Colonial Hardwood Flooring Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1944

56 N.L.R.B. 1875 (N.L.R.B. 1944)

In the Matter of COLONIAL HARDWOOD FLOORING Co., INC. and UNITED
FURNITURE WORKERS OF AMERICA, CIO , LOCAL 472,
Case No. 5-R-1309.-Decided June 30, 1944
Mr. Herinan Goldberg, for the Board.
Mr. William A. Danger, of Hagerstown, Md., for the Company.
Messrs. Abe Klein, Norman Reeder and Robert Brylke, of Hagers-
town, Md., for the CIO.
Mr. Albert K. Plone, of Camden, N. J., and Mr. E. W. Butler, of
Hagerstown, Md., for the Teamsters.
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION-
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a,petition duly filed by United Furniture Workers of America,
CIO, Local 472, herein called the CIO, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Colonial Hardwood Flooring Co., Inc., Hagerstown, Maryland,
herein called the Company, the National Labor Relations Board pro-
vided for-an appropriate hearing upon due notice before Ear1e'K.
Shawe, Trial Examiner. Said hearing was held at Hagerstown, Mary-
land, on May 2, 1944. ' The Company, the CIO, ' and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 992, AFL, herein called the Teamsters, appeared
and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. \Tlie Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
All,parties were afforded an opportunity to file briefs with the Board.
The Teamsters filed a brief, moving for a dismissal 'of the petition.
For reasons stated in Section III, hereinafter, the motion is hereby
denied. -
56 N. L . R B., No 328.
1875
1876, DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
Upon the entire record-in,the case, the Board makes-the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Colonial Hardwood Flooring Co., Inc., a Maryland corporation, is
engaged in the manufacture of wood products at a plant in Hagers-
town, Maryland. The Company annually purchases raw materials
valued at approximately $75,000, of which in excess of 50 percent is
shipped from points outside the State of Maryland.' During the past
year, the Company produced finished products valued at approxi-
mately $390,000, of which in excess of 50 percent was shipped to points
.outside the State of Maryland. The Company concedes, and we find,
that it is engaged in commerce within the meaning of the National
Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Furniture Workers of America, Local 472, affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & 'Helpers of America, Local 992; affiliated with the American
Federation of Labor, is a labor organization admitting to membership-
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 9, 1944, the CIO advised the Company by letter that it
represented a majority of the production and maintenance employees,
and requested recognition as their exclusive bargaining representa-'
tive and a conference for the purpose of negotiating a collective bar-
gaining agreement. The Company failed to reply to the letter and
thereafter refused to meet with representatives of the CIO, on. the
ground that its contract with the Teamsters constituted a bar to the
recognition of any other labor organization. The contract asserted
as a bar was executed on August 20, 1942, and provided for a term of
1 year. In August 1943, it was renewed for an additional 1-year term
and will therefore remain in effect until August 20, 1944. The CIO
contends that the Teamsters is dormant and that, for this reason, its
contract constitutes no bar to a present determination of representa-
tives.
The record suggests, but does not disclose with sufficient clarity,
that the Teamsters has ceased to function effectively, as alleged. We
note, however, that the contract-will terminate on August 20, 1944.
COLONIAL HARDWOOD FLOORING CO., INC. 1877,
Since an elect-ion conducted at this time-in accordance with our custo-
mary procedure would result,in a certification shortly before the ex-
piration of the contract, we find that the contract is not a bar to a
present determination of representatives for the purpose of negotiat-
ing a new contract to succeed the contract now in effect.'
In its brief, the Teamsters moved for a dismissal of the' petition, on
the ground that there is pending before the National War Labor Board
its petition for a wage increase for the employees involved herein.
We have heretofore denied this motion for, as we have frequently de-
elared, the mere pendency of a petition before the National War Labor
Board does not operate to divest this Board of jurisdiction in a repre-
sentation proceeding.2
A statement of a Field Examiner, introduced into evidence at the
hearing, indicates that the CIO represents a substantial number- of
employees in the unit hereinafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The CIO contends that the bargaining unit should consist of all
production and maintenance employees of the Company, including -
truck drivers , automobile mechanic, shipping clerk, gang , leaders and
firemen-watchmen , but excluding salesmen, managers, and clerical and
supervisory employees . The Teamsters urges the establishment of two
separate bargaining units: ( 1) all truck drivers, the shipping clerk,
and the automobile mechanic, and ( 2) all production and maintenance
employees including inspectors , gang leaders , but excluding watchmen-
firemen, salesmen , managers , clerical and supervisory employees, truck
drivers, shipping clerk, and automobile mechanic . The Company is
in agreement as to the units proposed by the Teamsters , except that it
would exclude inspectors from the production and maintenance unit.
