Cummer-Graham Co.

National Labor Relations Board - Board Decisions

Apr 26, 1947

73 N.L.R.B. 603 (N.L.R.B. 1947)

In the Matter of CUMMER- GRAHAM COMPANY; EMPLOYER and INTER-
- NATIONAL WOODWORKERS OF AMERICA, 'CIO, PETITIONER
Case No. 16-R-2065.-Decided April 06, 19-117
Mr. O. B. Fisher, of Paris, Tex., for the Employer.
Mr. TV. E. Keeter, of Dallas, Tex., for the Petitioner.
Mrs. Platonia P. Kaldes, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Upon a petition duly filed, the National Labor Relations Board on
November 19, 1946, conducted a prehearing election among the em:'
ployees of the Employer in the alleged appropriate unit, to determine
whether or not they desired to be represented by the Petitioner for
the purposes of collective bargaining.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that there were approxmiately 375 eligible
voters, of whom 257 cast ballots ; that 203 of the ballots cast were for,
13 against, the Petitioner, and 41 were challenged.
Thereafter, a hearing was held on December 12 and 13, 1946, at
Beaumont, Texas, before Glenn L. Moller, hearing officer. The hear-
ing ofhcer's rulings made at the hearing are free from prejudicial error
and ale hereby affirmed. At the hearing, the Employer moved to
dismiss the petition on the grounds that the unit was inappropriate
and that the election was improperly conducted. The motion was
referred to the Board. For the reasons hereinafter set forth, the
motion is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
'The Employer claimed at the hearing, in objecting to the publication of the Tally of
Ballots, that the Tally had incorrectly stated the number of eligible voters to be 375, when
it allegedly should have stated the number to be 310 The Petitioner obtained a majority
of the votes, whether the number be 310 or 375, as asserted by the Employer Accord-
ingly, we find no merit to this objection we note, in this connection, that the Tally, as
published, was signed by the Employer's observer as being coo rect
73 N. L R. B, No. 116.
603
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Cummer-Graham Company is a Texas corporation with its principal
office at Paris, Texas. It operates plants at Paris, Beaumont, Long-
view, and Mineola, Texas, and at Hornbeck, Louisiana, where it is
engaged in the manufacture and sale of wooden boxes, baskets, crates,
containers, lumber, and veneer. Only the Employer's Beaumont oper-
ations are here involved. The Employer annually receives at its Beau-
mont operations from'points outside the State of Texas raw materials
valued in excess of $10,000; its annual-productioni is valued in excess of
$100,000, more than 25 percent of which amount, in value, is shipped
to points outside the State of Texas. -
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Congress of
kdustrial Organizations, claiming to represent employees of the
Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
-Petitioner has been certified by the Board in an appropriate unit. -
We find that a question affecting 'commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
, The Employer's Beaumont operations iiielude a sawmill, a veneer
plant, a box and crate factory, a wife bound box factory, and a "log-
ging company." The Petitioner-seeks to represent all production and
maintenance employees in these' operations, excluding office and cleri-
cal employees, the employees of the division designated as the "logging
company," and all supervisory employees. -
The Employer agrees that its "logging company" employees should
be separated from the others sought by the Petitioner; 2 it contends,
however, that the employees of the sawmill, the veneer plant, the box
and crate factory, and the wire bound box factory, respectively, should
be established into four separate units. The Employer -also contends
2 It claims that the "logging company" employees should constitute a separate unit
No union is here seeking to represent these employees and, accordingly, no question con-
cerning their representation is before us
CUMMER-GRAHAM COMPANY 605
that, in any event, the sawmill operator, the saw filer, the machinist's
helper or welder,3 and the log scaler possess supervisory status and
should be excluded. The Petitioner seeks to include all of the above,
except the log scaler, as to whose inclusion it takes no position. The
parties agree that the general superintendent of the plant, the mana-
gers and assistant managers of the box and crate factory and of the
wire bound box factory, as well as the veneer plant manager, the plant
engineer, the millwright, and the carloader are supervisory employees
and should be excluded from the unit. %
The record shows that the employees of the four divisions, which
the -Petitioner would merge into a single unit and the Employer would
segregate into four separate units, perform their work together ,on
two plots of ground separated by a public'street. On one plot there
is a drying yard and a small building where automobile supplies are
stored. On the other plot there are several warehouses, an office build-
ing, a maintenance shop and boiler house, a log yard, and a large-
building which houses the bulk of the actual production operations of
the sawmill, the veneer plant, the box and crate factory, and the wire
bound box factory. All four divisions are under the over-all supervi-
sion of the general production superintendent and manager of the
Beaumont operations or his assistant.4 The production operations
of all four divisions are integrated and together constitute a continuous
process. Thus, the logs, which are brought in from the woods or
purchased from outsiders, are first stacked in the log yard adjacent to
the sawmill and veneer plant; they are drawn into the veneer plant
where they, are cut by a lathe process into thin veneer sheets and dried
in a dry-kiln, and the centers or cores then taken into the sawmill and
sawed into slabs-which are later cut into proper sizes to form the end
df the boxes and crates. The parts produced by the sawmill and the
'veneee plant are then finally assembled and made up into the Em-
ployer's finished products in the box and crate factory and the wire
bound box factory. The same maintenance employees and a single
administrative office service all the divisions. All employees are on a
single pay roll and while, within the office, this pay roll is divided
departmentally, the time cards used by the employees are not depart-
mentally divided. There is frequent interchange of personnel in the
various divisions except for 'a few skilled .jobs where interchange is
not feasible.
