Jalmer Berg

National Labor Relations Board - Board Decisions

Dec 5, 1942

45 N.L.R.B. 1065 (N.L.R.B. 1942)

In the Matter of JALMER BERG , AN INDIVIDUAL ands INTERNATIONAL
WOODWORKERS OF, AMERICA , LOCAL No. 2-46, :C. I. O.
Case No. R-44-59.-Decided December 5, 194k
Jurisdiction : lumbering industry.
Investigation and Certification of Representatives : existence of question:
refusal to accord recognition to petitioner because of alleged existing contract
with rival organization ; contract no bar since of indefinite duration and
contracting union itself waived any interest therein ; election necessary.
Unit Appropriate for Collective Bargaining : all employees of individual engaged
in lumbering who are engaged in cutting, yarding,, and loading, including
hooktenders and regular truck drivers, but excluding supervisors, office
employees, and operators of trucks for hire.
Abbott ,& Lant, by Mr. Harold Lant, of Bellingham, Wash., for Berg.
Mr. Van C. Grifn,,of Seattle, Wash., for the I. W. A.
Mr.'Levis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Woodworkers of America,
Local No. 2-46, C. I. 0., herein called the I. W. A., alleging that a
question affecting commerce had arisen concerning the representation
of employees of Xalmer Berg, an individual, Glacier, Washington,
herein called Berg, the National Labor Relations Board provided for
an appropriate hearing upon due notice before Daniel R. =Diniick,
Trial Examiner. - Said hearing was held at Bellingham, Washington,
on November 2; 1942. Berg and the I. W. A. appeared and partici-
pated at the .hearing.' All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and Ito intro=
duce evidence hearing on the issues. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
1 Lumber and Sawmill Workers Union, Local 2667, A. F. of L, herein called Local 2667,
although served with notice, did not appear at the hearing. However, its representatne
appeared as an observer.
45 N. L. R. B., No. 150.
1065
k
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF BERG
Jalmer Berg is an individual engaged in the cutting, removal, and
sale of timber near Glacier, Washington. Berg cuts and removes
approximately 3,000,000 board feet of timber per month. Berg sells a
portion of the timber to Northwestern Shipbuilding Company, en-
gaged in the construction of ships for the United States Government,
and a portion to. Bellingham Plywood Company, engaged - in the
production of war materials.
II. THE ORGANIZATIONS INVOLVED
International Woodworkers of America, Local No. 2-46, is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership Berg's employees.
Lumber and Sawmill Workers Union, Local, 2667, is a labor or-
ganization affiliated with the American Federation of Labor, admit-
ting to membership Berg's employees.
III. THE QUESTION CONCERNING REPRESENTATION
On July 16, 1942, the I. W. A. requested Berg to recognize it as the
exclusive representative of Berg's employees. Berg refused this
request stating that he was operating under a contract with Local 2667.
On October 17, 1941, the Board, after a directed election, certified
Local 2667 as the exclusive representative of Berg's employees."
Thereafter, on April 25, 1942, Berg and Local 2667 entered into an
exclusive bargaining contract. The contract provides that "this
agreement shall be in full force and effect until such time as either
of the parties thereto shall give thirty days'-written notice to the
other that it desires a change or cancellation of this agreement." The
representative of Local 2667 stated at the hearing, that Local 2667 did
not consider that its contract with Berg was a bar to a present-deter-
mination of representatives and further stated that it did not desire
to participate in any election that might result from this proceeding.
Berg contends that his contract is a bar to this proceeding and urges
that the petition be dismissed.
As indicated above, Berg's contract with Local 2667 contains no
provision limiting its duration to a definite term. Since the existing
2 36 N. L.. R. B. 234.
- JALMEiR BERG 1 1067
contract is terminable upon 30 days' notice and since Local 2667
appears to have waived any interest in the contract, we are of the
opinion and find that such contract does not constitute a bar to a
present investigation and determination of representatives.3
A statement of 'a'Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the I. W. A. represents a sub-
stantial number of the employees in the unit hereinafter found to be
appropriate.4
We find that a question affecting commerce has arisen concerning
the representation of employees of Berg, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The I. W. A. contends that all employees of Berg engaged in cut-
ting, yarding, and loading, including hooktenders and regular truck
drivers, but excluding supervisors, office employees, and operators of
trucks for hire, constitute a unit appropriate for the purposes of col-
lective:•barg tining.5 Neither Local 2667 nor Berg took any position
with respect to the unit.
We find that all employees of Berg engaged in cutting, yarding, and
loading, including hooktenders and regular truck drivers, but exclud-
ing supervisors, office employees, and operators of trucks for hire,
constitute a unit appropriate for the purposes of collective bargain-
ing, 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 our Direction of Election,
subject to the limitations and additions set forth in the Direction.
We shall not at this time accord a place on the ballot to Local 2667,
inasmuch as its representative stated at the hearing that it did not
desire to participate in the election. However, we shall place it on
the ballot if it notifies us of such desire within 5 days from the date
of this Decision.
8 See Matter of Great Lakes, Engineering - Works and-Local 2407, Steel Workers Organizing
Committee, C I. O, 34 N L. R B 1303.
4
The Field Examiner, reported that the I. W. A. presented 38 membership application
cards bearing apparently genuine signatures of persons whose names appear on Berg's pay
roll of August 1, 1942. There are approximately 76 employees in the unit hereinatter
found to be appropriate Local 2667 (lid not present any evidence of representation.
"This is the same unit that is provided for in the contract between Local 2667 and
Berg and previously found appropriate by the Board
1068 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
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 Rela-
tions Act, and pursuant to-Article, III, kSection 9,.of National, Labor
Relations Board Rules.and -Regulations-Series 2, as ,amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain, representa-
tives for the ;purposes of collective bargaining with Jalmer -Berg, an
individual, Glacier, Washington, an election by.secret ballot_shall,be
conducted as early as possible, but,not-later.thanthirty (30),days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Nineteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
I•II, Section 10, of said Rules and Regulations, among the employees
in the unit found appropriate in Section HIV, above, -who were employed
-during the ,pay-roll period, ;immediately -preceding the date of this
Direction, including. any:such employees who did,not work ;during
said 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 any -who have since quit or,been'discharged for
cause, to determine whether or not ;they desire -to be represented .by
International Woodworkers of America, Local No. •2-46, affiliated
with the -Congress,of Industrial lOrganizations, for .the purposes of
collective bargaining.