Siler Mill Co.

National Labor Relations Board - Board Decisions

Jan 29, 1951

92 N.L.R.B. 1680 (N.L.R.B. 1951)

In the Matter Of SILER MILL COMPANY and LUMBER AND SAWMILL
WORKERS UNION, LOCAL No. 2519, AFL and INTERNATIONAL BROTH-
ERTHOOD OF FIREMEN AND OILERS, LOCAL UNION No. 193, AFL, PARTY
TO A CONTRACT
Case No. 19-CA-270.-Decided January 29,1951
DECISION AND ORDER
On September 26, 1950, Trial Examiner Thomas S. Wilson, issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had not violated Section 8 (a) (1), 8 (a) (2), and
8 (a) (5) of the Act as alleged in the complaint, and recommending
that the complaint against the Respondent be dismissed, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief; Lumber and Sawmill Workers Union Local No.
2519, AFL, hereinafter called Local 2519, filed a brief in support of
the General Counsel's exceptions to the Intermediate Report; and
International Brotherhood of Firemen and Oilers, Local Union No.
1-93, AFL, hereafter called Local 193, and the Respondent each filed a
brief in support of the Intermediate Report.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial, error was committed. The rulings are hereby
affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications : 2
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston , Reynolds , and Styles].
2 We make the following corrections in the Trial Examiner ' s findings of fact by substitut-
ing the following for contrary statements appearing in the Intermediate Report: (1) There
is a conflict in the testimony as to which employees operated the kiln at East Marginal Way
before it was abandoned by the Respondent in 1941 ; (2) the Respondent and Local 2519
did not execute a bargaining agreement in 1950; (3) "charges" are placed in the present
kiln by an employee who is a member of Local 2519 and also by another employee who
is a member of the union representing the Respondent's box factory employees; (4) at its
present location , the Respondent operates two planers , neither of which is situated in
the box factory; (5) at the present time, lumber is not planed in the box factory before
it is placed in the kiln ; ( 6) the Respondent has done no commercial drying in its kiln
92 NLRB No. 244.
1680
SILER MILL COMPANY 1681
1. We agree with the Trial Examiner's finding that the Respondent
did not refuse to bargain with Local 2519 in violation of Section 8 (a)
(5) of. the Act. As is more fully detailed in the Intermediate Report,
for a number of years before 1949, the Respondent operated both a
sawmill and a box factory. Employees engaged in the sawmill oper-
ation were represented by Local 2519; employees in the box factory
were represented in a different unit by another union. In September
1949, the Respondent completed the construction of a dry kiln and
boiler, which it staffed with a chief engineer and four firemen. The
Respondent thereupon, after receiving proof that Local 193 repre-
sented a majority of these employees, recognized it as the bargaining
representative of the firemen. In October 1949, it executed a bargain-
ing agreement with Local 193 covering these employees. In Novem-
ber 1949, Local 2519 sought recognition as the bargaining representa-
tive of the firemen, but the Respondent, citing its contract with Local
193, refused the request.
For the reasons stated below in paragraph numbered 2, we find that
the Respondent did not render unlawful assistance to Local 193, or
otherwise violate the Act, by executing the contract with Local 193.
That being so, the Respondent's refusal. to recognize Local 2519 for a
unit of employees already covered by the contract with Local 193
would violate the Act only if we were to conclude that at that time a
separate unit of the firemen was inappropriate, that only their inclu-
sion in the unit of sawmill employees would have been appropriate,
and that the Respondent's belief as to the appropriate unit was not
based on good faith. But such a, conclusion would be wholly
unwarranted.
When the Respondent refused to deal with Local 2519 with respect
to the firemen, a number of factors existed indicating that represen-
tation of the firemen in a separate unit was appropriate. These in-
cluded : The fact that the Respondent's box factory and sawmill
employees had already been organized into two separate units; the
fact that industry custom with respect to the unit placement of firemen
was inconclusive; the fact that the kiln operation was a separate
division. of the Respondent's operations, related functionally, and
(7) yard and sawmill employees are permitted in the boiler room to warm themselves,
and the practice is not confined to the employees ' lunch hour ; ( 8) Cecil was shown four
cards by which firemen applied for membership in Local 193, two of these were signed
and two were delivered to Cecil by the firemen whose names appeared thereon ; (9) Local
2519 represents all employees , including firemen, of five saw and planing mills which
have kilns; (10) Local 2519 represents all employees, including firemen, of five other
saw and planing mills which have boilers but no kilns ; (11) Local 2519 also represents
all employees , including firemen , of two companies which ope?,ate kilns, but do not operate
saw and planing mills.