Upon all the foregoing facts, including the functional and adminis-
trative interdependence of the employees of the Employer's Beaumont
operations, with the exception of the "logging company," we find that
3 Faulk , the employee in question , is referred to in the record both as a machinist 's helper
and as a weld'cr
' While separate managers or assistant managers are in immediate charge of the wire
bound box factory, the box and crate factory, and the veneer plant, all these officials are
responsible to the general production superintendent of his assistant
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit'of all these employees is more appropriate than separate units
for each of the operating divisions.5
There remain for'consideration the'specific categories of employees
about whose supervisory status the parties are in dispute.
The sawmill operator; one Grafter Daniel, is employed in the saw-
mill division together with.about 11 other employees. He is engaged
in operating the, power- driven saw which cuts cores of lumber into
the slabs used by the box and crate factory while the other employees
are variously engaged in tasks relating either to the process of keep-
ing him supplied with logs to run through the sa,v or clearing the saw
of 'the cut slabs and carting them away from the department. All the
employees of this division, including. the .sawmill operator, are paid
on an hourly basis with an additional bonus calculated on a divisional,,
rather than ari individual, basis for high production performance.
To maintain the division's production, it is essential-that all em--
ployees must work in close cooperation, for laxity of any one of'them
will cause the others to fall behind and will affect the pay of all. If
all the employees keep up with their' work, Daniel is kept constantly
busy at the saw and has little time to do anything else. -In the event
a man falls behind or the crew is shorthanded Daniel may and does
' report these facts to his immediate superior, then assistant manager of
the plant; who acts upon such a report either by transferring the man
complained of out of the division or by hiring a lean to fill the shortage
in the, crew. However, Daniel's activities in making reports of th
nature set forth above do not appear to be carried on as part of regu-,
larly assigned supervisory duties,-for the record shows that other em-
ployees in the crew have complained to the assistant manager either
that a fellow worker is lax or that the crew is shorthanded, and that
such reports are made in the interest of receiving the production bonus.
While the Employer asserted that Daniel is in charge of the sawmill s-
and that, in at least one instance, he had recommended a particular
man to be hired, the record shows that Daniel has never been told by
any of the Employer's officials that he. has supervisory duties and
that .he has never considered himself to be a "boss," and there is no
eN idence that he is so considered by the employees in his crew. He
testified without contradiction-that lie has never been directed to in-
struct any employee in` the proper, performance of his duties, that no
S See Matter of Grammer-Grahana Go, 71 N L R B 289, whereupon similar facts we-
rejected the Employer's • proposal that its Paris operations be separated into divisional
units
° Although, unlike the other three divisions, these is no separate manager assigned to
the sawmill, the activities of the saNimill clew are closely supervised by the assistant plant
manager who-personally comes into the department several times a day It is, moreover,
-a simple matter for the managerial heads to determine whether the sawmill is operating
p1opeily even though they ale not present, for the loud and peculiar noise_of the sawmill
is easily heard throughout the plant and a change-m its tempo of a_cessation of its opera-
tion selves as a signal that the operation is not what it should be. -
CUMMER-GRAHAM COMPANY 607.
employee has ever approached him for a raise in pay or for a transfer
to another department , and that he does not know what wages the
other employees in his crew receive. Although Daniel is paid 10
cents per hour more than the others in the sawmill crew, the record
shows that he received this amount as a result of his individual
request and also that he is an employee of 15 years ' standing While
,the others in the crew are relatively new employees.
