Triangle Lake Lumber Co.

National Labor Relations Board - Board Decisions

Aug 20, 1943

52 N.L.R.B. 27 (N.L.R.B. 1943)

In the Matter of JAMES D. MALONEY, LEORA MALONEY, MIKE M.
SAVELICH, AND THELMA C. SAVELICH, CO-PARTNERS, DOING BUSINESS
AS TRIANGLE LAKE LUMBER COMPANY and INTERNATIONAL WOOD-
WORKERS OF. AMERICA, LOCAL 5-246, CIO
Case No. R-5718.-Decided August 00, 1943
Mr. James D. Maloney, of Eugene, Oreg., for the Partnership.
Mr. 0. F . Hartung, of Portland , Oreg., for the C. 1. 0.
Messrs. W. 0. Kelsay and C. P. Richards, of Eugene, Oreg., for the
A. F. of L.
Mr. Wallace E . Royster, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Woodworkers. of
America, Local 5-246, CIO, herein called the C. I. 0., alleging that
a question affecting commerce had arisen concerning the represen-
tation of employees of James D. Maloney, Leora Maloney, Mike M.
Savelich, and Thelma C. Savelich, co-partners, doing business as Tri-
angle Lake Lumber Company,' Blachly, Oregon, herein called the
Partnership, the National Labor Relations Board provided for an
appropriate hearing upon due notice before John E. Hedrick, Trial
Examiner. Said hearing was held at Eugene, Oregon, on July 21,
1943. The Partnership, the C. I. 0., and Lumber & Sawmill Workers
Union Local No. 2521, A. F. of L., herein called the A. F. of L.,
appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
During the hearing, the A. F. of L. moved the dismissal of the petition
herein, asserting that its contract constituted a bar to a present inves-
tigation of representatives. The Trial Examiner reserved ruling on
this motion. For reasons appearing in Section III, below, the motion
1 By appropriate motion at the hearing the formal papers herein were corrected to show
the name of the Partnership as Triangle Lake Lumber Company. The formal papers are
hereby further corrected to show the names of the co-partners as above.
a2 N. L. R. B., No. 6.
27
•28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is denied. All parties were afforded opportunity to file briefs with the
Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE PARTNERSHIP
James D. Maloney, Leora Maloney, Mike M. Savelich, and Thelma
C. Savelich, co-partners, doing business as Triangle Lake Lumber
Company, are engaged in the felling, transport, and milling of timber
in Lane county, Oregon. Approximately 70 percent of the timber
felled by the Partnership is sawed in its mill and 95 percent of the
production of the mill is shipped to points outside Oregon.
There is no contest over the jurisdiction of the Board, and we find
the Partnership to be engaged in commerce within the meaning of the
National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Woodworkers of America, Local 5-246, CIO, is a
labor organization, affiliated with the Congress of Industrial Organi-
zations, admitting to membership employees of the Partnership.
Lumber & Sawmill Workers Union Local No. 2521, A. F. of L., is
chartered by United Brotherhood of Carpenters and Joiners of
America, an American Federation of Labor affiliate, and is a labor
organization admitting to membership employees of the Partnership.
III. THE QUESTION CONCERNING REPRESENTATION
On March 9, 1940, the Partnership and the A. F. of L. entered into
a collective bargaining contract, containing closed-shop provisions,
covering the employees of the Partnership. The contract is for an
indefinite term and is terminable by the 30-day notice of either party.
On May 24, 1943, the C. I. 0., by registered letter, requested recogni-
tion of the Partnership as exclusive bargaining representative of the
Partnership employees. Although the receipt of this request is not
acknowledged, at the hearing the Partnership refused to accord such
recognition. Both the A. F. of L. and the Partnership consider their
contract presently to be in effect. The A. F. of L. contends that its
contract is "an agreement between management and labor which has
been in existence for 3 months or longer without complaint being
filed" 2 and as such, under the restriction upon the expenditure of funds
imposed on the Board by the current Appropriation Act, constitutes
.an effective bar to this proceeding. Since the restriction referred to
2 National Labor Relations Board Appropriation Act, 1944, Title IV, Act of July 12, 1943,
P. L! 135, 78th Congress, 1st session.
TRIANGLE LAKE LUMBER COMPANY 29
has no application to a representation proceeding , we find no merit in
this contention .3 We find that the contract herein has been in effect
for a reasonable time; is for an indefinite term; and is terminable upon
the 30-day notice of either party. In accordance with the well settled
