Georgia-Pacific Corp.

National Labor Relations Board - Board Decisions

Feb 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the election which were subsequently withdrawn by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.