Maloney-Chambers Lumberco.

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.