Clackamas Logging Co.

National Labor Relations Board - Board Decisions

Jul 21, 1955

113 N.L.R.B. 229 (N.L.R.B. 1955)

CLACKAMAS LOGGING COMPANY AND GUY KELLER 229
lished contract-bar rule. Accordingly, we shall dismiss the instant
petition. We find, therefore, that no question affecting commerce
exists concerning the representation of employees of the Employer,
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7)
of the Act.
[The Board dismissed the petition.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
Robert F. Dwyer, Edwin C. Dwyer, Anthony J. Dwyer and Rose-
mary D. Frey d/b/a Clackamas Logging Company and Guy
Keller 1 and Frell C. Zink , Petitioner and Local 5-40, Interna-
tional Woodworkers of America, CIO. Case No. 36-RD-81.
July 31, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert J. Weiner, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
The Union contends that the petition should be dismissed (1) be-
cause Zink, the Petitioner, is a supervisor or a clerical employee; (2)
because he is an employee of Clackamas and therefore has no authority
to represent the employees of Keller; and (3) because he and Clack-
amas acted in collusion in filing the petition. We find no merit in
these contentions. As hereinafter found, Zink is not a supervisor and
there is no evidence that his clerical relationship with Clackamas
would disqualify him as a petitioner in a decertification proceeding .2
With respect to the Petitioner's representative status, there is no re-
quirement in the Act that an individual petitioner be an employee of
the employer involved.'
As to the alleged collusion on the part of Clackamas, the record
shows that Timekeeper Sanders mailed a post card requesting a copy
of the Act for the Petitioner; that the Petitioner himself typed and
circulated the petition on which signatures were secured; that Clack-
amas, at the request of employees, furnished a bus to transport prac-
tically the entire crew to attend a meeting at the National Labor
Relations Board's local office; that a partner personally paid for their
1 Herein respectively called Clackamas and Keller.
2 Clyde J. Merris , 77 NLRB 1375 , and Star Brush Manufacturing Co., Inc., 100
NLRB 679,
s Bernson Silk Mills, Inc., 106 NLRB 826, at 827 ; Morganton Full Fashioned Hosiery
Company, 102 NLRB 134, at 135.
113 NLRB No. 27.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lunches ; and that the entire crew worked the following Saturday at the
time and a half rate although they had not worked 40 hours that week.
The partner testified that Clackamas customarily lent employees
trucks for personal purposes, and that, as they had taken him to dinner
many times, he was merely returning the favor. In the circumstances,
we do not believe that the Petitioner, in filing this petition, acted at
the behest of any official of Clackamas.' Accordingly, we deny the
Union's motion to dismiss.
Upon the entire record in this case, the Board finds :
1. Clackamas is a partnership, which performs logging operations
for Dwyer Lumber Company, herein called Dwyer, a corporation en-
gaged in milling lumber. Both businesses are owned, operated, and
controlled by the same persons, who are the officers of Dwyer and the
partners of Clackamas. Both have the same office at the Dwyer mill-
site in Portland, Oregon. Clackamas performs services exclusively
for Dwyer, which purchases timber from the United States Govern-
ment. Clackamas' employees cut trees, bring the logs to a loading
point, and load them on trucks owned by Dwyer or by independent
contractors under contract with Dwyer. Under these circumstances,
we find that Clackamas ar Dwyer constitute a single integrated enter-
prise and are, for the purl, s of jurisdiction, a single employer.'
During the last fiscal y , Dwyer made sales valued at $3,000,000,
of which 30 to 40 percent ,i ,p, ,^sented shipments made directly out-of-
State, and Clackamas rec - ",ed $740,000 for its services performed for
Dwyer. As Dwyer and Clackamas constitute a single integrated en-
terprise and employer, which has a direct outflow of more than $ 50,000
annually, we find that Clackamas, therefore, is engaged in commerce
within the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction over it.'
