Jones Lumber Company

In the Matter of TONES LUMBER COMPANY and LUMBER AND SAWMILL WORKERS UNION, LOCAL No. 2877 , CHARTERED BY UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR In the Matter of B. F. JOHNSON LUMBER COMPANY and LUMBER AND SAWMILL WORKERS UNION, LOCAL No. 2839, CHARTERED BY UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR In the Matter Of PORTLAND LUMBER MILLS and LUMBER AND SAWMILL WORKERS UNION, LOCAL No. 2880, CHARTERED BY UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR In the Matter of EASTERN WESTERN LUMBER COMPANY and LUMBER AND SAWMILL WORKERS UNION, LOCAL No. 2881, CHARTERED BY UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Cases Nos. R-1148, R-1151, R-1153, and R 1155, respectively.- Decided April 11, 1939 Lumber Industry-Investigation of Representatives : controversy concerning representation : refusal to sign working agreement with rival union due to peti- tion requesting investigation and certification filed by petitioning union and fear of retaliatory action-Unit Appropriate for Collective Bargaining : plant and production employees excluding office employees, foremen, and other super- visory employees ; supervisory employees excluded because of objection by one of two rival labor organizations-Representatives : evidence introduced not given effect due to employers interference-Elections Ordered Mr. Thomas P. Graham, Jr., and Mr. Patrick H. Walker, for the Board. Mr. Charles E. McCulloch and Mr. Philip Chipman, of Portland, Oreg., for the Companies. Mr. Fred Jensen, of Portland, Oreg., for Locals 2887, 2839, 2880, and 2881. Mr. Ben Anderson, of Portland, Oreg., for Local 3. Mr. Albert J. Hoban, of counsel to the Board. 12 N. L. R. B., No. 30. 209 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTIONS OF ELECTIONS STATEMENT OF THE CASES Four separate petitions having been filed with the Regional Di- rector for the Nineteenth Region (Seattle, Washington) by Lumber and Sawmill Workers Union, Locals 2877, 2839,,2880, and 2881, re- spectively, chartered by the United Brotherhood of Carpenters and Joiners of America, herein called the Carpenters Locals, affiliated with the American Federation of Labor, alleging that questions affecting commerce had arisen concerning the representation of em- ployees of Jones Lumber Company, B. F. Johnson Lumber Company, Portland Lumber Mills, and Eastern Western Lumber Company, re- spectively, all of Portland, Oregon, herein collectively called the Companies, and requesting investigations and certifications of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, the National Labor Rela- tions Board, herein called the Board, on November 18, 1938, acting 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 investigations in all four cases and authorized the Regional Director to conduct them and to provide for appropri- ate hearings upon due notice. On November 26, 1938, the Regional Director issued notices of hearings, copies of which were duly served upon the respective Com- panies, upon the Carpenters Locals and upon Lumber and Sawmill Workers Union, Local No. 3, herein called Local 3, affiliated with the International Woodworkers of America, herein called the I. W. A., which is in turn affiliated with the Committee for Industrial Organi- zation, a labor organization claiming to represent employees directly affected by the investigations. Pursuant to amended notices duly served upon the parties, hear- ings were held on December 5, 6, 7, 8, 9, 10, 12, and 13, 1938, at Port- land, Oregon, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. All parties were represented by counsel and participated in the hearings. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearings the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. JONES LUMBER COMPANY 211 Pursuant to notice, hearings were held before the Board on Feb- ruary 8, 1938, in Washington, D. C., for the purpose of oral argu- ment. Counsel for the Carpenters Locals appeared and submitted a written memorandum or argument. Upon the entire record in each case the Board makes the following: FINDINGS OF FACT 1. THE COMPANIES AND THEIR BUSINESSES The business of each of the Companies is the manufacture and sale of lumber and wood products. Each is an Oregon corporation with its principal place of business located in Portland, Oregon. All the logs used by Portland Lumber Mills come from the State of Oregon. The following percentages of logs used by the other Companies come from the State of Washington : Jones Lumber Company_____________________________ 2 per cent B. F. Johnson Lumber Company____________________ 5 " " Eastern Western Lumber Company__________________ 10 The following percentages of finished products sold by the Com- panies are shipped to points outside the State of Oregon : Jones Lumber Company_____________________________ 70 per cent B. F. Johnson Lumber Company____________________ 99 " Portland Lumber Mills----------------------------- 75 " Eastern Western Lumber Company ------------------ 85 " " The approximate values of the finished products sold annually by the Companies are as follows : Jones