Long Lake Lumber Co.

LONG LAKE LUMBER COMPANY 1475 According to Pacheco profits were distributed on the basis of need-"they get med- ical, dental, hospitalization, automobiles , furniture , anything." It was "just like one family." The arrangement had some of the aspects of a communal compound, some of de facto partnership. However described it did not meet the definition of an employer-employee relationship contemplated by the Act. Both sons-in-law and the relative had authority effectively to make recommendations which were more than routine and clerical and which are set forth in Section 2(11) of the Act. Although no finding can be made that they were supervisors as defined in that section I believe the possesion and exercise of such responsibility precludes a finding that they were employees. Nor is this finding-that they were not employees-based on the fact that they participated in the profits for a profit-sharing plan may of course include employees It is based on the combination of factors unique to Pacheco's scheme of doing business and the right of all to share in the final consensus of the decision- making process. Based on testimony which admittedly could be more complete, I find the recent decision of the Board in Teamsters Local Union No. 115 (J. Stanley Tliackerah and J. Charles Bair t/a Vila-Barr Company ), 157 NLRB 588 controlling. No vio- lation of Section 8(b) (7) (C) may therefore be found. [Recommended Order omitted from publication.] Long Lake Lumber Company and International Woodworkers of America, AFL-CIO, Local 3-10. Case 19-CA-3259. Septem- ber 29, 1966 DECISION AND ORDER Upon charges duly filed by International Woodworkers of America, AFL-CIO, Local 3-10, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint dated December 15, 1965, against Long Lake Lumber Com- pany, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a) (1) and (5) and 2( 6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, com- plaint, and notice of hearing were served on Respondent and the Charging Party. On March 7, 1966, Respondent duly filed its answer, admitting cer- tain allegations of the complaint but denying the commission of any unfair labor practices, as well as its motion to dismiss. The General Counsel responded to the motion on March 8. The motion was denied by Trial Examiner Martin S. Bennett on March 14. On April 7, 1966, all parties to this proceeding entered into a stipu- lation whereby they agreed that the charge, complaint, answer, and the stipulation of facts with attached exhibits (subject to certain objections and exceptions specified in the stipulation), constitute the entire record in the case and that no oral testimony is necessary or desired by any of the parties. The parties further stipulated that they waived a hearing before a Trial Examiner and the issuance of a Trial 160 NLRB No. 123. 1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's Decision. They agreed to submit the stipulation directly to the Board for findings of fact, conclusions of law, and a decision and order. On April 29, 1966, the Board approved the stipulation and granted the parties' request to transfer the case to it. Thereafter,. the Respond- ent and the Charging Union- filed briefs', and the. General Counsel filed a memorandum. 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 McCulloch and Members Fanning and Jenkins]. -Upon the basis of the parties' stipulation, and upon the, entire rec- ord in this case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent Long Lake Lumber Company is a Washington corpo- ration, with its principal place of business located in Spokane, Wash- ington, where it is engaged in the business of processing lumber prod- ucts including timber laminated beams. In the operation of its business Respondent annually purchases goods and materials valued in excess of $75,000 from points outside the State of Washington, and annually sells lumber products valued in excess of $75,000 to customers, located at points outside the State of Washington. The parties stipulated, and we find, that Respondent is, and has been at'all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated , and we find, that International Woodwork- ers of America, AFL-CIO, Local 3-10,, is, and at all times material herein has been, a labor organization within the meaning of Section 2 (5) of 'the Act. III. THE UNFAIR LABOR PRACTICES The. Union has been the recognized bargaining representative of certain of the Respondent's. employees continuously since 1938. The contract in effect, at the time of the occurrences herein considered, executed in December 1963, was effective to and including June 1,, 1966.' Available records for approximately 5 years prior to July 13, 1965, show that the Respondent has employed maintenance employees. on a regular workweek that began on Monday and ended on Friday. 1 The contract unit covers production and maintenance employees, numbering 15fi to 168, of whom 16 to 18 are maintenance . Their activities include millwrighting, machinery and equipment maintenance, repairs, remodeling, cleanup, and pipeiitting. LONG LAKE LUMBER COMPANY 1477 Upon occasion it has varied the length of the workday. Beginning July 12, 1965, the Respondent assigned a mobile equipment mainte- nance man who had been working a regular workweek beginning on Monday and ending on Friday, to a workweek beginning on Tuesday, July 13, and ending on Saturday, with the payment of overtime for such Saturday work as set forth in the stipulation. The change was effected by Respondent without prior consultation with the Union, and was still in effect at the time of the stipulation. In August the Union learned of this situation and filed a grievance report delivered to the Respondent on the 18th. Two