Warm Springs Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Mar 9, 1970

181 N.L.R.B. 600 (N.L.R.B. 1970)

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warm Springs Lumber Co ., Inc.,
Employer-Petitioner and Clerks and Lumber
Handlers Union , Local 939 , International Union of
Labor and Hod Carriers , AFL-CIO and Millmen's
Union No . 550, United Brotherhood of Carpenters
and Joiners , AFL-CIO. Case 20-UC-19
March 9, 1970
DECISION AND ORDER CLARIFYING
CERTIFICATION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a petition duly filed under Section 9(b) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer David J.
Salniker . Following the hearing and pursuant to
Section 102 . 67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure , Series 8, as amended , and by direction of
the Regional Director for Region 20, this case was
transferred to the National Labor Relations Board
for decision . None of the parties filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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
affirmed.
Upon the entire record in this case , the Board
finds:
The petition filed herein by the Employer seeks
clarification of a bargaining unit at the Employer's
place of business at Fremont , California , which the
Board certified in 1965 in behalf of Clerks and
Lumber Handlers Union , Local 939, International
Hod Carriers , Building and Common Laborers of
America , AFL-CIO, herein called Clerks. At issue
is whether the specific job classifications of
operators of band saws , rip saws , surfacers , planers,
and a rafter -cutter are deemed to be in the Clerks'
unit or are properly considered to be part of those
employees covered by the Millmen ' s' contract.
The Employer and the Clerks have been parties to
a series of collective - bargaining agreements, the first
of which was entered into in 1959 . The employees in
the disputed job classifications were covered by the
1959 agreement and by the one which followed it,
effective until 1962.
In 1962 the Employer hired two employees who
were members of the Millmen ' s Union, one of
whom , Richard Hoteling , because he wished to
protect certain seniority rights he had gained as a
member of the Millmen's Union, prevailed upon the
Employer to execute a contract with the Millmen's
Union. The contract entered into was intended to
cover only these two employees, who were classed as
detail saw operators, although the contract also
contained language recognizing the Millmen as
representative of employees "on bench work and the
operation of woodworking machinery." At about the
same time the Employer again executed a contract
with the Clerks which, unlike prior contracts
between the parties, did not include the detail saw
operator classification now covered by the Millmen's
contract.
In 1964 the Millmen, on the basis of the
recognition clause of their 1962 contract with the
Employer, claimed to be the representative of the
cut-off saw operators because they operated
woodworking machinery. In response to such claim
the Clerks filed a representation petition seeking a
unit comprising "all lumber clerks, lumber handlers,
mill helpers and cut-off saw operators employed by
the Employer at its Fremont, California, yard
excluding detail saw operators, all other employees,
office clerical employees, guards and supervisors as
defined in the Act." The Millmen were also
represented on the ballot, and the employees in the
job classifications presently in dispute (operators of
band saws, rip saws, surfacers, planers,
rafter-cutters) were deemed eligible to vote and
included in the unit.
The Clerks won the election, and thereafter, on
January 25, 1965, the Board certified them as the
exclusive bargaining agent for the unit previously
described.
Currently, the Millmen, although abandoning
their claim for cut-off saw operators, claim to
represent other employees operating woodworking
machinery, the employee classifications here in
dispute. In furtherance of their recognition claim the
Millmen picketed the Employer, and thereafter the
Employer and the Millmen submitted to arbitration
the question of whether the employee classifications
in dispute were considered within the Millmen's
contract unit. The Clerks Union refused to
participate in the arbitration proceedings. On
September 7, 1967, an arbitrator's decision issued
which concluded that the operation of woodworking
machinery other than cut-off saws was to be
performed in accordance with the Millmen's
agreement.I
As a general rule, in a representation proceeding
such as the present one before it, the Board may
defer to an arbitrator's award where a question of
contract interpretation presented to the arbitrator is
in issue and if the arbitration proceeding and result
meet the Board's requirements for arbitration
'Millmen & Cabinet Makers Local Union 55, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, herein referred to as
Millmen or the Mdlmen 's Union
Inc arbitration award was enforced by the Superior Court of California
on September 24, 1968, the day this petition was filed.
181 NLRB No. 90
WARM SPRINGS LUMBER CO. 601
awards.3 In this particular controversy, however, the
issue involves an interpretation of the scope of the
Board certification issued to the Clerks Union in
1965, and thus, concerns a matter uniquely suited to
Board determination. It is not a matter to be
resolved solely by the arbitrator's - or the Board's
- interpretation of a union's contractual provisions.
After review of the facts surrounding the
certification, we conclude that the employees in the
disputed classifications were included in the unit for
which the Clerks Union was certified. We predicate
this result upon the facts that, while the employees
in the disputed classifications might properly be
included in either the unit represented by the Clerks
or that represented by the Millmen, it is clear that
they were included in the initial contract between
the Employer and the Clerks in 1959; that they were
included in the unit and were eligible to vote in the
election resulting in the Clerks' certification, that
they have not been covered in their terms and
conditions of employment by the Millmen's contract
and that there have been no changes either in
methods of operations or in the job classifications,
warranting any reconsideration of their status at the
present time. As the arbitrator's award would
undermine the Board's certification and is repugnant
to the statutory policy, we shall not defer to it here.
Accordingly, we conclude, ' contrary to the
arbitration award, that the employees in the
disputed classification are covered by the Clerks'
'Raley's Inc, 143 NLRB 256
'Cf Westinghouse Electric Corp , 162 NLRB 768, 771 The Horn &
Hardart Company, 173 NLRB No 164
certification and are not represented by the
Millmen's Union.
There is, moreover, an additional factor for not
deferring to the arbitrator's decision. As previously
mentioned, the Clerks did not participate in the
arbitration proceeding. While it appears that at the
arbitration hearing, the Employer asserted a
position which is identical with the Clerks' position
herein, namely, that the Clerks' Union does
represent the employees in disputed classifications,
the record is unclear as to how vigorously the
Employer asserted this position. In fact, at the
hearing following the filing of the instant petition,
the Employer claimed to be neutral. Furthermore, it
is not clear whether all the pertinent evidence was
made available to the arbitrator, particularly the
circumstances surrounding the 1965 election and the
subsequent certification of the Clerks. In these
circumstances, we conclude it would not effectuate
statutory policy to defer to the arbitration award.4
Therefore, we shall clarify the certification in
Case 20-RC-6127 to include the disputed job
classifications.
ORDER
It is hereby ordered that the certification
heretofore issued to the Clerks and Lumber
Handlers Union, Local 939, International Union of
Labor and Hod Carriers, AFL-CIO, in Case
20-RC-6127, be, and it hereby is, clarified, by
specifically including therein employees engaged in
the operation of band saws, surfacers, planers, and
rafter-cutters.