Kaiser Cement & Gypsum Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1966

158 N.L.R.B. 1740 (N.L.R.B. 1966)

1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of her right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 528
Peachtree -Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone
No. 526-5741.
Kaiser Cement & Gypsum Corporation and Hawaii Teamsters &
Allied Workers , Local 996, Petitioner . Case No. 37-RC-1328.
June 9, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Dennis R. MarCarthy. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 ('b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagoria].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations 1 involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections 9
(c) (1) and 2(0) and (7) of the Act.
4. The Employer operates a cement production plant at Waianae,
Hawaii, and cement distribution facilities at pier 32 in Honolulu,
Hawaii, in Hilo, Hawaii, and in Kahului, Hawaii. In its petition,
the Petitioner sought to represent a unit consisting of the three
facility operators employed by the Employer at the distribution facil-
ities at pier 32, Hilo, and Kahului. At the hearing, the Petitioner
amended its petition to include two facility operator helpers (helpers)
employed by the Employer at Hilo and Kahului, but excluding em-
i Operating Engineers Local Union No 3 of the International Union of Operating Engi-
neers, AFL-CIO, hereinafter called the Intervenor , was permitted to intervene at the bear-
ing on the basis of a contractual interest in the employees involved.
158 NLRB No. 148.
KAISER CEMENT & GYPSUM CORPORATION 1741
ployees Domingo Flores, Martian Piligrino, and Frank Torres, also
classified as helpers, employed at pier 32. The Employer and the
Intervenor contend that the unit should include the latter three
employees. The Intervenor contends further that the unit should also
include four maintenance mechanics and two truckdrivers working
at pier 32.
Duties of Facility Operators and Helpers
A facility operator at a distribution facility is a leadman who
"exercises such duties as a leadman would by directing" helpers work-
ing under him and "in addition to that, he is responsible for initiat-
ing the paperwork, [such as] shipping bills of lading" involved in
the sale of cement to customers. A facility operator "spends approxi-
mately 60 to 70 percent of his time performing the same duties" per-
formed by the helpers. Supervision of facility operators is con-
ducted by telephone by supervisors located at the cement production
plant at Waianae.
A helper does "general labor work, occasional sacking, or filling
sacks with cement, cleanup, oiling, [and] whatever the facility oper-
ator has need of in regards to help."
History of Employer Operation and Bargaining
In 1939 the Employer established both a production plant and a
distribution facility at pier 32. In 1948 the Intervenor became the
bargaining representative of the employees at pier 32 and represented
such employees in a single unit until 1960. In 1960 the Employer
built a cement production plant at Waianae, and the Intervenor
petitioned for and received recognition for the employees at this
plant. Such recognition culminated in a collective-bargaining agree-
ment covering employees at the Waianae facility together with
employees at pier 32. The agreement established common seniority
for the employees at both locations. Over a period of approximately
4 years, the number of employees regularly employed at pier 32
decreased from 13 to the present total of 4. The employees involved
in this reduction-in-force were transferred to the Waianae production
plant and exercised full seniority rights, which included time spent
in service at pier 32 prior to the construction of the Waianae facility.
In 1962 the Employer built additional distribution facilities at
Hilo and Kahului. At that time, one collective 'bargaining agree-
ment was negotiated by the Intervenor and the Employer for employ-
ees at the distribution facilities at pier 32, Hilo, and Kahului, and a
second for the production and maintenance employees at the Waianae
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production plant. The contract for the distribution facilities employ-
ees was renewed in 1964.2
Conclusion
The testimony at the hearing establishes that the facility operators
and the helpers share a close community of interest, whereas they do
not share such a community of interest with the other employees of
the Employer. Thus, on the basis of the bargaining history which
shows that the facility operators and helpers have been represented
in the same unit, plus the fact that the facility operators and helpers
share the same community of interest, we find that the appropriate
unit must include both facility operators and helpers.
Disputed Employees
As stated previously, the parties agree that the facility operators
at the distribution facilities at pier 32 in Honolulu (Bob D. Cooper),
in Hilo (Stephen Manuel), and in Kahului (Frank Williams), and
the helpers at the distribution facilities in Hilo (Ernest Kahili) and
in Kahului (Richard Ramos) should be included in the unit. The
2 This agreement states that it is " effective on April 15 , 1964 , and shall remain in full
force and effect through April 15, 1966, and from year -to-year thereafter unless either
party shall give written notice to the other of a desire to terminate or amend . . . sixty
(60) days prior to April 15 , 1965, or to April 15 of any year for which this agreement
has been automatically renewed ." The petition was filed in time to prevent the contract
from being a bar . The Intervenor asserts , however , that as the Petitioner did not amend
its petition to include helpers until March 4, 1966 , which would -be within the 60 -day in-
sulated period , the amended petition is barred by that contract ; it moved at the hearing to
dismiss the amended petition for this reason . We find this motion to be without merit
Evans Pipe Company, 121 NLRB 15; Herff Jones Company , 97 NLRB 1070; Hyster Com-
pany, 72 NLRB 937; and Polk Brothers Central Appliance and Furniture Company, 105.
