Madonna & Arnold Lumber Co.

National Labor Relations Board - Board Decisions

Aug 21, 1953

106 N.L.R.B. 835 (N.L.R.B. 1953)

MADONNA & ARNOLD LUMBER CO. 835
A. MADONNA AND CLAUDE ARNOLD d/b/a MADONNA &
ARNOLD LUMBER CO. and UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF AMERICA, LOCAL UNION
NO. 2627, AFL, Petitioner. Case No. 36-RC-945. August 21,
1953
DECISION AND ORDER
On June 12, 1953, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was con-
ducted among the employees of the Employer in the unit agreed
to in such stipulation.
Upon completion of such election, the partie s were furnished
with a tally of ballots showing that there were 79 ballots cast
of which 21 were for the Petitioner, 21 were for the
Intervenor,' 31 were against the participating labor organiza-
tions, 1 was void, and 5 were challenged. As the challenged
ballots were sufficient in number to affect the results of
the election with respect to the subsequent procedure under
Section 102.62 of the Board's Rules and Regulations, the
Regional Director conducted an investigation and thereafter
on July 13, 1953, issued and served uponthe parties his report
on challenged ballots. The Intervenor filed timely exceptions to
the Regional Director's report.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case to
a three-member panel [Chairman Farmer and Members Mur-
dock and Peterson].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accord with the stipulation of the parties, the following
employees of the Employer constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
All production, maintenance, and transportation employees
at the Employer's Cottage Grove, Oregon, operations, ex-
cluding office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
5. The eligibility of the challenged voters
George Harper, Clarence Peterson, Walter P. Sorenson and
A. L. Noviska: In his report on challenged ballots, the Regional
Director recommended that the challenges to the ballots of
t International Woodworkers of America, CIO.
106 NLRB No. 142.
322615 0 - 54 - 54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these employees be sustained . No exceptions were filed to these
recommendations . Accordingly , we hereby adopt such rec-
ommendations and sustain the challenges to the ballots of the
above - named employees.
Berwyn A. Ellison : This employee ' s ballot was challenged by
the Board agent on the ground that his name did not appear on
the eligibility list .2 The Regional Director found that Ellison
regularly works a substantial part of his time within the unit
and recommended that the challenge be overruled and that his
ballot be opened and counted . The Intervenor has excepted to
this recommendation on the grounds, in substance , that Ellison
was hired by the Employer solely for the position of "bonded
warehouse manager" for the Lawrence Warehouse Co., herein-
after referred to as Lawrence , and, as such , Ellison ' s duties
and working conditions are different from those of the produc-
tion and maintenance employees.
The record shows that since September 1952 , the Employer
has been borrowing money on portions of its lumber inventory
as collateral . In this connection , the Employer has utilized the
services of Lawrence , an interstate business organization
providing "field warehousing" service for firms borrowing
money on inventories, for the purpose of guaranteeing its
inventories as required by the lending institution . An arrange-
ment is usually made between Lawrence and the borrowing
company whereby certain employees of the borrowing company
are transferred to the Lawrence payroll for the duration of
such arrangement in order to avoid unnecessary duplication
of work . Thus , under the present arrangement , three em-
ployees classified as watchmen were transferred to the
Lawrence payroll .9 In addition , under the usual arrangement,
a warehouse foreman or an employee whose normal duties
embrace tallying and record keeping is transferred to Lawrence
to fill the position of "Bonded Warehouse Manager ." Generally,
such an employee is able to perform his Lawrence work which
normally would occupy the lesser part of his time and also
continue to discharge his regular duties for the borrowing
company . However , the Employer herein , apparently having no
such employee available for transfer to Lawrence , found it
necessary to hire Ellison specifically for the position of
"Bonded Warehouse Manager" for Lawrence . Ellison was so
hired in September 1952, at which time the arrangement with
Lawrence was made . Moreover , the majority of Ellison's time
is taken up by his Lawrence duties which consist of tallying
lumber received and designated as collateral , preparing
warehouse receipts which after the Employer's signature go
to the lending bank as proof of collateral , preparing releases
for remanufactured lumber which are required before the
2 The Intervenor also alleges in its exceptions that the reason Ellison did not appear on the
eligibility list is due to the agreement of all parties , at the insistence of the Employer, to
exclude him from the unit.
8 Two of the watchmen who were also similarly challenged were found by the Regional
Director to be guards within the meaning of the Act.
MADONNA & ARNOLD LUMBER CO. 837
Employer consigns finished lumber to a buyer, submitting
records of work done to Lawrence , and certain other clerical
work . In this connection , Ellison serves as the responsible
Lawrence official at the Employer ' s plant . By agreement,
Lawrence may terminate Ellison ' s service at will but must
receive proper notice of his resignation . Ellison is required to
be bonded and is held responsible for negligence or careless-
ness.
Although Ellison also devotes a substantial amount of time to
performing work for the Employer such as grading , making
inventories as requested by the Employer , pulling lumber, or
related work , he fills no regular position with prescribed
daily duties but works where and as needed , often at his own
discretion . However , in cases of conflict Lawrence work must
take precedence,"
It is clear from the foregoing facts that Ellison ' s principal
job is "Bonded Warehouse Manager " for Lawrence , a job for
which he was specifically hired and which came into existence
only with the advent of the Employer ' s arrangement with
Lawrence . That Ellison ' s work for the Employer , although
averaging out to a substantial period of time, is merely
incidental to this primary function , is attested to by the fact
that he fills no regular position with prescribed daily duties
for the Employer but works only where and as needed, often
at his own discretion . Moreover , as "Bonded Warehouse
Manager " for Lawrence , even while so engaged in work for
the Employer , Ellison is not relieved of his specific duty as
the only responsible Lawrence official at the Employer's
plant.
Accordingly, in disagreement with the Regional Director, we
find under all the circumstances , that Ellison ' s overall duties
and working conditions are essentially different from those
of the production and maintenance employees and we shall
therefore exclude him from the unit . In view of this action and
in consideration of the inconclusive election results above, we
shall provide for another election in accordance with the
Board's Rules and Regulations and shall remand this case to
the Regional Director for further appropriate actioninaccord-
ance with our order herein.
ORDER
IT IS HEREBY ORDERED that this case be, and it hereby is,
remanded to the Regional Director for the Nineteenth Region,
who shall proceed in accordance with Sections 102.61 and
102.62 of the Rules and Regulations of the Board.
4Despite the dual nature of Ellison's duties, he is paid solely through Lawrence. Lawrence,
however, is fully reimbursed by the Employer which determines Ellison's rate of pay (that
of a lumber grader ) and approves his working time . Conflicts between Lawrence and borrow-
ing companies are rare primarily due to cooperative understandings reached at the outset
between Lawrence, the borrowing company, and the "Bonded Warehouse Manager."