Davis Lumber Co, Inc.

In the Matter of DAVIS LUMBER COMPANY, INC.,1 EMPLOYER and AMER- ICAN FEDERATION OF LABOR, PETITIONER Case No. 10-R-20686.-Decided January 15,1948 Mr. Horace C. Wilkinson, of Birmingham, Ala., for the Employer. Mr. Walter L. Mitchell, of Birmingham, Ala., for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Cull- man, Alabama, on July 24, 1947, before John C. McRee,, hearing of- ficer. At the hearing the Employer moved to dismiss the petition on the ground that the Petitioner was not authorized to act for the em- ployees involved herein and does not represent them. For reasons discussed in Section III, infra, the motion is hereby denied. The hear- ing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TIIE EMPLOYER Davis Lumber Company, Inc., an Alabama corporation, is engaged in the manufacture and sale of lumber at its only plant and principal place of business in Cullman, Alabama. It was incorporated on July 1, 1947. Prior to that date the business was operated by Bryce C. Davis and Phillip L. Davis, a partnership doing business as Davis Lumber Company. Thereafter, the principal assets of the partnership were transferred to Davis Lumber Co., Inc., of which Bryce C. Davis is president and majority stockholder and Phillip L. Davis a member of the Board of Directors. There have been no appreciable personnel changes since the transfer. During the calendar year 1946, the Employer purchased raw ma- terials valued in excess of $50,000, all of which were purchased within i As amended at the hearing Davis Lumber Company, Inc. is the successor to Bryce C Davis and Phillip L. Davis, d/b/a Davis Lumber Company. 75 N. L R. B., No. 104. 766972-48-vol. 75-55 851 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the State of Alabama. During the same period the Employer's sales of manufactured products exceeded $100,000 in value, of which ap- proximately 90 percent was shipped to points outside the State of Alabama. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer. III. TIIE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. As indicated previously, the Employer contends that the Petitioner is not the representative of the employees sought herein. Inasmuch as we have frequently held that the Petitioner's prima facie showing of representative interest is solely a matter of administrative pro- cedure to be determined by the Board itself, we find this contention without merit.2 We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in substantial accord with the agreement of the parties, that all production and maintenance employees at the Employer's Cullman, Alabama, plant, including the saw filer, but excluding office and clerical employees, foremen, and all supervisors, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES At the hearing, it was disclosed that unfair labor practice charges, involving the discharge of three employees, were pending against the 2 Matter of 0. A Jennangs & Company , 68 N L R B 516 ; Matter of Bauer-Schweitzer Hop & Malt Co , et at , 72 N. L R. B 1223 At the hearing the Employer offered to prove its contention by oral testimony and a petition allegedly signed by all of its employees purporting to disavow the Petitioner 's claim to a representative interest . We are of the opinion that the hearing officer properly excluded such evidence . A majority of the em- ployees will have an opportunity to express their desire as to a bargaining representative in a Board election by secret ballot. DAVIS LUMBER COMPANY, INC. 853 Employer.3 The Petitioner requests that these employees be per- mitted to vote challenged ballots. Inasmuch as no determination of their eligibility to vote can be made until final disposition of the unfair labor practice charges, we hereby direct the Regional Director to challenge and impound their ballots pending disposition of such charges. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Davis Lumber Company, Inc., Cullman, Alabama, an election 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 Tenth 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 unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period im- mediately 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 whether or not they desire to be represented by American Federation of Labor for the purposes of collective bargaining. MEMBER HousTON took no part in the consideration of the above Decision and Direction of Election. 8 Charges of 8 (1) and 8 ( 3), Case No 10-C-2271, were filed against the Employer in the Regional Office on June 3, 1947 The Petitioner has waived any right to urge any of the acts alleged by it as unfair labor practices as a basis for objection to any election which may be directed in the instant case.