However , the foregoing corrections do not affect our concurrence in the result reached
by the Trial Examiner in this case.
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
almost equally, to both the Respondent's sawmill and box factory
operations; and the fact that this Board in numerous instances had
established firemen, performing duties similar to those of the kiln
firemen herein, in separate units 3
In addition, it must be noted that Local 2519, although aware of
the construction and staffing of the kiln operation, had made no claim
to represent the firemen until after the contract with Local 193 had
been executed, and that, by that time, Local 2519 had lost whatever
contractual right it may have had to represent the firemen.
Under all the circumstances, the Respondent's treatment of its.
firemen as employees entitled to separate unit representation appears.
to us to have been a reasonable action, and one which does not indicate
a lack of good faith in bargaining.
2. We also agree with the Trial Examiner's conclusion that by
executing the contract with Local 193 the Respondent did not violate-
Section 8 (a) (2) or 8 (a) (1) of the Act.
The General Counsel contends in his brief that, irrespective of any
issue regarding an appropriate unit for the kiln firemen, the Respond-
ent, by procuring and hiring the kiln firemen through Local 193 and.
thereafter contracting with that union without first giving Local
2519 an "equal chance" to supply such personnel as was needed, gave
unlawful assistance and support to Local 193 in violation of Section
8 (a) (2), or, in the alternative, interfered with the right of its em-
ployees to choose their bargaining representative in violation of Sec-
tion 8 (a) (1). In support of the latter contention the General Coun-
sel argues that the principle of the Midwest Piping case 4 should be
here applied. We do not agree with these contentions.
It is true, as set forth in the Intermediate Report, that, at the Re-
spondent's request, Local 193 supplied the Respondent with three of
the four nonsupervisory firemen with whom it initially staffed its
kiln operation; and that the Respondent did not request Local 2519
to supply firemen for the kiln operation. But these facts alone are
insufficient to establish illegal assistance to Local 193, particularly
when viewed in the light of other circumstances here present. Prin-
cipal among these is the fact that a local ordinance required that the
' We are aware of the recent decisions in which the Board held that only plant-wide
units embracing all production and maintenance employees are appropriate in a logging
and sawmill operation (Weyerhaeuser Timber Company, 87 NLRB 1076, decided December
16, 1949 ; Nettleton Timber Company, 87 NLRB 1319). However, these decisions were
announced after the events here considered took place, and, as such, cannot form a basis
either for measuring the appropriateness of a separate unit for the Respondent's firemen
when that unit was brought into being, or for judging the Respondent's good faith in
causing it to be established. Accordingly, we deem it unnecessary to pass upon the Trial
Examiner's conclusion that the principle of the Weyerhaeuser case is not controlling here.
` 4 Midwest Piping & Supply Co., Inc. 63 NLRB 1060.
SILER MILL COMPANY 1683
firemen working on the kiln operation be licensed. In requesting Local
193 to furnish the firemen, the Respondent thus turned to a source that
was most likely to be in a position to satisfy its needs. Moreover, as
the record shows, the Respondent had previously experienced some
difficulty over the inability of Local 2519 to satisfy the Respondent's
needs for skilled employees for its sawmill operations. Under such
circumstances, and particularly since there is no showing whatever
in the record that the Respondent made membership in Local 193 a
prerequisite to the hiring of the firemen, we find that the Respondent
did not violate Section 8 (a) (2) by procuring the kiln firemen from
Local 193.5
Nor are we able to see any basis here for applying the doctrine of
the Midwest Piping case. In the Midwest Piping case, the Board held
that the execution of a contract with one of two competing unions while
a question concerning representation was pending before the Board,
interfered with the rights of employees under the Act. In this case,
however, no question concerning representation had been raised either
at the time the firemen were hired or at the time the contract was
executed with Local 193. At the time of the hiring of the firemen,
Local 2519 was not even a competing union, there then being no fire-
men over whom to compete; and at the time of the execution of the
contract Local 2519 had not yet made any claim to represent the fire-
men, much less filed a petition with this Board. Accordingly, were
the Board to follow the General Counsel's suggestion, it would be
extending the doctrine of Midwest Piping so as to render unlawful
the execution of a contract with a majority representative merely
because at the time of the execution of such contract there may have
existed a speculative possibility that another union might claim to
represent the employees concerned. And this we are not prepared
to do.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent, Siler Mill Company, Seattle, Washington, be and it
hereby is dismissed.
