J. F. Johnson Lumber Co.

National Labor Relations Board - Board Decisions

Apr 10, 1947

73 N.L.R.B. 320 (N.L.R.B. 1947)

In the Matter of J. F. JOIINsoN LUMBER COMPANY, EMPLOYER and
UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MINE
WORKERS OF AMERICA, A. F. L., PETITIONER
Case No. 5-R-2491.-Decided Ap'•il 10, 1947
Mr. William F. Kelly, of Washington, D. C., and Mr. H. Melvin
Bull, of Baltimore, Md., for the Employer.
Messrs. Arthur G. Pilon and Robert Frye, of Baltimore, Md., for
the Petitioner.
Mr. William W. Townshend, of Annapolis, Md., for the Intervenor.
Mr. Jerome A. Reiner, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Balti-
more, Maryland, on November 8 and 15, 1946, before Earle K. Shawe,
hearing officer. The hearing 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 THE EMPLOYER
J. F. Johnson Lumber Company is a Maryland corporation engaged
in the business of processing lumber and in the wholesale and retail
sales of building material supplies at two plants located at Annapolis
and Glen Burnie, Maryland. Annually the Employer makes pur-
chases of approximately $1,000,000 worth of raw materials, 75 percent
of which is shipped to the Employer's two plants from points outside
the State of Maryland. Annually the Employer makes sales of fin-
ished lumber and building supplies in excess of $1,500,000, substan-
tially all of which is sold to building contractors and retail customers
within the State,' in addition to a small amount sold annually to the
'There was testimony that the Employer occasionally sells a keg of nails , a door or
sashes to some of its suppliers of crude lumber in Virginia and delivers these items by its
own trucks when they are sent to Virginia to pick up the crude lumber . These sales amount
tb about $300 annually. - -
73 N. L. R. B., No. 59.
320
J. F. JOHNSON LUMBER COMPANY 321
United States Naval Academy at Annapolis, Maryland. Twenty-
five percent of all purchases made by the Employer represents crude
lumber obtained principally in the State of Virginia, a substantial
part of which is transported by the Employer in its own trucks from
the place of purchase to the Employer's plants in Maryland. The
Employer processes 50 percent of all the lumber sold by it. The re-
maining 50 percent is dressed lumber sold by the Employer as pur-
chased.
In connection with its processing operations the Employer owns
and utilizes molding machines, four planing mills, and two re-saws
and ripsaws. This processing involves hauling in rough green logs,
stripping and-drying them, and-running them through the mill. The
Employer produces processed lumber of various kinds and sizes for
a variety of uses such as sheathing, tongue and groove runners, sub-
flooring, and shingle strips. On special order the Employer will make
cabinets and other products of wood construction.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.2
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with United Mine
Workers of America, American Federation of Labor, claiming to
represent employees of the Employer.
J. F. Johnson Lumber Company Employees Association, Inc.,
herein called Intervenor, is a labor organization claiming to represent
employees of the Employer 3
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.
Following a Board election in 1941, the Intervenor and the Em-
ployer entered into a series of yearly contracts the last of which be-
came effective April 1, 1946, to terminate March 31, 1947. The conten-
2N L R B V Cowell Portland Cement Company, 148 F (2d) 237 (C C A 9), cert
denied 326 U S 735 . N L R B v Poultrgmei's Service Coop , 138 F (2d) 204 (C C A
3) , N L R B. V McGough Bakeries Corp., 153 F. (2d) 420 (C C. A 5) , N L R B v
Van de I(anipe Holland-Dutch, Bakers, Inc, 152 F. (2d) 818 (C C' A 9) . N L R B V
Facnblatt, et at , 306 U S 601 , N L R B v Jones & Laughlin Steel Corp , 301 U S 1
'There is no merit to the Petitioner's contention that the Intervenor is a defunct labor
organization The evidence shows that the Intervenor has accounts with banking institu-
tions both at Annapolis and Glen Burnie, Alarvland, collects dues from its members, has
held recent membership meetings, has negotiated wage uicieases with the Employer in
behalf of its members, and has a current contract with the Employer.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion that this contract is a bar to the present proceedings is untenable
in view of the fact that it contains no renewal provisions and will have
expired by the time an election is held and a certification, if any, issued
thereon. Moreover, the contract by its own terns is one for "members
01-11y' 14 and, under well-established principles, cannot bar a present
determination of representatives.5
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 parties agree that all of the production and maintenance enm-
ployees at the Annapolis and Glen Burnie, Maryland, yards of the
