Jerry Aarts Logging Co.

National Labor Relations Board - Board Decisions

Aug 12, 1946

69 N.L.R.B. 1371 (N.L.R.B. 1946)

In the Matter Of JERRY AARTS , D/B/A JERRY AARTS LOGGING COMPANY,
EMPLOYER and LUMBER AND SAWMILL WORKERS UNION , LOCAL No.
2587 , AFL, PETITIONER
Case No. 19-R-1721.Deckled August 1°2, 194-6
Metzger, Blair, Gardner it Boldt, by Mr. George H. Boldt, of
Tacoma, Wash., for the Employer.
Mr. E. K. LaChapelle, of Seattle, Wash., for the Petitioner.
Mr. Walter Belka, of Seattle, Wash., and Mr. Ray Glover, of
Enumclaw, Wash., for the Intervenor.
Mr. Martin E. Rendelman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Tacoma,
Washington, on May 24, 1946, before Daniel R. Dimick, Trial Exami-
ner. The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Jerry Aarts, an individual doing business as Jerry Aarts Logging
Company, is engaged in the business of logging. At all times since 1924,
the Employer has operated under a contract with the Weyerhauser
Timber Company for the logging of Weyerhauser owned timber in
the State of Washington and the delivery of cut timber to a log dump
located in Tacoma Bay of Puget Sound, where it is rafted and moved
by tug to the Weyerhauser sawmill and pulp mill at Everett, Washing-
ton, a distance of approximately 35 miles. The logs cut by the
Employer are commingled with other logs at the mills and are there
processed into lumber and pulp. During the year 1945, the Employer
cut and delivered in excess of 24,000,000 board feet of logs. The Weyer-
hauser Timber Company's gross sales of lumber and pulp from the
69 N. L. R. B., No. 175.
1371
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Everett mill during the year 1945, exceeded $16,000,000 in value.
More than 85 percent of the lumber sold was shipped out of the State
of Washington.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor claiming to represent employees of the Employer.
International Woodworkers of America, Local Union No. 2-157
herein called the Intervenor, is a labor organization affiliated with
the Congress of Industrial Organizations claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) *of the Act.
IV. THE APPROPRIATE UNIT
The parties agree that all production and maintenance workers of
the Employer, exclusive of supervisory and clerical employees, con-
stitute an appropriate unit for the purposes of collective bargaining.
The parties differ, however, as to the status of 13 truck drivers, and
the inclusion or the exclusion of the bull buck; the Employer and the
Petitioner contending that the truck drivers are independent con-
tractors and therefore not within the jurisdiction of the Act, while the
Intervenor asserts that they are employees and should be included
within the proposed unit. As regards the bull buck, the Petitioner
contends that he is a supervisory employee and as such should be ex-
cluded whereas the Intervenor seeks to include him; the Employer
takes no position.
Each truck driver owns and operates his own truck with the ex-
ception of one owner employed by the Employer in another capacity
who hires his own driver. Each'driver operates under an individual
contract' with the Employer and bears his own operating expenses.
He is paid on the basis of footage hauled and works regularly and
almost exclusively for the Employer 2 Although hours and condi-
I The record does not show whether the contract is oral or in writing.
2 On rare occasions when work is slack the drivers are permitted to work for other com-
panies but such fact must be reported to the Employer ' s woods superintendent.
JERRY AARTS LOGGING COMPANY 1373
tions of work are not fixed with any exactitude by the Employer, it
is expected that a sufficient number of trucks will be on hand, at a
place designated by the Employer, to transport the logs as they are
cut down. The Employer pays social security and unemployment
insurance taxes and industrial insurance premiums for the truck
drivers including the owner hired driver. For wage and hour pur-
poses the Employer carries the truck drivers on its books as employees.
In addition, the 1945 supplemental bargaining agreement between
the Employer and the Intervenor contains a provision according
seniority rights to truck drivers. We find that the truck drivers are
employees within the meaning of the Act.'
On August 27, 1940, the Employer and the Intervenor executed a
contract, which was renewed annually, covering the "employees" of the
Employer. On November 24, 1945, after a dispute during which the
operations of the Employer were completely shut down for a period
