Scott Paper Co.

National Labor Relations Board - Board Decisions

May 28, 1968

171 N.L.R.B. 821 (N.L.R.B. 1968)

SCOTT PAPER COMPANY
Scott Paper Company and Truck Drivers,
Warehousemen and Helpers Union , Local No.
340, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner . Case 1-RC-9696
May 28, 1968
DECISION AND DIRECTION OF ELECTION
By MEMBERS BROWN , JENKINS , AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Reginald J.
Gagnon on August 22, 29, and 30 and October 30,
1967. Subsequent to the hearing, the Petitioner and
the Employer filed briefs with the National Labor
Relations Board.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby of
firmed.
Upon the entire record in this case, the Boar(
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer)
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of the Woodland Department
of the Employer's Northeast Division em-
ployed at the lumber camps on the Company's
timberlands in the State of Maine known as
Farrar Mountain Camp, Mayfield Camp, Big
Squaw Camp, Moose River Camp, Carrying
Place Camp, and Somerset Camp, and any
other existing woodland camps currently
' The Employer recognizes the Petitioner as a labor organization but
refused to so stipulate because of the alleged organization activities on be-
half of Petitioner of tractor -owner-operators it claimed were supervisory
employees ( discussed , infra), and the activities of a Canadian Association,
known as the Professional Woodcutters Association of Beauce, Frontenac,
821
operated by the company on its Maine timber-
lands, together with vehicle maintenance
mechanics at its Bingham, Maine, garage, and
employees of its Moosehead Lake Towing and
driving operations; excluding contracted gravel
truck drivers, contracted loaders and haulers,
scalers, clerical personnel, professional em-
ployees, guards, and supervisors as defined in
the Act.
5. The Employer questions whether certain trac-
tor-owner-operators and nonowner-operators of
tractors are supervisors within the meaning of the
Act; whether unit employees are agricultural
laborers within the meaning of Section 2(3) of the
Act; and whether the provisions under which
bonded employees from Canada are permitted to
enter the United States to work preclude meaning-
ful collective bargaining in their behalf and makes
appropriate the dismissal of the petition.
The forestry operations conducted by the Em-
ployer in the Maine woodland camps here involved
are conducted in two ways. No question is raised
with respect to the hourly paid workers engaged in
the so-called mechanized operation where trees are
felled and hauled to pallet in full length to be
bucked and slashed to proper length by automatic
equipment. However, besides this method of opera-
tion the Employer also utilizes a number of trac-
tors, privately owned, to perform timbering opera-
tions and it is the status of the owners and opera-
tors of these privately owned tractors which is the
subject of dispute.
The three-men tractor crews, with which we are
concerned, operate in the following manner. The
camp foreman or the assistant foreman assigns the
crew an area of trees, called a "chance," to be cut.
A tractor road is prepared in the chance and trees
are felled, limbed, and bucked by the cutters and
then ricked or assembled near the tractor's path.
The tractor operator loads the wood on the trailer
and hauls it to a pallet for pickup. The foremen
periodically visit the site to observe how the work is
progressing. The tractor crews including the cutters
and operators are paid equal amounts on the basis
of a piecework formula, based on cordage cut. An
essentially similar amount, worked out according to
the formula, is paid the tractor-owner for use of the
tractor. The tractor-owner may be either the opera-
tor of the tractor or a cutter and thus receives two
payments, or he may be absent and only receives
the payment for use of the tractor, but in either
and Dorchester allegedly dominated by the owner-operators However, as
the record testimony shows the Petitioner is a labor organization whose
purpose is to represent employees in collective bargaining over wages,
hours, and working conditions, we conclude it is a labor organization
within the meaning of Section 2(5) of the Act
171 NLRB No. 117
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
event he, as are all crewmembers, is dependent to
some extent on the efficiency of the crew for max-
imizing income.
