Santiam Lumber Co.

National Labor Relations Board - Board Decisions

Sep 23, 1946

71 N.L.R.B. 5 (N.L.R.B. 1946)

In the Matter of SANTIAM LUMBER Co., EMPLOYER and LOCAL 5-265,
INTERNATIONAL WOODWORKERS OF AMERICA, CIO, PETITIONER
Case No. 19-R-1814.-Decided September 23, 1946
Mr. G. A. Metzger, of Eugene, Oreg., and Mr. Walter Leisy, of Leba-
non, Oreg., for the Employer.
Messrs. A. F. Hartung and Harvey R. Nelson, of Portland, Oreg.,
and Mr. Ed. McSorley, of Sweet Home, Oreg., for the Petitioner.
Mr. Doyle Pearson, of Portland, Oreg., and Messrs. C. P. Richards
and W. 0. Kelsay, of Eugene, Oreg., for the Intervenor.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Albany,
Oregon, on July 9, 1946, before Benjamin B. Law, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Santiam Lumber Co., a partnership composed of Fred W. Powers,
Carl L. Davis, John R. Powers, George E. Powers, Helen R. Davis, and
Richard E. Davis, is engaged in the operation of a sawmill at Sweet
Home, Oregon. During the current year, approximately 80 to 90
percent of the Employer's anticipated lumber production, having an
estimated value of in excess of $1,000,000, will be shipped to points
outside the State of Oregon.
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 Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
Lumber and Sawmill Workers Local Union No. 2791, United Broth-
erhood of Carpenters and Joiners of America, herein called the Inter-
71 N. L. R. B., No. 2.
5
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
venor, is a labor organization affiliated with the American Federation
of Labor, claiming to represent employees of the Employer.,
III. THE QUESTION CONCERNING REPRESENTATION
On December 29, 1943, the Employer and the Intervenor entered
into a contract covering all the Employer's workers except office and
supervisory personnel, effective to May 1, 1944, and automatically
renewable from year to year thereafter in the absence of notice by
either party to the other of "an intention to change, modify, revise,
adjust or terminate" the agreement "at least 30 days preceding May 1
of any year." Neither party to the contract has at any time given
notice of intention to terminate the contract.
On April 21, 1945, fire completely destroyed the Employer's mill.
In June 1945, reconstruction of the mill was commenced and on April
17, 1946, the Employer resumed production on a limited basis. At the
time of the hearing, full production was contemplated by September
9, 1946.
On April 23, 1946, the Petitioner advised the Employer that it rep-
resented a majority of the latter's employees and requested exclusive
recognition. By letter dated April 24, 1946, the Employer refused
to grant recognition to the Petitioner because of its contract with the
Intervenor. On April 24, 1946, the Petitioner filed the petition herein.
At the time of the fire, the Employer had about 75 employees work-
ing in the mill. Of the approximately 40 workers engaged in con-
struction work during the period of reconstruction, only 18 or 20 had
been employed by the Employer prior to the fire. The rest were newly
lured carpenters and electricians' helpers. During the period of
reconstruction, the Employer had no contract with the Intervenor
covering construction operations, nor did it deal with the Intervenor
or any other union in regard to the construction operations during
the rebuilding of the plant. The wages of the newly hired construction
workers were mainly determined on the basis of information obtained
by the Employer from the U. S. Employment Service and not through
collective bargaining. In September 1945, the District Council and
the Willamette Valley Lumber Operators' Association, of which the
Employer was a member, negotiated a wage increase throughout the
area effective on November 1, 1945.2 The Employer effected the in-
crease only with respect to the 18 or 20 employees originally covered
by the agreement with the Intervenor, and not to the other con-
struction Workers.
I The motion to intervene was filed by the Willamette Valley District Council of Lumber
and Sawmill Workers, herein called the Distiict Council, in behalf of Local Union No.
2791, a member of the District Council
The contract, by its terms, provided that "either party may notify the other party at
any time of a desire to revise wages generally."
SANTIAM LUMBER CO. 7
The Employer and the Intervenor urge that their contract con-
stitutes a bar to a present election, because the Petitioner's claim to