Under all of the foregoing `circumstances , we, are of the opinion
that Daniel does not possess sufficient supervisory status- within our
customary definition of-that term to warrant his exclusion from the
unit. We shall, accordingly , include him.
The machinist's helper or welder , an hourly paid employee, is an
assistant to the plant engineer , and performs skilled maintenance re-
pair work on machines . The Employer 's claim that he possesses super-
visory status is grounded on the fact that when he is doing a large
scale repair job, he is assigned a crew of men to assist him . However,
his authority on.these occasions appears to be no greater than that of
any skilled employee acting as a lead man in relation to a group of
employees having little or no skill. There is no evidence that he has,
ever recommended the hiring, discharging, promoting or disciplining
of any employee whose work he directs or that lie has ever been asked
to make such recommendation . We shall include him in the unit.
The log scaler works in the log yard under the supervision of the
veneer plant manager; he scales or measures the logs brought into '
the log yard in order that the Employer may determine the amount
to be paid for the logs. He directs the work of three or four other men
in the log yard, including a crane operator , and is responsible for hav-
ing brought about the employment of all the men whose work he di-
rects , by recommending them' to his superior for the particular jobs .
they perform. -In view of the fact that the evidence as a whole tends
to indicate that all employees normally make recommendations for the
hiring of employees it may be said that the log scaler , did not make such
recommendations in the exercise of supervisory duties ; nevertheless,
the Employer 's assistant general manager testified without contradic-
tion that the log scaler is vested with recommendatory authority-to
hire, discharge , or promote employees . The record shows further
that the log scaler has on occasion been requested by the employees
to recommend raises in pay on their behalf. We shall exclude him
fromm the unit.
The saw filer, one of the most highly skilled employees in the plant,
is responsible for checking the factory saws while they are in operation
and doing whatever is required to keep them in good condition. He
has it helper working with him whose work he directs in the same man-
ner as any other journeyman would direct the work of his helper.
,739926-47-vol 73-40
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While we would normally include employees in this category within
a production and maintenance unit,? it appears that the man presently
occupying this position was formerly a superintendent in another plant
and that because of his background he has authority to report irregu-
larities and effectively to recommend the discharge of the employees
whose irregularities he reports. Under these circumstances, we shall
exclude him from the unit.
We find that all production and maintenance employees at the
Employer's Beaumont operations, including the sawmill operator and
the machinist's helper or welder, but excluding "logging company"
employees, office and clerical employees, the millwright, the log-scaler,
the saw filer, the carloader, the plant engineer, the general superintend-
ent, the managers and assistant managers-of the box and crate factory
and of the wire bound box factory, the veneer plant manager, 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, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act."
V. THE DETERMINATION' OF REPRESENTATIVES
The Employer objects to the conduct of the election, alleging that
employees were not properly notified, of the election and were -con-
fused as to who was eligible to vote, that there was misconduct on
the part of Board agents at the polls which amounted to "electioneer-
ing" in favor of the Union, and that the employees "did•not have a fair
opportunity" to express themselves freely and secretly.
The record shows that the election as a whole was conducted under
difficult conditions arising, for,the most part, out of the refusal, of the
Employer to cooperate in facilitating an orderly election. It refused
to post election notices, to furnish a pay roll, or to permit the election
to be held on its premises. Accordingly, the Board's representatives
arranged to hold the -election in the basement of a church about 3
blocks away from the plant. No claim is made that the employees
were not properly notified of the time and place of the election. The
contention as to improper notification is grounded wholly in the fact,
that among the ineligible employee groups described, the "logging
company" employees were inaccurately stated to be "working out of
the Beaumont plant" when, in fact, almost all of them are employed
in or near the town of Silsby, Texas, some 22 nines away from Beau-
,,ee Ml Matter of Cummer - Graham Company , 71 N. L R. B. 289S11
8 The employees who voted in the election comprised substantially the same group of
employees which we have found heiein to constitute 'an-appropriate unit Accordingly,
the Employer ' s objections to the election which ale based upon the alleged inappiopiiate-
necs of the voting unit are hereby overruled
CUMMER-GRAHAM COMPANY 609
moat. That this objection has no substance is evidenced by the undis-
puted fact that none-of the Employer's logging department attempted
to vote in the election."
