Harbor Plywood Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1958

119 N.L.R.B. 1429 (N.L.R.B. 1958)

HARBOR PLYWOOD CORPORATION 1429'
Harbor Plywood Corporation , Lewis River Logging Co., Smith!
Creek Cutting Co., Pratt Bros., Mt. St. Helens Logging Co.,
Bear Creek Cutting Co., Maurice Anderson, Stacel Contract-
ing Co ., Inc., Wisner & Lange, and Ted Wall and Local 5-17,
International Woodworkers of America , AFL-CIO, Petitioner.
Case No. 36-RC-1295. January 29,1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert J. Wiener, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Bean].
Upon the entire record in this case, the Board finds :
1. The Employer Harbor Plywood Corporation is engaged in com-
merce within the meaning of the National Labor Relations Act. The
Board's commerce finding. concerning other parties alleged as em-
ployers herein will be found below.
2. The labor organization named below claims to represent certain
employees of the Employer and/or Employers named herein.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of certain of the Employers herein within
the meaning of Section 9 (a) (1) and Section 2 (6) and (7) of the
Act.
4. Petitioner seeks a unit of employees of contractors and subcon-
tractors who build roads for logging, and cut, haul, and load logs
for Harbor Plywood in the Lewis River area in Washington. It
would also include employees directly employed by Harbor at its pond
near Amboy, Washington, and certain maintenance employees of Lewis
River Logging Co. who are covered by collective-bargaining contracts
with Petitioner having a June 1, 1957, anniversary date. The Lewis
River contract has also covered logging employees who are not now
employed by Lewis River, and whose present employment and repre-
sentation is the matter at issue.
Harbor has a plywood plant at Aberdeen, Washington, for which
it has been procuring logs from the Lewis River area since 1948. The
timber in the area, the private road system to the log pond, and a
private short line railroad connecting the pond area with the Northern
Pacific Railroad, are owned by Harbor. Its principal logging con-
tractor has been Lewis River Logging Co. It has also had logging
119 NLRB No. 180.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts for comparatively small quantities of logs with Theodore
Wall since 1954.
Stacel Logging Company, whose successor the Stacel Contracting
Co., Inc., is also involved herein, has been a logging subcontractor of
Lewis River, and has also done work for Pacific Gas & Electric Co.
and for the city of Tacoma. During 1956, Baker, the president of
Lewis River Logging Co., bought a half interest in Stacel Logging,
and the current Stacel Contracting corporation was formed.
The petition names Harbor, as well as Harbor "doing business under
the assumed names of Lewis River Logging Co., Smith Creek Cutting
Co., Pratt Bros., Mt. St. Helens Logging Co., Bear Creek Cutting
Co., Maurice Anderson, Stacel Contracting Co., Inc., Wisner & Lange,
and Ted Wall" as the Employer. All except Pratt, Wisner & Lange,
and Anderson were represented at tb e hearing.
In 1957 Lewis River determined not to continue its policy of con-
tracting for logging for Harbor, and suggested to two of its em-
ployees-Waymire, its superintendent, and Fund, its cutting crew
foreman-that they take on the 1957 logging contract with Harbor.
To further this arrangement Lewis River sold these 2 men $142,000
of its equipment to be paid for entirely out of the proceeds of logs cut,
suggested that they operate under a business name, and advanced the
money to start a workmen's compensation account for Waymire and
Fund as Mt. St. Helens Logging Co. In turn, six fallers who had
worked for Lewis River were told on May 6, at a meeting held at Lewis
River's office, that they as a group might have a falling contract with
Mt. St. Helens, and they became the Bear Creek Cutting Co. Money
was advanced to them by or on behalf of Mt. St. Helens to open a
workmen's compensation account. The logging contract, as such, is
nominally with Waymire and Fund, a partnership, and is dated
May 20,1957.
In the meantime, on May 7, 1957, Harbor also contracted with the
Stacel Contracting Company to log certain tracts in the area. To do
the falling, Stacel, in turn, contracted with an additional six fallers
formerly employed by Lewis River, who, when they applied for work
at the approach of the 1957 season were told by Waymire and Fund
that they might get work on a collective-agreement basis by applying
to Stacel, which they did. The result was that these six called them-
selves the Smith Creek Cutting Co. They were also advanced the
money to open a workmen's compensation account, in this instance by
Stacel. One of the Smith Creek group testified that he understood
that the group was expected to work on the same basis as the Bear
Creek group, or not at all. Both the Smith Creek and the Bear Creek
groups worked in 1957 without a written contract.
