Pelican Bay Lumber Co.

In the Matter of PELICAN BAY LUMBER COMPANY, A CORPORATION and INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL UNION No. 6-12, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-17'34.-Decided May 7, 1940 Lumber Industry-Investigation of Representatives: controversy concerning representation of its employees : rival organizations ; refusal of employer to recognize either organization as exclusive representative until determination by' Board-Unit Appropriate for Collective Bargaining- all production and main- tenance employees at logging camp exclusive of watchmen, clerical and super- visory employees; request of employer for unit consisting of both logging-camp and lumber-mill employees denied-Election Ordered: request of employer that rival labor organization be placed on ballot rejected because that organization stated at hearing it did not desire to participate ; eligibility to vote to be deter- mined by pay roll next preceding Direction of Election ; earlier pay roll sug- gested by parties rejected as too remote. Mr. Patrick H. Walker, for the Board. Mr. R. C. Groesbeck, of Klamath Falls, Oreg., and Mr. Clarence Coonan, of San Francisco, Calif., for the Company. Mr. J. C. O'Neill, of Klamath Falls, Oreg., for the I. W. A. Mr. N. Barr Miller, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 21, 1939, International Woodworkers of America, Local Union No. 6-12, affiliated with the Congress of Industrial Or- ganizations, herein called the I. W. A., filed with the Regional Direc- tor for the Nineteenth Region (Seattle, Washington) a petition alleg- ing that a question affecting commerce had arisen concerning the representation of employees of the Pelican Bay Lumber Company, Pelican City, Oregon, herein called the Company, 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 January 22, 1940, 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 Labor Relations 23 N. L. R. B., No. 55. 650 PELICAN BAY LUMBER COMPANY 651 Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 25, 1940, the Regional Director issued a notice of hearing, copies of which were served upon the Company, upon the I. W. A., and upon Lumber and Sawmill Workers Local 2520, United Brotherhood of Carpenters and Joiners, A. F. of L., herein called the Brotherhood. On February 6, 1940, the Regional Director issued an order changing the place of hearing, copies of which were served upon the above-named parties. The Company filed an answer to the petition, which answer was dated February 3, 1940. Pursuant to the notice, a hearing was held on February 8, 1940, at Klamath Falls, Oregon, before Patrick H. McNally, the Trial Examiner duly designated by the Board. At the hearing the Com- pany and the I. W. A. were represented by counsel. The Brother- hood did not enter an appearance. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all the parties. During the course of the hearing the Trial Examiner made rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Company filed a brief which has been given due consideration by the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 1 Pelican Bay Lumber Company is a corporation organized and operating under the laws of the State. of Oregon, having its princi- pal place of business at Klamath Falls, Oregon. At Klamath Falls 2 the Company operates a sawmill, and planing mill and box factory for the manufacture of box-shook, lumber, and lumber byproducts, which it sells and distributes. It manufactures annually products having an approximate value of $1,500,000, 95 per cent of which products are sold and shipped outside the State of Oregon. The Company purchases annually in the course of its op- erations raw products-stumpage, oil, and gasoline-of the approxi- mate value of $270,000. Of the total materials purchased by the The . facts stated herein are derived in part from a stipulation entered = into by' all the parties. 4 The manufacturing plant is located approximately a mile and a half from Klamath Falls , in an area which the petition designates as Pelican Bay, Oregon ,652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company 11 per cent are purchased, shipped, and transported from and through States other than the State of Oregon. The Company operates a logging camp in Klamath County, on the Klamath Indian Reservation, Oregon, approximately 60 to 70 miles from its plant at Klamath Falls. From this camp are obtained be- tween 90 and 95 per cent of the logs used by the Company in its manufacturing operations. The remaining logs used in the manu- facture of its products are cut by independent contractors from timberland owned by the Company.3 At the time of the hearing 265 employees were working at the Company's manufacturing plant at Klamath Falls, and 73 employees at the camp. In November 1939, a month during which the plant and the logging camp were operating at the normal production level, there were 420 employees on the plant pay roll and 169 on the camp pay roll. The Board and the Company stipulated that the Company is en- gaged in commerce within the meaning of Section 2 (6) of the Act. H. THE ORGANIZATION INVOLVED International Woodworkers of America, Local Union No. 6-12, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership all persons engaged in the woodworking and lumber byproducts industries. Employees of the ,Company, both at the logging camp and at the manufacturing plant, are eligible for membership. III. THE QUESTION' CONCERNING REPRESENTATION Three representatives of the I. W. A. called upon the president of the Company on November 16 or 17, 1939, and stated that the I. W. A. represented a majority of the employees in the Company's logging camp. Afterward, sometime in December 1939, two Brotherhood rep- resentatives called upon officials of the Company, and during the conference , stated that they represented- a substantial-number-,of the employees at the camp, and also discussed the representation