policy of the Board, such a contract does not constitute a bar to an
,investigation to determine representatives and we so find.4
A statement of the Regional Director , introduced into evidence at
the hearing , and a statement of the Trial Examiner made at the hear-
ing, indicate that the C. I. O. represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Partnership within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
Approximately 25 employees of the Partnership are engaged in the
felling, bucking, and loading of timber at the logging camp, 9 miles
from the sawmill. Approximately 30 employees are engaged in the
sawing and loading of lumber at the sawmill and loading dock. All
parties agree to the inclusion of the employees engaged in the
operations above but there is a dispute concerning the inclusion of
certain truck drivers. Two - of the trucks presently used in the
transport of logs from the logging camp to the mill are owned by
their drivers. The Partnership has written contracts with the drivers
reciting conditions of hire of the truck and driver and containing an
agreed scale of rates for the transport of logs. Since these workers
are engaged exclusively in the business of the Partnership, under the
direction of the loader; since the Partnership pays social security and
compensation insurance assessments; and since they differ from other
such drivers only in the method of computing their earnings; we find
them to be employees of the Partnership within the meaning of the
Act.' The C. I. O. requests their inclusion. The Partnership and the
A. F. of L. oppose the C. I. O.'s request and assert that these workers
are not covered by the collective bargaining contract. Since we have
found them to be employees, and since drivers of Partnership owned
trucks are included by agreement, we shall include them in the unit.
8 Opinion of the Comptroller General , July 29, 1943.
4 Matter of American Radiator & Standard Sanitary Corporation , 35 N. L . R. B. 172.
The Regional Director stated that the C. 1 O. submitted 31 application-for-membership
cards, 16 of which 'h ere dated in March, April, and May 1943, and bore the names of persons
whose names appear on the Partnership pay roll of July 7, 1943. The pay roll lists the
names of 51 employees in the appropriate unit.
The Trial Examiner stated that the C I. O. submitted three additional cards at the
hearing . All bore the names of persons whose names appear on the Partnership pay roll
of July 7, 1943.
The A. F. of L. relies upon its contract to establish its interest
6 See Matter of John Yaselc, 37 N. L. R. B. 156, and cases cited therein.,
30 DEIC'TSIONS OF NATIONAL LABOR RELATIONS BOA]BD
Three truckers are engaged in the transport of lumber from the
sawmill to the loading dock. These trucks are owned by an
independent contractor who performs no work for the Partnership but
employs, pays, and exercises supervision over the drivers. The drivers
perform such work as the independent contractor directs and on
occasion haul logs for others. In consideration of these circumstances,
we find -that no employment relation exists between the sawmill
truckers and the Partnership and, in accordance with the agreement
of the parties, shall exclude them from the unit.'
In accordance with the above and the agreement of the parties, we
find that all production, maintenance, and transportation employees
of the Partnership, including those logging camp truckers who own
the trucks they operate, but excluding clerical employees, office
employees, truckers who are employed by an independent contractor,
and all supervisory employees with authority to hire, promote,
discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees 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 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 James D. Maloney,
Leora Maloney, Mike M. Savelich, and Thelma C. Savelich, co-
partners, doing business as Triangle Lake Lumber Company, Blachly,
Oregon, an election by secret ballot shall be conducted as early as
possible, but not later than thirty days (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,
* See Matter of Jalmer Berg, an individual , 35 N. L. R. B. 357.
TRIANGLE LAKE LUMBER COMPANY 31
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 any who have
since quit or been discharged for cause, to determine whether they
desire to be represented by International Woodworkers of America,
Local 5-246, CIO, or by Lumber & Sawmill Workers Union Local No.
2521, A. F. of L., for the purpose of collective bargaining, or by
neither.
CHAIRMAN MiLms took no part in the consideration of the above
Decision and Direction of Election.