Lumber Company_______________________________ $805,000 B. F. Johnson Lumber Company______________________ 306,242 Portland Lumber Mills------------------------------- 675,000 Eastern Western Lumber Company____________________ 1,200,000 II. THE ORGANIZAHONS INVOLVED Lumber and Sawmill Workers Union, Locals 2839, 2877, 2880, and 2881, are labor organizations affiliated with the United Brotherhood of Carpenters and Joiners of America, which is in turn affiliated with the American Federation of Labor. Membership in each local is restricted to the plant and production employees of a particular Company. Local 2839 admits to membership employees of B. F. Johnson Lumber Company ; Local 2877, the employees of Jones Lumber Company; Local 2880, the employees of Portland Lumber Mills; and Local 2881, the employees of Eastern Western Lumber Company. Lumber and Sawmill Workers Union, Local No. 3, is a labor or- ganization affiliated with the International Woodworkers of America, 169134-39-vol. 12-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which is in turn affiliated with the Committee for Industrial Organi- zation. It admits to membership the plant and production employees of the Companies. III. THE QUESTIONS CONCERNING REPRESENTATION From 1933 to 1935 the plant and production employees of the Com- panies were organized in a Federal Union, directly affiliated with the American Federation of Labor. In 1935 the Federal Union affiliated with the United Brotherhood of Carpenters and Joiners of America, herein called the Carpenters, and became Lumber and Sawmill Workers, Local 2532, herein called Local 2532. In August 1937, for reasons with which we are not concerned, the membership of Local 2532 voted to apply for a charter from the I. W. A. The charter was installed on August 14, 1937, and the employees theretofore members of Local 2532 became members of Local 3. On September 1, 1937, seven separate petitions were filed on behalf of Local 3 with the Regional Director for the Nineteenth Region, alleging that questions affecting commerce had arisen concerning the representation of employees of Jones Lumber Company, Clark & Wilson Lumber Company, Portland Lumber Mills, Inman-Poulsen Lumber Company, Eastern Western Lumber Company, B. F. John- son Lumber Company, and West Oregon Lumber Company, and re- questing the Board to conduct investigations pursuant to Section 9 (c) of the Act. On October 21, 1937, after hearing upon due notice, the Board 'issued its Decision 1 and certified Local 3 as the exclusive representa- tive of all the plant and production employees of each of the com- panies named in the petitions filed September 1, 1937, including foremen, but excluding office employees and supervisory employees other than foremen, and excluding certain other employees of the Inman-Poulsen Lumber Company and Clark & Wilson Lumber Company. In February 1938 the Carpenters established several new locals in the Portland, Oregon, area with the jurisdiction of each local con- fined to the employees of a single company, as set forth in Section II above. Shortly thereafter, the Columbia Basin Sawmill Operators Asso- ciation, herein called the Operators Association, on behalf of Clark & Wilson Lumber Company, Eastern Western Lumber Company, In- 1 Matters of Jones Lumber Company, West Oregon Lumber Company, Clark & Wilson Lumber Company, B. F. Johnson Lumber Company, Portland Lumber Mills, Inman- Poulsen Lumber Company and Eastern & Western Lumber Company and Columbia River District Council of Lumber and Sawmill Workers' Union No. 5, etc., et at., 3 N. L. R. B. 855. JONES LUMBER COMPANY 213 man-Poulsen Lumber Company, B. F. Johnson Lumber Company, Jones Lumber Company, and Portland Lumber Mills, entered into collective bargaining negotiations with Local 3. On September 23, 1938, the Operators Association notified Local 3 that the companies would operate under the terms of a working agree- ment which had been negotiated by the parties as a result of several conferences. The Operators Association stated that the companies would not sign the agreement because the Carpenters Locals had filed petitions with the Board requesting investigations and certifi- cations, and because they feared the signing of an agreement with Local 3 would precipitate retaliatory action on the part of the Ameri- can Federation of Labor. The working agreement was accepted by Local 3 on October 10, 1938. It provided, inter alia: "Notwithstanding any other provisions herein contained, this agreement shall terminate automatically in the event that the National Labor Relations Board certifies that another bargaining agent represents the majority of employees." We find that a question has arisen concerning the representation of employees of each of the companies. