S. A. Agnew Lumber Co.

National Labor Relations Board - Board Decisions

Oct 16, 1942

44 N.L.R.B. 1253 (N.L.R.B. 1942)

In the Matter of S. A. AGNEW, DOING BUSINESS AS S. A. AGNEW LUMBER
CO. AND JOHN CARNS, J. P. GUNTHER, GEORGE NULL, AND ERNEST
OLSON, CONTRACTORS FOR S. A. AGNEW and LOCAL 3-49, INTERNA-
TIONAL WOODWORKERS OF AMERICA, C. I. O.
Case No. R-4220.-Decided October 16, 1943 -
Jurisdiction : lumbering industry.
Jnvestigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives : contract entered into after institution
of proceedings held no bar; contract terminable upon 30 days' notice held no
bar; election necessary.
Unit Appropriate, for Collective Bargaining : all employees of Company and of
its gypo logging and hauling contractors employed in Company's sawmill and
logging operations; excluding office and clerical employees, timekeepers,-shingle
mill employees, supervisory employees, and contractors.
Practice and Procedure : petition dismissed as to party (contractor) who had no
employees and party (contractor) who was not served with notice and did not
appear at hearing
Mr. S. A. Agnew, of Centralia, Wash., for the Company.
Mr. John Cams and Mr. Lee Sapp, of Centralia, Wash., for John
Carps.
Mr. George Null, of Centralia, Wash., for George Null.
dlr. Ernest Olson, of Centralia, Wash., for Ernest Olson.'
Mr. Harry George, of Portland, Oreg., Dlr. Kenneth Johnson, of
Aberdeen, Wash., and Mr. Harold Slater, of Centralia, Wash., for the
C. I. O. , -
Mr. C. D. Cunningham, of Centralia, Wash., for the A. F. of L.
Mr. Charles F. McErlean, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
Upon an amended petition duly filed by Local 3-49, International
Woodworkers of America, herein called the C. I. 0., alleging that a
question affecting commerce had arisen concerning the representation
of employees of S. A. Agnew, doing business as S. A. Agnew Lumber
44 N. L. R. B., No. 235
1253
1254 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Co., Centralia, Washington, herein called the Company, and John
Carns, J. P. Gunther, George Null, and Ernest Olson, Contractors
for S. A. Agnew,' all of Centralia, Washington, the-National Labor
Relations Board provided for an appropriate hearing on due notice
before Vern Countryman, 'Trial Examiner. Said hearing was held
on August 27, 1942, at Chehalis, Washington. The Company, Carns,
Null, Olson, the C. I. 0., and Lumber and Sawmill Workers Union,
Loca1'2628 , herein called the A. F. Of t., appeared , participated, and
were afforded full opportunity to be heard , to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
J. P. Gunther was not served with a notice of hearing . 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 Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE COMPANY AND THE CONTRACTORS
S. A. Agnew, an individual doing business as S. A. Agnew Lumber
Co., has his principal office and place of business in Centralia, Wash-
ington. He is engaged in the felling and logging of timber, and in
the manufacture and sale of lumber and-lumber products. The 1941
sales amounted to approximately $350,000, a large part of which was
shipped to places outside the State of Washington. About 72 percent
of the present production' is sold to the United States Government for
use in Navy yards and the shipbuilding industry. He concedes that
he is engaged in commerce within the meaning of the Act. .
John Carns works for the Company under a falling and bucking
agreement dated December 31, 1941. This work consists of cutting
timber and preparing logs for the purpose of sale or shipment to the
lumber mill of the Company to be manufactured into lumber. He
normally employs',about'20 person's, but has an arrangement whereby
the Company pays his employees.
J. P. Gunther has worked for the Company since January 1942
under a verbal falling and bucking contract. He performs the same
type of work as Carns and normally employs three persons who are
carried on the pay roll of the Company.
George Null works for the Company under a contract dated Decem-
ber 24, 1941, to fall, buck, yard, load, and deliver timber to designated
, places. His work differs from that performed by Carns in that he
r
IA. Yeager was named in the petition as a contractor for S A. Agnew . At the open-
ing of the hearing, the petitioner moved to strike his name from the petition . The request
v.as granted.
S. A. AGNEW LUMBER CO. 1255
hauls _logs out of the woods . He normally employs seven persons, none
.,Of whom appear on the Company 's pay roll . , The Company guarantees
,payment for gasoline used by Null in performance of his work.
,Ernest Olson started working for the Company in the spring, of 1941
under a verbal contract to build roads . He has no -contract at present
and works for a stipulated daily sum , which includes the rental -of his
bulldozer and wages of himself as operator . He normally employs one
,person and builds roads as staked out by Company engineers at the
logging camps.
