The Connor Lumber & Land Co.

In the Matter of THE CONNOR LIIMBER & LAND Co. and INTERNA- TIONAL WOODWORKERS OF AMERICA, LOCAL No. 125, (C. I. 0.) Case No. R-979-Decided February 28, 1939 Lumber Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations ; stipulation that majority of employees in appropriate unit would testify that they had designated one of two rival unions as their representative not accepted by Board as evidence of free designation of a bargaining agent where the Company had been ordered to cease and desist from encouraging membership in that union and from discouraging membership in the rival union ; substantial doubt as to majority status ; controversy as to appropriate unit-Unit Appropriate for Collective Bargaining: production and maintenance employees, including truck drivers, lumber inspectors, employees working for subsidiary railroad, employees work- ing under so-called independent contractors, but excluding timekeepers, plant clerks, office employees, executives, foremen, and lesser supervisors ; so-called independent contractors and persons working under their supervision employees under the Act-Election Ordered-Certification of Representatives. Mr. Frederick Mett and Mr. William R. Consedine, for the Board. Mr. Theo. W. Brazeau and Mr. R. B. Graves, of Wisconsin Rapids, Wis., for the respondent. Mr. Henry Paull, of Duluth, Minn., for Local No. 125. Padway, Goldberg & Tarrell, by Mr. A. G. Goldberg, of Mil- waukee, Wis., for Local No. 2871. Mr. Langdon West, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 19, 1938, Lumber & Sawmill Workers Union, Local No. 125, International Woodworkers of America, affiliated with the Com- mittee for Industrial Organization, herein called Local No. 125, filed a petition 1 with the Regional Director for the Twelfth Region (Mil- waukee, Wisconsin) alleging that a question affecting commerce had 'An amended petition containing additional allegations was filed by Local No. 125 on May 7, 1938. In the petition and amended petition and in some of the other pleadings Local No. 125 was incorrectly designated as International WoQdworkers of America, Local ##125 (C. I. 0.). 11 N. L. R. B., No. 58, 776 THE CONNOR LUMBER & LAND CO. ET AL. 777 arisen concerning the representation of employees of The Connor Lumber & Land Co., Laona, Wisconsin, herein called the Company, at its Laona plant and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 30, 1938, the National Labor Relations Board, herein called the Board, act- ing pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation 2 and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 10, 1938, the Regional Director issued a notice of hear- ing,8 copies of which were duly served upon the Company, Local No. 125, and upon Lumber & Sawmill Workers Union, Local No. 2871, United Brotherhood of Carpenters and Joiners of America 4 affiliated with the American Federation of Labor, herein called Local No. 2871, a labor organization claiming to represent employees directly affected by the investigation. On June 8, 1938, Local No. 2871 filed its petition to intervene in the proceedings. Ruling on the motion was reserved for the Trial Examiner at the hearing. Pursuant to notice, a hearing was held from June 9, 1938, to July 27, 1938, at Laona, Wisconsin, and on July 29, 1938, at Milwaukee, Wisconsin, before Samuel Jaffee, the Trial Examiner duly designated by the Board. The Board, the Company, Local No. 125, and Local No. 2871 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing on June 9, 1938, the Trial Examiner granted without objection the motion to intervene made by Local No. 2871. During the course of the hearing, the Trial Examiner ruled on various other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 7, 1938, the parties entered into a stipulation in- cluding, inter alia, the facts concerning the nature and scope of the 2 This order also consolidated this matter with Matter of The Connor Lumber and Land Co., Michigan Lumber d Sawmill Workers Union, Local # 15, International Woodworkers of America, (C. I. 0.), Case No. C-657, and Matter of The Connor Lumber and Land Co. and International Woodworkers of America , Local # 125, (C. I. 0.), Case No. C-986. Cases Nos. C-657 and C-986 were severed from this case (R-979 ) by the Board's orders dated June 2 , 1938, and November 19, 1938, respectively. a Thereafter the hearing was postponed several times, notice of which was on each occa- sion duly served on all the parties. ' Local No. 2871 was designated in some of the pleadings as Lumber and Sawmill Work- ers Local Union No. 2871 , United Brotherhood of Carpenters and Joiners of America, affil- iated with the American Federation of Labor. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's business. This stipulation was made a part of the record in Case No. C-986 on November 19, 1938; and in so far as it relates to the jurisdictional facts, is hereby made a part of the record in this proceeding. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 5 The Company, a Wisconsin corporation, is engaged in the manu- facture of lumber and wood products, including furniture and wood flour, with its principal office and place of business at Laona, Wis- consin. It is also engaged in the operation of a lumber mill at Connorsville, Michigan. This case is concerned with the Company's operations in the State of Wisconsin. In the course of its operations at its Laona mill, the Company has purchased and received large quantities of timber, wood, and lumber and also large quantities of plant materials, consisting of iron, steel, nuts, bolts, copper, tin, wire, chemicals, and paints, from points outside the State of Wisconsin. In connection with its logging and lumber- ing operations at various points in the State of Wisconsin, the Com- pany has purchased and received large quantities of plant and camp materials, including beds, blankets, saws, axes, automobiles, trucks, trailers, pumps, electric appliances, food, clothing, and other neces- saries of life, from points outside the State of Wisconsin. During the year 1937 about 20 per cent of all the materials purchased and used by the Company in its Wisconsin operations had their origin in States of the United States other than the State of Wisconsin. In the course of its operations in the State of Wisconsin, the Company has sold and shipped large quantities of its manufactured lumber, furniture, wood products, and wood byproducts from its Laona mills to States other than the State of Wisconsin and to foreign countries. During the year 1937, about 70 per cent of the aforesaid products manufactured by the Company in the course of its Wisconsin operations were shipped from the various points of its operations in Wisconsin to States of the United States other than Wisconsin and to foreign countries. The Company employs, and for several years past has employed, approximately 350 employees at its Laona plant. The Company also employs, and for several years past has employed, approximately 200 employees at various lumber camps in the vicinity of Laona, Wiscon- sin, and in other places in the State of Wisconsin. 5 These findings are based on stipulated facts. THE CONNOR LUMPER & LAND CO. ET AL. 779 The Company owns, maintains, and operates the Laona & Northern Railway Company, a corporation engaged in the transporting, by steam railroad, the products purchased and used by the Company at its Laona plant, as well as the products manufactured by the Com- pany in the operation of its Laona plant. The tracks of the Laona & Northern Railway Company connect with the tracks of the Sioux Line, an interstate carrier, at Laona Junction, Wisconsin. H. THE ORGANIZATIONS INVOLVED International Woodworkers of America, Local No. 125, is a labor organization affiliated with the Committee for Industrial Organiza- tion, admitting to membership all production and maintenance em- ployees of the Company at its Laona plant, excluding executives, foremen, and others with supervisory authority, clerks, timekeepers, and truck drivers. Lumber and Sawmill Workers Union, Local No. 2871, United Brotherhood of Carpenters and Joiners of America, is a labor organ- ization affiliated with the American Federation of Labor, admitting to membership all production and maintenance employees of the Com- pany at its Laona plant and its logging camps in Wisconsin, and also the employees of the Laona & Northern Railway Company. It excludes those with supervisory authority above the grade of foremen. III. THE QUESTION CONCERNING REPRESENTATION Local No. 125 was chartered in October 1937, and Local No. 2871 started to organize about November 15, 1937, and was chartered on November 30, 1937. At a conference held on November 8, 1937, be- tween the Company and Local No. 125, the representatives of Local No. 125 stated that a majority of the employees of the Company at its Laona plant had designated Local No. 125 as their representative for the purposes of collective bargaining with the Company, and re- quested the Company to bargain with Local No. 125 as the exclusive representative of its employees at the Laona plant. The Company maintained that it could not bargain with any union until either the, Board or the Wisconsin Labor Relations Board, herein called then State Board, had certified such union as a proper collective bargain- ing agent. Thereafter, Local No. 125 filed a petition with the State Board, requesting an investigation and certification as bargaining agent of the Company's employees. Local No. 2871 requested the, State Board to place it on the ballot, but the request was denied, apparently because untimely. On November 22, 1937, the State Board conducted an election among the Company's Laona employees to determine whether or not they desired to designate Local No. 125 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as their representative for the purposes of collective bargaining with the Company. Local No. 125 lost the election, but, thereafter, pro- tested it on the grounds of company interference and coercion of its employees. After a hearing on this protest, the State Board set aside the election. On December 27, 1937, Local No. 125 filed with the Regional Direc- tor a petition for, investigation and certification of representatives pursuant to Section 9 (c) of the Act. In January 1938, Local No. 2871 met with the Company and claimed to represent a majority of its employees and requested recognition as the employees' exclusive bargaining agent. The Company gave Local No. 2871 the same reply that it had previously given to Local No. 125. On February 24, 1938, a consent election with both Local No. 2871 and Local No. 125 on the ballot was conducted by the Regional Director to determine the question of employee representation. The Regional Director certified to the Company, Local No. 2871, and Local No. 125 that the result of this election was as follows : Eligible ---------------------------------------------------- 339 Ballots cast------------------------------------------------ 339 Ballots cast for Local No. 2871 ------------------------------- 166 Ballots cast for Local No. 125 ------------------------------- 161 Ballots challenged ------------------------------------------ 12 On March 1, 1938, Local No. 125 filed with the Regional Director a protest concerning this election, alleging that the Company had interfered with the free choice of its employees. The substance of this protest was subsequently included in unfair labor practice charges against the Company filed by Local No. 125 with the Board. On March 23, 1938, the Company and Local No. 2871 entered into a closed-shop contract covering the Company's Laona plant employees. On April 7, 1938, Local No. 125 filed unfair labor practice charges against the Company, and on April 19, 1938, filed the petition in this case for an investigation and certification of representatives. On May 10, 1938, the Board issued its complaint against the Company, alleg- ing, inter alia, that the Company dominated and interfered with the formation and administration of Local No. 2871; that the Company illegally had made membership in Local No. 2871 a condition of em- ployment in its Laona plant and thereby terminated the employment of numerous employees who were members of Local No. 125; and that the Company, by the aforesaid acts, and by urging and threatening its employees to vote against Local No. 125 and to vote in favor of Local No. 2871 in the aforesaid consent election and by other acts, in- terfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. On November 7,1938, the Company, Local No. 2871, and Local No. 125 entered into a stip- THE CONNOR LUMBER & LAND CO. ET AL. 781 ulation in settlement of the case. On December 28, 1938, in accord- ance with the stipulation the Board entered its order directing the Company to cease and desist from the unfair labor practices alleged in the complaint and to take certain agreed affirmative action to remedy the effect of the unfair labor practices. We find that a question has arisen concerning the representation of employees of the Company. IV. THE' EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT Local No. 125 claims that the production and maintenance em- ployees, excluding camp men, railroad men, truck drivers, executives, foremen and lesser supervisory employees, "independent contractors," persons working for "independent contractors," office employees, time- keepers, and plant clerks, constitute an appropriate unit. Local No. 2871 agrees on the propriety of a production and maintenance unit, excluding office employees and supervisory employees above the rank of foremen. Its position with respect to camp men, timekeepers, and plant clerks is not clear in the record, but it would include in the unit all the other groups of employees which Local No. 125 desires excluded. The Company desires the exclusion of foremen. Its position as to the other groups in question is not clear in the record. We shall consider each of the controversial groups separately. ' Camp men: The Company generally maintains three camps in the woods located from 10 to 15 miles from Laona and a few miles from each other. There are usually about 200 men employed in the three camps engaged in logging operations as distinguished from the processing operations performed at the Laona plant. The work of the camp employees is done entirely in the woods and the men live at the respective camp sites during the period of operations, which are seasonal and irregular. The evidence indicates that the employees are rarely shifted from logging operations in the woods to the Laona plant. The camp men did not vote either in the election conducted by the State Board in November 1937 or in the consent election conducted by the Board in February 1938. The camp men are organized in a 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD separate local by the International Woodworkers of America but are admitted to membership in Local No. 2871 along with the plant men. However, although they were eligible to membership in Local No. 2871, the closed-shop contract entered into in March 1938 between the Company and Local No. 2871 did not cover the camp men. Despite the differences in their conditions of work and location, we have included the camp men and the plant employees in a single unit in a case where one of two rival unions organized on an industrial basis has requested their inclusion 6 and in cases where there has been a his- tory of collective bargaining as a single unit.° Here Local No. 125 does not desire the camp men included with the plant employees, Local No. 2871 has not made its position with respect to them clear, and as far as the record discloses may not desire their inclusion since they were not included by Local No. 2871 in its closed-shop contract with the Company. Under these circumstances we shall not include the camp men in a single unit with the plant employees. Railroad men: There are approximately 10 or 12 employees of the Laona & Northern Railway Company, which is owned and operated by the Company in conjunction with its general operations. These employees are eligible to join Local No. 2871 but are not eligible for membership in Local No. 125. The railroad men voted in the No- vember 1937 election, but under the consent agreement were not eligible to vote in the February 1938 election. However, the closed-shop con- tract between the Company and Local No. 2871 included this group of employees. Since one of the labor organizations has bargained for them in the past, since both unions are organized on an industrial basis, and since their exclusion from the unit would leave them without collective bargaining representation, we shall include the railroad em- ployees within the appropriate unit. Truck drivers: There are four or six truck drivers. The record does not disclose= the exact nature of their duties but presumably they haul logs from the woods to the plant. There is some evidence that they are generally considered camp employees but the reason is not apparent. The truck drivers voted in both previous elections. They are eligible to membership in Local No. 2871, but Local No. 125 does not admit them. 