The Lehon Co.

In the Matter of Tim Lm-iox COMPANY and A. F. or L. • LOCAL 22456 Case No. R-2796.-Decided August 15, 191.x.1 Jurisdiction : composition roofing manufacturing industry. Investigation and Certification of Representatives : existence of question: Com- pany refused to accord union recognition until certified by the Board; election necessary: Pay roll preceding Direction of Election to determine eligibility notwith- standing request of sole union for a pay roll preceding filing of petition where, due to increased business, new employees hired by the Company since such date are permanent and not temporary employees. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, including those in specified departments, and including watchmen; shingle-nmachine inspectors found not to be supervisory employees included in unit. Mr. Fred Muller, Jr., of Memphis, Tenn., for the Company. Mr. R. O. Ross, of Knoxville, Tenn., for the A. F. of L. Mr. William H. Bartley, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TILE CASE On May 30,1941, A. F. of L. Local 22456, herein called the A. F. of L., filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of The Lehon Com- pany, Memphis, Tennessee, herein called the Company, and request- ing an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 11, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On July 18, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the A. F. of L. Pursuant to notice a hearing was held on July 25, 1941, at Memphis, 34 N L. R. B, No. 52. 313 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tennessee, before Earle K. Shawe, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Company was represented by the general manager of its Memphis, Tennessee, plant and the A. F. of L. by its general organizer ; both participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of - evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Lehon Company is an Illinois corporation, having its princi- pal, office and place of business in Chicago, Illinois, and operating plants at Chicago and Wilmington, Illinois, and Memphis, Tennessee. At the Memphis, Tennessee, plant, the only one with which we are here concerned, the Company manufactures and sells composition roofing. During the year 1940 the Company purchased raw materials for its Memphis plant amounting to approximately $350,000 in value, approximately 85 per cent of which was purchased outside the State of Tennessee. During the same period the Company manufactured and sold composition roofing amounting in value to approximately $1,250,000, approximately 64 per cent of which was sold and shipped to points outside the State of Tennessee. The Company admits that it is engaged in interstate commerce within the meaning of the Act. H. THE ORGANIZATON INVOLVED A. F. of L. Local 22456 is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. M. THE QUESTION CONCERNING REPRESENTATION On May 30, 1941, the A. F. of L. requested that the Company recognize it as the exclusive bargaining representative of the Com- pany's employees. The Company refused to do so until and unless the Board certified the A. F. of L. as such representative. A state- ment by the Trial Examiner introduced at the hearing shows that THE LEI-ION COMPANY 315 the A. F. of L. represents a substantial number of the employees in the unit alleged to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company and the A. F. of L. agreed at the hearing that the appropriate unit should consist of all production and maintenance employees in the Memphis plant, including those in the roofing de- partment, the shipping department, the asphalt department, and the felt mill, and including watchmen, but excluding supervisory and clerical employees. The Company and the A. F. of L., however, disagreed as to the status of Marvin Phillips and Bennie Phillips; the Company con- tending that these men are not supervisory employees and the A. F. of L. contending that they are supervisors. The two men are inspec- tors on the shingle-cutting machine, one working the day shift, the other the night shift. Their duties consist of inspecting finished shingles, checking defects, and instructing machine operators in the means of remedying defective production. They are. paid the same hourly rate as the men working on the shingle machine and as other production and maintenance workers. They keep a record of the time worked by each man in the shingle department. They have no power to hire or discharge or give efficiency ratings and were char- acterized by the Company at the hearing as " "strawbosses." We find that these men are not supervisory employees and should be included in the appropriate unit. We find that all production and maintenance employees in the Memphis plant, including those in the roofing department, the shipping department, the asphalt department, and the felt mill, and 'The Trial Examiner's statement shows that the A. F. of L. presented 79 application cards bearing genuine original signatures , 69 of which bore the names of persons on the Company's pay roll of July 7, 1941. The pay roll contained the names of 108 production and maintenance employees, 9 supervisory employees , and 4 clerical employees. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including watchmen and shingle-machine inspectors, but excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining. We find further that said unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The A. F. of L. requests that the pay roll immediately preceding the filing of the petition be used to determine eligibility to vote in the election. The Company asks that the pay roll immediately preceding the date of the Direction of Election be used. The Com- pany instituted a second shift in the plant sometime in Julie 1941 and hired 24 new employees at that time . These men have been put to work with older employees on both the first and second shifts. The Company's president testified, without contradiction , that the second shift was made necessary by greatly increased business, and that the new employees are permanent employees. We find that these employees are not merely temporary employees and that they are eligible to vote in the election . 'We shall, in accordance with our usual practice , direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit who were employed during the pay-roll period immediately preceding the date of this Direction of Election, subject to such limitations and addi- tions as are set forth in the Direction of Election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Lehon Company, Memphis, Tennessee, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees in the Melnphis plant of the Company, including those in the roofing department, the shipping department, the asphalt department, and the felt. mill, and including watchmen and shingle-machine inspectors, but exclud- ing supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. THE LEHON COMPANY 317 DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with The Lehon Company, Memphis, Tennessee, 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 Tenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all production,and maintenance employees in the Memphis plant of the Company, whose names appear on the Company's pay roll for the period immediately preceding the date 'of this Direction of Election, including those in the roofing department, shipping department, the asphalt department; and the felt mill, watchmen and shingle-machine inspectors, and employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States or temporarily laid off, but excluding supervisory and clerical employees and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by A. F. of L. Local 22456, for the pur- poses of collective bargaining. MR. EDWIN S. SMITH took no part in the consideration of the above Decision and Direction of Election.