Brown Co.

BROWN COMPANY 173 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons:1 The Petitioner desires an election among woodsmen employed at the Employer's Camp "C" woodlands operations in Maine, excluding bonded Canadian woodsmen. The Employer moves to dismiss the petition on the grounds, among others, that the unit sought is inappro- priate since it excludes Canadians and that the Petitioner's showing of interest in the appropriate unit is inadequate. That motion is here- by granted. For the reasons stated in Brown Company, 109 NLRB 173, pub- lished this date, in which we considered an identical issue under com- parable facts, we hold that the Employer's Canadian woodsmen should be included in the unit and are eligible to vote. An election in a unit including Canadians is, however, precluded as the Petitioner's show- ing of interest in such unit is inadequate. We shall accordingly dis- miss the petition herein.2 [The Board dismissed the petition.] 1 The Employer 's request for oral argument is denied , inasmuch as the record in our opinion adequately reflects the positions of the parties and the issues herein. 2 In view of this disposition , we need not pass upon other issues raised by the Employer's motion to dismiss. BROWN COMPANY and UNITED BROTHERHOOD LOCAL 75, INTERNA- TIONAL BROTHERHOOD OF THE PULP, SULPHITE AND PAPER MILL WORKERS, AFL, PETITIONER. Case No. 1-RC-3524. July 14, 195. Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert E. Greene, 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 Act. 2. The labor organization involved claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons:1 1 As the record, in our opinion , adequately reflects the positions of the parties and the issues herein, the Employer' s request for oral argument is denied. 109 NLRB No. 25. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner seeks a unit of employees in the logging and pulp- wood operations of the Employer's Maine and New Hampshire wood- lands, excluding, among others, "bonded Canadian" woodsmen. Bonded Canadian and domestic employees are found in most classi- fications within the requested unit. The Employer moves to dismiss the petition for the reason, among others, that the Canadians, like its domestic woodsmen, are seasonal employees, who should be included in the appropriate unit and permitted to vote. The Employer's woodlands operations are seasonal. Softwood cut- ting and peeling is done in the summer, hardwood cutting in the fall and early winter, and log hauling in the winter and early spring. Since about 1940, in view of shortages of domestic woodsmen in northern New England, the Employer annually has imported woods- men from Canada. The procedure whereby the Employer imports Canadians for em- ployment is regulated by Federal legislation,2 It involves the coop- eration of several agencies which function in the following manner: The Employer files an order in May of each year with the employment service in the State specifying its scheduled manpower needs and its proposed wages and hours of employment for various classifications of Canadian woodsmen. The State employment service determines the supply of domestic woodsmen and the prevailing wages and hours. The Division of Employment Security of the Department of Labor recommends an import quota. The Immigration and Naturalization Service then decides whether the proposed wages and hours for Cana- dians are consistent with those prevailing for domestic woodsmen and, if so, grants a 6-month permit enabling the Employer to import a quota of various classifications of Canadian woodsmen in short supply for employment during the period of the permit. Upon re- ceipt of a permit, the Employer recruits such labor in Canada, seeking individuals previously in its employ insofar as possible, and posts a $500 bond for each Canadian it imports. Under the conditions of the permit, qualified domestic woodsmen may at any time displace Cana- dian importees.3 If Canadians thereby lose their employment, they must return to Canada. Moreover, the permit is subject to cancella- tion in the event of a substantial increase in the supply of domestic woodsmen.4 However, should the Employer's Canadian manpower needs remain the same upon the expiration of the permit, a renewal may be obtained. Once employed, Canadian woodsmen work alongside and receive the same wages as domestic employees in like classifications. More- 2 The Board takes judicial notice that the McCarran-Walter Act of 1952, P. L. 414, 66 Stat. 163 (8 USCA 1184 (C)) is the currently applicable basic legislation. 2It appears that this preference has never been exercised against the Employer's Ca- nadian employees. 