West Coast Wood Preserving Co.

In the Matter Of WEST COAST WOOD PRESERVING COMPANY and BOOMMEN AND RAFTERS UNION, LOCAL 130, I. W. A. Case No. R-1392.-Decided September 1, 1939 Wood Preserving Industry-Investigation of Representatives : controversy concerning representation of employees : controversy concerning appropriate unit ; rival organizations ; petition for, dismissed, where no question concerning representation has arisen in a unit which is appropriate for the purposes of collective bargaining-Unit Appropriate for Collective Bargaining: unit sought in petition composed of boommen and rafters , found not to be appropriate in absence of history of separate bargaining where boommen and rafters have been represented for more than 2 years by industrial union having exclusive collective bargaining contracts with employer covering plant-wide unit. Mr. Thomas P. Graham, Jr., for the Board. Mr. W. G. M,cLaren, of Seattle, Wash., for the Company. Mr. L. W. Garrison, of Seattle, Wash., for the Boommen. Mr. L. Presley Gill, of Seattle, Wash., for the Sawmill Union. Mr. Robert F. Koretz, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On February 11, 1939, Boommen and Rafters Union, Local 130, I. W. A., herein called the Boommen, filed with the Regional.Direc- tor for the Nineteenth Region (Seattle, Washington), a petition alleging that a question affecting commerce had arisen concerning the representation of employees of West Coast Wood Preserving Com- pany, herein called the Company, at its Eagle Harbor operation, known as the Pacific Creosoting Company," Creosote, Washington, 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 May 22, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National i At the hearing the Trial Examiner granted a motion made on behalf of the Boommen to amend the petition to add "at the Eagle Harbor operation , known as the Pacific Creosoting Company" to the name of the employer. 15 N. L. R. B., No. 1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 22, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Boom- men, and iipoii Lumber and Sawmill Workers Union, Local #2575, herein called the Sawmill Union, a labor organization claiming to represent employees directly affected by the investigation. Pursuant. to the notice, a hearing was held on May 29, 1939, at Seattle, Washington, before Thomas H. Kennedy, the Trial Exam- iner duly designated by the Board. The Board, the Company, and the Sawmill Union were represented by counsel and the Boommen by a duly authorized representative; all parties participated in the hearing. Full opportunity to be heard, to examine and to cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on .objections to the admission of evidence. Thereafter, the Boommen filed a.brief which has been considered by the Board. The Board has reviewed the rul- ings,of'the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY West Coast Wood Preserving Company, a Washington corpora- tion having its principal office in Seattle, Washington, is engaged in the business of preserving and selling wood and timber products. The Company leases and operates the physical properties of the Pacific Creosoting Company at Creosote, Washington, hereinafter called the Eagle Harbor operation, and the Colman Creosote Works at Seattle, Washington. This proceeding concerns only the Eagle Harbor operation. The principal raw materials used by the Company are timber and preservatives, the latter including coal and coal tar products, creosote, and zinc chloride. In 1938 an estimated $100,000 to $150,000 worth of timber, produced almost exclusively in Washington, was purchased by the Company. In the same year the Company purchased approx- imately $250,000 worth of preservatives, practically all of which were shipped to the Company from points outside the State. The prin- cipal finished products of the Company are creosote piling and lum- ber used in bridges and docks, creosote wood pipe used in irrigation and water systems, and railroad ties. In 1938 the Company's sales WEST COAST WOOD PRESERVING COMPANY 3 were substantially in excess of $500,000, approximately 90 per cent of which were made outside the State of Washington. While these figures include both the Eagle Harbor and Seattle operations, the Company employs approximately the same number of employees at each. The Company's pay roll for May 1 to, May 15, 1939, discloses that 96 men, excluding office workers, were then employed at the Eagle Harbor operation. U. THE ORGANIZATIONS INVOLVED Boommen and Rafters Union, Local 130, chartered by the Inter- national Woodworkers of America, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to mem- bership boommen, sorters, saw-float men, and men slinging on the water, together hereinafter called boommen,2 and rafters employed by the Company at the Eagle Harbor operation. Its membership is not confined to employees of the Company, but includes employees of several other neighboring lumber companies. Lumber and Sawmill Workers Union, Local #2575, chartered by the United Brotherhood of Carpenters and Joiners of America, is a labor organization affiliated with the American Federation of Labor. It admits to membership all employees of the Company at its Eagle Harbor operation, except office employees. Its membership also includes employees of several other neighboring lumber