Separate bank accounts for Mt. St. Helens, Bear Creek Cutters, and
Smith Creek Cutters were opened by Mason, Lewis River's accountant,
HARBOR PLYWOOD CORPORATION 1431
who kept the books for each group, depositing checks from Harbor,
Mt. St. Helens, or Stacel, as the case might be, 'and issuing "draw"
checks to the men involved. Lewis River's office was used as
headquarters.
Three additional contracts by Harbor for the 1957 season are in
evidence. One is 'a third logging contract, with Theodore Wall,
specifying a rate of delivery one-sixth that of Mt. St. Helens and one-
fourth that of Stacel. Another is a contract with Russell Pratt for
reloading logs on freight cars at the pond. The third is with
Wisner & Lange for building roads.
All contracts contain a uniform provision that the party agreeing
to log, load, or build roads is an independent contractor and not an
employee of Harbor. All provide that the contractor assumes liability
for compliance with Federal and State laws covering unemployment
compensation, social security, income tax, workmen's compensation,
industrial insurance, and wages and hours, with respect to its employ-
ees, and that the contractor agrees to make the necessary payments,
deductions, and returns. Provisions concerning insurance, liens,
assignment, and similar general matters are parallel. The three log-
ging contracts are on a printed form bearing the caption, Harbor
Plywood Corporation. This form contract provides that Harbor
shall retain title to the timber, take out the logging permit, approve a
logging plan to be submitted by the logger showing sequence and type
of operation, retain the right to change logging specifications and to
inspect the logger's operations, designate alternate delivery points,
determine whether to scale logs for net content or to weigh them, be
entitled to examine logger's books and records, terminate for failure
of logger to perform "any part" of contract "promptly and in the
manner specified," suspend for "market conditions" among other rea-
sons, at no penalty to Harbor, and terminate after 90 days' suspension.
The contract provides that time is of the essence and all timber covered
by it is to be delivered by November 30; also that the logger is to be
paid on a board-foot basis and to deliver logs at a specified rate.
Although the contract does not specifically so state, testimony indi-
cates that the contracting logger devotes full time to the contract.
As a practical matter, any logger who wished to take on additional
work would have to enlarge its staff and get Harbor's permission to
use the roads.
The reloading contract calls for termination by either party on 30
days' notice. The road building contract has no termination clause.
It provides that time is of the essence and calls for completion by July
20. On the latter date an agreement for additional road building was
reached and the completion date was extended to October 31, 1957.
Petitioner contends that the employees in question actually con-
stitute the logging division of Harbor Plywood and are, in effect,
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harbor employees because of the degree of control over their activities
exercised by Harbor. It argues that Harbor may terminate or suspend
the contracts without liability and that the contractors may quit at
any time, hence that the relationship between Harbor and its con-
tractors is an employee-employer relationship. Harbor, on the other
hand, contends that the independent contractor relationships which
are specifically set up in the contracts are "meticulously maintained in
practice," that they are common in the industry, and that the
day-to-day relations of Harbor with its contractors are not those of
employer and employee.
Upon careful consideration of all the facts, we conclude that Harbor
has not retained such control over the loggers, the reloaders and the
road builders-by the terms of the contracts and by actual practice
as revealed in this record-as to make these contractors its employees.
Harbor's control of the site and access does not have this effect. There
is no showing that Harbor controls the labor relations of its con-
tractors or that the type of supervision exercised by it during contract
performance influences conditions of employment among employees
of the contractors. ' And, although the logging contracts particularly
give Harbor considerable latitude in regard to termination or suspen-
sion , we are not prepared to say on this record that the provisions are
inconsistent with an independent contractor relationship.' Finally,
the assistance furnished to Waymire and Fund in forming Mt. St.
Helens Logging Co., came from Lewis River rather than Harbor and
thus cannot be said to establish that Mt. St. Helens is an employee
of Harbor rather than its independent contractor. Accordingly, we
find, on the basis of Harbor's operations during the 1957 logging sea-
son as reflected in this record, that the loggers, reloaders, and road
builders herein described are independent contractors rather than
employees of Harbor.' In the circumstances, an overall unit of
employees engaged in these functions, plus Harbor's pond employees
and Lewis River's remaining employees, would not be appropriate.
This would be a multiemployer unit, which the Board does not find
appropriate in the absence of evidence that the employers concerned
desire to bargain on that basis.'
There remains for consideration the appropriateness of separate
units, inasmuch as Petitioner has indicated a willingness to represent
the employees in question in any unit or units the Board may find
appropriate. It is clear that a unit of all employees of a logging con-
tractor is appropriate.' Thus, separate units limited to employees of
Stacel, Mt. St. Helens, and of Wall would be appropriate. Examining
See Swanson Brothers Logging Company, 71 NLRB 614, 615.
' See F. H. Snow Canning Company, Inc., 118 NLRB 284.
s See Chicago Metropolitan Home Bailders Association, 119 NLRB 1184, footnote 10.
