Coastal Plywood & Timber Co.

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Donald Ripley and Patricia Little immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges , and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. GLOBE PRODUCTS CORPORATION, Employer. Dated -------------------- By ------------------------------------ (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. COASTAL PLYWOOD & TIMBER COMPANY and LUMBER AND SAWMILL WORKERS UNION, LOCAL No. 2853, UNITED BROTHERHOOD OF CAR- PENTERS & JOINERS OF AMERICA, AFL, PETITIONER. Case No. 920-RC-42051. January 15,1953 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clement W. Miller, 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. Upon the entire record in this case, the Board finds: 1 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. i Separate counsel for both Fred G. Stevenot , trustee in reorganization of the Employer, hereinafter referred to as the Trustee , and the Employer debtor, hereinafter referred to as the Employer, appeared at the hearing. The Trustee contends that , as a result of a proceeding in the United States District Court for the Northern District of California, the pending reorganization of the Employer under chapter X of the Federal Bankruptcy Act dictates a finding that the instant petition is premature and moot. We find no merit in this contention . There is no certainty that the Employer's operations will cease or change. Nor does the record disclose that any definite plans have yet been completed for closing or selling the Employer's plant. Accordingly , in the absence of evidence that the Employer will necessarily terminate its operations in the immediate future, we shall process the present petition . Plywood-Plastics Corporation, 85 NLRB 265 ; see Clarostat Manufac- turing Co , Inc , 881 NLRB 723; Choctaw Cotton Oil Company, 84 NLRB 660. See also 11 U. S C , Section 672, and Section 15 of the Act ; N. L. R. B . v. Baldwin Locomotive Works, 128 F. 2d 39 (C. A. 3). 102 NLRB No. 34. COASTAL PLYWOOD & TIMBER COMPANY 301 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 appropriate unit : The Petitioner seeks to represent a unit composed of all production and maintenance employees of the Employer's sawmill, planing mill, dry kilns, yards, including allied facilities such as powerhouse, mould- ing, and siding plant, including stockholder-employees and depart- ment heads, but excluding woods department employees, office and clerical employees, professional employees, guards, and supervisors as defined in the Act. The Trustee agrees with the unit request of the Petitioner, except that he would exclude from this unit the stockholder-employees and the department heads. The Employer takes no position. The Stockholder-Employees Coastal Plywood & Timber Company is a Nevada corporation authorized to issue 400 shares of class "A" stock.2 Under the articles of incorporation, no one stockholder may own more than 1 share of common stock. At the date of the hearing, there were 250 stock- holders, of whom approximately 50 were employed in nonsupervisory positions by the Employers Thus, this group controls but 20 percent of the stock. Although the Employer's assistant general manager testified that a preference in employment is accorded stockholders as a matter of policy,* the amended bylaws presently in effect make no provision for such a preference.5 The record further reveals that there is no difference in conditions of employment as between stock- holders and nonstockholders, and that supervisory personnel have the right to discharge stockholder-employees. It should also be noted that so long as the Trustee remains in control of the Employer's operations, the stockholder-employees will have no effective voice in determining the Employer's policies.6 n The class "A" stock is the sole surviving class of stock , the class "B" stock having been retired in 1949. ' In addition , there are roughly 30 supervisory personnel , officers, and directors who hold stock in the Company. A This alleged preference relates only to seniority accorded stockholder-employees in case of a curtailment of the Employer's operations. ' The Trustee contends that the stockholders still have certain preferential employment rights, notwithstanding recent amendments to the Employer corporation 's bylaws, which apparently rescinded those preferential rights. In this regard the Trustee points to. and the Board has taken notice of, the court decision in Stevenot, Trustee, et at. v. Norbert', in which a California district court ordered the trustee to reinstate certain stockholder- employees who had been discharged . The court relied upon the bylaws in effect at the time these dischargees purchased their stock, which bylaws gave all stockholder-employees a right to have an attempted discharge reviewed . Such right was not accorded to non- stockholders. The later amended bylaw which abrogated this right was held inoperative. The decision is now on appeal to the United States Court of Appeals for the Ninth Circuit. a 11 U. S. C., Secs. 586, 58I' 589. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In support of his contention that the stockholder-employees be excluded from the unit found appropriate herein, the Trustee relies upon the Board's decision in the case of Brookings Plywood Com- pany.' In that case the Board found that the stockholder-employees had sufficient influence in the formulation of corporate policy as to exclude them from the unit found appropriate, where it appeared that the stockholder-employees (1) controlled roughly 50 percent of the outstanding stock, (2) had certain powers enabling them to affect management policies, (3) had special employment interests in that they held the most desirable jobs and received a uniform wage rate higher than nonstockholders, and (4) had a separate grievance pro- cedure. As only factor (2) is present in the instant case. we do not find the Brookings Plywood Company case controlling. The Board has, in prior cases, adhered to the principle that mere ownership of stock in a corporation does not preclude the inclusion of a stockholder in a collective-bargaining unit of the corporation's employees, unless the stockholder-employee's interest is of such a nature as to give him or the stockholder group an effective voice in the formulation and determination of corporate policy s As we find that the instant stockholder-employees neither have at present, nor will have in the immediate future, an effective voice in determining corporate policy, we shall include them in the unit hereinafter found appropriate. Department Heads 9 The individuals in this group who work under the direction of the mill superintendent are the pond foreman, powerhouse foreman, pipe and fire-protection system foreman, electrician foreman, green-chain foreman, head filer, head machinist, carpenter foreman, and head mill- wright. Those under the direction of the yard and planing-mill superintendent are the garage foreman, yard foreman, moulderman, head grader in the siding department, head grader in the planing mill, shipping clerk, and night planerman 10 They each appear to divide their time between working and direct- ing employees in their respective departments. Although they do not have the power to hire or fire employees, each can recommend such action to their respective superintendents, which recommendation, while subject to independent investigation, is accorded substantial weight by the Employer. Their recommendations apparently have always been followed. Accordingly, we find that they are supervisors within the meaning of the Act. T 98 NLRB 794. O Muskogee Dairy Products Co., 85 NLRB 520; Mutual Rough Hat Company, 86 NLRB 440; Alderwood Products Corporation, 81 NLRB 136. Y These individuals were referred to as subforemen at the hearing. 10 The night planerman is in sole charge of the night crew. EMERSON ELECTRIC COMPANY 303 Assistant mill foreman: The assistant mill foreman assumes all the powers and duties of the mill superintendent during the latter's in- frequent absences as occasioned by illness or vacations. At all other times, the assistant mill foreman is a millwright employee with no supervisory authority. Because it appears that whatever supervisory authority possessed by the assistant mill foreman is exercised only sporadically, we find that he is not a supervisor within the meaning of the Act Il Accordingly, we shall include the assistant mill foreman in the unit. We find that the following employees of the Employer at Clover- dale, California, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees of the sawmill, planing mill, dry kilns, and yard, including allied facilities such as the power- house, moulding department, and siding plant, and including stock- holder-employees and the "assistant mill foreman," but excluding the woods department employees, officers and directors, general man- ager, assistant general manager, sales manager, office manager, mill superintendent, yard and planing mill superintendent, department heads such as pond foreman, powerhouse foreman, pipe and fire- protection system foreman, electrician foreman, green-chain foreman, head filer, head machinist, carpenter foreman, head millwright, garage foreman, yard foreman, moulderman, head grader in the siding de- partment, head grader in the planing mill, shipping clerk, and night planerman, office and clerical employees, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] a B. F. Goodrich Company, 92 NLRB 575. EMERSON ELECTRIC COMPANY 1 and INTERNATIONAL ASSOCIATION OF MACHINISTS DISTRICT No. 9, AFL, PETITIONER. Case No. 14-RC- 2030. January 15,1953 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Roy V. Hayden, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 3 The name of the Employer appears as amended at the hearing. 102 NLRB No. 33.