Kirby Lumber Corp.

In the Matter of KIRBY LUMBER CORPORATION, EMPLOYER and INTER- NATIONAL WOODWORKERS UNION OF AMERICA, CIO, PETITIONER Case No. 16-R-18.30.-Decided November 14,1946 Fountain, Cox d Gaines, by Mr. Joyce Cox, and Messrs. H. M. Sea- man and J. L. Moffett, all of Houston, Tex., for the Employer. Messrs. Robert Oliver, A. R. Hardesty, and J. D. Palmer, all of Dallas, Tex., for the Petitioner. Mr. Charles F. Mendenhall, of Silsbee, Tex., Mr. J. W. Park, of Beaumont, Tex., and Mr. M. B. Menefee, of Houston, Tex., all for the Intervenor. Mr. Emil C. Farkas, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Houston, Texas, on September 24, 1946, before Elmer Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial 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 THE EMPLOYER Kirby Lumber Corporation, a Delaware corporation, is generally engaged in logging operations and in the milling, sale and distribu- tion of lumber. The Employer operates logging camps throughout the State of Texas and has sawmills at Voth, Silsbee, Bessmay, Call, and Honey Island, Texas. Its total annual production amounts to ap- proximately 85,000,000 board feet of lumber, a substantial portion of which is sold and delivered to points outside the State of Texas. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. 71 N. L. R. B., No 111. 688 KIRBY LUMBER CORPORATION 689 H. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. United Brotherhood of Carpenters and Joiners of America, Local 2960, herein called the intervenor, is a labor organization affiliated with the American Federation of Labor, claiming to represent em- ployees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representatives of employees of the Employer, on the as- serted ground that its contract with the Intervenor constitutes a bar to the present proceeding. On June 30, 1942, the Employer and the Intervenor executed a col- lective bargaining agreement covering the employees here involved. It provides for an initial 1-year term commencing July 1, 1942, and for automatic renewal of annual periods thereafter, in the absence, of notice to terminate given by either party to the other at least thirty (30) days before any expiration date. The contract also pro- vides fora similar notice period should either party desire to amend the agreement, in which event the notice shall set forth the nature of the amendment desired. In accordance with its terms, the contract was renewed in 1943; 1944 and 1945 ; amendments in certain minor respects were also made in 1943 and 1945. On May 28, 1946, several days before the effective automatic re- newal date of the contract, Petitioner informed the Employer by letter that it represented a majority of its employees and requested recognition as their collective bargaining agent. On the following day, the Intervenor notified the Employer by letter that it desired to effect certain changes and add several new provisions to the exist- ing contract, the proposed amendments being set forth in an at- tachment to the letter. The Employer failed to reply to this letter which it received on May 30, 1946. Thereafter, on June 3, 1946, Petitioner's Regional Director tele- phoned the Board's Regional Director for the Sixteenth Region, to ascertain "what would be the proper date" for filing a representation petition. The Petitioner apparently had reference to the rule re- cently established by the Board in Matter of General Electric X-Ray 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corporation, and subsequent cases,' that where a petition is filed more than 10 days after the assertion of a bare claim of representation, and no extenuating circumstances appear, an agreement, or automatic renewal of an agreement, otherwise valid, which is executed in the interval constitutes a bar to an election. In response to the Petitioner's request for advice, the Board's Regional Director stated that "it was his understanding that the requirement . . . that a petition must be filed within the 10-day period following the date upon which notice is served upon the company would exclude days upon which the offices of the Board are closed...." The Petitioner filed its peti- tion in this proceeding on June 11, 1946, the last day for filing under this interpretation. Arguing that more than 10 days elapsed between the Petitioner's claim of representation and the filing of its petition, the Employer and the Intervenor contend that the renewal of their existing agree- ment in that interval constitutes a bar to a current determination of representatives. The Petitioner, on the other hand, asserts (1) that the filing of its petition was timely under the interpretation given by the Board's Regional Director, and (2) that, in any event, the letter of May 29, 1946, constitutes a reopening of the contract which ren- dered the instrument ineffective as a bar. We have viewed the doctrine enunciated in the General Electric X-Ray case 2 as fixing a period of 10 calendar days as the interval within which a bare claim to representation must be supported by a petition to prevent an intervening agreement or automatic renewal of an existing agreement from barring an election.3 However, eve are not unmindful that the 10-day rule as enunciated in that case permitted of two possible interpretations with respect to the computation of time, that is, either calendar days or Board working days. We are further aware that the Petitioner acted in full reliance upon the advice given by the Board's Regional Director in computing the time on the basis of Board working days. Under these extenuating circumstances it would be inequitable to hold that the Petitioner has thereby precluded itself from seeking a present determination of representatives. We shall, therefore, deem the petition to have been timely filed .4 Under these 1 Matter of General Electric X-Ray Corporation, 67 N L it. B 997, Hatter of Henry & Allen Company, 68 N. L. R B. 724, Matter of Fifth Ave. Shoe Corporation, 69 N. L it. B. 400 Matter of General Electric X-Ray Corporation, supra. S See Matter of Standard Oil Company of Ohio, 69 N L R B 388, where the rival union asserted its claim for recognition on February 15 or 16, 1946, and filed its petition 17 days later on Match 4, 1946 We held in that case that, since the petition was not filed before the contract was executed or within 10 days from the Union's notice to the Company, the contract was a bar We there indicated, in effect, that we interpreted the rule as referring to 10 calendar days. For had we included Saturdays, Sundays and holidays or computed the time on the basis of Board working days and not chronological days, the petition would have been timely filed 4 Cf. Hatter of Chicago Mill & Lumber Company, 69 N L it. B 855 KIRBY LUMBER CORPORATION 691 circumstances it is unnecessary to rule on the issue raised in Petitioner's second contention. Accordingly, we find that a question affecting commerce has arisen concerning representation of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in accordance with the agreement of all parties, that all production and maintenance employees of the Employer at its saw- mills at Voth , Silsbee, Bessmay , Call, Honey Island, and at its logging camps in Texas , excluding clerical and office employees, store, hotel, and professional employees , guards and watchmen (except clock punchers), log scalers (except scalers checking behind "flat heads" and in the mills), employees in a confidential capacity , and all super- visory employees with authority to hire, promote, 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. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Kirby Lumber Corporation, Houston, Texas, 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 Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56 , of National Labor Relations Board Rules and Regula- tions-Series 4, among the employees 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 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 themselves 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 they desire to be represented by International Woodworkers Union of America, CIO, or by United Brotherhood of Carpenters and Joiners of America, Local 2960, AFL, for the purposes of collective bargaining, or by neither.