'Neither the closed-shop contract nor evidence per- taining to it reveals whether or not the truck drivers come within its provisions.8 6 Matter of Donovan Lumber Company and International Woodworkers of America, Local No. 2, 10 N. L. R. B. 034. 'Matter of Bloedel-Donovan Lumber Mills and Columbia Valley Lumber Company and International Woodworkers of America, Local No. 46, 8 N. L. it. B. 230; and Matter of Snoqualmie Falls Lumber Company and International Woodworkers of America, Local No. 106, 10 N. L. it. B 398. ' The truck drivers are listed in a paragraph exempting certain job classifications from the provisions concerning overtime pay. THE CONNOR LUMBER & LAND CO. ET AL. 783 While their status is different in some degree from other em- ployees within the unit, since the truck drivers were eligible to vote in both elections, we shall not exclude them here. Foremen and other employees having supervisory authority. Local No. 2871 admits to membership foremen and lesser supervisory em- ployees. Local No. 125 excludes them. The Company desires the exclusion of foremen but not minor supervisory employees. We customarily exclude supervisory employees from a production and maintenance unit if, as here, one of two rival labor organizations desires their exclusion.9 The intense rivalry between the two labor organizations and the allegations in the complaint proceeding of supervisory interference and restraint of employees makes the prin- ciple set forth in the Matter of Rex Manufacturing Co., Inc. and A. F. of L. Federal Local Union No. 20893 9a particularly applicable in this case. We said in the Rex case : The subforemen and group leaders belong to a class of minor supervisory employees whose inclusion in or exclusion from a unit made up of production workers must depend largely upon the particular facts in each case. Where, as here, there is a history of rivalry among labor organizations claiming to repre- sent employees, it is important that the employer be free from the imputation of coercing his employees in their choice of rep- resentatives. Since subforemen and group leaders are in some measure identified with management, it is not improbable that their participation in a controversy between rival unions will lead to charges of employer interference. We will, therefore, exclude subforemen and group leaders, as well as general fore- men, from the unit. Hence, we shall exclude from the appropriate unit all foremen, assistant foremen, subforemen, and any others with supervisory authority. There is disagreement between the parties concerning the supervisory status of various individual employees. The cases of some of these men will be considered individually. In each such case where we exclude an individual from the unit the basis for the exclusion is our finding that such person has sufficient supervisory authority to identify his interests more closely with the Company than with the employees. Ed Bradle is in charge of the dry kiln and acts as a timekeeper during a portion of his working time. He admitted that he was generally referred to by the men as the dry-kiln foreman. He re- 9 Matter of Paciflo Manifolding Book Company , Inc. and International Printing Pressmen and Assistants' Union of North America, 3 N. L. R. B. 551, and Matter of Charles R. Mc- Cormick Lumber Co. and International Woodworkers of Amersca, Local 112, 7 N. L. R. B. 38. 91 7 N. L. R. B. 95. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceives a salary of $190 per month, whereas most of the other em- ployees receive 40 cents per hour. We shall exclude him from the appropriate unit. James Cox is an assistant to Ed Bradle in the dry kiln. He is considered a strawboss by the men. When Bradle is occasionally away from his work on timekeeping duties, Cox is in direct charge of the operations of the dry kiln. He is paid at the rate of $135 a month, whereas the other men are paid 40 cents an hour. We shall exclude him from the appropriate unit. John Lilly and the other lumber inspectors. The Company em- ploys about 10 or 12 lumber inspectors whose work consists of in- specting or grading the various types of lumber used in the Com- pany's operations. Each inspector is assisted by three or four men called lumber handlers, who stack and move the lumber. We find that the inspectors' supervisory authority generally is not sufficient to warrant their exclusion from the unit. However, the supervisory authority of one of the inspectors named John Lilly extends beyond that of the other inspectors. He is a specialist on pine with some degree of authority over the other inspectors. He admitted that on occasion he told the other lumber inspectors what to do about certain types of lumber. His duties as an inventory man also take him throughout the plant. He has au- thority to reprimand the men working under him, and he admitted that the men generally referred to him as a foreman. Lilly attends meetings with the