Alliance Sand Co.

National Labor Relations Board - Board Decisions

Feb 24, 1954

107 N.L.R.B. 1273 (N.L.R.B. 1954)

ALLIANCE SAND COMPANY 1273
probationary employees were found eligible to vote by the
Board. We reaffirm this finding.
Probationary employees, such as those involved here.,
receive and hold their employment with a contemplation of
permanent tenure, subject only to the satisfactory completion
of an initial trial period. Their general conditions of work
in other respects, and their employment interests, are like
those of regular employees. We do not believe, as a matter
of policy, that the eligibility of probationary employees should
turn on the proportion of such employees who, willingly or
not, fail to continue in the employ of the employer throughout
the trial period. Nor does there otherwise appear any valid
reason, in our opinion, for withholding from probationary
employees the right to vote on the question of collective-
bargaining representation. Consequently, we adopt the rule
for application here and in future cases that probationary
employees are entitled to vote in Board elections.'
[Text of Direction of Election omitted from publication.]
2 To the extent that they are inconsistent herewith, we hereby overrule, e.g., Shelbourne
Shirt Co , 86 NLRB 1308; National Warehouse Corp., 80 NLRB 368; Crossley Corp, 56
NLRB 1722.
ALLIANCE SAND COMPANY and UNITED CEMENT, LIME
AND GYPSUM WORKERS INTERNATIONAL UNION, AFL,
Petitioner . Case No. 4-RC-2150. February 24, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Julius Topol,
hearing officer . The hearing officer ' s rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
We deny the Employer ' s request for oral argument as the
record and brief fully present the positions of the parties
on the issues involved herein.
Upon the entire record in this case , the Board finds:
1. The Employer is a Pennsylvania corporation engaged
in the operation of a sand quarry at Palmertoiq , Pennsylvania,
and a retail outlet for sand and building materials at
Northampton, Pennsylvania. During the year 1952, its total
sales from both operations amounted to $536,065.71, of which
$106,398.54 represents the retail sales made to customers
within the State and not engaged in interstate commerce.
Of the $429,667.17 representing sales from the quarry
operation , $ 45,641 . 76 represents sales to 9 cement companies,
Bethelem Steel Corporation , and New Jersey Zinc Co., all
located within the State but all making annual sales in excess
of $25 , 000 to customers outside the State of Pennsylvania.
107 NLRB No. 268.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employ er made 1 out - of-State sale during the year
1952 amounting to $ 3,989.78. No out-of-State sale was made
in 1953.
Purchases by the Employer during the same period, 1952,
amounted to $189,867 . 73, and were as follows : coal, cement,
etc., purchased within the State for resale at the retail yard
amounting to $77,229.04; equipment purchased within the State
for use at the quarry amounting to $ 104 , 888.07 (no information
was available as to whether any part of this equipment
originated outside the State ); and repair parts for quarry
machinery purchased from outside the State , amounting
to $ 7,750.62.
Both parties stipulated that Dragon Cement Company, 1 of
the Employer' s customers , owns approximately 60 percent of
the stock of the Employer . This company has 2 plants: 1 in
Northampton , Pennsylvania , and 1 in Thomason , Maine. Each
of these plants annually sells and ships in interstate commerce
products valued in excess of $ 100,000 . The Employer transacts
business with the Dragon Cement Company on the same basis
as it does with other companies . Total sales to Dragon Cement
Company approximated $ 4,047.42 during the year 1952.
The Employer moved to dismiss the petition on the ground
that its operations do not affect commerce within the meaning
of the Act, and that, in any event, the Board should not assert
jurisdiction here . The motion is denied . The Board does not
consider the facts concerning the relationship between the
Employer and the Dragon Cement Company sufficient to estab-
lish integration of these corporations to the extent that it
will regard them for jurisdictional purposes as one operation. I
However , upon the basis of all the facts, the Board finds that
the Employer is engaged in commerce within the meaning
of the Act and that it would effectuate the policies of the Act
to assert jurisdiction herein . In asserting jurisdiction, Members
Murdock and Peterson rely upon the principle stated in Rutledge
Paper Products , Inc ..' Chairman Farmer concurs in the
assertion of jurisdiction but is not to be deemed thereby as
agreeing with the Board ' s present standards as a permanent
policy.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. 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 Petitioner seeks a unit of employees who work at
the quarry at Palmerton , Pennsylvania , and at the crusher
and screening plant located about 1,500 feet from the quarry.
It would exclude all employees at the retail yard , 3 truckdrivers
and a helper , and the office clerical employees who are located
iSee Toledo Service Parking Company , 96 NLRB 263; Jefferson Co , Inc.,105 NLRB 202.
2 91 NLRB 625.
ALLIANCE SAND COMPANY 1275
about 11 miles from Palmerton, at Northampton, Pennsylvania.
The Employer took no position at the hearing as to the
truckdrivers and helper, but in its brief urges their inclusion
in the unit. It agrees to the exclusion of the office clerical
employees who are located at Northampton and handle the
clerical work for both operations.
The Employer ' s operation consists of drilling and blasting
for the material at the quarry , located on top of a mountain.
The stone is then picked up with a power shovel and conveyed
to the crusher plant by motor vehicles called"quarrying
dumpters. " After being crushed the stone is stockpiled. A
conveyor belt carries it from the stockpile to the screening
plant located approximately 1,500 feet down the mountain,
where it is screened and sized , put into different bins from
where it is loaded onto trucks and railroad cars for delivery.
Two of the truckdrivers from the retail yard spend ap-
proximately 50 percent of their time hauling sand from the
quarry to the retail yard, and the remaining 50 percent in
hauling purchased coal to the yard. The other 2 truckdrivers
make deliveries from the yard to customers. Although a
