Wood Products Co.

WOOD PRODUCTS COMPANY 115 make a unit restricted to employees at the Employer's Newark, Ohio, plant inappropriate.' Accordingly, we shall dismiss the 1petition filed herein. Order IT IS HEREBY ORDERED that the petition in this case be, and it hereby is, dismissed- =See Lever Brothers Company, 97 NLRB 1240, International Paper Company, Tone- Wanda Mill, 97 NLRB 764, and cases cited therein. See also Kaiser Aluminum f Chem- seal Corporation, 100 NLRB 107. H. S. SACKETT, J. B. KNAPP, AND J. D. ROBERTS, A COPARTNERSHIP D/B/A WOOD PRODUCTS COMPANY' and INTERNATIONAL WOODWORK- ERS OF AMERICA, LOCAL 2-21, CIO, PETITIONER . Case No. 19-RC- 994. July 11, 1952 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 Paul E. Weil, hearing offi- cer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3 (b) of the' Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 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 organizations involved claim to represent certain em- ployees of the Employer.3 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 Ct.4 4. The Petitioner seeks, and the Employer does not oppose, a pro- duction and maintenance unit at the Employer's sawmill. The Inter- 1 The caption is amended to reflect the correct name of the Employer. 2 The bearing officer referred to the Board the Intervenor ' s and Corporation 's motions to dismiss the petition . For the reasons set forth hereinafter , the motions are hereby denied. Wood Preservers Union Local No. 3078, AFL, herein called the Intervenor, was per- mitted to intervene on the basis of a claimed contractual interest. * The Intervenor and Olympia Wood Preserving Co. Inc., contend that their current contract is a bar to this proceeding. The petition herein was filed about 1 month before the "Mill B" date of that contract , and the contract 's anniversary date was reached during the pendency of this proceeding Accordingly, we find, apart from any other con- siderations, that this contention is without merit. Micamold Radio Corp., 94 NLRB 1193. 100 NLRB No. 27. 227260-53-vol. 100---9 116 DECISIONS OF NATIONAL LABO1 RELATIONS BOARD venor and Olympia Wood Preserving Co. Inc., herein called the Cor- poration, contend however that the only appropriate unit is one which embraces not only employees at the sawmill but also employees at the Corporation's creosote plant, which is located adjacent to the sawmill. In 1946 the Corporation, which had previously operated the creo- sote plant, built the sawmill to provide scrap lumber for use as fuel for the creosote plant. At sometime prior to January 1952, the Em- ployer acquired possession of the sawmill and has operated it up to the present time. Title to the sawmill and creosote plant is presently being litigated between the Employer and the Corporation. During the period when the Corporation operated both the sawmill and the creosote plant, the operations of both were completely inte- grated, the employees of both were carried on a single payroll, labor relations policies for both were established by the Corporation's man- agement, and the employees of both were represented by the Inter- venor in a single unit; there was, however, little interchange between the two groups of employees. For some time after the Employer acquired possession of the sawmill, this arrangement, including the common establishment and application of labor relations policies, con- tinued in effect. During this period the partners who constitute the Employer were also directors of the Corporation. Subsequently, however, the partners were replaced as directors of the Corporation and, about or shortly before January 1952, a further split occurred in the relationships between the Employer and the Corporation; among other things, the Employer's labor relations policies are now being established and applied independently of the Corporation's, the sawmill and creosote plant employees are carried on separate pay- rolls, and the sawmill employees are paid by the Employer's checks, rather than the Corporation's. Although the sawmill and creosote plant, as well as the employees, continue to use certain facilities in common, and scrap lumber from the sawmill is still used by the creo- sote plant, they are now under separate management, and the Em- ployer has recently installed certain additional facilities which make the sawmill less dependent than formerly for its continued operation upon the operation of the creosote plant. In addition, although the Intervenor has continued to bargain for the sawmill employees and has secured a wage increase for them, the sawmill employees were not expressly included in the most recent contract between the Corpora- tion and the Intervenor, executed in November 1951, and such recent bargaining for the sawmill employees had been with the Employer and not the Corporation. On the basis of these facts, and particularly the present separate operational control of the sawmill and creosote plant and the present lack of common control over labor relations policies, we find, contrs-- ROZELLE SHOE CORPORATION 117 to the contention of the Intervenor and the Corporation, that for the purposes of this proceeding the Employer and the Corporation are separate employers within the meaning of the Act.-' Moreover, although the sawmill and creosote plant employees were formerly included in a single unit, it is clear from the record, includ- ing the Employer's tacit agreement with the Petitioner's unit conten- tion and its separate bargaining with the Intervenor, that the Em- ployer has now determined to pursue an independent course of action in labor relations matters. As the Employer has evidenced such in- tention at a time when it was not bound to group action by any agree- ment,6 we find that a unit limited to employees of the Employer is appropriate.' We find, accordingly, that all production and maintenance employees at the Employer's Olympia, Washington, sawmill, excluding office and clerical employees, professional employees, guards, and super- visors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act." [Text of Direction of Election omitted from publication in this volume.] 6 Ozark Central Telephone Company, 83 NLRB 258; The Clark Thread Company, 79 NLRB 542 . The alleged possibility that the outcome of the present litigation between the Employer and the Corporation may reestablish the identity of the two operations as a single employer does not , in our opinion, constitute a valid basis for disregarding the facts as they presently appear. Nor, contrary to the contention of the Corporation and the Inter- venor, does it constitute a valid basis for denying to the sawmill employees the right pres- ently to select a bargaining representative of their choice. 6 See Economy Shade Company, 91 NLRB 1552 ; cf. Purity Stores, Ltd., 93 NLRB 199; Engineering Metal Products Corporation , 92 NLRB 823. ' Pacific Metals Company, Ltd., 91 NLRB 696. 6 The parties agree as to the composition of the appropriate unit. ROZELLE SHOE CORPORATION and UNITED SHOE WORKERS oI' Ab1ERIC.1, CIO. Case NO. 1-CA--886. July 14, 1952 Decision and Order On March 14, 1952, Trial Examiner Sidney Lindner issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the 100 NLRB No. 29.