meetings were held with the Respondent before the matter was, at the instance of the Union, submitted to the Federal Mediation and Conciliation Service, under whose auspices the parties met on September 20, 1965. This meeting was adjourned when the parties could reach no agreement, including agreement to submit the matter to arbitration.' On November 10, 1965, the Union filed the unfair labor practice charge herein alleging unilateral action by Respondent in violation of the Working Agreement, article 3, sections A and B.3 The complaint alleges that the unilateral action of placing a maintenance employee on a workweek of Tuesday through Saturday was in violation of Respondent's "past practices and of the terms of the current collective 2 The existing contract provides for a shop committee and grievance procedure, with resort to the Federal Mediation and 'Conciliation Service before strike or lockout, but contains no provision for arbitration 3 Article 3 of the agreement , reads as follows HOURS OF LABOR: A The workweek for production employees shall consist of five ( 5) eight ( 8) hour days, Monday through Friday, both inclusive, except for those employees in the classifications or departments set forth in paragraph B. All work performed in excess of eight (8) hours per day or forty (40) hours per week as well as all work per- formed on the holidays set forth in this Agreement and all work performed by an employee on his sixth day worked in his workweek shall be paid at the rate of time and one-half B. The following classifications, departments, and employees therein are excepted from the provisions of Paragraph A: Powerhouse employees with the understanding that work by such employees on Saturday or Sunday shall be at straight time, pro- vided said employee is given other consecutive days off In lieu of Saturday and Sunday and provided total hours working during his workweek do not exceed eight (8) hours per day and forty ( 40) hours per week. C. In computing the sixth day worked , full or partial days of absence on the part of any employee shall be counted as full days work, provided the absence from work was due to one or more of the following reasons: 1. Laid off by Company. 2. Plant shutdown. 3. Holidays not worked. Time lost from work on the part of any employee for any reasons other than those set out above shall not be counted as time worked for overtime purposes. D. Two overtime rates shall not be paid for the same hours of work. E. The Company may expect from time to time to operate any or all departments in excess of five ( 5) days or forty (40) hours per week in which event employees will be expected to report for work when so advised . Pay will be in accordance with the provisions of the above clause. A reasonable excuse upon proper prior notice to the Department Foreman will permit a valid absence after forty-eight (48) hours' notice has been given the employees . ( Wednesday before quitting time.) 1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining, agreement." The complaint also alleges that Respondent,, since on or about August 15, 1965, has refused upon demand to bar- gain collectively with the Union over the workweek of maintenance. employees. The Respondent contends that the Board is without jurisdiction .here because this is a matter of contract interpretation, not unfair labor practices; that its conduct was not in violation of the bargain- ing contract which, while using the phrase "production and mainte- nance" employees in the recognition clause and specifying wage rates for "maintenance and repair" employees, sets up a workweek for "production" only, and contains no restrictions on Respondent's authority to alter the workweek of maintenance employees; and that the union grievance in August 1965 was both untimely (in view of the 7-day notice provision), and lacking in merit. The General Coun- sel contends that, entirely apart from possible breach of contract thereby, the Respondent, by unilaterally instituting a change in the existing practice with respect to the workweek of maintenance employees and thereafter refusing to bargain about the matter, vio- lated Section 8(a) (5) of the Act; that the Union had not waived its statutory right to be consulted about such subject matter; that article 3 of the contract is ambiguous in referring to the Workweek of pro- duction employees and then exempting only powerhouse employees; and that past practice and history of bargaining (specifically a 1957 proposal by the Respondent to exclude maintenance employees along with powerhouse employees under article 3B), are relevant. The Union (which in 1966 proposed the addition of the word "maintenance" in article 3A), contends that, in the lumber industry, production and maintenance employees form an integrated production force, hence. "production" in article 3A of the contract means the entire unit 'including maintenance employees; that, historically, maintenance employees have been treated by the Respondent as included within the meaning of the workweek clause; that in the absence of a specific contract provision permitting the Respondent to take unilateral action with respect to the workweek for so-called maintenance employees, such action-which concerns mandatory bargaining sub- jects of wages, hours, and terms and .conditions of employment- clearly violates the Act and can be remedied only by the Board. We reject, as without merit, Respondent's contention that its dis- pute with the Union relates only to a grievance matter under the con- 'tract rather than an unfair labor practice, and that the Board lacks jurisdiction with respect to it.' Concerning its own jurisdiction in 4 We note that the Union has attempted to pursue its rights under the limited grievance procedure of the contract and achieved no definitive result. LONG LAKE LUMBER COMPANY 1479 -circumstances of this sort, the Board has said that it "is not disabled from resolving an unfair labor practice issue simply because as an incident thereto it may be necessary to construe a contract to deter- mine whether the right to take unilateral action has been contrac- tually reserved to management." 