Dolese Bros. Co.

National Labor Relations Board - Board Decisions

Feb 18, 1946

65 N.L.R.B. 1124 (N.L.R.B. 1946)

In the Matter of DOLESE BROS. Co. and CONSTRUCTION MATERIA>u.
WORKERS ASSOCIATION, INC.
Case No. 16-R-14,58-Decided February 18, 1946
Mr. Adair Dyer, of Dallas, Tex., and Mr. Roger Dolese, of Oklahoma
City, Okla., for the Company.
Mr. W. T. Hughes, of Tishomingo, Okla., for the Union.
Mr. Arnold Ordman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Construction Material Workers Asso-
ciation, Inc., herein called the Union,, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Dolese Bros. Co., Oklahoma City, Oklahoma, herein called the Com-
pany,2 the National Labor Relations Board provided for an appropri-
ate hearing upon due notice before Glenn L. Moller, Trial Examiner.
The hearing was held at Oklahoma City, Oklahoma, on November 12,
1945. The Company and the Union appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Dolese Bros. Co., a Delaware corporation, has its principal office
and place of business at Oklahoma City, Oklahoma. The Company
operates rock quarries and retail facilities for the sale of its products
at two locations in the State of Kansas, and nine locations in the State
of Oklahoma. It operates a quarry and rock-crushing plant at Rich-
1 The Trial Examiner granted, without objection, a motion to amend all formal papers
to designate the Union as set forth above.
2 The Company's name was also corrected by motion.
65 N. L R. B, No. 196.
1124
DOLESE BROS. CO. 1125
ards Spur, Oklahoma, and two quarries and rock-crushing plants at
Big Canyon, Oklahoma.3 During the year 1944 the Company sold ap-
proximately $1,774,780 worth of its finished product. Of this amount
$246,215 worth was from its Big Canyon operations, and $308,215
worth from its Richards Spur operations. Of Big Canyon's product,
approximately 9i/2 percent is shipped to points outside the State of
Oklahoma, and approximately 36 percent is sold to the Santa Fe Rail-
way system. With respect to Richards Spur's product, about 31/2
percent is shipped to points outside the State of Oklahoma, and about
9 percent to the Rock Island Railroad. Both railroads mentioned are
interstate carriers, and the Company's product is used by them in the
construction and maintenance of their track and roadbeds and related
work.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Construction Material Workers Association, Inc., is a labor organ-
ization admitting to membership employees of the Company.'
III. THE QUESTION CONCERNING REPRESENTATION
It appears that at the hearing the Company refused to recognize the
Union as the bargaining agent of the employees in the unit hereinafter
found appropriate.5
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees 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.
8 One quarry and rock -crushing plant is located in Big Canyon itself, and the other is
located in Arbuckle , one-half mile distant.
* The Company does not concede that the Union herein is a labor organization , partly
upon the ground that its corporate charter was not offered in evidence at the hearing.
However, the record discloses that the Union exists and functions as a labor organization
as defined by Section 2 (5) of the National Labor Relations Act.
That a proper demand for recognition may not have been made prior to the hearing
is not fatal to the Union 's petition . See Matter of Houston Blow Pipe and Sheet Metal
Works, 53 N . L R. B. 184.
6 The Field Examiner reported that the Union submitted 9 cards bearing the names of
employees listed on the Company 's pay roll of August 19, 1945, and that the cards were
dated March 1944. There are approximately 24 employees in the appropriate unit.
The cards submitted were made out jointly to "American Federation of Labor and W. T.
Hughes." It was contemplated at the time to obtain admission to the A. F. of L. How-
ever , there was prolonged delay in procuring this admission . Consequently, in November
1944, Hughes and the members he had organized withdrew their petition to the A. F. of L.
and formed the Union . In the light of these facts, we reject the Company ' s contention that
the Union is a new organization and that the cards it offers cannot be used to establish
its interest in this proceeding . Cf. Matter of Beatrice Creamery Company, 41 N. L. R. B.
1197.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TV. THE APPROPRIATE UNIT
The Union contends that the appropriate unit should include all
production and maintenance employees at the Company's Big Canyon
and Arbuckle plants, excluding clerical employees and all supervisory
employees. The Company declined to take any position with respect
to the appropriate unit, but questions the wisdom of including the
Arbuckle plant in the unit.
The Company's production operations are under the general manage-
ment of its president. Responsible to him are 2 general superintend-
ents. Each quarry and adjacent crusher, with the exception of the
Big Canyon and Arbuckle operations, is under the direction of a super-
intendent. The Big Canyon and Arbuckle quarries and plants are
under the supervision of a single superintendent and the office at the
Big Canyon plant serves both operations. Big Canyon is a company-
owned community and persons employed at Arbuckle and Big Canyon
are eligible to occupy the company houses. The Big Canyon opera-
tions are substantially larger than those at Arbuckle, employing ap-
proximately twice as many workers. The latter quarry and crusher
are operated only when the volume of business is such that the Big
Canyon plant is unable to handle it, in which event both plants are
operated simultaneously, or when the volume of business has decreased
to such an extent that the Company concludes that it is more economi-
