Blue Diamond Corp., Ltd.

National Labor Relations Board - Board Decisions

Dec 27, 1939

18 N.L.R.B. 730 (N.L.R.B. 1939)

In the Matter of BLUE DIAMOND CORPORATION , LTD. and INTERNA-
TIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN 'S UNION, LOCAL
1-26
Case No. R-1599.-Decided December 27, 1939
Building Materials Manufacture , Distribution and Placement Industry-In-
vestigation of Representatives : controversy concerning representation ; Company
refused to grant exclusive recognition to petitioner because it did not know
either whether petitioner represented a majority or whether the requested
five-plant unit was appropriate-Unit Appropriate for Collective Bargaining:
production and maintenance employees at Company 's five plants and supply
depots, exclusive of outside truck drivers , "casual" and temporary employees,
supervisors , working foremen , office employees ; controversy concerning outside
truck drivers and "casual" employees ; outside truck drivers excluded because
of past separate collective bargaining with industry , membership in separate
craft organization and desire of one of the rival labor organizations ; "casuals"
excluded because they worked entirely outside the plants and the record failed
to show number and permanence of such employees or extent of interdependence
between them and plant employees-Election Ordered : building trades council
permitted on ballot on behalf of craft organizations represented in the
appropriate industrial unit.
Mr. William R. Walsh, for the Board.
O'Melveny c Algers, by Mr. Homer I. Mitchell, and Mr. John L.
Rush, of Los Angeles, Calif., for the Company.
Mr. Fred J. Rausch and Mr. L. C. Seeliger, of Los Angeles, Calif.,
for Local 1-26.
Mr. A. H. Petersen, of Los Angeles, Calif., for the A: F. of L.
Mr. N. Barr Miller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 21, 1939, and on June 23, 1939, the International Long-
shoremen's and Warehousemen's Union, Local 1-26, affiliated with
the Congress of Industrial Organizations, herein called Local 1-26,
filed with the Regional Director for the Twenty-first Region (Los
Angeles, California) a petition and amended petition, respectively,
alleging that a question affecting commerce had arisen concerning
the representation of employees of Blue Diamond Corporation, Ltd.,
Los Angeles, California, herein called the Company, and requesting
an investigation and certification of representatives pursuant to Sec-
18 N. L . R. B., No. 87.
730
BLUE DIAMOND CORPORATION, LTD. 731
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On September 8, 1939, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 2, ordered an investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On October 23, 1939, the Regional Director issued a notice of
hearing, copies of which were served upon the Company, upon Local
1-26, and upon Central Labor Council, Los Angeles Indr.strial Union
Council, Los Angeles Building Trades Council. The last named
council is entirely or in part composed of various local unions
affiliated with the American Federation of Labor or subdivisions
thereof.
Pursuant to the notice, a hearing was held on November 6 and 7,
1939, at Los Angeles, California, before Mapes Davidson, the Trial
Examiner duly designated by the Board. At the hearing the Ameri-
can Federation of Labor, herein called the A. F. of L., entered its
appearance on behalf of the Los Angeles Building Trades Council,
the local member unions of which are alleged to have members among
the employees of the Company. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all the parties.
. At the outset of the hearing, the Company moved to dismiss the
proceedings on the ground that Section 9 (b) of the Act, empower-
ing the Board to determine the appropriate unit, is an unconstitu-
tional delegation of power in violation of the Fifth Amendment,
because it sets no standard for the guidance of the Board in deter-
mining the appropriate unit. The Trial Examiner reserved his
ruling on the motion. The motion is hereby overruled. During the
course of the hearing the Trial Examiner made a number of rulings
on other motions and on objections to the admission of evidence.
The Board has reviewed all the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY'
Blue Diamond Corporation, Ltd., is a California corporation and
a subsidiary of Los Angeles Industries, Inc., a Delaware corporation.
1 The facts stated herein are derived In part from a stipulation entered into by all the
parties.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company is engaged in the manufacture and distribution of
building materials. Its main plant and offices are, located at Los
Angeles, California, where it manufactures cement, stucco, plaster,
gypsum blocks, tile, lime, and similar building materials. At this
plant it also shears and bends steel bars according to specifications
submitted by its customers, and proportions the materials for con-
crete or prepares ready-mixed concrete for delivery to its customers.
At Roscoe and Valley Park,2 California, it maintains plants for the
excavation of rock and sand. The Company also has supply depots
at Hollywood and Long Beach, California.
In 1938 the Company used raw materials of a total cost Of $628,-
788.95. Of these, $426,272.72 worth were shipped from points outside
California. The largest of these out-of-State items was gypsum,
which comes from Nevada, and amounts to about .10 per cent in
tonnage of all the raw materials used. Some chemicals and a prod-
uct known as Keene cement are also obtained outside of California.
The total value of all products manufactured by the Company in
1938 amounted to $1,440,836.88. Of these products, $70,058.59
worth-a little less than 5 per ceuit-were shipped to points outside
California, chiefly to Nevada, Arizona, Oregon, Washington,
Hawaii, and New Zealand.
