Daniel Creek Logging Co.

National Labor Relations Board - Board Decisions

Jun 10, 1939

13 N.L.R.B. 184 (N.L.R.B. 1939)

In the Matter of DANIEL CREEK LOGGING Co. and LUMBER & SAWMILL
WORKERS' UNION LOCAL No. 2573
Case No. R-1346-Decided June 10, 1939
Logging Industry-Investigation of Representatives: controversy concerning
representation of employees: company refused to recognize either of two com-
peting unions as exclusive representative of employees-Umt Appropriate for
Collective Bargaining: all employees exclusive of supervisors and clerical em-
ployees, agreement as to-Employee Status: workers employed by independent
contractor held not employees of company-Election Ordered-Certification of
Representatives.
Mr. Patrick H. Walker, for the Board.
Mr. Donald K. Grant, of Portland, Oreg., and Mr. Joseph McKeown
and Mr. Andrew J. Newhouse, of Marshfield, Oreg., for the Company.
Mr. L. Presley Gill, of Seattle, Wash., for Local 2573.
Mr. Ben Anderson, of Portland, Oreg., for the I. W. A.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 30, 1938, Lumber & Sawmill Workers' Union, Local
2573, chartered by the United Brotherhood of Carpenters & Joiners
of America, affiliated with the American Federation of Labor,'-
herein called Local 2573, filed with the Regional Director for the
Nineteenth Region (Seattle, Washington) a petition, subsequently
amended, alleging that a question affecting commerce had arisen con-
cerning the representation of employees in Daniels Creek Logging
Co.,2 North Bend, Oregon, herein called the Company, and requesting
an investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On March 7, 1939, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
1 Incorrectly designated "Lumber & Sawmill Workers Local No. 2573, chartered by the
U. B. of Q. & J., affiliated with the American Federation of Labor" in the amended peti.
tion. This was corrected by motion at the hearing.
Incorrectly designated "Daniel Creek Logging Co." in the formal papers.
13 N. L. R. B., No. 24.
184
DANIEL CREEK LOGGING COMPANY 185
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On March 17, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon Local 2573,
and upon International Woodworkers of America, Local No. 116,
herein called the I. W. A., and upon Boommen and Rafters, Local No.
166, labor organizations claiming to represent employees directly
affected by the investigation. Pursuant to the notice, a hearing was
held' on April 6, 1939, at Marshfield, Oregon, before Thomas S. Wilson,
the Trial Examiner duly designated by the Board. The Board, the
Company, Local 2573, and the I. W. A. were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the close of Local 2573's
case, counsel for Local 2573 moved to conform the pleadings to the
proof. The motion was granted. During the course of the hearing,
the Trial Examiner made several rulings on other motions and on
objections to the admission of evidence. The Board has reviewed
all the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is an Oregon corporation engaged in the business of
logging. The Company does not itself saw logs or export lumber.
However, it sells its logs to other firms who in turn export the lumber
products made therefrom to points outside the State. Thus, during
the first quarter of 1939 it sold its entire production to Mill B, Incorpo-
rated, Coos County, Oregon, a corporation having the same officers
and directors as the Company. Mill B, Incorporated, processes the
logs and ships about 99 per cent of its products to points outside the
State of Oregon.3 During this same period, the Company cut approxi-
mately 3 million feet of lumber and employed approximately 58
employees.
II. THE ORGANIZATIONS INVOLVED
Lumber & Sawmill Workers Union, Local 2573, chartered by the
United Brotherhood of Carpenters & Joiners of America, is a labor
8 See Matter of Mill B. Inc . and Lumber and Sawmill Workers Union, Local No 2573,
12 N. L R. B 1317.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization affiliated with the American Federation of Labor. It
admits to membership all production and maintenance employees of
the Company, excluding supervisory and clerical employees.
International Woodworkers of America, Local No. 116, is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership the same categories of employees of the
Company as Local 2573.
