Plywood and Veneer Wkrs. Local 2789

National Labor Relations Board - Board DecisionsApr 2, 1976

223 N.L.R.B. 588 (N.L.R.B. 1976)

RM DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plywood and Veneer Workers Local Union No. 2789, affiliated with Redwood District Council of Lumber and Sawmill Workers and Simpson Timber Compa- ny and International Woodworkers of America, Lo- cal 3-98, AFL-CIO, CLC. Case 20-CD-477 April 2, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, upon a charge filed by Simpson Timber Company, the Em- ployer, alleging that Plywood and Veneer Workers Local Union No. 2789 , affiliated with Redwood Dis- trict Council of Lumber and Sawmill Workers (henceforth called Local 2789), violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to employees it represents rather than to employees represented by the International Woodworkers of America , Local 3- 98, AFL-CIO, CLC (henceforth called IWA). A hearing was held before Hearing Officer Joseph R. Wirts on October 28 and 29 , 1975. All parties ap- peared at the hearing and were given full opportunity to be heard , to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. Briefs have been filed by the Employer and Local 2789. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings 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 makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, a State of Washington corporation, is engaged in timbering and wood processing opera- tions at various locations including Mad River, Cali- fornia. During the calendar year 1974, it had reve- nues in excess of $500,000, purchased goods and services from outside the State of California valued in excess of $50,000, and sold goods outside the State of California which originated from within the State valued in excess of $50,000. We find, therefore, as stipulated by the parties , that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Local 2789 and IWA are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute concerns the operation of the front-end log loader at the Employer's Mad River plywood plant, Arcata, California. With but one exception since 1971, the Employer has used a front-end log loader (herein also called log loader) to sort and load on trucks for delivery else- where logs rejected for use in its plywood plant at Mad River. Log loaders are normally kept at the Employer's Korbel, California, log distribution cen- ter, where they are in daily use. On the infrequent occasions when a log loader has been needed at Mad River, the Employer has sent one from Korbel to the latter site along with an operator to run it. The Kor- bel location is some 7 miles from the Mad River plant. The employees at the log distribution center are represented by IWA, which supports the Employer's assignment of an employee it represents to operate the log loader on those occasions. The em- ployees at the Mad River plywood plant are repre- sented by Local 2789 which claims the disputed work for the employees it represents. The Employer pre- fers that the log loader be manned as in the past by one of its regular log distribution center operators represented by IWA. B. The Background Facts As noted, the Employer operates a plywood mill at Mad River. Logs, delivered to the mill by truck, are unloaded by crane and placed ultimately, if not im- mediately, in a log pond. There they are checked for quality by a scaler. Those logs that meet the stan- dards for plywood production are dry decked at the mill and then cut into bolts for manufacture. Those rejected are rafted to the far end of the pond where they are removed by crane and dry decked in a rath- er haphazard, "jackstraw" manner. There the reject- ed logs are accumulated until such time as their quantity and/or economic factors justify their sale to other sawmills in the area. Such sales have in the past 223 NLRB No. 74 PLYWOOD AND VENEER WKRS. LOCAL 2789 589 occurred two or three times a year. For delivery the logs are loaded onto trucks by the log loader manned by a single operator. Also working in the dry. deck area is a scaler who reevaluates the rejected logs to determine if they should be sent back to the plywood mill for processing and who also assists the operator of the log loader in sorting the rejected logs for ship- ment. The log loader was used at Mad River on two oc- casions totaling 8 days in 1971; on one occasion of a single day in 1972; on one 5-day occasion in 1973; on four occasions in 1974 totaling 16 days; and on at least four occasions in 1975 totaling 20 days: The trucks delivering logs to Mad River and also those used in hauling them away are operated by either independent contractors or the Employer's employees represented by IWA. The crane operator who unloads the trucks and removes the logs from the pond is represented by Local 2789, as are all the employees who handle the logs in the pond with the exception, however, of a scaler who is represented by IWA. The log loader operator, as indicated, and the scaler who works along with him in the dry deck area are also represented by IWA. . In May 1974 and February 1975, Local 2789 filed with the Employer grievances protesting the opera- tion of the log loader at the Mad River location by employees it did not represent. No agreement was reached on these grievances. On or about September 20, 1975, Local 2789 struck and picketed because, as it concedes, the Employer was again using the IWA- operated log loader to