The Company employs, in addition to 'its sales and supervisory
forces, approximately 265 persons in its 5 plants and depots, dis-
tributed as follows: Los Angeles, 166; Roscoe, 44; Valley Park, 39;
Hollywood, 2; Long Beach 3. The Company also employs a Varying
number of: "casual" employees, who install reinforced steel bars sold
by the Company to its customers.
H. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's and Warehousemen's Union, Local
1-26, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to membership the Company's produc-
tion and maintenance employees.
Los Angeles Building Trades Council is a labor organization
whose member unions include local unions affiliated with the' Ameri-
can Federation of Labor engaged in the building and construction
trades in the Los Angeles area. The local unions which are mem-
bers of the Council and which have members in the Company's
employ are :
(a) International Hod Carriers, Building and Common, Laborers
Union, Local No. 300.
(b) International Operating Engineers, Local No. 12.
2 The Valley Park plant is also referred to in the record as the El Monte plant.
BLUE DIAMOND CORPORATION, LTD. 733
(c) Building Material and Dump Truck Drivers, Local No. 420,
affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Stablemen and Helpers of America.
(d) Commercial Warehousemen's Union; Local No. 598, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Stable-
men and Helpers of America.
(e) International Bridge, Structural and Ornamental Iron Work-
ers, Local No. 416.
(f) Gunnite' Workers Union, Local No. 345, affiliated with the
International Hod Carriers, Building and Common Laborers Union.
III.. THE QUESTION CONCERNING REPRESENTATION
It was stipulated by the parties that the Congress of Industrial
Organizations 'began to organize employees of the Company on an
industrial basis in February 1939 and enrolled as members employees
of various departments at the Los Angeles plant and at Roscoe and
Valley Park. The stipulation further states that in April 1939
Local 1-26 made' a 'demand on the Company for recognition as the
exclusive bargaining agent for the Company's production and
maintenance employees. The Company refused to grant such recog-
nition on two grounds : -(1) that it did not know whether Local 1-26
represented a majority of the employees; (2) that it did not know
whether a unit which included employees from its five plants was
appropriate.
The record shows that various craft locals of the American Federa-
tion of Labor have members among the employees of the Company,
but none of these organizations has ever made any demand upon
the Company for recognition as the exclusive representative of any
craft or industrial unit of the Company's employees.
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF, THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described .in Section Iabove, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
Local 1-26 desires a unit composed of the production and mainte-
nance employees at the five plants and supply depots of the Company,
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive of outside truck drivers, eight temporary employees en-
gaged in work at the plaster mill, the Company's "casual" employees,
supervisors, working foremen, and office employees.
The A. F. of L. likewise stated that it wanted an industrial unit
composed of the production and maintenance employees of the
Company's five plants and supply depots,3 but disagreed with Local
1-26 as to the confines of the unit by requesting inclusion of out-
side truck drivers and "casual" employees. As previously pointed
out, the Company stated that it did not know whether a five-plant
unit was appropriate.
We see no reason for rejecting the requests of the labor organiza-
tions involved for an employer-wide unit. The outlying plants and
supply depots are all within a radius of 20 miles of the main plant
at Los Angeles. The record shows a substantial interchange of
employees among all the plants and supply depots. The maintenance
department and the garage employees located at the Los Angeles
plant service and repair machinery and trucks for all the plants.
Rock and sand produced in the excavation pits at Roscoe and Valley
Park are apparently essential to many of the manufacturing opera-
tions carried on at Los Angeles. These facts, revealing as they do
the integration of all the Company's operations, convince us of the
appropriateness of the requested employer-wide unit.
The chief controversy on the unit issue involves the Company's
outside truck drivers and the "casual" employees. Local 1-26 would
have them excluded ; the A. F. of L. seeks to have them within the
unit.
Outside Truck Drivers.-The Company has 89 outside truck
drivers engaged in delivering concrete and other building materials
to its customers. They spend most of their time on the highways.
They operate on a 60-hour week as compared to a 45-hour week for
employees in the Los Angeles plant. Their hours of work are
determined to some extent by those maintained on the construction
jobs to which they are delivering materials . Nearly all of these 89
drivers are members of the Building Material and Dump Truck
Drivers Union, a subdivision of the International Brotherhood of
Teamsters, Chauffeurs, Stablemen and Helpers of America, herein
called the ,Teamsters. In 1937 the Teamsters bargained with a
group of operators of the rock industry in the area, of which the
Company is one, and obtained a promise from the group to pay the
wage scale demanded by the Teamsters. The Company has paid its
drivers according to the Teamsters' scale since that time. Company
8 The rival labor organizations agree that the inside haul-out truck drivers, whose work
is performed entirely on the Company 's property , shall be included in the production and
maintenance unit.
BLUE DIAMOND CORPORATION, LTD. 735
officials also stated that they had met and negotiated with representa-
tives of the Teamsters on behalf of the drivers in their employ, but
the nature and outcome of these negotiations are not disclosed by
the record. Although the differences in working conditions which
exist between the outside truck drivers and those of the production
and maintenance unit do not necessarily require their exclusion from
a unit of production and maintenance employees, in view of their
past separate negotiations, their eligibility to membership in a sepa-
rate craft organization, and the request by one of the labor organiza-
tions involved for their exclusion, we will not include them in the
unit 4
"Casual" Employees.-Most of the so-called "casual" employees of
the Company are steel-placement men engaged in the installation of
reinforced steel bars sold by the Company to contractors. They
never work at any of the Company's plants or depots. Their hours
of employment are necessarily governed by those observed by the
contractor-customers for whom the installation work is being done.