Employer, including millmen, yardmen, drivers and helpers, laborers
and loaders, but excluding salesmen, draftsmen, technical employees,
stockholders, the shipping clerk' at the Glen Burnie yard, office and
clerical and all supervisory employees, may constitute an appropriate
unit. The Petitioner would also include janitresses, night watchmen,
and garage mechanics as to whom the other parties take no position.
The parties disagree concerning the inclusion of certain other cate-
gories of employees hereinafter discussed.
The janitresses and the night watchmen are hourly rated employees,
the latter performing plant protection functions. The mechanics are
salaried employees whose principal duty is to maintain and otherwise
service the Employer's trucks used by other employees in the unit.
We shall include these employees in the unit.
The Petitioner would exclude and the Employer would include
certain employees at the Annapolis plant who are classified as clerk.s-
offlee personnel. Despite their job classification these employees do
no office work, but have the same manual duties as those performed
by the loaders at Glen Burnie who are included in the unit. Accord-
ingly, we shall include these employees.
The Petitioner also seeks to exclude Edward Wheeler and Ray
Hibberd from the unit alleging they are supervisory employees, which
the Employer denies. Both employees are experienced loaders hav-
ing been in the employ of the Employer for 25 years; and while they
are accorded certain privileges because of their longevity, they do
4 The Intervenor contended that the contract was understood by the parties as one for
exclusive recognition, and testimony was adduced to the effect that the benefits of the con-
tiact were applied to non-members as well as members of the Intervenor. However com-
mendable this action may be, it is a gratuitous undertaking lather than one of contractual
obligation and it is not, therefore. determinative of the contract bar issue here involved
b platter of The 1Vheland Company, 72 N L R B 351 , Matter of hittmger Company,
lac, 65 N L R B 1215, Matte of Tennessee Coal, lion cc Railroad Company, 65 N. L.
R B 1416
6 Salley.
J. F. JOHNSON LUMBER COMPANY 323
not exercise supervisory authority within the Board's customary
definition. Accordingly, we shall include them in the unit.
The Petitioner also seeks to exclude Robert A. Farmholt from
the unit. He is the son of the Employer's president and, although
presently working as a truck driver, he is being prepared to assume
a managerial position. In view of Faruillolt's close relationship to
management and his eventual assumption of a managerial position
we find that his interests are substantially different from those of
the other employees involved. We shall therefore exclude him from
the unit.'
We find that all the production and Maintenance employees of
the Employer at its Annapolis and Glen Burnie, Maryland, yards,
including clerks-office personnel at the Annapolis yard, janitresses,
garage mechanics. mllhnen, yardmen, drivers and helpers, laborers
and loaders, but excluding salesmen, draftsmen, technical employees,
stockholders, the shipping clerk at the Glen Burnie yard, office and
clerical employees, 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, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION'
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with J. F. Johnson Lumber Com-
pany, Annapolis and Glen Burnie, Maryland, 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 Fifth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Sections 203.55 and 203.56, of National Labor Relations
Board Rules and Regulations-Series 4, among the employees in the
unit found appropriate in Section IV, above, who were 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 employees in the armed forces of the United States
who present themselves in person at the polls, but excluding those
employees who have since quit or been discharged for cause and have
' Matter of Association Canado-Amerioane, 72 N L R B 520 , Matter of The Myes-
SheiIlan Company , 71 N L R B 910
8 Any participant in the election herein directed may, upon its prompt request to and
approval thereof by the Regional Director, have its name removed from the ballot
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not been rehired or reinstated -prior to the date of the election," to
determine whether they desire to be represented by United Construc-
tion Workers, affiliated with United Mine Workers of America,
American Federation of Labor, or by J. F. Johnson Lumber Company
Employees Association, Inc., for the purposes of collective bargain-
ing, or by neither.
9 A strike of certain employees in the unit was in progress at the time of the hearing, but
was terminated on November 20, 1946 , and all 'striking employees for'whom jobs were
available have returned to work Accordingly certain eligibility issues which arose at the
hearing need not now be determined.