Williams Brownell Planing Mill Co., Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1946

65 N.L.R.B. 1470 (N.L.R.B. 1946)

In the Matter Of WILLIAMS BROWNELL PLANING MILL COMPANY, IN-
CORPORATED and UPHOLSTERERS INTERNATIONAL UNION OF N. A.,
A. F. OF L., LOCAL 336
Case No. 5-R-2096.-Decided February 27, 1946
Mr. Kester Walton, of Asheville, N. C., for the Company.
Messrs. Carl H. Bradley and A. H. Hanson, of Asheville, N. C., for
the Union.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Upholsterers International Union of
N. A., A. F. of L., Local 336, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Williams Brownell Planing Mill Company, Incorpo-
rated, Biltmore, North Carolina, herein called the Company,' the
National Labor Relations Board provided for an appropriate hearing
upon due notice before George H. Weasler, Trial Examiner. The hear-
ing was held at Asheville, North Carolina, on November 1, 1945. The
Union appeared, participated, and was afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Company appeared specially at the
opening of the hearing and filed a motion for a continuance of the
hearing herein until such time as a representative is appointed with
legal authority to attend to the affairs of John P. Hansen, president of
the Company, who was then confined to an institution, and to exercise
official authority for the Company.2 It also objected to any further
proceedings in this matter. The Trial Examiner denied the motion
for continuance and overruled the objection. His rulings are hereby
upheld.
It is clear that the Company, a North Carolina corporation, is a legal
entity, and that it and not the president is a necessary party to this
proceeding. Moreover, the contention of counsel for the Company
The name of the Company appears as corrected at the hearing.
s John P Hansen owns approximately 95 percent of the stock of the Company. It was
the position of the Company that he is the sole and exclusive person having managerial
functions
65 N. L. R. B., No. 240.
1470 -
WILLIAMS BROWNELL PLANING MILL CO., INC. 1471
that "there was no one with legal authority or with proper authority to
act" is refuted by the record. In this connection it appears that the
Company has uninterruptedly continued to function as a going concern
since "sometime during the year 1943" when John P. Hansen, the presi-
dent of the corporation, was committed to a hospital for the mentally
incompetent, and that since September 25, 1945, wage increases have
been authorized by Chester A. Honeycutt, as assistant to Mr. Hansen,
who apparently has been operating the Company's business during the
latter's absence, with the advice and assistance of certain other employ-
ees of the Company. The Company thereafter participated with the
understanding that it would not thereby prejudice its position. It was
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. All other
rulings of the Trial Examiner made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties were afforded oppor-
tunity 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
Williams Brownell Planing Mill Company, Incorporated, a North
Carolina corporation, having its principal office and only plant at
Biltmore, North Carolina, is engaged in the business of buying and
selling lumber. During the year 1944 the Company purchased logs
and other raw materials valued in excess of $100,000, all of which was
obtained within the State of North Carolina. During the same
period the Company sold finished products valued in excess of
$200,000, of which approximately 90 percent represented sales and
shipments to points outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Upholsterers International Union of N. A., Local 336, affiliated
with the American Federation of Labor, is a labor organization ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of its employees until the
Union has been certified by the Board in an appropriate unit.3
3 The Company gave as additional grounds for refusing to grant recognition to the
Union the reasons set forth in its motion for continuance filed at the beginning of the
hearing.
679100-46-vol 65-94
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate 4
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.
IV. THE APPROPRIATE UNIT
The Union seeks a unit of all production and maintenance workers,
including watchmen 5 and firemen, but excluding yard employees,
office clericals, and supervisory employees.6 The sole dispute between
the parties relates to the yard employees, whom the Company would
include.
The Company employs approximately 94 workers, excluding super-
visors and office personnel. Among these are approximately 20 yard
employees who are generally stationed in a yard adjoining the Com-
pany's buildings housing the dry kiln, 2 machine rooms, and 1 shipping
department and storage shed. In this yard the Company stores lum-
ber until such time as it is used in the various parts of the planing
mill. The yard employees stack lumber, remove it from trucks and
freight cars, and carry it into the mill as needed. These employees,
like all other workers of the Company, except the office personnel, are
hourly paid, work the same hours, have the same working conditions,
receive the same holidays, use the same toilet facilities and rest rooms,
and punch the same time-clocks in the main mill. The yard employees
work inside the planing mills when necessary and some of the pro-
duction employees and haulers in the mill occasionally work in the
yard. The parties would include a ii timber of yard truckers who work
in close contact with the yard employees, operating trucks which carry
lumber in and about the yard, into the planing mills, and to and from
the kilns. Under all the, circumstances in the case, including the
degree of interchange of yard employees with mill personnel and the
considerable integration of the Company's corporations, we are of the
opinion that the interests of the yard workers are clearly identified
with those of the production and maintenance workers, and we shall,
therefore, include them in the unit.
We find that all production and maintenance employees, nicluding
yard employees, yard truckers, watchmen, and firemen, but excluding
bookkeepers, clerical employees, foremen, and all or any other super-
visory employees with authority to hire, promote, discharge, disci-
'The Field Examiner reported that the Union submitted 48 authorization cards bearing
the names of employees listed on the Company's then current pay roll and that there are
approximately 76 emploiees in the alleged appropriate unit
The record shows that the watchmen are neither armed, militarized, nor deputized
6 The unit appears above as amended at the hearing.
WILLIAMS BROWNELL PLANING MILL CO., INC. 1473
pline, or otherwise effect changes in the status of employees, or effec-
tively 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
At the hearing the Union requested that the pay roll for the period
following the hearing be used to determine eligibility to vote in any
election that the Board might direct. Inasmuch as no sufficient reason
appears for departing from the usual pay-roll date, we shall direct
that the question concerning representation which has arisen be
resolved by an election by secret ballot among the employees in the
appropriate unit who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
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 Relations
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 Williams Brownell
Planing Mill Company, Incorporated, Biltmore, North Carolina, an
election by secret ballot shall be conducted 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 Fifth
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 employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period imme-
diately preceding the date of this Direction, including 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 themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged 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 Upholsterers International Union of N. A., A.'F. of L.,
Local 336, for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.