J. F. Johnson Lumber Co.

In the Matter of J. F. JOIINsoN LUMBER COMPANY, EMPLOYER and UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MINE WORKERS OF AMERICA, A. F. L., PETITIONER Case No. 5-R-2491.-Decided Ap'•il 10, 1947 Mr. William F. Kelly, of Washington, D. C., and Mr. H. Melvin Bull, of Baltimore, Md., for the Employer. Messrs. Arthur G. Pilon and Robert Frye, of Baltimore, Md., for the Petitioner. Mr. William W. Townshend, of Annapolis, Md., for the Intervenor. Mr. Jerome A. Reiner, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Balti- more, Maryland, on November 8 and 15, 1946, before Earle K. Shawe, hearing officer. The hearing 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 THE EMPLOYER J. F. Johnson Lumber Company is a Maryland corporation engaged in the business of processing lumber and in the wholesale and retail sales of building material supplies at two plants located at Annapolis and Glen Burnie, Maryland. Annually the Employer makes pur- chases of approximately $1,000,000 worth of raw materials, 75 percent of which is shipped to the Employer's two plants from points outside the State of Maryland. Annually the Employer makes sales of fin- ished lumber and building supplies in excess of $1,500,000, substan- tially all of which is sold to building contractors and retail customers within the State,' in addition to a small amount sold annually to the 'There was testimony that the Employer occasionally sells a keg of nails , a door or sashes to some of its suppliers of crude lumber in Virginia and delivers these items by its own trucks when they are sent to Virginia to pick up the crude lumber . These sales amount tb about $300 annually. - - 73 N. L. R. B., No. 59. 320 J. F. JOHNSON LUMBER COMPANY 321 United States Naval Academy at Annapolis, Maryland. Twenty- five percent of all purchases made by the Employer represents crude lumber obtained principally in the State of Virginia, a substantial part of which is transported by the Employer in its own trucks from the place of purchase to the Employer's plants in Maryland. The Employer processes 50 percent of all the lumber sold by it. The re- maining 50 percent is dressed lumber sold by the Employer as pur- chased. In connection with its processing operations the Employer owns and utilizes molding machines, four planing mills, and two re-saws and ripsaws. This processing involves hauling in rough green logs, stripping and-drying them, and-running them through the mill. The Employer produces processed lumber of various kinds and sizes for a variety of uses such as sheathing, tongue and groove runners, sub- flooring, and shingle strips. On special order the Employer will make cabinets and other products of wood construction. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act.2 II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with United Mine Workers of America, American Federation of Labor, claiming to represent employees of the Employer. J. F. Johnson Lumber Company Employees Association, Inc., herein called Intervenor, is a labor organization claiming to represent employees of the Employer 3 III. THE 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. Following a Board election in 1941, the Intervenor and the Em- ployer entered into a series of yearly contracts the last of which be- came effective April 1, 1946, to terminate March 31, 1947. The conten- 2N L R B V Cowell Portland Cement Company, 148 F (2d) 237 (C C A 9), cert denied 326 U S 735 . N L R B v Poultrgmei's Service Coop , 138 F (2d) 204 (C C A 3) , N L R B. V McGough Bakeries Corp., 153 F. (2d) 420 (C C. A 5) , N L R B v Van de I(anipe Holland-Dutch, Bakers, Inc, 152 F. (2d) 818 (C C' A 9) . N L R B V Facnblatt, et at , 306 U S 601 , N L R B v Jones & Laughlin Steel Corp , 301 U S 1 'There is no merit to the Petitioner's contention that the Intervenor is a defunct labor organization The evidence shows that the Intervenor has accounts with banking institu- tions both at Annapolis and Glen Burnie, Alarvland, collects dues from its members, has held recent membership meetings, has negotiated wage uicieases with the Employer in behalf of its members, and has a current contract with the Employer. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion that this contract is a bar to the present proceedings is untenable in view of the fact that it contains no renewal provisions and will have expired by the time an election is held and a certification, if any, issued thereon. Moreover, the contract by its own terns is one for "members 01-11y' 14 and, under well-established principles, cannot bar a present determination of representatives.5 We find that a question affecting commerce has arisen concerning the 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 The parties agree that all of the production and maintenance enm- ployees at the Annapolis and Glen Burnie, Maryland, yards of the Employer, including millmen, yardmen, drivers and helpers, laborers and loaders, but excluding salesmen, draftsmen, technical employees, stockholders, the shipping clerk' at the Glen Burnie yard, office and clerical and all supervisory employees, may constitute an appropriate unit. The Petitioner would also include janitresses, night watchmen, and garage mechanics as to whom the other parties take no position. The parties disagree concerning the inclusion of certain other cate- gories of employees hereinafter discussed. The janitresses and the night watchmen are hourly rated employees, the latter performing plant protection functions. The mechanics are salaried employees whose principal duty is to maintain and otherwise service the Employer's trucks used by other employees in the unit. We shall include these employees in the unit. The Petitioner would exclude and the Employer would include certain employees at the Annapolis plant who are classified as clerk.s- offlee personnel. Despite their job classification these employees do no office work, but have the same manual duties as those performed by the loaders at Glen Burnie who are included in the unit. Accord- ingly, we shall include these employees. The Petitioner also seeks to exclude Edward Wheeler and Ray Hibberd from the unit alleging they are supervisory employees, which the Employer denies. Both employees are experienced loaders hav- ing been in the employ of the Employer for 25 years; and while they are accorded certain privileges because of their longevity, they do 4 The Intervenor contended that the contract was understood by the parties as one for exclusive recognition, and testimony was adduced to the effect that the benefits of the con- tiact were applied to non-members as well as members of the Intervenor. However com- mendable this action may be, it is a gratuitous undertaking lather than one of contractual obligation and it is not, therefore. determinative of the contract bar issue here involved b platter of The 1Vheland Company, 72 N L R B 351 , Matter of hittmger Company, lac, 65 N L R B 1215, Matte of Tennessee Coal, lion cc Railroad Company, 65 N. L. R B 1416 6 Salley. J. F. JOHNSON LUMBER COMPANY 323 not exercise supervisory authority within the Board's customary definition. Accordingly, we shall include them in the unit. The Petitioner also seeks to exclude Robert A. Farmholt from the unit. He is the son of the Employer's president and, although presently working as a truck driver, he is being prepared to assume a managerial position. In view of Faruillolt's close relationship to management and his eventual assumption of a managerial position we find that his interests are substantially different from those of the other employees involved. We shall therefore exclude him from the unit.' We find that all the production and Maintenance employees of the Employer at its Annapolis and Glen Burnie, Maryland, yards, including clerks-office personnel at the Annapolis yard, janitresses, garage mechanics. mllhnen, yardmen, drivers and helpers, laborers and loaders, but excluding salesmen, draftsmen, technical employees, stockholders, the shipping clerk at the Glen Burnie yard, office and clerical employees, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute 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 J. F. Johnson Lumber Com- pany, Annapolis and Glen Burnie, Maryland, 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 Fifth 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 Regulations-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 ' Matter of Association Canado-Amerioane, 72 N L R B 520 , Matter of The Myes- SheiIlan Company, 71 N L R B 910 8 Any participant in the election herein directed may, upon its prompt request to and approval thereof by the Regional Director, have its name removed from the ballot 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not been rehired or reinstated -prior to the date of the election," to determine whether they desire to be represented by United Construc- tion Workers, affiliated with United Mine Workers of America, American Federation of Labor, or by J. F. Johnson Lumber Company Employees Association, Inc., for the purposes of collective bargain- ing, or by neither. 9 A strike of certain employees in the unit was in progress at the time of the hearing, but was terminated on November 20, 1946 , and all 'striking employees for'whom jobs were available have returned to work Accordingly certain eligibility issues which arose at the hearing need not now be determined.