Because of the fact that the polls W, ere situated several blocks away
from the plant, a large number of the 250 or more employees who
voted,presented themselves at the polls at onetime, at the end of the
day shift. The election room was crowded and noisy at the time
inasmuch as groups of employees, many of whom could neither read
nor write, sought information from Board agents and from each other
as to how to fill out the affidavit forms and how to indicate their choice
on the ballots. Board agents thereupon undertook to instruct the
employees in group's regarding the issue they were voting upon and,
in so doing, 1 or 2 of the Board agents stated that the employees had
the choice of voting for "the Company" or for "the Union"; they,
further instructed the employees to mark their ballots on the "No"
side if they desired the former and on the "Yes" side if they desired
the latter. In claiming that the-foregoing activities 'of the Board's
agents constituted misconduct and "electioneering" on the Petitioner's
behalf, the Employer asserts that no group instructions should have
been given miless all those in the group had first requested instruc-*
tion; and that in representing the election issue in the language quoted
above instead of in the language contained on the ballot" the Board
agent misled the employees into believing that they were merely called
upon to indicate whether or not they opposed the Petitioner as an
organization and not whether they, desired to authorize it to at as
their bargaining representative. '
We find no misconduct under the circumstances here presented in
the fact that employees were instructed in a group as to the manner
in which they could express their choice; and while the statements com-
plained of did not express the issue in the precise form appearing on
the ballot, they can in no way be interpreted as denoting partiality to
the Petitioner or calling for a vote on its behalf. Moreover, we find no
evidentiary basis for the Employer's assertion that the employees were
° The eligibility of each and every person appearing at the polls to cast a ballot was
checked in two ways before he was given a ballot (1) by taking from each person afli-
davits on forms provided by the Board attesting to facts proving eligibility, and (2) by
personal identification of the Employer's paya;oll clerk who had been sent by the Employer
to observe the election. The pay-roll clerk testified without contradiction that he knew
each and every employee while the Eniployei expressed some doubt at the hearing as to
whether all the employees had filled out their own affidavit forms or had filled them out
properly, we do not consider that question to be material,in view of the fact that the pay-
roll clerk's personal identification of each voter was obviously a•foolproof method of
determining eligibility - The cleik admitted at the healing that, except for the 41 ballots
he challenged on the ground that those who cast them had been laid off or discharged, no
one voted who was not an employee of the Employer
10 The ballot phrased the issue as follows "Do you wish to be represented' for the pur-
poses of collective bargaining by [the Union] °
- "[Yes] [No]."
It
610 bECISIONS OF NATIONAL LABOR RELATIONS BOARD
misled as to the issues they were voting upon and that a result unin-
tended by the employees was reached in the election.11
The Employer's final claim that the'^employees did not have a "fair
opportunity" to cast their ballot`s in secret is also without substantial
basis. The record demonstrates the diligence of the personnel conduct-
ing the election in providing all the customary safeguards for insuring
the secrecy of the balloting. Therh was but one instance where an em-
ployee did not avail himself either of any of the eight polling booths
furnished for the protection of the employees in secretly marking the"
ballots or of any of the other facilities for keeping their vote secret.
This one instance involved an employee who (narked his ballot while
another employee looked over his shoulder. The matter was called at
once to the attention of the Board agent by the Employer's observer
the Board agent immediately cautioned the onlowhereupon oker. The
voter himself made no protest. This one isolated instance could not
have. interfered with the exercise of a free choice by the employees so
as to warrant the setting aside of the election. ,
Upon the basis of all the foregoing facts, we hereby overrule the
Employer's objeetions to the conduct of the election,
The results of the election held prior to the hearing show that the
Petitioner has secured a majority of the valid votes cast and that the
number of challenged ballots is not sufficient to affect the outcome of
the election. Accordingly, we shall certify the Petitioner as the col-.
lective bargaining representative of the employees ill the appropriate
unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that International Woodworkers of America
CIO, has been designated and selected by a =majority of the employees
in the unit described in Section IV, above, as their representative for
the purposes of collective bargaining, and that, pursuant to Section
9 (a) of the Act, the aforesaid organization is the exclusive representa-
tive`of• all such employees for the purposes of collective bargaining,
with respect to rates of pay, wages; hours of employment, or other
conditions of employment.
" It is to be noted that , so far as the record shows, no employee complained of the result
or indicated in any way that he was misled as to the issue involved in the election. Cf.
Matter of Johnson City Foundry Company, 71 N L R- B 825, and cases there cited