Biles-Coleman Lumber Co., Inc.

National Labor Relations Board - Board DecisionsJun 27, 1940

24 N.L.R.B. 1036 (N.L.R.B. 1940)

In the Matter of BILES-COLEMAN LUMBER CO., INC. and SAWDUST MAKERS UNION #1, INC. Case No. B-1813.-Decided June 27, 1940 Lumber Industry-Investigation of Representatives : controversy concerning representation of employees : rival organizations-Contract : no bar to investiga- tion or certification of representatives-Unit Appropriate for Collective Bar- gaining: all employees in the sawmill , factory, powerhouse , kilns, yards, and lower end section railroad crew, . including truck drivers ( excepting certain drivers who operate trucks equipped for highway travel ) and retail -department employees who pile, trim , and load lumber , but excluding all employees in the woods, supervisory officials , foremen, salesmen , bookkeepers , clerical and office employees , watchmen , and janitors ; controversy as to classification of certain employees-Election Ordered Mr. Robert L. Condon, for the Board. Weter; Roberts & Shefehnan, by Mr. F. M. Roberts, of Seattle, Wash., for the Company. Mr. Joseph Wicks, of Okanogan, Wash., for the Sawdust Makers. Mr. L. Presley Gill, of Seattle, Wash., for Local No. 2570. Mr. Leo B. Fee, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 30, 1939, Sawdust Makers Union #1, Inc., herein called the Sawdust Makers, filed with the Regional Director for the Nine- teenth Region (Seattle, Washington) a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of Biles-Coleman Lumber Co., Inc.,' Oma'k, Washington, herein called the Company, and requesting an investigation, and cer-' tification.of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 4, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, i Incorrectly designated in the petition as Biles-Coleman Lumber Company . At the hearing the petition was amended to indicate the correct name. 24 N. L. R. B., No. 115. 1036 BILES-COLEMAN LUMBER. CO,, INC. 1037 of National Labor Relations Board Rules and Regulations-Series 2, 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 12 and 19 and April 4, 1940, the Regional Director issued a notice of hearing and notices of postponement. of hearing, copies of all of which were duly served upon the Compaliy, the Sawdust Makers, and Lumber & Sawmill Workers Union No. 2570, chartered by the United Brotherhood of Carpenters and .Joiners of America, affiliated with the American Federation of Labor, herein called Local No. 2570, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on April 29, 1940, at Okanogan, Washington, before Thomas S. Wil- son, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel; the Sawdust Makers and Local No. 2570, by their respective representatives; all partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objec- tions to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudical errors were committed. The rulings are hereby affirmed. Upon the entire record in the proceeding, the Board makes the following : , FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Biles-Coleman Lumber Co., Inc., is a Washington corporation hav- ing its principal office and place of business in Omak, Washington. It is engaged in the business of logging timber and operating a saw- mill and factory. The Company's principal product is lindermanized - casket shooks, of which it manufactures approximately 75 per cent of the total output in the Northwest. Between November 1, 1938, and October 31, 1939, the Company's sales of its manufactured products amounted to approximately $1,608,933. During that period it sold and shipped 83 per cent of -its products to points outside the State of Washington. During the same period the Company's total sales amounted to $1,697,754, 79 per cent of which represented sales made to points outside the State of Washington. II. THE ORGANIZATIONS INVOLVED _ Sawdust Makers Union #1, Inc., is an unaffiliated labor organiza- tion, admitting to its membership employees of the Company. 1038 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD Lumber &_ Sawmill Workers Union No. 2570, chartered by the United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, is a labor organization, admitting to its membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION. On December.'23, 1937, the Board ordered the Company to bargain collectively with Local No. 2570 as the exclusive representative of its employees in a unit consisting of the employees in the sawmill, factory, powerhouse, kilns, yards, and lower end section railroad crew, exclud- ing all the employees in the woods, supervisory officials, foremen, salesmen,' clerical and office employees,- watchmen, and janitors.2 On July 28, 1938, the Company and Local No. 2570 entered into a contract by' which the Company recognized Local' No. 2570 as the exclusive collective bargaining representative of the employees in the said unit. The contract was for a term of 1 year, subject to.being. terminated on 60 days' notice prior to the end of the year, and subject further to being automatically renewed for 1 additional year in the absence of E0 days' notice being given prior to the expiration of the first year. On May 20, 1939, the Sawdust Makers wrote a letter to the Com- pany, claiming to represent a majority of the employees in the above- mentioned bargaining unit and that it was entitled to the exclusive representation of said employees upon the termination of the above- mentioned contract. - The Company replied that it had been informed that it was legally required to bargain with Local No. 2570, and sug- gested that the Sawdust Makers institute a representation, proceeding before- the Board. Thereafter, the Company informed Local No. 2570 of the claim concerning representation made by the Sawdust Makers and that the Company was willing that its contract of July 28, .1938, with Local No. 2570 should, be renewed "subject to the 60 day cancellation clause therein contained and to 'cancellation of your right of representation if at any time the National Labor Relations Board certifies that you no longer have bargaining rights for the employees in the unit." At the hearing all parties agreed that "the Board may direct an election in order to resolve the question concerning representation if one is found." However, Local No. 2570 took- the position that,its contract with the Company does not expire until July 28, 1940, and that the Board therefore should not conduct an election to be held, until after that date. Under the circumstances the contract does not constitute a bar to an investigation and certification of representatives at this time. 2 Matter of Biles -Coleman Lumber Company and Puget Sound District Counoil of Lumber and Sawmill Workers , 4 N. L. R . B. 679. BILES-COLEMAN LUMBER CO ., INC. 1039 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 Sawdust Makers and Local No. 2570 agreed that the unit determined by the Board to. be appropriate on December 23, 1937, is the unit appropriate for the purposes of collective bargaining. As stated above, said unit consists of the employees of the Company in the sawmill , factory, powerhouse , kilns, yards , and lower . end sec- tion railroad crew, excluding 'all the employees in the woods , supervi- sory officials, foremen , salesmen , clerical and office employees , watch- men, and janitors . The Company has made no contention regarding the appropriate unit. The Sawdust Makers and Local No. 2570 dis- agree as to whether certain classifications and employees come within the agreed unit. We shall consider the groups as to which there is disagreement. - Supervisory employees. At the hearing all parties agreed that the following employees who are listed on the Company's pay roll as superintendents , foremen, and assistant foremen should be excluded from the appropriate unit : Roy' Webster , Henry A. Sauer, Charles Huber, Jr., Harry Perry, Jess Palmer, C. D. Harper, A. H. Harding,- Fred Hahn , Phil Welter , John Haeberle, Horace E. Smith, 0. S. Brender , Robert W. Smith, Frank Hekel , C. A. Palmer, and Arthur Hartman.3 The individuals named, being supervisory employees, are not in the appropriate unit. Local No. 2570 contends that the following employees should also be excluded because of their supervisory capacities : Don Jaquish, F. A. Rudd, Ernest H. Thompson , Charles L. Barnett, E. R. Kohls, Phil Watson , Robert Burris, Arno Hopfer, Ivan Lee, Walter Welter, John Winger, and William Bangs.4 The Sawdust Makers oppose their exclusion. . The record is not clear whether they were consid- ered as included in the unit previously found to be appropriate by the Board; nor is it clear whether they were covered by the contract' 3 They are listed in Appendix B. They are listed in Appendix A. 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of July 28, 1938, between the Company and Local No. 2570. None of these employees is listed on the Company's pay roll as a person with supervisory capacity and none of them has the power to hire or discharge employees. Rudd, Thompson, Jaquish, and Walter Welter check orders in their respective departments and in,doing so see that the machines and saws are supplied with the necessary materials and that the orders are properly filled. To this extent their work differs from that of the other employees in .the. departments in which they work. Together with the other. employees they all work under the supervision of either a foreman or an assistant foreman and at times they all operate machines or saws. The record does not establish that they exercise such supervision over the employees with whom they work as to justify placing them in the category of supervisory employees. They are, therefore, in the appropriate unit. Barnett piles lumber in the stock shed of the Frame Department. From time to time the foreman sends other employees to the stock shed to work with Barnett. On these occasions Barnett may inform the other employees what to do. He is not considered. as being in. charge of the stock shed, however. His occasional direction of other em- ployees' work is not sufficient to classify him as a supervisory ,employee. He is, therefore, in the appropriate unit. Hopfer operates various machines in the Frame. Department. There is no evidence to show that his duties are of a supervisory nature or different from those of other employees operating machines. Hopfer is, therefore, in the appropriate unit. Kohls grinds the knives that are set in the moulding machines in the Frame Department. Ordinarily _ he is the only employee so engaged. However, at times a helper-is temporarily assigned by the foreman to assist him. This is not sufficient to classify Kohls as a supervisory employee. He is, therefore, in the appropriate unit. Watson and Burris are "head setters" in the Frame Department, Watson on the day and Burris on the night shift. They are engaged in setting heads in the molding machines. When it is necessary to set a new head in a machine; Watson or Burris tells the men operating the machine to work on another machine while the head is being installed. After the head is properly set in the machine, Watson or Burris then checks it for accuracy. The record does not establish that either Watson or Burris exercises such super- vision over other employees as to be considered a supervisory em- ployee. They are, therefore, in the appropriate unit. Lee is employed in the Bundling. Department. This department assembles lumber for shipment. Lee's work consists of trucking lumber to the assembly benches. Although at times he corrects BILES-COLEMAN LUMBER CO., INC. 1041 mistakes made in bundling, there is not sufficient evidence to estab- lish that he occupies a supervisory, position. He is, therefore, in the appropriate unit. Winger is employed as a millwright, keeping the machines in the factory in repair. At times a helper is assigned by the foreman} to assist him, and at such times he directs the activities of the helper. This is not sufficient to classify Winger as a supervisory employee. He is, therefore, in the appropriate unit. Bangs is employed in the . dry kiln where, together with other employees, under the foreman's supervision he removes green lum- ber from the "green chain" and places it in piles for the purpose of drying it. Bangs from time to time directs the employees work- ing with him to pile lumber or to remove it from the "green chain" as necessity may, require. We find that such occasional direction is insufficient to classify Bangs as a supervisory employee. He is, therefore, in the appropriate unit. The Retail Department. Local No. 2570 contends that all em- ployees in the Company's retail department should be excluded from the appropriate unit. The Sawdust Makers opposes their exclusion. The retail department sells lumber and other building materials, at retail, .to persons located in Omak, Okanogan, and the Okanogan Val- ley. It is located adjacent to the Company's sawmill and factory. Six persons, including Horace E. Smith, the foreman thereof, are em- ployed in this department. All parties agreed that Smith should be excluded from the unit as a foreman. The other employees in the retail department are two .employees who pile, trim, and load lumber, one bookkeeper, and two salesmen. No evidence was introduced to show that the work of the two employees who pile, trim, and load lumber in the retail department is different from that done by similar employees in the sawmill and factory or that the-employees in the retail department and in the saw- mill and factory work under* substantially different conditions. Under these circumstances and in the absence of evidence to the contrary we must assume that the employees in the 'retail' department who pile, trim, and load lumber are covered by the current contract and are 'included in the appropriate unit. The bookkeeper, being an office and clerical employee is excluded from the appropriate unit. - In our previous determination of the appropriate bargaining unit of the Company's employees we excluded retail salesmen therefrom.5 Thereafter Local No. 2570 entered into a contract with the Company covering a unit from which these salesmen were excluded and the -Matter of Biles-Coleman. Lumber Company and Puget Sound District Council of Lumber' and Sawmill Workers, 4 N. L. R. B. 679. