Clackamas Logging Co.

CLACKAMAS LOGGING COMPANY AND GUY KELLER 229 lished contract-bar rule. Accordingly, we shall dismiss the instant petition. We find, therefore, that no 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. [The Board dismissed the petition.] MEMBER RODGERS took no part in the consideration of the above Decision and Order. Robert F. Dwyer, Edwin C. Dwyer, Anthony J. Dwyer and Rose- mary D. Frey d/b/a Clackamas Logging Company and Guy Keller 1 and Frell C. Zink, Petitioner and Local 5-40, Interna- tional Woodworkers of America, CIO. Case No. 36-RD-81. July 31, 1955 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 Robert J. Weiner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Union contends that the petition should be dismissed (1) be- cause Zink, the Petitioner, is a supervisor or a clerical employee; (2) because he is an employee of Clackamas and therefore has no authority to represent the employees of Keller; and (3) because he and Clack- amas acted in collusion in filing the petition. We find no merit in these contentions. As hereinafter found, Zink is not a supervisor and there is no evidence that his clerical relationship with Clackamas would disqualify him as a petitioner in a decertification proceeding .2 With respect to the Petitioner's representative status, there is no re- quirement in the Act that an individual petitioner be an employee of the employer involved.' As to the alleged collusion on the part of Clackamas, the record shows that Timekeeper Sanders mailed a post card requesting a copy of the Act for the Petitioner; that the Petitioner himself typed and circulated the petition on which signatures were secured; that Clack- amas, at the request of employees, furnished a bus to transport prac- tically the entire crew to attend a meeting at the National Labor Relations Board's local office; that a partner personally paid for their 1 Herein respectively called Clackamas and Keller. 2 Clyde J. Merris, 77 NLRB 1375 , and Star Brush Manufacturing Co., Inc., 100 NLRB 679, s Bernson Silk Mills, Inc., 106 NLRB 826, at 827 ; Morganton Full Fashioned Hosiery Company, 102 NLRB 134, at 135. 113 NLRB No. 27. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lunches ; and that the entire crew worked the following Saturday at the time and a half rate although they had not worked 40 hours that week. The partner testified that Clackamas customarily lent employees trucks for personal purposes, and that, as they had taken him to dinner many times, he was merely returning the favor. In the circumstances, we do not believe that the Petitioner, in filing this petition, acted at the behest of any official of Clackamas.' Accordingly, we deny the Union's motion to dismiss. Upon the entire record in this case, the Board finds : 1. Clackamas is a partnership, which performs logging operations for Dwyer Lumber Company, herein called Dwyer, a corporation en- gaged in milling lumber. Both businesses are owned, operated, and controlled by the same persons, who are the officers of Dwyer and the partners of Clackamas. Both have the same office at the Dwyer mill- site in Portland, Oregon. Clackamas performs services exclusively for Dwyer, which purchases timber from the United States Govern- ment. Clackamas' employees cut trees, bring the logs to a loading point, and load them on trucks owned by Dwyer or by independent contractors under contract with Dwyer. Under these circumstances, we find that Clackamas ar Dwyer constitute a single integrated enter- prise and are, for the purl, s of jurisdiction, a single employer.' During the last fiscal y , Dwyer made sales valued at $3,000,000, of which 30 to 40 percent ,i ,p, ,^sented shipments made directly out-of- State, and Clackamas rec - ",ed $740,000 for its services performed for Dwyer. As Dwyer and Clackamas constitute a single integrated en- terprise and employer, which has a direct outflow of more than $ 50,000 annually, we find that Clackamas, therefore, is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction over it.' In connection with its logging operations, Clackamas has a con- tract, terminable on 30 days' notice, with Guy Keller, who cuts logs for Clackamas exclusively. The original contract executed in 1947, orally renewed with modifications each year, provides that Keller, acting as an independent contractor with his own equipment and for fixed rates, should perform logging services as directed by Clackamas and should bear all costs, including workman's compensation, social security, and all other expenses incidental to the work. The record shows that direction by Clackamas means merely designating areas to be logged and reviewing Government logging specifications with Kel- ler. Otherwise, Keller has complete autonomy and control over his 4 Moore Drop Forging Company, 108 NLRB 32, at 32-33; Plastic Moldnng Corporation, 112 NLRB 179. 