Veneer Products, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1949

81 N.L.R.B. 492 (N.L.R.B. 1949)

In the Matter of VENEER PRODUCTS , INC., EMPLOYER and INTERNA-
TIONAL UNION OF OPERATING ENGINEERS , LOCAL 457, AFL,
PETITIONER
Case No. 34-RC-30.-Decided February 8, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition duly filed by Local 457, a hearing was
held before a hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Prior to the hearing, at the hearing, and again thereafter, the Em-
ployer moved to dismiss the petition and the amended petition on the
grounds, in substance, that : (1) the American Federation of Labor,
with which the Petitioner is affiliated, had not complied with the filing
requirements of section 9 (f), (g), and (h) of the Act; (2) the
Employer, although entitled as a matter of right to the information,
had not been permitted to examine the data from which a determina-
tion had been made that the filing requirements of the Act had been
satisfied; (3) the Petitioner did not request recognition by the Em-
ployer prior to the filing of the petition; (4) the Petitioner is dis-
qualified from acting as the bargaining representative of the employ-
ees in question because it does not admit Negroes to membership ; and
(5) the Petitioner has made neither an adequate, nor a timely, showing
of interest. For the reasons hereinafter stated, the Employer's motion
is denied.l
I Although we administratively note that the parent American Federation of Labor is
presently in compliance with the filing requirements of Section 9 (f), (g), and ( h) of the
Act, such compliance is not a prerequisite to the processing of this case , Matter of
Northern Virginia Broadcasters , Inc., 75 N. L. It. B. 11 ; and, although compliance by
the Petitioner with the filing requirements of the Act is indeed a necessary prerequisite,
the determination of its compliance status is an administrative matter , and the evidence
pertaining thereto need not be shown to the Employer nor set forth affirmatively in the
record. Matter of Ozark Dam Constructors , 77 N. L . R. B. 1136; Matter of Lion Oil Com-
pany, 76 N. L R. B 565; Matter of The Procter ct Gamble Manufacturing Company, 78
N. L. R. B . 1043 ; a request for recognition need not be made upon an employer prior to the
filing of a representation petition , Matter of Advance Pattern Company , 80 N. L. R. B.
29, decision on reconsideration ; nor are matters pertaining to the Petitioner 's showing of
interest , which is an administrative expedient , subject to collateral attack by the Em-
ployer ; Matter of O. D . Jennings cf Company, 88 N. L . R. B. 516.
81 N. L. R. B., No. 90.
492
VENEER PRODUCTS, INC. 493
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is a labor organization affiliated with the Ameri-
can Federation of Labor, claiming to represent employees of the
Employer.2
3. The question concerning representation :
The Employer contends that because the Petitioner does not admit
Negroes to membership, and because many of the Employer's em-
ployees are Negroes, the petition should be dismissed.
At the hearing, the representative of the Petitioner testified that
Local 457, which is the local union involved in this proceeding, does
admit Negroes to membership, and that, in the event that Local 457
was certified by the Board, it would represent all employees of the
Employer in an appropriate unit. The constitution of the inter-
national union which chartered Local 457, International Union of
Operating Engineers, contains no statement of discrimination against
Negroes. It appears, however, that there exists in the Employer's
plant another local, also chartered by International Union of Op-
crating Engineers, and known as Local 457-D, which, according to
the Petitioner's representative, has a membership almost entirely of
Negroes, and which was established for the purpose of keeping funds
contributed by Negro members separate from funds contributed
by whites.
In opposition to the statement of the Petitioner's representative,
the Employer offered to prove that Local 457 did not admit Negroes
to membership, and that Local 457-D restricted its membership to
Negroes alone. This offer of proof was rejected by the hearing officer.
The Board has previously stated that a statutory bargaining agent
is charged with the duty of representing all members of a unit equally,
and without discrimination on the basis of race, color, or creed ; but
the Board has also recognized its lack of power to pass upon eligibility
requirements for membership in a labor organization.3 Accordingly,
in dealing with the problem of restriction of membership in unions,
the Board has concerned itself with the satisfaction of the duty im-
•Chairman Herzog and Members Houston and Gray.
