Maloney-Chambers Lumberco.

National Labor Relations Board - Board Decisions

Apr 28, 1953

104 N.L.R.B. 503 (N.L.R.B. 1953)

MALONEY-CHAMBERS LUMBER CO. 503
H. L. MALONEY AND J. L. CHAMBERS d/b/a MALONEY-
CHAMBERS LUMBERCO. 1 and ALBANY LUMBER COMPANY
and INTERNATIONAL WOODWORKERS, LOCAL 5-251, CIO,
Petitioner. Case No. 36-RC-910. April 28, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert J.
Wiener, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed. Y
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 [Members Houston, Styles, and
Peterson ].
Upon the entire record in this case, the Board finds:
1. Maloney-Chambers, a partnership composed of H. L.
Maloney and J. L. Chambers, and Albany Lumber, a corpora-
tion, are both engaged in the manufacture of lumber. Maloney
and Chambers each controls one-third of the stock of Albany,
the remaining third being controlled by Wiseman.' Each of
the companies operates a sawmill in Albany, Oregon, Maloney-
Chambers cutting smaller, and Albany Lumber cutting larger,
logs, with some overlap in the production of the 2 companies.
The sawmills are located across the street from each other,
about 300 yards apart. Each company owns timberlands and
Albany Lumber has sold uncut timber to Maloney-Chambers.
Chambers supervises the technical aspects of the production of
both companies and Maloney does the selling for both. In
arranging for sales, Maloney considers the production of both
plants and products of both plants are used in making up an
order. The company in `the name of which the sale was made
1 The name of this company appears as stipulated at the hearing.
I The original petition named only Maloney-Chambers Lumber Co., herein called Maloney-
Chambers. as the employer and sought a unit limited to that company 's employees. At the
initial hearing on March 11, 1953, the hearing officer granted the Petitioner 's motion in effect
to amend its petition to add Albany Lumber Company, herein referred to as Albany Lumber,
as a party to this proceeding and to amend the unit requested also to include the employees
of that company. Maloney-Chambers opposed that motion and requested a continuance to
meet the issues raised by the amendment , which was granted . At the reconvened hearing on
March 20, 1953, Maloney-Chambers'' renewed its opposition to the amendment and requested
that the petition be dismissed as to Albany Lumber on the ground that the latter had not been
served with a notice of hearing. As we hereinafter find that Maloney-Chambers and Albany
Lumber are a single employer within the ineaning of Section 2 (2) of the Act and as two
officers of Albany were present during the entire hearing and were given ample time to
advise Albany Lumber of, and prepare it for , this proceeding , we find that the notice of hear-
ing served on Maloney-Chambers was sufficient notice to Albany. Accordingly , we find that
Albany Lumber was not prejudiced by the amendment of the petition , and we affirm the hear-
ing officer 's ruling and deny the motion to dismiss the petition , based on the alleged lack of
adequate service . Smith Rice Mill, Inc., 83 NLRB 380. The Employer also moved to dismiss
the petition on the ground that the unit requested was not appropriate . For the reasons set
forth below, we find no merit in this contention and deny the motion.
3Maloney , Chambers, and Wiseman each owns 180 shares of stock of Albany and their
respective wives also own 1 share each.
104 NLRB No. 64.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then reimburses the other. Occasionally one company borrows
equipment from the other.
The 2 companies have a joint office in the building of Albany
Lumber, where 2 bookkeepers, a telephone operator, and a
clerk perform their work. Each of the companies employs and
pays 1 of the bookkeepers to keep its own books, but the tele-
phone operator and the clerk are employed and paid jointly by
the 2 companies. Similarly the companies employ the same
guards who are paid by separate checks from each company.
Labor policies of Maloney-Chambers are set by Maloney and
Chambers, and those of Albany Lumber are established by
Maloney, Chambers, and Wiseman. Each plant is under the
separate immediate supervision of its own superintendent, who
hires the employees for the plant under his direction. However,
both companies pay identical wages for employees working in
similar capacities, 4 and employees of both companies enjoy
the same vacation, health, and accident insurance benefits, and
work identical hours. On the average of once or twice a month,
If the need arises, employees of one company are temporarily
transferred to the other, in which case they are paid by the
