Great Bear Logging Co.

National Labor Relations Board - Board Decisions

Nov 30, 1944

59 N.L.R.B. 701 (N.L.R.B. 1944)

In the Matter of GREAT BEAR LOGGING COMPANY and LUMBER & SAW-
MILL WORKERS UNION, LOCAL 2767, A. F. L.
Case No. 19-R-1401.-Decided November 30, 1944
Mr. Warren T. Smith, of Morton, Wash., for the Company.
Mr. E. J. Eagen, of Seattle, Wash., and Mr. Edward LaChapelle,
of Tacoma , Wash., for the LSW.
Mr. A. F. Hartung, of Portland, Oreg., for the IWA.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Lumber & Sawmill Workers Union,
Local 2767, A. F. L., herein called the LSW, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Great Bear Logging Company, Lindberg, Washington,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Joseph D.
Holmes, Trial Examiner. Said hearing was held at Chehalis, Wash-
ington, on October 12, 1944. The Company, the LSW, and Interna-
tional Woodworkers of America, Local 2-93 CIO, herein called the
IWA 1 appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues.' The Trial Examin-
er's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a Washington corporation having its principal
place of business at Lindberg, Washington. It is engaged in logging
under contract with St. Regis Paper Company. The Company annu-
ally cuts about $360,000 worth of logs at this location. Annually, it
'At the hearing the Trial Examiner granted a motion of the IWA to intervene.
59 N. L. R. B., No. 141.
701
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases materials and supplies amounting to approximately $10,000,
the greater part of which is purchased in Seattle, but manufactured
outside the State of Washington. Approximately 90 percent, how-
ever, of the logs cut, which are shipped and sold within the State of
Washington, goes outside the State and into national defense.
We find that the Company is engaged in commerce within the mean-
ing of the,National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Lumber & Sawmill Workers Union, Local 2767, affiliated with the
American Federation of Labor, is a labor organization admitting to
membership employees of the Company.'
International Woodworkers of America, Local 2-93, affiliated with
the Congress of Industrial Organizations, is a labor organization ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In October 1940, the Company and IWA, following negotiations
between the Tri-County Loggers Association, a committee of the Lum-
bermen's Association of which the Company was a member, and the
Twin-District Committee which represented the, IWA, entered into a
contract which by its terms covered all the employees of the Company
with certain definite exceptions. The contract was to terminate on
April 1, 1941, and was to remain in effect from year to year thereafter
unless a written notice to terminate or modify its terms was given not
less than 60 days prior to April 1, of any contract year; in no event was
the contract to extend beyond April 1, 1945. The contract further pro-
vided that after notice to terminate or modify had been given and
negotiations commenced and no agreement had been reached at the
expiration of the yearly contract period, the contract was to remain
in force up to the time a subsequent agreement was reached or negotia-
tions discontinued, by either party.
On January 21, 1944, the IWA, in accordance with the terms of the
contract, notified the Company of its desire for revisions and amend-
ments in the agreement. On January 29, 1944, the Company likewise
notified the IWA of its desire to "open our contract with you for nego-
tiations, which negotiations will be handled for us by the Lumbermen's
Industrial Relations Committee,2 as has been done heretofore, con-
forming to the negotiations for the industry." Both the IWA and
the Company expressed a desire for changes relating to almost all of
the substantive provisions of the contract, including wages, hours of
labor, union maintenance, and vacations. Negotiations between the
Lumbermen's Committee and the IWA were commenced on March 2,
A
9 The Lumbermen 's Committee , a successor to the Tri-County Committee, is a separate
organization formed within the framework of the Lumbermen 's Association for the purpose
of handling the labor relations of its members.
GREAT BEAR LOGGING COMPANY 703
1944, and continued until August 1, 1944, when the case was certified
to the National War Labor Board and remanded-by it to the West
Coast Lumber Commission. The Lumber Commission, after a hearing
held on September 22, 1944, issued an interim order directing the par-
ties to continue negotiations for 30 days, at the end of which time if
the parties had not agreed, the Commission would again consider the
case . On July 6, 1944, the LSW sent a letter to the Company asking
for recognition and claiming to represent 90 percent of the employees
of the Company; on September 11, 1944, the LSW filed its petition with
the Board.
The IWA, the intervenor herein, claims that there was no termina-
tion of the existing contract and that its demands were merely for
modifications thereof. The Board has held that a request for modifi-
cations much less in scope than those asked for in the instant case was
substantial enough to serve as a notice of contract termination rather
than merely a notice of a desire for modification.3 In any event, a
request for modifications substantial enough to require extended nego-
tiations between the parties, as was here required, shows an election
to terminate.'
The further contention of the IWA that the contract operates as
a bar because, by its terms, it remained in full force and effect pend-
ing negotiations, is also without merit. We have held that such a