III. THE QUESTION CONCERNING REPRESENTATION
In July 1938, Local 2573, claiming to represent a majority of the
employees, requested the Company to deal with it as exclusive repre-
sentative of the Company's employees. *James Lyons, president of the
Company, denied this request, expressing doubt as to whether Local
2573 represented a majority of the employees.
On March 30, 1939, the I. W. A., claiming to represent a majority
of the employees, requested the Company to negotiate an agreement
with it as exclusive representative of the Company's employees. This
request was denied by the Company.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing, the I. W. A., Local 2573, and the Company agreed
that all the employees of the Company, excluding supervisors and
clerical employees, constituted an appropriate unit. The Company
and Local 2573 urged the exclusion from the unit of certain "fallers"
and "buckers" employed by Robert Geil, an independent contractor.
Although the Company pays the fallers and buckers, the total amount
of wages so paid is deducted from the contract price paid to the in-
dependent contractor. Geil has sole power to hire and discharge
such persons and there is no showing in the record that the Company
exercises any control over them. On the basis of the facts presented,
we are of the opinion that such persons may not properly be deemed
DANIEL CREEK LOGGING COMPANY 187
employees of the Company 4 and they are not included within the
meaning of the term "employees of the Company" as used hereinafter.
We find that all the employees of the Company, excluding super-
visors and clerical employees, constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and will otherwise effectuate
the policies of the Act.
VI. TAPE DETERMINATION OF REPRESENTATIVES
The Company introduced in evidence its pay rolls dated August 15
to 30, 1938, and March 15 to 31, 1939. The former pay roll contains
the names of 93• employees in the appropriate unit and the latter
the names of 42 in said unit. In support of its claims to majority
representation, the I. W. A. produced 52 membership cards signed
during March and April 1939. The genuineness of the signatures was
verified by I. W. A. witnesses who testified that the cards were signed
or acknowledged in their presence. A comparison of the names on
the cards with the March 15 to 31, 1939, pay roll reveals that 34 of
the 42 employees on that pay roll in the appropriate unit have signed
membership cards designating the I. W. A. as their bargaining agent.
Local 2573 introduced in evidence 62 membership cards signed by
employees, before April 1938. A comparison of the names on the
cards with the March 15 to 31, 1939, pay roll reveals that 13 of the
signatories appear thereon. The names of 10 such employees also
appear on the membership cards of the I. W. A. Local 2573 contends
that an election should be held to determine the question concerning
representation. A considerable time elapsed between the filing of
Local 2573's petition and the hearing; it was during this period that
the I. W. A. obtained their afore-mentioned cards. Under these cir-
cumstances, we believe that the question concerning representation
can best be resolved by means of an election by secret ballot.
The I. W. A. and the Company urged that the pay roll of March
15 to 31, 1939, be used as a basis for the determination of representa-
tives. Local 2573, on the other hand, suggested the pay roll of
August 15 to 30, 1938. The paymaster for the Company testified that
the March 15 to 31, 1939, pay roll was a representative and normal
one. We find that those eligible to vote in the election shall be the
persons in the appropriate unit who were employed by the Company
during the pay-roll period of March 15 to 31, 1939, including em-
ployees who did not work during such pay-roll period because they
Cf. Matter of Union Lumber Company . and Lumber & Sawmill Workers Union Local
2826, 7 N. L. R . B. 1094.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were ill or on vacation, but excluding those who have since quit or
been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case , the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Daniels Creek Logging Co., North Bend,
Oregon, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All the employees of the Company, excluding supervisors and
clerical employees, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Daniels Creek Logging Co., North Bend, Oregon, an election
by secret ballot shall be conducted within fifteen (15) 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
Article III, Section 9, of said Rules and Regulations, among all the
employees of the Company who were employed during the pay-roll
period of March 15 to 31, 1939, including employees who did not
work during such pay-roll period because they were ill or on vaca-
tion, but excluding supervisors, clerical employees, and employees
who have since quit or been discharged for cause, to determine
whether they desire to be represented by Lumber & Sawmill Workers
Union, Local 2573, chartered by the United Brotherhood of Car-
penters & Joiners of America, affiliated with the American Federation
of Labor, or by International Woodworkers of America, Local 116,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining, or by neither.
