C & A Lumber Co.

National Labor Relations Board - Board Decisions

Oct 11, 1950

91 N.L.R.B. 909 (N.L.R.B. 1950)

In the Matter of L. AZAROW AND A. MARGOLIS, A PARTNERSHIP, D/B/A
C & A LUMBER COMPANY, EMPLOYER and INTERNATIONAL WOOD-,
WORKERS OF AMERICA, LOCAL 13-428, CIO, PETITIONER
Case No. 00-RC-1051.-Decided October 11, 1.9,50
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Nathan R.
Berke, hearing officer. The hearing officer's rulings made at the hear-
ing 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 Houston, Reynolds, and
Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, a California partnership engaged in the produc-
tion of rough lumber, operates a sawmill at Forbestown, California.
The Employer purchases all the timber received at its sawmill for
processing from local independent contractors within the State. The
Employer originally purchased the sawmill in September 1949, and
during that month produced. lumber valued at $7,500, all of which was
sold to_ two customers within the State. Following a seasonal shut-
down, the Employer reopened the sawmill in the spring of 1950, and
from May 8, 1950, to August 1, 1950, the date of the hearing in this
proceeding, produced lumber valued at $31,000. The Employer sells
all its lumber to C. P. Henry Lumber Company, a dealer, who purchases
lumber from seven mills within the State, including that of the Em-
ployer, and ships 50 percent of its total purchases to customers outside
the State. The Employer expects that its current season for sawmill
operations will continue without interruption until November 1950.
Under these circumstances, we infer and find that the Employer, on a
yearly basis, furnishes lumber valued at approximately $60,000 to a
lumber concern engaged in interstate commerce which ships material
valued at over $25,000 per year outside the State.
We therefore find that the Employer is engaged in commerce within
the meaning of the Act, and in accord with our recently announced
policy in Hollow Tree Lumber Company,' that it will effectuate the
policies of the Act to assert jurisdiction in this case.
1 91 NLRB 685.
91 NLRB No . 140. 909
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent certain
employees 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 Employer and the Petitioner agree that all production and
maintenance employees at the Employer's Forbestown, California,
sawmill, excluding office and clerical employees and supervisors, con-
stitute an appropriate unit. The parties disagree with respect to the
unit placement of the truck driver, the night man, and the sawyer,
whom the Petitioner would include and the Employer would exclude.
The truck driver, who the Employer contends is an independent
contractor, delivers lumber from the Employer's sawmill to its cus-
tomers, making three to four trips daily. He is hired by the Employer
in the- same manner as are its regular employees and devotes his
entire time in the service of the Employer, using the latter's truck to
make deliveries.2 He is paid by the trip and receives an average of
$22.50 to $30 a day; other employees are hourly paid. On the basis
of the record, we find, contrary to the Employer's contention, that
the truck driver is not an independent contractor, and shall include
him in the unit .3
The night watchman, unarmed and not in uniform, works night
duty when the sawmill is not in operation. He spends 5 to 6 hours
of his 8-hour shift as a watchman and the remainder of the time as a
janitor. We find that the watchman is a guard within the meaning
of the Act, and shall exclude him from the Unit .4
The sawyer devotes most of his time to sawing and the remainder
to supervisory duties. He has the power effectively to recommend
the hiring and discharge of employees. We find that the sawyer is
a supervisor and shall exclude him as such from the unit.
We find that all production and maintenance employees at the
Employer's Forbestown, California, sawmill, including the truck
driver, but excluding office and clerical employees, the night man,.
and the sawyer and other supervisors, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication, in this
volume.]
2 Although C. P. Henry Lumber Company, the Employer ' s sole customer , may give the
truck driver unloading directions , the truck driver initiates deliveries only upon written
orders from one of the Employer 's partners.
a Caskey-`` Baking Company, 80 NUM 374.
4 Riverside Mills, 85 NLRB 969.