Brunswick Pulp & Paper Co.

BRUNSWICK PULP & PAPER COMPANY 973 Brunswick Pulp & Paper Company, and/or another ' and Inter- national Pulpwood Union, Petitioner. Cases Nos. 10-RC-6051 through 6075 and 10-RC-6084 through 6086. May 27, 1965 DECISION AND ORDER Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a consolidated hearing was held before Hearing Officer Joseph H. McClure, Jr. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Brunswick and the producer Employers filed briefs with the Board. St. Regis Paper Company was permitted to file an amicus curiae brief .2 The Petitioner filed reply briefs. Upon the entire record in this case,3 the Board finds : In its brief, Brunswick contends that it was improperly named as an employer herein on the ground that the producers are independent contractors and are the only employers of the employees sought to be represented. The producer Employers and St. Regis Paper Company, in their briefs, join in this contention and contend further, inter alia, that the petitions should be dismissed on the ground that the Petitioner is not a labor organization qualified to represent the units petitioned for. We find merit in the latter contention. By its several petitions the Petitioner seeks to represent all employ- ees engaged in the cutting and hauling of pulpwood for the named Employers. The Petitioner, through its president and business agent, John G. Barrow, asserts in its statement captioned "Barrow's Theory" 1 Jointly or severally with the named Employer , herein called Brunswick , the petition filed in each of the listed cases named another, referred to in the record variously as a producer , captain, and a crew boss , as a joint-employer. As amended at the hearing, the producers named in the listed cases were, respectively, Loy Underwood, D. L. Wayne- wright, N. A. Flowers, George Sears , Ed Townsend, Eddie Perkins , Alex Hopkins, Russell Morgan, George Wells , Mrs R. W. Purvis , E. D. Underwood, W. C. Flowers , Jessie Brooker, A. E. Lane, Eddie Perkins, Harry Harper , George M Johns, Shelton Mobley, C O. Popwell, C. D Manning, Sr., Frank Popwell, Ben Miliken , Frank Popwell, H. A. Middleton , David Knox, Archie Crews, Henry Buggs , and Wesley Morgan. We grant the motions to consolidate Cases Nos . 10-RC-6056 and 6065 , naming Eddie Perkins as the producer, and Cases Nos. 10-RC-6071 and 6073, naming Frank Popwell as producer, because the units sought were identical . The request to withdraw the petition in Case No 10-RC-6059, naming George Wells as the producer , because of his decease , is granted. The Petitioner amended its petition in Case No . 10-RC-6085 to delete Henry Buggs as a joint-employer Early in the hearing, the Petitioner amended its petitions to delete the producers named as Joint-Employers . Later in the hearing, the Petitioner was permitted to again amend its petitions to rename these producers as Joint-Employers. Brunswick excepted to this ruling The Petitioner states that the sole purpose of naming the producers as Joint-Employers was to reveal the true facts-to show that each of the producers and Brunswick "are one and the same, employer- employee , and repre- sented by common counsel." Whatever the reasons, in view of our disposition herembelow, we find that no prejudice resulted from this ruling. ' St. Regis Paper Company is named as an employer of the employees sought to be represented by the Petitioner in other cases now pending before the Board 3 We rely also in part upon the record made in the cases involved in Container Corpo- ration of America and/or others, Cases Nos. 12-RC-1995, et at, issued this date. (Not published in NLRB volumes.) 152 NLRB No. 111. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it seeks to represent separate units of pulpwood employees on the crews of each of the named producers, including in such units the pro- ducers, who are referred to by the Petitioner as the captains of the teams of pulpwood employees, on the theory that an employer- employee relationship exists between them and Brunswick. The named producers are engaged by division and district managers in Brunswick's procurement division to cut and haul pulpwood, in accordance with prescribed standards of production, on specified tracts of timberlands owned or leased by Brunswick or others, at a certain price per cord of cut wood delivered to Brunswick's mill at Brunswick, Georgia 4 The record reveals that producers hire their own woodland crews,, own their own equipment, and haul the cut logs either with their own trucks and drivers hired by them or through contract truckers.' The Petitioner is an organization which admits to membership both, pulpwood producers and pulpwood employees and exists for the pur- pose of representing them in dealing with employers concerning grieve ances, labor disputes, wages, rates of pay, hours, and conditions of employment. The articles of incorporation under which the Petitioner was formed provide that producers are eligible for "journeyman" membership, and pulpwood employees on the crews of the producers are eligible for "apprentice" membership. The Petitioner's bylaws provide for a president and business agent, a vice president, a secretary and treasurer, and a board of directors comprised of seven members.'