Ash Grove Lime & Portland Cement Co.

National Labor Relations Board - Board Decisions

Aug 6, 1946

69 N.L.R.B. 1251 (N.L.R.B. 1946)

In the Matter of ASH GROVE LIbIE & PORTLAND CEMENT COMPANY,
EMPLOYER and UNITED CEMENT, LIME & Gypsum WORKERS INTER-
NATIONAL UNION, LOCAL No. 229, A. F. L., PETITIONER
Case No. 17-B-14-1l.-Decided August 6, 1946
Messrs . Myron K. Ellison and L. Kittle , of Kansas City, Mo., and
Mr. Paul Sunderland , of Springfield, Mo., for the Employer.
Mr. E. G. Hammer, of St . Louis, Mo., and Mr. Orval Webber, of
Dewey, Okla., for the Petitioner.
Messrs. John J. Manning and Clif Langsdale , of Kansas City, Mo.,
for the Engineers and Hod Carriers.
Mr. Frank Cline , of Springfield , Mo., for the Engineers.
Mr. Otto Bowles, of Springfield , Mo., for the Hod Carriers.
Mr. Harvey B. Diamond, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed, hearing in this case was held at Kansas
City, Missouri, on May 23, 1946, before Harry L. Browne, Trial Exam-
iner. The Employer, the Petitioner, International Union of Operat-
ing Engineers, Local No. 16 and 16-B, AFL, hereinafter called the
Engineers, and International Hod Carriers and General Laborers
Union, Local No. 676, AFL, hereinafter called the Hod Carriers, ap-
peared and participated. At the hearing the Engineers and the Hod
Carriers moved to dismiss the petition on the ground that the prior
certification of the Board barred the present proceeding. The Trial
Examiner reserved ruling on the motion for the Board. For reasons
stated in Section III, infra, the motion is hereby denied. The Trial
Examiner also reserved for the Board ruling on a motion by the
Engineers and the Hod Carriers that the Board refuse to accept juris-
diction in the instant proceeding on the ground that the unions herein
are all affiliated with the American Federation of Labor and are in-
volved in a jurisdictional dispute. The motion is hereby denied. The
69 N. L. R. B., No. 148.
1251
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer, in its brief, moves the Board to reverse the ruling of the
Trial Examiner permitting the Engineers and the Hod Carriers to
intervene on the ground that neither union has shown a,present inter-
est among employees of the Employer. The motion is hereby denied,
The Trial Examiner's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Ash Grove Lime & Portland Cement Company is a Maine corpo-
ration with its principal office in Kansas City, Missouri, and operat-
ing plants in Springfield, Missouri ; Galloway, Missouri ; Chanute,
Kansas; and Louisville, Nebraska. Involved herein are only the
Springfield and Galloway plants. At its Springfield plant, the Com-
pany is engaged in the quarrying of stone and the manufacture of
lime. During the year 1945, the Employer purchased for its Spring-
field plant raw materials and supplies valued at in excess of $50,000,
50 percent of which was received from points outside the State of
Missouri. During the same period the Employer sold finished prod-
ucts produced at the Springfield plant valued at in excess of $100,000,
80 percent of which was shipped to points outside the State of
Missouri.
The Galloway plant of the Employer is also engaged in the quarry-
ing of stone and the manufacture of crushed stone. During the year
1945, the Employer's purchases for the Galloway plant were valued
at in excess of $5,000, none of which was received from points outside
the State of Missouri. During the same period the Employer sold
finished products produced at the Galloway plant valued at in excess -
of $25,000, all of which were shipped to points within the State of
Missouri. Approximately 20 percent of the output of the Galloway
plant is transferred to the Springfield plant for further processing.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner, the Engineers, and the Hod Carriers are labor
organizations affiliated with the American Federation of Labor,
claiming to represent employees of the Employer.