remove rejected logs at Mad River. The Employer filed its charge under Section 8(b)(4)(D) of the Act on September 22, 1975. C. The Parties ' Positions Local 2789 contends that the situation here does not involve a real jurisdiction dispute because the claimed work is covered by its contract with the Em- ployer. Consequently, it argues, the dispute here in- volves nothing more than a transfer of unit work to employees outside the unit. In support of this posi- tion, it argues that there is no substantial past prac- tice warranting a contrary conclusion. Additionally, it urges that no rational reason appears for assigning the disputed work to employees represented by IWA as such work is part of a continuous process which in all other respects is handled by employees it repre- sents. As for the Employer, it contends that use of the log loader with its IWA operator is supported by past practices. It further claims that safety, efficiency, and economy support this assignment of the disputed work. For its part, IWA claims the work of operating the log loader for employees it represents, resting this claim at least in part on its contract with the Employ- er covering the log distribution center. D. Applicability of the Statute The facts above show that the Employer has as- signed the work in dispute to employees represented by IWA, and that Local 2789 claims such work, and that in furtherance thereof it struck and picketed the Employer's operations to force reassignment of such work to employees it represents. after its efforts to resolve the dispute by other means failed. In view of these considerations we find that reasonable cause exists to believe that Local 2789 has violated Section 8(b)(4)(D) of the Act.' E. Resolution of the Dispute 1. The contracts and the Employer's practice Local 2789, as noted, claims that its contract cov- ers the work in dispute. Its agreement does provide that the Employer recognize it as the bargaining rep- resentative of all production, maintenance, and transportation employees at the Mad River plywood plant, and the facts show that the crane operator em- ployed there and most of the employees handling logs in the pond actually are covered by this contract and are represented by Local 2789. Nevertheless, there are ambiguities to the contract's coverage. Thus, the scaler who evaluates the logs while in the pond and the scaler who works on the rejected log dry deck I are both represented by IWA, and Local 2789, insofar as the record indicates, ,has never claimed that they are covered by its contract. Fur- thermore, the Employer has since at least 1971 3 had the disputed work done by`a log loader with an em- ployee represented by IWA assigned to operate it. No formal objection was raised by Local 2789 to such assignment of the work until May 1974.4 Also 1 There is no evidence that any effective method exists for the voluntary adjustment of the dispute binding on all parties. These two scalers may be the same person, for the record is not clear on the point . But the matter is of no decisional significance. 9 The Employer produced testimony, disputed by Local 2789, that IWA- operated front-end log loaders had performed the work since 1967. In furtherance of its position that it never acquiesced in any Employer practice of using IWA operators to work on the rejected log dry deck, Local 2789 introduced testimony of its business representative that in 1971 he verbally protested to the Employer's plant manager , Hanson , about the IWA operator of the log loader doing what he considered to be unit work. Hanson in effect denied that any such protest had been made. In any event, it is clear that Local 2789 took no formal action on the matter at that time or in any other manner pursued the matter further, assuming it had, as it claims, lodged any protest at all. With respect to the years 1972 and 1973, Local 2789 claims that it made no complaint because it was unaware that an IWA-operated log loader was used during those years at the Mad River Continued 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 2789's contract makes no specific reference to a log loader or its operator. In this connection we note that in 1973-that is, at least 2 years after the Employer had started using the IWA-operated load- er at Mad River-Local 2789 entered into a new con- tract with the Employer, which contract made no ex- press provision for inclusion of the disputed work despite the Local's alleged 1971 protest to the assign- ing of that work to an IWA-represented operator. Accordingly, it is clear that Local 2789's contract, despite its broad recognition clause, has not been ap- plied to all employees working about the Mad River location and has not been applied to the work in dispute. Furthermore, the recognition language has been reaffirmed in the face of such exclusionary practice without any change being made in its provi- sions . In view of the foregoing considerations, we find that Local 2789's contract does not cover the work in dispute and thus is not dispositive of the issues before us. Similarly, we find inconclusive IWA's contract covering the Employer's log distribution center. To be sure, that agreement does specifically apply to front-end log loader operators but its recognition clause is limited to the Employer's Korbel opera- tions. Consequently, there is no basis for holding that contract applicable to log loader operations at Mad River. In sum then, the two