Deep River Timber Co.

In the Matter of DEEP RIVER TIMBER COMPANY and LOCAL UNION #5-11, INTERNATIONAL WOODWORKERS OF AMERICA Case No. R-30-59.-Decided November 09, 1941 Jurisdiction : lumbering industry. Investigation and Certification of Representatives : existence of question: re- fusal of Company to- accord union recognition ; conflicting claims of rival representatives ; contract entered into with knowledge of claim to representa- tion by rival union, no bar to ; prior certification of rival union by the Board more than two years before, no bar to ; election necessary. Unit Appropriate for Collective Bargaining : all employees of the Company, ex- cluding the superintendent, woods foremen, office employees, 'and sub-foremen, the pile driver, and bridge foremen. Definitions : Company which has agreements with two contractors, respectively, to prepare roadways and transport logs by truck, held to be the employer of the workmen employed on these jobs, in view of the interrelation of all the operations carried on at the Company's logging camp, the fact that the Company has contracted to assume responsibility for the wages and work- ing conditions of persons employed on these jobs, and also in view of the unit found appropriate in a prior certification and the collective bargaining history since that time. Mr.' N. R. Cowden, of Deep River, Wash., for the Company. Mr. L. Presley Gill, of Seattle, Wash., and Mr. Roy Kizer, of Astoria, Oreg., for the L. & S. W. Mr. A. F. Hartung, of Portland, Oreg., for the I. W. A. Mr. Ralph S. Clifford, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 2, 1941, Local Union #5-11, International Woodworkers of America, herein called the I. W. A., 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 Deep River Timber Company, Deep River, Washington, herein called the Company, and requesting an - investigation and certification of representatives pursuant to 37 N. L. R. B , No. 33. 210 DEEP RIVER TIMBER COMPANY 211 Section 9 (c) of the National Labor Relations Act, 49 Stat: 449, herein called the Act. On August 22, 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 Rela- tions 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 4, 1941, the Regional Director issued a notice of hearing, and on September 12, 1941, an order postponing hearing, copies of both of which were duly served upon the Company, Bryce Caldwell, General Hauling Company, Inc.,' the I. W. A., and upon Lumber and Sawmill Workers Union, Local No. 2615, herein called the L. & S. W., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on September 18, 1941, at Naselle, Washington, before Pat- rick H. Walker, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the I. W. A. and the L. & S. W. were represented by counsel or other representatives and partici- pated in the hearing. 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 hearing the Trial Examiner made several rulings on motions and on objec- tions 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 I. THE BUSINESS OF THE COMPANY Deep River Timber Company is engaged in timber logging opera- tions at Deep River, Washington. From January 1 to August 31, 1941, the Company produced approximately 35,000,000 board feet of logs, valued at approximately $450,000. Approximately 25 per cent of such logs were sold to the Deep River Logging Company, which in turn shipped approximately 75 per cent of its output to California ports and approximately 25 per cent of its output to the East Coast of the United States . Approximately 5 per cent of the logs pro-, duced by the Company were sold to lumber mills in the State of Oregon. The Company admits that it is engaged it commerce within the meaning of the Act. I Bryce Caldwell and General Hauling Company, Inc , were not represented at the lea, mg and took no part in the proceedings. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Local Union .# 5-11, International Woodworkers of America, affili- ated with the Congress of Industrial Organizations, is a labor organ- ization admitting to membership employees of,the Company. Lumber and Sawmill Workers, Local No. 2615, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION Prior to the filing of its petition, a committee representing the I. W. A. attempted to negotiate with the Company and the Company refused to do so. The L. & S.. W. contends that the petition should be dismissed because of an existing contract between the Company and the L. &' S. W. covering 'the employees the I. W. A. seeks 'to represent. On April 10, 1939, after a hearing and an election, the Board certified that the L. & S. W. had been selected by a majority of the Com- pany's employees as their representative for the purposes of collective bargaining.2 Thereafter, a contract was executed between the Com- pany and the L. & S. W. during the spring of 1939, to expire March 1, 1940, but subject to an automatic extension for another 12 months in the absence of notice to the contrary by either party. On March 1; 1941, when