provision would extend the contract for an indefinite period of time
and, therefore, such contract would not be a bar to a present determi-
nation of representatives.5 Since we are of the opinion that the
contract has been terminated, or at most is one of indefinite duration,
we find that it is not a bar to a present determination of repre-
sentatives.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the LSW represents a substantial number of em-
ployees in the unit hereinafter found appropriate.6
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The LSW contends that a unit comprising all employees of the
Company at its logging operations in the vicinity of Morton, Wash-
6 Matter of The American Woolen Company, Webster Mills, 57 N. L . R. B. 647.
Matter of Pure-Pac Corporation , et at., 55 N. L . R. B. 1386.
6 Matter of General Electric Company, 48 N. L. R. B. 1044.
6 The Field Examiner reported that the LSW submitted 37 authorization petitions ;
that the names of 32 persons appearing on the petitions were listed on the Company's pay
roll of September 15, 1944, which contained the names of 36 employees in the appropriate
unit ; and that the cards were dated , 2 in July 1944 and 30 in September 1944.
The IWA rests upon its prior contract with the Company to show its interest.
618683-45-vol. 59-46
W4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ington,7 excluding supervisory and clerical employees , is appropriate.
The Company agrees generally with the foregoing unit, but would also
exclude employees engaged in falling and bucking, whom it contends
are in the employ of an independent contractor and are , therefore,,
not employees of the Company . The IWA contends that the appro-
priate unit should be coterminous with the membership of the Lumber-
men's Committee.
As indicated above, the Company in its labor relations has been
represented by the Lumbermen 's Committee and its predecessors since
1939. Representation by the Committee has been confined , however,
solely to the negotiation of broad contract issues, the companies re-
serving to themselves the right to negotiate on all local issues, to enter
into contracts , to disregard any or all recommendations of the Com-
mittee, and to withdraw from membership in the Committee at any
time upon 30 days' written notice. The Company contends , in effect,
that since representation by the Committee has been thus limited, its
past acquiescence in the Committee 's recommendations has not im-
paired its individuality as an employer nor detracted from the status
of its employees as a separate bargaining unit. While similar con-
tentions have been found lacking in merit by the Board in holding
that only an association -wide unit is appropriate where, as here, em-
ployers have consistently adhered to bargaining on an association-
wide basis,8 it has not so found where an employer has evinced an
intention not to be bound by such multiple -employer negotiations.
Since the Company has expressed-its intent to pursue an individualistic
course of action with regard to its labor relations , we find that such
intent is controlling and that a unit comprising only employees of the
Company is appropriate."
The' Company engages the services of so-called subcontractor's who,
in turn, hire men to perform falling and bucking operations. The
Company, however, pays the wages of the employees hired by the
subcontractors , as well as workmen 's compensation , industrial in-
surance, and withholding tax, and does all the bookkeeping work
involving these employees . After all of the foregoing costs are paid
by the Company, the subcontractors receive the difference between
the contract price and such costs . While as stated above the sub-
contractors do their own hiring, the Company has the right to dis-
charge and discipline the employee so hired . The Company may
discharge the subcontractors at will , and they are , in effect, merely
supervisory employees of the Company . We find that the Company
is the employer within Section 2 (2) of the Act of the employees
engaged by the subcontractors in falling and bucking . We shall,
° The Company 's operations are at Lindberg , Washington , which is in the vicinity of
Morton, and serviced by the Morton Post Office.
: .See Matter of Rayonnser Incorporated , Grays Harbor Division, 52 N. L . R. B. 1169.
Matter of George F . Carleton & Company, 54 N. L . R. B. 222.
GREAT BEAR LOGGING COMPANY 705
therefore, include these employees in the unit; we shall not, however,
include the subcontractors therein.
We find that all the employees of the Company engaged in logging
in the vicinity of Morton, Washington, including employees engaged
in falling and bucking, but excluding clerical employees, subcon-
tractors, and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
,of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
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 Relay
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it
is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Great Bear Log-
ging Company, Lindberg, Washington, an election by, secret ballot
shall be conducted as'early as possible, but not later than thirty (30)
days from the date of this Direction, 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, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during the said pay-roll period because they were ill or on
vacation or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether they desire to be repre-
sented by Lumber & Sawmill Workers Union, Local 2767, A. F. L., or by
International Woodworkers of America, Local 2-93-CIO, for the
purposes of collective bargaining or by neither.