Irwin & LyonsDownload PDFNational Labor Relations Board - Board DecisionsAug 16, 194351 N.L.R.B. 1370 (N.L.R.B. 1943) Copy Citation In the Matter of IRWIN & LYONS AND RODNEY C. LASKY AND HERBERT H. LASKY , CONTRACTORS and INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 7-140 Case No. R-5696.-Decided August 16, 1943 Mr. William E. Walsh, of Marshfield, Oreg., for the Company. Mr. A. F. Hartung, of Portland, Oreg., for the Union. Mr. Robert E. Tillman, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE Upon petition duly filed by International Woodworkers of Amer- ica, Local 7-140, herein called the Union, alleging that a question af- fecting commerce had arisen concerning the representation of em- ployees of Irwin & Lyons, North Bend, Oregon, herein called the Company,' and Rodney C. Lasky and Herbert H. Lasky, contractors, the National Labor Relations Board provided for an appropriate hearing upon due notice before John E. Hedrick, Trial Examiner. Said hearing was held at Marshfield, Oregon, on July 15, 1943. The Company and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues.2 The rulings of the Trial Examiner made at the hearing are, free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board.. , Upon the entire record in the case, the Board makes the following: ' In the formal papers in this proceeding the Company was designated Irwin & Lyone, Inc. It appeared at the hearing that the correct name of the Company is Irwin & Lyons. 2 Herbert H. Lasky appeared and testified at the hearing. 51 N. L. R. B., No. 218. 1370 IRWIN & LYONS FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 1371 Irwin & Lyons is a partnership having its principal office and place of business in North Bend, Oregon. The Company is engaged in logging and lumber mill operations, maintaining three or four logging camps and a lumber mill in the State of Oregon. Only its logging camp located at Clear Lake is involved in this proceeding. The logs cut by the Company are converted into lumber, of which 90 percent is shipped outside the State of Oregon. Herbert H. Lasky, an independent contractor, hauls logs for the Company. Rodney C. Lasky, also an independent contractor, for- merly contracted his services to the Company, but at the time of the hearing his services had been discontinued. II. THE ORGANIZATION INVOLVED International Woodworkers of America, Local 7-140, is a labor or- ganization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 16, 1943, the Union asked the Company to recognize it as the collective bargaining representative of the Clear Lake logging camp employees. The Company replied in substance that the 1Jnion would not be recognized unless it won an election conducted among the Clear Lake employees to determine the collective bargaining representative. A statement of a Field Examiner of the Board, introduced in evi- dence at the hearing, indicates that the Union represents a substantial number of employees in the unit it contends to be appropriate.' 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. IV. THE APPROPRIATE UNIT The Union petitions for a unit of all production and maintenance employees of the Company and of the contractors engaged in logging The Field Examiner stated that the Union had submitted to him 53 appli€ation-for- membership cards, all bearing apparently genuine original signatures , and a membership list containing 26 additional names. [The membership list had been properly authenti- cated at the time of the hearing.] Of the total 79 names, the Field Examiner stated that 38 were those of persons whose names appeared on the Company 's pay roll of May 1, 1943, which listed 108 Clear Lake employees. 1372 DECISIONS OF NAPIO'NAL LABOR RELATIONS BOARD operations at Clear Lake, Oregon , excluding clerical and supervisory employees . The Company raises no objection to a unit limited to its Clear Lake logging camp , but opposes the inclusion, in such a unit of the employees of alleged independent contractors and certain of its own employees whose work is not confined to the Clear Lake camp. The Union stated that it did not intend to include in its requested unit boom or raft men who work on Coos Bay, 16 or 17 miles from Clear Lake . The record indicates that only the employees of the Company at its lumber mill are presently engaged in collective bar- gaining relations with the Company . It thus appears that the sole unit issue involved in this proceeding is the scope of a unit confined to the Clear Lake logging camp. Supervisors : Heading all the Company 's logging camps is the superintendent of logging operations . Below him at Clear Lake is a foreman in charge of falling and cutting , who is engaged only in supervisory duties, and has power to hire and discharge . The Com- pany also employs a foreman in charge of road construction, who has authority to hire and discharge. The parties are in agreement that the above -designated employees are to be excluded from the unit as supervisors. In addition to these supervisors , the Company employs four hook tenders whom the Union would include in the unit. Each of the hook tenders is in charge of a machine , and gives orders to an undesignated number of employees . Each has power to hire , discharge , and disci- pline and works with the ordinary employees only