representation was not made before April 1, 1946, the automatic
renewal date of the agreement.' However, as appears above, before
the effective date of the automatically renewed contract in 1945, the
Employer's mill had ceased operations and did not resume production
until approximately 2 weeks after the 1946 automatic renewal date.
An entire year has elapsed. Thus, at its inception in 1945 and for
practically the entire period covered by the renewed contract, as well
as on the 1946 automatic renewal date, the subject matter of the con-
tract was no longer in existence. The contract by its terms did not
cover and was not intended to apply to employees engaged in con-
struction work.4 While it is true that the District Council negotiated
a general wage increase applicable to employees of members of the
Operators' Association, such increase was intended to apply to em-
ployees engaged in regular production and maintenance work, and
not to the type of construction workers then employed by the Em-
ployer. The fact that the increase was effected by the Employer
with respect to the 18 or 20 workers engaged in construction
work who had been employed in the regular operations of the
Employer prior to the fire- does not alter the situation ; these em-
ployees were not engaged in production and maintenance work and
clearly did not constitute a group representative of the skills and
categories embraced by the terms of the contract, many of which
had ceased to exist when the mill was destroyed.5 Under the fore-
going circumstances, we are of the opinion that the contract does not
constitute a bar to a present determination of representatives.6
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
Iv. TIIE APPROPRIATE UNIT
The parties agree that the appropriate unit should consist of all
production, maintenance, and transportation employees at the Em-
ployer's sawmill, excluding o ff i c e and clerical employees, plant super-
intendent, mill foreman, planer and yard foreman, and retail nman-
a See lfatter of lhll B , Inc, 40 N L R B 346
In this connection , Walter Leisy , manager at the Employer 's mill , testified • "It seems
that there was no effoit made on the part of the A F. of L. to do anything about
the agreement . . since the thing was allowed to lie dormant during the construction
period
Cf Matter of American Radiator and Standard Sanitary Corporation , 67 N L R B
1135.
B Cf. Matter of Food Machinery Corporation , 68 N L R B 600 ; Matter of Sinclair Rub-
ber, Inc , 57 N L R . B 800 , Matter of The Prosperity Company , Inc., 55 N. L it. B 350,
Matter of Ball Brothers Company , 54 N. L R. B . 1512 , and Matter of Chase Brass and
Copper Co , Inc, 47 N . L. R B. 298 , wherein the Board held that a contract executed prior
to the commencement of operations in the plant covered thereby constituted no bar to an
election.
81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ager. They are in disagreement, however, with respect to the shop
foreman. The Petitioner would include him in the unit and the
Employer would exclude him; the Intervenor takes no position in
this regard.
The shop foreman normally supervises approximately three em-
ployees. He is paid on a salary basis, whereas his subordinates are
hourly paid workers. Although he operates a machine occasionally,
his supervisory duties require approximately two-thirds of his time.
He has authority to hire and discharge employees. We find that the
shop foreman is a supervisory employee within our customary defini-
tion of the term; we shall therefore exclude him from the unit.
We find that all production, maintenance, and transportation em-
ployees at the Employer's sawmill, excluding office and clerical em-
ployees, plant superintendent, mill foreman, planer and yard fore-
man, shop foreman, retail manager, and all or any other 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 pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Santiam Lumber Co., Sweet
Home, Oregon, 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 supervision of the Regional Direc-
tor for the Ninteenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately 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 whether they desire to
be represented by Local 5-265, International Woodworkers of
America, CIO, or by Lumber and Sawmill Workers Local Union No.
2791, A. F. of L.,T for the purposes of collective bargaining, or by
neither.
T At the hearing , the Intervenor requested that its name appear on the ballot as it
appears above ; the request is hereby granted.