' Our holding that no violation of Section 8 (a) (2) was committed is confined to the
express facts existing herein. By so holding, we do not decide whether, under other
circumstances, the hiring of employees from a specific union, and thereafter executing a
contract with such union without first notifying the incumbent, but different, union in
the plant, %vould constitute a violation o° the Act.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Robert E. Tillman, Esq., for the General Counsel.
Hulbert S. Murray, Esq., and William S. Lubersky, Esq., of Seattle, Wash.,
for the Respondent.
George E. Flood, Esq., and Clarence Lirhus, Esq., of Seattle, Wash., for Local
2519.
Kenneth A. MacDonald, Esq., and Richard K. Pels, Esq., of Seattle, Wash.,
for Local 193.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed on December 1, 1949, and
June 15, 1950, by Lumber and Sawmill Workers Union, Local 2519, AFL, here-
inafter called Local 2519, the General Counsel for the National Labor Relations
Board, herein respectively called the General Counsel and the Board,' by the
Regional Director for the Nineteenth Region (Seattle, Washington), issued a
complaint dated June 16, 1950, alleging that Siler Mill Company, hereinafter
referred to as the Respondent, had engaged and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (2), and
(5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, hereinafter called the Act. Copies of the complaint and the
various charges, together with a notice of hearing thereon, were duly served
upon the Respondent, Local 2519, and International Brotherhood of Firemen
and Oilers, Local Union No. 193, AFL, hereinafter called Local 193.
With respect to the unfair labor practices the complaint alleged in substance
that: (1) The Respondent has refused, and continues to refuse, to bargain
collectively with Local 2519 in violation of Section 8 (a) (5) of the Act, although
said Local is the exclusive representative of the employees of the Respondent in
the appropriate unit of Respondent's employees; (2) in or about the month of
October 1949, by various enumerated acts and by executing a contract with
Local 193 in particular, the Respondent has rendered illegal assistance and
has interfered with the administration of said Local 193 in violation of Section
8 (a) (2) of the Act; (3) by reason of the afore-mentioned acts and various
other enumerated acts, the Respondent has interfered with, restrained, and
coerced its.ernployees in the exercise of the rights guaranteed to them in Section
7 of the Act in violation of Section 8 (a) (1) of the Act.
The Respondent and Local 193 duly filed answers to said complaint wherein
various allegations contained in the complaint were admitted but the commission
of any unfair labor practice was denied.
Pursuant to notice, a hearing was held in Seattle, Washington, from August 22
through August 25, 1949, before the undersigned, the Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel, the Respondent,
Local 2519, and Local 193 were represented at the hearing. All parties partici-
pated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues.
At the conclusion of the case of the General Counsel the Respondent and Local 193
moved that the complaint be dismissed for failure of proof. This motion was
denied at that time. Said parties renewed said motion at the conclusion of the
hearing.
' The term General Counsel includes also counsel for the General Counsel appearing at
the hearing.
SILER MILL COMPANY 1685
On September 7, 1949, oral argument was held in Seattle, Washington, before the
undersigned and participated in by all parties. The motion to dismiss was
then taken under advisement and will be disposed of hereinafter.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Siler Mill Company, a Washington corporation, is engaged in the operation
of a sawmill, planing mill, box factory, and dry kiln in the city of Seattle, State
of Washington. In the course and conduct of its business at said location it has
continuously shipped from its Seattle mill and factory to States and Territories
of the United States other than the. State of Washington lumber, boxes, and
crates valued in excess of $400,000 annually and has purchased for use in said
operation a small percentage of its supplies and equipment other than logs from
points outside of the State of Washington. All logs purchased for these
operations are purchased within the State of Washington.
The undersigned finds that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Lumber and Sawmill Workers Union, Local No. 2519, AFL, and International
Brotherhood of Firemen and Oilers, Local Union No. 193, AFL, are labor
organizations admitting to membership employees of the Respondent.
