Lumber and Sawmill Workers Local 2592

National Labor Relations Board - Board Decisions

Mar 28, 1975

217 N.L.R.B. 186 (N.L.R.B. 1975)

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lumber and Sawmill Workers Local 2592, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Louisiana-Pacific Corporation and
Association of Western Pulp and Paper Workers,
Association of Western Pulp and Paper Workers
Local 49, Independent. Case 20-CD-432
March 28, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Louisiana-Pacific Corporation, herein
called Employer, alleging that Lumber and Sawmill
Workers Local 2592, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, herein called
Lumber and Sawmill Workers, violated Section
8(b)(4)(D) of the Act by engaging in certain proscribed
activity with an object of forcing or requiring the Em-
ployer to assign certain work to employees represented
by Lumber and Sawmill Workers rather than to em-
ployees represented by Association of Western Pulp
and Paper Workers, Association of Western Pulp and
Paper Workers Local 49, Independent, herein called
A.W.P.P.W.
Pursuant to notice, a hearing was held'before Hear-
ing Officer Eileen H. Hamamura on December 3, 1974.
The Employer, the Lumber and Sawmill Workers, and
the A.W.P.P.W. appeared at the hearing and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. Thereafter, Lumber and Sawmill
Workers and A.W.P.P.W. filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
I THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation with its principal office
in Portland, Oregon, and a pulp and lumber mill com-
plex in Samoa, California, is engaged in the production
and wholesaling of lumber, wood, pulp products, and
wood products, and that during the 12 months preced-
ing the hearing its gross volume of business exceeded
$500,000 per year. The parties further stipulated that
during the same period the Employer sold and shipped
directly to customers located outside the State of Cali-
fornia goods and services valued in excess of $50,000
and that it purchased and received from suppliers
located outside the State of-California goods and ser-
vices valued in excess of $50,000. Accordingly,-we find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the purposes of the Act to assert jurisdic-
tion herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Lumber and -
Sawmill Workers and A.W.P.P.W. are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III THE DISPUTE
A. Background and Facts
The Employer's operations in Samoa, California,
consist primarily of a pulpmill, a sawmill, and a power-
house complex. In the area surrounding the power-
house there are several conveyors which carry fuel pro-
duced in the sawmill, as well as several other conveyors
which transport fuel obtained from other sources.
Among the latter are conveyors 6 and 7 which were
constructed in 1972 for the purpose of carrying fuel
from a fuel hopper located near the powerhouse onto
conveyor 1 a which, in turn, directly supplies the boilers
which generate power for both the pulpmill and the
sawmill. Although the Employer utilized employees
represented by Lumber and Sawmill Workers to build
conveyors 6 and 7, at varying times since 1972 it has
assigned the nonelectrical maintenance work on these
two conveyors both to employees represented by Lum-
ber and Sawmill Workers and to employees represented
by A.W.P.P.W. It is clear, however, that at no time
during this period have the respective groups of em-
ployees performed such work simultaneously.
At some time in September 1974, Lumber and Saw-
mill Workers apparently was informed that employees
represented by A.W.P.P.W. were performing the non-
electrical maintenance work on conveyors 6 and 7. On
September 27, 1974, as a result of that assignment by
the Employer, Lumber and Sawmill Workers, pursuant
to its contract with the Employer, filed a grievance in
which it claimed the nonelectrical maintenance work
on the two conveyors and demanded that the Employer
engage in "no further violation of this nature." Shortly
thereafter, according to the undisputed testimony of
the Employer's personnel manager, Manuel Simas,
during an attempt to adjust the grievance Lumber and
Sawmill Workers Business Representative Alfred Las-
217 NLRB No. 39
LUMBER AND SAWMILL WORKERS LOCAL 2592
ley told him that, if the Employer did not assign the
nonelectrical maintenance work on conveyors 6 and 7
to employees represented by that Union, the latter
would call a strike and "shut the place down." At
approximately the same time, Robert Hedland, a repre-
sentative of A.W.P.P.W., informed Simas of
A.W.P.P.W.'s position that such work fell within its
jurisdiction.
B. The Work in Dispute
The work in dispute consists of nonelectrical mainte-
nance work, including mechanical and cleanup work,
on fuel conveyors 6 and 7 at the Employer's Samoa,
California, complex.
C. Contentions of the Parties
At the hearing the Employer, through the testimony
of witnesses called on its behalf, expressed its prefer-
ence that the Board award the disputed work to its
employees represented by A.W.P.P.W.I The Em-
ployer contended that the factors of efficiency and con-
tiniuity of operations favor an award of the disputed
work to these employees.
