Jalmer Berg

In the Matter Of JALMER BERG, AN INDIVIDUAL and LUMBER AND SAWMILL WORKERS UNION, LOCAL #2667 Case No. R4813.-Decided September 12, 1941 Jurisdiction : logging industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to either of rival organizations; election necessary. Unit Appropriate for Collective Bargaining : all employees engaged in cutting, yarding, and loading, including hooktenders and regular truck drivers, but excluding supervisors and clerical employees, and operators of trucks for hire. Definitions : operators of trucks for hire utilized by the Company held not to be employees of the Company. Mr. Harold Lant, of Bellingham, Wash., for Berg. Mr. L. Presley Gill, of. Seattle, Wash., for the Lumber Workers. Mr. Perry R. Gershon, of Seattle, Wash., for the I. W. A. . Mr. Robert S. Fousek, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 24, 1941, Lumber and Sawmill Workers Union, Local #2667, herein called the Lumber Workers, filed with the Regional -Director for the Nineteenth Region (Seattle, Washington) a peti- tion alleging that a question affecting commerce had arisen concern- ing the representation of employees of Jalmer Berg, an individual, Bellingham, Washington, herein, called Berg, and requesting an in- vestigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 21, 1941, 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 Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 35 N. L. R. B., No. 74. 357 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 23, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon Berg, the Lumber Workers, and International Woodworkers of America, Local No. 2-46, C. I. 0., herein called the I. W. A., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on July 29, 1941, at Bellingham, Washington, before Charles M. Brooks, the Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by counsel or other representatives, and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon 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. The Board has reviewed the rulings 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 BERG Jalmer Berg is an individual engaged in the cutting, removal, and sale of timber near Glacier, Washington. During 1941, up to the time of the hearing, Berg removed approximately 1,500,000 board feet of timber per month. Of this amount, Berg sold approximately 1,000,000 board feet per month to Puget Sound Pulp and Timber Company, located within the State of Washington. During this period Berg furnished 8 per cent of the lumber used by Puget Sound Pulp and Timber Company and Puget Sound Pulp and Timber Company sold and shipped to points outside the State of Washington over 90 per cent of the, finished -products produced from timber sup- plied by Berg and other suppliers. Berg sold the remaining 500,000 board feet of timber per month to. unnamed companies who ship a substantial portion of their products to points outside the State of Washington. II. THE ORGANIZATIONS INVOLVED Lumber and Sawmill Workers Union, Local #2667, is a labor organization affiliated with the American Federation of Labor, admit- ting to membership Berg's employees. International Woodworkers of America, Local No. 2-46, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership Berg's employees. JALMER BERG III. THE QUESTION CONCERNING REPRESENTATION 359 Prior to the filing of the petition herein, the Lumber Workers and the I. W. A. each applied to Berg for recognition as the exclusive bargaining representative of his employees. Berg refused to bargain with either upon the ground that he did not know which union represented a majority of his employees. A statement of a Field Examiner of the Board, introduced in evidence at the hearing, discloses that the Lumber Workers repre- sents a substantial number of employees in the unit hereinafter found to be appropriate for the purposes of collective bargaining., We find that a question has arisen 'concerning the representation of employees of Berg. 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 Berg 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 At the hearing the parties agreed, except as to so-called operators of trucks for hire, that all employees of Berg engaged in cutting, yarding, and loading, including hooktenders and regular truck drivers, and excluding supervisors and office employees, constitute a unit appropriate for the purposes of collective bargaining. In the conduct of his business, Berg employs two regular truck drivers to haul timber from the place of his logging operation to his customers. In addition, Berg utilizes' the- services of eight 'op- erators of trucks for hire. The Lumber Workers and Berg claim that' the eight operators are not employees of Berg and that they should be excluded from the appropriate unit. The I. W. A. would include them. 'The parties stipulated that there are approximately 40 employees in this unit. The Field Examiner reported in substance as follows : The Lumber workers submitted 25 appli- cation cards. Of these, 22 bore signatures of persons on Berg's pay roll for May 22, 1941. Two of the cards bore 1939 dates, 3 were dated in 1940 , and 20 bore 1941 dates. The International submitted 13 undated application cards. Of these, 2 bore signatures of persons listed on the pay roll of May 22, 1941 . The business agent of the International stated that 3 other employees are members of the International. One employee Is apparently a member in good standing of both unions. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Four of the eight operators of trucks for hire own the trucks they drive. The remaining four drive trucks owned by a firm known as Chandler Brothers. Two of the four trucks owned by Chandler Brothers are driven by the brothers who make up the, firm, and two are driven by truckers selected and paid by Chandler Brothers. Berg compensates the owners of the trucks for the use of their trucks, including the services of the operators, on the basis of a load rate, the minimum of which is established by law of the State of Washington. In general the fixed rate which Berg pays the truck owners has tended to approximate the minimum so established. Berg has no control over the methods of operation of any of the operators driving trucks for hire other than by refusing to continue his relationship with the owners of the trucks. The operators of trucks for hire can determine for themselves their hours of work, the number and size of loads they will haul, and all other details concerning methods of operation. Occasionally, when convenient for them, these operators haul logs for other timber companies. Berg carries liability insurance in connection with the trucks driven by the two regular truck drivers on his pay roll and he pays Work- men's Compensation and Social Security payments for these two drivers. While Berg makes advances for Workmen's Compensation and Social Security payments to the four operators who own their own trucks, such advances are deducted from the compensation other- wise due them.2 Berg makes no advances or payments on account of Workmen's Compensation or Social Security with respect to the operators of trucks- owned by Chandler Brothers. We find that operators of trucks for hire are not employees of Berg within the meaning of Section 2 (3) of the Act.3 We will exclude them from the unit. We find that all employees of Berg engaged in cutting, yarding, and loading, kncluding hooktenders, and regular truck drivers, but excluding supervisors and office employees, and operators of trucks for hire, constitute a unit appropriate for the purposes of collective bargaining. We further find that such unit will insure to employees of Berg the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 2 Berg makes the advances by making payments directly to the State of Washington and then subtracts such payments from the compensation which would be otherwise due the truck owners. s See Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Workers of America, Locals 259 and 374, 18 N. L. R. B. 837 ; Matter of Houston Chronical Publishing Company and Houston Newsboys Union Local 456, 28 N. L. R. B. 1043; Matter of Twentieth Century-Few Film Corp . and Screen Publicists Guild, 32 N. L. R. B. 717; Matter of Paramount Pictures, Inc. and Screen Readers Guild of New York, 33 N. L. It. B. 447; Cf. Matter of Stockholders Publishing Company, Inc, and Los Angeles Newsboys Local Industrial Union No. 75, C. I. 0., 28 N. L. R. B 1006. JALMER BERG VI. THE DETERMINATION OF REPRESENTATIVES 361 We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. At the hearing the parties expressed no opinion with respect to the date to be used in fixing eligibility for voting purposes. In accordance with our usual practice, we shall direct that an election by secret ballot be held among those employees in the appropriate unit who were employed during the pay-roll period immediately preceding the Direction of Election herein, subject to such limitations and addi- tions as are set forth hereinafter in the Direction. 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 of Jalmer Berg, Bellingham, Washington, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of Jalmer Berg, engaged in cutting, yarding and loading, including hooktenders, and regular truck drivers, but ex- cluding supervisors and office employees, and operators of trucks for hire, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National La- bor Relations 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 Rela- tions Act, 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 part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Jalmer Berg, Bellingham, Washington, 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 agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all employees of Jalmer Berg, Belling- ham, Washington, engaged in cutting, yarding, and loading, whose names appear on the pay roll of Jalmer Berg for the pay-roll period 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD next preceding the date of this Direction of Election, including hook- tenders, and regular truck drivers, and employees who did not work during said pay-roll period because they were ill, on vacation or in the active military service or training of the United States, or tem- porarily laid off, but excluding supervisors and office employees, operators of trucks for hire, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Lumber and Sawmill Workers Union, Local #2667, affiliated with the American Federation of Labor, or by International Woodworkers of America, Local No. 2 46, affiliated with the Con- gress of Industrial Organizations, for the purposes of collective bar- gaining, or by neither.