111. THE UNFAIR LABOR PRACTICES
A. The facts
The predecessor of the present corporate Respondent2 began operations in
Seattle as a box factory on East Marginal Way about 1935. This operation was
exclusively that of manufacturing boxes from boards. A few years thereafter
the Jacob Siler Manufacturing Company began sawmill operations alongside
the box factory in order to supply the necessary lumber for the operations of the
box factory. Local 2635 of the Lumber and Sawmill Workers Union, affiliated
with the Carpenters and Joiners of America, organized the employees of the box
factory and secured a contract covering those workers from the predecessor of
the Respondent. In 1940, after 3 years of"negotiations, Local 2519 of the Lumber
and Sawmill Workers Union, affiliated with the Carpenters and Joiners of Amer-
ica, secured recognition from the Respondent as the exclusive representative of
the employees of the sawmill (as distinguished from the employees of the box
factory) and in 1940 executed a contract covering the sawmill employees with
the Respondent. Throughout the subsequent course of its history the Respondent
has always recognized Local 2635 as the representative of the employees of the
liox factory and Local 2519 as the representative of the employees of the sawmill
At all times during its operations at East Marginal Way until 1941 the Re-
spondent operated a small, dilapidated dry kiln for the purpose of drying a part
2 At the hearing counsel agreed that the numerous partnership and corporate changes
occurring prior to the formation of the present existing corporation were immaterial
to a determination of the instant case and , therefore , the undersigned will omit a descrip-
tion of these various formalistic changes in the Respondent 's legal entity and consider
the Respondent to have been the same entity since its formation in 1935.
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,of the lumber used in the manufacture.of boxes. During its operation this kiln
was heated with steam from a boiler which was operated indiscriminately by
employees from the box factory and from the sawmill. The testimony was undis-
puted that the operators of the dry kiln were every "Tom, Dick and Harry" from
the Respondent's operations. Because of.its dilapidated condition the Respond-
ent abandoned the use of this dry kiln in 1941 and thereafter dried the necessary
lumber by storage in the open air.
On September 12, 1940, the Respondent and Local 2519 executed the stand-
ard form of contract negotiated between Local 2519 and Lumbermens Indus-
trial Relations Committee, Inc., known as LIRC, for use in all sawmill oper.i-
tions in the Seattle area. This agreement by its terms between "Siler Box`
Sawmill Dept. Co." and Local 2519. The agreement recognized Local 2519 as
the sole and exclusive bargaining agent "for all employees of the Employer
except superintendent, foreman, log scaler (on water), truck drivers, shingle
mill employees and office employees." Although this recognition clause would
apparently cover the employees of the box factory except for the mention of
"sawmill dept.," it is admitted by all parties. that Local 2519 has always limited
its activities to the employees of the sawmill and has never interfered with the
jurisdiction of Local 2635 as the representative of the employees of the box
factory. Throughout the complete bargaining history this distinction has
remained sharp and clear.
In at least three clauses of this standard form contract executed between
Local 2519 and the Respondent there is specific mention of "powerhouse men"
or "firemen engine room, boiler room and fuel house attendants." However,
prior to its abandonment in 1941, the Respondent had no regular employees
operating the boiler and the kiln but continued to use employees from the
sawmill or the box factory indiscriminately as they might be available. As found
heretofore, it is uncontradicated on the record that "every Tom, Dick and
Harry" in the Respondent's employ operated the kiln and boiler.
From 1940 to 1948 the Respondent and Local 2519 through an annual exchange
of letters agreed upon the extension of the 1940 standard contract for the suc-
ceeding year. Wages were not included in this contract but were contained in
a separate agreement . Although never a member of LIRC, the Respondent met
the wage scale negotiated by LIRC at all times. In 1948, however, there was no
such exchange of letters extending the 1940 agreement. Nor has there been
since that date until sometime in 1950 when the parties formally entered into
a new written agreement. However, despite the lack of formal written agree-
ment both parties have proceeded as. though such formal documents were in
existence, i. e., Respondent has paid the wage increases negotiated from time to
time by LIRC, has settled grievances with Local 2519, and has requested
employees from Local 2519.