4 The Employer's permits have been cancelled for this reason 3 or 4 times since 1940. BROWN COMPANY 175 over, both Canadian and domestic employees have the same hours and -other employment conditions and are provided with the same living facilities, such as bunkhouse and messhall. The average ratio of Canadian to domestic woodsmen employed by the Employer during its woodland operations is about 3 to 1. There is about the same amount of turnover for Canadian and domestic woodsmen, and approximately equivalent percentages of each class of employees return to work for the Employer from year to year.-' The Petitioner contends in its brief that, despite the facts that Canadian and domestic woodsmen work together, receive the same wages and hours, and are provided with the same working and living conditions, their interests are diverse, in that Canadians, unlike do- mestic employees, are nonresidents with family interests and com- munal ties in Canada, are powerless to bargain for their services with any other domestic employer, are subject to be returned to Canada at any time, and are unable effectively to maintain grievances or partici- pate in any economic action engaged in by the Petitioner to enhance its bargaining power against the Employer. However, we see noth- ing in the record which warrants removing these Canadians from the sphere of compulsory bargaining through a Board certification. It is true that the permit conditions are aimed at the full utilization by the Employer of available domestic labor. But once hired, the Cana- dians stand in substantially the same employment relationship with the Employer as do the domestic employees, and the Employer is apparently free to apply his labor policies to both groups.° For these reasons, and in view of the admitted similarity of employment condi- tions and interests of the two categories of employees, we are of the opinion that the grounds asserted by the Petitioner constitute an insuf- ficient basis for excluding the Canadian woodsmen from the unit sought herein. The Petitioner further contends that the Canadian woodsmen are temporary employees who should be found ineligible to vote because, unlike preferred domestic employees, their tenure is dependent upon the supply of domestic labor. We find no merit in this contention. Despite the fact that domestic employees enjoy a preference in em- ployment over Canadians, it is clear that a substantial number of both domestic and Canadian woodsmen return to work in the Employer's seasonal operations from year to ,year.' We find, therefore, that Cana- 5 There are a small number of employees in a few classifications within the proposed unit who work on a year-round basis 0 Cf. Stokely-Van Camp, Inc, 107 NLRB 1137. 'Although the nrmber of Canadian woodsmen who return in the future will be con- tingent upon the supply of domestic labor, we find no basis on this record for concluding that a substantial number of those which may be imported will not return in subsequent years 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dians, like domestic woodsmen, are seasonal employees with an interest in representation entitling them to vote." Although we find that Canadian woodsmen should be included in the unit and are eligible to vote, the Petitioner's showing of interest in a unit including them is insufficient to warrant the holding of an election. Accordingly, without disposing of other issues raised by the Employer, we shall grant the Employer's motion to dismiss the petition. [The Board dismissed the petition.] s See Smith Rice Mill, Inc., 102 NLRB 1252. The situation in Vermont Copper Co., Inc., 59 NLRB 853 , involving temporary Canadian importees, which is relied upon by the Peti- tioner in its brief, is clearly distinguishable. CAPITAL DISTRICT BEER DISTRIBUTORS ASSOCIATION AND ITS MEMBERS : JOHN J. BOLAND DISTRIBUTORS CO.; PETER S. DUSZA; EMIL GUND- LACH; JOSEPH J. by, JR. INC.; IARASSI'S MADISON BEVERAGE CO; WILLIAM D . LEIS; PADULA'S HERKIMER BOTTLING CO.; SICILIANO'S CO. INC.; WEIGELS DISTRIBUTORS , INC.; WEST STREET BEVERAGE CO. and LOCAL 1013 AND LOCAL 1015, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,. AFL, PETITIONERS . Case No. 2-RC-6411. July 16, 1954. Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Julius J. Altman, 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. Capital District Beer Distributors Association, herein called the Association, is .an unincorporated voluntary association, made up of the 10, concerns collectively referred to in the caption, and hereinafter, as the Members., The Members are engaged in the distribution of beer in the vicinity of Albany and Troy, New York. During the past year, the total pur- chases made by them amounted to over $4,250,000, of which in excess of $1,205,000 represented purchases made outside the State of New York. During the same period, the total sales made by the Members, all within the State, were in excess of $4,250,000. On the basis of the foregoing, and the entire record, we find that the Members are jointly engaged in commerce within the meaning of the Act and that it will i As more fully discussed in paragraph numbered 4, infra, the Members have engaged in joint bargaining and comprise an appropriate multiemployer bargaining unit. 109 NLRB No. 36.