Burnet-Binford Lumber Co., Inc.

In the Matter of BURNET-BI15FORD LUMBER COMPANY, INC., EMPLOYER and MILLMENS LOCAL UNION No. 1788, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, PETITIONER Case No. 9I R 1328.-Decided December 9, 1947 Mr. Owen J. Neighbours, and Thompson, O'Neal c6 Smith by Mr. Fred J. Clapp, of Indianapolis, Ind., for the Employer. Messrs. John H. Harris, C. A. Shuey and Robert D. Malarney, of Indianapolis , Ind., for the Petitioner.. - Messrs. Glendon L. Anderson and Robert D. Malarney, both of Indianapolis, Ind., for the Intervenor. DECISION ORDER AND DIRECTION OF ELECTIONS Upon a first amended petition duly filed, the National Labor Rela- tions Board, on June 26, 1947,-conducted a prehearing election among the production and maintenance employees of the Employer exclud- ing, among others , yardmen, truck drivers and helpers, to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election , a Tally of Ballots was furnished the parties. The Tally shows that, of the approximately 57 eligible voters, 55 cast ballots, of which 29 were for the Petitioner and 26 were against the Petitioner. . Thereafter, a hearing in the case was held at Indianapolis , Indiana, on July 21, 1947 , before Clifford L. Hardy, hearing officer. At the hearing, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America , Local Union- No. 716 , which had not participated in the prehearing election , sought and was granted permission to intervene on the ground of its interest in the yardmen, truck drivers and helpers of the Employer. 421 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing and in its brief, the Employer moved to dismiss the petition on the ground that it is not engaged in commerce within the meaning of the Act; and in its brief it also moved to dismiss on the ground that the election was conducted in an inappropriate unit. For reasons stated hereinafter, the motions to dismiss are hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Burnet-Binford Lumber Company, Inc., is engaged at its 28th and 30th Street plants in Indianapolis, Indiana, in the business of buying, processing and selling lumber. These operations include at each location a lumber yard where it stores lumber and a planing mill where it cuts and rips lumber into small sizes. During the year 1946, the Employer used at these plants over $200,000 worth of lum- ber and other raw materials of which more than 50 percent represented shipments from sources outside the State of Indiana. During the same period, the Employer distributed from these plants finished products valued in excess of $200,000, of which about 99 percent rep- resented sales within the State and less than 1 percent represented shipments to customers outside the State. We find, contrary to the contention of the Employer, that it is engaged in commerce within the meaning of the National Labor Re- lations Act.' II. TIIE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. International Brotherhood of Teamsters, Chauffeurs, WWTarehouse- men and Helpers of America, Local Union No. 716, herein called the Intervenor, is a labor organization affiliated with the American Fed- eration of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner and the Intervenor as the exclusive bargaining representatives of its employees in the absence of Board certifications. 1 Matter of J. F Johnson Lumber Company, 73 N I, R B. 320 Motte of Clinton Lumber Corporation, 72 N L R B 217 and the cases cited therein BURNET-BINFORD LUMBER COMPANY, INC. 423 We find that a question affecting commerce has arisen concerning the representation of employees of the Employer , within the meaning ,of Section 9 (e) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS The Petitioner and the Employer agree generally that the appro- priate unit should comprise all production and maintenance employees at the Employer's 28th and 30th Street plants in Indianapolis, Indiana, excluding office and clerical employees , truck drivers and helpers and all supervisors. They are in disagreement, however, as to yardmen and watchmen whom the Employer would include in, and the Peti- tioner would exclude from, the unit. As already noted, the Intervenor seeks to represent the yardmen, truck drivers and helpers and urges that a. separate election should be conducted in this unit. The Employer maintains in this connection that only a unit of truck drivers and help- ers is appropriate. A. Composition of the production and maintenance unit Yardmen; The Employer employs approximately 12 yardmen. Seven of them are stationed at the 30th Street plant and the balance are located at the 28th Street plant .2 Yard employees unload incoming shipments of lumber from freight cars and stack it at various places around the yard. When lumber is needed inside the mill, it is reloaded on a small truck or hand conveyance and delivered to the mill by yard- men. In the performance of both these operations, yardmen are as- sisted, at times, by mill laborers and machine helpers. Occasionally, yardmen are called upon to aid in the performance of machine opera- tions in the mill, including the cutting and ripping of large size pieces of lumber into smaller sizes. In this connection, yardmen are required to operate planing machines and ripsaws. Upon the completion of the cutting and ripping operations, yardmen, mill laborers and machine helpers remove the processed lumber from the mill to the appropriate storage area. The wage level of yardmen, mill laborers and machine helpers is identical. And although yardmen have separate supervision generally, they are under the supervision of the mill foreman when working inside the mill. With respect to the trucking operations, yardmen do not participate in the loading of trucks with lumber for delivery to customers, nor do they take part in the making of such deliveries. This is done by the truck drivers and helpers. On the other hand, truck drivers and helpers do not assist in the unloading or reloading, or in the moving of lumber within the yards . Supervisory 2 The two plants aie approximately 3 miles apart. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD control of truck drivers and helpers is separate and distinct from that of yardmen. Under all these circumstances, including the extent of intermingling, between yard employees and mill personnel and the considerable integration of the Employer's yard and mill operations, we are of the opinion that the interests of the yardmen are more closely identified with those of the production and maintenance employees than of any other group.3 Accordingly, we shall include them in the unit. Watchmen: The Employer has in its employ three watchmen; two of these employees work at the 30th Street plant and one works at the 28th Street plant. At the former location, one of the watchmen reports for duty during the regular working hours and works until midnight; the other two report at night. These watchmen are required generally to sweep and clean the offices, mill and yard, to check the plant for fire, theft and unauthorized entry, and to punch a time clock at designated stations. They are armed but are not deputized. In view of the foregoing we are persuaded that watchmen have interests which are different from those of the employees in the pro- duction and maintenance unit.4 We shall, therefore, exclude them from the unit. We find that all the production and maintenance employees of the Employer's 28th and 30th Street, Indianapolis, Indiana, plants includ- ing yardmen but excluding office and clerical employees, truck drivers and helpers, watchmen and all supervisors, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. B. The composition of the truck drivers' unit At the hearing the Intervenor requested that the Board establish a separate unit of yardmen, truck drivers and helpers. We have al- ready determined that yardmen are properly part of the production and maintenance unit. Under these circumstances, we sha11 consider the propriety of a unit of truck drivers and helpers alone. The truck drivers and helpers are engaged in transporting processed lumber from the two plants and delivering it to the Employer's customers. They spend most of their time on the road driving trucks and making deliveries and have separate supervision from that of the other employees at the plants. Truck drivers such as these belong to a clearly defined and historical craft .5 3 Matter of Williams Brownell Planninq Mill Co., 65 N L R B 1470. 4 Matter of Florida All-Bound Box Company, lnc, 74 N. L R B. 949 - 5 Matter of Omaha Cold Storage Company, 73 N. L . R. B. 406; Matter of John Morrell d- Company, 69 N. L. R. B 1446 ; Matter of Sutherland Paper Company, 55 N. L. R. B. 38 BURNET-BINFORD LUMBER COMPANY, INC. 425 It is clear from the foregoing and the entire record that, unlike, the employees in the unit found appropriate above, the interests of the truck drivers and helpers are identified with the business of trans- portation rather than with the industry they serve. Accordingly, we are of the opinion that truck drivers and helpers constitute a homo- geneous and functionally coherent group which may function together for the purposes of collective bargaining. We find, therefore, that all truck drivers and helpers of the Em- ployer's 28th and 30th Street, Indianapolis, Indiana, plants 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 As indicated above, the prehearing election was conducted in a unit of production and maintenance employees from which yardmen, among others, were excluded. At the hearing and in its brief, the Employer contended that inasmuch as the petition and the Board's Notice of Election improperly excluded yardmen from the unit, and since the election was accordingly conducted in an inappropriate unit, the results of said election should therefore be set aside and the petition be dismissed. It is clear from our findings in Section IV, infra, that the election was conducted in an inappropriate unit and that it cannot therefore be said to reflect the desires of the employees in the appropriate unit of production and maintenance employees.6 However, no reason ap- pears why an election may not now be conducted in the proper group- ing of production and maintenance employees. Accordingly, we shall not dismiss the petition but shall instead direct that an election be conducted among the employees within that group. And we shall, at the same time, direct an election among the employees in the unit of truck drivers and helpers. ORDER AND DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with Burnet-Binford Lumber Com- pany, Inc., Indianapolis, Indiana, it is hereby ordered that the pre- hearing election conducted on June 26, 1947, among the production and maintenance employees of the Employer's 28th and 30th Streets, Indianapolis, Indiana, plants be, and the same hereby is, vacated and set aside; and it is hereby 6 As already noted, the election results showed that 29 votes were cast for, and 26 were cast against, the Petitioner . The 12 yardmen , who were improperly excluded from the unit, did not seek to vote in the election conducted among the production and maintenance employees, while 2 of the 3 watchmen whom we have excluded , did vote. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that separate elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Ninth Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations= Series 5, among the employees in the units found appropriate in Sec- tion IV, above, who were employed during the pay-roll period imme- diately 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, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine (a) whether or not the employees in the production and maintenance unit desire to be represented by Millmens Local Union No. 1788, United Brother- hood of Carpenters and Joiners of America, AFL; and (b) whether or not the employees in the unit of truck drivers and helpers desire to be represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local Union No. 716, for the purposes of collective bargaining. MEMBERS MURDOCK and GRAY took no part in the consideration of the above Decision, Order and Direction of Elections.