Willamette National Lumber Co.

National Labor Relations Board - Board Decisions

Jul 21, 1947

74 N.L.R.B. 569 (N.L.R.B. 1947)

In the Matter Of WILLAMETTE NATIONAL LUMBER COMPANY, EMPLOYER
and INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 5-265, CIO,
PETITIONER.
Case No. 19-R-199-3 .-Decided July 01, 1947
Messrs . William A. Babcock, Jr .. and Harvey Nelson, both of Port-
land, Oreg., for the Petitioner.
Mr. Doyle Pearson, of Portland , Oreg., and Mr . L. G. Carroll, of
Eugene, Oreg., for the Intervenor.
Messrs. Robert S. Miller and TV. Swindells , both of Portland , Oreg.,
for the Employer.
Mrs. Platonia P. Kaldes , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Portland,
Oregon, on February 6, 7, 10, and 11, 1947, before Daniel R. Dimick,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. During the
course of the hearing, the Employer and the Willamette Valley District
Council, Lumber and Sawmill Workers Union, Local 2072, AFL,
herein referred to as the Intervenor, moved to dismiss the petition.
These motions were referred to the Board. For the reasons herein-
after set forth we hereby deny the motions of the Employer and the
Intervenor to dismiss the petition.' We likewise deny the Employer's
request for oral argument, inasmuch as the record and the briefs, in
our opinion, adequately present the issues and the contentions of the
parties.
After the close of the hearing, the Petitioner filed with the Board
a motion to incorporate in the record an affidavit of the Petitioner's
business agent purporting to establish certain facts concerning the
i In support of their respective motions to dismiss the petition , the Employer and the
Intervenor each claimed that their contract dated July 19, 1946, constituted a bar to this
proceeding , that the proposed unit was inappropriate for the purposes of collective bar-
gaining, and that because of the imminent expansion of the Employer 's operations no
election should presently be directed The Employer further contended that the Board
lacked jurisdiction over it.
74 N. L. R B., No. 110. 569
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's operations. The Board thereupon ordered the Employer
to show cause as to why the affidavit should not be received in evidence.
The Employer, while not denying the materiality of the facts sought
to be established by the Petitioner, objected to the admission of the
affidavit in evidence on the ground that the statements therein were
not accurate. However, in an affidavit filed by the Employer in sup-
port of its objections to the Petitioner's motion, a portion of the
Petitioner's allegations are admitted to be true. Under these circum-
stances we shall permit the affidavits of the Petitioner and the Em-
ployer to be incorporated as part of the record herein but only to
the extent that the matters therein are not in dispute.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYE].
Willamette National Lumber Company , an Oregon corporation,
is engaged in the lumber business ; it presently operates a logging camp
near Foster, Oregon, and through a separate division z a lumber mill
and camp at or near Dallas , Oregon. It intends in the near future
to operate a sawmill at Foster , Oregon , which was under construc-
tion at the hearing date . The employees involved in this proceeding
are employed in connection with the Foster operations.
At the Foster operations , the Employer produced approximately 7
million board feet of lumber valued at approximately $200,000 during
the period beginning July 1946, and ending January 30, 1947. The
major portion of the lumber so produced has been transported to the
Employer's millpond at the site of the new sawmill near or at Foster,
Oregon, where it will be milled when the sawmill is completed. The
Employer admits that a large proportion of all the lumber so milled
will be shipped to out-of -State destinations.3
At the Dallas operations of the Employer , which were acquired
in November 1946 by merger of the Employer with the Corvallis Lum-
ber Company , the Employer is presently engaged in shipping substan-
tial amounts of lumber there produced to out-of-State destinations.4
2 This division is called the "Corvallis Lumber Company "
s The Employer estimates that almost 80 percent of the lumber to be milled at the saw-
mill amounting in value to about $800 ,000 per year will be sold and transported to States
other than the State of Oregon.
4 During the year 1946 , the Corvallis Lumber Company sold lumber valued at $900,000,
of which 75 or 80 percent was shipped outside the State of Oregon.
WILLAMETTE NATIONAL LUMBER COMPANY 571
We find, contrary to its contention, that the Employer 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.
Willamette Valley District Council, Lumber and Sawmill Workers
Union, Local 2702, Intervenor herein, is a labor organization affiliated
with the American Federation of Labor, claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On July 19, 1946, shortly after the Employer commenced the opera-
tions herein involved, the Employer and the Intervenor entered into
a contract covering all employees of these operations, which contract
was effective initially until July 1, 1947, and thereafter from year to
year unless 30 days prior to any July 1 date either party gives notice
of a desire to alter, modify, or terminate the agreement. This agree-
ment was supplemented by the parties on August 20, 1946.
On August 26, 1946, the Petitioner requested the Employer to
recognize it as the representative of certain of its employees, and on
August 30, 1946, the Employer replied that it had executed an agree-
ment with the Intervenor on July 19, 1946, covering the employees in
question.
