Klement Timber Co.

National Labor Relations Board - Board Decisions

Nov 30, 1944

59 N.L.R.B. 681 (N.L.R.B. 1944)

In the Matter of THEODORE KLEMENT D/B/A KLEMENT TIMBER
COMPANY AND JACKSON LOGGING COMPANY and INTERNATIONAL
WOODWORKERS OF AMERICA , LOCAL 2-67, CIO
Case No. 19-R-1362.-Decided November 30, 19114
Messrs. R. W. Maxwell and Leander T. Twrner, both of Seattle,
Wash., for Klement.
Mr. Arthur Newton, of Everett, Wash., for Jackson.
Messrs. Van C. Griffin and Karly Larsen, both of Seattle , Wash., for
the Union.
Mr. Harry 1Vathanson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Woodworkers of Amer-
ica, Local 2-67, CIO, herein called the Union, alleging that a question
affecting commerce had arisen concerning.the representation of em-
ployees of Theodore M. Klement d/b/a Klement Timber Company,
Fortson, Washington, herein called Klement, Jackson, Logging Com-
pany,, Arlington, Washington, herein called Jackson, both herein
collectively called the Companies, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Joseph
D. Holmes, Trial Examiner. Said hearing was held at Everett,
Washington, on October 21, 1944. Klement, Jackson, and the Union
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. At the hearing Klement moved to dismiss the
petition insofar as he was concerned on the ground that he is not an
employer of the employees involved herein. For the reasons set
forth in Section I, below, the motion is hereby denied. All parties
were afforded an opportunity to file briefs with the Board.
59 N. L. R. B., No. 137.
681
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Theodore M. Klement, doing business as the Klement Timber Com-
pany, manufactures lumber and lumber products from logs obtained
in the State of Washington. His finished products are valued at
$300,000, annually of which 85 percent is shipped outside the State
of Washington and sold in the lumber markets of the world.
Theodore Jackson, doing business as the Jackson Logging Com-
pany, is engaged in logging timber in the State of Washington. He
has an oral contract with Klement to log timber on the latter's "stump-
age" on a "cost-plus" basis. The employees of this operation are
solely involved in the instant proceeding. Fifteen percent of the °
timber he logs on Klement's "stumpage" is shipped to Klement's saw-
mill, and of the balance, which is shipped to markets in Everett,
Washington, 90 percent is sold in interstate commerce.
Klement's business is apparently divided into two categories. He
operates a sawmill and also owns "stumpage" which is logged for him
under contract. He owns the logged timber, some of which he uses
in his sawmill, and the balance of which he sells in the open market.
As noted above, Jackson has an oral contract to log Klement's "stump-
age" on a "cost-plus" basis. This agreement has been in effect since
1942. Pursuant to its terms, Jackson hires, discharges, and directs
the.work of the logging employees, and furnishes most of the equip-
ment. Klement pays all salaries, Social Security taxes, industrial
insurance premiums, the cost of maintaining all the logging equip-
ment, some of which he supplies, and all other additional expenses in
connection with the logging operation.' In addition, Jackson is paid
a determined amount by Klement for each thousand feet logged. All
books and records are kept at Klement's office by his bookkeeper,
except the time book which is kept by Jackson. Before each pay period
the time book is delivered to Klement for pay-roll purposes. Jackson
is registered as the employer with the appropriate governmental
agencies for Social Security taxes, withholding tax, and industrial
insurance. However, all returns are prepared by Klement's book-
keeper. Although Jackson uses his own equipment, and hires, dis-
charges, and directs the work of the men engaged in the logging
operation, Klement makes' the final decisions with regard to salaries,
vacations, and grievances. It also is true that Klement may discharge
any'or all members of the logging crew.
Klement ,charges these items to the "Jackson Account "
KLEMENT TIMBER COMPANY 683
In view of the control exercised by Klement over the Jackson Log-
ging Company operation on his "stumpage" and the employees en-
gaged therein, we are of the opinion and find that he and Jackson are
the employers, and each of them is the employer, of such employees
within the meaning of Section 2 (2) of the Act.2 We also find that
Klement and Jackson are each engaged in commerce within the mean-
ing of the Act.
II. THE ORGANIZATION INVOLVED
International Woodworkers of America, Local 2-67, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 26, 1944, the Union made a written request upon Klement
for recognition as the bargaining agent of the employees engaged in
"the Jackson Logging Company operation." In a telephone conversa-
tion on the same day the Union's request was refused .3
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of,
employees in the unit hereinafter found appropriate.-
We find that a question affecting commerce has arisen concerning
the representation of employees of the Companies, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union desires a unit consisting of all employees engaged in the
"Jackson Logging Company operation" on Klement's "stumpage," ex-
cluding supervisory and office employees. Neither Klement nor Jack-
son opposes the composition of the unit sought.
We find that all employees of the Companies engaged in the Jackson
Logging Company operation on Klement's "stumpage," excluding
office employees, and all supervisory employees with authority to hire,
promote, 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 mean-
ing of Section 9 (b) of the Act.
2 See Matter of Sierra Madre-Lamanda Citrus Association and Benjamin H. Betz, an
i3idividual doing business as Betz Packing Company, 23 N. L. R. B . 143, and other cases
cited therein ; Matter of Long Lake Lumber Company and F. D. Robinson , 34 N. L. R. B.
700.
8 Jackson has a written contract with the Union.
4 The Field Examiner reported that the Union submitted 30 authorization cards and
that there were 28 employees in the alleged appropriate unit.
684, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Relations 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 Theodore Klement
d/b/a Klement Timber Company, Fortson, Washington, and Jackson
Logging Company, Arlington, 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
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, 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 vaca-
tion 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 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 whether or not they desire to be represented by
International Woodworkers of America, Local 2-67, CIO, for the
purposes of collective bargaining.