5 Sanitary Mattress Company, Pest Line of California, Inc., 109 NLRB 1010, at 1011 ; Marvel Roofing Products, Indorporated, et al., 108 NLRB 292, at 292-293 , Barrett Logging Company, 88 NLRB 638, at 638-639 B Jonesboro Grain Drying Cooperative, 110 NLRB 481. CLACKAMAS LOGGING COMPANY AND GUY KELLER 231 logging operations. He does his own hiring, firing, and supervising of his 15 to 18 employees. He keeps his own books and accounts. His employees do not interchange with those of Clackamas. They work at a separate location about 30 miles away from the Clackamas opera- tion. Under all the circumstances, we find that Keller is an independ- ent contractor and a separate employer.' During the last fiscal year, Keller received from Clackamas $140,000 for logging services. Because Keller sold to Clackamas and Dwyer, an employer which has a direct outflow of more than $50,000, over $100,000 worth of services directly utilized in the products of such em- ployer, we find that Keller is engaged in interstate commerce and that it will effectuate the policies of the Act to assert jurisdiction over him." 2. The Petitioner asserts that the Union is no longer the bargaining representative of employees of the Employers as defined in Section 9 (a) of the Act. 3. The Union moved to dismiss the petition on the ground that a contract between it and Columbia Basin Loggers, an employer asso- ciation, herein called CBL, is a bar to the presort proceeding. The Union argues that the negotiation of contract c .angel was never dis- continued and that the contract continut ;ii c ,fect. The Employers and the Petitioner contend that the cons e' oes not bar the Septem- ber 7, 1954, petition because negotiatior•--'n - broken off and the con- tract was terminated. We find mer.l, this contention and the Union's motion to dismiss is denied for f following reasons : In 1944, as a result of a consent election, the Union was certified as the exclusive bargaining agent of the employees of Clackamas.' Shortly, thereafter, Clackamas became a member of CBL and since then its employees have been covered by the contracts between CBL and District Council No. 5 of the International Woodworkers of America, representing various local unions, including the Union herein. Pursuant to the provision of these contracts that an employer member of CBL should require its contractors to comply with the terms thereof, Clackamas has, since the 1947 contract with Keller," required the latter to comply with the terms of the CBL contracts, one of which is union recognition." The CBL contract in question, which was the last one to which Clackamas was a party, was effective April 1, 1953, to April 1, 1954. It provided that a timely ndtice to amend by either party would serve 7 Denver Building and Construction Trades Council, et at, 108 NLRB 318, at 320; an Jose Builders Company, 101 NLRB 1772, at 1773-1774. $Jone.sboro Grain Dryvuq Cooperative, supra. 0 Case No. 19-R-1273 ( not reported in printed volumes of Board Decisions and Orders). 10 Keller has been listed variously by CBL as "Guy Keller" and as "Clackamas Logging Co and contractor." 11 The Union has never been certified as bargaining representative of the employees of Keller 379288-56-vol. 113-16 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to prevent automatic renewal of the contract, and that in such event the contract would continue indefinitely until a new agreement was reached but would terminate if negotiations were discontinued by either party.12 The Union gave timely notice to modify, and thus prevented automatic renewal and continued the contract indefinitely in accord with its provisions. Thereafter, negotiations began and con- tinued past the terminal date of April 1, 1954. On June 21, 1954, the threatened industrywide strike involving the CBL employers and the Union, along with other unions in District Council No. 5, began. By a letter dated July 14, 1954, a number of lumber and timber asso- ciations, including CBL, wrote the northwestern regional negotiating committee, representing the Union's International to the effect that : In negotiations, both before and after a strike threat, these committees offered to recommend renewal or extension of the current agreements without change, so far as industry-wide demands of the Union are concerned. Your strike action has not altered our position, and that final offer remains be "nre you. We are unwilling to meet further until the union comml te' is ;'lady to join in acceptance of that offer. On July 22, 1954, a - lia. was filed by the union representatives against CBL alleging "o 14, 1954, this Association and the Em- ployers listed on Exhibit attached, acting in concert, broke-off negotiations...." 