At the hearing, the Employer and the Intervenor contended that
their July 19, 1946, agreement constituted a bar to a determination of
representatives for its initial term. However, the petition was filed
before the operative date of the automatic renewal provision of the
July 19, 1946, contract and the initial term of the agreement is about
to expire . Accordingly, we find that the July 19, 1946, contract is no
bar to a present determination of representatives.
We find further that a question affecting commerce has arisen con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
Full scale operation of the Employer 's lumber business at Foster,
Oregon, is awaiting the completion of sawmill construction there. In
preparation for its sawmill operations the Employer , at various times
5 See N L. R. B v Virginia Electric cC Power Company, 115 F. ( 2d) 414, 415-416
(C. C. A 4), affirmed on this point, 314 U. S 469 , 476; N. L. R. B. v. Cleveland Cliffs Iron
Co., 133 F ( 2d) 295, 297-300 (C. C. A. 6).
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the past year, has been engaged in cutting and falling logs at
its lbgging or woods operations which are located 25 miles from Foster,
Oregon, and in storing these logs at a pond adjacent to the sawmill
site. At the hearing date the personnel engaged in the Employer's
operations consisted of woods employees, log truck drivers, pondmen,
machine shop employees, office clerical employees, and a group of
workers having duties relating to the operation of a cook house located
at the sawmill site. At the time of the hearing no employees were yet
engaged to work in the sawmill as such.
The Petitioner seeks a unit confined to the employees engaged in
connection with the logging or woods operations of the Employer, as
distinguished from the sawmill operations, and would include in such
a unit all production, maintenance, and transportation employees, all
bull bucks and hook tenders, pondmen, cook house workers, and log
truck drivers, but would exclude office clerical and machine shop.
employees and all supervisory employees above the rank of foremen
other than bull bucks and hook tenders. The Employer agrees that
the unit should be confined to its woods operations, while the In-
tervenor claims that woods operations employees may not properly
be separated for bargaining purposes from sawmill employees. Both
the Intervenor and the Employer agree to the specific exclusions pro-
posed by the Petitioner except that both would also exclude bull bucks
and hook tenders, pondmen, log truck drivers, and cook house workers.
The record discloses that the sawmill employees will be carried on
a separate pay roll, will be under separate supervision," and will per-
form functions which are different from those performed by logging
employees. Under these circumstances, including the geographical
separation of the logging and sawmill operations, we are of the opin-
ion that the appropriate unit may properly be confined to the woods
operations employees.7
We consider next the contentions of the parties as to the specific
composition of the unit.
1. Pondmnen and cook house workers
The Intervenor and the Employer contend that pondmen and cook
house workers have functions relating to the sawmill operations and
6 The sawmill employees will be under the direction of the mill superintendent while the
logging operations employees will remain under the supervision of the logging superin-
tendent.
7 Cf Matter of lVeyerhauser Timber Company, 62 N. L R. B 1166. 1169 Although the
Inteivenor contends that its contract with the Employer covered both sawmill and logging
employees and that a narrower unit would contravene collective bargaining history, we
find no record support for this contention . We note in this connection that the Employer
testified that the contract with the Intervenor covered only the logging operations employees
and that the Employer had no sawmill employees when the contract was written
WILLAMETTE NATIONAL LUMBER COMPANY 573
should not, therefore, be grouped together with the woods employees.
The Employer further asserts as to the cook house employees that
they are not its employees but the employees of an independent con-
tractor. The Petitioner concedes that the pondmen and cook house
workers might well be included in a unit of sawmill workers if such
a unit is established.8 It contends, however, that these categories of
workers should be grouped together with woods employees in the
absence of an established unit of sawmill employees.
The pond is adjacent to the sawmill and the cook house is part of
the sawmill properties, approximately 25 miles from the logging
operations. The cook house employees are not under the same super-
vision as the logging employees; the pondmen, while temporarily
under the same supervision as the logging employees, will ultimately
be under the mill superintendent's supervision. Under all the circum-
stances, including the geographic separation of the pond and cook
house operations from the logging operations, eve shall exclude the
pondmen and cook house employees from the unit.9
2. Log truck drivers
The Employer and the Intervenor both seek the exclusion of log
truck drivers who are engaged in transporting the Employer's logs
from the woods to the mill pond, on the ground that they are not
employees of the Employer but of an independent contractor.
