Longhorn Roofing Products, Inc.

In the Matter of LONGHORN ROOFING PRODUCTS, INC. and CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. 16-R-1581.-Decided April 5,1946 Samuels, Brown, Herman and Scott, by Mr. John M. Scott, of Fort Worth, Tex., and Mr. R. R. Ruland, of Dallas, Tex., for the Company. M;. Lindsay P. Walden, of Fort Worth, Tex., and M. A. R. Hard- esty, of Dallas, Tex., for the Union. Mr. Phil E. Thompson, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Congress of Industrial Organizations, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Longhorn Roofing Products, Inc., Dallas, Texas, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Louis R. Mercado, Trial Examiner. The hearing was held at Dallas, Texas, on February 4,1946. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introdu@e evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following:: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Longhorn Roofing Products, Inc., a Texas corporation, is engaged in the manufacture of roofing material at its only plant located at Dallas, Texas. During the 4-month period ending in October 1945, the Com- pany's net sales exceeded $450,000, and sales to purchasers outside the 67 N. L. R B., No. 7. 84 LONGHORN ROOFING PRODUCTS, INC. 85 State of Texas exceeded $93,000. During the same period, approx- imately 35 percent of the raw materials used in the Company's plant was shipped in from without the State of Texas. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. IT. THE ORGANIZATION INVOLVED Congress of Industrial Organizations is a labor organization, ad- mitting to membership employees of the Company. III. TIIE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of its employees until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. TV. THE APPROPRIATE UNIT The Union seeks a plant-wide unit of production and maintenance employees. The Company contends that employees in the paper mill should constitute a separate unit apart from the other plant employees. The Company's operations primarily consist of a paper mill and a roofing plant. The paper mill produces roofing paper, which is in turn conveyed to the roofing plant,2 where it is processed into finished roofing material.3 The entire plant has a common employment and accounting office. All production departments are under the direction and supervision of the vice president in charge of production. All production employees use the same cafeteria, locker room, and park- ing lots. Except for supervisor°y categories, almost all production employees are hourly paid and are unskilled workers with similar interests in labor policies and conditions of employment. In view of the foregoing, and the further fact that the organization of the peti- tioner has extended throughout all the Company's operations, we are of the opinion that all plant-production and maintenance employees constitute an appropriate unit.. I The Field Examiner reported that the Union submitted 81 authorization cards. There are approximately 180 employees in the appropriate unit s The roofing plant building is located approximately 60 feet from the paper mill. A common steam plant supplies power for both the paper mill and the roofing plant z Roofing paper produced in excess of the manufacturing requirements of the roofing plant is sold by the Company as a finished product. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all production and maintenance employees of the Company at its Dallas, Texas, plant, excluding technical, office, cleri- cal, and any other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, 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 We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by any election by secret ballot. From December 3, 1945, to January 14, 1946, the Company dis- charged the following employees: J. W. Ellis, James Bonin, Carl Malone, Howard Pierce, Cecil M. Gamble, and O. J. Naughton. On January 15, 1946, the Union filed charges with the Board on behalf of these discharged employees, alleging that they had been discharged in violation of Section 8 (3) of the Act. These charges are now pend- ing.' In accordance with our established custom we shall allow these employees to participate in the election, by casting separate sealed ballots to be opened and counted by the Regional Director only if determinative of the election results, in which latter event, the final disposition of the instant case will await the outcome of the unfair labor practice proceedings.6 By allowing these six employees to vote we are in no way passing upon the legality or illegality of their discharges. On January 14, 1946, the Union called a strike of employees of the Company because of the alleged discriminatory discharges of the employees referred to above. It is not questioned that this dispute was current at the time of the hearing. The strikers have, therefore, continued to be employees of the Company within the meaning of Section 2 (3) of the Act. There is no disagreement as to their eligi- bility to participate in this election.„ The parties are in disagreement, however, as to the eligibility of employees hired by the Company since the inception of the strike. The Union would prevent all such employees from participating in the election by determining the eligibility of employees from the pay roll immediately preceding January 15, 1946, the date of the strike. The Company maintains that all persons hired since the date of the strike should be found eligible to vote. With reference to this issue it is clear that we cannot now determine whether such employees were * Case No. 16-C-1309. 5 Matter of Rudolph Wurlitzer Company, 32 N. L. R B . 163. Matter of Beckwith Machinery Company, 60 N. L. R. B. 521, and cases cited therein. LONGHORN ROOFING PRODUCTS, INC. 87 hired to replace workers out on strike,° or, if that be true, whether, in view of the unfair labor practice charges now pending before the Board, they would constitute valid replacements with permanent em- ployee status. It is our opinion that the policy of the Act can best be effectuated by directing an immediate election, permitting all em- ployees to participate who were employed during the pay-roll period immediately preceding the date of this Direction. All persons hired since January 15, 1946, the date of the strike, will be deemed pre- sumptively 7 eligible to vote subject to the right of challenge." DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Longhorn Roofing Products, Inc., Dallas, Texas, an election by secret ballot shall be con- ducted 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 Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among em- ployees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who were on strike at that time, and the six persons alleged to have been discriminatorily discharged, and employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present them- selves in person at the polls, 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 Congress of Industrial Organi- zations, for the purposes of collective bargaining. 9 The Company contends that many of the employees hired since January 15 , 1946, have been employed on a permanent basis in the normal course of the Company's present indus- trial expansion , or by way of replacement of employees validly discharged or voluntarily leaving the Company's employ since that date 7 Nothing in this Direction should be construed as indicating that the Board has pre- judged in any respect any of the questions which may be drawn into the issue by a chal- lenge to the eligibility of certain voters , including such questions as to whether or not, (1) a new employee is a permanent replacement , or (2) a striking employee has been validly discharged or replaced 8 Matter of Columbia Pictures Corporation , et al, 61 N L R. B. 1030.