LLoyd A. Fry Roofing Co.

National Labor Relations Board - Board Decisions

Feb 25, 1954

107 N.L.R.B. 1327 (N.L.R.B. 1954)

LLOYD A. FRY ROOFING COMPANY 1327
6. By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. Respondent has not violated the Act by discharging Wilmar J. Nash.
,[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT threaten our employees with reprisals because of their union desires
and activities
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations , to join
or assist International Association of Machinists , Lodge No . 613, A.F. L., or any other
labor organization , to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively , upon request , with the above- named union as the ex-
clusive representative of all our employees in the bargaining unit described below with
respect to rates of pay , wages , hours of employment , and other conditions of employment,
and if an agreement is reached , embody such understanding in a signed contract. The
bargaining unit is:
All production and maintenance employees employed at our Miami, Florida, plant
including shipping and receiving clerks and their helpers, material handlers,
truckdrivers, porters, janitors , -and laborers, but excluding office clerical em-
ployees, draftsmen, guards, watchmen, and supervisors as defined in the Act.
THE FROHMAN MANUFACTURING CO.,.INC.,
Employer
Dated .. .......... By ... ......................................................... ...........
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof and must not be altered,
defaced, or covered by any other material.
LLOYD A. FRY ROOFING COMPANY and LOCAL 504,
GENERAL WAREHOUSEMEN, SHIPPERS, PACKERS, RE-
CEIVERS, STOCKMEN, CHAUFFEURS AND HELPERS, IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
A.F.L., Petitioner. Case No. 1-RC-3412. February 25, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before George A.
107 NLRB No. 274.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sweeney, 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 this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. The Employer moved to dismiss the petition on the ground
that there was no showing that the Regional Director conducted
an investigation of the petition within the requirements of
Section 101.17 of the Board ' s Statements of Procedure before
issuing the notice of hearing herein . The motion is denied. The
preliminary investigation described in Section 101.17 , including
that of the petitioner ' s showing of interest , is a matter entirely
for administrative determination and not litigable by the
parties.'
Accordingly, we find that a question affecting commerce
exists concerning the representation of certain employees of
the Employer, within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act.
4. The parties are generally agreed that aunitof production
and maintenance employees is appropriate . They are in dispute,
however , as to the unit placement of the two employee cate-
gories discussed below.
The Employer would include, and the Petitioner exclude,
three watchmen on the Employer's payroll. The record shows
that the watchmen in question spend part of their time in making
the watch rounds and in guarding against, fire and "other
hazards ." In their watchman duties, it sees clear, and we
find , that these individuals function to protect the plant and the
safety of persons therein . We conclude therefore that in these
duties they act as guards within the meaning of the Act= for
part of their working time.' Accordingly, we shall exclude
them.
The Petitioner would include, and the Employer exclude,
the "temporary" employees. It appears that the Employer's
regular employee complement of 35 employees is increased
with the employment of 10 to 30 temporary or seasonal em-
ployees during certain peak periods , which, as testified on
'It should be noted that the parallel provision contained in Section 102,55 of Board Rules
and Regulations states in pertinent part-
... After a petition has been filed ... if it appears to the Regional Director that there
is reasonable cause to believe that a question of representation affecting commerce
exists , that the policies of the Act will be effectuated , and that an election will reflect
the free choice of the employees in the appropriate unit, he shall prepare and cause to
be served upon the parties ... a notice of hearing.... (Emphasis added.)
2 See, e.g., C. V. Hill and Co., 76 NLRB 165; American Rubber Products Co., 106 NLRB 73.
SSee Walterboro Manufacturing Corp., 106 NLRB 1383.
LLOYD A. FRY ROOFING COMPANY 1329
behalf of the Employer , "normally" occur twice a year for
45 to 90 days on each occasion in the spring and in the fall
seasons . These employees are not listed separately from other
employees on the Employer's payroll . They are accorded the
same pay and conditions of work as are the regular employees,
except that few of them have been able to qualify for the Em-
ployer's insurance and vacation benefits based upon a minimum
length of continued employment . As it thus is evident that the