* It is well established that single employer units are presumptively ' appropriate. See
Arden Farms, et at., 118 NLRB 117, footnote 5.
HARBOR PLYWOOD CORPORATION 1433
the operations of these contractors from a jurisdiction standpoint, we
find that Stacel and Mt. St. Helens were to receive approximately
$180,000 and $250,000 respectively, from Harbor on their 1957 con-
tracts, hence that these 2 contractors individually meet the Board's
jurisdictional requirements on an indirect outflow basis 5 Wall, how-
ever, apparently has no customers other than Harbor. Under his 1957
logging contract he was to receive $40,000, which is less than the
$100,000 currently required for assertion of jurisdiction by the Board
on an indirect outflow basis. Accordingly, we find that it will not
effectuate the purposes of the Act to assert jurisdiction over Wall. But
'Stacel and Mt. St. Helens we find are both engaged in commerce
within the meaning of the Act. We shall find appropriate individual
units of their employees. In the Stacel unit we shall include the fallers
who called themselves the Smith Creek Cutting Co. and in the Mt.
St. Helens unit the fallers who called themselves the Bear Creek Cut-
ting Co. These two groups of cutters are actually employees, rather
than independent contractors as their assumed business names tend
to indicate, because their working conditions are directly controlled
by Stacel or by Mt. St. Helens, as the case may be.6
Separate units of employees of Pratt, who has the reloading con-
tract with Harbor, and of Wisner & Lange, which has the road build-
ing contract, would also be appropriate. Pratt, however, does not
satisfy the Board's jurisdictional standard as the record shows that
his 1957 payments from Harbor are apparently his only income and
would amount to approximately $30,000. Hence, we find that it will
not effectuate the purposes of the Act to assert jurisdiction over Pratt
and we shall dismiss the petition as to him. Although it appears that
Wisner & Lange does satisfy the jurisdictional requirement inasmuch
as its contract calls for the payment of approximately $180,000 in
1957, we shall dismiss the petition as to it because the Petitioner has
not made the requisite 30-percent showing of interest among its
employees.
Maurice Anderson also was named in the petition as an alternate
Employer, in effect. The record shows only that he is a hauling sub-
contractor, without more. We shall dismiss the petition as to him
for lack of pertinent evidence. We shall also dismiss the petition
as to Lewis River, for whose employees Petitioner is already the cer-
tified representative.
Petitioner does seek certification for the pond employees of Harbor
whom it has represented by contract. This is a group of approxi-
6 See Whippany Motor Co., Inc., 115 NLRB 52. Harbor annually ships more than
$1,000,000 interstate commerce, hence is directly engaged in commerce within the mean-
ing of the Board's _ direct outflow standard. See Jonesbore Grain Drying Cooperative,
110 NLRB 481, 483.
6 See Roy 0. Martin Lumber Company, Inc., 83 NLRB 691, 693.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 21 employees working at Amboy, Washington, in the opera-
tion of the log pond and the short line railroad used to transport the
logs to the Northern Pacific Railroad. On this record we find that
this group constitutes an appropriate bargaining unit.
We find that all employees of Harbor Plywood Corporation em-
ployed at its log pond at Amboy, Washington, including those engaged
in operation of the short line railroad, but excluding guards and
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.
We also find that all employees of Stacel Contracting Co., Inc.,
Amboy, Washington, including fallers 7 and truckdrivers, but exclud-
ing guards and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
. Also, we find that all employees of Mt. St. Helens Logging Co.,
Amboy, Washington, including fallers 8 and truckdrivers, but exclud-
ing guards and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
. Because the 1957 logging season has now passed, we shall, in ac-
cordance with the Board's usual practice with respect to a seasonal
industry, direct that elections be held at or about the time of the em-
ployment peak of the next logging season on a date to be determined
by the Regional Director among the employees in the appropriate
units who are employed during the payroll period immediately preced-
ing the date of issuance of notice of election by the Regional Director.
[The Board dismissed the petition as to Lewis River Logging Co.,
Pratt Bros., Maurice Anderson, Wisner & Lange, and Ted Wall.]
[Text of Direction of Elections omitted from publication.]
7 Including those fallers who in 1957 called themselves "Smith Creek Cutters."
8 Including those fallers who in 1957 called themselves "Bear Creek Cutters."
Westlake Plastics Company and Crystal -X Corporation and
United Rubber , Cork , Linoleum and Plastic Workers of Amer-
ica, AFL-CIO, Petitioner. Case No. 4-RC-3183. February 3,
1958
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election en-
tered into by the parties hereto on November 14, 1956, an election by
secret ballot was conducted on November 29, 1956 , under the direction
119 NLRB No. 181.