5 Whether the contract here is viewed as ambiguous as contended by the General Counsel and the Charging Union, or as unambiguous as contended by the Respondent, its writ- ten terms do not specify the workweek of maintenance employees .e Article 3, "Hours of labor," is silent on the subject of maintenance employees, no other article touches on the workweek problem, and there is no management prerogative clause. A Monday to Friday workweek is provided for "production" employees in article 3A, and article 3B specifically permits workweek variations for powerhouse employees. Lengthening of the workweek for "all" departments is permitted in article 3E, with overtime pay in accordance. But there is no written provision for varying-except as to powerhouse employ- ees-the existing workweek pattern which, as the parties have stipu- lated, has by established practice been a Monday to Friday one for maintenance as well as production employees. The Respondent views the contract as tantamount to a lack of "restriction" upon it with respect to workweek variations for mainte- nance employees. But, as the Board has found, parties have a con- tinuous duty to bargain about the "unwritten terms" of a contract when those unwritten terms deal with wages, hours, and other condi- tions of labor.? The situation here is not one where, as one court has said, the parties "have arguably agreed affirmatively to permit con- duct which, sans contract, the Act would admittedly condemn as an unfair labor practice." 6 The situation here concerns a contract silent on Respondent's right to change maintenance employees to a Tuesday to Saturday workweek in the context of an established practice of employing them on a Monday to Friday basis. Unilateral action of 8 See Smith Cabinet Manufacturing Company , Inc., 147 NLRB 1506, 1509 , where the contract contained no "express " provisions relating to the shift change instituted by the Respondent. The Board noted that Section 10(a) of the Act provides that its powers to prevent unfair labor practices shall not be affected by any other means of adjustment that has been or may be established "by agreement, law, or otherwise." °The attempts of both parties to the contract to amend it by including reference to maintenance employees in article 3-the Respondent in 1957 and the Union in 1966- serve to emphasize the lack of specificity in this regard. 7 See Allied Mills, Inc., 82 NLRB 854, 862 ; Tide Water Associated Oil Company, 85 NLRB 1096, 1099. 8 See N.L .R.B. v. C & C Plywood Corp., 351 F.2d 224 ( C A. 9), cert. granted [385 U.S. 421], where the contract permitted premium pay for individual employees and also con- tained an unusual waiver of duty to bargain clause. The Respondent unilaterally instituted a premium pay plan for crews-a dispute the 'Court of Appeals viewed as subject only to arbitration or court adjudication on the question whether the contract "positively" sanctioned the Respondent's action. 1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this sort-unless sanctioned by the bargaining contract 9-is in.dero- gation of the Union's statutory right as collective-bargaining agent and may not be accomplished without consultation with the bar- gaining agent. On the other hand, as stipulated, the Respondent had changed the working hours and shift arrangements of maintenance employees within the Monday to Friday workweek without union objection in an effort to meet maintenance needs when equipment was not in oper- ation. Finding such arrangements inadequate, particularly in connec- tion with some new mobile equipment, the Respondent instituted the change to a Tuesday to Saturday workweek for onity I of its 16 to 18 maintenance employees. Although it did riot consult with the bargaining representative in advance, Respondent did discuss the matter with the Union promptly upon the latter's request at two grievance meetings and at an addi- tional meeting with a Federal mediator. In these circumstances, although we do not agree with Respond- ent's contention that it was under no obligation to bargain about the workweek of maintenance employees generally,10 we do not believe the stipulated facts support a finding of such a substantial variation from past scheduling practice,11 or such a refusal to discuss the mat- ter upon request of the bargaining representative, as would warrant a remedial order. ORDER IT IS 'HEREBY ORDERED that the complaint filed herein be, and it hereby is, -dismissed. 0 The waiver by a union of its statutory right to be consulted concerning wages, hours, and terms and conditions of employment must be clear and unmistakable. See The Timken Roller Bearing Co. v NLRB., 325 F.2d 746 (C.A. 6), cert. denied 376 U.S. 971; N.L R B. v. The Item Company, 2'20 F 2d 956 , 958-959 , cert. denied 350 U S. 836 • 10 Smith Cabinet Manufacturing Co., Inc. , supra; Century Papers, Inc, 155 NLRB 358; Huttig Sash and Door Company, Incorporated, 154 NLRB 811. 11 As might be the case if the workweek of a number of the maintenance employees had been changed 'Home Exterminating 'Company and Truck Drivers & Helpers Lo- cal Union No. 355, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 5-RC-5422. September 29, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9,(c) of the National Labor Relations Act, as .amended, a hearing was held before Hearing Officer 160 NLRB No. 108.