Southern Wood Preserving Co.

In the Matter Of SOUTFIERN WOOD PRESERVING COMPANY and DIS- TRICT 50, UNITED MINE WORKERS OF AMERICA, AFFILIATED WITH TIIE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-3001.-Decided November 08, 1941 Jurisdiction : lumber industry. Investigation and Certification of Representatives : existence of question; re- fusal by Company to negotiate with petitioning Union until majority repre- sentation is proven ; contract with rival union executed after filing of petition held no bar; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees of the Company, including part-time employees, but excluding clerical and supervisory employees and watchmen. Mr. Grover Middlebrooks, of East Point, Ga., for the Company Mr. William E. Mitch and Mr. N. B. Maxwell, of Birmingham, Ala., for the U. M. W. A. Ivey cC Nathan, by Mr. Irving S. Nathan, of Atlanta, Ga., for the I. U. 0. E. Ann bandy Wolf, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 18, 1941, District 50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations,' herein called the U. M. W. A., filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Southern Wood Preserving Company, East Point, Georgia, herein called the Company, and requesting an investi- gation and certification of representatives pursuant,to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 15, 1941, the National Labor Relations Board, ' The name of the petitioning union was erroneously designated in the petition as United Chemical Workers of America ; pursuant to a motion granted at the hearing, District 50, United Mine Workers of America was substituted as the correct name of the union. 37 N L. R. B., No. 6. 25 26 DECISIONS OF 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. - Or October 23,,1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the U. M. W. A., and the International Union of Operating Engineers, Local No. 926, affiliated' with the American Federation of Labor, herein called the I. U. O. E., a labor' organization claiming to repre- sent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on October 29, 1941, at Atlanta, Georgia, before John C. McRee, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the U. M. W. A., and the I. U. O. E. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence was afforded all parties. At the beginning of the hearing, the Atlanta Federation of Trades filed a motion to intervene. The Trial Examiner denied the motion.2 During the course of the hearing the Trial Examiner made several `other rulings on motions and objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that,no prejudcial 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 Southern, Wood Preserving Company is a Georgia corporation with its-principal office and place of business in East Point, Georgia. The Company ,is engaged in processing lumber and lumber products. Its gross • sales of ' finished products amount to about $1,735,000 .annually, 90 per cent of which is shipped to points outside Georgia. The Company imports approximately 50 per cent of its raw materials from States other than Georgia.' 2 On November 7, 1941, the Atlanta Federation of Trades filed exceptions to the ruling of the Trial Examiner denying its motion to intervene On November 8, 1941, the U.'M. W A filed an answer thereto The Board has considered the exceptions and finds them without merit and finds that the Federation has no interest herein , inasmuch as it did not purport to represent any employees directly affected by the investigation and did not show any interest in the establishment of the ' appropriate unit. SOUTHERN WOOD PRESERVING COMPANY . 27 H. THE ORGANIZATIONS INVOLVED District, 50, United Mine Workers of America, is a labor orgalii- zation affiliated with the Congress of Industrial Organizations, ad- mitting to membership employees of the Company. International Union of Operating Engineers, Local No. 926, is a labor organization affiliated with the American Federation of Labor, admitting to membership, employees of the, Company. III. THE QUESTION CONCERNING REPRESENTATION On September 17, 1941, the U. M. W. A. sought to bargain with the Company. The Company refused to bargain until the U. M. W. A. proved its claim that it represented the majority of'-the Company's employees. On September 23, 1941, the U. M. W. A. filed its petition for investigation and certification and gave notice thereof to the Com- pany. On September 29, subsequent to the attempt of the Regional Director to bring about an agreement for a consent election, the Company entered into a closed shop contract with the I. U. O. E. covering all employees 3 The I. U. O. E. now contends that this contract precludes the Board from ordering an election. Inasmuch as the contract was executed after the petition was filed, it does not operate as a bar to a present determination of representatives., It appears from a statement made by the Regional Director, who examined the application cards submitted by the U. M. W. A., that the U. M. W. A. represents a substantial number of the Company's employees in the unit hereinafter found 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 com- merce and the free flow of commerce. 3 The I U 0 E had two previous closed-shop contracts with the Company applicable to the white employees only, and one applicable to the colored employees Matter of Radio Wire Television, Inc. and Local 480, United Electrical, Radio & Machine Workers of America, C. 1 0, 30 N. L R B, No 131. 5A comparison of the 202 application cards submitted , all dated between August 15 and October 1, 1941, and the Company's October 26, 1941, pay roll revealed that 168 of the Company 's 269 employees signed application cards for the U. M. W. A. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT In its petition,, as amended at the hearing, the U. Al. W. A. claims that the appropriate unit consists of all production and maintenance employees of the Company, including all part-time employees and watchmen, but excluding clerical and supervisory emmployees. The I. U. O. E. contends that the skilled and the unskilled workers should constitute separate units. The Company takes no position with re- spect to the unit. , The I. U. O. E. claims that the two units it proposes are appro- priate because one would be limited to skilled employees and the other would include the unskilled employees. Although the I. U. O. E. entered into separate contracts with the Company covering employees allegedly confined to these two categories, the I. U. O. E. has organized all employees and the last contract between the I. U. O. E. and the Company is plant wide and embraces all employees, skilled and unskilled. Under these circumstances, we find no merit in the con- tention of the I. U. O. E. for two separate units.' The I. U. O. E. further contends that the watchmen should be excluded from the appropriate unit. The Company employs three night watchmen. The watchmen were not covered in any of the 1. U, O. E.'s contracts with the Company. We shall accordingly exclude them from the unit. All the parties agreed, and we find, that two "pensioners," Floyd Darden and George Churn, should be excluded from the unit. We find that all production and maintenance employees of the Company, including all part-time employees but excluding watch- men, clerical and supervisory employees, Floyd Darden and George Churn, constitute a unit appropriate for the purposes of collective bargaining. We further find that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. 