Davis Lumber Co, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1948

75 N.L.R.B. 851 (N.L.R.B. 1948)

In the Matter of DAVIS LUMBER COMPANY, INC.,1 EMPLOYER and AMER-
ICAN FEDERATION OF LABOR, PETITIONER
Case No. 10-R-20686.-Decided January 15,1948
Mr. Horace C. Wilkinson, of Birmingham, Ala., for the Employer.
Mr. Walter L. Mitchell, of Birmingham, Ala., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Cull-
man, Alabama, on July 24, 1947, before John C. McRee,, hearing of-
ficer. At the hearing the Employer moved to dismiss the petition on
the ground that the Petitioner was not authorized to act for the em-
ployees involved herein and does not represent them. For reasons
discussed in Section III, infra, the motion is hereby denied. The hear-
ing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE EMPLOYER
Davis Lumber Company, Inc., an Alabama corporation, is engaged
in the manufacture and sale of lumber at its only plant and principal
place of business in Cullman, Alabama. It was incorporated on July
1, 1947. Prior to that date the business was operated by Bryce C.
Davis and Phillip L. Davis, a partnership doing business as Davis
Lumber Company. Thereafter, the principal assets of the partnership
were transferred to Davis Lumber Co., Inc., of which Bryce C. Davis
is president and majority stockholder and Phillip L. Davis a member
of the Board of Directors. There have been no appreciable personnel
changes since the transfer.
During the calendar year 1946, the Employer purchased raw ma-
terials valued in excess of $50,000, all of which were purchased within
i As amended at the hearing Davis Lumber Company, Inc. is the successor to Bryce C
Davis and Phillip L. Davis, d/b/a Davis Lumber Company.
75 N. L R. B., No. 104.
766972-48-vol. 75-55 851
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the State of Alabama. During the same period the Employer's sales
of manufactured products exceeded $100,000 in value, of which ap-
proximately 90 percent was shipped to points outside the State of
Alabama.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization claiming to represent em-
ployees of the Employer.
III. TIIE 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.
As indicated previously, the Employer contends that the Petitioner
is not the representative of the employees sought herein. Inasmuch
as we have frequently held that the Petitioner's prima facie showing
of representative interest is solely a matter of administrative pro-
cedure to be determined by the Board itself, we find this contention
without merit.2
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in substantial accord with the agreement of the parties,
that all production and maintenance employees at the Employer's
Cullman, Alabama, plant, including the saw filer, but excluding office
and clerical employees, foremen, and all supervisors, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
At the hearing, it was disclosed that unfair labor practice charges,
involving the discharge of three employees, were pending against the
2 Matter of 0. A Jennangs & Company , 68 N L R B 516 ; Matter of Bauer-Schweitzer
Hop & Malt Co , et at , 72 N. L R. B 1223 At the hearing the Employer offered to prove
its contention by oral testimony and a petition allegedly signed by all of its employees
purporting to disavow the Petitioner 's claim to a representative interest . We are of the
opinion that the hearing officer properly excluded such evidence . A majority of the em-
ployees will have an opportunity to express their desire as to a bargaining representative
in a Board election by secret ballot.
DAVIS LUMBER COMPANY, INC. 853
Employer.3 The Petitioner requests that these employees be per-
mitted to vote challenged ballots. Inasmuch as no determination of
their eligibility to vote can be made until final disposition of the unfair
labor practice charges, we hereby direct the Regional Director to
challenge and impound their ballots pending disposition of such
charges.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Davis Lumber Company, Inc.,
Cullman, Alabama, 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, and subject to Sections 203.61 and
203.62, of National Labor Relations Board Rules and Regulations-
Series 5, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately 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, 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 election, to determine whether
or not they desire to be represented by American Federation of Labor
for the purposes of collective bargaining.
MEMBER HousTON took no part in the consideration of the above
Decision and Direction of Election.
8 Charges of 8 (1) and 8 ( 3), Case No 10-C-2271, were filed against the Employer in
the Regional Office on June 3, 1947 The Petitioner has waived any right to urge any of
the acts alleged by it as unfair labor practices as a basis for objection to any election which
may be directed in the instant case.