13 There is no showing in the record that CBL and District Council No. 5 thereafter negotiated under the contract, although employer and union representatives attended strike-settlement meetings called by the governors of two States. These meetings began on August 7, 1954, and culminated on September 11, 1954, in a stipulation by the Union's International and the employer representatives recommending the governors' fact-finding program. On the same date, CBL and Dis- trict Council No. 5 signed a memorandum agreement in which they agreed to act, or recommend to their principals, the return of em- ployees to work, and the creation of a fact-finding board to investigate and report on the strike issues. In the meantime, and before the stipu- lation agreement was executed, the petition herein was filed on Sep- tember 7, and Clackamas and Keller withdrew from CBL on Septem- ber 9. From September 11 to the date of the hearing there were no bargaining negotiations between the parties involved herein. 12 Article XXIV of the contract provides in part: If no agreement is reached at the expiration of this Agreement and negotiations are continued, the Agreement shall remain in force up to the time a subsequent agree- ment is reached, but shall terminate if negotiations are discontinued by either party. Case No 36-CA- 628 The charge, which was subsequently withdrawn, referred spe- cifically to the July 14, 1954, letter I CLACKAMAS LOGGING COMPANY AND GUY KELLER 233 Contrary to the Union, we believe that negotiations pursuant to the notice to modify the contract were discontinued on or about July 14, 1954, and that therefore, the CBL contract, for contract-bar purposes, was terminated by its own terms. The July 14, 1954, letter clearly indicated that the parties had reached an impasse and were no longer negotiating under the contract. Further, the abortive unfair labor practice charge filed by the labor representatives, referring to the breaking off of negotiations, strengthens this conclusion. While it is true that employer and union meetings were held under the gover- nors' auspices, such meetings were primarily held to investigate the economic issues involved in order to settle the strike rather than to continue bargaining negotiations under the contract by the parties. Thus, the resulting stipulation and agreement of September 11 set- tled the strike by providing for a fact-finding board or panel and not by contract negotiations of the parties. Moreover, endorsement of the strike settlement by CBL and District Council No. 5 does not constitute bargaining negotiations under the contract binding on Clackamas and Keller, who had withdrawn from CBL. In these circumstances, and upon the entire record, as it appears that contract negotiations were discontinued and the contract termi- nated, we find, therefore, that the contract cannot bar the petition herein. Moreover, the reopened contract, which continued in effect after April 1, 1954, only until such time as the parties should enter into a new agreement or discontinue negotiations was temporary and pro- visional in nature and therefore, in any event, could not constitute a bar to this proceeding.14 However, before a decertification election can be directed, Section 9 (c) (1) (A) (ii) of the Act requires that the labor organization involved be either certified or currently recognized by the Em- ployer.15 As indicated above, the Union was certified as the bargain- ing representative of the employees of Clackamas, but not of Keller. The record shows that between April 1 and September 9, 1954, Clackamas and Keller continued to recognize the Union as a rep- resentative of their employees under the terms of the temporary CBL agreement, then in effect. On September 9, however, Clackamas wrote CBL that it was withdrawing the negotiation authorization from CBL on behalf of itself and its contractor, Keller. CBL im- mediately notified District Council No. 5 of this withdrawal.ls As a result, neither Clackamas nor Keller were parties to the multiem- ployer strike-settlement agreement of September 11, 1954, signed by 14 Bridgeport Brass Company, Aluminum Division, 110 NLRB 997 ; Union Bag & Paper Corporation, 110 NLRB 1631. w Reliable Tool Co, Inc , 79 NLRB 1109. 10 CBL gave no written notification. The usual practice was a confirmation of an oral notification or a written notification. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CBL and District Council No. 5. At the hearing, Clackamas stated that it had no existing contract with the Union, and there is no evi- dence that Keller, who customarily took the same position as Clacka- mas, took a different position although he continued to pay prestrike wages and insurance benefits. As Clackamas and Keller have for years mutually dealt with the Union only on a multiemployer basis, we believe that, by their conduct, they have clearly indicated their intention not to contract with, or to continue recognition of, the Union. Accordingly, we find that neither Clackamas nor Keller currently recognizes the Union as the bargaining representative of his em- ployees within the meaning of Section 9 (a) of the Act. However, because the Union has been certified as the bargaining representative