the contract was to expire, the- Company and the L. & S. W. orally agreed to extend it 'until a new contract could be nego- tiated. On June 27, 1941, after the I. W. A. had filed its, petition, the presently existing contract was executed. This contract provides that "this Agreement may be terminated by either party giving sixty (60) days' written notice to the other party of intention to so termi- nate the Agreement." In view of the fact that there has been no determination of repre- sentatives of the Company's employees since April 10, 1939, and since the present contract was executed after the Company had notice of the majority representation claim of the I. W. A., we find that the contract between the Company and the L. & S. W. constitutes no bar to a determination of representatives at this time.3 The record discloses that both the I. W. A. and the L. & S. W. represent a substantial number of employees in the unit hereinafter found appropriate .4 3Matter of Deep River Timber Company and International TVoodwoikers of America, Local No 137, 10 N L R. B. 904, 909, 12 N. L. R B 181. 3 See Matter of Todd-Johnsonq Di y Docks, Inc and Industrial Union of Marine d Ship- building Workers of America, Local No. 29, 10 N. L R B. 629 4 The report of a Board Field Examiner introduced in evidence discloses that the I W A submitted 66 cards bearing apparently ' genuine signatures , 62 of which were dated during May and June 1941 , and bear the signatures of persons whose names 213 DEEP RIVER TIMBER COMPANY 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 I. W. A. contends that all employees of the Company, excluding the persons employed on the jobs which Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform for the Company, and excluding certain other enumerated categories of employees here- inafter discussed, constitute an appropriate unit.5 The L. & S. W. would include in the unit the persons employed on the jobs which Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform. The Company took no position as to the appropriate unit. In 1939, after a hearing, the Board found that all employees of the Conipaliy, with certain exclusions, constituted an appropriate unit. At that time the Company was using railway spurs in place of the truck roads which Bryce Caldwell now builds for the Company and railway cars were then used by the Company for the transportation of logs in place of the trucks now supplied by General Hauling Com- pany, Inc. It appears from the decision in that case and from the record in the present proceeding that all employees engaged in the transportation of logs were then on the Company's pay roll and were included in the unit found appropriate. As a result of the election directed in that unit in 1939, the L. & S. W. was certified as exclusive representative and executed a contract with the Company covering appear on the Company's June 26, 1941, 'seniority list, which includes 123 names, 114 of which are names of persons actually employed The record also discloses that the I, & S. W submitted a petition asking that the petition filed by the I W. A. be dismissed, which bears 77 apparently genuine signatures, 66 of which are the names of persons whose names appear on the Company's seniority list The L & S. W also submitted 80 cards of which 68, dated during June and July 1941, bear apparently genuine signatures of persons whose names are listed on the Company's seniority list In addition the L & S W submitted a list indicating that of the 68 employees who apparently signed said cards, 67 were members' of the Union. The record further discloses that 8 of the 114 persons on the seniority list who were actually employed had designated both unions as their iepresentative c The petition of the I W A describes the unit it requests as follows • "All employees of the Company engaged in logging in the woods operations at Deep River, Washington, with the exception of office supervisory employees, contractors and employees of these contractors 413237-42-vor. 37 15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all employees,in the unit then found appropriate. That contract did not expire until March 1, 1941. During the period of the contract, the method of transporting logs was changed and the Company entered into agreements 6 with Bryce Caldwell to log aid prepare roadways and with General Hauling Company, Inc. to transport logs by truck" over these roadways. The principal dispute between the parties is whether the persons' employed on the jobs which Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform for the Company should be included in the bargaining unit. The persons employed on the job which Bryce Caldwell has under- taken to perform include approximately three employees who work regularly under his direction. In addition to these'three employees, he uses three or four-employees from the Company's pay-roll when her needs them, at the same rate of pay as that paid by the Company.' When anew, block of timber is