Georgia-Pacific Corp.

National Labor Relations Board - Board DecisionsFeb 9, 1973

201 N.L.R.B. 760 (N.L.R.B. 1973)

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Georgia-Pacific Corporation and International Broth- erhood of Pulp , Sulphite and Paper Mill Workers, AFL-CIO, Petitioner Georgia-Pacific Corporation and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner . Cases 23-RC-3636 and 23-RC-3638 February 9, 1973 DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Decision and Direction of Election by the National Labor Relations Board dated January 31, 1972,1 and Section 102.69 of the Board's Rules and Regulations, Series 8 , as amended, an election by secret ballot was conducted in the above- entitled proceeding on March 1, 1972, and March 2, 1972, under the direction and supervision of the Regional Director for Region 23, among the employ- ees in the bargaining unit set forth in the Decision and Direction of Election. At the conclusion of the election, a tally of ballots was served on the parties showing that of approximately 411 eligible voters, 290 cast valid ballots, of which 123 were for the International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, 75 were for the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and 92 were for neither. There were 2 void ballots and 48 challenged ballots. The challenged ballots were sufficient in number to affect the results of the election. Thereafter, the Employer filed timely objections to conduct of election and conduct affecting results of the election which were subsequently withdrawn by the Employer with the approval of the Regional Director. On March 8, 1972, the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, filed timely objections to conduct of election and conduct affecting the results of the election. In accordance with the Board's Rules and Regula- tions , an investigation of the challenged ballots and the objections of the United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, was con- ducted under the supervision and direction of the Regional Director. The Regional Director deter- mined that the evidence regarding the objections and challenged ballots raised substantial and material issues of fact, credibility, and policy that could best be resolved by of hearing issued for the purpose of taking evidence before a Hearing Officer on a hearing. Therefore, on April 14, 1972, an order directing hearing and notice the issues raised by the objections as well as the challenged ballots. The Hearing Officer was further directed to prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact , and recommendations to the Board as to the disposition of said objections and challenges. Pursuant to the order directing a hearing and notice of hearing, a hearing was held at Huntsville, Texas, on May 3, 1972, before Hearing Officer Dwain Erwin. All parties to the proceeding appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to intro- duce evidence bearing on the issues. On August 14, 1972, Hearing Officer Erwin issued his report and recommendation on objections to conduct of election and challenged ballots. Thereaft- er, the Employer filed exceptions to the Hearing Officer's report and recommendation on objections to conduct of election and challenged ballots with a supporting brief, and the Carpenters filed exceptions to that portion of the Hearing Officer's report relating to his recommendations relating to chal- lenged ballots with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds no prejudicial error was committed. The rulings are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioners are labor organizations claim- ing to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. In its original Decision and Direction of Election, the Board found the following unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's plywood plant and chip'n saw mill in New Waverly, Texas, excluding forestry depart- ment division employees, office clerical employ- ees, guards, watchmen, and supervisors as defined in the Act. The parties do not at this time contest the unit found appropriate herein, and accordingly, the Board reaffirms its finding that the above-described unit is 1 195 NLRB No. 38 201 NLRB No. 89 GEORGIA-PACIFIC CORPORATION appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. The Board has considered the Hearing Officer's report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Hearing Officer, only to the extent consistent herewith. The Hearing Officer recommended sustaining the challenges to the ballots of employees Knierm and McDonald on the ground that they were employed as potential supervisors and that at the time of the election they possessed indicia of supervisory author- ity. The Hearing Officer also recommended sustain- ing the challenges to some 35 employees on the ground that they were prisoners confined in the Texas Department of Corrections, but released therefrom on a daily basis under a work release program, who did not have a sufficient community of interest with the "free world employees," citing National Welders Supply Company, Inc., 145 NLRB 948. The Hearing Officer, relying on his recommen- dation that the challenges to the ballots of the prisoners be sustained, also found it unnecessary to make specific rulings on Objections 1 through 5, filed by the Carpenters, involving certain factors relating to election campaigning among the prisoner-employ- ees. We do not agree with these conclusions. The record shows that the prisoner-employees are all convicted felons who have less than 18 months left to serve on their respective sentences. Their selection for employment by the Employer was made solely by the Employer following personnel-type interviews at the prison.2 All of the prisoners can retain their employment after they have been released; they work the same hours as regular employees under the same supervision, they share the same break and lunch period privileges as other employees, they are assigned to various work functions without distinction because they are prisoners, and they wear clothes similar to the other employees; decisions as to promotions, demotions, discharge, and wage increases are made exclusively by the Employer without regard to their status as prisoners; they are allowed to work overtime if transportation back to the prison can be arranged, and they receive the same holiday and vacation benefits as the free world employees and participate in the same retirement program. In addition their dependents are eligible