of 9 weeks, a supplemental contract was executed in which is contained
a paragraph concerned solely with the seniority rights of truck drivers.4
This is the only direct reference made to truck drivers in either con-
tract. The Intervenor contends that truck drivers were bargained
for and included in both the original and the supplemental contracts
under the general term "employees." The Employer and the Peti-
tioner contend that the truck drivers were not bargained for prior to
the supplemental contract and point to the fact that the truck drivers
did not become union members in good standing until shortly before
the dispute arose in November of 1945.
The Board will generally exclude truck drivers from a unit of pro-
duction and maintenance employees where there is disagreement among
the parties as to their inclusion. An exception will be made, however,
where their inclusion in such a unit is justified by well established bar-
gaining history. In the present proceeding there is some history of
collective bargaining for the truck drivers as part of the production
and maintenance employees' unit but its duration and extent are both
uncertain. While this history is not sufficient to justify the outright
inclusion of the truck drivers in the unit, it nevertheless does indicate
the feasibility of such inclusion. Under these circumstances, we be-
lieve that before resolving the issue as to their inclusion in the unit,
we should first ascertain the desires of the drivers themselves. Accord-
ingly, we shall permit the truck drivers to vote in a separate group to
determine their choice of a collective bargaining representative. We
shall make no unit findings at this time. Such findings will await the
outcome of the elections directed hereinafter and will depend, in part,
8 Matter of Murphy Timber Company , 37 N. L. R. B. 487 ; Matter of John Yasek, 37
N. L. R. B. 156.
4 At the hearing the Intervenor stipulated that the contract was no bar to the present
proceeding.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the results thereof. If the truck drivers and the production and
maintenance employees , voting separately , select the same bargaining
agent , they shall together constitute a single appropriate unit. If
the truck drivers select a different representative, they shall constitute
a separate appropriate unit.
For reasons set forth in the majority opinion in Matter of Coos Bay
Lumber Company ,-5 we shall include the bull buck in the appropriate
unit.
We shall direct that separate elections by secret ballot be held among
the employees in each of the voting groups described below who were
employed during the pay-roll period immediately preceding the date
of the Direction of Elections herein, subject to the limitations and
additions set forth in the Direction :
(1) All truck drivers in the employ of the Employer, excluding
supervisory employees with authority to hire, promote , discharge, dis-
cipline , or otherwise effect changes in the status of employees , or effec-
tively recommend such action;
(2) All production and maintenance employees , including the bull
buck and the high rigger but excluding the woods superintendent, all
office and clerical employees, and supervisory employees with author-
ity to hire , promote, discharge , discipline , or otherwise effect changes
i n the status of employees , or effectively recommend such action.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Jerry Aarts , d/b/a Jerry Aarts
Logging Company, Sumner , Washington , separate elections 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 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 III, Sections 10 and 11, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, among the
employees in the voting groups described 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
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 discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine in each of the voting groups whether they desire to be
5 62 N . L. R. B. 93 ; see also Matter of Cobbs and Mitchell Company, 65 N. L. R. B. 488.
JERRY AARTS LOGGING COMPANY 1375
represented by Lumber and Sawmill Workers Union, Local No. 2587,
AFL, or by International Woodworkers of America, Local Union
No. 2-157, C. I. 0., for the purposes of collective bargaining, or by
neither.
MR. GERARD D. REILLY, dissenting in part :
For reasons stated in my dissenting opinion in Matter of Coos Bay
Lumber Company ,6 I disagree with the inclusion of the bull buck
within the unit of rank and file maintenance and production employees,
but I concur in the remainder of the decision.
6 62 N. L. R. B. 93.