Irwin & Lyons

National Labor Relations Board - Board Decisions

Sep 3, 1942

43 N.L.R.B. 925 (N.L.R.B. 1942)

In the Matter of MILL B, INC., DIVISION OF IRWIN & LYONS, PARTNERS
DOING BUSINESS UNDER THE ASSUMED NAME OF IRWIN & LYONS and
INTERNATIONAL WOODWORKERS OF AMERICA LOCAL 116, AFFILIATED
WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-4123-Decided September 3,11) f2
Jurisdiction : lumber manufacturing industry.
Investigation and Certification of Representatives : existence of question :
refusal to accord petitioner recognition ; contract automatically renewed after
filing of petition held no bar ; contract entered into during pendency of pro-
ceeding held no bar ; election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees in Company's sawmill, yard, and planing mill, including the lath mill,
but excluding fuel truck drivers, supervisory, clerical, and retail yard
employees.
Mr. H. W. Irwin, of North Bend, Ore''g.; for the•Company.
Mr. A. F. Hartung, of`Portland, Oreg., for the I. W. A.
Mr: William E. Walsh and Mr. Willard W. Mclnturf, of Marsh-
field, Oreg., for Local 2573.
Mr. Louis A. Pontello, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon'petition. duly. filed by Iaiternational Woodworkei-s'of America,
Local 116, affiliated with the Congress of Industrial Organizations,
herein called the I. W. A., alleging that a question' affecting commerce
has arisen concerning the representation of employees of Mill B, Inc.,
division of Irwin '& Lyons, Partners, doing business under, the as-
sumed name of Irwin & Lyons, North Bend, Oregon, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Vern Countryman, Trial
Examiner. -The Company, the I. W. A., and Lumber. and Sativmill
Workers Union, Local 2573, A. F. of L., herein called Local 2573, ap-
peared, participated, and were afforded full opportunity-to-be heard,
to examine andicross-examine witnesses, and to introduce evidence
bearing on the -issues. The Trial Eaminer's rulings' made -at" the
hearing are free from prejudicial error and are hereby affirmed.' The
I. W. A. filed a brief which the Board has considered. ' .
43 N L R B.. No. 159.
925
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE QOMPAN1
Mill. B, Inc., is an Oregon corporation, presentl}-,operated as a divi-
sion of Irwin & Lyons, a copartnership doing' business under the
assumed name of Irwin & Lyons. Its plant and principal office is
located in North'Bend, Oregon,.-Where it is engaged in purchasing logs
and manufacturing them into finished lumber products. The logs are
obtained from lumber camps within the State' of Oregon. The Com-
pany produces approximately 100,000,000 board feet annua'lly,,and its
gross receipts from sales amount to over $1,500,000. Of this amount,
90 percent represents receipts from sales to customers situated, outside
,the State of Oregon. The Company admits that it is engaged in.
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Woodworkers of America, Local' 116, is a labor organ-
ization affiliated with the Congress of Industrial Organizations, ad-
mitting to membershlp employees of the Company.
Lumber and Sawmill Workers Union, Local 2573, is a labor organ-
ization affiliated with the American Federation of Labor, admitting
to membership employees of the Company: I ,
III. THE QUESTION CONCERNING, REPRESENTATION
On-September 10, 1939, following the certification, of Local 2573 by
the Board,, the Company and Local 2573 entered into a collective
bargaining agreement which was to be effective for 1' year from its
date, and' from year to year thereafter, unless terminated by either
party by sixty (60) days' written notice in, advance of its expiration
date. On August 22, 1941, the I. W. -A.' advised the Company by
letter that it•represented a majority of the Company's employees and
expressed a desire to enter into a collective bargaining agreement with
,the Company. The Company refused to enter' into negotiations with
the 1. W. A. because of the existence of its agreement with Local 2573.