In 1946, this present corporate Respondent came into existence under the name' -
"Siler Mill Company." 4
In 1947, after its lease on the property located on East Marginal Way had been
terminated, the Respondent purchased a 5-acre tract of land on West Marginal
Way where it constructed a new sawmill and a new box factory. About Novem-
ber of that year .the Respondent moved its operations to this new site where it
has remained ever since. Subsequently in 1948, the Respondent purchased a
small tract of land adjoining this new site where, in May or June 1949 with
assistance of funds provided by the Reconstruction Finance Corporation,. the
8 At this time the Slier Box Company was the name used by the Respondent's predecessor.
4 Another name used by Respondent's predecessor.
SILER MILL COMPANY 1687
Respondent began construction of the dry kiln and boiler which is the situs
of the present controversy.
Among the persons hired for the construction of the boiler and dry kiln were
one Hines, a member of Local 193, and Leonard Erickson, nonunion. The
Respondent employed Hines upon the recommendation of the Moore Dry Kiln
Company and at the suggestion of George Sant, a part-time organizer for Local
193. Both men were hired for construction work. On one occasion during this
construction work Erickson went to Local 2519 to see if it were necessary for
him to join Local 2519 but was told by its president to wait and see if his job
was to be permanent before actually joining the Union. He therefore did not
join.
Construction work on the boiler and dry kiln was completed about the middle
of September 1949 and it went into operation soon thereafter. This project con-
sisted of a dry kiln, 88 feet long, 30.5 feet wide, and 10 feet high,. capable of
drying 88,000 feet of lumber at one time and a boiler room used exclusively to
supply heat for the kiln located 6 feet distant therefrom. Both buildings were
constructed on the tract of land purchased subsequently to the purchase of the
criginal 5-acre tract. The boiler is used exclusively for providing heat for the
dry kiln. The power used in both the sawmill and the box factory is secured
from sources other than this boiler. Thus mechanically the dry kiln operates
absolutely independently from the sawmill and box factory. The sawmill and
box factory may be closed down while the kiln continues to operate and vice
versa.
In its application to the RFC for the loan making the construction of the dry
kiln and boiler possible the Respondent suggested the possibility that it might
engage in custom drying, i. e., drying lumber belonging to third parties for a
fee. However since its construction the Respondent has used the dry kiln almost
exclusively for drying lumber to be used in its own operations and manufactured
by it. If the Respondent chose to engage in custom drying, the dry kiln would be
completely independent of the sawmill and-the box factory both mechanically
and otherwise.
When the dry kiln was ready for operations, Cecil, assistant manager and
vice president of the Respondent, made Hines the chief engineer as he held
the necessary license for such a position from the city of Seattle which, by
ordinance, required boiler room operators to be licensed by the city, and further
delegated the hiring of the necessary personnel to operate the boiler 24 hours
per day to him suggesting only that he try to use Leonard Erickson on the
operation. With assistance from Hines and officials of Local 193, Erickson
succeeded in securing the necessary license from the city of Seattle to operate
the boiler and was thereupon employed as a fireman. He also joined Local 193.
Hines then secured three other firemen through Local 193 and the boiler room
was staffed.
In its new location the Respondent has located two planers in the box factory
where the planer operators are represented by the Boxmakers Local, Local
2635, and one planer in a shed outside of the box factory where the planer
operator is represented by Local 2519.
In its present location the Respondent dry kilns about 40 percent of the
lumber which it later uses in the manufacture of its boxes, due to the fact that
it does not have sufficient storage space to air dry the lumber. There seems
to be no definite procedure by which the lumber reaches the kiln as some of the
lumber dried is dried directly from the sawmill in rough form, some after being
planed in the planer shed, and some after having been planed by the planer in
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the box factory. Some of the lumber dry kilned is sold as lumber, rough or
planed, and some of it is used by the box factory in the manufacture of boxes.
Thus far the Respondent has done little, if any, commercial dry kiln work.
despite the possibility that such work would be done in its application to the
RFC for the construction of the kiln.