of the employees working at the manufacturing plant. On December 11, 1939, the I. W. A. by letter requested that officials of the Company meet with a committee of the I. W. A. on the following Saturday. The Company by letter on December 14, 1939, refused the request on the ground that the procedure of the Act had already been invoked by the I. W. A. and that the matter should be determined by that 8 These independent contractors supply their own men and equipment, and are paid a per-1,000 rate for the logs cut The contracts under which they work are known in the 'logging industry as "gypo" contracts. PELICAN BAY LUMBER COMPANY 653 proceeding. The President of the Company testified that neither the I. W. A. nor the Brotherhood had made a direct demand for recog- nition as the exclusive bargaining agent of the employees, but that he inferred from the circumstances that each organization was demanding recognition. The company stated at the hearing that it did not know which organization represented a majority of the employees in any of its departments and would not recognize either of them without an election. 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 In its petition the I. W. A. requests a separate bargaining unit composed of all production and maintenance employees at the Com- pany's logging camp, exclusive of supervisory and clerical employees. The Company contends that a separate bargaining unit among em- ployees of the logging camp is not appropriate and that a proper unit for collective bargaining purposes should be composed of all production and maintenance employees of the Company both at the camp and the manufacturing plant. The record discloses that the camp and the plant are 60 to 70 miles apart. Travel and communication between the two places are diffi- cult, especially because the camp is some 40 miles from the nearest main traveled highway. The hiring of camp employees is done at the camp and the camp superintendent handles camp grievances. It is also established by the record that the camp and the manufac- turing plant are operated under a unified system of business manage- ment and that their operations are to a large degree interdependent. Employees of the logging camp and the manufacturing plant are both eligible to membership in the I. W. A., and the local involved in this proceeding has members among both groups of the Company's employees. However, the constitution of the I. W. A. provides for the establishment of sublocals in any locality if desired by a majority 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the members in the locality. Its representatives stated at the hear- ing that the I. W. A. would set up such a sublocal at the Company's logging camp if the Board should find that the camp employees con- stitute an appropriate unit. The testimony of I. W. A. representa- tives also reveals that in the woodworking and lumber industry in the same area there are instances in which the I. W. A. bargains separately on behalf of logging-camp employees and manufacturing- plant employees of the same employer. The Company involved in this proceeding has never had contracts with any labor organization and so far as the record indicates there has been no history of collective bargaining between the Company and its employees. In Matter of Buckley Hemlock Mills, Inc., Buckley Logging Com- pany and International Woodworkers of America, Local No. 52,4 where one of two rival unions claimed jurisdiction over employees of the mill only and a majority of the mill workers and a majority of the logging-camp employees appeared to have chosen rival labor organizations as their representatives for collective bargaining pur- poses, we established separate units at mill and camp.5 In the case now before us, since there is no history of collective bargaining to the contrary and since other factors are equally persuasive of a separate camp unit or an employer-wide unit, the desires of the single labor organization appearing in this proceeding will be given effect. We find that a separate unit of logging camp employees is appropriate." During the hearing the Company and the I. W. A. stipulated that if the Board should establish a unit limited to the logging camp such unit should be composed of all production and maintenance employees exclusive of supervisory and clerical employees, watchmen, and one commissary employee, J. C. Leonard. Supervisory Employees: The I. W. A. and the Company agree that John H. Johnston, camp superintendent, M. D. Hutchens, time- keeper and clerical employee, and G. E. Campbell, chief cook in charge of cook house and kitchen help, should be excluded from the unit because they are supervisory employees. As noted above, they also stipulated that J. C. Leonard, a commissary employee, should be excluded. 4 15 N L. R. B 498. "Cf. 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; Matter of Snoqualmie Falls Lumber Company and International Woodworkers of America , Local No. 106, 10 N. L R B 398; Matter of Donovan Lumber Company and International Wood- workers of America, Local No. 2, 10 N L. R B. 634 6 See Matter of The Connor Lumber & Land Co. and International Woodworkers of America, Local 125 (C. I. 0 ), 11 N. L. It. B 776. PELICAN BAY LUMBER COMPANY 655 The 'two parties disagree with respect to the classification of P. C. Hunter and A. A. Shadley. Hunter is a "bull buck" in charge of a crew of "fillers"; Shadley has charge of the swamping crew. The two are described as working foremen who receive and carry out the instructions of Johnston, the camp superintendent. The testi- mony, however, indicates that they do little or none of the work Of falling and swamping, that they have the right to discharge men in their crews, and that they advise Superintendent Johnston in regard to the hiring of men. Upon the basis of these facts, we are of the opinion that Hunter and Shadley are supervisory employees, and as such they will