Southern Wood Preserving Co.

National Labor Relations Board - Board Decisions

Nov 28, 1941

37 N.L.R.B. 25 (N.L.R.B. 1941)

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.