unions' contracts neither sup- port nor undermine any particular award of the work. The Employer's practice, however, though not conclusive, does support assignment to employees represented by IWA. 2. Skill, efficiency, safety, and economy The record shows that a front-end log loader is an expensive piece of machinery, costing from $70,000 to $150,000. It requires several months of training and practice to learn how to operate it efficiently and safely, and frequent use thereafter to enable an oper- ator to maintain his skill in operating it. At the Employer's log distribution center these log loaders are used on a continuing basis. Operators are, in con- sequence, trained there and also have the opportuni- ty to maintain their proficiency through repeated use. As pointed out above, there are only about 2 to 3 weeks' work yearly for a log loader at the Mad River location, and, thus, no apparent economic or other location . However, the evidence shows that the sorting and loading of re- jected logs is no covert operation but rather one which by its very nature must take place in full view of persons in the plywood plant. Consequently. the Local's implication that it would have acted in 1972 and 1973 if it had known that a log loader was being used, is nothing more than a self-serving declaration and worthy of no weight in this proceeding. justification for basing such an expensive piece of machinery there. In these circumstances, no ready means exist for training log loader operators at Mad River and no reason has been shown for maintaining such an operator there on a full-time basis. Also, if the regular log distribution center operator did not follow his machine to Mad River, he would probably have to be laid off until its return, while its arrival at Mad River would require transferring an employee from his usual work to the temporary job of operat- ing the machine, assuming, of course, it would be possible to keep there an employee, not only trained, but continually proficient, in the operation of a log loader in view of its limited use at that location. The foregoing circumstances manifestly demon- strate that the Employer's assigning the work of op- erating the front-end log loader at the Mad River rejected log dry deck to full-time operators of log loaders represented by IWA is the most feasible way for the Employer to assure that the machine is man- ned on its short stays at that location by a fully trained, skillful, competent operator, which, of course, also assures-insofar as anything can be made certain-that the machine will be operated in a safe and efficient manner. Assigning the work to ply- wood plant employees, on the other hand, would necessarily be not only a less efficient expedient, but also less economical as it would require special train- ing for such employees to enable them to handle a log loader for only a brief period at Mad River 5 and, further, the layoff during that time of a fully trained, proficient regular operator employed at the Korbel operation. Consequently it appears that considerations of skill, efficiency, safety, and economy support the Employer's assignment of the disputed work to em- ployees represented by IWA. Conclusions Having considered all the relevant factors, we con- clude that those factors including the Employer's practice, continuing skills, and considerations of effi- ciency, safety, and economy favor awarding the work in dispute to employees represented by IWA. Accordingly, on the basis of the entire record, we shall determine the existing jurisdictional controver- sy by awarding to the employees represented by IWA, rather than to employees represented by Local 2789, the operation of the front-end log loader at the Employer's Mad River location. In making this de- termination, we are assigning the work to the em- 5 Local 2789 claims that certain of the employees it represents could oper- ate a log loader. However, it produced no evidence that any of the Mad River employees had any training in handling such a machine or had actual- ly operated one in recent years. PLYWOOD AND VENEER WKRS . LOCAL 2789 ployees who are represented by IWA, and not to that Union or its members . Our present determination is limited to the particular dispute which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Simpson Timber Company repre- sented by International Woodworkers of America, Local 3-98, AFL-CIO, CLC, at the Company's log distribution center , Korbel , California , are entitled to perform the work of operating the front -end log loader at the Company's Mad River , Arcata , Califor- nia, location. 591 2. Plywood and Veneer Workers Local Union No. 2789 , affiliated with Redwood District Council of Lumber and Sawmill Workers , is not entitled by, means proscribed by Section 8(b)(4)(D) of the Act to force or require Simpson Timber Company to assign such disputed work to the Mad River plywood plant employees whom it represents. 3. Within 10 days from the date of this - Decision and Determination of Dispute , Plywood and Veneer Workers Local Union No . 2789, affiliated with Red- wood District Council of Lumber and Sawmill Workers , shall notify the Regional Director for Re- gion 20 , in writing , whether or not it will refrain from forcing or requiring Simpson Timber Company, by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members rather than to employ- ees represented by International Woodworkers of America , Local 3-98, AFL-CIO; CLC.