being, opened up, the Company directs Caldwell to clear a roadway through the Company's timber to the new timber-landing sites, and in so doing Caldwell and employees trans- ferred to him from the Company's pay roll log the roadway area at so much per thousand feet. The stumps are removed by blasting, usually done by Caldwell and a powderman from the Company's pay roll; however, Caldwell pays him during this operation. Next, the Com- pany directs Caldwell to construct a road grade by the use of Cald- well's tractors and his drivers, after which regular employees of the Company surface the road. When they, are needed by the Company, Caldwell rents his tractors and supplies his drivers to the Company for logging work, either at so much per thousand feet or by the hour. At times the Company directs Caldwell to use his tractors and drivers for picking, up logs dropped by the trucks, for which the Company pays him on an hourly basis. So far as the record indicates, Caldwell and the persons working under his direction are engaged exclusively in performing work for the Company. General Hauling Company,, Inc. supplies approximately eight trucks and drivers , for the transportation of logs from the timber landings to railway terminals or loading sites. Fallers and buckers" employed by the, Company first fell and then cut the timber to proper lengths. The logs are then pulled or yarded to the timber landings by employees on the Company's pay roll. At the timber landings the logs are loaded on trucks by regular employees of the Company. At the railway terminals they are unloaded from the trucks to railway cars or into piles by a gas rig operated by a regular employee of the Company, while an employee paid by General Hauling Company, ° As 'indicated hereinafter, the record does not disclose the nature of these agreements. 7 These employees include chokers , falleis, buckers, rigging men, and a powderman DEEP RIVER TIMBER COMPANY 215 Inc., fastens the rig line to the logs on the truck." The Company's foremen instruct the truck drivers where to go to pick up logs and the record discloses that the Company exercises some degree of general supervision over the truck drivers. So far as the record indicates, these truck drivers work exclusively on the Company's operations. It is clear that the operations of both Bryce Caldwell and General Hauling Company, Inc., are necessary to, and are an integral part of, the Company's logging operations. The precise nature of the contractual relationship of the Company with Bryce Caldwell, and General Hauling Company, Inc. is not dis- closed by the record. However, the Company does not deny that the bargaining practice indicates in fact that the Company exercises and has exercised a substantial measure of control over the wages and working conditions of persons employed on the jobs Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform. The collective bargaining contract between the Company and the L. & S. W., executed June 26, 1941, includes a clause which reads as follows : This agreement . . . shall govern the wages and working conditions in operations under mutual jurisdiction of the parties hereto, including the operation of the General Hauling Company and Bryce Caldwell under their contracts with the Deep River Timber Company. This clause indicates that the Company has, as a matter of bargain- ing practice, undertaken responsibility for the wages and working conditions of persons employed on the jobs which Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform.9 The record indicates that the L. & S. W. plant grievance committee includes and represents the employees of the Company and the per- sons employed on the jobs which Bryce Caldwell and General Haul- ing Company, Inc. have undertaken to perform, and that such per- sons have been included in and treated' as part of the bargaining unit by the L. & S. W., the Company, and Bryce Caldwell and General Hauling Company, Inc.'0 "Bryce Caldwell and General Hauling Company, Inc, pay the wages of the employees under their supervision, and pay their Social Security tax 9 Bryce Caldwell and General Hauling Company, Inc, although served with notice, did not appear at the hearing "The record discloses that the L & S w. has negotiated separate contracts-with Br.N ce Caldwell and General Hauling Company, Inc, covering, the employees working on the jobs which they have undertaken to perform' Both contracts provide for'the same wages, hours, and conditions of employment for comparable work as those in the collective bargaining, contract between the Company and the L. & S W. The contract with Bryce Caldwell is dated March 11, 1940, and that with General Hauling Company, Inc, August 26. 