2 United Mine Workers of America , District No. 50, which made a representation
claim upon the Employer , was served with Notice of Hearing, but failed to enter an
appearance.
a Matter of Larus eE Brother Company, Inc., 62 N . L. R. B. 1075.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed on a bargaining representative acting pursuant to a Board
certification, and not with the internal organization of the representa-
tive.' In the light of that principle, the Board held in 1945 that the
establishment of a separate local for Negro employees does not, per se,.
constitute a subversion of the Board's unit finding.5
On the facts before us, therefore, we find without merit the Em-
ployer's contention that the petition should be dismissed. In our
opinion, neither the facts appearing affirmatively in the record, nor
the matter recited in the Employer's offer of proof,6 show that the
Petitioner will not accord adequate representation to all employees
within the unit hereinafter found appropriate. However, in view
of the existence of Local 457-D, we here expressly note that if it is
later shown, by appropriate motion, that equal representation has
been denied to any employee in the unit because of his color, the
Board will consider rescinding any certification we may issue herein.'
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.
4. The appropriate unit :
The Petitioner and the Employer agree that a production and main-
tenance unit at the Employer's veneer manufacturing plant is ap-
propriate. They disagree, however, as to the unit placement of sev-
eral employee classifications which the Employer would exclude from
the unit.
Graders and log scalers: Graders, looking for defects, classify and
grade the veneers. Log scalers measure and grade logs and timber,
and estimate the number of board feet they will produce. The esti-
mates of the log scalers are relied upon by the Employer when timber
and log purchases are made. Contrary to the contention of the
Employer, we find that graders and log scalers are not managerial or
professional employees, and that they have employment interests
similar to those of other production employees. Accordingly, we
shall include them in the unit."
Inspectors and tallymen: These employees inspect, count, and
tally the veneers just before shipment. Inspectors are empowered to
4 Matter of Norfolk Southern Bus Corporation , 76 N. L. R. B. 488; Matter of Texas and
Pacific Motor Transport Company , 77 N. L R. B 87.
s Matter of Larus d Brother Company, Inc., supra , at 1083.
6 In this view of the case , no prejudice resulted from the hearing officer 's rejection
of the Employer 's offer of proof.
° See Matter of Southwestern Portland Cement Company , 61 N. L. R. B. 1217 ; Matter
of Carter Manufacturing Company, 59 N L R. B 804
8Mdtter of Collins Pine Company , 54 N. L. R. B. 670 ; Matter of Smith Wood Products,
Inc., 62 N . L. R. B. 920 ; Matter of Potlatch Forests, Inc., 80 N L. it. B ., No. 107 . For the
reasons stated 'in the Potlatch case, Board Member Gray would exclude log scalers, but
deems himself bound by the majority opinion in that case.
VENEER PRODUCTS, INC. 495
return defective veneers for further processing ; tallymen keep records
upon which the Employer bills its customers . The interests of these
employees are similar to those of production employees and we shall
include them in the unit.9
Firemen, truck drivers, garage mechanics, and tractor operator:
Employees with these classifications perform the usual duties asso-
ciated with their titles. They have interests in common with those of
production employees and we shall include them in the unit.'o
Alleged supervisors: The head log scaler also acts as assistant log
yard foreman, supervising the cutting and stacking of logs. He has •
hired and discharged employees.
A crane operator heads a crew of three men. He has effectively
recommended the discharge and promotion of employees.
We find that the head log scaler and the crane operator are super-
visors as defined in the Act, and shall therefore exclude them from
the unit.
We find that all production and maintenance employees at the
Employer's Tarboro, North Carolina, plant, including graders, log
scalers, inspectors, tallymen, firemen and helpers, truck drivers, garage
mechanics, and the tractor operator, but excluding clerical employees,
guards, watchmen, foresters, instructors, technical advisors, draftsmen,
engineers , students, the crane operator, the head log scaler, the garage
foreman, assistant foremen, foremen, and other supervisors as defined
in the Act, constitute 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 pur-
poses 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 super-
vision 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 payroll period immediately
preceding the date of this Direction of Election, 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
"Matter of Clayton Mark & Company, 76 N. L. R. B. 230 (inspectors ) ; Matter of Ewanna
Box Company , 47 N L. R B 1466 ( tallymen).
10Matter of The Chase -Shawmut Company , 71 N L. R. B 610 ( firemen ) ; Matter of El
Campo Rice Millsng Company , 73 N. L. R. B. 927 ( drivers and garage mechanics).
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 purposes of collective
bargaining, by International Union of Operating Engineers, Local
457, AFL.