In connection with its logging operations, Clackamas has a con-
tract, terminable on 30 days' notice, with Guy Keller, who cuts logs
for Clackamas exclusively. The original contract executed in 1947,
orally renewed with modifications each year, provides that Keller,
acting as an independent contractor with his own equipment and for
fixed rates, should perform logging services as directed by Clackamas
and should bear all costs, including workman's compensation, social
security, and all other expenses incidental to the work. The record
shows that direction by Clackamas means merely designating areas to
be logged and reviewing Government logging specifications with Kel-
ler. Otherwise, Keller has complete autonomy and control over his
4 Moore Drop Forging Company, 108 NLRB 32, at 32-33; Plastic Moldnng Corporation,
112 NLRB 179.
5 Sanitary Mattress Company, Pest Line of California, Inc., 109 NLRB 1010, at 1011 ;
Marvel Roofing Products, Indorporated, et al., 108 NLRB 292, at 292-293 , Barrett Logging
Company, 88 NLRB 638, at 638-639
B Jonesboro Grain Drying Cooperative, 110 NLRB 481.
CLACKAMAS LOGGING COMPANY AND GUY KELLER 231
logging operations. He does his own hiring, firing, and supervising
of his 15 to 18 employees. He keeps his own books and accounts. His
employees do not interchange with those of Clackamas. They work
at a separate location about 30 miles away from the Clackamas opera-
tion. Under all the circumstances, we find that Keller is an independ-
ent contractor and a separate employer.'
During the last fiscal year, Keller received from Clackamas $140,000
for logging services. Because Keller sold to Clackamas and Dwyer,
an employer which has a direct outflow of more than $50,000, over
$100,000 worth of services directly utilized in the products of such em-
ployer, we find that Keller is engaged in interstate commerce and that
it will effectuate the policies of the Act to assert jurisdiction over him."
2. The Petitioner asserts that the Union is no longer the bargaining
representative of employees of the Employers as defined in Section 9
(a) of the Act.
3. The Union moved to dismiss the petition on the ground that a
contract between it and Columbia Basin Loggers, an employer asso-
ciation, herein called CBL, is a bar to the presort proceeding. The
Union argues that the negotiation of contract c .angel was never dis-
continued and that the contract continut ;ii c ,fect. The Employers
and the Petitioner contend that the cons e' oes not bar the Septem-
ber 7, 1954, petition because negotiatior•--'n - broken off and the con-
tract was terminated. We find mer.l, this contention and the
Union's motion to dismiss is denied for f following reasons :
In 1944, as a result of a consent election, the Union was certified as
the exclusive bargaining agent of the employees of Clackamas.'
Shortly, thereafter, Clackamas became a member of CBL and since
then its employees have been covered by the contracts between CBL
and District Council No. 5 of the International Woodworkers of
America, representing various local unions , including the Union
herein. Pursuant to the provision of these contracts that an employer
member of CBL should require its contractors to comply with the
terms thereof, Clackamas has, since the 1947 contract with Keller,"
required the latter to comply with the terms of the CBL contracts,
one of which is union recognition."
The CBL contract in question, which was the last one to which
Clackamas was a party, was effective April 1, 1953, to April 1, 1954.
It provided that a timely ndtice to amend by either party would serve
7 Denver Building and Construction Trades Council, et at, 108 NLRB 318, at 320; an
Jose Builders Company , 101 NLRB 1772, at 1773-1774.
$Jone.sboro Grain Dryvuq Cooperative, supra.
0 Case No. 19-R-1273 ( not reported in printed volumes of Board Decisions and Orders).
10 Keller has been listed variously by CBL as "Guy Keller" and as "Clackamas Logging
Co and contractor."
11 The Union has never been certified as bargaining representative of the employees of
Keller
379288-56-vol. 113-16
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to prevent automatic renewal of the contract, and that in such event
the contract would continue indefinitely until a new agreement was
reached but would terminate if negotiations were discontinued by
either party.12 The Union gave timely notice to modify, and thus
prevented automatic renewal and continued the contract indefinitely
in accord with its provisions. Thereafter, negotiations began and con-
tinued past the terminal date of April 1, 1954. On June 21, 1954, the
threatened industrywide strike involving the CBL employers and the
Union, along with other unions in District Council No. 5, began.
By a letter dated July 14, 1954, a number of lumber and timber asso-
ciations, including CBL, wrote the northwestern regional negotiating
committee, representing the Union's International to the effect that :
In negotiations, both before and after a strike threat, these
committees offered to recommend renewal or extension of the
current agreements without change, so far as industry-wide
demands of the Union are concerned.
Your strike action has not altered our position, and that final
offer remains be "nre you. We are unwilling to meet further until
the union comml te' is ;'lady to join in acceptance of that offer.