A.W.P.P.W. also takes the position that the factors
of efficiency and continuity of operations favor an
award of the disputed work to employees represented
by it. It further contends that its prior certification by
the Board as collective-bargaining representative for a
unit of the Employer's production and maintenance
employees encompasses employees within both the
pulpmill and powerhouse and, therefore, such certifica-
tion covers the , disputed work. Additionally,
A.W.P.P.W. argues that the Board should award the
disputed work to employees represented by it because
conveyors 6 and 7 are functionally interrelated with
conveyor la, which is an integral part of powerhouse
operations, and that in the past this latter conveyor has
been maintained exclusively by employees represented
by A.W.P.P.W.
Lumber and Sawmill Workers contends primarily
that the factors of efficiency and continuity of opera-
tions favor an award of the disputed work to employees
represented by it. It further argues that the parties by
past practice have interpreted the Board certification of
the A.W.P.P.W. as limited solely to production and
1 At the hearing certain officials of the Employer, who were called to
testify on behalf of Lumber and Sawmill Workers, stated that they would
prefer that the Board award the disputed work to employees represented by
that Union. However, the two witnesses called by the Employer testified
that the Employer had taken the position that the disputed work should be
awarded to employees represented by A W.P P W and a third witness, who
made the formal appearance at the hearing on behalf of the Employer, also
expressed the Employer's preference for such an award. In these circum-
stances, we conclude that the Employer, in fact, has expressed a preference
that the Board award the disputed work to employees represented by
A.W P P.W.
187
maintenance employees within the pulpmill and that,
therefore, such certification is inconclusive with respect
to the disputed work which is performed within the
powerhouse complex.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act, it must
be satisfied that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated, and that there is
no agreed-upon method for the voluntary settlement of
the dispute.
As stated above, it is uncontroverted that Lumber
and Sawmill Workers demanded the disputed work and
threatened to strike and close the plant down in support
of its demand. Based on the foregoing and the record
as a whole, we find that Lumber and Sawmill Workers
sought to force or require the assignment of the dis-
puted work to employees represented by it rather than
to employees represented by A. W.P.P. W. Accordingly,
we find reasonable cause exists to believe that Lumber
and Sawmill Workers violated Section 8(b)(4)(D) of the
Act.
No party contends, and the record discloses no evi-
dence showing, that an agreed-upon method for the
voluntary adjustment of this dispute exists to which all
parties are bound. Accordingly, we find that the dis-
pute is properly before the Board for determination
under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to various relevant factors.
1. Certification and collective-bargaining agreements
Lumber and Sawmill Workers has never been certi-
fied as collective-bargaining representative for a unit of
the Employer's employees. In 1966, A.W.P.P.W. was
certified as collective-bargaining representative for a
unit of all production and maintenance employees.
However, it appears from a careful reading of the
Board's Decision and Direction of Election which
preceded certification that such certification, encom-
passed only production and maintenance employees at
the Employer's pulpmill.2 This certification has not
2 Sub nom. Georgia-Pacific Corporation, 156 NLRB 946 (1966) This case
involved the question of the appropriateness of separate units at the Em-
ployer's Samoa, California, pulpmlll and powerhouse, and elections were
directed among three separate voting groups. Following the elections, the
International Brotherhood of Electrical Workers was certified as collective-
bargaining representative of two separate units, one comprised of mainte-
nance electricians and one of all recovery steampower group employees in
Continued
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been formally amended or clarified by the Board to
extend to production and maintenance employees per-
forming work within the powerhouse complex. Fur-
thermore, as noted above, the record clearly indicates
that the Employer in the past has assigned the disputed
work at various times to employees represented by
Lumber and Sawmill Workers as well as to those repre-
sented by A.W.P.P.W. and that the parties themselves
have never delineated the jurisdiction of the respective
Unions with regard to the disputed work. The factor of
certification, therefore, is not determinative of the in-
stant dispute.
The Employer currently has collective-bargaining
agreements with both Lumber and Sawmill Workers
and A.W.P.P.W. An examination of these agreements
discloses that Lumber and Sawmill Workers has been
recognized by the Employer as representative of em-
ployees within the sawmill and woods operations only
and that A.W.P.P.W.'s recognition extends only to em-
ployees within the pulpmill.3 Furthermore, neither
contract specifically mentions the work in dispute. This
factor, therefore, is inconclusive.
2. Employer's past practice, assignment, and
preference
It is undisputed that since the construction of con-
veyors 6 and 7 the Employer at varying times has as-
signed the disputed work to employees represented by
the respective Unions. Furthermore, although the
events which precipitated the instant dispute arose
from the Employer' s assignment of the disputed work
to employees represented by A.W.P.P.W., it is clear
that, thereafter, the Employer also assigned such work
to employees represented by Lumber and Sawmill
Workers. The factors of the Employer's assignment
and past practice, therefore, are not determinative of
the instant dispute.
the pulpmill and powerhouse area, and A W P.P.W. was certified to repre-
sent "all production and maintenance employees " Neither A.W P P.W 's
certification nor the Board's decision makes any specific mention of em-
ployees performing nonelectrical maintenance work within the powerhouse
complex, the particular category of employees involved herem
3 The contract between the Employer and Lumber and Sawmill Workers
contains the following recognition clause which reads in pertinent part:
During the life of this agreement Union shall be the sole collective
bargaining agency for all hourly employees, permanent, temporary, and
part-time, in the sawmill and woods operations of Employer . .