There are approximately 62 of these three-man
tractor crews consisting of a tractor driver and two
cutters. Some 42 of the tractors are run by owner-
operators; about 13 are owned by nonoperators and
nonemployees who may stay in the camps to take
care of the tractor maintenance; and some 6 trac-
tors are owned by nonoperators who do not stay in
camp and are not employees. One tractor is jointly
owned by two absentees.
Although it appears that most owner-operators
act as drivers rather than cutters, owners do work
as cutters and in the course of a day's work there
may be shifting of jobs between men on a crew. No
specific or formal delegation of authority over the
work of a crew on a chance has been made to any-
one except foremen or assistant foremen, and
neither tractor owner-operators nor operators have
been expressly given any administrative or super-
visory duties regarding work on a chance. How a
chance will be worked depends on group ex-
perience or perhaps the suggestions of the most ex-
perienced member of the crew. On the other hand,
it is established that foremen do have, and have ex-
ercised, supervisory authority over the crewmem-
bers, including discharge.
The owners and crewmembers of the three-man
tractor crews are composed almost entirely of
bonded Canadian workers. In addition there are a
few visaed Canadian immigrants. The tractor-
owners are hired by the camp foreman. Tractor-
owners participate in the recruitment of cutters and
operators. In some instances the foreman will ascer-
tain the names of the crew from the tractor-owner
and after approval by the foreman of suggested
names arrangements are made for individual bonds
to be issued the men in Canada where they reside.
There are instances where recruitment will be by
cutters rather than by an owner-operator. In other
instances, the tractor-owner may go to Canada to
do the recruiting and the men so recruited go to the
St. George, Quebec, employment office where
presigned bonds are available providing authoriza-
tion to cross the border. Crewmembers so hired
check in at the camp where it is company policy to
have the employee present himself to the clerk
and/or the foreman. The clerk fills out the neces-
sary hiring forms and the foreman instructs the em-
ployee in such matters as safety regulations While
it appears some employees may proceed to work at
a chance before all the employment papers have
been completed, or before the foreman has seen
the employee, the foreman has authority to put the
man to work or not. The foreman or clerk may
check with the personnel files which are maintained
in Winslow to determine whether the man is eligi-
ble for employment. If, for some reason, there is a
past unfavorable employment history, the foreman
may reject the recruit.
Replacement of crewmembers is handled in a
similar fashion. While it appears customary, at the
inception of a camp, to clear the names of a crew
before the men are brought to camp, changes in the
composition of a crew at work, which usually occur
over weekends (mainly, it seems, from incompati-
bility with other crewmembers or from a desire to
return home to Canada), may involve prior
clearance with the foreman, or initial work with
clearance later in the day as previously described.
The record clearly indicates that a primary
reason for the involvement of the tractor-owners,
or in other instances other crewmembers, in the
recruiting process, is the desirability, if not necessi-
ty, of establishing a harmonious working relation-
ship among each crew. As the earnings of each
crewmember is determined by the amount of
timber cut by the whole crew, the Company and
the crews have a mutual interest in establishing
compatible crews. Thus, it is evident that whoever
serves as a recruiting agent-the tractor-owner in
most instances-seeks persons compatible in ability
and habits not only with himself if he is the driver
as well as the owner, but with the other cutter on
the crew. Indeed, in some instances owner-drivers
rely on the other cutter to find replacements.
Under all the circumstances, we find none of the
tractor-owners or crewmembers to be supervisory
employees. Those tractor-owners who do not work
with crews, but stay in camp to maintain their
equipment or who are absent from the camp, are
not employees and are not included in the unit for
that reason. Those employees who perform services
as drivers on tractors owned by others are not su-
pervisors, as they have no well-defined responsibili-
ties over hiring, firing, disciplining, directing, or
otherwise supervising the work of crews. The suc-
cess of any crew is dependent on the mutual effort
of all, and guidance may well come from an ex-
perienced cutter, rather than a novice driver. Thus,
at most, the operator functions as a leadman, and in
many cases a member of the crew other than the
operator may serve this function. As for employees,
whether they be owner-drivers or cutters who par-
ticipate in the recruitment process, their role in this
process does not elevate them to supervisory status.
