Calaveras Cement Co.

National Labor Relations Board - Board Decisions

Apr 12, 1950

89 N.L.R.B. 378 (N.L.R.B. 1950)

In the Matter Of CALAVERAS CEMENT COMPANY, EMPLOYER and UNITED
CEMENT, LIME AND GYPSUM WORKERS INTERNATIONAL UNION, LOCAL
UNION No. 57, AFL, PETITIONER
Case No. 20-RC-757.-Decided April 12, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Rocco C. Sici-
liano, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1: The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain. em-
ployees of the Employer.
3. The Petitioner represented the Employer's production and main-
tenance employees from approximately 1937 until 1948. On October
12, 1948, the Board ordered an election among all production and
maintenance employees, excluding office employees, truck drivers, and
supervisors.' Operating Engineers Local Union No. 3, of the Inter-
national Union of Operating Engineers, AFL, herein called the Inter-
venor, won the election and was certified by the Board on November 3,
1948.2
On June 15, 1949, the Employer and the Intervenor executed a con-
tract to be effective from May 1, 1949, to May 1, 1952. This contract
provides that the Intervenor ".shall be the sole and exclusive collective
bargaining agency for all Employees, as that term is defined in Section
3 hereof, on all matters relating to wages, hours and working condi-
tions, during the term of this Agreement." Section 3 of the contract
provides that "The word `Employees' as used herein shall mean all
Case No. 20-RC-214.
z The Intervenor in. the present case was the Petitioner in the prior case.
89 NLRB No. 44.
378
' CALAVERAS CEMENT COMPANY 379
employees of the [Employer], except the following :" Among those
excepted are "Pack House Personnel."
The petitioner contends that this contract cannot operate as a bar
'to this proceeding because by the terms of the contract, as well as by
the conduct of the Intervenor, the pack house employees have been
excluded from the representation due them.'
Inasmuch as the parties to the contract have departed. from the
certified unit as to a substantial group of employees, we find, apart
from other considerations,' that the contract is not a bar to a determi-
nation of representatives.,
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
4. We find that all production and maintenance employees at the
Employer's San Andreas, California, plant, excluding truck drivers,
professional, office, and clerical employees, guards, and supervisors,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION"
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
9 The other employees excluded are truck drivers, engineers, draftsmen , and various super-
visory and managerial employees . There are approximately 200 production and maintenance
employees , including about 30 pack house employees.
4 The record shows that the pack house employees were urged by the Intervenor about
June 1949 to join the International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers , Local 439 , AFL, herein called the Teamsters . The Intervenor states that these
employees were urged to become members of the Teamsters because they properly come
within the jurisdiction of that union . The Intervenor denies that it has surrendered to
the Teamsters the exclusive right to represent these employees in collective bargaining. It
asserts that it has, and.is now representing the pack house employees, and that there has
been no change in their conditions of employment since they transferred to the Teamsters.
° As we find that the contract is not a bar for the reasons stated above, we find it unneces-
sary to consider the other issues raised by the Petitioner.
° Cf. Savannah Electric and Power Co., 48 NLRB 33.
Either participant in the election directed herein may , upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from the ballot.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining,
by United Cement, Lime and Gypsum Workers International Union,
Local Union No. 57, AFL, or by Operating Engineers Local Union
No. 3, of the International Union of Operating Engineers, AFL, or
by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.