be excluded. from the appropriate .unit. The I. W. A. and the Company also disagree as to the classifica- tion of Charlie H. Johnston, who is a brother of the camp superin- tendent. Charlie H. Johnston is a shovelman, working "as more or less of a foreman over the shovel." At various times he has taken the place of foremen in the camp and admittedly acts as an adviser to his brother, the camp superintendent. Under these circumstances we find Charlie H. Johnston is a supervisory employee, and as such he will be excluded from the appropriate unit. We find that all production and maintenance employees at the Company's logging camp, exclusive of watchmen, clerical employees, and supervisory employees including John H. Johnston, M. D. Hutchens, G. E. Campbell, J. C. Leonard, P. C. Hunter, A. A. Shad- ley, and Charlie H. Johnston, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company 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 The Company stated at the hearing that it desired an election to determine the representatives of the majority. The I. W. A. asked either for certification on the record or an election. In support of its claim the I. W. A. introduced, without further authentication, a membership list of 86 persons, alleged to have been employees at the logging camp in November 1939. Under these circumstances. we find that the question concerning representation which has arisen can ,best' be determined by an election by secret ballot, and we shall so direct. The Company has requested that the ballot provide for a choice between the I. W. A. or the Brotherhood, or neither. The Brother- hood was served with notice of the proceedings, but did not enter a general appearance and its representative stated at the hearing that it did not desire to participate in the hearing or in an election. 656 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD In view of these circumstances the request of the Company that the Brotherhood be placed on the ballot is denied.? The pay roll of the logging camp for November `1939 was intro- duced in evidence as the pay roll of a month during which opera- tions at the camp were approximately normal. At the time of the hearing in February operations at the camp were considerably below normal. Company officials stated that it was expected that normal production would be resumed in April and would be increased there- after as the season advances. The Company makes a practice of hiring the same employees from season to season and approximately 65 per cent of its employees are permanent residents of the locality; the remainder are transient workers. We are of the opinion that because of the lapse of time the November 1939 pay roll should not be used for purposes of the election and that a current pay roll for a month during which operations are at a normal level should be adopted to determine the eligibility of employees to vote. The I. W. A. asserted that the most desirable time for an election is the latter part of May or the first part of June. The Company desires that the election be held in April, since it is expected that the opera- tions of the logging camp will be approximately normal at that time. It is not disputed that April is usually a normal production month at the camp; nor is it denied that the pay roll for the month of April is usually a representative one. Under all the circumstances, we shall direct that the election be conducted by the Regional Director as early as possible but not later than thirty (30) days from the date of the Direction of Election and that the eligibility of employees to vote shall be determined by the pay roll of the Company for the month of April 1940. 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. International Woodworkers of America, Local No. 6-12, affili- ated with the Congress of Industrial Organizations, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. A question affecting commerce has arisen concerning the repre- sentation of employees of Pelican Bay. Lumber Company, Klamath Falls, Oregon, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 3'. All production and maintenance employees at the Company's logging camp, exclusive of watchmen, clerical employees, and super- ICf Matter of Atolia Mining Co and Federal Labor Union, Local 21,1164, A. F. of L, 7 N. L R B ()80; M'ctter of Coos Bali lumber Company and Lumber and Sawmill Work- ers Union Local No P573,16 N. L. R. B. 476. PELICAN BAY LUMBER COMPANY 657 visory employees including John H. Johnston, M. D. Hutchens, G. E. Campbell, J. C. Leonard, P. C. Hunter, A. A. Shadley, and Charlie H. Johnston, constitute a unit appropriate -for the purposes of collec- tive bargaining, within the meaning of Section 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 Relations Act, 49 Stat. 449, and pursuant -to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as a part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Peli- can Bay Lumber. Company, an election ^by,' secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Nineteenth Region, acting in this matter as the agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regu- lations, among all production and maintenance employees at the Com- pany's logging camp, whose names appear upon the pay roll of the Company for the month of April 1940, including the employees whose names do not_ appear on such pay roll .because they were ill or on vacation or temporarily laid off, but excluding watchmen, clerical employees, and supervisory employees including John H. Johnston, M. D. Hutchens, G. E. Campbell, J. C. Leonard, P. C. Hunter, A. A. Shadley, and Charlie H. Johnston, and excluding also all employees who between such pay-roll date and the date of the election have quit or been discharged for cause, to determine whether or not they desire to be represented by International Woodworkers of America, Local Union No. 6-12, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining.