Markham and Callow, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1939

13 N.L.R.B. 963 (N.L.R.B. 1939)

In the Matter of MARKHAM AND CALLOW, INC. and LUMBER & SAW-
MILL WORKERS' UNION, LooAL No. 4, AFFIItATED WITH INTERNA-
TIONAL WOODWORKERS OF AMERIOA
Case No. R-1376.-Decided July 04, 1939
Logging Industry-Investigation of Representatives : controversy concerning
representation : company refused to recognize either of two competing
unions as exclusive representatives of employees-Unit Appropriate for Col-
lective Bargaining : all employees exclusive of supervisory and clerical employees
and civil engineers ; agreement as to-Employee Status: workers employed by
independent contractors held not employees of Company-Election Ordered
Mr. Thomas P. Graham, Jr., for the Board.
Mr. Philip Chipman, of Portland, Oreg., for the Company.
Mr. Ben Anderson, of Portland, Oreg., for Local No. 4.
Mr. L. Presley Gill; of Seattle, Wash., for Local No. 2578.
Mr. Ralph Winkler, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 7, 1939, Lumber & Sawmill Workers' Union, Local
No. 4, affiliated with International Woodworkers of America,' herein
called Local No. 4, filed with the Regional Director for the Nineteenth
Region (Seattle, Washington) a petition alleging that a question af-
fecting commerce had arisen concerning the representation of em-
ployees of Markham and Callow, Inc., Nehalem, 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 April 4, 1939,
the National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, ordered an investigation and authorized the Regional
'In the petition Local No. 4 was designated International Woodworkers of America,
Local Union No. 4. The Trial Examiner granted a motion amending the petition to
conform to the proper title as herein stated.
13 N. L. R. B., No. 101.
963
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On April 24, 1939, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon Local
No. 4, and upon Lumber & Sawmill Workers Union, Local No. 2578,
herein called Local No. 2578, a labor organization claiming to rep-
resent employees directly affected by the investigation. Pursuant to
the notice a hearing was held on May 8, 1939, at Nehalem, Oregon,
and at Wheeler, Oregon, before Thomas Kennedy, the Trial Exam-
iner duly designated by the Board. The Board, the Company, Local
No. 4, and Local No. 2578 were represented by counsel; 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. The Trial Examiner denied Local
No. 4's motion amending the petition to include the employees of
three independent contractors, hereinafter discussed. 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 the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed. Briefs were filed by the Company, Local No. 4, and Local
No. 2578 and have been considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Markham and Callow, Inc. is a Washington corporation engaged
in logging operations in the State of Oregon. The Company oper-
ates as a single unit two logging camps about 14 miles apart, known
as Camps Nos. 1 and 2. Camp No. 1 is located in Clatsop County,
Oregon; Camp No. 2 is in Tillamook County, Oregon. In the course
of the logging operations the logs are brought to the landings, and
are then hauled by truck to tidewater. The logs from Camp No. 1
are hauled to Warrentown, Oregon, where they are dumped into the
Skipanon River and are rafted for transport to the Columbia River.
The logs from Camp No. 2 are dumped into the North Fork of the
Nehalem River, where they are either rafted for transport into
Nehalem Bay or are towed to the Company's loading platform and
loaded on freight cars. The value of the logs sold by the Company
in 1938 amounted to approximately $450,000, at least 10 per cent of
which were sold outside the State of Oregon. In the same, year the
Company purchased machinery, supplies, and other materials valued
at approximately $54,000; approximately 10 per cent of these mate-
rials were purchased outside the State of Oregon.
MARKHAM AND CALLOW, INCORPORATED
II. THE ORGANIZATIONS INVOLVED
965
Lumber & Sawmill Workers' Union, Local No. 4, is affiliated with
International Woodworkers of America, which is in turn affiliated
with the Congress of Industrial Organizations. It admits to mem-
bership all employees of the Company, excluding supervisory and
clerical employees.
Lumber & Sawmill Workers' Union, Local No. 2578, is chartered
by the United Brotherhood of Carpenters & Joiners of America,
which is affiliated with the American Federation of Labor. It ad-
mits to membership all employees of the Company, excluding super-
visory and clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION„
On May 20, 1937, the Columbia Basin Loggers Association, the
Company's bargaining representative, entered into an agreement 2
with various unions, including Local No. 2578, covering wages, hours,
and other working conditions of employees of various firms, includ-
ing the Company, affiliated with the Association. This agreement
provided that it should remain in effect until March 1, 1938, and
thereafter for an additional period of 12 months unless either party
notified the other of a desire to change the terms 60 days prior to
March 1, 1938, and presented such changes to the other party 30
days prior to such expiration date. In January 1939, Local No. 4
notified the Company that it represented a majority of the Com-
pany's employees and requested bargaining recognition. The Com-
pany advised Local No. 4 that it would refer the matter to Columbia
Basin Loggers Association, since Local No. 2578 had likewise claimed
majority representation and had submitted evidence to substantiate
such claims. On February 20, 1939, the Company and Local No.
2578 agreed to extend the afore-mentioned contract period "until
such time as the National Labor Relations Board makes a decision as
to the proper bargaining agency at the Markham and Callow
camp." 3
We find that a question has arisen concerning the 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,
2 This ' same contract was Involved in Matter of Deep River Timber Company and
International Woodworkers of America, Local No. 137, 10 N . L. R B. 904.
3 See Matter of Jones Lumber Company and Lumber and Sawmill Workers Union, Local
No. 2877, et al, 12 N. L R. B. 209.
187930-39-vol 13-62
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Local No. 4 and Local No. 2578 both agreed at the hearing that the
appropriate unit should include all of the Company's employees, ex-
cluding supervisory and clerical employees and a civil engineer, the
latter because of his status as a professional man. They also agreed
that no one listed on the Company's May 1, 1939, pay roll, which
was introduced into evidence, should be excluded from the bargaining
unit as a supervisory employee.
Local No. 4 urges that the trucking and booming employees of
David Levison, Callow and Day, and Nygard Brothers, all inde-
pendent contractors, should be included within the appropriate unit.
The Company and Local No. 2578 object to the inclusion of these
employees. Levison, who is under contract with the Company to haul
the logs from Camp No. 1, employs approximately 30 men directly or
indirectly by way of subcontracting, and uses approximately 30 trucks
in the operations. Callow and Day, a partnership which is under
contract to haul the logs from Camp No. 2, operates five trucks and
engages the services of three drivers and one helper. The written
agreement between the Company and Levison and the oral agreement,
in the case of Callow and Day, provide that the respective contractors
will at their own expense "furnish all labor, trucks, trailers, machin-
ery, tools and equipment, and provide for the social security, old-age
pension and workmens compensation either under the industrial acci-
dent commission of the State of Oregon or by employers' indemnity
for all employees and also furnish all materials and supplies." It
appears also that the contractors exercise complete supervision over
the hiring and discharge of their respective employees 4 Similarly,
in the case of Nygard Brothers, who do all the booming work for the
Company, the latter exercises no control over the contractor's em-
ployees. The trucking contractors are responsible for their own oper-
ations; Nygard Brothers, as well, are left to their own devices as to
the method of booming and the towing of logs.
Elmer Scovell, a member of Local No. 2578's committee which
negotiated the contract with the Association and presently a member
of Local No. 4, testified that the contract was intended to include all
+ At the hearing the Company was not able to furnish a list of the contractors'
employees.
MARKHAM AND CALLOW, INCORPORATED 967
the truck drivers 6 and boom men working for the Company, and
according to Don Helmick, an executive board member of Interna-
tional Woodworkers of America, it was definitely agreed during the
negotiations that subcontractors would be subject to and governed
by the contract. On the other hand, the Company's president testi-
fied that no union has ever attempted to negotiate with the Company
on behalf of the contractors' employees. On one occasion Local No.
2578 discussed a grievance arising out of the discharge of a driver
directly with Callow and Day, and on another occasion Local No. 4
took up the problem of a wage increase directly with the contractor.
Under all these circumstances we are of the opinion that the em-
ployees of Callow and Day, Levison, and Nygard Brothers are not in
the employ of the Company. They will be excluded from the unit
and will not be included within the meaning of the term "employees
of the Company" as hereinafter used .o
We find that all the employees of the Company, excluding super-
visory and clerical employees and the civil engineer, 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 other-
wise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
A current pay roll of the Company, listing the names of 127 em-
ployees within the appropriate unit, was introduced in evidence.
Seventy-three of these employees have signed petitions designating
Local No. 4 as their bargaining representative. Eighty-four em-
ployees have indicated their desire that Local No. 2578 be their repre-
sentative, either by membership therein or by signing petitions
designating Local No. 2578 as their bargaining representative. There
are 34 duplications among the foregoing designations.
We find that the question concerning representation can best be
resolved by means of an election by secret ballot. We shall direct
that employees eligible to vote in the election shall be those in the
appropriate unit who were on the Company's pay roll immediately
preceding the date of this Direction, including employees who did
not work during such pay-roll period because they were ill or on
vacation, and employees who were then or have since been tempo-
5 The contract defines truck drivers as including "all truck operators, whether trucks
are operated under contract with the employer or whether or not the employer owns the
trucks." It also provides that "logging camp departments" within the meaning of the
contract include boom crews.
6 See Matter of Red River Lumber Company and Lumber and Sawmill Workers Union
Local No 53 of International Woodworkers of America, 5 N. L. R. B. 663; Matter of Union
Lumber Company and Lumber & Sawmill Workers Union Local No. 2826, 7 N. L. R. B.
1094; Matter of Daniel Creek Logging Co. and Lumber & Sawmill Workers' Union Local
No. 2573, 13 N. L. R. B. 184.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rarily laid off, but excluding those who have since quit or have 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 Markham and Callow, Inc., Nehalem, Ore-
gon, 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 supervisory and
clerical employees and the civil engineer, constitute a unit appro-
priate 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, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2, it
is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with Markham and Callow, Inc., Nehalem, Oregon,
an election by secret ballot shall be conducted within twenty (20)
days from the date of this Direction under the direction and super-
vision 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 Markham and Callow, Inc., whose names
appear on the Company's pay roll immediately preceding the date
of this Direction , including employees who did not work during such
pay-roll period because they were ill or on vacation, and employees
who were then or have since been temporarily laid off, but exclud-
ing supervisory and clerical employees, the civil engineer, and em-
ployees who have since quit or have been discharged for cause, to
determine whether they desire to be represented for the purposes of
collective bargaining by Lumber & Sawmill Workers' Union, Local
No. 4, affiliated with International Woodworkers of America, affili-
ated with the Congress of Industrial Organizations, or by Lumber
& Sawmill Workers Union, Local No. 2578, chartered by United
Brotherhood of Carpenters & Joiners of America, affiliated with the
American Federation of Labor , or by neither.