Giordano Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1961

133 N.L.R.B. 205 (N.L.R.B. 1961)

GIORDANO LUMBER CO., INC. 205
At the original hearing before the Trial Examiner, Elzy testified , as did Hampton,
to the effect that he alone left the conveyor or "chain " on the occasion in question
and proceeded to the office and that Hampton did not follow until later.
At the reopened hearing now involved it was established beyond question that
in February 1960 , before a referee for the Division of Unemployment Compensation,
Department of Labor, State of Illinois , Elzy testified that after he left the "chain,"
thereby stopping it, he went directly to Hampton at the other end of the "chain,"
and "him and I 'both goes on to Pat Russell"-the Respondents ' personnel manager.
C. Conclusions
Elzy's testimony at the two hearings was plainly inconsistent . And under the
circumstances of differing testimony under oath the Trial Examiner is reluctant to,
and does not, accept as true Elzy' s testimony at the reopened hearing that he testi-
fied falsely before the referee only because he had been advised to do so by a union
representative.
Inconsistency , however, was a common characteristic of most of the Respond-
ents' witnesses, as set out at length and in detail in the Intermediate Report. And
the Trial Examiner is aware of no rule of evidence or logic which requires that now,
merely because he must find Elzy's entire testimony to be untrustworthy, he must
also and automatically believe previously discredited witnesses of the Respondents
or disbelieve Hampton.
In short, the Trial Examiner discerns no substantial reason to recommend any
material alteration in the essential findings or conclusions appearing in his original
Intermediate Report.
Giordano Lumber Co ., Inc. and United Brotherhood of Carpen-
ters & Joiners of America, AFL-CIO, Petitioner
Giordano Lumber Co ., Inc. and Local Union #398, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers, Petitioner. Cases Nos. 3-RC-2397 and 3-RC-2398.
September 18, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a hearing was held before John W. Irv-
ing, hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
Upon the entire record in this case, the Board finds :
1. The Employer' is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
1 The name of the Company appears as amended at the bearing
133 NLRB No. 22.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Employer operates a retail and wholesale lumber business
and does some manufacturing of certain wood products. The Carpen-
ters seeks to represent a production and maintenance unit composed
primarily of mill employees and yardmen, but excluding truckdrivers
and helpers whom the Teamsters desires to represent in a separate
unit. The Employer contends that only a companywide unit of all
its employees is appropriate. Insofar as the Employer thus seeks to
include office clericals in its proposed unit, its position is clearly with-
out merit for the Board under well-established policy does not include
such employees in a unit with production and maintenance employees.'
We shall, therefore, exclude them from the units which we find below
to be appropriate under the circumstances here. Consequently, we
shall construe the Employer's position as also urging a plantwide unit
of all production and maintenance employees including truckdrivers.
The record shows that the Employer has three regular truckdrivers.
These employees spend substantially more than 50 percent of their
time during the 5-month rush season, and at least half or more of
their time during the remaining 7 months of the year, performing
truckdriver duties. When not engaged in their driving duties, they
work at various jobs in the yard or mill. As the regular truckdrivers
spend a majority of their time in driver duties, we find that they con-
stitute a functionally distinct group such as the Board finds may be
separately represented. Accordingly, we find, under the circum-
stances here, that both the drivers and the remaining production and
maintenance employees constitute separate appropriate units 3
We now turn to the placement of employees with respect to the units
set forth below. There is one outside salesman and two inside counter-
salesmen whom the Petitioners would exclude. None of these em-
ployees performs truckdriving duties. The outside salesman works
away from the plant soliciting new accounts only. As for the two
countersalesmen, one spends all of his time taking customer orders by
telephone and over the counter in the office, while the other, though
performing yardwork sporadically, spends practically all of his time
in the office performing identical duties to those of the other counter-
salesman. Since these three employees have little in common with
the drivers or production and maintenance employees, we shall in
agreement with the Petitioners exclude them from the units'
Though the parties take no direct position with respect to the fol-
lowing, the record presents the issue as to their placement in the units.
During the rush season the Employer assigns various yard or mill
2 Cf. Marston Corporation , 120 NLRB 76, 78; Dura Steel Products Company, 109
NLRB 179, 182.
3 Ballentine Packing Company, Inc, 132 NLRB 923 Although Member Leedom dis-
sented in part from the majority decision in the Ballentine case, he now deems himself
bound and , accordingly , has joined in this decision.
4 The Russell Company, 107 NLRB 668, 669 ; Houston Sash c Door Company, Inc,
127 NLRB 1089, 1092.
GIORDANO LUMBER CO., INC. 207
employees to drive trucks. None of these employees regularly works
as a driver or spends as much as 50 percent of his time driving. Ac-
cordingly, we find that these employees' interests lie with the yard and
mill employees, not with the drivers, and they are, therefore, included
in the production and maintenance unit.5 Similarly, we will not, as
the Teamsters requests, include helpers in the unit of drivers as the
Employer has no employees so classified or who regularly and for a
substantial part of their time work in such a capacity. At most a
yard or mill hand is occasionally assigned as a driver-helper, but
clearly such work is incidental to that performed in the yard or mill.
There is also one full-time driver who is a student and whose em-
ployment will terminate at the beginning of the school year. He is,
we find, a temporary employee and we shall, therefore, exclude him
from the driver unite
There are three yardmen who are full-time students during the
school year. However, unlike the student truckdriver, they will not
terminate their employment at the beginning of the school year, but
will continue to work as yardmen on Saturdays. We find they are
regular part-time employees and will include them in the production
and maintenance unit.'
There is one janitor who regularly works 2 hours each day for 5
days a week cleaning the office. He is, we find, clearly a regular part-
time employee.8 Consequently, as janitors perform maintenance type
work which allies them with production and maintenance employees,
we shall include the janitor in the production and maintenance unit .9
In view of the foregoing, we find that the following employees at
the Employer's Rochester, Newt/ York, establishment, excluding from
each group office clerical employees, outside salesmen, countersales-
men, guards, professional employees, and supervisors as defined in the
Act, constitute units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act: unit (1) all
production and maintenance employees,' including regular part-time
employees and janitors, but excluding truckdrivers; unit (2) all
truckdrivers, excluding temporary drivers.
[Text of Direction of Elections omitted from publication.]
0
See Southern Bakeries Company, 118 NLRB 1508, 1510
e Westinghouse Air Brake Company, Union Switch & Signal Division , 119 NLRB
1391, 1396.
°V I.P. Radio,, Inc, 128 NLRB 113, 116. One of the' college students here included in
the production and maintenance unit is Al Giordano, Jr , whose father is treasurer of the
Employer corporation and one of three brothers who constitute the officers of the corpora-
tion There is no evidence with respect to the ownership of the company As the record
shows that Al Giordano enjoys no special status by reason of his father's official position
which allies him to management we can perceive no reason for excluding him from the
unit on the basis of the family relationship . Maclntyre Motor Company , 119 NLRB 54, 56
Member Brown would exclude Giordano because of his family relationship P A Mueller
and Sons, Inc, 105 NLRB 552.
8 See VIP Radio, Inc , supra.
9 Jones -Dabney Company, Division of Devoe & Raynolds Co ., 116 NLRB 1556, 1558