The I. W. A. filed a petition for investigation and certification of
representatives on September 16, 1941. The Board dismissed the peti-
tion' of the 1. W. A. On April 9,.1942, on the ground'that the contract
'-See Matter of Hill B, Inc . and Lumber and Sawmill Workers Union, Local 2573, 13
N L. R. B. 613. ' ' '
MILL B, INC., DIVISION OF IRWIN & LYONS 927
with Local 2573 was a bar to an investigation and certification of
representatives, as the I. W. A. had presented its claim to majority
representation after the automatic renewal of the contract. The Board
stilted, however, that the dismissal would not prejudice the right of the
I. W. A. to file a new petition at a reasonable time before July 11,
1942.2 1 -
On May 18, 1942, the 1. W. A. filed its petition in this proceeding,
and on June 1, 1942, it advised the Company by letter that it repre-
sented a majority of the Company's employees. The Company again
refused to bargain or recognize the I. W. A. as it claimed that it had
an existing contract with a certified-representative.
Sometime after the Board had dismissed the petition of the I. W. A.,
the Company and Local 2573 entered into negotiations for a new con-
tract. They reached an agreement sometime after June 18, 1942, but
dated this contract as of that day. The contract was to be effective
from said date until September 10, 1942, and from year to year,there-
after, unless terminated by either party by sixty (60) clays' written
notice prior to Septeiber 10th of any year. This contract came about
before any action was taken by either party to cancel or an the
older contract, and before the expiration date, but after the filing of
the I. W. A.'s petition and the assertion of the I. W. A.'s claim of
majority.
Inasmuch as the original contract provides for termination by either
party upon 60 days' written notice in advance of'its expiration day,
and as the I. W. A. filed its petition and made its claim to represent
a majority of the employees of the Company more than 60 days prior
to its annual renewal date, and inasmuch as the contract of June 18,
1942, was entered into during the pendency of this proceeding, we find
that these contracts are no bar to a present determination of repre-
sentatives.
A statement of a Field Examiner of the Board introduced in evi-
dence discloses that the I. W. A. represents a substantial number of
employees in the unit hereinafter found to be appropriate.' As noted
above, Local 2573 has a contract with the Company.
We find that a question affecting commerce has arisen concerning
the-representation of-employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
2 See Matte of Hill B, Inc and International l oodworl ers of Anne' ice, Local 116, 40 N L.
L' B 3-40 -
"The Field Examiner reported that the I. W A had presented pi a is facie evidence
that 91 of the signatures on cards presented to him were the names of persons who
appeared on the Company's pay roll of June 15, 1942, containing 218 names within the
alleged unit At the hearing, the I W. A presented additional pitrna facie evidence that
1S signatures on the cards were the names of persons who appeared on the Company's
pav ioll as of August 6, 1942 1
928' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The I. W. A. contends that all production and maintenance em-
ployees in the sawmill, yard, planing mill and lath mill,'incl cling fuel
truck drivers, but excluding supervisory, clerical employees, and em- -
ployees in the retail yard, constitute an'.appropriate unit. Local 2573
disagrees only as to the inclusion of lath mill employees and fuel
truck drivers. The Company contends that lath mill employees should
not be included within the appropriate unit as it is not operating the
lath mill at the present tune.
At a previous hearing,4 all parties herein agreed that the unit
appropriate for purposes of collective bargaining consisted of all pro-
duction and maintenance employees, excluding supervisory and clerical
employees. Local 2573 was certified as the bargaining agent for the
unit. The Company and-Local 2573 then entered into a contract which
covered all employees of the Company at its sawmill and manufactur-
;ng,deptirtments, at North Bend, Oregon, excluding supervisory, cleri-
cal, and office employees, and temporary construction 'labor. Inas-
much as lath mill employees were not excluded from the unit hereto-
fore stipulated, found to be appropriate, and embodied in the existing
contract, we shall include them.
The Company has two fuel truck drivers in its employ It is the job
of the truck drivers to haul waste, which has been sold by the Com-
pany, to the power plant of another Company. They also haul fuel.