When the dry kiln went into of eration about the middle of September 1949,
Local 193 presented Assistant Manager Cecil who has charge of labor relations
for the Respondent with a proposed agreement covering the firemen and kiln
operators there employed. These firemen spend their whole time operating,
regulating, and maintaining the boilers. They work three 8-hour shifts 7 days
a week. Four operators are so employed excluding the chief engineer who also
works a full shift and, incidentally, has charge of hiring the personnel necessary
for the operations of the boiler room. He has the power to discharge. By
reason of an ordinance of the city of Seattle, firemen on the boilers must have
a fourth grade license to operate these boilers. This license is secured by
passing a test based on theory and experience in the handling of boilers. By
this same ordinance such boiler firemen are not allowed to be absent from the
boiler room for more than 20 minutes at a time. In addition to their duties in
the boiler room the firemen on the third shift also act as night watchmen at
the plant punching time clocks throughout the storage yard, box factory, saw-
mill, and kiln. The employees in the other divisions of the Respondent's opera-
tions only work two 8-hour shifts per day. These last employees are permitted
in the boiler room only during the lunch hour when necessary to warm them-
selves. Thus far there has been no interchange of boiler room personnel with
any of the other employees of the Respondent's other divisions. Nor is it likely
that there will be in view. of the requirement of the ordinance of the city of
Seattle requiring a license to operate the boilers.
When lumber is to be dried in a kiln, a yard employee covered under the
contract of Local 2519 places the charge of wet lumber in the kiln by means
of lift trucks and then seals the- door. Thereafter the boiler room fireman
regulates the valves as required to send the necessary heat into the kiln for
the drying process. When completed the boiler room fireman closes down the
heat and the yard employee removes the dried charge. The fireman and the
yard employee both receive their instructions regarding the placing and re-
moval of the charge in the kiln from either the assistant manager or the yard
foreman. When the drying is completed the fireman so informs the assistant
manager or the yard foreman who then gives orders to a yard employee for
the removal of the charge.
Although Cecil was presented with the proposed contract of Local 193 some-
time in the middle of September 1949, he did not actually sign that contract
until the first or middle of October 1949. On one or the other of these dates
Cecil demanded proof that Local 193 actually represented the employees of the.
boiler room and was shown the signed application cards of all five of the then
firemen. After deleting one paragraph from the standard form contract used
by Local 193 because it was thought to be illegal under the terms of the Act,
Cecil executed the agreement with Local 193 sometime between the 1st and 15th
of October, 1949.
Sometime after the execution of the contract between the Respondent and
Local 193 at a meeting held in the boiler room among Jorgensen, Thomas
Bernard, business agent of Local 193, and the boiler room firemen on of about
November 9, 1949, Jorgensen succeeded in securing the signed application cards
for membership in Local 2519 from all of the boiler room firemen. There is
SILER MILL COMPANY 1683
some evidence in the record that these signatures were secured by means of
threats that the firemen would be unable to retain their positions unless they ,
were members of Local 2519 but the undersigned believes this evidence to be.
immaterial here.
On or about November 17, 1949 , E. C. Jorgensen , business agent for Local
2519 , presented the Respondent with a proposed agreement on behalf of Local
2519. Cecil agreed to look it over . A few days thereafter Cecil informed,,
Jorgensen that he could not sign the agreement unless the box factory employees,
and the boiler room firemen were expressly excluded from the coverage of the.
agreement . Jorgensen agreed that it had never been the intention of Local
2519 to cover the box factory employees but refused to exclude . the firemen,
contending that they had always been covered under the contract of Local 2519,
not only at the Respondent 's plant but throughout the industry . Cecil refused;
to execute the contract without the express exclusion of the firemen on the.
grounds that the Respondent already had signed an agreement with Local 193,
covering these employees.
The Respondent has never been , and is not now, a member of LIRC and so is
not bound by any agreement which LIRC may have made with Local 2519 al-
though, as a matter of fact,, the Respondent has always paid the same wages
and has granted equal , employment conditions to its employees as negotiated,
between LIRC and. Local 2519. In . fact so far as the record shows the Re-.
spondent has had an excellent history of labor relations having been the first,.
and only , mill to settle with Local 2519 during the industry-wide strike of 1945...
B. Conclusions
During the argument the General Counsel and the attorney for Local 25191
contended that the Respondent had no authority to bargain with Local 193 on
behalf of the firemen as those employees were specifically covered. under Re-.
spondent's agreement with Local 2519 and, in addition, because the Respondent.
knew that it was customary in the industry for the firemen to be included under
the jurisdiction of Local 2519. They then argue that it constituted a violation
of Section 8 (a) (2) for the Respondent tinder these conditions to bargain with
any representative except Local 2519 regarding the firemen and that the bar-
gaining and execution of a contract with Local 193 constituted unlawful as-.
sistance to Local 193. It was also argued that the only independent 8 (a) (1)
allegedly committed by the Respondent consisted of the Respondent's bargain-
ing with Local 193 while knowing that Local 2519 claimed jurisdiction over such,
employees thus bringing into play a slight variation of the Midwest Piping,
doctrine.`
Admittedly the alleged violations of both Section 8 (a) (1) and (2) stand or
fall upon the question of whether the firemen in fact were covered under the,
contract of Local 2519 or were an integral part of the industrial unit for which_
Local 2519 was the recognized bargaining agent.
