Richmond Lumber & Building Supply Co.

National Labor Relations Board - Board Decisions

Apr 22, 1948

77 N.L.R.B. 271 (N.L.R.B. 1948)

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In the Matter of SAM PEREL, MILTON PEREL, FANNIE PEREL, & JACOB
Y. PLOTKIN, D,/B/-1 RICHMOND LUMBER & BUILDING SUPPLY COM-
PANY, EMPLOYER and WAREHOUSE *EMPLOYEES UNION No. 322 I. B.
OF T. C. W. & H. OF A., A. F. OF L., PETITIONER
Case No. 5-RC-205.-Decided April 22,1948
Messrs. W. F. Campbell and Russell Brown, of Richmond, Va., for
the Petitioner.
illessr.s. Milton Perel, Sam Perel, and H. N. Herman, of Richmond,
Va., for the Employer.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Rich-
mond, Virginia, on January 21, 1948, before Sidney J. Barban, hear-
ing 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
I. THE BUSINESS OF THE EMPLOYER
Sam Perel, Milton Perel, Fannie Perel, and Jacob Y. Plotkin are
it partnership doing business in Richmond, Virginia, as the Rich-
mond Lumber & Building Supply Company. The Employer is en-
gaged in the purchase, processing, and sale of lumber, mill work and
builders' supplies, such as roofing, plaster board, lime, brick mortar,
shingles, nails, miscellaneous hardware, flooring, and trim. In Oc-
tober 1947, the Employer purchased $27,556 worth of raw materials
outside the State of Virginia and $41,149 within the State. During
that month the Employer made sales amounting to $1,237 outside the
State of Virginia and $104,900 within the State. Although October
' Pursuant to the prov isions of Section 3 ( b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
consisting of Chairman Herzog and Members Reynolds and Murdock
77 N. L. R. B, No. 36.
271
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272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is one of the good months in the building supply business, the ratio
of the Employer's out-of-State to in-State purchases and sales is ap-
proximately the same throughout the year.
Contrary to the Employer's contention we find that it is engaged in
commerce within the meaning of the National Labor Relations Act.2
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, which in turn is affiliated with the American Federation of
Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the Peti-
tioner has been certified by the Board in an appropriate unit 3
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APP110PRIATE UNIT
The Petitioner seeks a unit consisting of shipping clerks, truck driv-
ers, machine feeders, yard men, and a fireman, but excluding office cleri-
cal and supervisory employees and the foreman. The Employer con-
tends that all employees except the foreman should be included. In its
description of the unit, the Petitioner did not specifically include 7
workmen who normally construct millwork and do cabinet work, but
at the hearing stated that it would be willing to include them in the
unit. Twenty-eight persons are employed by the Employer, whose
operation is conducted from its own plant consisting of several ware-
houses, a yard, and a mill for processing. The 3 clerical employees,
who work in a separate room in one of the warehouses, are paid on a
monthly basis, the foreman and fireman on a weekly basis, and all other
employees on an hourly basis. Individual employees in the latter
group do not confine their endeavors to any one type of work but may
be put to work in the mill or in the yard as the occasion requires. One
of the group, who normally loads lumber, lives in a cottage on the
2 N. L R B . v Jones d Laughlin Steel Corp ., 301 U. S. 1, 9 , N. L. R. B. v. Robert S
Green , Inc, 125 F. ( 2d) 485 (C. C A 4) ; N. L R B v. Suburban Lumber Co ., 21 F. (2d)
29 (C C A. 3).
' With reference to the Employer ' s reservation of rights concerning compliance by
Petitioner with the provisions of Sections 9 (f) and (h) of the Act, see Matter of Lion Oil
Company, 76 N. L. R. B 565.
RICHMOND LUMBER & BUILDING SUPPLY COMPANY 273
premises rent free. Should anything unusual occur while he is there
at night, he is expected to call one of the partners, but he is not obli-
gated to stay on the premises. Counsel for the Employer reserved the
right to take the position that this employee actually is a watchman
and, as such, a "supervisory employee."
The only real disagreement here appears to concern exclusion from
the proposed unit of the clerical workers and possibly the employee
who resides in the Employer's cottage. No reason appears in this
case to warrant the Board's departure from its practice of ex-
cluding office and clerical workers from a production and maintenance
unit,4 and we shall exclude them. As to the employee residing on the
premises, his interests are clearly with the employees in the proposed
unit, and we find that he should be included with them. He is not a
guard within the meaning of Section 9 (b) (3) of the Act.' Clearly
he is not a supervisory employee within the statutory definition.6
We find that all the Employer's employees, including those working
on cabinets and mill work, shipping clerks, truck drivers, machine
feeders, yard men, and firemen, but excluding foremen, office clerical
workers and supervisors as defined in the Act, constitute a unit appro-
priate 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 Richmond Lumber & Building
Supply Company, Richmond, Virginia, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
clays from the (late of this Direction, under the direction and super-
vision of the Regional Director for the Fifth Region, and subject
to Sections 203.61 and 203.62, of National Labor Relations Board
Rules and Regulations-Series 5, among the employees in the unit
found appropriate in Section IV, above, who were employed dur-
ing the pay-roll period immediately preceding the date of this
4 Matter of Hall Level t Manufacturing Works, 72 N L R B 165 ; Matter of Decco Co,
71 N L R. B 692 ; Matter of Edw C. Budd Mfq Co , 68 N. L R B. 153.
6 Section 9 (b) (3) provides that an appropriate unit shall not include with other
employees, any individual employed as a guard to enforce against employees and other
persons rules to protect property of the employer or to piotect the safety of persons on the
employer's premises
e Section 2 (11) of the Act provides
(11) The term "supervisor" means any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Direction, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
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, and also excluding employees on strike who are not entitled
to reinstatement, to determine whether or not they desire to be repre-
sented by Warehouse Employees Union No. 322, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
A. F. of L., for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.