NLRB 251, all relied upon by the Intervenor in support of its motion , are inapposite In
Evans Pipe 'Company, the Board held that contracts validly executed after the original
petition , but before the amendment to the petition , bar the amendment where the amend-
ment claims a unit larger and substantially different from that sought in the original peti-
tion. In that case , however, the petitioner originally requested the employees of only
5 employers of an employer association made up of 15 employers , but in its amendment
attempted to include the employees of all the other employers In Herff Jones Company,
the petitioner ' s amendment would have increased the number of employees from 44-
tool-and-die department employees to approximately 300 production and maintenance
employees . In Polk Brothers , the petitioner's amendment would have changed the original
petition from furniture salesmen to all salesmen In Hyster Company, the petitioner's
amendment would have changed the original petition from machine shop employees to all
production and maintenance employees . Thus, it is clear the amendment in those cases
were for units "larger and substantially different from that sought in the original peti-
tion." However , in the instant case the amendment only adds a fringe group ( helpers) to,
the original request ( facility operators ) and the increase in number is only two The
Intervenor contends that the increase is substantial because it is an "almost 100 percent
increase " Although the increase is 67 percent , the originally requested unit consisted of
only 3 employees . Thus, the addition of even one employee does result in a large per-
centage increase . To hold , however, that such a percentage increase is substantial where
the unit is so small, would exalt form over substance . Accordingly , we find that the-
amendment does not "claim a unit larger and substantially different from that sought in
the original complaint" and that the contract between the Intervenor and the Employer is
not a bar to the amended petition . We therefore deny the Intervenor ' s motion
KAISER CEMENT & GYPSUM CORPORATION 1743
Employer and the Intervenor contend that the three helpers (Dom-
ingo Flores, Marciano Piligrino, and Frank Torres) at pier 32 in
Honolulu should also be included in the unit. The Petitioner con-
tends that these employees should not be included because they are
included in the Waianae plant unit for which the Petitioner recently
won certification.
In either 1962 or 1963, an election was held for a unit consisting of
production and maintenance employees at the Employer's Waianae
production plant. Piligrino and Flores voted in that election.
Another election was held in the same unit in 1965, and again Pili-
grino and Flores voted in the election.3 At the time of both elections,
they were working at pier 32. The second election resulted in the
Petitioner being certified as the bargaining representative for the
employees at the Waianae plant. Piligrino and Flores also voted in
a union election to determine if the collective-bargaining agreement
negotiated by the Petitioner and the Employer should be accepted.
The Employer contends that Piligrino, Flores, and Torres are
covered by the present agreement between the Intervenor and Em-
ployer which covers by definition all distribution facility employees.
However, the Employer admits that these three employees are not
paid pursuant to the provisions of that agreement. They "are classi-
fied as helpers, but they are red circled, and they received the rate,
the appropriate rate for the packhouse operator which is presently in
effect at the Waianae plant." The Employer attempted to explain
this difference in. pay by stating it was because "the volume and
equipment involved at Pier. 32 is about four times that of the outside
islands" and that "there isn't a real comparison between the work
performed by Piligrino and Flores and Torres, as compared to [the
other helpers]."
Flores, Piligrino, and Torres received wage increases at the same
time (January 1) that the Waianae unit employees received wage
increases, whereas the other helpers received wage increases on a dif-
ferent date (April 15).
Based on the above, we find, contrary to the Employer, that these
three employees are not covered by the contract covering facility oper-
ators and helpers but rather are covered by the contract covering the
production and maintenance employees at Waianae. Accordingly, in
view of the history of their representation in the unit of production
and maintenance employees at Waianae, plus the fact that their
3 Whether Torres also voted in these elections is not sta ted in the record.
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties are not comparable to those of the other helpers, we shall
exclude them from the requested unit."
- The Intervenor also contends that the 'unit -should include four
maintenance men and two truckdrivers.
For approximately the last year, 4 maintenance men assigned to
the Waianae plant have worked 50 percent of the time at' pier 32.
However, since January 1966, there has only been one maintenance
man working at pier 32 and, in a month's time, he is to be transferred
back to the Waianae plant. It is also clear that these maintenance
men are in the production and maintenance unit in which the Peti-
tioner recently won certification. Thus, for these reasons, we shall
exclude them from the unit.
Commencing in November 1965, two truckdrivers worked out of
pier 32 rather than out of the Waianae plant. However, these truck-
drivers were transferred to pier 32 temporarily due to the confusion
at the Waianae plant resulting from the union electioneering cam-
paign, and the Employer intends to transfer them back to the Waia-
nae plant "as soon as the agreement with the Teamsters for the
Waianae plant is signed and consummated." Thus, as it is clear that
these truckdrivers were only transferred temporarily to pier 32, and
as they are included in the unit in which the Petitioner recently won
certification, we shall exclude them from the requested unit.
We find that the folldwing employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (ib) of the Act :
All facility operators and helpers employed by the Employer at
its distribution facilities located in Honolulu, Hilo, and Kahului,
Hawaii, excluding employees covered by other certifications,5
office clerical employees, casual employees, guards and/or watch-
men, and supervisors as defined the Act.
[Text of Direction of Election omitted from publication.16
4 The Employer stated that Torres was permanently transferred to pier 32 on Decem-
ber 27 , 1965, because it was felt that it would be a safer place for him to work since he
is losing his sight . The Employer stated further that "in effect, Mr . Torres, from an
operational standpoint at this particular time is surplus, insofar as the daily demands at
pier 32 are concerned , [ and] that he was transferred there and is considered as an em-
ployee there by the company solely on the basis that we could afford to hold him there
until such time as his physical condition warrants his retirement." Such testimony in-
dicates further that Torres does not share the community of interest shared by the facility
operators and helpers , and clearly warrants his exclusion from the unit.
5 Domingo Flores, Marciano Piligrino , and Frank Torres.
9 An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Officer-in-Charge for Subregion 37 within 7 days
after the date of this Decision and Direction of Election . The Regional Director shall make
the list available to all parties to the election. No extension of time to file this list shall
be granted by the Regional Director except in extraordinary circumstances. Failure to
comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed . Excelsior Underwear, Inc, 156 NLRB 1236.