On July 22, 1954, a - lia. was filed by the union representatives
against CBL alleging "o 14, 1954, this Association and the Em-
ployers listed on Exhibit attached, acting in concert, broke-off
negotiations...." 13
There is no showing in the record that CBL and District Council
No. 5 thereafter negotiated under the contract, although employer and
union representatives attended strike-settlement meetings called by
the governors of two States. These meetings began on August 7, 1954,
and culminated on September 11, 1954, in a stipulation by the Union's
International and the employer representatives recommending the
governors' fact-finding program. On the same date, CBL and Dis-
trict Council No. 5 signed a memorandum agreement in which they
agreed to act, or recommend to their principals, the return of em-
ployees to work, and the creation of a fact-finding board to investigate
and report on the strike issues. In the meantime, and before the stipu-
lation agreement was executed, the petition herein was filed on Sep-
tember 7, and Clackamas and Keller withdrew from CBL on Septem-
ber 9. From September 11 to the date of the hearing there were no
bargaining negotiations between the parties involved herein.
12 Article XXIV of the contract provides in part:
If no agreement is reached at the expiration of this Agreement and negotiations are
continued, the Agreement shall remain in force up to the time a subsequent agree-
ment is reached, but shall terminate if negotiations are discontinued by either party.
Case No 36-CA- 628 The charge, which was subsequently withdrawn, referred spe-
cifically to the July 14, 1954, letter
I
CLACKAMAS LOGGING COMPANY AND GUY KELLER 233
Contrary to the Union, we believe that negotiations pursuant to the
notice to modify the contract were discontinued on or about July 14,
1954, and that therefore, the CBL contract, for contract-bar purposes,
was terminated by its own terms. The July 14, 1954, letter clearly
indicated that the parties had reached an impasse and were no longer
negotiating under the contract. Further, the abortive unfair labor
practice charge filed by the labor representatives, referring to the
breaking off of negotiations, strengthens this conclusion. While it
is true that employer and union meetings were held under the gover-
nors' auspices, such meetings were primarily held to investigate the
economic issues involved in order to settle the strike rather than to
continue bargaining negotiations under the contract by the parties.
Thus, the resulting stipulation and agreement of September 11 set-
tled the strike by providing for a fact-finding board or panel and not
by contract negotiations of the parties. Moreover, endorsement of the
strike settlement by CBL and District Council No. 5 does not constitute
bargaining negotiations under the contract binding on Clackamas and
Keller, who had withdrawn from CBL.
In these circumstances, and upon the entire record, as it appears
that contract negotiations were discontinued and the contract termi-
nated, we find, therefore, that the contract cannot bar the petition
herein. Moreover, the reopened contract, which continued in effect
after April 1, 1954, only until such time as the parties should enter into
a new agreement or discontinue negotiations was temporary and pro-
visional in nature and therefore, in any event, could not constitute a
bar to this proceeding.14
However, before a decertification election can be directed, Section
9 (c) (1) (A) (ii) of the Act requires that the labor organization
involved be either certified or currently recognized by the Em-
ployer.15 As indicated above, the Union was certified as the bargain-
ing representative of the employees of Clackamas, but not of Keller.
The record shows that between April 1 and September 9, 1954,
Clackamas and Keller continued to recognize the Union as a rep-
resentative of their employees under the terms of the temporary
CBL agreement, then in effect. On September 9, however, Clackamas
wrote CBL that it was withdrawing the negotiation authorization
from CBL on behalf of itself and its contractor, Keller. CBL im-
mediately notified District Council No. 5 of this withdrawal.ls As
a result , neither Clackamas nor Keller were parties to the multiem-
ployer strike-settlement agreement of September 11, 1954, signed by
14 Bridgeport Brass Company, Aluminum Division , 110 NLRB 997 ; Union Bag & Paper
Corporation , 110 NLRB 1631.
w Reliable Tool Co, Inc , 79 NLRB 1109.
10 CBL gave no written notification . The usual practice was a confirmation of an oral
notification or a written notification.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CBL and District Council No. 5. At the hearing, Clackamas stated
that it had no existing contract with the Union, and there is no evi-
dence that Keller, who customarily took the same position as Clacka-
mas, took a different position although he continued to pay prestrike
wages and insurance benefits. As Clackamas and Keller have for
years mutually dealt with the Union only on a multiemployer basis,
we believe that, by their conduct, they have clearly indicated their
intention not to contract with, or to continue recognition of, the Union.