company to which they are temporarily assigned.
In view of the foregoing and the entire record, including the
substantial identity of ownership and control of the companies,
the physical proximity of the plants, the nature of the opera-
tions of both companies, and the similarity of working condi-
tions at both companies, we find, contrary to the contentions of
the companies, that Maloney-Chambers and Albany Lumber
constitute a single employer within the meaning of Section 2 (2)
of the Act.5
Although there are no jurisdictional facts in the record as
to Albany Lumber, the parties stipulated that Maloney-
Chambers shipped lumber valued in excess of $25,000 outside
the State of Oregon and was engaged in commerce within the
meaning of the Act. As we have found that the companies are a
single employer, we find that the Employer is engaged in com-
merce within the meaning of the Act and shall assert jurisdic-
tion herein.'
2. The labor organization involved claims to represent
certain employees 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. The Petitioner primarily seeks a unit of the employees of
both Maloney-Chambers and Albany Lumber. Alternatively, it
seeks a separate unit of each company. The Employer contends
that the only unit which may appropriately be established in this
proceeding is limited to the employees of Maloney-Chambers.
In view of the facts set forth in paragraph numbered 1, above,
on the basis of which we found the two companies constitute a
4 Employment categories , with few exceptions , are identical at both companies.
SCommercial Equipment Company , Inc., 95 NLRB 354; Emerson & Stevens Mfg. Co., 95
NLRB 946.
6 Ibid.
MALONEY-CHAMBERS LUMBER CO. 505
single employer, we further find, in accord with the Petitioner's
primary request, that a single unit of the employees of both
companies is appropriate.7
As to the composition of the unit, the parties seem generally
agreed to the inclusion of all employees, with the usual statutory
exclusions. There appears some question, however, as to the
placement of employees of the retail yard. Before the amend-
ment of the petition, the parties had stipulated to exclude these
employees from the unit. After the amendment, the Employer
withdrew its stipulation. The record does not contain sufficient
facts to enable us to determine whether employees of the retail
lumberyard should be included in or excluded from the unit.
Under these circumstances we shall permit them to vote subject
to challenge. In the event that the counting of their ballots will
affect the outcome of the election, a further investigation will
be conducted to determine the propriety of their inclusion in
the unit.'
Accordingly, we find that all employees at the Albany,
Oregon, plants of Maloney-Chambers and Albany Lumber, in-
cluding employees of the retail yard,' but excluding office and
clerical employees, professional employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
5. The Employer contends that no election should be held at
this time as it expects to abandon its Maloney-Chambers
operation by about May 1, when it expects to have disposed of
the lumber presently at that operation . The Employer testified
that it did not expect to add to the lumber supply as none of its
timber could, at present prices, be profitably processed at
Maloney-Chambers. The record contains no evidence, however,
that as of March 20, the date of the reconvened hearing, the
Employer had taken any steps to curtail employment at Maloney-
Chambers or to dispose of that plant.
Of the Employer's approximately 55 employees, 20 work at
Maloney-Chambers, the remainder at Albany Lumber. With few
exceptions, employment classifications at both plants are
identical and employees laid off at the Maloney-Chambers
operation will be given preference over new applicants in ob-
taining employment at its Albany Lumber operation. As it
appears from the foregoing that even if the Employer were to
shut down its Maloney-Chambers operation its remaining em-
ployees would constitute a representative number of employees
in the unit, we shall direct an election in the unit hereinbefore
found appropriate.'0
[Text of Direction of Election omitted from publication.]
7Ibid.
sThe parties also originally stipulated to exclude office and clerical employees. As no
reason appears why they should be included , we shall, in accord with our usual practice, ex-
clude them from the unit.
9 For the reason set forth above, the inclusion of employees in the lumberyard is solely
for the purpose of permitting them to vote subject to challenge and is not to be taken as a
final determination of the appropriateness of their inclusion.
10 Owens Steel Company, Inc ., 92 NLRB 1334.