temporary or seasonal employees work at jobs within the unit
under substantially the same conditions as the regular em-
ployees, we find that they should be included in the unit, irre-
spective of questions relating to the tenure of their employ-
ment. 4 However , we shall consider below the separate issue
of the eligibility of these employees to vote in the election.
Accordingly , we find that all production and maintenance
employees of the Employer at its Waltham , Massachusetts,
plant , excluding salesmen , truckdrivers , watchmen, guards,
professional employees , and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
5. The Board customarily holds as eligible to vote seasonal
employees who are included in the unit with regular employees,
and in seasonal industries , directs elections to be held at or
near the peak of the season so that such employees may be
afforded the opportunity to cast ballots.5
However , we do not , in the circumstances of this case, re-
gard the Employer ' s business as truly a seasonal industry. As
noted above, the Employer estimated that seasonal or peak
periods of 45 to 90 days "normally" occur in the spring and
in the fall of each year . It was shown , however, that from May
18, 1950, to October 29, 1951, or for about 1-21 years, an average
of 20 "temporary " or seasonal employees were continuously
employed . In the Employer ' s opinion , this was an "unusual"
period of demand attributable to a "small hurricane in New
England ." On the record , it would appear that the recurrent
expansion in the Employer' s business is not necessarily re-
lated to specific seasons of the year, but is directly tied to the
demand for the Employer's product which may continue at a
high rate throughout the year.
Moreover , we see no reason here to*' postpone the election
%in view of the evidence that the regular or permanent employees,
now and at all times, would comprise over 50 percent of the
Employer ' s total employee complement , and constitute a sub-
stantial and representative segment of the employees in the
appropriate unit . " We shall , therefore , direct the holding of
4See, e.g., L. Wlemann Co., 106 NLRB 1167; Smith Rice Mill, Inc. 102 NLRB 1252, holding,
inter alia , that the "Board's unit findings are based wholly upon functionally related cate-
gories."
5See, e.g., The Borden Co., 89 NLRB 227; Arkport Dairies, Inc., 86 NLRB 319; California
Spray Chemical Co., 86 NLRB 453.
6See The Borden Co., ibid.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an immediate election among those employees presently em-
ployed, including as eligible all temporary or seasonal em-
ployees who may appear on the current payroll.
[Text of Direction of Election omitted from publication.]
R I E G E L PAPER CORPORATION and INTERNATIONAL
BROTHERHOOD OF PAPER MAKERS, AFL, Petitioner.
Case No. 4-RC-1938. February 25, 1954
DECISION AND CERTIFICATION OF RESULTS OF ELECTION
Pursuant to a stipulation for certification upon consent elec-
tion signed on April 10 , 1953, an election by secret ballot was
conducted on April 30 , 1953, under the direction and super-
vision of the Regional Director for the Fourth Region, among
the employees in the stipulated unit . Following the election a
tally of ballots was furnished the parties . The tally shows that
of approximately 1,220 eligible voters, 530 voted for, and 639
voted against , the Petitioner . There were also 2 challenged
and 2 void ballots.
On May, 6, 1953, the Petitioner filed objections to conduct
of the Employer allegedly affecting the results of the election.
The Regional Director investigated the objections and, on
May 27, 1953 , issued a report on objections in which he rec-
ommended that the objections be overruled . Thereafter, the
Petitioner filed timely exceptions to the Regional Director's
report. On June 24, 1953, the Board directed that a hearing
be held on the Petitioner ' s objections . Pursuant to this order,
a hearing was held before Lewis Moore , hearing officer, at
which the Employer and the Petitioner appeared and partici-
pated. On November 20, 1953, the hearing officer issued his
report on objection to election , in which he recommended that
one of the objections be sustained and the election be set aside.
Thereafter , the Employer and the Petitioner filed timely ex-
ceptions to the report together with supporting briefs.
The Board has reviewed the rulings of the hearing officer
made at the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed .' Having con-
sidered the hearing officer ' s report , the exceptions , the briefs,
and the entire record inthe case , the Board makes the following
findings :
. 1. The Employer is engaged in commerce within the meaning
of the National Labor Relations Act.
2. International Brotherhood of Paper Makers, AFL, claims
to represent certain employees of the Employer.
1The Employer has requested oral argument. The request is denied as the record and
briefs adequately present the issues and the position of the parties.
107 NLRB No. 270.