Accordingly, we find that neither Clackamas nor Keller currently
recognizes the Union as the bargaining representative of his em-
ployees within the meaning of Section 9 (a) of the Act. However,
because the Union has been certified as the bargaining representative
of the employees of Clackamas, but has not been certified and is not
currently recognized as the bargaining representative of Keller's em-
ployees, we find that a question affecting commerce concerning the
representation only of the employees of Clackamas exists within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.'
4. The Petitioner and Clackamas take the position that the with-
drawal of Clackamas from CBL renders appropriate only a single-
employer unit. The Union contends, in effect, that Clackamas did not
properly withdraw from CBL in a timely fashion and that the ap-
propriate unit should be coextensive in scope with the employer as-
sociation. We find no merit in this contention.
As stated above, the Union was certified in 1944 as the bargaining
agent of the employees of Clackamas, on a single-employer basis.
Shortly thereafter, Clackamas became a member of CBL and a party
to the Association contract, and so continued until it withdrew its
negotiation authorization on September 9, 1954. Between September
9 and September 11, 1954, the time of signing the strike-settlement
agreement, CBL informed District Council No. 5 of Clackamas' with-
drawal. CBL regarded the withdrawal by Clackamas as effective
and that it no longer had authority to negotiate for Clackamas. More-
over, District Council No. 5, with full knowledge of Clackamas' with-
drawal, accepted CBL's signature to the strike settlement without the
inclusion of Clackamas in the usual list of members. In these circum-
stances, we believe that Clackamas by withdrawing its authority for
CBL, when the contract was not a bar to the proceedings, clearly
evinced at a proper time its desire to withdraw from the multiem-
ployer bargaining.
The Union, however, contends that the withdrawal of an employer
from group bargaining is a proposed revision under the contract re-
quiring 60 to 65 days' notice, and further, that such notice has not been
17 Coca-Cola Bottling Company of Pottsville , 97 NLRB 503 , at 504-506.
CLACKAMAS LOGGING COMPANY AND GUY KELLER 235
given.18 We find no merit in this contention. While the requirements
for withdrawal from CBL are not in evidence, there is nothing in the
contract specifically requiring that any employer member give notice
of an intention to withdraw from multiemployer bargaining. More-
over, we construe the term "proposed revisions" to refer only to pro-
posals relating to substantive revisions of the contract and not to the
identity of the bargaining representative of the Employer, Clackamas.
We therefore find that the Employer did not forfeit its right to with-
draw from multiemployer bargaining by failing to give timely notice
to District Council No. 5 of its desire to withdraw.19
Under all the circumstances, we find that Clackamas' withdrawal
from CBL was timely made,20 and that it expressed an unequivocal in-
tention to bargain on an individual employer basis. Accordingly, we
find that a single-employer unit is the only appropriate unit.21
With respect to the composition of the unit, there is no dispute ex-
cept as to the status of the individuals hereinafter discussed, all of
whom were included in the historical bargaining unit except Time-
keeper Sanders. The Union contends that Petitioner Zink and Time-
keeper Sanders should be excluded from the unit either as supervisors,
as office clerical employees, or as professional employees. Clackamas
would include them in the unit.
Petitioner Zink, classified as a tractor driver, works in camp under
the supervision of the camp superintendent. He spends one-third of
the time doing clerical work and the remainder of his time weighing
and checking truckloads of logs. In the latter connection, he sets tongs
to remove or add logs to bring a load to the desired weight, and Sanders
operates the engine which lifts the logs. Zink routinely gives direc-
tions to the truckdrivers. Zink operates a tractor only on Saturdays,
for which he receives overtime pay. As Zink neither possesses nor
exercises the statutory authority of a supervisor, we find that he is
not a supervisor but an employee.22 Nor, despite his college degrees, is
his employment professional in character or in duties. He is not an
office clerical employee but at best is more like a plant clerical employee,
whom the Board ordinarily includes in a unit of plant employees.21
is Article 24 (b) of the contract provides : "Unless either party notifies the other of a
desire to change the terms of this Agreement not less than sixty-five (65) days prior to
the expiation date, and presents proposed revisions not less than sixty (60) days prior to
such expiration date, at which time negotiations shall start, this Agreement will auto-
matically continue in effect for the succeeding 12 months "
I`Stamfoi d Wall Paper, Inc., 92 NLRB 1173, at ] 174-1176.