truck is kept at the quarry, no employee there is classified
as a truckdriver, but anyone who has need of a truck for any
purpose uses it. Many of Employer ' s customers use their
own trucks to take sand from the quarry, and the Employer
has a contract hauler who does its hauling.
The record is silent as to the supervision of the truckdrivers,
but apparently they work out of the retail yard not covered
by the unit here requested. There is no evidence of interchange
between these truckdrivers and the employees at Palmerton.
We find that the contact between the Palmerton employees
and the truckdrivers is not sufficient to justify including
the truckdrivers from the retail yard in the unit of quarry
and screening operation employees.
The parties agree that the superintendent of the Palmerton
operation is a supervisor, but the Petitioner would include
all other employees; the Employer would exclude the assistant
superintendent, shift foremen, and watchmen.
Assistant superintendent: Elmer Abner had occupied this
position for only 3 or 4 months before the hearing. Prior
to that he had been a well driller. His duty is to repair and
maintain all equipment at both the quarry and screening
plant, to assist the superintendent, and in the absence of the
superintendent to keep everything operating. During the brief
period Abner has served as assistant superintendent, the
superintendent has not been absent longer than part of a day,
according to Ahner, and a day or two, according to the
Employer. The Employer states that Abner has not been given
the authority to discharge employees. He has recommended
the hiring of a person who was subsequently hired and he has
had occasion to reprimand an employee . During the super-
intendent ' s absence, he may find it necessary to reassign
some employees when a breakdown occurs . However, Ahner
127 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the superintendent usually leaves instructions
when he leaves ; that he does notknowwhether he can discharge
an employee ; and that his disciplinary duties have not been
described to him , In view of all the facts , particularly the fact
that Ahner ' s position is above that of the shift foremen, dis-
cussed below , who are supervisors , we find that the assistant
superintendent is a supervisor and we exclude him from the unit.
Shift foremen : At the screening plant the Employer operates
3 shifts . Alternating between the first and second shifts are 2
foremen, Clifford Messinger and Thomas Wehr . Both have
been with the Employer a number of years and each testified
he had authority to hire and discharge , and/or effectively to
recommend such action . No occasion has arisen for them to
discharge anyone , nor have they made any recommendation
for such action. Both have effectively recommended the
hiring of employees.
As shift foremen, each performs the duties of weighmaster
and repairman , and directs the activities of approximately
five men on bis shift . Two instances are given in the record
where Clifford Messinger exercised disciplinary authority.
Both shift foremen are hourly paid, but receive a 10-cent
to 15-cent higher hourly rate than other shift employees
are paid. In view of the above facts and the uncontradicted
testimony that they have authority to hire and discharge,
we find that the shift foremen are supervisors as defined
in the Act and exclude them from the unit.
On alternating weeks, William Swanger is in charge of the
third shift . Every other week, the men work without a leader,
receiving instructions from Messinger before he leaves. Both
parties stipulate that when Swanger works on the day shift,
he is a rank - and-file employee; that when he works on the
night shift he directs the employees in their routine duties;
that in matters involving the use of independent judgment, he
confers with the superintendent. Neither party objects to
including Swanger in the unit. In view of the above, we find
that he is not a supervisor and shall include him in the unit
hereafter found appropriate.
Watchmen: The Employer has 2 employees who spend in
excess of 50 percent of their time making periodic trips around
the premises of the Employer to watch for fire and protect
the property from theft . In their spare time, they perform
duties such as greasing in the crusher room, cleaning the
office at the quarry , and other miscellaneous chores. We
find the watchmen are guards and exclude them from the unit.'
The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's
operation at Palmerton , Pennsylvania , including the employees
3 Walterboro Manufacturing Corporation , 106 NLRB 1383.
DANKNER MOTOR SALES 1277
at the quarry crusher and screening operation, but excluding
all employees at the retail yard and in the office at Northampton,
Pennsylvania, the assistant superintendent, shift foremen,
watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Member Rodgers took no part in the consideration of the
above Decision and Direction of Election.
DAVID DANKNER d/b/a DANKNER MOTOR SALES and
AMERICAN FEDERATION OF LABOR. Cases Nos. 3-CA-
678 and 3-CA-693. February 25, 1954
DECISION AND ORDER
On October 30, 1953, Trial Examiner George A. Downing
issued his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that he
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report, and the Respondent
filed a supporting brief. The Respondent's request for oral
argument is hereby denied as, in our opinion , the exceptions
and brief adequately present the issues and the positions of
the parties.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire
record in these cases, and hereby adopt the findings,' con-
clusions , and recommendations of the Trial Examiner.
ORDER
Upon the entire record in these cases , and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the Re-
spondent, David Dankner d/b/a Dankner Motor Sales, Buffalo,
New York, his agents , successors , and assigns , shall:
1. Cease and desist from:
,Although Chairman Farmer and Board Member Rodgers agree that jurisdiction should
be asserted in this proceeding on the basis of the direct inflow, they are not to be deemed
thereby as agreeing with the Board's present jurisdictional standards. Members Murdock
and Peterson would assert jurisdiction on the customary basis that the Respondent is an
integral part of a nationwide system for the distribution of automobiles. Baxter Bros., 91
NLRB 1480; Howell Chevrolet Co. v. N. L. R. B., 346 U. S. 482 (1953).
107 NLRB No. 272.
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