The record discloses that on or about August 1, 1946, the Employer
entered into a written contract with a partnership doing business as
the Updegrave Trucking Company 10 for the transportation of the
logs by the latter between the woods and the mill pond, payment
for the service to be made by the Employer at a given rate per thou-
sand board feet 11 The trucking company, a concern which has been
engaged in the transportation business for many years and which
provides transportation service for several other logging companies,
agreed to provide all the trucks, equipment, and labor necessary to
transport the Employer's logs between the points above stated. It
hires the log truck drivers and assigns them their duties; it compen-
sates them for their work at the rates it has established, pays the
necessary pay-roll taxes and workmen's compensation insurance pre-
miums, and makes deductions from their salaries for employee taxes
and for the group hospitalization premiums" which are due under a
8 The Employer testified that the saw mill operations would commence about June 1, 1947
° We find it unnecessary to pass upon the Employer's claim that cook house workers are
not the Employer 's employees
10 Hereinafter referred to as "the trucking company
The contract was to have expired pursuant to its terms on December 31, 1946 , but has
apparently been extended
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan available to all the trucking company employees. The trucking
company further pays all expenses for the trips made by the trucks,
such as gas, oil, and repairs, pays all fines levied against the truck
drivers for traffic violations, and the premiums for public liability
insurance. The Employer has no control over the hiring or dis-
charging of log truck drivers, the wages to be paid to them, or the
manner in which they perform their work, except that pursuant to
the contract, it may request the trucking company to remove from
its operations any driver it finds objectionable to it. While the Em-
ployer's supervisory agents have occasionally directed log truck
drivers to report at a certain time in order to pick up logs, this cir-
cumstance is not of itself determinative of the employer-employee
relationship. Upon all the facts we are not persuaded that log truck
drivers are the employees of the Employer within the meaninb of
the Act 12 Accordingly, we shall exclude them from the unit.
3. Bull bucks and hook tenders
These two classifications of employees possess clear supervisory
authority.13 The Petitioner seeks their inclusion in the unit on the
ground that they are of the class of supervisory employees who may
properly be represented in the same unit with rank and file employees
because of the industrial custom prevailing in small logging opera-
tions in the Pacific Northwest. The record discloses that neither of
these classifications of employees was covered by the July 19, 1946,
contract between the Employer and the Intervenor. Under these cir-
cumstances, we shall exclude bull bucks and hook tenders from the
unit 14
We find that all employees of the Employer' engaged in the woods
operations at or near Foster, Oregon, including all production, main-
tenance, and transportation employees, but excluding office clerical
employees, pondmen, cook house workers, machine shop employees,
log truck drivers, bull bucks, hook tenders, and all other supervisory
employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Employer asserted that an election would be inappropriate
because as of the hearing date the woods operations were closed down
12 Cf 1Iatte> of Cannon Lumber Co , 59 N L R B 1512, 1513
13 Bull bucks have authority to recommend the hiring or discharging of crews engaged
in falling and bucking timber . Hook tenders have full authority to hire or discharge
employees engaged in yarding or loading operations.
1, Cf Matter of Canijon Lumber Co , 59 N I, R B 1512, 1513
WILLAMETTE NATIONAL LUMBER COMPANY 575
and because the Employer expected to employ more than 100 work-
men within 60 days of resumption of such operations. On the basis
of the Employer's post-hearing affidavit it appears that the logging
operations have already commenced and that on April 7, 1947, there
were 55 employees engaged there. The Employer further stated that
it anticipated a full crew on or before July 15, 1947. Under these
circumstances, we find that the present group of employees in ques-
tion is substantial and representative of the total ,working force which
may ultimately be employed and that they are presently engaged in
proclijction. We shall, therefore, direct immediate elections." How-
ever, the record raises some question as to whether the number pres-
ently employed actually constitutes an exact 50 percent or more of the
total complement which will eventually be employed and as to when
the full complement will be engaged 1G Accordingly, pursuant to our
established policy under such circumstances '17 we shall entertain a
new representation petition affecting the employees involved after
6 months from the date of any certification that may issue in the
instant proceedings, upon proof (1) that the number of employees in
the appropriate emit is more than double the number of employees
eligible to vote in the election hereinafter directed; and (2) that the
petitioning labor orgaiiizatiou represents a substantial number of
employees in the expanded unit.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Willamette National Lumber Com-
pany, Foster, 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
Director for the Nineteenth 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 Regula-
tions-Series 4, among the employees in the unit found appropriate in
Section IV, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction, including employees
15 Matter of Aluminum Company of America, 52 N L R B 1040, 1047
16 Thus, at the time of the hearing, the Employer estimated that the woods operations,
which was then shut down because of weather conditions, would be resumed about April
1, with a crew of about 30 to 50 men, and would be progressively increased to about 100
within 2 or 3 months after the sawmill began operating In the affidavit submitted by the
Employer's vice-pi esident after the hearing it was stated that the 55 employees engaged
as of April 7, 1947, in the woods operations iepiesente(l about 'A of the full complement
to be engaged and that it was estimated that the full complement would be engaged on
July 15, 1947
17 See Matter of Alit ninniin Company of America, 52 N L R B 1040, 1040, 1047 Matter
of General Moto .s Corpoiation, I'ishei Body-Teinstedt Division, 74 N I, R B 18
755420-48-vol 74-38
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 dis-
charged 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 International Woodworkers of America, Local 5-265, CIO, or by
Willamette Valley District Council, Lumber and Sawmill Workers
Union, Local 2702, AFL, for the purposes of collective bargaining, or
by neither."'
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
18 Any participant in the election herein may, upon its prompt request to and approval
thereof by the Regional Director , have its name withdrawn from the ballot.