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find, as to each of the companies, 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 UNITS The Carpenters Locals claim in each case that the appropriate unit for the purposes of collective bargaining consists of the plant and production employees, including foremen of each of the com- panies, and excluding office and supervisory employees other than foremen. Local 3 contends that, because they include foremen, the units requested by the petitioning locals are not appropriate. The Board, in its previous Decision upon a petition filed on behalf of Local 3,2 found units of plant and production employees including foremen were appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In those cases, be- cause the petitioning union requested the inclusion of the foremen and 2 See footnote 1, supra. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other parties made no, objection and nothing appeared in the record to indicate that foremen should be excluded, the Board fol- lowed its usual practice in such cases and adopted the apparent desires of the parties.8 Local 3 opposes the units requested by the Carpenters Locals in the instant cases on the ground that events occurring since the Decision of October 21, 1937, have demonstrated the inappropriateness of in- cluding foremen within the units. At the hearing Local 3, in support of its contention, introduced copies of the formal papers in proceedings instituted by the Board pursuant to Section 10, which disclosed that upon charges duly filed by Local 3, the Board, by the Regional Director for the Nineteenth Region, issued complaints dated November 26, 1938, against the com- panies. The complaints were substantially the same, alleging in each instance that the respondent company had permitted its foremen and supervisory employees to discourage membership in Local 3. On No- vember 29, 1938, each Company entered into a separate stipulation in which it agreed to the entry by the Board of specified cease and desist orders. Each Company further agreed to the entry of a decree by the appropriate Circuit Court of Appeals enforcing such order of the Board. Contemporaneously with its Decision upon the petitions, the Board is issuing its Decision and Orders in the stipulated cases 4 requiring the companies, inter alia, to cease and desist from interfer- ing with, restraining, or coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. While foremen are eligible for membership in both the Car- penters Locals and Local 3 and have been members of these organi- zations in the past, the working agreement which was approved by Local 3 on October 10, 1938, expressly excluded foremen from the classes of employees affected by its terms. Neither by testimony nor other evidence did any of the parties show that the duties of the employees in question were not of a supervisory nature. The issue was confined to whether these men, who were classified as foremen on the pay rolls of the companies, 8Matter of Campbell Machine Company, David C. Campbell, and George E. Campbell, co-partners, trading as Campbell Machine Company and International Association of Machinists, Local No. 389; Shipwrights, Boatbuilders and Caulkers ; and International Brotherhood of Electrical Workers, Local No. 569, 3 N. L. R . B. 793. & Matter of Jones Lumber Company and Lumber and Sawmill Workers, Local No. 3, International Woodworkers of America, affiliated with the C. I. C. Case No. C-1080, 12 N. L. R. B. 204 ; Matter of B. F. Johnson Lumber Company and Lumber and Saw- mill Workers, Local No. 3, International Woodworkers of America, affiliated with the C. I. C. Case No. C-1077, 12 N. L. R. B. 189; Matter of Portland Lumber Mills Company and Lumber and Sawmill Workers, Local No. 3, International Woodworkers of America, affiliated with the C. I. C. Case No. C-1079, 12 N. L. R. B. 199; and Eastern Western Lumber Company and Lumber and Sawmill Workers, Local No 8, International Woodworkers of America, affiliated with the C . I. C. Case No. C-1070, 12 N. T, R. B. 184. JONES LUMBER COMPANY 215 possessed authority to hire and discharge employees. The evidence conclusively established that they had no such power, but indicated that they frequently made recommendations concerning the hiring and retention of employees. In each case by virtue of the supervisory nature of their duties, fore- men have interests which differentiate them from ordinary employees and bring them within the class of employees normally excluded from bargaining units upon objection by one of two rival labor organizations .5 Accordingly, objection being made by Local 3, a labor organiza- tion party to the proceedings, to the inclusion of supervisory em- ployees in the appropriate units, we will exclude them. We find as to each of the companies in these proceedings that its plant and production employees excluding office employees, foremen, and other supervisory employees constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the Company the full benefit of their rights to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing, pay-roll lists, of the companies for March 15, 1938, a date near the filing of petitions and for November 30, 1938, were submitted for purposes of comparison with whatever evidence of representation might be introduced by the labor organizations. Since the pay rolls of November 30, 1938, are representative and are nearest to the date of the hearings, we will use