Likewise it is admitted that the 8 (a) (5) charge depends upon the finding
on the identical question of the appropriateness of a unit of firemen because the.
Respondent's refusal to bargain with Local 2519 on behalf of the firemen is clear
and unmistakable if the firemen are to be considered a part of the industrial unit
as it was also stipulated that Local 2519 represented a maj6rity of the employees
in the unit represented by it even if the firemen are included therein. Therefore,
5 63 NLRB 1060.
929979-51-vol. 92-108
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this whole case depends upon whether or not the firemen are a constituent part
of the unit of sawmill employees represented by Local 2519. Counsel for Local
2519 has argued strenuously that the lumber industry is a single industrial unit
and that, as a part of the lumber industry, the dry kiln is an essential part of
the industrial unit constituting the employees of the sawmill.
Therefore we will turn to the crucial issue in this case, namely, whether or
not, under the facts of this particular case, the firemen mre covered by the agree-
went of 1940 and the extensions thereof or, on the other hand, are embraced as
an integral part of the industrial unit required in the lumber industry.
Regarding the inclusion of the firemen under the terms of the 1940 contract,
it is true that that contract specifically mentions "watchmen, firemen engine room,
boiler room and fuel house attendants" in no less than three places therein.
However, subsequent to 1941 the Respondent had no such employees in its em-
ploy and, while the kiln was operating up until 1941, it is admitted that every
"Tom, Dick and Harry" operated in the boiler room regardless of whether he
was technically an employee in the box factory or in the sawmill. The con-
tract executed was a standard form of contract to be used in all operations
covered by Local 2519 so that all possible classifications of employees were
covered by the terms of that standard form. Furthermore, there was no ex-
tension of the 1940 agreement for the years 1948-49, and subsequent thereto,
until an entirely new agreement was entered into between Local 2519 and the
Respondent during the year 1950. Thus the undersigned does not believe that
the 1940 contract and its extensions make the firemen in a then non-existent
operation an integral part of the unit represented by Local 251$.
Next it is argued that by the custom and practice in the industry, and par-
ticularly by the custom and practice of Local 2519, the employees of a dry kiln
have always been considered to be a part of the unit of sawmill employees rather
than of the unit composed of the employees of the remanufacturing division.
True, the evidence does show that Local 2519 has always claimed jurisdiction
over the boiler room firemen in the four other operations having kilns over
which Local 2519 had bargaining rights in the Seattle area. However, the
customs and practices of Local 2519 whose geographical jurisdiction extends
to but a portion of King County, State of Washington, does not establish the
custom and practice in the industry. In fact in a few other lumber concerns
over which Local 2519 did not enjoy bargaining rights in King County and which
employed firemen, Local 193 itself actually had contracts covering the powerhouse
and boiler room employees while the rest of the employees were represented
by other locals affiliated with the Lumber and Sawmill Workers Union. Re-
cently, in fact, through a gentleman's agreement reached between Local 193
and representatives of locals of the Lumber and Sawmill Workers Union other
than Local 2519, these other locals ceded jurisdiction over such firemen to Local
193 where that Union had petitioned the Board for certification in such a unit.
Thus the custom and practice referred to appears strictly limited to the practice
and custom of Local 2519 and not of the industry itself. In fact, it appears that
Local 193 enjoys bargaining rights on behalf of firemen employed in at ]east half
of the lumber concerns having kilns in the Seattle area excluding box manu-
facturers.
Discarding this custom=and-practice argument there seems to be no valid
reason, based on production practices or any other considerations, in this par-
ticular case why the kiln and boiler room employees should be considered a part
of the sawmill unit any more than that of the box factory unit. The charge
SILER MILL COMPANY 1691
to be dried arrives at the kiln from either the sawmill or the box factory de-
pending upon which division happened to have performed the planing or trim-
ming operation on the lumber just prior to introduction into the kiln. The kiln
is no more necessary to the efficient operation of the sawmill than it is to the
box factory. The kiln appears completely independent of both although it ap-
pears from the use of the kiln for drying material later to be manufactured into
boxes that it is ancillary to the box factory, if to either. It is argued, however,
that Local 2635, the box factory local, has made no claim to these kiln employees
and therefore this argument should be disregarded. However, this argument
does not go to the question of the appropriateness of joinging the kiln employees
to the sawmill or to the box factory unit.