1 See Matter of 0. D. Jennings & Company, 68 N. L . R. B. 516 , and cases cited therein.
ASH GROVE LIME & PORTLAND CEMENT COMPANY 1253
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The Engineers was certified as exclusive bargaining representative
of the machine operators at the Springfield plant on August 7, 1944.2
On December 27, 1944, as a result of elections held at the Galloway
plant, the Engineers was certified as bargaining representative of the
machine operators, and the Hod Carriers, as bargaining represent-
ative of the production and maintenance employees.3 After several
months of unsuccessful negotiations with the Employer, the Hod
Carriers and the Engineers called their members out on strike on
March 28, 1945. Further negotiations were carried on between the
Employer and the two unions until about July 15, 1945. However,
no contract resulted therefrom and the strike remained unsettled at
the time of the hearing.- The engineers and the Hod Carriers con-
tend that, inasmuch as they have not yet enjoyed the benefits of their
previous certifications, the Board should dismiss the petition in the
instant case. In the interest of stabilizing conditions essential to
collective bargaining, the Board has customarily held that its certifi-
cation generally should remain effective for a period of 1 year 4
Although we have extended the period beyond 1 year in cases wherein
special circumstances exist; we find no reason to do so in the instant
cases
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS; DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a unit composed of all production and mainte-
nance employees at both the Springfield and Galloway plants, includ-
ing machine operators, but excluding supervisory and clerical em-
ployees.? The Employer is in accord with the unit sought by the
Petitioner. The Engineers and the Hod Carriers oppose the posi-
tion of the Petitioner and the Employer and contend that separate
2 See 57 N. L. R. B. 111. (Decision and Direction of Election.) The Hod Carriers failed
to obtain a majority of the votes cast by the production and maintenance employees at the
Springfield plant and withdrew its petition.
3 See 59 N. L . R. B. 572 ( Decision and Direction of Election).
4 Matter of Aluminum Company of American , Newark Works, 57 N. L . R. B. 913.
5 Matter of Allis-Chalmers Manufacturing Company, 50 N. L. R. B. 306.
6 Matter of P. Lorillard Company, 66 N. L. R. B. 615 ; Matter of International Harvester
Company-Canton Works , 66 N. L. R. B. 527.
7 There are approximately 78 employees in the alleged appropriate unit.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units of machine operators and the remaining production and mainte-
nance employees, respectively, should be set up for each plant, as
was done by the Board in the previous cases referred to above.
The Springfield and Galloway plants are located approximately
5 miles apart, and are connected by highway and railroad. Both
plants engage in the quarrying of stone and the manufacture of
crushed stone and allied products. The Springfield plant also man-
ufactures lime B and 20 percent of the stone produced in Galloway
is transported to Springfield for conversion into lime. There is a
general superintendent responsible for the operations at both plants,
and the construction, repair, and maintenance crew, although sta-
tioned at Galloway, also services the Springfield plant. Working
conditions, wage rates, pay days, and personnel policies are substan-
tially the same for employees of both plants. There is considerable
interchange of employees between Springfield and Galloway, and the
Employer states that employees may be promoted from one plant to
a higher position in the other plant.
Although in the previous cases we found appropriate separate units
of employees at Springfield and at Galloway, none of the parties at
that time raised the question of a single, multiple-plant unit, and
no labor organization involved therein claimed to be interested in rep-
resenting all the employees in such a unit. In view of the foregoing,
the integration of operations, the interchange of employees, and the
similar conditions of employment at both plants, we are of the opinion
that all production and maintenance employees of the Springfield and
Galloway plants together constitute a single appropriate unit.9
The Engineers requests that the Board again find appropriate a
separate unit of machine operators. The Employer and the Peti-
tioner urge that machine operators be "included in the production
and maintenance unit. The argument presented in the instant case
concerning the skills, functions, and wage scales of these employees
were considered by the Board in the previous cases wherein we found
that the machine operators could constitute separate appropriate
units. The record herein 10 contains no evidence to warrant a reversal
of such findings. However, in the absence of any history of collec-
tive bargaining, we find that these employees might appropriately be
included in the production and maintenance unit or might function
8 The manufacture of lime at the Galloway plant was discontinued in March 1945. The
Company states that in December 1945, it decided not to reopen the kilns at Galloway and
that probably it will never resume the manufacturing process at that plant. However,
the kilns have not been dismantled.
° Matter of Longhorn Roofing Products, Inc., 67 N. L. R. B. 84.
10 At the hearing the parties stipulated that the transcripts, Decisions and Directions of
Elections , and the Certifications in the previous cases, (consolidated cases 17-R-885 and
17-R-891, reported in 57 N. L. R. B. 111; and consolidated cases 17-R-1001 and 17-R-1002,
reported in 59 N. L. R. B. 572), be made part of the record in the instant case.
