Edgar P. Folse, Inc.

In the Matter of EDGAR P. FOLSE, INC.,, EMrr of ER and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, PETITIONER Case No. 15-RC-258.-Decided October 5, 19./9 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held in this case on July 5, 1949, at. New Iberia, Louisiana, before Robert B. Stark, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The business of the Employer : The Employer, a Louisiana corporation with its only place of busi- ness at New Iberia, Louisiana, conducts a wholesale and retail build- ing materials and hardware supply business and manufactures windows, doors, and frames. The Employer's operations are com- pletely integrated, there being frequent interchange of employees be- tween the manufacturing and selling departments. The Employer employs 43 persons, of whom approximately 35 are in the unit alleged by the Petitioner to be appropriate. For the 6-month period ending May 31, 1949, the Employer pur- chased raw materials and supplies amounting to $179,983.13. Of this quantity, purchases made outside the State of Louisiana amounted in value to $69,668.61, of which $17,241.20 represented materials used in the manufacturing end of the business. During this same period, the Employer's sales amounted to $282,120.82, of which approximately $46,000, represented sales of manufactured products. All of the Employer's sales are made within the State of Louisiana, and none are destined for interstate shipment. Our dissenting members would not assert jurisdiction in this case on the authority of our decision in Matter of Makins Sand & Gravel Co., Inc.' The employer in that case was engaged in the processing, ' The Employer's name appears as amended at the hearing. 2 8,5 N. L. R. B. 213. 86 N. L. R. B., No. 52. 394 EDGAR P. FOLSE, INC. 395 manufacture, and sales of ready-mix concrete, sand, and gravel. It made out-of-State purchases of $72,000 worth of cement which it used in the manufacture of ready-mix concrete. All of its sales and all of its other purchases were made locally. Consistent with our deci- sions in other cases 3 involving sand and gravel companies, we declined to assert jurisdiction. In that decision, and in the cases upon which the decision was based, the Board stressed the essentially local char- acter of the sand and gravel business; and the Board did not, either specifically or by implication, overrule decisions asserting jurisdiction over employers engaged in the building materials business where the inflow and outflow of materials might not be substantially different from that in sand and gravel cases. In short, it is the particular character of the business involved that is the distinguishing feature between these cases. We find, contrary to the contention of the Employer, that its opera- tions affect commerce within the meaning of the Act 4 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All employees 5 engaged in the retail, wholesale, and manufac- turing operations of the Employer at its New Iberia, Louisiana, plant, excluding office and clerical employees, and supervisors 6 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 purposes 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, among the employees in the 3 For example, Matter of Knoxville Sangravl Material Company, Inc., 80 N. L. R. B. 1461 ; Matter of Texas Construction Material Company, 80 N. L. F. B. 1248 ; Matter of Tampa Sand & Material Company, Inc., 78 N. L. R. B. 629. 4 Matter of Henderson Lumber Company, Inc., 80 N. L. R. B. 1392; Matter of. Central Sash and Door Company, 77 N. L. R. B. 418. Cf. Matter of Cordele Sash, Door and Lumber Company, 79 N. L. R. B. 578. 5 David Darkey is listed on the Employer's pay roll as a watchman. The record dis- closes, however, that he spends more than 50 percent of his working time on janitorial and maintenance duties. He will be included in the unit. Matter of Paraffine Companies, Inc., 85 N. L. It. B. 325. 81t is clear from the record that Joseph Z. Landry, the superintendent-foreman, is a supervisor, and as such is excluded from the unit. =396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll 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 have since quit or been discharged for cause and have not been rehired or rein- stated 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 bar- gaining, by United Brotherhood of Carpenters and Joiners of Amer- ica, AFL. MEMBERS MURDOCK and HOUSTON, dissenting : We disagree with the action of our colleagues in asserting juris- diction in this case because we regard it as indistinguishable from and controlled by the recent decision of the Board in Hakim Sand and Gravel Co., 85 N. L. R. B. 213. We dissented from the Board's refusal to assert -jurisdiction in that case because we believed such refusal to be inconsistent with prior precedents, but we have con- sidered ourselves bound by it in subsequent cases. Although we would be disposed to assert jurisdiction in the present case on the basis of the decisions preceding Makins San and Gravel, the maintenance of .some consistency in Board decisions on jurisdiction, at least among the most recent ones, dictates otherwise. We direct attention to the fact that in the Makins case jurisdiction over an employer engaged in the processing, manufacture, and sale of ready-mix concrete, sand, and gravel was refused despite a sub- stantial out-of-State inflow of $72,000 worth of cement used in the manufacture of ready-mix concrete, the sale of which constituted about four-fifths of the employer's total business. But in the instant case jurisdiction is taken over an employer who manufactures sashes, doors, and other millwork and sells lumber and hardware supplies, based upon an out-of-State inflow of $69,668.61 worth of raw materials and supplies. Each employer is in the building material supply busi- ness; each employer imports a substantial amount of material from out of the State for processing and resale ; and each employer makes all sales intrastate. The only discernible difference in the two cases is the fact that in the Malcins Sand and Gravel case the out-of-State inflow of material consists of cement, while in the instant case it con- sists of lumber and some hardware. Such a difference furnishes no basis for either a legal or a policy distinction in determining -jurisdiction. In our opinion it is the height of absurdity for the Board to treat the flow of lumber or hardware in interstate commerce as having an importance and legal effect different from the flow of -cement in interstate commerce.