1941 Neither contract has a definite termination date None of the parties contend that either of these contracts is a bar to this proceeding . They are patterned after and to some extent dependent upon the main collective bargaining contract between 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the interrelation of all the operations carried on at the Company's logging camp, the control which the Company exercises over all persons working on the operations, the fact that the Company has contracted to assume responsibility for the wages and working conditions of persons employed on the jobs which Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform, and also in view of the unit we found appropriate in 1939 and the collective bargaining history since that time, we find that the Com- pany is an employer of the persons employed on the jobs Bryce Cald- well and General Hauling Company, Inc. have undertaken to per- form, within the meaning of Section 2 (2) of the Act and that such employees should be included in the' appropriate unit. The I. W. A. contends that, if the employees paid by Bryce Cald- well and General Hauling Company, Inc. are included in the appro- priate unit, the employees working on the operations of Smith Creek Logging Company should also be included. The record discloses that the Smith Creek Logging Company has a logging contract with, the Company and that it is engaged in general logging operations, the outside areas of which extend almost to the outside areas of the Com- pany's operations, and although they both dump their logs in the same river, Smith Creek Logging Company's log outlet is some 6 miles distant from that of the Company. The Company allocates a certain block of timber, usually including several sections, to the Smith Creek Logging Company and pays it on a per thousand feet basis for logs put into the river. The operations of Smith Creek Logging Company are carried out independently of the Deep River logging operations of the Company and there is no interchange of employees. The L. & S. W. local does not include in its membership, these employees and the bargaining committee, heretofore mentioned, does not include or represent employees working on the operations of Smith Creek Logging Company, nor does the record disclose the ex- tent of the I. W. A.'s membership, if any, among such' employees. Under these circumstances, we find that the employees working on the operations of Smith Creek Logging Company should not be in- cluded in the bargaining unit. The L. & S. W. contends that the superintendent, woods foremen, office employees, subforemen, the civil engineer, and the pile driver and bridge crew should be excluded from the appropriate unit. The the Company and the L. & S . W. In ,that contract the Company has undertaken responsi- bility for the wages and working conditions of persons working on the jobs undertaken by Bryce Caldwell and General Hauling Company, Inc. The L. & S, W. has maintained a single bargaining committee to represent the employees , whether they were on the Company's pay roll or-paid by Bryce Caldwell and General Hauling Company, Inc We are of the opinion that the contracts of the L. & S. W. with Bryce Caldwell and General Hauling Company, Inc do not make inappropriate a single bargaining unit embracing all employees engaged in work connected with the Company 's logging operations. DEEP RIVER TIMBER COMPANY 217 I. W. A. would exclude the superintendent, foremen, and office em- ployees from the appropriate unit."- In the prior case involving these operations, the Board excluded the superintendent, the woods foremen, office employees, subforemen,12 and the pile driver and bridge crew. In accordance with that decision, we shall exclude the super- intendent, the woods foremen, the office employees, the subforemen, and the pile driver and bridge crew from the unit hereinafter found to be appropriate. The parties are in disagreement as to the inclusion or exclusion of Russ Wallace, a bull bucker. The L. & S. W. desires his inclusion, while the I. W. A. desires his exclusion from the appropriate unit. The record discloses that Russ Wallace has general supervision over the fillers and buckers and that when he has a full crew he is a full- time supervisor, but that when he does not have a full crew during, slack seasons he spends about 50 per cent of his time as a supervisor and 50 per cent of his time filing and marking. He does not have the power to hire or discharge. However, he has the right to make recommendations regarding hiring and discharging.13 In the prior case, bull buckers were excluded as subforemen. We find that Russ Wallace is a subforeman and shall exclude him from the unit. We find that all employees of the Company, including the persons employed on the job which Bryce Caldwell and General Hauling Com- pany, Inc. have undertaken to perform, but excluding the superintend- ent, woods foremen, office employees, and subforemen (including Russ Wallace), and the pile driver and bridge crew, constitute a unit appro- priate 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 will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The Company and the L. & S. W. contend that an election, if directed, should be held after the Company has had its shut-down and completed its repairs."' The L. & S. W. representative stated that he wished the eligibility date to be determined by the Board's rules and -21 It is not clear from the record whether or not there is any conflict between the positions taken by the unions. 