II. THE ORGANIZATIONS INVOLVED
Local 3-49, International Woodworkers of America , is a labor organ-
ization affiliated with the Congress of Industrial Organizations. , It
admits to membership persons employed , in the -Company's , logging
and sawmill operations. '
Lumber and Sawmill Workers Union, 'Local 2628, is a labor organi-
zation chartered by United Brotherhood of Carpenters and Joiners
of America , affiliated - with the American Federation of Labor. It
admits to membership persons employed in the Company 's logging and
sawmill operations.
III. THE QUESTION CONCERNING REPRESENTATION
On May -14, 1941, the Company and the A. F. of L. entered into a
collective bargaining contract by which the A. F. of,L. was recognized
as the sole bargaining agent. The contract , which required mainte-
nance of membership in the A. F. of L ., rani for'1'year but provided
that negotiations for revision or renewal should commence 30 days
prior -to the expiration date and 'if agreement for a new contract was
not reached by May 14, 1942, the contract was to remain in effect as
long as negotiations continued or until negotiations were terminated
by either party. The Company and the-A.-F. of L. commenced nego-
tiations for a new contract early `in April 1942 but , did riot reach an
-agreement until sometime after June 19, 1942. A new contract was
signed on July 1, 1942 , *ranting the same type of'recognition as pro-
vided in the 1941 contract. On July 6, 1942, a supplemental agree-
ment was entered into by the Company and the A. F. of L. extending
the contract to cover the Company's contractors and subcontractors.
On December 27, 1940, Null recognized the A. F. of L. as sole bar-
gaining agent for the employees in his logging operations and signed
a contract . This contract , has no expiration date but , provides for
modification or termination on-30 days ' notice by either party.
In November 1941 , the C. I. O. called on the - Company but was ad-
vised of the contract with the A . F. of L. On June, 13 , 1942, the
C. I. O. sent a'letter to the ,Company in which it claimed to represent
1256 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
. a majority and requested negotiations 'for a contract. The Company
denied 'receiving the letter., On June 16,'1942, the C. I. O. filed the
original petition in this case and the Company and the A. F. of L.
were notified of the petition by letters dated June 17, 1942. A state-
ment of the Board's Field Examiner, introduced in evidence at the
hearing, shows that the C: I. O. represents a substantial number of
employees in the unit hereinafter found to be appropriate.2
The July 1, 1942, contract between the Company and the A. F. of
L. was agreed to and executed after both parties had notice that a peti-
tion had been filed with the Board alleging that a question of repre-
sentation existed. Under these circumstances, we find that the con-
tract does not constitute a bar to a present determination of repre-
sentatives.3 The A. F. of L. contract with Null is terminable by its
terms'at any time,upon 30 days' notice by either party. Such a eon-
tract does not preclude the Board from determining a question con-
cerning representation 4
We`find that a question affecting commerce has arisen concerning,
the representation of,employees of the Company, within the meaning
of Section 9 (c) sand Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The petition, as amended at the hearing. alleges that "all employees
of S. A'. Agnew Lumber Company and all [employees] of its gyp(?
logging and hauling 'contractors which presently are John' Carns,
J. P. Gunther, George Null, and -Ernest Olson, being all those em-
ployed in and about the sawmill and logging operations of the Com-
pany,. but excluding office and- clerical employees, supervisory em-
ployees and employees of the shingle mill" constitute a unit appro-
.prite for the purposes of collective bargaining.
2 The C. I 0. filed 144 authorization cards ''and its membership roster and dues record.
The, signatures on all cards appeared to be genuine original signatures and 120 of the
'cards bear signatures corresponding with names on the Company 's pay roll of June 15,
1942 , which contained 250 names . The C. I O. dues records show that 118 of the 120
on the pay roll were members in good standing with dues paid to within 3 months of
July 1, 1942 . None of - the'names on the C. I. 0 cards appeared on the pay rolls of J. P.
Gunther showing 3 employees or Ernest Olson showing 1 employee . The Field Examiner's
'report does not indicate whether any check was made against the payroll of John Carns
or George Null The A F. of L, in support of its representation claims , submitted its
contract requiring maintenance of membership as a condition of employment.
8 See Matter of New Jersey Broadcasting 'Corporation and Local Union 1212, Interna-
tional Brotherhood of Electrical Workers, A . F. of L., 41 N. L. R B. 1221.
