Ivory Pine Co. of California

IVORY PINE COMPANY OF CALIFORNIA 19 to the first question, indicating their wish to be included in a unit with the nonprofessional employees, they will be so included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting group (b) to decide the representative for the whole salaried unit. If, on the other hand, the majority of the employees in the professional voting group (a) vote against inclusion, they will not be included with the nonprofessional employees. Their votes on the second question will then be separately counted to decide which union, if either, they want to rep- resent them in a separate professional unit. If a majority vote for one of the competing labor organizations in one or more of the alternative units as described above, the Regional Director conducting the elections is instructed to issue a certification or certifications of representatives for such unit or units. [Text of Direction of Elections omitted from publication.] IVORY PINE COMPANY OF CALIFORNIA and OPERATING ENGINEERS , LOCAL NO. 3, INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL, Petitioner . Case No. 20- RC-2354. November 10, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Albert Schneider, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section2 (6) and (7) of the Act. 4. The appropriate unit: The Petitioner requests a unit of all production and main- tenance employees employed at the Employer's logging opera- tion near Kings Canyon National Park, California. The Em- ployer contends that the appropriate unit should include the logging operations and its sawmill plant at Dinuba, California, with certain exclusions. The Employer also contends that certain men engaged in falling, limbing, and bucking opera- tions at the logging camp are not its employees but employees of an independent contractor. The Employer' s logging operations are carried on some 50 miles from the mill site at Dinuba. Each operation is separately 107 NLRB No. 9. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervised by its own superintendent. The mill works on a yearly basis; the logging operation is on a seasonal basis from May to December. The hours of operation and job classifica- tions are different for each. Hiring takes place at either point. There are only a few transfers during the season to the woods operations although many men apply for and obtain jobs at the mill after the logging operation has ended. The record discloses that a substantial number of logging em- ployees live near the logging site, a considerable distance from the mill. Although the Board has recognized that logging and mill employees may be grouped in a single unit,' it has also held that either group, when not closely integrated with the other, may constitute a separate unit in the absence of any bargaining history and where no union seeks to represent both groups in a single unit." Accordingly, on the basis of the present record, we find that a unit limited to logging employees is appropriate. The Employer contends that certain men primarily en- gaged in falling, limbing, and bucking are not its employees but those of an independent contractor and should be excluded from the unit. The evidence shows that when these men are not so engaged, they work part time for the Employer as choke setters, hook tenders, and brush pilers. Although these men when working for the contractor are subject to the latter's right of discharge the contractor himself works under instructions from the Employer's logging superinten- dent who supervises the entire logging operations. The Em- ployer pays these men their wages, makes all social-security and workmen's compensation deductions, guarantees them the Federal minimum hourly wage rate, and keeps all records pertaining thereto. The contractor, whose relationship to the Employer is the subject of an oral agreement, is paid at a specific rate per thousand feet cut, after which deductions are made for the wage payments and taxes as indicated above. In view of the foregoing, we believe that sufficient facts are not presented in this record to warrant a finding that the relationship of an independent contractor exists.3 The fallers, limbers, and buckers are therefore included in the unit of the Employer's employees. We find that all production and maintenance employees engaged in the logging operations of the Employer near Kings Canyon National Park, California, including fallers, limbers, and buckers, but excluding cooks and camp helpers, office and clerical employees, guards, watchmen,4 all super- 1 Weyerhaeuser Timber Company, 87 NLRB 1076. 2 Hamilton Bros. Logging Company, 89 NLRB 1549. 9J G Howard Lumber Company, 93 NLRB 1230; H. J. Davenport d/b/a Enterprise Lumber & Supply Co., 96 NLRB 784 4 The record shows there are no men regularly employed as watchmen at the logging operation. UNITY MANUFACTURING COMPANY 21 visors as defined in the Act, and all employees at the Employer's mill at Dinuba, California, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.5 [Text of Direction of Election omitted from publication.] 5 Petitioner would exclude truckdrivers . As the record indicates that a regular classification of truckdrivers does not exist, and that when truckdriving is done it is only occasionally and intermittently and that any qualified employee may do it, we shall make no unit determination for this category. Cities Service Refining Corp., 94 NLRB 1635. UNITY MANUFACTURING COMPANY, Petitioner and LOCAL 743, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEUR , WAREHOUSEMEN & HELPERSOF AMERICA, AFL. Case No . 13-RM-173. November 10, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued herein on August 5, 1953 , 1 an election by secret ballot was conducted on August 26, 1953, under the direction and super- vision of the Regional Director for the Thirteenth Region. At the conclusion of the election , a tally of ballots was issued and served upon the parties , in accordance with the Rules and Regulations of the Board . The tally shows that the Union failed to receive a majority of the valid ballots cast in the election. On September 1, 1953, the Union filed objections to conduct affecting the results of the election . After an investigation, the Regional Director issued his report on objections , in which he recommended that the objections filed by the Union be over- ruled. Thereafter , the Union filed exceptions to the Regional Director ' s report, renewing , in substance , the contentions set forth in the objections. Upon the entire record in the case, including the Union's objections, the Regional Director ' s report , and the Union's exceptions , the Board finds: The facts , as detailed in the Regional Director ' s report, are undisputed . On August 21, 1953, 5 days before the election, the Employer distributed a handbill to employees urging them to vote "no" in the election . The statement in the handbill which is in issue here reads as follows : "Both the Labor Board and the Court said the Union was wrong in trying to force you to join." The Union contends that this statement in- correctly states the position of the National Labor Relations Board and, as a result , was highly prejudicial 1Not reported in printed volumes of Board Decisions. 107 NLRB No. 10.