ASH GROVE LIME & PORTLAND CEMENT COMPANY 1255
as a separate bargaining unit.,' We shall, therefore, make no present
determination of the appropriate unit as regards the machine op-
erators at the Springfield and Galloway plants, but shall reserve
such finding pending a determination of the desires of the employees
themselves as revealed in the elections which we shall hereinafter
direct. Upon the results of these elections will depend, in part, the
scope of the bargaining unit or units.
As stated heretofore, the Engineers and the Hod Carriers called a
strike on March 28, 1945, and allege that the strike is still in effect.
The Employer contends that the strikers either have returned to
work or have voluntarily terminated their employment and have
been replaced, and that the plants are operating at almost full capac-
ity. The record before us is too incomplete to warrant a present
determination of the currency of the strike. However, we are of the
opinion that the policies of the Act will best be effectuated by declar-
ing eligible to vote, in each of the voting groups, all employees who
were employed during the pay-roll period immediately preceding the
date of the Direction of Elections herein, including employees on
strike'12 if any.13
We shall direct that separate elections be held among the em-
ployees in the voting groups described below, subject to the limitations
and additions set forth in the Direction :
1. All machine operators 14 and their helpers employed at the Em-
ployer's Springfield and Galloway plants, excluding supervisory em-
ployees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action, and all other employees.
2. All production and maintenance workers employed at the Em-
ployer's Springfield and Galloway plants, excluding machine operators
and their helpers, clerical employees, and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
"Although , in the previous cases , the Board found appropriate units of machine opera-
tors prior to the elections , there was at that time no labor organization Interested in includ-
ing them with the production and maintenance employees , and the Hod Carriers, who
claimed to represent the production and maintenance employees , specifically opposed their
inclusion.
32 See Matter of The Rudolph Wurlitzer Company , 32 N. L. R. B . 163; Matter of Columbia
Pictures Corporation, 61 N. L . R. B. 1030, 64 N. L. R. B . 490 ; Matter of Norris, Incorporated,
63 N. L. It . B. 502 ; Matter of Higgins Industries , Inc., 65 N. L. It. B. 50; Matter of Lloyd
Hollister, Inc., 68 N. L. It. B. 733.
'3 Nothing in this decision shall be construed as indicating that the Board has prejudged
in any respect any subsidiary eligibility issues arising from the strike , such as whether
or not specified strikers have lost their employee status as alleged by the Employer. These
questions may be raised by appropriate challenges to the ballots of particular individual3.
14 Classifications included in this group are : power shovel operators , crane operators,
diesel operators , tractor operators , hydration machine operators , veri -fat mill operators,
crusher operators, rock hoist machine operators, clam shell operators, power plant
operators , and mechanic repairmen . These are substantially the same categories as were
Included in the units found appropriate in the Board ' s prior decisions.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in the status of employees, or effectively recommend such
action.
As stated above, there will be no final determination of the appro-
priate unit or units pending the results of the elections.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Ash Grove Lime & Portland
Cement Company, Springfield, Missouri, and Galloway, Missouri,
separate elections by secret ballot shall be conducted as early as possi-
ble, but not later than thirty (30) days from the date of this Direction,
under the direction and supervision of the Regional Director for the
Seventeenth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Sections 10 and 11,
of National Labor Relations Board Rules and Regulations-Series 3,
as amended, among employees in the voting groups described in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction, including employees
on strike and employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and in-
cluding 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 discharged for cause and have not been rehired
or reinstated prior to the date of the elections : (1) to determine with
respect to the employees described in Group (1) of Section IV, above,
whether they desire to be represented by United Cement, Lime &
Gypsum Workers International Union, Local No. 229, A. F. L., or by
International Union of Operating Engineers, Local No. 16 and 16-B,
AFL, for the purposes of collective bargaining, or by neither; and (2)
to determine with respect to the employees described in Group (2) of
Section IV, above, whether they desire to be represented by United
Cement, Lime & Gypsum Workers International Union, Local No. 229,
AFL, or by International Hod Carriers and General Laborers Union,
Local No. 676, A. F. L., or by neither.
Mn. JOHN M. HousTON took no part in the consideration of the
above Decision and Direction of Elections.