Veneer Products, Inc.

In the Matter of VENEER PRODUCTS, INC., EMPLOYER and INTERNA- TIONAL UNION OF OPERATING ENGINEERS, LOCAL 457, AFL, PETITIONER Case No. 34-RC-30.-Decided February 8, 1949 DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed by Local 457, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Prior to the hearing, at the hearing, and again thereafter, the Em- ployer moved to dismiss the petition and the amended petition on the grounds, in substance, that : (1) the American Federation of Labor, with which the Petitioner is affiliated, had not complied with the filing requirements of section 9 (f), (g), and (h) of the Act; (2) the Employer, although entitled as a matter of right to the information, had not been permitted to examine the data from which a determina- tion had been made that the filing requirements of the Act had been satisfied; (3) the Petitioner did not request recognition by the Em- ployer prior to the filing of the petition; (4) the Petitioner is dis- qualified from acting as the bargaining representative of the employ- ees in question because it does not admit Negroes to membership ; and (5) the Petitioner has made neither an adequate, nor a timely, showing of interest. For the reasons hereinafter stated, the Employer's motion is denied.l I Although we administratively note that the parent American Federation of Labor is presently in compliance with the filing requirements of Section 9 (f), (g), and ( h) of the Act, such compliance is not a prerequisite to the processing of this case, Matter of Northern Virginia Broadcasters , Inc., 75 N. L. It. B. 11 ; and, although compliance by the Petitioner with the filing requirements of the Act is indeed a necessary prerequisite, the determination of its compliance status is an administrative matter , and the evidence pertaining thereto need not be shown to the Employer nor set forth affirmatively in the record. Matter of Ozark Dam Constructors, 77 N. L. R. B. 1136; Matter of Lion Oil Com- pany, 76 N. L R. B 565; Matter of The Procter ct Gamble Manufacturing Company, 78 N. L. R. B . 1043 ; a request for recognition need not be made upon an employer prior to the filing of a representation petition , Matter of Advance Pattern Company, 80 N. L. R. B. 29, decision on reconsideration ; nor are matters pertaining to the Petitioner's showing of interest, which is an administrative expedient , subject to collateral attack by the Em- ployer ; Matter of O. D . Jennings cf Company, 88 N. L. R. B. 516. 81 N. L. R. B., No. 90. 492 VENEER PRODUCTS, INC. 493 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization affiliated with the Ameri- can Federation of Labor, claiming to represent employees of the Employer.2 3. The question concerning representation : The Employer contends that because the Petitioner does not admit Negroes to membership, and because many of the Employer's em- ployees are Negroes, the petition should be dismissed. At the hearing, the representative of the Petitioner testified that Local 457, which is the local union involved in this proceeding, does admit Negroes to membership, and that, in the event that Local 457 was certified by the Board, it would represent all employees of the Employer in an appropriate unit. The constitution of the inter- national union which chartered Local 457, International Union of Operating Engineers, contains no statement of discrimination against Negroes. It appears, however, that there exists in the Employer's plant another local, also chartered by International Union of Op- crating Engineers, and known as Local 457-D, which, according to the Petitioner's representative, has a membership almost entirely of Negroes, and which was established for the purpose of keeping funds contributed by Negro members separate from funds contributed by whites. In opposition to the statement of the Petitioner's representative, the Employer offered to prove that Local 457 did not admit Negroes to membership, and that Local 457-D restricted its membership to Negroes alone. This offer of proof was rejected by the hearing officer. The Board has previously stated that a statutory bargaining agent is charged with the duty of representing all members of a unit equally, and without discrimination on the basis of race, color, or creed ; but the Board has also recognized its lack of power to pass upon eligibility requirements for membership in a labor organization.3 Accordingly, in dealing with the problem of restriction of membership in unions, the Board has concerned itself with the satisfaction of the duty im- •Chairman Herzog and Members Houston and Gray. 2 United Mine Workers of America, District No. 50, which made a representation claim upon the Employer, was served with Notice of Hearing, but failed to enter an appearance. a Matter of Larus eE Brother Company, Inc., 62 N. L. R. B. 1075. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posed on a bargaining representative acting pursuant to a Board certification, and not with the internal organization of the representa- tive.' In the light of that principle, the Board held in 1945 that the establishment of a separate local for Negro employees does not, per se,. constitute a subversion of the Board's unit finding.5 On the facts before us, therefore, we find without merit the Em- ployer's contention that the petition should be dismissed. In our opinion, neither the facts appearing affirmatively in the record, nor the matter recited in the Employer's offer of proof,6 show that the Petitioner will not accord adequate representation to all employees within the unit hereinafter found appropriate. However, in view of the existence of Local 457-D, we here expressly note that if it is later shown, by appropriate motion, that equal representation has been denied to any employee in the unit because of his color, the Board will consider rescinding any certification we may issue herein.' 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. 4. The appropriate unit : The Petitioner and the Employer agree that a production and main- tenance unit at the Employer's veneer manufacturing plant is ap- propriate. They disagree, however, as to the unit placement of sev- eral employee classifications which the Employer would exclude from the unit. Graders and log scalers: Graders, looking for defects, classify and grade the veneers. Log scalers measure and grade logs and timber, and estimate the number of board feet they will produce. The esti- mates of the log scalers are relied upon by the Employer when timber and log purchases are made. Contrary to the contention of the Employer, we find that graders and log scalers are not managerial or professional employees, and that they have employment interests similar to those of other production employees. Accordingly, we shall include them in the unit." Inspectors and tallymen: These employees inspect, count, and tally the veneers just before shipment. Inspectors are empowered to 4 Matter of Norfolk Southern Bus Corporation , 76 N. L. R. B. 488; Matter of Texas and Pacific Motor Transport Company, 77 N. L R. B 87. s Matter of Larus d Brother Company, Inc., supra, at 1083. 6 In this view of the case, no prejudice resulted from the hearing officer's rejection of the Employer's offer of proof. ° See Matter of Southwestern Portland Cement Company , 61 N. L. R. B. 1217 ; Matter of Carter Manufacturing Company, 59 N L R. B 804 8Mdtter of Collins Pine Company, 54 N. L. R. B. 670 ; Matter of Smith Wood Products, Inc., 62 N. L. R. B. 920 ; Matter of Potlatch Forests, Inc., 80 N L. it. B., No. 107 . For the reasons stated 'in the Potlatch case, Board Member Gray would exclude log scalers, but deems himself bound by the majority opinion in that case. VENEER PRODUCTS, INC. 495 return defective veneers for further processing ; tallymen keep records upon which the Employer bills its customers. The interests of these employees are similar to those of production employees and we shall include them in the unit.9 Firemen, truck drivers, garage mechanics, and tractor operator: Employees with these classifications perform the usual duties asso- ciated with their titles. They have interests in common with those of production employees and we shall include them in the unit.'o Alleged supervisors: The head log scaler also acts as assistant log yard foreman, supervising the cutting and stacking of logs. He has • hired and discharged employees. A crane operator heads a crew of three men. He has effectively recommended the discharge and promotion of employees. We find that the head log scaler and the crane operator are super- visors as defined in the Act, and shall therefore exclude them from the unit. We find that all production and maintenance employees at the Employer's Tarboro, North Carolina, plant, including graders, log scalers, inspectors, tallymen, firemen and helpers, truck drivers, garage mechanics, and the tractor operator, but excluding clerical employees, guards, watchmen, foresters, instructors, technical advisors, draftsmen, engineers, students, the crane operator, the head log scaler, the garage foreman, assistant foremen, foremen, and other supervisors 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. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, 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 "Matter of Clayton Mark & Company, 76 N. L. R. B. 230 (inspectors ) ; Matter of Ewanna Box Company, 47 N L. R B 1466 ( tallymen). 10Matter of The Chase-Shawmut Company, 71 N L. R. B 610 ( firemen ) ; Matter of El Campo Rice Millsng Company , 73 N. L. R. B. 927 ( drivers and garage mechanics). 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by International Union of Operating Engineers, Local 457, AFL.