8 The proposed skilled unit would be limited to white employees only, whereas the un- skilled unit would include colored employees only. The record does not clearly show any differentiation in functions which would constitute a basis for the segregation of white and colored employees into separate bargaining units See Matter of Aetna Iron & Steel Co and International Association of Bridge, Structural and Ornamental Iiomworl,ers Local No 644, affiliated with the A F. of L, 35 N L R B , No 26; Matter of American Tobacco Co , Inc and Committee for Industrial Organization, Local No 472, 9 N. L R B. 579; Matter of Union Envelope Co and Envelope Workers Union No. 393, 10 N. L. R. B 1147; Matter of Floyd A Fridell and Granite Cutters' International Association of America, 11 N L R , B 249 ; Matter of Interstate Granite Corporation and Granite Cutters' Inter- national Association of America, Charlotte Branch, 11 N L R B 1046; Matter of Brashear Freight 'Lines, Inc. and International Association of Machinists, District No: 9, 13 N. L R B. 191. SOUTHERN WOOD PRESERVING COMPANY 29 VI. DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot and we shall so direct. The U. M. W.'A. requests that eligibility to vote be determined on the basis of the Company's pay roll prior to the filing of the petition. The I. U. O. E. would have eligibility determined by reference to a current pay roll. There appears to be no reason for departing from our usual custom. We shall direct that all employees in the appro- priate unit i whose names appear on the Company's pay roll for the period immediately preceding the date of this Direction of Election, .'ubject to the limitations and additions set forth in said Direction, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire : record in the case, the Board makes the following: CONCLUSIONS oE` LAW 1." A question affecting commerce has arisen concerning the repre- sentation of employees of Southern Wood Preserving Company 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 of the Company including all part-time employees but excluding watchmen, clerical and supervisory employees, Floyd Darden and George Churn, con- stitute a unit appropriate for the purposes of collective bargaining. 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 Southern Wood Preserving Company, East Point, Georgia, 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 Rela- tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees of the Company whose names appear on the Company's pay roll for the 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period immediately preceding the date of this Direction, including all part-time employees, and all such employees who were not on such pay roll 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 watchmen, clerical and supervisory employees, Floyd Darden and George Churn, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by District 50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, or by Inter- national Union of Operating Engineers, Local No. 926, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. In the Matter Of SOUTHERN WOOD PRESERVING COMPANY and DISTRIOT 50, UNITED MINE WORKERS OF AMERICA, AFFILIATED WITH THE CON- GRESS OF INDUSTRIAL ORGANIZATIONS Case No. 8-3231 SUPPLEMENTAL DECISION AND AMENDMENT TO DECISION AND DIRECTION OF ELECTION December 18, 1911 On November 28, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, the election to be conducted as early as possible but not later than thirty (30) days from the date of the Direction of Election, under the direction and supervision of the Regional Director for the Tenth Region. On December 6, 1941, Dis- trict 50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, herein called the U. M. W. A., filed a motion to amend the said Decision and Direction of Election so as to provide that eligibility to vote be determined by reference to an earlier pay-roll date. On December 11, 1941, the Board issued and duly served on the parties a notice that, unless sufficient cause to the contrary were shown, the Board would on December 15, 1941, or as soon there- after as convenient, amend its Decision and Direction of Election in certain specified respects. On December 15, 1941, International Union of Operating Engineers, Local 926, herein called the I. U. O. E., filed objections to the proposed amendment, and the U. M. W. A. filed an answer to the said objections. The Board has considered the objections and answered thereto, and finds that the objections are without merit. No sufficient cause to the contrary appearing, the Board hereby amends the Decision and Di- rection of Election dated November 28, 1941, by striking the second paragraph of Section IV of said Decision and substituting therefor the following paragraph and footnote : 137 N L R B ., No. 6. 37 N. L. R. B. , No. 6a. 31 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The U. M. W. A. requests that eligibility to vote be determined on the basis of the Company's pay roll prior to the filing of the petition. The I. U. 0. E. would have eligibility determined by reference to a current pay roll. In view of the closed-shop con- tract entered into by the Company and the I. U. 0. E. on Septem- ber 29, 1941, after the petition herein had been filed, of which the Company and the I. U. 0. E. had notice, we shall direct that all employees in the appropriate unit whose names appear on the pay roll for the period immediately preceding September 29, 1941, subject to the limitations and additions set forth in said Direction, shall be eligible to vote in the election.7 and (2) by striking the following words from the Direction: "whose names appear on the Company's pay roll for the period imme- diately preceding the date of this Direction," and substituting therefor the following words : "whose names appear on the Company's pay roll for the period immediately preceding September 29, 1941". 7 Matter of Radio Wire Television Inc and Local 1130, United Electi teal, Radio & Machine Workers of America, C. I. 0 , 30 N. L. R B , No 131.