John Yasek

In the Matter of JOHN YASEK and LOCAL 5-63, I. W. A., A FFILIATED WITH THE C. I. O. Case No. R-3050.-Decided November 29, 1941 Jurisdiction : lumbering industry. Investigation and Certification of Representatives : existence of question : re- fusal to grant union recognition until certification by the Board; although parties stipulated at the hearing that the union should be certified on the basis of a comparison of authorization cards with the Company's pay roll, held, that the union should not be certified on the basis of this stipulation, and that an election should be held, where the Company filed a motion to dismiss the petition after the hearing had closed. Unit Appropriate for Collective Bargaining : all fallers, buskers, filers, watch- men, maintenance' men, and the rigging crew, but excluding supervisory em- p_oyees, agreement as to, truck drivers who operate their own trucks included notwithstanding contention of the Company that they are independent contractors and should be excluded, where they work regularly and almost exclusively for the Company, are under its supervision, and are sought to be iepresented by the only labor organization involved; maintenance employees engaged in building roads included, notwithstanding Company's contention that they are temporary employees, where the Company does not indicate how long it expects to retain them in its employ. Mr. G. A. Metzger, of Eugene, Oreg., and Mr. Dow V. Walker, of Newport, Oreg. for the Company. Mr. A. F. Hartung, of Portland, Oreg. for the Union. Mr. William H. Bartley, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July'30, 1941, Local 5-63, International Woodworkers of Amer- ica, affiliated with the C. I. 0., herein called the Union, filed with the, Regional Director for the Nineteenth Region (Seattle, Washington) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of John Yasek, Siletz, Oregon, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the 37 N. L. R. B., No. 20. 156 JOHN YASEK 157 National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 2, 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. On September 17, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on September 25, 1941, at Toledo, Oregon, before Patrick H. Walker, the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany and the Union were represented and participated in the hear- ing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was af- forded all parties. During the course of the hearing, the Trial Examiner made rulings on motions and on objections to the admis- sion 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. On October 10, 1941, the Company and the Union filed briefs which have been duly considered by the Board. On October 11, 1941, the Company filed a motion to dismiss the petition for investigation and certification of representatives. On October 20, 1941, the Union filed an answer, opposing the motion to dismiss the petition. The Board has considered the motion of the Company and the answer filed by the Union and is of the opinion that the motion to dismiss the petition should be, and it hereby is, denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY John Yasek is engaged in the cutting, logging, hauling, and selling of timber near Siletz, Oregon. During 1941, ' the Company sold all logs produced by it, approximately five million board feet , to C. D. Johnson Lumber Corporation in Toledo , Oregon.' The Company admits that its operations affect commerce within the meaning of the Act. i In Matter of C. D Johnson Lumber Corporation, et at. and Oregon and Washington 'Council of Lumber and Sawmill Workers Union, affiliated with the A. F. of L., et at., 19 N. L R. B. 887, the Board found that the C D Johnson Lumber Corporation ships a substantial amount of lumber, which it has manufactured from logs , to points outside the State of Oregon 158 DECISION'S OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED Local 5-63, International, Woodworkers of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In July 1941, the Union requested that the Company recognize it as the exclusive representative of the employees in the unit which it alleges is appropriate. The Company refused unless the Union was certified by the Board. From the record it appears that the Union represents a substantial number of employees in the unit hereinafter found appropriate.2 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 The Company and the Union agree that the appropriate unit should include all fallers, buckers, filers, watchmen, maintenance men, rigging and loading crews, excluding supervisory employees. The Company contends, however, that maintenance workers engaged in the building of roads should be excluded. The Union desires their inclusibn. The Company asserts that these maintenance workers are "temporary" employees. It did not indicate, however, how long it expected to retain them in its employ. We are of the opinion, and find, that maintenance 2 The parties stipulated at the hearing ( 1) that on September 20, 1941, the Company had in its employ 29 men , not including the 5 truckers engaged in the transportation of logs for the Company ; ( 2) that the Union had presented 27 authorization cards dated in 1940 and 1941 and bearing apparently genuine signatures ; ( 3) that the Company and the Union had compared the cards with the pay roll of September 20, 1941, and found that 20 of the cards bore apparently genuine signatures of persons whose names appeared on that pay roll and that the 7 other cards bore dates between September 20 and Sep- tember 25, 1941 ; ( 4) that the Union had also presented authorization cards bearing apparently genuine signatures of 4 of the 5 truckers engaged in the transportation of logs for the Company on September 20, 1941 JOHN YASEK 159 workers engaged in the building of roads should be included in the appropriate unit. The Union desires to include five truckers who work for the Com- pany. The Company contends that the truckers