12 In the previous case the term , "sub-foremen ," was defined as including the master mechanic , the civil engineer, the bull bucker, and the head cook. 13 The general superintendent and manager of the Company testified that Russ Wallace does very little in addition to directing the work of the men '4 The general superintendent and manager of the Company testified that in approxi- mately 30 days from the date of the hearing ( September 18, 1941 ) the Company will have a "complete pay roll on the job." 218 DECISIONS' 'OF'NATIONAL LABOR' RELATPIONS BOARD regulations governing the matter. The I. W. A. desires that the elec- tion be held when the Company is on a normal operating and employ- ment basis and believes that such a period would exist, not later than sixty (60) days or sooner than forty (40) days from the date-of the hearing (September 18, 1941). The I. W. A. further contends that eligibility should be determined by the pay roll next preceding the date of the election, if the election is held during a normal operating and employment period, but that if the period is not a normal produc- tion and employment period, then those employees on the pay roll and the seniority list under normal operating conditions should be allowed to vote, and that such a. normal pay roll and seniority list would be those employed as of May 31 or June 1, 1941. Since normal operations were expected to be resumed near November 1, 1941, we are of the opinion that eligibility should be determined by a current pay roll. We shall direct, in accordance with our usual prac- tice, that all employees of the Company who were employed during the pay-roll period immediately preceding the date of this Direction of Election shall be eligible to vote, subject to the limitations and addi- tions 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 Deep River Timber Company, Deep River, Washington, within the meaning of Section 9 (c) and Section 2 (6) vnd (7) of the National Labor Relations Act. 2. All employees of the Company, including the persons employed on the jobs which Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform, but excluding the superintendent, woods foremen, office employees, and subforemen (including Russ Wallace), and the pile driver and bridge crew, constitute a unit appropriate for the purposes of collective 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, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DumcTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Deep River Timber Company, Deep River, Washington, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) DEEP RIVER TIMBER COMPANY 219 days from the date of this Direction, 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 sub- ject to Article III, Section 9, of said Rules and Regulations , among all employees of Deep River Timber Company who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including the persons employed on the jobs which Bryce Caldwell and General Hauling Company, Inc. have undertaken to perform, and employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off , but excluding the superintendent, woods foremen , office employees, and subforemen (including Russ Wallace), the pile driver and bridge crew, and em- ployees who have since quit or been discharged for cause , to determine whether they desire to be represented by Local Union #5-11, Inter- national Woodworkers of America, affiliated with the Congress of Industrial Organizations , or by Lumber and Sawmill Workers, Local No. 2615, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election. In the Matter of DEEP RIVER TIMBER COMPANY and LOCAL UNION #4-11, INTEL'NATIONAL WOODWORKERS OF AMERICA Case No. R-3039 AMENDMENT TO DIRECTION OF ELECTION December 22, 1941 On November 29, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction.of Election in the above-entitled proceeding,' directing that an election be held among the employees of Deep River Timber Company, Deep River, Wash- ington, herein called the Company, as early as possible, but not later than thirty (30) days from the date of the Direction, under the direc- tion and supervision of the Regional Director for the Nineteenth Region. The Regional Director having notified the Board that the opera- tions of the Company have ceased for an indefinite period, the Board hereby amends its Direction of Election by striking therefrom the words "but not later than thirty (30) days from the date of this Direction" and substituting therefor the words "following the resump- tion of normal operations by the Deep River Timber Company." MR. GERARD D. REILLY took no part in the consideration of the above Amendment to Direction of Election. 337 N. L. R. B., No. 33. 37 N. L. R. B., No. 33a. 220