Longhorn Roofing Products, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1946

67 N.L.R.B. 84 (N.L.R.B. 1946)

In the Matter of LONGHORN ROOFING PRODUCTS, INC. and CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. 16-R-1581.-Decided April 5,1946
Samuels, Brown, Herman and Scott, by Mr. John M. Scott, of Fort
Worth, Tex., and Mr. R. R. Ruland, of Dallas, Tex., for the Company.
M;. Lindsay P. Walden, of Fort Worth, Tex., and M. A. R. Hard-
esty, of Dallas, Tex., for the Union.
Mr. Phil E. Thompson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Congress of Industrial Organizations,
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of Longhorn
Roofing Products, Inc., Dallas, Texas, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Louis R. Mercado, Trial Examiner. The
hearing was held at Dallas, Texas, on February 4,1946. The Company
and the Union appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introdu@e evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following::
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Longhorn Roofing Products, Inc., a Texas corporation , is engaged in
the manufacture of roofing material at its only plant located at Dallas,
Texas . During the 4-month period ending in October 1945, the Com-
pany's net sales exceeded $450,000, and sales to purchasers outside the
67 N. L . R B., No. 7.
84
LONGHORN ROOFING PRODUCTS, INC. 85
State of Texas exceeded $93,000. During the same period, approx-
imately 35 percent of the raw materials used in the Company's plant
was shipped in from without the State of Texas.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATION INVOLVED
Congress of Industrial Organizations is a labor organization, ad-
mitting to membership employees of the Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of its employees until
the Union has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
TV. THE APPROPRIATE UNIT
The Union seeks a plant-wide unit of production and maintenance
employees. The Company contends that employees in the paper mill
should constitute a separate unit apart from the other plant employees.
The Company's operations primarily consist of a paper mill and a
roofing plant. The paper mill produces roofing paper, which is in
turn conveyed to the roofing plant,2 where it is processed into finished
roofing material.3 The entire plant has a common employment and
accounting office. All production departments are under the direction
and supervision of the vice president in charge of production. All
production employees use the same cafeteria, locker room, and park-
ing lots. Except for supervisor°y categories, almost all production
employees are hourly paid and are unskilled workers with similar
interests in labor policies and conditions of employment. In view of
the foregoing, and the further fact that the organization of the peti-
tioner has extended throughout all the Company's operations, we are
of the opinion that all plant-production and maintenance employees
constitute an appropriate unit..
I The Field Examiner reported that the Union submitted 81 authorization cards. There
are approximately 180 employees in the appropriate unit
s The roofing plant building is located approximately 60 feet from the paper mill. A
common steam plant supplies power for both the paper mill and the roofing plant
z Roofing paper produced in excess of the manufacturing requirements of the roofing
plant is sold by the Company as a finished product.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production and maintenance employees of the
Company at its Dallas, Texas, plant, excluding technical, office, cleri-
cal, and any other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by any
election by secret ballot.
From December 3, 1945, to January 14, 1946, the Company dis-
charged the following employees: J. W. Ellis, James Bonin, Carl
Malone, Howard Pierce, Cecil M. Gamble, and O. J. Naughton. On
January 15, 1946, the Union filed charges with the Board on behalf
of these discharged employees, alleging that they had been discharged
in violation of Section 8 (3) of the Act. These charges are now pend-
ing.' In accordance with our established custom we shall allow these
employees to participate in the election, by casting separate sealed
ballots to be opened and counted by the Regional Director only if
determinative of the election results, in which latter event, the final
disposition of the instant case will await the outcome of the unfair
labor practice proceedings.6 By allowing these six employees to vote
we are in no way passing upon the legality or illegality of their
discharges.
On January 14, 1946, the Union called a strike of employees of the
Company because of the alleged discriminatory discharges of the
employees referred to above. It is not questioned that this dispute
was current at the time of the hearing. The strikers have, therefore,
continued to be employees of the Company within the meaning of
Section 2 (3) of the Act. There is no disagreement as to their eligi-
bility to participate in this election.„
The parties are in disagreement, however, as to the eligibility of
employees hired by the Company since the inception of the strike.
The Union would prevent all such employees from participating in
the election by determining the eligibility of employees from the pay
roll immediately preceding January 15, 1946, the date of the strike.
The Company maintains that all persons hired since the date of the
strike should be found eligible to vote. With reference to this issue
it is clear that we cannot now determine whether such employees were
* Case No. 16-C-1309.
5 Matter of Rudolph Wurlitzer Company, 32 N. L. R B . 163. Matter of Beckwith
Machinery Company, 60 N. L. R. B. 521, and cases cited therein.
LONGHORN ROOFING PRODUCTS, INC. 87
hired to replace workers out on strike,° or, if that be true, whether,
in view of the unfair labor practice charges now pending before the
Board, they would constitute valid replacements with permanent em-
ployee status. It is our opinion that the policy of the Act can best be
effectuated by directing an immediate election, permitting all em-
ployees to participate who were employed during the pay-roll period
immediately preceding the date of this Direction. All persons hired
since January 15, 1946, the date of the strike, will be deemed pre-
sumptively 7 eligible to vote subject to the right of challenge."
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Longhorn Roofing
Products, Inc., Dallas, Texas, an election by secret ballot shall be con-
ducted 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 Sixteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among em-
ployees 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 were on strike at that time,
and the six persons alleged to have been discriminatorily discharged,
and 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 them-
selves in person at the polls, 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 Congress of Industrial Organi-
zations, for the purposes of collective bargaining.
9 The Company contends that many of the employees hired since January 15 , 1946, have
been employed on a permanent basis in the normal course of the Company's present indus-
trial expansion , or by way of replacement of employees validly discharged or voluntarily
leaving the Company's employ since that date
7 Nothing in this Direction should be construed as indicating that the Board has pre-
judged in any respect any of the questions which may be drawn into the issue by a chal-
lenge to the eligibility of certain voters , including such questions as to whether or not, (1)
a new employee is a permanent replacement , or (2) a striking employee has been validly
discharged or replaced
8 Matter of Columbia Pictures Corporation , et al, 61 N L R. B. 1030.