higher company officials at which production prob- lems are discussed. In the past during a period when Amos Webb, dry-yard foreman, was absent for several months, Lilly acted as foreman over the entire dry yard. We shall exclude Lilly from the appropriate unit, but include the other lumber inspectors. Frank Bohman testified that he was head filer and that he was paid at the rate of 97 cents per hour. He has two assistants, both of whom receive substantially less compensation. George Britten, -superintendent, admitted that Bohman supervised the work of the other two filers to some extent. Bohman requisitions supplies and signs the requisition slips above the word "foreman." We shall exclude him from the appropriate unit. Carl Treml testified that he was a shipping clerk in the flooring warehouse but admitted that he was an "assistant to the foreman." He is generally regarded by the men as a foreman and directs the work of several men under him. He is paid at the rate of 53 cents per hour whereas the other men receive 40 cents per hour. He ad- mitted that he was in charge of the men when his superiors were not available. We shall exclude him from the appropriate unit. THE CONNOR LUMBER & LAND CO. ET AL. 785 Kenneth Liesch is referred to variously as foreman, supervisor, or boss of the chair factory. Liesch designated himself as a shipping clerk. However, John Singer, foreman in the Dimension Depart- ment with between 60 and 75 men under his supervision, described Liesch as one of his two immediate assistants, as an "assistant and right hand man," and admitted that to some extent Liesch had supervisory authority. Liesch is paid at the rate of 55 cents per hour, whereas the other men receive 40 cents per hour. We shall exclude him from the appropriate unit. Alvin Stauber is referred to variously as foreman in the Dimen- sion Department and as millwright or machinist. He also works under Foreman John Singer, is his other assistant, and is paid at the rate of $145 a month. The other men receive 40 cents an hour. He admitted that in the course of his duties he made recommendations to Singer concerning what piece-work rates should be fixed for the men. Singer referred to him also as an "assistant and right hand man." We shall exclude him from the appropriate unit. Glenn Woodford is referred to as a foreman in the railroad op- erations. Woodford attended foremen's meetings.l° We shall ex- clude him from the appropriate unit. Curtis Craig (Crake or Krake) is referred to as foreman or boss in the "snoose" mill. Craig had attended foremen's meetings. We shall exclude him from the appropriate unit. Frank Stauber is referred to variously as strawboss and foreman in the planing mill. Stauber also had attended foremen's meetings. We shall exclude him from the appropriate unit. Adolph Otto does various types of work. He testified that he was a tinsmith and millwright. Although he admitted that oc- casionally he had a crew working under him and that he usually had an assistant or helper, we find that the extent of his super- visory authority, if any, is not sufficient to warrant his exclusion from the appropriate unit. We shall include Otto in the unit. Kenneth Allen. Allen is employed in the byproducts department under Foreman Arthur Ford. He admitted that he passed on to other men working with him the orders given by the foreman. Several employees testified that they considered Allen their fore- man, and that they continually carried out orders given by him. He is paid at the rate of 53 cents per hour, whereas most of the other men receive 40 cents. He supervises the work of from 10 to 14 men. We shall exclude him from the unit. 10 The findings that Woodford, Craig, and Frank Stauber attended foremen's meetings are based on testimony given by Anros Webb, the dry-yard foreman. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Independent contractors" and their employees. The alleged "in- dependent contractors" perform various types of work for the Company at specified prices under short-term contracts. Their work is performed at the plant on material and with equipment furnished by the Company. At the time of the hearing the only work being done under contract was that in the shingle mill. In the past the Company has also made contracts for some work per- formed in the square and lath mills. Both before and after, and in some instances and even during, the contractual period, the "in- dependent contractors" and their employees are assigned by the Com- pany to do other work under the usual hourly rate schedule. The employees of the "independent contractors" receive their pay directly from the Company, and in some instances in the past their time has been kept by company foremen. The form of contract used by the Company provides that the cost of workmen's compensation and liability insurance for the crew is to be borne by the "inde- pendent contractor", and that he is to have entire control over the details of the work. The evidence in the record indicates that regardless of the terms of the contract, the superintendent of the plant exerts a large meas- ure of control over the hiring and discharging and the working conditions of the employees of the "independent contractors." Fore- men also have general supervision over the work done by these em- ployees, although it is performed under the direct supervision of the "independent contractor." It is clear that the relationship be- tween the superintendent of the plant and the "independent con- tractors" and their employees is, in general, the