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sawdust Makers sought . to bargain with the Company for the en-1- ployees in such a unit . The salesmen areare not in the appropriate unit. Truck drivers. The Company uses in and around the sawmill and factory - certain trucks which are not, equipped for highway travel., The Sawdust Makers and Local No. 2570 agree that the drivers of these trucks should be included in the unit . These truck drivers, in the absence of evidence to the contrary , are presumably covered by the contract of July 28, 1938, and are . in the appropriate unit. . The Company also operates three trucks , known as the "red trucks," ' which are equipped for highway travel . They are used by the retail department and when not so in use are made use of around the sawmill and factory. Local No. 2570 contends that the drivers of the "red trucks " should be excluded from the appropriate unit. The Sawdust. Makers opposes their exclusion . While these truck drivers are eligible to membership . in the Sawdust Makers, they 'are not eligible to membership in Local No. 2570. Presumably , therefore; they were not covered by the contract of July 28, 1938, between the Company and Local No. 2570. The drivers of the "red trucks" are not in the appropriate unit. We find that the employees of the Company in the sawmill, factory, powerhouse , kilns, yards , and lower, end section railroad crew, including truck drivers , other than those who operate "red trucks," employees named in Appendix A, and retail-department employees who pile, trim, and load lumber, but ' excluding all em- ployees in the woods , supervisory officials, , foremen, salesmen, book- keepers , clerical and office employees , watchmen, janitors, employees named in Appendix B, and drivers of "red trucks," 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 bargain -ing and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa- tion can best be resolved by an election by secret ballot. We shall direct that the employees within the appropriate unit who were employed by the Company during the pay-roll period' immedi- ately preceding the date of our Direction of Election herein, includ- ing those who did not work during said pay, roll period because they were ill or On vacation and employees who were then or have since been temporarily laid off, but excluding those 'who have since quit or.been discharged for cause, shill be eligible to vote in the election. BILES-COLEMAN LUM.BER CO., INC. 1043 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 his arisen concerning the repre- sentation of employees of Biles-Coleman Lumber Co., Inc., Omak, Washington, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The employees of the Company in the sawmill, factory, power- house, kilns; yards, and lower end section railroad crew, including truck drivers. other than those who operate "red trucks," employees named in Appendix A, and -retail-department employees who pile, trim, and load lumber, but excluding all employees in the woods, supervisory officials, foremen, salesmen, bookkeepers, clerical and office employees, watchmen, janitors, employees named in Appen- dix B, and drivers of "red trucks," constitute a unit appropriate for the purposes of collective bargaining, within- the. meaning of Section 9 (b) of the 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 2, 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 Biles-Coleman Lumber Co., Inc., Oinak, Washington, 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 of Election, 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 the employees of Biles-Coleman Lum- . ber Co., Inc., Omak, Washington, in the sawmill,. factory, powerhouse, kilns, yards, and lower end section railroad crew; who were employed by it during the pay-roll period immediately preceding the date of this Direction, including. truck drivers, other than those who operate "red trucks," employees named M. Appendix A, retail-department employees Who pile, trim, and load lumber, employees who did not work during such pay-roll period because they were ill or on vaca- tion, and employees who were then or have since been temporarily laid off, but excluding all employees in the woods, supervisory of- ficials, foremen, salesmen, bookkeepers, clerical and office employees. 1044 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD watchmen, janitors, employees named in Appendix B, drivers of "red trucks," and those who have since quit or been discharged for cause, to determine whether they desire to be represented by Sawdust Makers Union #1, Inc., or Lumber & Sawmill Workers Union Local No. 2570, chartered by the United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. APPENDIX A Don Jaquish F. A. Rudd Ernest H. Thompson 'Charles L. Barnett E. R. Kohls Phil Watson Roy Webster Henry A. Sauer Charles Huber, Jr. Harry Perry Jess Palmer C. D. Harper A. H. Harding Fred Hahn Robert Burris Arno Hopfer Ivan Lee Walter Welter John Winger William Bangs BAPPENDIX Phil Welter John Haeberle Horace E. Smith 0., S. Brender Robert W. Smith Frank Hekel C. A. Palmer Arthur Hartman MR. EDWIN S. SMITH took no. part in the consideration of the above Decision and Direction of Election.