Santiam Lumber Co.

In the Matter of SANTIAM LUMBER Co., EMPLOYER and LOCAL 5-265, INTERNATIONAL WOODWORKERS OF AMERICA, CIO, PETITIONER Case No. 19-R-1814.-Decided September 23, 1946 Mr. G. A. Metzger, of Eugene, Oreg., and Mr. Walter Leisy, of Leba- non, Oreg., for the Employer. Messrs. A. F. Hartung and Harvey R. Nelson, of Portland, Oreg., and Mr. Ed. McSorley, of Sweet Home, Oreg., for the Petitioner. Mr. Doyle Pearson, of Portland, Oreg., and Messrs. C. P. Richards and W. 0. Kelsay, of Eugene, Oreg., for the Intervenor. Mr. John A. Nevros, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Albany, Oregon, on July 9, 1946, before Benjamin B. Law, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Santiam Lumber Co., a partnership composed of Fred W. Powers, Carl L. Davis, John R. Powers, George E. Powers, Helen R. Davis, and Richard E. Davis, is engaged in the operation of a sawmill at Sweet Home, Oregon. During the current year, approximately 80 to 90 percent of the Employer's anticipated lumber production, having an estimated value of in excess of $1,000,000, will be shipped to points outside the State of Oregon. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. Lumber and Sawmill Workers Local Union No. 2791, United Broth- erhood of Carpenters and Joiners of America, herein called the Inter- 71 N. L. R. B., No. 2. 5 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD venor, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer., III. THE QUESTION CONCERNING REPRESENTATION On December 29, 1943, the Employer and the Intervenor entered into a contract covering all the Employer's workers except office and supervisory personnel, effective to May 1, 1944, and automatically renewable from year to year thereafter in the absence of notice by either party to the other of "an intention to change, modify, revise, adjust or terminate" the agreement "at least 30 days preceding May 1 of any year." Neither party to the contract has at any time given notice of intention to terminate the contract. On April 21, 1945, fire completely destroyed the Employer's mill. In June 1945, reconstruction of the mill was commenced and on April 17, 1946, the Employer resumed production on a limited basis. At the time of the hearing, full production was contemplated by September 9, 1946. On April 23, 1946, the Petitioner advised the Employer that it rep- resented a majority of the latter's employees and requested exclusive recognition. By letter dated April 24, 1946, the Employer refused to grant recognition to the Petitioner because of its contract with the Intervenor. On April 24, 1946, the Petitioner filed the petition herein. At the time of the fire, the Employer had about 75 employees work- ing in the mill. Of the approximately 40 workers engaged in con- struction work during the period of reconstruction, only 18 or 20 had been employed by the Employer prior to the fire. The rest were newly lured carpenters and electricians' helpers. During the period of reconstruction, the Employer had no contract with the Intervenor covering construction operations, nor did it deal with the Intervenor or any other union in regard to the construction operations during the rebuilding of the plant. The wages of the newly hired construction workers were mainly determined on the basis of information obtained by the Employer from the U. S. Employment Service and not through collective bargaining. In September 1945, the District Council and the Willamette Valley Lumber Operators' Association, of which the Employer was a member, negotiated a wage increase throughout the area effective on November 1, 1945.2 The Employer effected the in- crease only with respect to the 18 or 20 employees originally covered by the agreement with the Intervenor, and not to the other con- struction Workers. I The motion to intervene was filed by the Willamette Valley District Council of Lumber and Sawmill Workers, herein called the Distiict Council, in behalf of Local Union No. 2791, a member of the District Council The contract, by its terms, provided that "either party may notify the other party at any time of a desire to revise wages generally." SANTIAM LUMBER CO. 7 The Employer and the Intervenor urge that their contract con- stitutes a bar to a present election, because the Petitioner's claim to representation was not made before April 1, 1946, the automatic renewal date of the agreement.' However, as appears above, before the effective date of the automatically renewed contract in 1945, the Employer's mill had ceased operations and did not resume production until approximately 2 weeks after the 1946 automatic renewal date. An entire year has elapsed. Thus, at its inception in 1945 and for practically the entire period covered by the renewed contract, as well as on the 1946 automatic renewal date, the subject matter of the con- tract was no longer in existence. The contract by its terms did not cover and was not intended to apply to employees engaged in con- struction work.4 While it is true that the District Council negotiated a general wage increase applicable to employees of members of the Operators' Association, such increase was intended to apply to em- ployees engaged in regular production and maintenance work, and not to the type of construction workers then employed by the Em- ployer. The fact that the increase was effected by the Employer with respect to the 18 or 20 workers engaged in construction work who had been employed in the regular operations of the Employer prior to the fire- does not alter the situation ; these em- ployees were not engaged in production and maintenance work and clearly did not constitute a group representative of the skills and categories embraced by the terms of the contract, many of which had ceased to exist when the mill was destroyed.5 Under the fore- going circumstances, we are of the opinion that the contract does not constitute a bar to a present determination of representatives.6 We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. Iv. TIIE APPROPRIATE UNIT The parties agree that the appropriate unit should consist of all production, maintenance, and transportation employees at the Em- ployer's sawmill, excluding o ff i c e and clerical employees, plant super- intendent, mill foreman, planer and yard foreman, and retail nman- a See lfatter of lhll B , Inc, 40 N L R B 346 In this connection , Walter Leisy, manager at the Employer 's mill , testified • "It seems that there was no effoit made on the part of the A F. of L. to do anything about the agreement . . since the thing was allowed to lie dormant during the construction period Cf Matter of American Radiator and Standard Sanitary Corporation , 67 N L R B 1135. B Cf. Matter of Food Machinery Corporation , 68 N L R B 600 ; Matter of Sinclair Rub- ber, Inc , 57 N L R. B 800 , Matter of The Prosperity Company, Inc., 55 N. L it. B 350, Matter of Ball Brothers Company, 54 N. L R. B. 1512 , and Matter of Chase Brass and Copper Co , Inc, 47 N . L. R B. 298 , wherein the Board held that a contract executed prior to the commencement of operations in the plant covered thereby constituted no bar to an election. 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ager. They are in disagreement, however, with respect to the shop foreman. The Petitioner would include him in the unit and the Employer would exclude him; the Intervenor takes no position in this regard. The shop foreman normally supervises approximately three em- ployees. He is paid on a salary basis, whereas his subordinates are hourly paid workers. Although he operates a machine occasionally, his supervisory duties require approximately two-thirds of his time. He has authority to hire and discharge employees. We find that the shop foreman is a supervisory employee within our customary defini- tion of the term; we shall therefore exclude him from the unit. We find that all production, maintenance, and transportation em- ployees at the Employer's sawmill, excluding office and clerical em- ployees, plant superintendent, mill foreman, planer and yard fore- man, shop foreman, retail manager, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the pur- poses 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 Santiam Lumber Co., Sweet Home, Oregon, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Direc- tor for the Ninteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations- Series 4, among the employees in the unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period im- mediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, 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, to determine whether they desire to be represented by Local 5-265, International Woodworkers of America, CIO, or by Lumber and Sawmill Workers Local Union No. 2791, A. F. of L.,T for the purposes of collective bargaining, or by neither. T At the hearing, the Intervenor requested that its name appear on the ballot as it appears above ; the request is hereby granted.