same as his relation- ship with other employees. In another case 11 involving "independent contractors" the Board stated, "We have had occasion to point out that the statutory defini- tion of the word `employee' is of wide scope. As used in the Act, the term embraces `any employee', that is, all employees in the conven- tional as well as legal sense except those by express provision ex- cluded. The primary consideration is whether effectuation of the declared policy and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act. The matter is not conclusively determined by a contract which ad- verts to and purports to establish the status of such person other than as an employee." - Here, as there, the position of the "independent contractors" and their assistants is relatively that of other employees. Their work is a functional part of the enterprise performed at the same plant, sub- stantially under the direction and control of the Company and under 11In Matter of Seattle Post-Intelligencer Department of Hearst Publications, Inc. and Seattle Newspaper G-u*id, Local No. 82, 9 N. L. R. B. 1262. I THE CONNOR LUMBER & LAND CO. ET AL . 787 working conditions established by the Company, with materials and equipment furnished by the Company. The "independent contrac- tors" are compensated both on terms fixed by contract and on the usual wage basis provided for other employees according to the nature of their immediate assignment. We find that the "independent contractors" and the persons work- ing under them, are employees of the Company within the meaning of Section 2 (3) of the Act. However, we are of the opinion that the "independent contractors" have sufficient supervisory authority over the persons working under their immediate direction to warrant their exclusion from the unit. We shall include in the unit the em- ployees working under the supervision of the "independent contrac- tors", but exclude the "independent contractors." Timekeepers and clerks: Local No. 125 excludes timekeepers and all clerical employees. Local No. 2871 excludes office employees, but its position as to timekeepers and plant clerks is not clear in the record. The record does not disclose any particular reason for includ- ing these employees. In the absence of sufficient reasons to necessi- tate their inclusion, we shall adhere to our practice 12 of excluding such employees where one union desires such exclusion. We, there- fore, exclude timekeepers, office employees, and plant clerks. We find that all production and maintenance employees of the Company at the Laona plant, including truck drivers, lumber in- spectors, employees working for the Laona & Northern Railway Com- pany, and those employees working under the supervision of inde- pendent contractors and Adolph Otto, but excluding camp employees, independent contractors, timekeepers, plant clerks, office employees, executives, foremen, and others having supervisory authority, and specifically excluding Ed Bradle, James Cox, John Lilly, Frank Bohman, Carl Treml, Kenneth Allen, Kenneth Liesch, Alvin Stauber, Glenn Woodford, Curtis Craig, and Frank Stauber, constitute a unit appropriate for the purpose of collective bargaining and that such unit will insure to the employees of the Company at its Laona plant the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES It appears from the record that normally the Company employs about 350 men in the unit we have found to be appropriate. In its petition for investigation and certification as amended, Local No. 125 alleged that 225 persons had designated it as their representative. 12 Matter of Westinghouse Airbrake Company and United Electric and Radio Workers of America, Railway Equipment Workers Local No. 610, 4 N. L. R. B. 403; Matter of Inter- lake Iron Corporation and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1657, 6 N.L. R. B. 780. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 125 offered no proof of its membership other than the testi- mony of its representatives at the hearing that all of the 225 persons had retained their membership in Local No. 125. In proof of Local No. 2871's contention that it represents a ma- jority of the employees, it introduced at the hearing two stipulations entered into by the Company, Local No. 125, counsel for the Board, and its own representatives. The first stipulation provides that each of the 166 employees listed therein, if he had been called to testify, would have testified on direct examination that he was a member of Local No. 2871 in good standing, that in the February 1938 consent election he had voted for Local No. 2871 without influence or coercion by the Company, and that he desired Local No. 2871 to represent him as his bargaining agent. The second stipulation provides that each of about 250 employees listed therein, if he had been called to testify, would have testified on direct examination that he was a member of Local No. 2871, that he had voted in the February election, and that he desired Local No. 2871 to represent him for purposes of collective bargaining. There is some duplication in the names of the persons included in the two stipulations but for reasons hereinafter stated, this duplication is immaterial. While we accord full credit to these stipulations, we do not attach weight to this evidence. As we have indicated above, charges were filed and a complaint was issued by the Board against the Company alleging that it had engaged in unfair labor practices during periods both prior to and following the February 1938 election. Upon the consent of the Company, Local No. 2871, and Local No. 125, the Board entered its order on December 28, 1938, directing the Company to cease and desist from the unfair labor practices alleged in the complaint, including discouraging membership in Local No. 125, encouraging membership in Local No. 2871 and giving effect to its contract with Local No. 2871, and to take certain affirmative action, including the reinstatement of employees with back pay. Even in the absence of any individual coercive threats, the Company's unfair labor practices, which the Company upon its own agreement has been ordered to discontinue, would have the necessary effect of coerc- ing its employees and interfering with their free choice of represent- atives. Under these circumstances we cannot give effect to such testimony as evidence of the employees' free designation of a bargaining agent.18 Moreover, at least three employees included in Is See Matter of Bradford Dyeing Association ( U. S. A.) (a Corporation ) and Textile Workers' Organizing Committee of the C. I 0 , 4 N L R B 604; Matter of Taylor Trunk Company and Luggage Workers Union, Local No. 50 of the International Ladies' Hand Bag, Pocketbook and Novelty Workers Union, 6 N. L. R. B. 32; Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association ' of Iron, Steel, and Tan Workers of North America, Lodge Nos 611, 1010, and 1101, 9 N L. R B. 783, Matter of Lady Ester Lingerie Corp. and International Ladies Garment Workers Union- Affiliated with the Committee for, Industrial Org, 10 N. L R B. 518. THE CONNOR LUMBER & LAND CO. ET AL . 789 the second stipulation testified that they had joined Local No. 2871 only in order to be allowed to work for the Company under the closed-shop contract and that they did not desire to be represented by Local No. 2871. We find that the question that has arisen concerning representation of employees of the Company can best be resolved by an election by secret ballot. There was no evidence introduced at the hearing concerning the pay-roll date which should be used as the basis of determining eligibility to vote in the election. Therefore, we shall direct that those eligible to vote shall be the employees in the ap- propriate unit who were on the Company's pay roll next preceding the date of this Decision and Direction of Election, excluding those who since have quit or been discharged for cause. In addition to the employees on that pay roll we shall specifically include the em- ployees listed in Appendix 1 to this Decision and Direction of Election'14 exclusive of those who have declined reinstatement or who since their reinstatement have quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees at the Laona plant of The Connor Lumber' and Land Co., Laona, Wisconsin, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All production and maintenance employees of the Company at its Laona plant, including truck drivers, lumber inspectors, em- ployees working for the Laona & Northern Railway Company, and those employees working under the supervision of independent con- tractors and Adolph Otto, but excluding camp employees, independ- ent contractors, timekeepers, plant clerks, office employees, executives, foremen, and others having supervisory authority, and specifically excluding Ed Bradle, James Cox, John Lilly, Frank Bohman, Carl Treml, Kenneth Allen, Kenneth Liesch, Alvin Stauber, Glenn Wood- ford, Curtis Craig, and Frank Stauber, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National Labor 14 These employees were those to be reinstated pursuant to the Board 's order dated December 28, 1938, in Case No. C-986. 164275-39-vol. xi-51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with The Connor Lumber and Land Co., Laona, Wisconsin, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twelfth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 9, of said Rules and Regulations, among all production and maintenance employees of The Connor Lumber and Land Co., Laona, Wisconsin, at its Laona plant, on the pay roll next preceding the date of this Direction, including truck drivers, lumber inspectors, employees working for the Laona and* Northern Railway Company, and those employees working under the supervision of independent contractors, and specifically including Adolph Otto, employees listed in Appendix 1, exclusive of those who have declined reinstatement or who, since their reinstatement, have quit or been discharged for cause, but excluding camp employees, independent contractors, time- keepers, plant clerks, general office employees, executives, foremen, and others having supervisory authority, and specifically excluding Ed Bradle, James Cox, John Lilly, Frank Bohman, Carl Treml, Kenneth Allen, Kenneth Liesch, Alvin Stauber, Glenn Woodford, Curtis Craig, and Frank Stauber, and those who since have quit or been discharged for cause, to determine whether such employees de- sire to be represented for the purposes of collective bargaining by Lumber and Sawmill Workers Union, Local No. 125, International Woodworkers of America, affiliated with the Committee for Indus- trial Organization, or by Lumber and Sawmill Workers Union, Local No. 2871, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, or by neither. APPENDIX I Edwin (G.) Adams Ray Ankley Donald Aschenbrenner Ted Barnes Virgil Barnett Herbert Barstow Eldrid Biever Joe Blasik Jake Boll (Ball) Wallace Breaker Fred Buhrow Laddie Cherf Steve Cherf Milo Cooper Carter Drake Wade Drake Clarence Fosdick Stanley Fosdick Angus Grant Aubrey (Aubery) Harris Elmo Harris Charles (Chas.) F. Hayek (Hyek) THE CONNOR LUMBER & LAND CO. ET AL . 