cal to operate only the Arbuckle plant. When the former situation
occurs, the Company staffs the Arbuckle operations with a nucleus of
about 6 or 7 employees from Big Canyon and employs additional per-
sonnel from among the local residents. The Arbuckle plant was last
in operation early in 1944. It can employ from 12 to 25 persons.
When only the Arbuckle plant is operated, the Company transfers the
Big Canyon employees to Arbuckle, laying off such personnel as it con-
cludes will be unnecessary to the conduct of the operations at the
smaller plant. Although separate pay rolls are maintained for each
plant, it is apparent that this is done principally for the purpose of
cost allocation. Thus, it is not uncommon for the same employees to
appear on both pay rolls during the same week.
These facts show clearly that the Arbuckle and Big Canyon plants,
which are only half a mile apart, are actually a single, integrated
operation and cannot feasibly be separated for collective bargaining
purposes.' Within the limits of general personnel policies and wage
scales, which are determined by the home office, the plant superintend.
ent is in complete charge of the employees at Big Canyon and, when
it is operating, at Arbuckle. We find, consequently, that the employees
of the Company at its Big Canyon and Arbuckle operations constitute
a single appropriate unit.
T Other facts revealing close integration are : a common maintenance crew used at both
plants. frequent temporary interchange of employees common well drillers who drill for
both quarries on the basis of need for rock at each location.
DOLESE BROS. CO. 1127
There are two clerks who work in the Big Canyon office, handling
the preparation of pay rolls and the billing and invoicing of all in-
coming and outgoing materials. The Union would exclude them from
the unit. In conformity with our practice of excluding office workers
from units of operating employees, the clerks will be excluded.
There remains for consideration the supervisory status of Ben Wyatt
and John Rhodes. The Union contends that they are supervisory em-
ployees and the Company that they are not.
Ben Wyatt has been in the Company's employ 37 years and until
recently was carried on the Company's pay roll as a foreman. He
acted as quarry foreman at the Big Canyon plant from 1920 until
about 1941, but since that time has done various kinds of production
work, acting in a semi-supervisory capacity only when directing the
work of laying track on the quarry floor. Wyatt denied that he, ever
made a recommendation affecting the status of employees and other
witnesses testified that they consider Wyatt to be merely another
worker. The superintendent spends the major portion of his time at
the Big Canyon operations and is in a position to observe and person-
ally supervise the employees. The record fails to support the Union's
contention that Wyatt is a supervisory employee. He will therefore
be included in the unit.
John Rhodes lives in a house on a farm adjacent to the quarry prop-
erties, owned by the president of the Company. He has been in the
employ of the Company 24 years. Rhodes has worked as a brakeman
on a dinkey locomotive since March 1944. During the past 15 years,
however, whenever both the Big Canyon and Arbuckle plants have
been operated simultaneously, Rhodes has always been quarry fore-
man at the Arbuckle operations. One witness testified that several
years ago he had seen Rhodes send two men to the office for refusing to
obey orders and that the men were discharged. Although Rhodes,
denied this, he admitted that men have come to him and asked him
to recommend them for promotions; that he has clone so when he felt
that such promotions were deserved; and that sometimes these recom-
mendations were effective. Rhodes also admitted that although he has
never transferred men from one kind of work to another, his recom-
mendations on this subject have generally been followed. Inasmuch
as the superintendent spends most of his time at the Big Canyon plant,
it is obvious that considerable supervisory responsibility falls upon
Rhodes when he acts as quarry foreman. From the foregoing and
upon the entire record we find that John Rhodes is a supervisory em-
ployee.8 Our conclusion is not altered by the fact that he is not pres-
ently acting in a supervisory capacity.,
8 In reaching this conclusion we have considered the facts that Rhodes receives a lower
wage than some production employees and does not himself assign men to particular jobs,
merely passing on instructions fi om the superintendent.
U Matter of Freeport Sulphur Company, 57 N. L R B. 1756 ; Matter of Utah Copper
Company , 57 N L It B 308
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production and maintenance employees of the Com-
pany at its Big Canyon and Arbuckle plants,10 excluding all clerical
employees, the superintendent, and all other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action,". constitute a unit appropriate for the purposes of col-
lective bargaining within the cleaning of Section 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 employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National La-
bor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Dolese Bros.
Co., Oklahoma City, Oklahoma, 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, under the direction and supervision
of the Regional Director for the Sixteenth Region, acting in this mat-
ter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work dur-
ing said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including 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 election, to determine whether or not they desire to be rep-
resented by Construction Material Workers Association, Inc., for
the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.
"o Including Ben Wyatt.
n Including John Rhodes.