Duke City Lumber Co.

DUKE CITY LUMBER COMPANY, INC. 53 Duke City Lumber Company, Inc. and UBC Texas Council of Industrial Workers, UB OF C & J OF A., AFL-CIO, Petitioner. Case 23-RC- 4819 August 12, 1980 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 27, 1979, the Petitioner filed an amended petition seeking a unit of production and maintenance employees at the Employer's Living- ston and Splendora, Texas, plants but excluding, inter alia, "undocumented persons." On August 31, 1979, following an investigation, the Regional Di- rector for Region 23 found that the "unit sought in the amended petition is, with this exclusion, con- trary to Board precedent and therefore inappropri- ate." The Regional Director further found that, in view of the Petitioner's unwillingness to include undocumented persons in the unit, the petition does not raise a question concerning representation and he dismissed the petition. Thereafter, in accordance with Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision. On October 12, 1979, the Board issued a ruling on administrative action in which it concluded that the Petitioner's request for review raises issues that can be best resolved after a hearing. Accordingly, the petition was reinstated and the case was re- manded to the Regional Director for a hearing with the direction that the case be transferred to the Board for decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. The Board has considered the entire record in this case with respect to the issue under review and makes the following findings: The Employer is a New Mexico corporation which owns and operates two sawmills in Living- ston and Splendora, Texas.' It employs approxi- mately 153 employees at Livingston and approxi- i The parties stipulated, based on facts set forth in Bd. Exh (i). that the Employer is engaged in commerce within the meaning of the Nation- al Labor Relations Act. and is subject to the jurisdiction of the National Labor Relations Board. 251 NLRB No. 12 mately 32 employees at Splendora. The Petitioner 2 seeks to represent a unit of the Employer's produc- tion and maintenance employees excluding "undo- cumented persons" or illegal aliens, who it con- tends have an insufficient community of interest with the Employer's other employees. The Region- al Director found merit in the Employer's conten- tion that the requested unit was inappropriate be- cause it excluded illegal aliens. The Board has long held that "non-citizenship is neither a ground for exclusion from a bargaining unit nor a disqualification for participation in elec- tions conducted by the Board."3 Although the Board has not passed previously on the status of "illegal" aliens as opposed to alienage per se in de- termining exclusions from bargaining units, we see no reason on the record here for treating the two classes differently. The Petitioner presented two witnesses, one a current and the other a former employee of the Employer. Neither witness presented any substan- tial evidence that showed that the Employer em- ployed illegal aliens or that, assuming it does, such persons' wages, benefits, job duties, or terms and conditions of employment differed from the Em- ployer's other employees in the petitioned-for unit. The two witnesses called by the Employer, includ- ing the Employer's plant manager at Livingston, testified that the Employer does not inquire as to alien status, illegal or legal, and that it has no infor- mation on this matter. The plant manager also testi- fied that all employees receive the same rate of pay during the probationary period and that employees who successfully complete the 60-day probationary period enter a job classification with its own pay scales. In short, there is no reliable evidence here that any employee of the Employer is in fact an undocumented person or illegal alien. Nor does the record here show that certain production and maintenance employees of the Employer do not share a community of interest with other produc- tion and maintenance employees because of their status as illegal aliens. Hence, we find no support in the record for excluding certain employees from the petitioned-for unit solely because of status as il- legal aliens. A finding that status as an illegal alien is no ground for exclusion from a bargaining unit is in line with the Board's treatment of illegal aliens like 2 The parties stipulated that the Petitioner is a labor orgaizatilon within the meaning of the Act 3 See In the M.atter of Dan Logan and J R Parton Co-partners. d/ba Logan and Paxton. 55 NLRB 310 1944) A'en & Sandilands Packing Company, 59 NLRB 724. 730 (1944), Norrh lhittier Heights Citrus Associ- ation., 63 NLRB 240 (1945); Azusa Citrus .lssociation, 65 NLRB 1136 (1946): Morrs Sezdmon. c a d ha Southseer C(. 102 NLRB 1492 (1953) 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees under the Act. The Board has consistently held that illegal aliens are employees within the meaning of Section 2(3) of the Act and are entitled to the protection of the Act.4 Consist- ent with these principles, employees alleged to be illegal aliens have voted in Board elections and the Board has overruled objections which alleged that such unchallenged voters were illegal aliens.5 Il- legal aliens who have been found to have been dis- criminatorily discharged in violation of the Act have been afforded the same reinstatement and backpay as other discriminatees.8 We also note that there is no Federal legislation which prohibits the 4 Apollo Tire Company. Inc., 236 NLRB 1627 (1978), enfd. N.L.R.B. v Apollo Tire Co.. 604 F.2d 1180 (9th Cir. 1979); Amay's Bakery &4 Vood/le Co.. Inc., 227 NLRB 214 (1976); Handling Equipment Corporation, 209 NLRB 64 (1974); Lawrence Rigging, Inc., 202 NLRB 1094 (1973); Morris Seidmon, e al.. d/b/a Southwestern Co.. supra. s Sure-Tan. Inc. and Surak Leaher Co., 231 NLRB 138 (1977). As a general rule, an employee is eligible to vote in a Board-conducted election if he was employed in the appropriate unit (I) during the payroll eligibility period and (2) on the day of the election. See St. Regis Paper Company, 118 NLRB 1560 (1957); Food Machinery and Chemical Corpora- tion, 116 NLRB 552 (1956); Gulf States Asphalt Corporatrion, 106 NLRB 1212 (1953). ' Sure-Tan. Inc. and Surak Leather Co., 246 NLRB No. 134 (1979) hiring of illegal aliens. And the Board recently stated that it is not within our authority "to alter the obligations imposed by the Act in a manner which might assist in reaching whatever may be the current goals of immigration policies."7 In view of the record evidence, supra, and the treat- ment of illegal aliens in other circumstances under the Act, we find that status as an illegal alien is no ground for exclusion from the petitioned-for bar- gaining unit. In sum, we find that the unit sought by the Peti- tioner excluding illegal aliens is an inappropriate unit. As the Petitioner has not indicated a willing- ness to include illegal aliens in the bargaining unit, we shall dismiss the petition.8 ORDER The petition filed in Case 23-RC-4819 is hereby dismissed. 7 See discussion in Sure-Tan, Inc., supra. 8 Member Penello concurs in the result herein. He was not one of the panel members that considered the Petitioner's underlying request for review. and, had he done so. he ould have denied it and affirmed the Regional Director's administrative dismissal of the petition.