Clinton Lumber Corp.

In the Matter a CLINTON LUMBER CORPORATION , EMPLOYER and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LUMBER AND SAWMILL WORKERS BRANCH, A. F. L., PETITIONER Case No. 15-R-1901.-Decided January 20, 194.7 Metcalf, Apperson ct Crufmp, by Mr. Charles M. Crum2p, of Mem- phis, Tenn., for the Employer. Mr. Walter T. Yount, of Memphis, Tenn., for the Union. Mr. Leonard J. Mandl, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES Upon a petition duly filed, the National Labor Relations Board con- ducted on October 11, 1946, a prehearing election among employees of the Employer in the alleged appropriate unit to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election a Tally of Ballots was furnished the parties. The Tally shows that, of the approximately 22 eligible voters, 18 cast ballots, of which 10 were for the Petitioner, 6 were against the Petitioner, and 2 were challenged. Thereafter, a hearing was held at Memphis, Tennessee, on November 4, 1946, before Gerald A. Brown, hearing officer. The hearing officer's rulings 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 Clinton Lumber Corporation, a Tennessee corporation, is engaged in Memphis, Tennessee, in the business of buying, processing, and sell- ing lumber ; it also buys and sells hardware, paint and other building materials, home appliances , and furnishings . It maintains a mill where it manufactures millwork, a store for retail sales, and a lumber 71 N. L. R. B., No 41. 217 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD yard where it stores lumber and other supplies. During the period from November 1, 1945, through May 31, 1946, the purchases of the Employer, which consisted primarily of lumber, hardware, paint, ply- wood, appliances, and stock millwork, amounted to approximately $217,000, of which about 80 percent represented shipments from points outside the State. During the same period, its sales amounted to about $271,000, of which about $2,500 represented shipments to other States. We find, contrary to the contention of the Employer, that it is en- gaged in commerce within the meaning of the National Labor Relations Act., II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Em- ployer. 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. 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 generally that the appropriate unit should con- sist of all production and maintenance employees of the Employer, excluding salesmen, office and clerical employees, and all supervisory employees. The only dispute between the parties relates to Ben Thornton, one of the two employees whose ballot was challenged at the election. The Union would include Thornton, while the Em- ployer would exclude him from the unit. Thornton is classified by the Employer as a general purpose laborer and is frequently referred to in the record as a porter. While he assists in the cabinet room and in the assembly of trim orders, and helps in the machine room, his primary duties and assignments are those of a porter. Keeping the store and warehouses clean is his main responsibility. It was estimated at the hearing that 75 percent of his time is spent performing his duties as a porter and that 25 percent of his time is spent in production work. We note in this connection that the parties agree to the exclusion of employee Jackson, a full-time porter, the only other porter employed by the Employer. IN. L. R. B. v Suburban Lumber Company, 121 F. (2d) 829 (C. C A 3) ; Matter of Desmonds, Inc., 68 N. L. R . B. 379; Matter of Lane Bryant, Inc., 52 N. L. R B. 1536, and cases cited therein. CLINTON LUMBER CORPORATION 219 Accordingly, inasmuch as Thornton spends the major portion of his time as a porter, and in view of the agreement of the parties to exclude the other porter employed by the Employer, we shall exclude Thornton from the unit as a porter 2 and we shall sustain the challenge to his ballot.3 We find, in accordance with the agreement of the parties and with our foregoing determination, that all production and maintenance employees of the Employer, excluding porters, salesmen, office and clerical employees, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES The results of the .election held before the hearing show that the Petitioner has received a majority of the valid votes cast, irrespective of the counting of any of the challenged ballots. Under the circum- stances, we shall certify the Petitioner as the collective bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that, United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Branch, A. F. L., has been designated and selected by a majority of all production and maintenance employees of Clinton Lumber Corporation, Memphis, Tennessee, excluding porters, salesmen, office and clerical employees and all supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, as their representative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Certification of Representatives. 2 Cf Matter of Marcellus M. Murdock, 67 N. L. R. B. 1426, Matter of Sahsbuty Cotton Mills, 39 N L R. B 210 1 The other challenged ballot was that of H L . Whittaker. Inasmuch as this employee Is admittedly in the unit and because his challenged ballot is insufficient to affect the election results , we find it unnecessary to determine whether the ballot should be opened and counted.