The dry kiln is a separate organization under a chief engineer reporting di-
rectly to the assistant manager of the Respondent. The dry kiln can operate
whether or not the sawmill or the box factory operates. The boiler room sup-
plies power and heat to the dry kiln exclusively. If and when the Respondent
decides to do custom drying, the dry kiln will be a completely independent unit,
or division, of the Respondent's operations totally separated from the Respond-
ent's other operations. There is no interchange of employees between the saw-
mill and boiler room or the box factory. The skills of the employees in each
division are totally different. There is extremely little, if any, contact even be-
tween the different groups of employees. Even in the Respondent's accounting
system, the dry kiln is treated as a separate unit from the other portions of the
plant. In all physical senses as wel: as production senses, the dry kiln is a
separate and distinct unit of the Respondent' s operations.
Even the bargaining history of the different divisions are completely separate.
When the move was made to the new location on West Marginal Way, no provi-
sion was made for the establishment of the dry kiln or boiler. In fact an
additional tract of land had to be purchased for the erection of the dry kiln
a year or more subsequent to the original move. The whole history of bar-
gaining, both before and after the move, discloses that the sawmill and the box
factory have always been separate and distinct units. As disclosed heretofore,
despite the inclusion of the words firemen and boiler room operators in the 1940
contract, it is obvious from the facts of the case that the kiln operators were
never included under the 1940 contract or in its extensions simply because there
were no such employees in the Respondent's employ during the time that contract
and its extensions were in force and effect. The whole history of the venture
of the dry kiln and boiler indicate that it is a separate and distinct division in
the Respondent 's operations and not attached to either one or the other of its
previous divisions.
However it is strenously argued from the recent decision of the Board in the
Weyerhaeuser Timber Company (Springfield Lumber Division)6 case that the
lumber industry is now determined to constitute one industrial unit and, there-
fore, the firemen should be attached to the sawmill unit by accretion as it were.
The General Counsel's representative even goes so far with this theory as to
deny to the firemen any say as to who should represent them. The General
Counsel contends that the wishes of the firemen in this regard were rendered
immaterial by the determination that the lumber industry was, in fact, an
industrial unit. The undersigned does not believe that the Weyerhaeuser case
is determinative of the issues here in view of the fact that, since the beginning
of its industrial history, the Respondent 's plant has been broken into two craft
6 87 NLRB 1076.
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units, i. e., the sawmill unit and the box factory unit. To these two units, or
divisions, of the Respondent were added a third in 1949, namely the dry kiln
and the boiler room. In history and in fact the boiler room and dry kiln under'
the peculiar circumstances of this case is a completely separate and independent
division of the Respondent's operations and the employees employed in this
division are separated in history and in fact from the employees of the other
divisions. The undersigned believes that the peculiar circumstances existing
here warrant a different treatment for the employees in the boiler room than
they were afforded in the Weyerhaeuser decision. The undersigned believes
this case to be unique.
For all the reasons above stated, the undersigned is constrained to bold that
the firemen employed in the boiler room and dry kiln of the Respondent con-
stitute a unit appropriate for collective bargaining and are not necessarily an
integral part of the unit comprised of the employees of the sawmill.""'
In view of this finding by the undersigned it is apparent that the Respondent
had a right to negotiate with Local 193 as the representative of the employees
of the boiler room and dry kiln and, therefore, has not refused to bargain with
Local 2519 nor, in fact, committed any unfair labor practices.
In view of the undersigned's finding regarding the appropriateness of the
unit composed of the firemen employed in the boiler room at the Respondent's
plant, it naturally follows that the allegations of violations of Section 8 (a) (1),
(2), and (5) fall and, therefore the undersigned will recommend that the
complaint in its entirety be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or.proceeding
(including rulings upon all motions or objections) as he relies upon together
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
of the intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board Shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46 should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, conclu-
sions, and order and all objections thereto shall be deemed waived for all
purposes.