Longhorn Sash and Door Co.

National Labor Relations Board - Board Decisions

Oct 18, 1948

79 N.L.R.B. 1430 (N.L.R.B. 1948)

In the Matter of G. R. OGLETREE , D/B/A LONGHORN SASH AND DOOR
COMPANY, EMPLOYER and UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, LOCAL 1751, A. F. L., PETITIONER
Case No. 16-RC-21.Decided October 18, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing in this case was held before a
hearing officer of the National Labor Relations Board. The hearing
officer 's rulings made at the hearing are free from prejudicial error and
are hereby affirmed?
The Employer's "Plea to the Jurisdiction," urging dismissal of the
petition herein on the ground that he is not engaged in commerce with-
in the meaning of the National Labor Relations Act, is denied for the
reasons set forth below.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
G. R. Ogletree, doing business as Longhorn Sash and Door Com-
pany, is engaged in the manufacture, sale, and distribution of
mill work at his plant in Austin, Texas. From July 25, 1947 (the
I The petition and other formal papers were amended at the hearing to show the correct
name of the Employer.
In its brief filed on September 7, 1948, the Employer contends , among other things, (1)
that the hearing officer erred at the hearing on July 21, 1948, in overruling its motion for a
continuance of 4 days until Mr. Ogletree could return; and (2) that the petition filed
herein is not legally sufficient because the union representative who signed the petition had
not fully complied with the filing requirements of the laws of the State of Texas, and his
failure to do so precluded him from acting in a representative capacity.
We find no merit in either of these contentions. The record discloses that although the
hearing officer proceeded with the hearing on that day in order to permit an out-of-town
witness to testify, he thereafter recessed the hearing until the return of Mr. Ogletree who
had ample opportunity to and did testify. With respect to the second contention , we have
held that any State law purporting to regulate union activities of union representatives,
must yield before the paramount authority of Congress expressed in a valid and applicable
Federal law . See Matter of Eppinger & Russell Company, 56 N. L . R. B. 1259, and cases
cited therein.
79 N. L . R. B., No. 193.
1430
LONGHORN SASH AND DOOR COMPANY 1431
date on which Ogletree became the sole proprietor), to December 31,
1947, total purchases by the Employer amounted to $115,402.36, and
total sales amounted to $117,819.23. The Employer maintains that all
purchases, with the exception of $224.34 for glue and other negligible
items, were made within the State of Texas, and that all manufactured
products were sold locally.
The principal raw materials used in the manufacture of the Em-
ployer's products are Mexican pine, California fir, and a small amount,
of yellow pine. The Mexican or white pine, which accounts for ap-
proximately 90 to 95 percent of the raw materials used by the Em-
ployer, is grown in the Republic of Mexico and shipped into Texas on
direct order from Ogletree. Ogletree's principal suppliers of Mexi-
can pine are United Export-Import Company, S. A., a Mexican firm,
and Pan Tex Milling Company, both of whom maintain offices in
Texas near the border. The record discloses that when Ogletree
places his order for Mexican pine with an agent for the United Ex-
port-Import Company, the lumber is first shipped from Mexico across
the border to El Paso or Presidio, Texas, and from there it is imme-
diately shipped directly to Austin, Texas, consigned to the "United
Export-Import Co., S. A., notify the Longhorn Sas71, and Door Co."
The California fir, which accounts for approximately 5 to 10 per-
cent of the raw materials used by the Employer, is purchased from the
Ogletree Lumber Company of Livingston, Texas (a company in which
Ogletree has an interest), after it is shipped to Texas from Cali-
fornia on direct order from Ogletree. The yellow pine, which the
Employer uses in very small quantities, appears to be on the only raw
materials used by the Employer which is actually grown in the State
of Texas.
The 'fact that the Employer does not take title to the goods until
after they have been brought into the State, or has some arrangement
whereby a third party takes the lumber after it comes into the State
and dries it before title passes to him, does not destroy the effect of
the transactions on interstate commerce.2
Accordingly, we find that the Employer's operations affect com-
merce within the meaning of the Act .8
2 See Matter of Central Sash and Door Company, 77 N. L. R. B. 418 ; at Matter of
Cordele Sash, Door and Lumber Company , 79 N. L. R. B. 578; Santa Cruz Packing
Co. v. N. L. it. B., 303 U. S. 453 ( 1938 ) ; N. L. it. B. v. Sunshine Mining Co., 110 F. (2d)
780 (C. C. A. 9) ; cert. den. 312 U. S. 678. Ogletree Lumber Company is located in the
same building as Longhorn Sash and Door Company. It is from Ogletree Lumber Company
that yellow pine, Sr, and redwood are purchased after the lumber has been dried on Ogle-
tree Lumber Company's drying yards . The fir and redwood, however, are originally ordered
from California by Ogletree d/b/a Longhorn Sash and Door Company.
3 Matter of J. H. Patterson Co., 79 N. L. R. B. 355; N. L. it. B. v . Edinburg Citrus
Associatwon, 147 F. (2d) 353 (C. C. A. 5).
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization named below claims to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion 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 following employees of the Employer constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All production and maintenance employees 4 of the Employer, ex-
cluding office and clerical employees, watchmen,5 and all supervisors.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and su-
pervision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered 4,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including em-
ployees who did not work during said pay-roll period because they were
ill or on vacation or temporarily laid off, but excluding those em-
ployees who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, and also
excluding employees on strike who are not entitled to reinstatement,
to determine whether or not they desire to be represented, for pur-
poses of collective bargaining, by United Brotherhood of Carpen-
ters and Joiners of America, Local 1751, A. F. L.
CHAIRMAN HERZOO took no part in the consideration of the above
Decision and Direction of Election.
4 This unit includes John Berry, Floyd M Bailey, Tommy Neel, and Vesper Warwick, all
of whom are employed by Ogletree at Longhorn Lumber Company, operated by Ogletree
adjacent to Longhorn Sash and Door Company
5 The parties agreed to include watchmen ( Sesarlo Estrada and Jose Saldona) in the
stipulated unit. It is clear that Estrada is a guard within the meaning of the Act, and,
accordingly , we shall exclude him from the unit which we herein find appropriate Matter
of C V. Hill and Company , Inc., 76 N . L. R. B. 158 Although the record discloses that
Saldona performs some janitorial work, it does not disclose what proportion of his time
is thus occupied In the event that Saldona spends more than 50 percent of his time in
the performance of janitorial work, we find that he is not "employed as a guard " within
the meaning of the Act and that he is properly included in the appropriate unit See
Matter of Radio Corporation of America, 76 N. L. R. B 826; Matter of Steelweld Equip-
ment Company, Inc , 76 N L. R. B. 831.