them for the purposes of comparison. The evidence introduced by the Carpenters Locals in support of their petitions was of varying types and requires separate considera- tion. For the most part, Local 3 contented itself with supporting its motions to dismiss the petitions by introducing evidence intended to rebut the Carpenters Locals' proof. With respect to such proof offered by both unions, there is no evidence in any of the records which would lead us to conclude that the signatures appearing on the cards, petition, or affidavits are not genuine. Jones Lumber Company employs 160 plant and production em- ployees excluding office employees, foremen, and other supervisory employees. Local 2877 introduced 112 cards, most of which were dated in February 1938, and 102 affidavits signed in July 1938. Both the cards and the affidavits were signed by employees within the 6Matter of Charles R. McCormick Lumber Co . and International Woodworkers of America, Local 112, 7 N. L. R. B. 38. Rils Manufacturing Corp. and United Electrical, Radio & Machine Workers of America (C. 1. O.), 11 N. L. R. B. 696. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit on the pay roll of November 30, 1938. The cards were in the form of applications for membership. Each affidavit stated in substance that the deponent was a member of Local 2877 and had designated it as his collective bargaining agent. All the affidavits were signed by employees who had previously signed cards. At the hearing, 16 of the employees whose signatures appeared on cards testified that they wished to be represented by Local 3. There are 95 employees on the pay roll of November 30, 1938, who are within the appropriate unit at the B. F. Johnson Lumber Com- pany plant. Local 2839 introduced 31 membership cards of employees signed during the period from February to December 1938, and peti- tions designating Local 2839 as bargaining agent signed by 60 em- ployees during August 1938. Deducting for duplications between cards and petitions, 57 of the signers were within the appropriate unit on the pay roll of November 30, 1938. In this case Local 3 introduced two cards signed at a later date by two of the afore- mentioned employees who had previously designated Local 2839 as their bargaining agent. The pay roll of Portland Lumber Mills for November 30, 1938, lists 167 plant and production employees, excluding office employees, foremen, and other supervisory employees. Local 2880 relied upon 96 affidavits signed during July and August 1938. The names of 92 employees who signed affidavits appeared on the pay roll. By means of five membership application cards signed by employees, which are introduced into evidence, and the testimony of two employees, Local 3 attempted to show that seven persons who signed affidavits desired Local 3 as their bargaining agent. There were 243 employees within the appropriate unit at the Eastern Western Lumber Company plant on the pay roll of Novem- ber 30, 1938. In presenting its case Local 2881 introduced petitions designating it as collective bargaining representative signed on October 11, 1938, by 140 employees of the Company. It also intro- duced three membership cards signed by employees whose names were not on the petitions. One hundred and forty of the 143 signers were within the appropriate unit on the pay roll of November 30, 1938. For the purpose of rebutting this evidence, Local 3 introduced mem- bership application cards signed by 12 of the same employees after October 11, 1938. However, four of the latter employees again signed membership application cards of Local 2881 while the hear- ing was being held. Three witnesses whose names appeared on the petition of Local 2881 testified that they desired to be represented by neither organization. In each case Local 3 introduced copies of the pleadings in the complaint cases as set forth in Section V above to show that desig- JONES LUMBER COMPANY 217 nations relied upon by the petitioning Carpenters Locals were the result of the unfair labor practices of the companies and moved to dismiss each petition on the ground that Local 3 had been certified by the Board. While we deny the motions to dismiss filed by Local 3, we cannot under the circumstances accord conclusive weight to the designations introduced into evidence by the Carpenters Locals. As we have stated, upon charges filed by Local 3, each of the Companies, after issuance of complaints, agreed to the entry of orders requiring it to cease and desist from discouraging membership in Local 3 and from other unfair labor practices alleged to have occurred before and during periods when the cards, petitions, and affidavits offered by the Carpenters Locals as proof of designation, were signed. Under the circumstances, we cannot give effect to such evidence as probative of employee designation of bargaining representatives free from employer interference, restraint, or coercion.