The Company employs a permanent superintendent to oversee the
placement work. He hires steel placers and tiers as the need arises.
For the most part the men are supplied through a local hiring hall
maintained by the A. F. of L. An official testified that the Company
is engaged in steel-placement work most of the time. He further
testified. that there are approximately 10 placement men whom the
Company is particularly desirous of hiring for each job because they
are capable of acting as gang pushers or working foremen. These
10 are in the employ of the Company much of the time, although
they work for other employers on occasion. The record, however,
is silent as to the total number of steel-placement men used by the
Company in the course of its operations for any length of time," and
as to the proportion of their total working time spent in the employ
of this Company. Furthermore, there is no showing of the extent
to which operations in the plants of the Company are dependent
upon the placement operations, which are carried on entirely outside
the plants. In the absence of these items of evidence and since this
group is eligible for membership in a separate craft organization,
we find that the steel-placement men and any other "casual"
employees e should not be included within the unit of production and
S we have usually excluded outside truck drivers from a unit of production and mainte-
nance employees at the request of one of the rival labor organizations . Matter of Swift &
Co. and Committee for Industrial Organization , 11 N. L . R. B. 950 , 954. Compare Matter
of The Connor Lumber & Land Company and International Woodworkers of America, Local
125 (C. I. 0. ), 11 N. L. R. B. 776.
c The only testimony offered was that of the president of the Company who stated :
"At the moment I suppose we will have 30 to 50 steel placers."
There is some evidence in the record that the Company from time to time borrows a few
employees from its contractor -customers to assist in the operation of temporary concrete
proportioning plants which it sets up at the place of the contractor -customer 's construction
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance employees working at the Company's five plants ' and
supply depots.
Temporary Employees in the Plaster Mill.-The record shows that
at the time of the hearing there were eight temporary employees
working at the plaster mill in the Los Angeles plant in addition to
the regular employees. Local 1-26 requested that they be excluded.
The A. F. of L. and the Company expressed no preference. There
is nothing in the record to show how long they have been employed,
nor is there any other evidence tending to indicate that they should
be included in the unit. We shall therefore exclude them.
We find that the production and maintenance employees at
the five plants and supply depots of the Company, exclusive of out-
side truck drivers, "casual" employees, temporary employees in the
plaster mill, supervisory employees, working foremen, and office
employees, constitute a unit appropriate for the purposes of collec-
tive bargaining and that said unit will insure to employees of the
respondent the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
None of the labor organizations involved placed in the record any
specific evidence of memberships or authorizations to represent
employees of the Company, although there was testimony that each
has members among the employees. Both Local 1-26 and the A. F.
of L. desire an election by secret ballot, which we shall hereinafter
direct. The A. F. of L. requested that the Los Angeles Building
Trades Council be placed on the ballot as its representative. Inas-
much as all the A. F. of L. locals involved are members of the Council
we shall so direct. The Company agreed to suppy whatever pay roll
the Board might select as proper for purposes of an election. We
shall direct the agent of the Board in charge of the election to use
the last pay roll of the Company preceding the date of this Direction
of Election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Blue Diamond Corporation, Ltd., Los
job to facilitate the delivery of materials . These employees often continue to be paid by
the contractor who collects from the Company for the number of hours they spend in the
service of the Company . Such "casuals " are, of course, to be excluded from the *Company's
production and maintenance unit.
BLUE DIAMOND CORPORATION, LTD. 737
Angeles, California, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. The production and maintenance employees at the five plants
and supply depots of the Company, exclusive of outside truck drivers,
"casual" employees, temporary employees in the plaster mill, super-
visory employees, working foremen, and office employees, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the National Labor. Relations Act.
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 8, of National
Labor Relations Board Rules and Regulations-Series 2, it is hereby
DuIEcTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with the Blue
Diamond Corporation, Ltd., Los Angeles, California, 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 Twenty-first Region, acting in this matter as the agent of the
National Labor Relations Board, and subject to Article III, Section
9, of said Rules and Regulations, among the production and mainte-
nance employees at the five plants and supply depots of the Company,
exclusive of outside truck drivers, "casual" employees, temporary
employees in the plaster mill, supervisory employees, working fore-
men, and office employees, who were in the employ of the Company
during the pay-roll period immediately preceding the date of this
Direction of Election, including those employees who did not work
during such pay-roll period because they were ill or on vacation and
employees who were then or have since been temporarily laid off,
but.excluding any who have since quit or been discharged for cause,
to determine whether they desire to be represented for the purposes
of collective bargaining by the International Longshoremen's and
Warehousemen's Union, Local 1-26, affiliated with the Congress of
Industrial Organizations, or by the Los Angeles Building Trades
Council on behalf of the American Federation of Labor, or by
neither.