of the employees of Clackamas, but has not been certified and is not currently recognized as the bargaining representative of Keller's em- ployees, we find that a question affecting commerce concerning the representation only of the employees of Clackamas exists within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4. The Petitioner and Clackamas take the position that the with- drawal of Clackamas from CBL renders appropriate only a single- employer unit. The Union contends, in effect, that Clackamas did not properly withdraw from CBL in a timely fashion and that the ap- propriate unit should be coextensive in scope with the employer as- sociation. We find no merit in this contention. As stated above, the Union was certified in 1944 as the bargaining agent of the employees of Clackamas, on a single-employer basis. Shortly thereafter, Clackamas became a member of CBL and a party to the Association contract, and so continued until it withdrew its negotiation authorization on September 9, 1954. Between September 9 and September 11, 1954, the time of signing the strike-settlement agreement, CBL informed District Council No. 5 of Clackamas' with- drawal. CBL regarded the withdrawal by Clackamas as effective and that it no longer had authority to negotiate for Clackamas. More- over, District Council No. 5, with full knowledge of Clackamas' with- drawal, accepted CBL's signature to the strike settlement without the inclusion of Clackamas in the usual list of members. In these circum- stances, we believe that Clackamas by withdrawing its authority for CBL, when the contract was not a bar to the proceedings, clearly evinced at a proper time its desire to withdraw from the multiem- ployer bargaining. The Union, however, contends that the withdrawal of an employer from group bargaining is a proposed revision under the contract re- quiring 60 to 65 days' notice, and further, that such notice has not been 17 Coca-Cola Bottling Company of Pottsville , 97 NLRB 503 , at 504-506. CLACKAMAS LOGGING COMPANY AND GUY KELLER 235 given.18 We find no merit in this contention. While the requirements for withdrawal from CBL are not in evidence, there is nothing in the contract specifically requiring that any employer member give notice of an intention to withdraw from multiemployer bargaining. More- over, we construe the term "proposed revisions" to refer only to pro- posals relating to substantive revisions of the contract and not to the identity of the bargaining representative of the Employer, Clackamas. We therefore find that the Employer did not forfeit its right to with- draw from multiemployer bargaining by failing to give timely notice to District Council No. 5 of its desire to withdraw.19 Under all the circumstances, we find that Clackamas' withdrawal from CBL was timely made,20 and that it expressed an unequivocal in- tention to bargain on an individual employer basis. Accordingly, we find that a single-employer unit is the only appropriate unit.21 With respect to the composition of the unit, there is no dispute ex- cept as to the status of the individuals hereinafter discussed, all of whom were included in the historical bargaining unit except Time- keeper Sanders. The Union contends that Petitioner Zink and Time- keeper Sanders should be excluded from the unit either as supervisors, as office clerical employees, or as professional employees. Clackamas would include them in the unit. Petitioner Zink, classified as a tractor driver, works in camp under the supervision of the camp superintendent. He spends one-third of the time doing clerical work and the remainder of his time weighing and checking truckloads of logs. In the latter connection, he sets tongs to remove or add logs to bring a load to the desired weight, and Sanders operates the engine which lifts the logs. Zink routinely gives direc- tions to the truckdrivers. Zink operates a tractor only on Saturdays, for which he receives overtime pay. As Zink neither possesses nor exercises the statutory authority of a supervisor, we find that he is not a supervisor but an employee.22 Nor, despite his college degrees, is his employment professional in character or in duties. He is not an office clerical employee but at best is more like a plant clerical employee, whom the Board ordinarily includes in a unit of plant employees.21 is Article 24 (b) of the contract provides : "Unless either party notifies the other of a desire to change the terms of this Agreement not less than sixty-five (65) days prior to the expiation date, and presents proposed revisions not less than sixty (60) days prior to such expiration date, at which time negotiations shall start, this Agreement will auto- matically continue in effect for the succeeding 12 months " I`Stamfoi d Wall Paper, Inc., 92 NLRB 1173, at ] 174-1176. 20iltichael Silvers, d /b/a Silvers Sportswear , 108 NLRB 588, at 590 ; Century Press, 107 NLRB 292, at 293, Economy Shade Company, 91 NLRB 1552, at 1553 Z1 W. A Swanson Logging Co., et at, 111 NLRB 495 ; Moscow Idaho Seed Company, Inc., 107 NLRB 107, at 108. 