Cape Arago Lumber Co.

National Labor Relations Board - Board Decisions

May 6, 1940

83 N.L.R.B. 394 (N.L.R.B. 1940)

In the Matter Of CAPE ARAGO LUMBER COMPANY, EMPLOYER and
LUMBER AND SAWMILL WORKERS LOCAL UNION No. 2573, AFL,
PETITIONER
Case No. 36-RC-162O.-Decided May 6, L940
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition duly filed, hearing in this matter was
held at North Bend, Oregon, on January 12 and 13, 1949, before
Eleanor Nygren, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
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 Reynolds, Murdock, and
Gray].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner, a labor organization, claims to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of all production and maintenance em-
ployees of the Employer at its lumber manufacturing plant at Empire,
Oregon, together with boom-men 1 and rafters at the Employer's
logging dumps at Delmar and Allegany, Oregon, and at intermediate
dumps,2 including employees temporarily assigned to railway carload-
ing operations, but excluding the crane operator, office clerical em-
ployees, and supervisors. The Petitioner and Employer are generally
in agreement as to the composition of the unit. However, the Em-
ployer would exclude boom-men, rafters, and employees temporarily
assigned to railway carloading operations.
'These boom -men are distinguishable from the boom-men who are employed in the
millpond at the Empire plant, and as to whom there is no dispute
3 The Employer presently operates only the Delmar and Allegany dumps; however, it is
occasionally necessary to operate intermediate dumps.
83 N. L. R. B., No. 5&
394
CAPE ARAGO LUMBER COMPANY 395
Since 1941, the Employer, an Oregon corporation, has been engaged
in the manufacturing of lumber at Empire, Oregon. Empire is lo-
cated on the shore of Coos Bay, Oregon. It is on this bay that a sub-
stantial number of logs used at the Empire plant are rafted and towed
from the Employer's logging dumps at Delmar and Allegany, Oregon.3
Both dumps receive logs by truck from the Employer's logging camps'
From these dumps the logs are rafted and towed to the Empire plant.
Lumber shipped from the Empire plant is transported by trucks of
independent contractors to the towns of North Bend and Coos Bay,
Oregon,' and there loaded onto railway cars.
Boom-men and rafters
Boom-men and rafters who, at the various logging dumps, assemble
logs which are thereafter towed to the Empire plant, perform an
integrated operation under a common over-all supervision with the
production and maintenance employees at the Empire plant. The Em-
ployer contends that boom-men and rafters should be excluded from
the proposed unit upon the grounds : (1) that they are not employees
of the Employer but are employees of Millicoma Boom Company; 6
and (2) that the bargaining pattern in the industry and the Employer's
own bargaining history' establish the appropriateness of a separate
unit for such employees.
The Millicoma Boom Company, an Oregon corporation, has a fran-
chise from the State of Oregon, pertaining to certain booming rights
on the Allegany River, a tributary of Coos Bay. The Employer con-
trols Millicoma Boom Company; both corporations have an inter-
locking directorate ; and the superintendent of the Employer is the
manager of Millicoma Boom Company, and as such hires and directs
its employees. The main office of the Employer is the main office of
Millicoma Boom Company and the books of both concerns are kept
by the same office force. Thus, it appears that the Employer through
its superintendent, hires, directs, and otherwise controls, if not ex-
clusively, at least in common with Millicoma Boom Company, the
boom-men and rafters involved in this proceeding. In view of the
common control exercised by the Employer and Millicoma Boom Com-
pany over the boom-men and rafters and the fact that the Employer
and Millicoma Boom Company are to a large extent subject to a com-
mon supervision and operated by the same or closely related interests,
s Delmar and Allegany are respectively 15 and 25 miles from the plant at Empire.
4 The Employer ' s logging employees are presently represented by another union and are
not involved in this proceeding.
5 Both towns are about 4 miles from Empire.
"This view is supported by the fact that Millicoma Boom Company reimburses the
Employer for wages which the latter pays out to boom-men and rafters.
4 The record is inconclusive as to whether boom-men and rafters have been covered by
the recently expired agreement between the Employer and the Petitioner.
396 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
-we find that, for purposes of this proceeding, boom-men and rafters
-are employees of the Employer within the meaning of the Act.
There remains for consideration the. further contention of the
Employer that boom-men and rafters should be excluded from the
unit because of the Employer's bargaining history and the pattern
of collective bargaining in the industry. Although such factors
might, under'other circumstances and in conjunction with other fac-
tors, warrant a finding that boom-men and rafters should be excluded
from the production and maintenance unit and established as a separate
unit for purposes of collective bargaining, there is, in the present
instance, no labor organization presently representing or claiming to
represent boom-men and rafters in a unit apart from the production
and maintenance employees at the Empire plant ; accordingly, we
find no reason to exclude boom-men and rafters from the broader
unit sought by the Petitioner in this proceeding, and we shall, there-
fore, include them in the production and maintenance unit."
Railway carloaders
The Employer contends that employees who temporarily assist
in railway carloading operations are employees of independent con-
tractors who truck lumber from Empire to the railway loading points
in North Bend and Coos Bay, Oregon. We do not agree. The only
basis for such contention is that the wages earned by these employees
during the loading operations are charged to the account of inde-
pendent contractors. The record discloses that on occasion the
independent contractors request the Employer for employees to aid
in the loading operations. Such employees are assigned by the Em-
ployer from their regular jobs at the plant to the carloading jobs
and are recalled to the plant when a particular carloading job is
finished. These employees are paid by the Employer and are at all
times under its control. It appears, therefore, that these .employees
are merely loaned on a temporary basis to the independent contractors.
We find that such railway carloaders are employees of the Employer; 9
accordingly, we shall include them in the unit hereinafter found
appropriate.
We find that all production and maintenance employees of the
Employer at its lumber manufacturing plant at Empire, Oregon,
together with boom-men and rafters at the Employer's logging dumps
at Delmar and Allegany, Oregon, and at intermediate dumps, includ-
ing employees who temporarily assist in railway carloading operations,
but excluding the crane operator, office clerical employees, and super-
8 See Matter of California Almond Growers Exchange, 73 N. L. R. B. 1367, and Matter
of Scrapto Manufacturing Company, 65 N. L R. B. 222.
1 See Matter of Best Motor Lines, 80 N. L. R B. 314.
CAPE ARAGO LUMBER COMPANY 397
visors,10 constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of this Direction of
Election, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the election, and also excluding employees on strike who are not
entitled to reinstatement, to determine whether or not they desire to
be represented, for purposes of collective bargaining, by Lumber and
Sawmill Workers Local Union No. 2573, AFL.
"The ' record is inadequate to determine whether or not the retail yardman and the
planer "foreman" on the night shift are supervisors within the meaning of the Act. If
either exercises supervisory powers within the meaning of the Act, he is to be excluded
from the unit ; otherwise he is to be included.