_4 Matter of William ,Senn , Frank' Penn, Ida Senn and Lelia Senn, individually and as
copartners, doing business as Brightman Nut'& Manufacturing Company and International
Union, United Automobile Workers of America ( CIO), 30 N. L R . B. 663 ; Matter of
Phelps Dodge Refining Corporation and International Union of Kline, Mill and Smelter
Workers, C I. 0., 40 N. L. R B. 1159: - Matter of American Cyanamid and Chemical Cor-
poration and Gas , Coke and Chemical Workers, Local No. 12119, affiliated with the National
Council of Gas, Coke and Chemical Workers and, District 50, United Mine Workers ' of
Amerioa, C . I. O., 43 N. L. it. B. 919
S. A. AGNEW LUMBER CO . 1257
The unit alleged in the petition as amended conforms to the unit
covered by the contract and the supplemental contract between the
Company and the A. F. of L., dated July 1, 1942,and July,6, 1942,
respectively. With the exception of Olson, none of the parties at the
hearing objected to the unit claimed by the C. L O.
The parties stipulated that office and clerical employees,.timekeepers,
shingle mill employees, and supervisors5 of the Company, should be
excluded from the unit. We shall, therefore, exclude them. The
Company, the A. F. of L., and the C. I. O. desire the exclusion of
Contractors Null, Gunther, Carns, and Lee Sapp, partner of Carns..
We shall exclude them in accordance with the desire of the parties.
The A. F. of L. desires the inclusion of Contractor Olson, and the
Company and C. I. O. desire his exclusion. Olson has worked under
contract building roads for the Company and although at present he
does not have a contract he continues to perform the same work, not
as a regular employee but as operator of his bulldozer which he rents
to the Company for a stipulated daily rental fee. His interests and
status are different than those'of the other employees. We 'shall
therefore exclude him from the unit. He has no employees at present.
We shall therefore' dismiss the petition as to him.
Gunther was not served with a notice of hearing and did not appear
at the hearing. We shall therefore exclude his employees from the
unit without prejudice,o the right of any party to seek their inclusion
in the unit at a later date, and shall dismiss the petition as to him.
We find that all employees of the Company and of its gypo logging
and hauling contractors, John Carns and George Null, who are em-'
ployed in the Company's sawmill and logging operations, excluding
office and'-clerical employees, timekeepers, shingle mill employees,'
supervisory employees, John Carns, George Null, J. P. Gunther, Lee
Sapp; and Ernest Olson, constitute a unit appropriate for the pur-
poses of collectide bargaining, within the meaning of Section 9 (b)
of the Act. '
V. THE DETERMINATION OF REPRESENTATIVES
The A. F. of L. requested that the pay roll of August 22, 1942, be
used' to determine eligibility in the event an election was directed.
That pay roll or 'a current pay roll at the time of the Direction is
satisfactory to the C. I. O. None of the other parties stated any
5 The stipulation named the following supervisors to be excluded : Ted Niemi, yard fore-
man, T R. Parrish, sawmill superntendent, H 0 Hansen-and B. M Epperson, planer
foremen, Ben Louden, engineer and master mechanic, L W. Shelton and Calvin Burr,
construction foremen, W. L. Sapp, head bucker, P R. Sherwood , woods superintendent,
Harry Keller and John Caton, camp foremen, John Charneski, hook tender, and W. J.
Nelson, road and track foreman. The parties also stipulated to exclude two shipping
department foremen but failed to name them. The pay roll indicates that they are W. H.
Copping and M. A McKinley,
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position. The record does not indicate any reason for departing from
our usual practice of using a current pay roll.
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 Rela-
tions Act, and pursuant to Article III, Section 8, 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 S. A. Agnew,
doing business as S. A. Agnew Lumber Co., and John Carns and
George Null, contractors for S. A. Agnew, all of Centralia, Wash-
ington, an election by secret ballot shall be conducted as early as pos-
sible, but not later than thirty (30) days from the date of this Direc-
tion, 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, Section
9, of said Rules and Regulations, among the employees in the unit
found to be 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 said pay-
roll period because they were ill or on vacation or in the active mili-
tary service or training of the United States, or temporarily laid
off, but excluding employees who-have since quit or been discharged
for cause, to determine whether they desire to be represented by
Local 3-49, International Woodworkers of America, C. I. 0., or by
Lumber and Sawmill Workers Union, Local No. 2628, of the United
Brotherhood of Carpenters and Joiners of America, affiliated with
the A. F. of L., for the purposes of collective bargaining, or by neither.
ORDER
IT IS HEREBY ORDERED that the petition be, and it hereby is, dismissed,
insofar as it alleges that a question affecting commerce has arisen
concerning the representation. of employees of Ernest Olson and
J. P. Gunther.
MR. WM. M. LEISERSON took no part in' the consideration of the
above Decision, Direction of Election, and Order.