22Miami Paper Boasd Mills, Inc, and Simco Waste Paper, Inc., 109 NLRB 167, at 169-170 iIntenational Smelting and Refining Company, Raritan Copper Works, 106 NLRB 223, at 225-226, Mrs Tuckei's Products, Division of Anderson Clayton d Company, Inc, 106 NLRB 533, at 534. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whether a plant clerical employee or a logging employee, we find that the interests of Zink are closely allied with those of the logging em- ployees and accordingly, we include him in the unit. Timekeeper Sanders also works at the camp under the camp super- intendent. He, like Zink, devotes approximately one-third of his time to clerical work and the balance to operating the engine lifting the logs. Following instructions from the superintendent, he also routinely dis- patches trucks. As Sanders does not possess or exercise the statutory authority of a supervisor, we find that he is not a supervisor?, Nor does he work as a professional employee. Like Zink, he is, at best, a plant clerical employee whose interests are closely allied with those of logging employees.25 Nor does the fact that he knows the pay rates of employees, the Employer's sale and purchase prices, and the nature of its contracts make him a confidential employee.26 Accordingly, we include him in the unit of logging employees. Contrary to the Union, Clackamas would exclude the shop foreman and bull buck from the unit as supervisors. The shop foreman "operates the shop and his crew" of 4 to 7 em- ployees. Like the construction foreman, an agreed supervisor, he directs his crew and makes work assignments. He has the authority to hire and fire and can settle minor grievances. Under these circum- stances, we find that he is a supervisor within the meaning of the Act and exclude him from the unit. The bull buck is in charge of the cutting crew of 10 men and gen- erally oversees the cutting operation. He designates the area to be cut and directs the men in the methods of felling a tree. He is "hired to tell the men what to do." He settles minor grievances, and has authority to change work assignments. Under these circumstances, we find that the bull buck responsibly directs the employees under him and, therefore, that he is a supervisor within the meaning of the Act. We, accordingly, exclude him from the unit. Although none of the parties contend that the hook tender, head rigger, and head loader are supervisors, their duties were fully set forth in the record. The hook tender is in charge of a logging crew of 12 to 18 employees, who perform the loading and rigging of logs. His principal duty is to see that the logs are moved to the landing and he lays out the lines for a given logging area, and assigns men to different jobs. He can settle minor grievances. Under the circumstances, we find that the hook tender responsibly directs the employees under him and he is, therefore, a supervisor. We, accordingly, exclude him from the unit. "Houston Terminal Wai ehouse t Cold Storage Company, 107 NLRB 290, at 291 as Palmer Manufacturing Company, 103 NLRB 336, at 338-339 20 Continental Baking Company, Wonder Bakery, 109 NLRB 33, at 34. COATS & CLARK, INC. 237 Under the hook tender, there is a head rigger and head loader, each of whom works with 3 or 4 other employees. They have no authority to hire or fire or effectively to recommend, and their direction of the men working with them is routine in character. As they neither ex- ercise nor possess the statutory duties of supervisors, we therefore find that they are not supervisors, but employees, whom we include in the unit.' Accordingly, we find that all employees of Clackamas Logging Com- pany, at Estacada, Oregon, including the tractor driver, the time- keeper, head riggers, and head loaders, but excluding office clerical employees, guards, professional employees, the superintendent, con- struction foreman, side foremen, the shop foremen, bull bucks, hook tenders, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 21 Moam, Paper Board Mills, Inc, and Snmco Waste Paper, Inc , supra; Houston Terminal Warehouse & Cold Storage CoMpanp, supra Coats & Clark, Inc. (Clarkdale Plant) and Textile Workers Union of America, CIO. Case No. 10-CA-1958. July 02, 1955 DECISION AND ORDER On November 3, 1954, Trial Examiner Eugene F. Frey issued his Intermediate 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 unfair labor practices alleged in the complaint and recommended dismissal of those allega- tions. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions contained in the Intermediate Report only to the extent that they are consistent with the following : 1. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (1). Specifically we find that, in the context of the threats uttered by several of Respondent's supervisors, all the 113 NLRB No. 29.