[Emphasis supplied ]
The contract between the Employer and A.W P.P.W. contains the following
relevant provision which reads in pertinent part
Company recognizes the Signatory Union as the sole collective bargain-
ing agent for all hourly employees of Company employed in the mill
covered by this Agreement .. [Emphasis supplied ]
As noted above, the Employer, through the tes-
timony of various witnesses and particularly that of its
designated representative for the purpose of making its
formal appearance at the hearing, expressed its prefer-
ence that the disputed work be awarded to employees
represented by A.W.P.P.W. While we do not afford
controlling weight to this factor, we find that it tends
to favor the award of the disputed work to employees
represented by the A.W.P.P.W.
3. Relative skills, efficiency, and continuity of
operations
It is undisputed that each of the respective groups of
employees possess the requisite skills to perform the
disputed work in a manner satisfactory to the Em-
ployer. This factor, therefore, does not aid us in making
a determination of the dispute.
The record further discloses that the Employer's
pulpmill is operated on a 7-day-a-week, 24-hour-a-day
basis and that conveyors 6 and 7 are in use on the same
schedule in order that fuel may be supplied continu-
ously to the boilers which generate power for the pulp-
mill. Inasmuch as employees represented by the
A.W.P.P.W. also perform maintenance work in the
pulpmill, at least some of these' employees are available
at all times. The employees represented by Lumber and
Sawmill Workers are principally assigned to the saw-
mill. Although the sawmill is located only some 100
yards from the powerhouse, a distance considerably
closer than the pulpmill which is approximately 1 mile
from the powerhouse, it is closed after regularly sched-
uled hours on Saturdays and during the entire day on
Sundays and, therefore, employees represented by
Lumber and Sawmill Workers are not usually sched-
uled for work during these times. Thus, in the'event of
a breakdown of conveyor 6 or 7 during these periods,
employees represented by the A.W.P.P.W. are readily
available to perform maintenance work on these con-
veyors, whereas employees represented by Lumber and
Sawmill Workers would have to be contacted at home
prior to reporting for work, thereby delaying the time
in which the conveyors would be repaired and, conse-
quently, further disrupting operations within the pulp-
mill. Furthermore, in the past only employees repre-
sented by the A.W.P.P.W. have been assigned
maintenance work on conveyor la which, as noted
above, is connected to conveyors 6 and - 7 and leads
directly to the boilers, and, therefore, these employees
are both available for, and capable of, maintaining the
entire fuel conveyor system emanating from the fuel
hopper. The factors of efficiency and continuity of op-
erations, therefore, favor an award of the disputed
work to employees represented by A.W.P.P.W.
LUMBER AND SAWMILL WORKERS LOCAL 2592 189
CONCLUSION
Upon the record as a whole , and after full considera-
tion of all relevant factors involved , we conclude that
the Employer 's employees represented by A.W . P.P.W.
are entitled to perform the work in dispute. We reach
this conclusion upon the facts that such assignment will
result in greater efficiency and continuity of operations;
such assignment is consistent with the Employer 's pref-
erence; and these employees possess the requisite skills
to perform the disputed work satisfactorily . Accord-
ingly , we shall determine the dispute before us by
awarding the work in dispute to the Employer's em-
ployees represented by A.W . P.P.W., but not to that
Union or its members . In consequence, we also find
that Lumber and Sawmill Workers is not entitled by
means proscribed by Section 8(b)(4)(D ) of the Act to
force or require the Employer to assign the disputed
work to employees represented by it.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act , as amended , and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees of Louisiana -Pacific Corporation who
are currently represented by Association of Western
Pulp and Paper Workers, Association of Western Pulp
and Paper Workers Local 49 , Independent , are entitled
to perform the work of nonelectrical maintenance
work, including mechanical work and cleanup work,
on fuel conveyors 6 and 7 at the Employer 's Samoa,
California , complex.
2. Lumber and Sawmill Workers Local 2592 , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force or require Louisiana-
Pacific Corporation to assign the above work' to em-
ployees represented by it.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Lumber and Sawmill Work-
ers Local 2592 , United Brotherhood of Carpenters and
joiners of America, AFL-CIO , shall notify the Re-
gional Director for Region 20, in writing , whether or
not it will refrain from forcing or requiring the Em-
ployer, by means proscribed by Section 8(b)(4)(D) of
the Act , to assign the work in dispute to employees
represented by Lumber and Sawmill Workers rather
than to employees represented by A.W .P.P.W.