are independent con- tractors and should be excluded from the appropriate unit. These truckers are hired to haul logs from the site of the logging operations near Siletz, Oregon, to Toledo, Oregon, where the logs are sold. Of the five truckers, Edward G. Clark, Carl R. Wessel, and Lawrence Logsdon own and operate their own trucks. They work regularly and almost exclusively for the Company.3 While Dale Edwards and Nel- son E. Darkins also work regularly and almost exclusively for the Company, Edwards owns both the truck he operates and the truck which Darkins operates. Edwards is paid by the Company for the hauling done by both himself and Darkins; he, in turn, pays Darkins. All the truckers are paid on the basis of the footage hauled; they are not reimbursed by the Company for their expenses in operating the trucks. The truckers report for work each day at such time as the Company designates. Their trucks are then loaded by the Company's loading crews, and they are advised as to the place to haul the load. The Company makes social security, workmen's compensation, and unemployment insurance payments for the five truckers although it deducts the amounts it pays from the checks which the truckers receive. The Union, as we have stated, seeks to represent the truckers and, as appears from the stipulation of the parties, four of the five truckers have designated the Union as their representative for the purposes of collective bargaining. The Union has attempted in the past to bargain for the truckers with the Company. It is clear, we believe, that Clark, Wessel, and Logsdon are employees of the Company within the meaning of the Act,4 and we shall include them within the appropriate unit. With respect to Edwards, who owns the truck which Darkins drives and is paid by the Company for the work which Darkins performs, we think the evidence in the record insufficient to enable us to determine whether he is an employee or an independent contractor. Nor can we ascertain on the basis of the record whether or not Darkins is an employee of the Company.5 In conse- quence, we cannot now decide whether Edwards and Darkins should be 3 Occasionally , but only when it does not interfere with their work for the Company, the truckers haul logs for other companies. 4 Cf Matter of Hearst Publications Incorporated , etc and Newspaper Circulators, Wholesale Department and.Miseellaneous Employees Union, No 21666, American Federa- tion of Laboi, 25 N L R. B, No . 74, and cases cited therein. s Although the parties stated that there were five truckers , the record discloses that a sixth trucker, Percy Koehler, has been hauling for the Company since on or about Sep- tember 12 , 1941. Koehler drives a truck which is owned by L. C. Smith. The record indi- cates that the Company pays Smith. Smith does not himself work for the ,Company As with Darkins , we believe the evidence concerning Koehler to be insufficient to enable us to ascertain whether or not he is an employee of the Company. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD included within the appropriate unit. Under the circumstances, we shall exclude them from the appropriate unit at the present time. This exclusion shall not preclude the parties from seeking a determination of the status of these individuals at a later date. We find'that all fallers, buckers, filers, watchmen, maintenance men, the rigging and loading crew, and Edward G. Clark, Carl R. Wessel, and Lawrence Logsdon, excluding supervisory employees and Dale Edwards, Nelson E. Darkins, and Percy Koehler, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to employees of the Company the full benefit of their rights to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the parties stipulated that the Union represented a majority of all employees in the unit which the Board has found appro- priate and that the Union should be certified by the Board on the basis of a comparison of the Union's authorization cards with the Company's pay roll for the period ending September 20, 1941.6 Since, however, the Company filed a motion to dismiss the petition after the hearing had closed, we do not believe that the Union should be certified on the basis of this stipulation. We shall, accordingly, direct that an election be held. Those eligible to vote in the election shall be the employees in the appropriate unit whose names appear on the pay roll of the Company for the period ending September 20, 1941, the period used by the parties in comparing the Union's authorization cards with the Company's pay roll, subject to the limitations and additions set forth '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 John Yasek, Siletz, Oregon, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act: 2. All fallers, buckers, filers, watchmen, maintenance men, the rigging and loading crew, and Edward G. Clark, Carl R. Wessel, and Lawrence Logsdon, excluding supervisory employees and Dale Edwards, Nelson E. Darkins, and Percy Koehler, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section.9 (b) of the Act. See footnote 2, supra. JOHN YESAK 161 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 Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECamn that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with John Yasek, Siletz, Oregon, 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 super- vision 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 fallers, buckers , filers, watchmen , maintenance men, the rigging and loading crew, and Edward G. Clark, Carl R. Wessel, and Lawrence Logsdon, who were employed by the Company during the pay-roll period ending' September 20, 1941, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service of the United States , or temporarily laid off, but excluding supervisory employees and Dale Edwards , Nelson E. Darkins, and Percy Koehler, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Local 5-63, International Woodworkers of America, affiliated with the C . I. 0., for the purposes of collective bargaining.