791 Andrew Hoffman Charles Horton David Hunt Virgil Jamison (Jameson) Lawrence Johnson Elroy Kaatz Max Kaatz Melvin Kaatz Benjamin (Ben) Kerr John (Jack) Koback Tom Korolick Richard Krauter William (Wm.) Krauter Clay Lacy John Lacy Ed (Edward J.) Lambert Ray Lambert Alvin Lehman Fred Lehman Fred Lemerand Ray Lykins Joe Majnarich (Majnerick) Chester Masel Joe Masel John Masel John Mihalko (Milalko) Andrew Miskowicz Elmer Moesch Owen Moore Don Newman Steve Novak Darlie Patton Adolph Praninskas John Praninskas Orville Puetz Ernest Rieper .Colvin Scaggs Linden Schall Frank Sharnek John Sidorick Jim (James) Skrommy Tom Snyder Howard Stamper Clyde (D.) Starks Oral Starks Herman Sturm Clyde Tucker Lloyd Thorson Grant Van Vorhees (Voorhees) Allen Voelz Alden Whiting Joe Widucki Clay Wilson William (Wm.) Wilson Ray Wolford Charles (Chas.) Yeater Dean Yeater Ed Yeater [SAME TITLE ] CERTIFICATION OF REPRESENTATIVES March 24, 1939 On February 28, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. The Direction of Election provided that an election by secret ballot be conducted within fifteen (15) days from the date of the Direction among all production and maintenance employees of The Connor Lumber and Land Co., Laona, Wisconsin, at its Laona plant, on the pay roll next preceding the date of the Direction, including truck drivers, lumber inspectors, employees working for the Laona and Northern Railway Company, and those 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees working under the supervision of independent contractors, and specifically including Adolph Otto, employees listed in Appen- dix 1 to the Decision and Direction of Election, exclusive of those who had declined reinstatement or who, since their reinstatement, had quit or been discharged for cause, but excluding camp employees, independent contractors, timekeepers, plant clerks, general office em- ployees, executives, foremen, and others having supervisory authority, and specifically excluding Ed Bradle, James Cox, John Lilly, Frank Bohman, Carl Treml, Kenneth Allen, Kenneth Liesch, Alvin Stauber, Glenn Woodford, Curtis Craig, and Frank Stauber, and those who since had quit or been discharged for cause, to determine whether such employees desired to be represented for the purposes of collec- tive bargaining by Lumber and Sawmill Workers Union, Local No. 125, International Woodworkers of America, affiliated with the Com- mittee for Industrial Organization, or by Lumber and Sawmill Workers Union, Local No. 2871, United Brotherhood of Carpenters and Joiners of America, affiliated with the America Federation of Labor, or by neither. Pursuant to the Direction of Election, an election by secret ballot was conducted on March 13, 1939, at Laona, Wisconsin, under the direction and supervision of the Regional Director for the Twelfth Region (Milwaukee, Wisconsin). Full opportunity was afforded all parties to this investigation to participate in the conduct of the secret ballot and to make challenges. On March 16, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued and duly served upon the parties an Intermediate Report on the election. No objections or exceptions to the Intermediate Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reportea as follows: Total number eligible to vote________________________________ 434 Total number of ballots cast _________________________________ 411 Total number of votes in favor of Lumber and Sawmill Work- ers Union, Local No. 125, International Woodworkers of America, affiliated with the C. I. O________________________ 78 Total number of votes in favor of Lumber and Sawmill Work- ers Union, Local No. 2871, United Brotherhood of Carpenters and Joiners of America, affiliated with the A. F. of L------- 230 Total number of votes in favor of neither____________________ 13 Total number of blank ballots _______________________________ 0 Total number of void ballots_____ ___________________________ 0 Total number of challenged votes____________________________ 90 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- THE CONNOR LUMBER & LAND CO. ET AL . 793 tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT is HEREBY CERTIFIED that Lumber and Sawmill Workers Union, Local No. 2871, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, has been selected by a majority of the production and maintenance employees of The Connor Lumber and Land Co., Laona, Washington, at its Laona plant, including truck drivers, lumber inspectors, employees work- ing for the Laona and Northern Railway Company, and those em- ployees working under the supervision of independent contractors, and specifically including Adolph Otto, but excluding camp em- ployees, independent contractors, timekeepers, plant clerks, general office employees, executives, foremen, and others having supervisory power, and specifically excluding Ed Bradle, James Cox, John Lilly, Frank Bohman, Carl Treml, Kenneth Allen, Kenneth Liesch, Alvin Stauber, Glenn Woodford, Curtis Craig, and Frank Stauber, as their representative for the purposes of collective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, Lumber and Sawmill Workers Union, Local No. 2871, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, is the exclusive representative of all such em- ployees for the purposes of collective bargaining in respect of wages, rates of pay, hours of work, and other conditions of employment. 11 N. L. R. B., No. 58a.