the yard employees. The record discloses that all hiring and firing for the retail lumber yard is done by supervisors at Ukiah. Employees are occasionally transferred between the mill and the lumber yard for short periods of time. The Employer's office manager who supervises the yard em- ployees testified that in preparing the list of employees eligible to vote in the union authorization election he listed the carloaders who are assigned to the lumber yard , but omitted the yardmen who saw, sort, and tally lumber and deliver it to customers by truck. Changes in wage rates of yard ' employees have followed the rates established for mill employees, by negotiation between the Employer and the Lumber Workers, but, .according to the Employer' s office manager, have been granted unilaterally by the Employer after new rates for . the mill employees have been established. While the matter is not 470 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD entirely free from doubt, we believe that the contracting parties, by failing to amend the coverage clause of the contract in two successive renewals, have not evinced an intention to include the yard employees within the scope of the contract. Accordingly, we find that the exist- ing contract is not a bar to the present proceeding limited to those employees 4 We find that a question affecting commerce exists concerning the representation 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 requests a unit of truck drivers, carrier and stacker drivers, lumber handlers, shipping and receiving clerks, and tally men employed at the Employer's retail lumber yard at Ukiah, California. The Employer and the Intervenor contend that the only appropriate unit is one composed of all employees in the woods, mill, and lumber yard operations of the Employer. As the retail lumber yard em- ployees have not been included in the unit established by the Lumber Workers' contract, we shall, on the special facts in this case, conduct a separate election among these employees to determine their desires with respect to representation .5 We shall therefore make no final unit determination at this time, but shall first ascertain the desires of the employees involved as expressed in the election to be conducted in the voting group described below : All truck drivers, carrier and stacker drivers, lumber handlers, ship- ping and receiving clerks, and tally men employed at the Employer's retail lumber yard at Ukiah, California, excluding clerical employees and all supervisors as defined by the Act. If a majority of the employees in the voting group described above vote for the Intervenor, they will be taken to have indicated their desire to be bargained for as part of the unit of logging and mill employees which the Intervenor presently represents. If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate unit. DIRECTION OF ELECTION 6 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by *Inspiration consolidated Copper Co ., 81 NLRB 1377; Victor Electric Company, 79 NLRB 373; and Dazey Corporation, 77 NLRB 408. U Flodin Lumber Co., 82 NLRB 889 ; The City Ice & Fuel Company, 73 NLRB 903; and Willamette Valley Lumber Company, 69 NLRB 1141. e The Employer and the Intervenor would postpone the election until the Employer's contemplated expansion of the retail lumber yard is completed. As this was estimated to be within 60 to 90 days from the hearing, and that period is now substantially completed, we shall direct an election in accordance with our usual rule. HI-WAY LUMBER COMPANY 471 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 National Labor Relations Board Rules and Regulations, 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, 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 election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargain- ing, by General Truck Drivers, Warehousemen & Helpers, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, A. F. L., or by Lumber and Sawmill • Workers, Local No. 2783, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL, or by neither.