A partner of the Company testified that the truck drivers are only
used when the Company has fuel or waste sales. He further testified
that their work is not necessary to the operation of the null, but is only,
incidental to it, and that the fuel business is only a "side business" of
the Company. The Company keeps,separate books for-its fuel,sales.
A representative of Local 2573 and the copartner of the Company
stated that the contract between the Company and Local 2573 did•not
cover the fuel truck drivers. The fuel truck drivers are not covered
by any contract with the Company.
Under these'circumstances and in view of the fact that the fuel truck
drivers are not'covered by contract, we shallvexclude the fuel truck
drivers'from the unit.
Local 2573 and the I. W. A., although desiring the exclusion of super-
visory employees 5 from the appropriate unit, at the hearing designated'
certain employees who are listed by the Company as supervisory
employees, they consider should be included within the unit. They
are, as described in the record, Mack Anderson and H. J. Curl, whom
the I. N. A. contends should be-included within the appropriate unit,
4 See Matter of Mill B, Inc. and Lumber and Sawwn.till TVoi hers Union, Local 2513,
12 N L R B 1317.
5 All pan ties hereto agreed that Fred Sandberg, Jr, listed by the Company as a pro-
duction employee, should be excluded from the unit as a super%isory employee -
MILL B, INC., DIVISION OF IRWIN. & LYONS 929
and A. L. Commons and Jim Bird, whom Local 2573 desires to include
within the unit.
Mack Anderson: Anderson is listed on the Company's pay roll as a
planing mill foreman. He is in complete charge of the planing milt
department during the second shi ft, and supervises the work of 15 men
in that department. He has the power to hire and- fire employees.
We find that Mack Anderson is a supervisory employee, and we shall
exclude him from the unit.
H. J. Curl: Curl is listed on the Company's pay roll as a boom fore-
man. He supervises the work of boom men, although he must work
with pike poles with'the other boom men. The copartner testified that
Curl had the power to hire and discharge employees. Curl is a super-
visory employee, and we shall, therefore, exclude him, from the unit.
A. L. Conu ons: Commons is in charge of the sorting chain. He
has,under his supervision some 15 to 17 employees. Although the
record did not specifically, mention that he had the power to hire and
discharge, he does have the power to make recommendations, and as the
copartner testified, "he has the power to release anybody he doesn't
like." We are of the opinion that Commons is a supervisory employee,
and he will, therefore, be excluded from the unit.
Jima Bird: This employee is in charge of all millwright and repair
work. He has the power to hire and discharge the men over whom he
supervises. Bird is a supervisory employee, and we will exclude him
from the unit.
We find that all production and maintenance employees in the saw-
mill, yard, and planing mill, including the lath mill, but excluding fuel
truck drivers, supervisory, clerical, and retail yard employees, Mack
Anderson, H. J. Curl, A. L. Commons, and Jim Bird, constitute a, unit
appropriate for, the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERDIINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virutue 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
481039-42-vol. 43-59
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board Rules and Regulations-Series 2, as amendod, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Mill B, Inc., divi-
sion of Irwin & Lyons, Partners, doing business under the assumed
name of Irwin, & Lyons, North Bend, Oregon, 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, under the direction' and
supervision of the Regional Director for the,Nineteenth Region, act-
ing 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 in the unit found -appropriate in Section IV,
above, who were employed during the payroll period immediately
pi.eceding the date of this Direction of Election, ihcluding employees
who did not work during such pay-roll period because they were ill
of on'''vaication or in the active military service or, training of the
Un'ited`' States, or temporarily laid off, but excluding employees who
li ve since quit or been discharged for cause, to determine whether
they desire to be represented by International Woodworkers of Amer-
ica, Local 116, affiliated with the Congress of Industrial Organiza-
tions, or Lumber and Sawmill Workers Union, Local 2573, affiliated
with the American Federation of Labor, for the purposes of collective
bargaining, or by neither.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.
Li.)113'
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