part of the time. We find that hook tenders are supervisors , and we shall exclude them from the appropriate unit. Multiple-camp employees : The Company has several groups of em- ployees whose duties are not restricted to the Clear Lake logging camp but extend to all of the Company 's logging camps : (1) maintenance crew: Employees on the maintenance crew are actually on the lumber mill pay roll. They perform repair and mainte- nance work both at the mill and at the several camps. On the average, a_ group of four maintenance employees reports to the Clear Lake camp to work 2 days out of the week . The Company desires to ex- clude the maintenance men from the appropriate unit and the Union does not object . Because most of their work is not confined to the Clear Lake camp, we shall exclude the maintenance crew from the appropriate unit. (2) road-building crew : The employees on this crew are inter- changed between the three camps, where they perform their functions of building and repairing roads. We shall exclude them from the appropriate unit for the same reason that we exclude the maintenance crew; IRWIN & LYONS 1373 (3) truck drivers and cat drivers: These employees of the Com- pany are shuttled back and forth among the several logging camps as the supply of logs at any one camp demands. We shall exclude` them from the appropriate unit for the same reason that we exclude the maintenance crew. Temporary transferees: At the time of the hearing, the Company was not operating one of its logging camps and had temporarily transferred the employees of that camp to the other camps, including Clear Lake. Since the temporary transferees are,at Clear Lake only pending resumption of operations at another camp, they have no direct interest in choosing a collective bargaining representative at Clear Lake. We shall, therefore, exclude temporary transferees at Clear Lake from the appropriate unit. Independent contractors' employees: At the time of the hearing, three or four independent contractors were furnishing trucks and drivers to the Company at its Clear Lake camp. The record only discloses the operations of one Herbert H. Lasky in detail. In the absence of contrary evidence, we must assume that Lasky's operations are typical of those of the other independent contractors. Lasky sup- plies the Company with from one to three logging trucks and drivers. He owns the trucks and hires and discharges the drivers. Lasky has only an oral contract with the Company. This contract does not require him to furnish a specified number of trucks or drivers to the Company at stated times; instead, he uses his trucks in connection with a logging operation of his own, and sends the trucks to the Company when he is not using them. His drivers work for the Company ap- proximately one-half their total working hours. The Company pays Lasky by the footage of logs hauled by his drivers. Lasky in turn fixes the wages of his drivers, keeps their social security records, and pays their wages. The Company does no bookkeeping for Lasky. These facts indicate that Lasky is an independent contractor, and that his employees are not in the employ of the Company. We shall there- fore, exclude them from the appropriate unit by not including them within the meaning of the term "employees of the Company" as here- inafter used,' and we shall dismiss the petition insofar as it relates to employees of Herbert H. and Rodney C. Lasky. We find that all production and maintenance employees of the Company at its Clear Lake logging camp, excluding raft men, the maintenance crew, the road-building crew, truck drivers, cat drivers, temporary transferees, clerical employees, and hook tenders and all other supervisory employees having authority. to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit ap- 4 See Matter of Markham and Callow, Inc., 13 N L. R. B. 963. 1374 DECISI0NS OF NATIONTiAL LABOR RELA'TIONS BOARD propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATI\,ES We shall direct that the question concerning representation which has arisen be resolved by means of an election by secret ballot among the employees of the Company in the appropriate unit who were em- ployed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and addi- tions set forth therein. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Irwin & Lyons, North Bend, Oregon, an election by secret ballot shall be conducted as early as possible, but hot later than thirty (30) days from the date of this Direction, under the direction and supervision 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 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV. above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay- roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause, to de- termine whether or not they desire to be represented by International Woodworkers of America, Local 7-140, for the purposes of collective bargaining. ORDER IT IS HEREBY ORDERED that the petition be, and it hereby is, dis- missed, insofar as it alleges that a question affecting commerce has arisen concerning the representation of employees of'Rodney C. Lasky and Herbert H. Lasky. CHAIRMAN MILLIS took no part in the consideration of the above Decision, Direction of Election and Order. Copy with citationCopy as parenthetical citation