-!- Producers are alone eligible to become members of the board of gov- ernors and have final voice in all matters. Neither the articles nor the bylaws specify what rights are possessed by "apprentice" members or the process by which they may become "journeyman" members.7 It is clear from the facts contained in the record, as above indicated, that the producers eligible for membership in the Petitioner possess and exercise the authority to hire the employees on their crews. It is also clear from the record, and we find, that the Petitioner is con- trolled by producers. If, as contended by the Petitioner, Brunswick * It appears that three of the named producers do hauling only on behalf of Brunswick. i The record indicates that there are many other pulpwood producers , not involved in these proceedings , engaged by Brunswick and others , who operate in a similar manner ors tracts of timberland owned by Brunswick and others in the States of Georgia and Florida. 9 The bylaws provide "Only the Business Agent will be allowed to make any agreement what-so-ever for this organization , and then, only , if he has the vote of at least three of the Directors However, no agreement effecting [sic ] woik conditions or pay con- ditions or prices shall be made without a majority of the vote of approval [ sic] of the members , available and effected [ sic] by such agreement." 7 The Petitioner 's predecessor, Southeastern Pulpwood Producers Association, Inc , re- ferred to herein as SPPA, was incorporated 'under the Maws of the State of Florida- in February 1964 as a nonprofit association of businessmen . The articles of incorporation therefor stated, as one of its purposes , "to create an auxiliary to our organization of the machine operators and drivers employed by us " The articles for the establishment of the Petitioner state, as a substitute for the aforesaid purpose, " to enable us to bargain collectively " The other purposes set forth in the articles for both organizations are identical It does not appear that any auxiliary to SPPA was created. NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC. 975 is the employer of the employees on the crews, then the record facts would compel a finding that the producers, acting in behalf of Bruns- wick, are supervisors as defined in the Act, and the Petitioner, because it is controlled by them, under Board policy, could not act as a labor organization on behalf of the employees on their crews.8 On the other hand, if, as contended by the named Employers and St. Regis Paper Company, the producers are independent contractors, then the Peti- tioner, being controlled by them, would, under Board policy, likewise be disqualified from acting as a labor organization.9 In the circum- stances, we find that the producers are not employees as defined in the Act, and that, whether the producers be viewed as independent con- tractors or as supervisors acting in the interest of Brunswick, the Peti- tioner, being controlled by them, is not qualified to serve as a collective- bargaining representative of the requested units of pulpwood employees.'0 [The Board dismissed the petitions.] MEMBER ZAGORIA took no part in the consideration of the above De- cision and Order. . 'Rochester and Pittsburgh Coal Company , 56 NLRB 1760, 1764; Alaska Salmon In- dustry, Inc., 78 NLRB 185, 188; Columbia Pictures Corporation, et al., 94 NLRB 466, 469; New York City Omnibus Corporation, 104 NLRB 579, 584. 1 See Oregon Teamsters' Security Plan Office, et al., 119 NLRB 207, 211; General Teamsters, Chauffeurs, Warehousemen and Helpers of America , Local 249, etc., 139 NLRB 605, 607. 10 In view of this finding , we need not, and do not, pass upon the jurisdictional and other issues raised herein . Contrary to St. Regis Paper Company 's request, we do not believe it to be necessary or appropriate also to pass upon the question of whether or not the producers are independent contractors. Northeastern Washington-Northern Idaho Building and Con- struction Trades Council , and Sheet Metal Workers Interna- tional Association, Local Union No. 212 and Northwestern Construction of Washington, Inc. Northeastern Washington Northern Idaho Building and Con- struction Trades Council and Spokane District Council of Carpenters, and Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 269 and Northwest- ern Construction of Washington, Inc. Northeastern Washington-Northern Idaho Building and Con- struction Trades Council and Plumbers and Steamfitters Local No. 44, and Northwestern Construction of Washington, Inc. Cases Nos. 19-CC-206,19-CC-207, and 19-CC-209. May 28, 1965 DECISION AND ORDER On September 18, 1963, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that Respondents 152 NLRB No. 99.