Berry Asphalt Co.

National Labor Relations Board - Board Decisions

Mar 27, 1943

48 N.L.R.B. 677 (N.L.R.B. 1943)

In the Matter of BERRY ASPHALT COMPANY 'and INTERNATIONAL UNION
OF OPERATING ENGINEERS , LOCAL #383, A. F. OF L.
Case No. R-4994.-Decided March 27, 1943
Jurisdiction : petroleum products manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize the union until certified by the Board ; election necessary.
-Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, including,extra-men, the-warehouseman, and hourly rated gang pushers,
but excluding supervisory and clericahemployees;.extra-men included although
parties would have excluded them, when they had been employed by the
company for over ten years and had acquired certain unspecified privileges
resulting from their tenure of employment.
Messrs . A. T. Van Pelt and 'Roger N . Smith, of Waterloo , Ark., for
the Company.
Mr. J. D. McPherson, of.Little Rock , Ark., for the Union.
Mr. Wallace E. Royster, of counsel to the Board.
DECISION
AND
-DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by • International Union of Operating
Engineers, Local #383, A. F. of L., herein. called the Union, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Berry Asphalt Company, Waterloo, Arkan-
sas, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing ^upon,due notice before Baker
McAlpin, Trial Examiner. Said hearing was held at Prescott,
Arkansas, on March 9, 1943. The Company and the Union appeared,
'participated, and were afforded. full opportunity to be heard, to
' examine and cross-examine -w.iess, and to introduce evidence bear-
ing on the issues. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
48 N. L. R. B., No. 84.
677
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, `the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
' Berry Asphalt Company -is an Illilrois,corporation with a plant and
offices in Waterloo, Arkansas, where it is engaged in the production of .
fuel oils, lubricating oils, and-,asphalt: -"The, principal raw materials
used by the Company are crude oils and light distillates, of which
-'approximately 1 percent is received•at the Waterloo plant of the Corn-
pany from poillts outside Arkansas.'-, During the last 6 months of
-'1942, approximately 70 percent,of the. Company's products was shipped
from the Waterloo plant to points outside-Arkansas.
The Company concedes, for the' purpose- of this proceeding, that it
is engaged in commerce within the meaning of the National Labor
Relations Act .
II. THE ORGANIZATION INVOLVED
International Union of Operating Engineers, Local #383, affiliated
with the American Federation of Labor, is'a labor organization.admit-
ting to membership employees of the Company. .
III. THE QUESTION CONCERNING REPRESENTATION
The Company refuses to recognize the Union as the bargaining rep-
resentative of the Company's employees unless and until the Union is
certified as such representative by the Board.
A statement of the Trial Examiner made at the hearing indicates
that the Union represents a substantial number of employees of the
Company in the unit hereinafter found appropriate?
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 parties would exclude from the unit two employees who are
described' in the record as "extra-men." The testimony indicates that,
while these men work only a few months each year, they have been
employed by the Company for over 10 years, and each has acquired cer-
tain unspecified privileges resulting from his tenure of employment.
In view of these circumstances, and in the absence, of a showing, that
such inclusion is inappropriate, we shall include them in the unit." '
' The' Trial Examiner ^ stated that , the Union submitted 82, authorization cards all dated
in December 1942. Seventy-five cards bore the apparently genuine original-'si'gnatures of
persons whose names appear on the Company 's pay roll of January 31, 1943. There are
approximately 97 employees in the appropriate unit.
BERRY ASPHALT COMPANY 679
With the above exception , we find, in accordance with the agreement
of the parties , that the production and maintenance employees of the
Company at its plant in Waterloo, Arkansas , including the above extra-
men, the warehouseman , and hourly rated gang ,'pushers,2 but exclud-
ipg- supervisory and- clerical . employees,3 constitute - a -unit appropriate--
for the purposes of collective bargaining within the meaning of. Sec-
tion 9 ( b) of the Act
V: THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em- -
ployees in, the appropriate' unit who were employed during the pay-roll
per' iod immediatel'y' preceding 'tlie date of the Direction of Election
herein, subject to the limitation and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to`tile 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 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Berry Asphalt
Company, Waterloo, Arkansas; '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- of Election, under the direction and,
supervision of the Regional Director for the Fifteenth Region, acting
in' this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, of said Rules and Regulations,-among'
the employees of the Company 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
for' ces of the United States who present themselves in person at the -
polls, but excluding any wha have since quit or been discharged for
cause, to determine whether or, not they desire to be represented by
International Union of Operating Engineers, Local #383, affiliated'
with the American Federation of Labor, for the purposes of collective
bargaining.
2 Gang pushers direct the work of-from 2 to 10 men. They are paid on an hourly basis
and do not have the power to hire or discharge.
This exclusion encompasses both hourly rated and salaried clerical employees.