° Accordingly, we find in each case that the question which has arisen concerning representation of employees of the Company can best be resolved by an election by secret ballot. On the basis of the above findings of fact and upon the entire record in the proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. Questions affecting commerce have arisen concerning the repre- sentation of employees of Jones Lumber Company, B. F. Johnson Lumber Company, Portland Lumber Mills, and Eastern Western Lumber Company, all of Portland, Oregon, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All plant and production employees of each of the Companies, excluding office employees, foremen, and other supervisory employees, constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTIONS OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby 6 Matter of The Connor Lumber & Land Co. and International Woodworkers of America, Local No. 125 ( C. 1 0.), 10 N. L. R. B. 831 , decided December 28. 1938 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation directed by the Board to ascertain representatives for the purposes of collective bargaining with Jones Lumber Company, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direction of Election under the direction and supervision of the Regional Director for the Nineteenth Region (Seattle, Washington), acting in these matters as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all plant and production employees employed by Jones Lum- ber Company during the pay-roll period next preceding the date of this Direction of Election, excluding office employees, foremen, and other supervisory employees, to determine whether they desire to be represented by Lumber and Sawmill Workers Union, Local No. 2877, chartered by United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, or by Lumber and Sawmill Workers Union, Local No. 3, International Woodworkers of America, affiliated with the Committee for Indus- trial Organization for the purposes of collective bargaining, or by neither ; and it is further DIRECTED that, as part of the investigation directed by the Board to ascertain representatives for the purposes of collective bargaining with B. F. Johnson Lumber Company, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direction of Election under the direction and supervision of the Regional Director for the Nineteenth Region (Seattle, Washington), acting in these matters as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regu- lations, among all plant and production employees employed by B. F. Johnson Lumber Company during the pay-roll period next pre- ceding the date of this Direction of Election excluding office em- ployees, foremen, and other supervisory employees, to determine whether they desire to be represented by Lumber and Sawmill Workers Union, Local No. 2839, chartered by United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, or by Lumber and Sawmill Workers Union, Local No. 3, International Woodworkers of America, affiliated with the Committee for Industrial Organization for the purposes of col- lective bargaining, or by neither; and it is further DIRECTED that, as part of the investigation directed by the Board to ascertain representatives for the purposes of collective bargain- ing with Portland Lumber Mills, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direc- tion of Election under the direction and supervision of the Regional Director for the Nineteenth Region (Seattle, Washington), acting JONES LUMBER COMPANY 219 in these matters as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all plant and production employees employed by Portland Lumber Mills during the pay-roll period next preceding the date of this Direction of Election excluding office employees, foremen, and other supervisory employees, to determine whether they desire to be represented by Lumber and Sawmill Workers Union, Local No. 2880, chartered by United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, or by Lumber and Sawmill Workers Union, Local No. 3, International Woodworkers of America, affiliated with the Committee for Indus- trial Organization for the purposes of collective bargaining, or by neither; and it is further DUCTED that, as part of the investigation directed by the Board to ascertain representatives for the purposes of collective bargaining with Eastern Western Lumber Company, an election by secret bal- lot shall be conducted within twenty (20) days from the date of this Direction of Election under the direction and supervision of the Regional Director for the Nineteenth Region (Seattle, Wash- ington), acting in these matters as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all plant and production employees em- ployed by Eastern Western Lumber Company during the pay-roll period next preceding the date of this Direction of Election exclud- ing office employees, foremen, and other supervisory employees, to determine whether they desire to be represented by Lumber and Sawmill Workers Union, Local No. 2881, chartered by United Broth- erhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, or by Lumber and Sawmill Workers Union, Local No. 3, International Woodworkers of America, affili- ated with the Committee for Industrial Organization for the pur- poses of collective bargaining, or by neither.