Deep River Timber Co.

National Labor Relations Board - Board Decisions

Nov 29, 1941

37 N.L.R.B. 210 (N.L.R.B. 1941)

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