The Company is engaged in the manufacture of various wood prod-
ucts such as flooring , interior work for houses, benches, desks, and
kitchen -cabinets. Its operations consists of (1) a mill division where
the lumber is rip-sawed, planed , filed, joined , and finished ; ( 2) a floor-
ing department , where flooring molding , stair and treads, and risers
i See Matter of Houde Engineeiing Corp., 38 N. L. R B. 587; Matter of Chrysler Motor
Parts Corporation, 38 N. L. R B. 1379.
2 See Matter of American Finishing Company, 52 N. L. R B. 996, and cases cited therein.
3 The Field Examiner reported that the CIO submitted 30 authorization cards, all of
which bore apparently genuine original signatures , that the names of 30 persons appearing
on the cards were listed on the Company's pay roll of March 30, 1944, which contained
the names of 40 employees in the appropriate unit; and that the cards were dated in
February and March 1944. The Teamsters relies upon its contract with the Company to
establish its interest in this proceeding
1878 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
are manufactured; (3) a trimming department, where all types of
molding and re-saw are manufactured; (4) a yard, where the lumber
is stacked, tallied, loaded and unloaded, and dried. All'of these opera-
tions are conducted in one enclosure covering about 3 acres and they
constitute an integrated unit. The Company also maintains a fleet
of trucks which are employed to haul lumber into the plant and to
deliver the finished products. - -
The Company began operations in 1933, but there was no organiza-
tion among its employees until 1941 when the Teamsters instituted
its organizational activity. On August 20, 1941, the Teamsters and
the Company entered into two separate collective bargaining agree-
ments. One of these agreements covered the truck drivers and, pro-
vided for a term'of 1 year, with automatic renewal for an additional'
year in the absence of a notice of intention to terminate served by either
party upon the other at least 30 days prior to August 20, 1942. The
other contract covered the production and maintenance employees and
provided for a term of 1 year. On August 20, 1942,. the Teamsters and
the Company entered into a new ;agreement, covering both the pro-
duction and maintenance employees and the'truck drivers, and pro--
viding for a term until August 20, 1943. In August 1943, this agree-
ment was extended for an additional 1-year period. It is the conten-
tion of the CIO that, since August 20, 1942, collective bargaining
among the Company's employees has been, conducted upon the basis
of a single plant-wide unit which included the truck drivers, and that
the Board ought not to disturb this collective bargaining relationship
by now establishing two -separate -units. The Teamsters contends, on
the other hand, that, beginning in August 1941 and continuing down
to the present, collective bargaining has been conducted upon the basis
of the two separate units which it proposes to establish, herein; that
the agreement of 1942, although covering both production and main-
tenance employees and truck drivers, does not constitute bargaining on
a basis of a single plant-wide unit because the circumstances surround-
ing the execution, the terms of the agreement itself and subsequent
bargaining practice under the agreement indicate that these two groups
of employees, although covered by a single contract, -continued to be
treated as'separate units. We find it unnecessary to resolve this issue
for even if it be assumed that the CIO is correct in its characterization
of the past bargaining,' we are of,the opinion that this factor is not
decisive of the unit issue in the instant case. -
Historically, over-the-road or outside truck drivers belong to a ,
clearly defined craft 4 and their interests are identified with the busi-
ness of transportation rather than 'with the particular industry which
i
4 See Matter of Federal Telephone and Radio Corporation , 49 N. L. R. B. 938.
COLONIAL HARDWOOD FLOORING CO., INC. 1879
they serve. Thus, in the instant case , the truck drivers are engaged
solely in hauling raw materials to the plant and delivering the finished
product to the Company 's customers ; most of their time is spent on
the road where,their interests and problems are clearly distinct from
those ,of the production and maintenance employees . Their sole con-
cern is with the operation and safety of the vehicles and of the goods
entrusted to them for transit and , delivery.. In carrying out their
peculiar duties, they are subject to Federal and State legislation and
regulatory provisions which do not affect other employees. Thus,
in the Teamsters ' current agreement with the Company , there is the
following provision :
It is further provided that should the I. C. C. (Interstate Com-
merce Commission ) regulations revise'downward the number of
daily and weekly hours of truck drivers; then this paragraph is
amended in accordance herewith.
While the services of the truck drivers are essential to the Company's
operations , their functions are not integrated with those of the pro-
duction and maintenance employees . Unlike the production and main-
tenance employees who are supervised by superintendents in the mill,
the truck drivers receive their orders and instructions directly from
their own supervisor in the Company's front office. The unique posi-
tion of the drivers in the Company 's operations has also been taken
into account in the agreements of 1942 and 1943 which contain many
special provisions relating solely to this employee group, while the
remaining employees are covered by clauses of general application.'
These facts make it clear that the truck drivers constitute a separate
and homogeneous group with distinct functions and interests. It is
for these reasons that we have found it unnecessary to determine the
character of the past bargaining, for, although we have often given,
weight to bargaining history in determining the scope of employee
units, "this factor is not of itself conclusive when, as here , . . . there
is a manifest overbalance of considerations which militate in favor
of establishing a different unit." 6 In view of these special circum-
stances, we are of the opinion and find that the truck drivers constitute
a separate unit appropriate for the purposes of collective bargaining.