companies. III. THE APPROPRIATE UNIT The Company normally employs at its Eagle Harbor operation about 96 employees, excluding office employees, about 11 of whom are classified as boommen. The Boommen contend that a unit com- posed of boommen and rafters is appropriate for the purpose of col- lective bargaining and assert that nine of the Company's employees at its Eagle Harbor operation are properly included in such unit. The Sawmill Union claims that all of the employees of the. Company at its Eagle Harbor operation, excluding office employees, constitute an appropriate bargaining unit. At the hearing it was stipulated by the Company, the Boommen, and the Sawmill Union that all of the employees of the Company, except boommen and rafters, have designated the Sawmill Union as their bargaining agency. The employees at the Eagle Harbor operation were first organized early in 1937 by the Sawmill Union and all of them then became, and have at all times since remained, members of the Sawmill Union. On or about March 1, 1937, the Sawmill Union and the Company 2 The term " boommen" embraces within its occupational scope sorters, saw-float men, and men slinging on the water ; these designations are merely descriptive of particular activities performed by boommen. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entered into a contract concerning hours, wages, and other conditions of employment, to remain in effect for one year. Contracts of the same duration, covering these matters, were also entered into on or about March 1, 1938, and March 1, 1939. The 1939 contract was executed after the petition in this proceeding was filed and on the condition that it was subject to the decision of the Board herein. By the terms of this contract, "the Company agrees to recognize the Union as the sole collective bargaining agency in the aforesaid plant, and agrees to deal with representatives of the Union for collective bargaining purposes for all employees, except for the office force." The contract is to continue in effect until March 1, 1940, unless re- vised, adjusted, or terminated on 30 clays' notice by either party. No notice of termination having yet been given, the contract was still in effect on the date of the hearing. Although the 1937 and 1938 contracts were not introduced in evidence, there is uncontradicted testimony that these contracts were substantially the same as the 1939 contract. Moreover, the Sawmill Union has represented all the on- ployees, excluding office workers, since March 1937, including booln- men and rafters, both in the negotiation of the three contracts and in the handling of employee grievances. It thus appears that since March 1937, when all the Company's employees designated the Saw- mill Union as their bargaining representative, this union has bar- gained with the Company on the basis of a plant-wide unit defined in written contracts. In July 1938 the Boommen obtained a substantial number of signed membership applications from boommen and rafters employed by the Company at its Eagle Harbor operation. After demanding an agreement with the Company covering all employees thus classified, the Boommen filed the petition in the instant proceeding. In support of its contention regarding the appropriate unit, the Boommen point to the fact that boommen and rafters perform practically all of their work upon the water, and that therefore their services require a certain degree of skill and experience not possessed by other em- ployees of the Company and subject them to hazards and working conditions applicable to their employment alone. Moreover, the Boommen assert that the long history of collective bargaining in the lumber industry by organizations of boommen and rafters, and par- ticularly, the successful negotiation of closed-shop collective bar- gaining contracts by the boommen with other employers in the S This contract further provides : "The Company agrees to hire only members of the Lumber & Sawmill Workers Union when available. Local help must be absorbed in preference to others. If any temporary help is hired, the shop committee or steward will issue a working card which must be renewed after thirty (30) days, unless the holder becomes a member of the Union in the meantime." WEST COAST WOOD PRESERVING COMPANY vicinity,4 serve to indicate that such a unit would likewise prove- feasible in the . operation here involved. The fact that 'it would be feasible to have the boonmlen and rafters, constituted as a separate bargaining unit does not justify the Board in breaking up an appropriate bargaining unit established and main- tained by mutual agreement of the employees and the employer- through the process of collective bargaining. In the absence of such an agreement, any one of a dozen or more units might be feasible and, appropriate. The contention that the boommen and rafters require a, certain degree of skill and experience not possessed by the other em- ployees of the Company cannot justify splitting the appropriate unit,. for among the total of 96 employees , there are no doubt a number of occupations requiring a degree of skill and experience not possessed: by all the employees who comprise the bargaining unit. We have here a, valid contract, the third such contract, duly nego- tiated under the provisions of the Act by authorized representatives, of the employees