Madonna & Arnold Lumber Co.Download PDFNational Labor Relations Board - Board DecisionsAug 21, 1953106 N.L.R.B. 835 (N.L.R.B. 1953) Copy Citation 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." 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