MR. WILLIAM M. LEIsERsoN took no part in the consideration of
the above Decision and Direction of Election.
DANIEL CREEK LOGGING COMPANY 189
[SAME TITLE
AMENDMENT TO DIRECTION OF ELECTION
June 15, 1939
On June 10, 1939, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceeding, the election to be held within fifteen (15)
days from the date of the Direction, under the direction and super-
vision of the Regional Director for the Nineteenth Region (Seattle,
Washington). The Board, having been advised by the Regional
Director for the Nineteenth Region that a longer period within
which to hold the election is necessary, hereby amends the Direc-
tion of Election issued on June 10, 1939, by striking therefrom the
words "within fifteen (15) days from the date of this Direction"
and substituting therefor the words "within twenty-five (25) days
from the date of this Direction."
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Amendment to Direction of Election.
13 N. L. R. B, No. 24a. -
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
July 15, 1939
On June 10, 1939, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in
the above-entitled proceeding. On June 13, 1939, the Board issued
an Amendment to Direction of Election. The Direction of Elec-
tion, as amended , provided that an election by secret ballot be con-
ducted within twenty-five (25) days from the date of the Direction
among all the employees of Daniels Creek Logging Co., North Bend,
Oregon, who were employed during the pay-roll period of March 15
to 31, 1939, including employees who did not work during such pay-
roll period because they were ill or on vacation, but excluding su-
pervisors, clerical employees, and employees who have since quit or
been discharged for cause , to determine whether they desire to be
represented by Lumber and Sawmill Workers' Union, Local 2573,
chartered by the United Brotherhood of Carpenters & Joiners of
America, affiliated with the American Federation of Labor, or by
international Woodworkers of America, Local 116, affiliated with
the Congress of Industrial Organizations, for the purposes of collec-
tive bargaining , or by neither.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the Direction of Election, as amended, an election by
secret ballot was conducted on June 30, 1939, at Idlewood, Oregon,
under the direction and supervision of the Regional Director for
the Nineteenth Region (Seattle, Washington). On July 5, 1939, the
Regional Director, acting pursuant to Article III, Section 9, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, issued and duly served upon the parties his Intermediate
Report upon Secret Ballot. No objections or exceptions have been
filed by any of the parties.
As to the balloting and its results, the Regional Director reported
as follows :
Total No. eligible voters____________________________________ 35
Total No. of ballots cast___________________________________ 33
Total No. of votes in favor of Lumber & Sawmill Workers'
Union, Local No. 2573, A. F. of L_________________________ 1
Total No. of votes in favor of Local No. 116, International
Woodworkers of America, C. I. O_________________________ 32
Total No. of votes in favor of neither______________________ 0
Total No. of blank ballots ----------------------- .._-________ 0
Total No. of void ballots__________________________________ 0
Total No. of challenged votes______________________________ 0
Total No. eligible voters not voting________________________ 2
By virtue of and pursuant to the power vested in the National
Labor Relations Board, by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8
and 9, of National Labor Relations Board Rules and Regulations-
Series 2,
IT IS HEREBY CERTIFIED that International Woodworkers of Amer-
ica, Local No. 116, has been selected by a majority of the employees
of Daniels Creek Logging Co., North Bend, Oregon, excluding super-
visors and clerical employees, as their representative for the pur-
poses of collective bargaining, and that, pursuant to Section 9 (a).
of the Act, International Woodworkers of America, Local No. 116,
is the exclusive representative of all such employees for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Certification of Representatives.
13 N. L. R. B., No. 24b.