20iltichael Silvers, d /b/a Silvers Sportswear , 108 NLRB 588, at 590 ; Century Press,
107 NLRB 292, at 293, Economy Shade Company, 91 NLRB 1552, at 1553
Z1 W. A Swanson Logging Co., et at, 111 NLRB 495 ; Moscow Idaho Seed Company, Inc.,
107 NLRB 107, at 108.
22Miami Paper Boasd Mills , Inc, and Simco Waste Paper , Inc ., 109 NLRB 167, at
169-170
iIntenational Smelting and Refining Company, Raritan Copper Works, 106 NLRB
223, at 225-226, Mrs Tuckei's Products, Division of Anderson Clayton d Company, Inc,
106 NLRB 533, at 534.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whether a plant clerical employee or a logging employee, we find that
the interests of Zink are closely allied with those of the logging em-
ployees and accordingly, we include him in the unit.
Timekeeper Sanders also works at the camp under the camp super-
intendent. He, like Zink, devotes approximately one-third of his time
to clerical work and the balance to operating the engine lifting the logs.
Following instructions from the superintendent, he also routinely dis-
patches trucks. As Sanders does not possess or exercise the statutory
authority of a supervisor, we find that he is not a supervisor?, Nor
does he work as a professional employee. Like Zink, he is, at best,
a plant clerical employee whose interests are closely allied with those
of logging employees.25 Nor does the fact that he knows the pay rates
of employees, the Employer's sale and purchase prices, and the nature
of its contracts make him a confidential employee.26 Accordingly, we
include him in the unit of logging employees.
Contrary to the Union, Clackamas would exclude the shop foreman
and bull buck from the unit as supervisors.
The shop foreman "operates the shop and his crew" of 4 to 7 em-
ployees. Like the construction foreman, an agreed supervisor, he
directs his crew and makes work assignments. He has the authority to
hire and fire and can settle minor grievances. Under these circum-
stances, we find that he is a supervisor within the meaning of the
Act and exclude him from the unit.
The bull buck is in charge of the cutting crew of 10 men and gen-
erally oversees the cutting operation. He designates the area to be
cut and directs the men in the methods of felling a tree. He is "hired
to tell the men what to do." He settles minor grievances, and has
authority to change work assignments. Under these circumstances,
we find that the bull buck responsibly directs the employees under him
and, therefore, that he is a supervisor within the meaning of the Act.
We, accordingly, exclude him from the unit.
Although none of the parties contend that the hook tender, head
rigger, and head loader are supervisors, their duties were fully set
forth in the record.
The hook tender is in charge of a logging crew of 12 to 18 employees,
who perform the loading and rigging of logs. His principal duty is to
see that the logs are moved to the landing and he lays out the lines
for a given logging area, and assigns men to different jobs. He can
settle minor grievances. Under the circumstances, we find that the
hook tender responsibly directs the employees under him and he is,
therefore, a supervisor. We, accordingly, exclude him from the unit.
"Houston Terminal Wai ehouse t Cold Storage Company, 107 NLRB 290, at 291
as Palmer Manufacturing Company, 103 NLRB 336, at 338-339
20 Continental Baking Company , Wonder Bakery, 109 NLRB 33, at 34.
COATS & CLARK, INC. 237
Under the hook tender, there is a head rigger and head loader, each
of whom works with 3 or 4 other employees. They have no authority
to hire or fire or effectively to recommend, and their direction of the
men working with them is routine in character. As they neither ex-
ercise nor possess the statutory duties of supervisors, we therefore find
that they are not supervisors, but employees, whom we include in the
unit.'
Accordingly, we find that all employees of Clackamas Logging Com-
pany, at Estacada, Oregon, including the tractor driver, the time-
keeper, head riggers, and head loaders, but excluding office clerical
employees, guards, professional employees, the superintendent, con-
struction foreman, side foremen, the shop foremen, bull bucks, hook
tenders, and all other supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
21 Moam, Paper Board Mills , Inc, and Snmco Waste Paper, Inc , supra; Houston
Terminal Warehouse & Cold Storage CoMpanp, supra
Coats & Clark, Inc. (Clarkdale Plant) and Textile Workers Union
of America, CIO. Case No. 10-CA-1958. July 02, 1955
DECISION AND ORDER
On November 3, 1954, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions contained in the Intermediate Report only to the extent that
they are consistent with the following :
1. We agree with the Trial Examiner's finding that the Respondent
violated Section 8 (a) (1). Specifically we find that, in the context
of the threats uttered by several of Respondent's supervisors, all the
113 NLRB No. 29.