We are also of the opinion and find that the production and main-
tenance employees constitute a separate unit appropriate for the
purposes of collective bargaining.
All parties are agreed , and we find , that managers , salesmen, super-
intendents , assistant superintendents , and 'office employees should be
excluded from the production and maintenance unit. The parties
5 Cf. Matter of Jones and Laughlin Steel Corporation , 54 N. L. R. B 679. ,
0 See Matter of Sutherland Paper Company, 55 N L It. B. 38, and cases cited therein.
groups of 'employees :
Tatchmen-firemen: The CIO desires their inclusion in the pro-
duction and maintenance unit while the Teamsters and the Company
are opposed. The Company employs two or three -,w-atclunen-firemen
and their general duties consist of patrolling the plant and maintain-
ing fire in the boilers. They are hourly paid, do not engage- in pro-
duction work, are under the supervision of the office as distinguished
from the mill, and have been excluded from the Teamsters' contracts.
In view of these facts we shall exclude them from the unit.
Inspectors: The CIO and the Teamsters desire their inclusion in
the production and maintenance unit, and the Company is opposed.
The Company employs two persons classified as inspectors. Their
duties consist of grading and tallying the lumber which is brought
into the Company's plant. They are each assisted by two helpers
who handle the lumber, but they have no authority to make recom-
mendations regarding changes in the status of any employee. They
are paid on an hourly basis, receive substantially the same wages as
other production employees, are supervised by the mill superintendent,
and have been included in the Teamsters' contracts. Upon the basis
of these facts, we shall include inspectors in the production and
maintenance unit.
Shipping Clerk: The Company has in its-employ one person classi-
fied as shipping clerk. His duties' consist of preparing orders for
shipment and assisting in the loading and unloading of the trucks.
He is under the same supervision as the drivers. The Teamsters and
the Company seek his inclusion in the truck driver's unit, while, the
CIO would include him in the production and maintenance unit. We
shall include him in the truck drivers' unit, for we are of the opinion
that his duties and interests ally him more closely with the drivers
than with the production and maintenance-employees.
Automobile Mechanic: The Company employs one automobile
mechanic whose sole duty consists in maintaining the Company's fleet
of trucks. He is hourly paid and`is under the same supervision as the
drivers. Accordingly, we shall include him in the unit of truck
drivers.
We find that all production and maintenance employees, including
inspectors and gang leaders, but excluding managers, salesmen, truck
drivers, the shipping clerk, the automobile mechanic, watchmen-fire-
men, office employees, superintendents, assistant superintendents, and
all other supervisory employees with authority to hire, promote, dis-.
1880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are also agreed, and we find, that gang leaders (or pushers) should be
included in the production and maintenance unit: = The record dis-
closes that these employees possess no supervisory authority.
The parties are in disagreement with respect to the following
COLONIAL HARDWOOD FLOORING CO., INC. 1881
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
We further find that all truck drivers, the shipping clerk, and auto-
mobile mechanic, excluding all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the' status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
.within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units, who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tions herein, subject to the limitations and additions set forth in the
Direction.,
DIRECTION OF ELECTIONS
By Virtue of and pursuant to the power vested in the National Labor
Relations' Board by Section 9 (c) of the National Labor Relations
Act, and Pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purpose of collective bargaining with Colonial Hardwood
Flooring Co., Inc., Hagerstown, Maryland, elections 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 super-
vision of the Regional Director for the Fifth Region, acting in this
matter as agelit for the National Labor Relations Board, and subject
to Article III.-Sections 10 and 11, of said Rules and Regulations,
among the employees in the units found appropriate in Section IV,
abo\ e, and set out below, who wel'e employed during the pay-roll
period immediately. preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not. been rehired or
reinstated prior to the date of the elections;
At the hearing, the Teamsters and the CIO requested that thee{ names appear on the
ballots as hereinafter set forth in the Direction of Elections.
1882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
I
(1) All production and maintenance employees, including inspec-
tors and gang leaders, but excluding truck drivers, shipping clerk,
automobile mechanic, watchmen-firemen, office employees, managers,
salesmen, superintendents, assistant superintendents, and all other
.supervisory employees with authority to hire, promote, discharge,'
discipline or otherwise effect changes in the status of employees or,
effectively recommend such action, to determine whether 'they desire
to be represented by the CIO, or by International Brotherhood of
'Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
'992, AFL, for the purposes of collective bargaining, or by neither;
(2) All truck drivers, the shipping clerk, and automobile mechanic,
excluding all supervisory employees with authority to hire, promote,
•dischar'ge, discipline,' or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, to determine whether
they desire to be represented by the CIO, or by International Brother--
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local 992, AFL, for the purposes of collective bargaining or by neither.
4