The prime objective in selecting a crew is getting
men who will work together in a harmonious rela-
tionship. This is necessary to ensure maximum
production, a goal desired by the crew and the
Company. To achieve this a driver-owner who
SCOTT PAPER COMPANY
recruits will consider not only working skills but the
acceptability of the cutters to each other as well as
to himself. A cutter who does the recruiting will
also be cognizant of this. Therefore, regardless of
who contacts the potential new crewmen, all mem-
bers of the crew may share in the recruitment
process. Moreover, one of the reasons the owner-
operators or cutters play a major role in recruit-
ment of employees is their proximity to and
knowledge of available Canadian labor. Thus, to
say one member of the crew is effectively involved
in the hiring process, but the other is not is to disre-
gard the obvious and it must be concluded that
either all or none of the crewmembers are super-
visors, if this determination is based on their role in
the recruitment process. Moreover, actual hiring is
done by the Company and is dependent on com-
pany approval of past performance, if previously
employed. Under these circumstances, it is our con-
clusion that none of the owner-drivers are super-
visory employees.
We also find no merit in the Employer's position
that these crewmembers are agricultural laborers
exempted by Section 2(3) from coverage under the
Act. The Board's annual appropriation acts since
1947, including our present appropriation,' have
contained a rider requiring the Board to follow the
definition of the term "agricultural" contained in
Section 3(f) of the Fair Labor Standards Act.'
Under Section 3(f) forestry or lumbering opera-
tions are considered as agricultural in nature only if
performed "by a farmer or on a farm as an incident
to or in conjunction with such farming operation."
Clearly, commercial forestry operations as are en-
gaged in by the Employer do not come within the
ambit of the agricultural definition in Section 3(f)
' 81 Stat 408 (1967)
29 U.S C 203
In our consideration of this issue we have given appropriate weight to
interpretation by the Department of Labor of this section of the Fair Laboi
Standards Act and note that in Title 29 Part 780 160 CFR the Department
concludes that "employees of an employer engaged exclusively in forestry
or lumbering operations are not within the agricultural exemption -
An election eligibility list, containing the names and addresses of all the
823
of the Fair Labor Standards Act.' The crewmem-
bers therefore are not exempt by virtue of their
work from coverage under the National Labor
Relations Act.
We also reject the Employer's contention that
the nature of the regulations governing bonded em-
ployees from Canada precludes meaningful collec-
tive bargaining, and therefore compels the dismissal
of the current petition. Before an employer is per-
mitted to bring in under bond these Canadian em-
ployees it must agree to meet certain minimal stan-
dards in wages, housing, transportation, etc. These
minimum standards, however, are floors, as in such
legislation as the Fair Labor Standards Act, and the
Walsh-Healey Public Contracts Act, and are
designed to protect domestic labor from the erosion
of its standards by competition from imported labor
which might be willing to work at lower standards.
Nothing in these standards prohibits collective-bar-
gaining to raise the minimal standards or to encom-
pass other terms and conditions of employment
which are not covered in the regulations concern-
ing the importation of labor. Moreover, no govern-
mental approval is necessary for changes in the
terms and conditions of employment above the
minimum standard. Accordingly, this case is not
controlled by our decision in Stokely Van-Camp,
Inc., 107 NLRB 1137, in which individual work
contracts for Mexican nationals and contracts for
British West Indies nationals were subject to
governmental approval before they could be al-
tered. Therefore, we perceive no reason for refus-
ing to entertain the petition in this case.
[Direction of Election 5 omitted from publica-
tion. ]
eligible voters, must be filed by the Employer with the Regional Director
for Region I within 7 days after the date of this Decision and Direction of
Election The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall he granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are tiled Excelsior Under,, ear Inc , 156 NLRB
1236