Irwin & Lyons

National Labor Relations Board - Board Decisions

Aug 16, 1943

51 N.L.R.B. 1370 (N.L.R.B. 1943)

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.