establishing an appropriate unit for collective bar- gaining. Boommen and rafters, like the other employees, are in- chided as a portion of this appropriate unit. As I stated in Matter of American Can Commpan y, 5 I am of the opinion that we do not. have the authority to set aside an appropriate unit thus established by negotiation between the legally authorized representative of the employees and their employers and maintained in contracts between: them. The boommen and rafters being a portion of the established' appropriate unit, we are no more free to split them off and certify a. separate representative for them, than we would be to split rafters, from boommen where they are covered by a contract in a single unit. In the American Can Company case it was an A. F. of L. union, that wanted an existing bargaining unit split . In the present case it is a C. I. 0. union that wants to split a group away from the estab- lished unit , and the A. F. of L. union contends that the plant-wide- unit established by contract may not be broken . The rule works both,. ways to protect contractual bargaining units regardless of the affilia - tions of the groups that would disregard the contracts . Whether it is the A. F. of L. or the C. I. 0. that asks the Board to split up' existing appropriate units which have been established and main- tained by collective bargaining, the Board's answer must be that the law does not authorize it to set aside the provisions of contracts ins which the appropriate bargaining units have been agreed upon. We find that the bargaining unit sought by the Boommen is not appropriate for the purposes of collective bargaining. 4 Although the Boommen introduced evidence of contracts with other companies engaged- in the business of wood preserving, the great majority of the contracts which they have- negotiated are with companies operating commercial booms. Metier of American Can Company and Engineers Local Fo. 30, et al., 13 N. L. R. B,. 1252. 199549-39-Vol. 15--2 fg DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE QUESTION CONCERNING REPRESENTATION Since, as stated in Section III, we are unable to find an appropriate unit within the scope of that alleged in the petition filed in this case, we find that no question has been raised concerning the representation ,of employees of the Company in an appropriate bargaining unit. Upon the basis of the above findings of fact and upon the entire -record in the case, the Board makes the following : CONCLUSION OF LAW No question concerning the representation of employees of West Coast Wood Preserving Company at its Eagle Harbor operation, known as the Pacific Creosoting Company, Creosote, Washington, in a unit which is appropriate for the purposes of collective bargaining has arisen, within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion ,of law, the National Labor Relations Board hereby dismisses the petition for investigation and certification filed by Boommen and Rafters Union, Local 130, I. W. A. MR. EDWIN S. SMITH, concurring : For the reasons stated in my concurring opinion in Matter of American Can Company," I concur in the decision in this case but do not agree that certification of boommen and rafters as a separate bargaining unit would be beyond the "authority" of the Board or would involve any issues as to setting aside contractual obligations. CHAIRMAN MADDEN, dissenting : I think that we should not dismiss the petition filed by the Boom- men. Despite a history of past bargaining which has culminated in the execution by the Company and the Sawmill Union of three suc- cessive exclusive bargaining contracts on the basis of the plant unit, I think that the Board should continue, as in the past, to allow the desires of the employees in a recognized subdivision of the industry to determine their inclusion or exclusion from an industrial bargain- ing unit.' The services performed by the employees for whom the Boommen seek recognition require peculiar skill and experience and -subject these employees to hazards and working conditions which O Matter of American Can Company and Engineers Local No. 30, et al., 13 N. L. R. B. 1252. 7 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3, ,etc., 3 N. L. R. B. 294. WEST COAST WOOD PRESERVING COMPANY 7 differentiate their employment from that of other employees in the unit which the majority has found appropriate. This differentiation is manifested and accentuated by a long history of self-organization by boommen and rafters which antedated all other organizational efforts made by any group of lumber workers in the Northwest. Moreover, recognition of this status has been accorded to the Boommen by employers who are engaged in the same type of business as the Company and with whom the Boommen have executed closed- shop collective bargaining agreements. In view of this occupational differentiation and the evidence of successful bargaining by the Boominen in the industry on the basis of a separate unit, it is clear that boommen and rafters could bargain satisfactorily as a separate unit or as part of the larger unit for which collective bargaining has been conducted in the past. Therefore, I believe that the desires of the employees themselves should control .8 " See my dissenting opinion in Matter of American Can Company and Engineers Local No. 90, at at., 13 N. L. R. B. 1252.