to participate in the Employ- er's health insurance program, the prisoners them- selves can participate in the Employer's life insur- ance program, and, although they are brought to the Employer's premises each day by prison bus in the 2 Their eligibility for employment was first decided by the Department of Corrections after considering each prisoner's remaining sentence, the circumstances surrounding his original conviction , possibility of escape, 761 company of a prison security guard, the guard's only function is to make periodic checks to ascertain that they are all present and accounted for. The guard exercises no supervisory authority over the prisoner- employees during their normal working hours. In our decision in National Welders Supply Compa- ny, Inc., supra, we found that two employees on work release programs through the North Carolina De- partment of Corrections did not have a sufficient community of interest with the "free-world" employ- ees. There, however, they were paid only the starting wage rate, there was no plan for advancement in wages or positions, they could not work overtime, and their continued employment was conditioned not only on the Employer's satisfaction with their work as is the case in the instant case, but also on whether or not their prison supervisors considered their progress satisfactory. In our opinion, this case more closely parallels our decision in Winsett-Sim- monds Engineers, Inc., 164 NLRB 611, where the work release prisoner-employees were completely integrated into that employer's labor gangs enjoying the same wages, hours, conditions of employment, and fringe benefits as the regular employees. In Winsett-Simmonds, we stated that the critical test is that an employee's community of interest with his fellow employees depends on his status while in the employment relationship and not on what ultimate control he may be subjected to at other times. In the instant case, the record reveals an almost total assimilation of the prisoner-employees into the Employer's production and maintenance work force, and at least two of the prisoners, now released, continued in the Employer's employment. As these prisoner-employees enjoy the same wages, hours, and conditions of employment including participation in all of the Employer's fringe benefit programs, and work side by side with and are subject to the same supervision as the "free-world" employees while in the employment relationship, we find that they have a substantial community of interest with the remain- ing employees in the unit and that they are entitled to vote in the appropriate unit.3 Accordingly, we overrule the challenges to their ballots and shall direct that their ballots be opened and counted. As to employees Knierm and McDonald, the record shows that both were hired in the utility classification in 1971. Knierm was hired October 4, 1971, and promoted to pressman on October 14, 1971. McDonald was hired April 16, 1971, and promoted to lathe operator in May of 1971. Both individuals worked in their respective positions both on the eligibility date and on March 1 and 2, the removal of dependents from state welfare rolls, and the ability of the prisoner to save money. 3 Winseu-S,mmonds Engineers, Inc, supra. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election dates. Both were also promoted to superviso- ry status on April 1, 1972, 1 month after the election. Although they now admittedly are supervisors within the meaning of the Act, the record fails to disclose any evidence that prior to their promotion they were involved in any supervisory training program or that they were in any way held out to be potential supervisors by the Employer. In addition, the record fails to disclose that either individual at any time prior to the election possessed or exhibited any of the indicia of supervisory authority. In these circum- stances we find, contrary to the Hearing Officer, that they were eligible to vote in the election and, accordingly, we shall direct that their ballots be opened and counted .4 The Objections In his report, the Hearing Officer recommended that Objections 1 through 5 were insufficient to warrant setting aside the election since each of the objections related to campaigning among the prison- er-employees, all of whom he had recommended be excluded from the unit. In view of our ruling herein that the prisoner-employees are eligible to vote and that their ballots should be counted, we have carefully reviewed the record with regard to these specific objections. We are of the opinion, and so find, that the objections do not raise any issues supported by the record that would warrant setting aside the election at this time, and, accordingly, adopt the Hearing Officer's recommendation that the objections be overruled in their entirety. 4 Hilton -Burns Hotel Co, 167 NLRB 221 See also Brooklyn Borough Gas Company, 110 NLRB 18 DIRECTION It is hereby directed that, as part of the investiga- tion to ascertain a representative for the purpose of collective bargaining among certain employees em- ployed by Georgia-Pacific Corporation, in the unit set forth herein , the Regional Director for Region 23 shall, pursuant to the Board 's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots of Lewis Brown , Ismael Hernandez, John Lewis, Russell Johnson, John Lawhorn, John Knierm, James McDonald, and all of the prisoner -employees whose names appear on the list included in the Notice of Hearing issued by the Regional Director on April 14, 1972, and, thereafter, prepare and cause to be served on the parties a revised tally of ballots including therein the count of said ballots. IT IS FURTHER DIRECTED that as none of the choices on the ballot can receive a majority of the valid votes cast, the Regional Director for Region 23 shall conduct a runoff election at a time and place to be determined by him, among certain employees of the Employer who were employed during the payroll period used in the prior election , in the unit found appropriate herein , to determine whether or not the employees in question desire to be represented for purposes of collective bargaining. IT IS FURTHER DIRECTED that as the challenged ballots are sufficient in number to affect the total votes cast for each choice on the ballot , the Regional Director for Region 23 shall determine which two choices on the ballot received the highest number of votes and place these two choices on the ballot in the runoff election according to the number of votes each of these two choices received.