Townsend Sash, Door & Lumber Co.

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The Respondent has not disc'r}mi rated with.respect to the hire;and tenure: of employment of the employees named in Appendix A of the complaint in this proceeding, in violation of Section 8 (a) (3) of the Act. 7. The Respondent has not unlawfully refused to bargain with the Unions as the exclusive representative of the aforesaid appropriate unit, in violation of Section 8 (a) (5) of the Act. [Recommended Order omitted from publication in this volume.] TOWNSEND SASH, DOOR & LUMBER COMPANY and UNITED FOOD WORK- ERS OF AMERICA , LIU 1758, CIO, PETITIONER TOWNSEND SASH, DOOR & LUMBER COMPANY and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF AMERICA, CIO, PETITIONER . Cases Nos. 10-RC-1436 and 10-RC-1473. October 18, 1951 Decision, Order, and Direction of Election Upon a petition duly filed, a hearing was held before Jerold B: Sindler, hearing officer. 'The hearing officer's rulings made at the' hearing are free from prejudical error and are hereby affirmed.,, . Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds: i At the hearing the Employer moved to dismiss the petitions in these cases on the grounds that (1) no appearance was made by the Petitioner in Case No. 10-RC-1436, and (2) no proof of compliance with Section 9 (f), (g), and (h) of the Act had been submitted at the hearing by either of the two Petitioners. The hearing officer referred this motion to the Board As to (1), although the Petitioner in this case was duly served with notice of this hearing, it did not appear. We view the failure of the Petitioner to appear at the hearing as a disclaimer of interest in the representation of the employees of the Employer. Denver Smoked Ft8h Co., 78 NLRB 631; Hartsville Manufacturing Company, 79 NLRB 206. See also Merchants Fire Despatch, 83 NLRB 788 The motion of the Employer to dismiss the petition in Case No. 10-RC-1436 is hereby granted Regarding (2), the fact of compliance of a labor organization which is required to comply is a matter for administrative determination and is not litigable by the parties. Moreover, the Board is administratively satisfied that the Petitioner is in compliance. See Sunbeam Corporation, 94 NLRB 844; Swift & Company, 94 NLRB 917. Cf. N. L R B v. Highland Park Manufacturing Company, 71 S. Ct. 489. The motion to dismiss the peti- tion in Case No. 10-RC-1473 is hereby denied The Employer also objects to the hearing officer's refusal to issue a subpena for Samuel J. Smith, a representative of the Petitioner, in Case No. 10-RC-1436, contending that the hearing officer thus failed to comply with the provisions of the Act and the Board's Rules and Regulations. We find that the hearing officer erred in denying the Employer's request for the issuance of a subpena, although, for good cause, he could thereafter have revoked such a subpena, either on the motion of any of the parties at the hearing or on his own motion Bell Heath, Inc., 89 NLRB 67; Burnup & Sims, Inc., 95 NLRB 1130. How- ever, as we have granted the Employer's motion to dismiss the petition in Case No 10-RC-1436, wherein the testimony of the representative who signed that petition was sought to be adduced, we find that the Employer has not, in any event, been prejudiced by the refusal to issue such subpena, and that the issue raised by the request for subpena- has become moot 96 NLRB No. 134. r ^ TOWNSEND SASH, DOOR & LUMBER COMPANY 951 1." The Employer' is engaged in commerce within the meaning of the Act.2 2. The labor organization involved claims 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. The Petitioner seeks to represent a unit composed of all the Employer's production and maintenance employees, including em- ployees in the sawmill, stick and slab mill, millwork department, sash and door department, crate and planning mills, delivery truck drivers, log truck drivers, portable mill workers, in-the-woods workers, and yardmen, but excluding office and clerical employees, salesmen, retail store employees, professional employees, guards, and all supervisors. The Employer agrees with the unit request of the Petitioner, except that it would exclude from this unit the woods employees, portable mill works employees, and log truck drivers. The Employer's in-the-woods operation is about 50 miles away from its sawmill and other operations in Lake Wales, Florida. The portable mill is about 40 miles from its town operations. The log truck drivers carry the logs from the woods to the sawmill. Like each of the Em- ployers' other departments in Lake Wales, the woods operation and the portable mill works are each under immediate separate super- vision, but all, the Employer's operations are under the same general supervision. Although separate payrolls are kept for the woods and portable mill employees, all payrolls are prepared, and social security and tax deductions are made, in the Lake Wales central office. All the Employer's employees who are sought to be included in the unit are hourly rated, and all of them share the same benefits and privileges. Upon the entire record, and in view of the integration of the woods and portable mill operations with those of the Employer's other de- partments, we find that a unit including the woods and portable mill employees and the log truck drivers is appropriate.3 We find that all production and maintenance employees at the Employer's Lake Wales, Florida, lumberyard, including employees of the sawmill, stick and slab mill, millwork department, sash and door department, crate mill, planning mill, delivery truck drivers, yardmen, firemen-watchmen, 4 in-the-woods workers, log truck drivers, and port- 2 Stanislaus Implement and Hardware Company, Ltd , 91 NLRB 618. 8 Weyerhaeuser Timber Company, 93 NLRB 887 ; Weyerhaeuser Timber Company, 87 NLRB 1076 . Cf. Ross Lumber Company, 94 NLRB 636. 4 The firemen-watchmen divide their time between taking care of the boilers in the power- houses and watchmen 's duties. The record does not indicate how much time they spend in guard duties as defined by the Act . If, in fact, any of these employees spend more than 50 percent of their working time in guard duties, such employees shall be excluded from the unit as guards . Wraights, Inc., 81 NLRB 65; Wiley Mfg , Inc , 92 NLRB 40. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able mill workers, but excluding office and clerical employees ,5 sales- men, retail store employees , guards,° foremen, and all other super- visors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Order IT IS HEREBY ORDERED that the petition filed in Case No. 10-RC-1436 be, and it hereby is, dismissed. [Text of Direction of Election omitted from publication in this volume.] 5 In accord with the apparent agreement of the parties , we shall exclude J. A. Fort, whose duties are those of an office clerical employee , and M. H. Skelley, a draftsman, who works in the millwork office. 6 See footnote 4, supra. ATLANTIC REFINING COMPANY and ATLANTIC INDEPENDENT UNION, PETITIONER. Case No. 16-RC-768. October 18, 1951 Decision and Direction of Elections Upon a petition duly filed, a hearing was held before H. Carnie Russell, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds.] Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner and Oil Workers International Union, the Inter- venor, are labor organizations claiming to represent certain employees of the Employer. 3. The question concerning representation : The Petitioner currently represents employees of the Employer under a contract which by its terms covers the Employer's operations on a Nation-wide basis, with certain exclusions. The Intervenor, how- ever, presently represents the employees in the Employer's East Texas Oil Field,' and it is these employees for whom the Petitioner is seek- ing to be certified as representative in this proceeding. The Inter- :1 The Intervenor is the certified representative of the East Texas Oil Field employees, having been successful in several consent elections in this, unit. The most recent of such elections resulted in certification of the Intervenor on June 10, 1948. 96 NLRB No. 135.