Lehigh Portland Cement Co.

National Labor Relations Board - Board Decisions

Nov 15, 1940

27 N.L.R.B. 1380 (N.L.R.B. 1940)

In the Matter of LEHIGH PORTLAND CEMENT COMPANY and UNITED
CEMENT, LIME, AND GYPSUM WORKERS, LOCAL 104, AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR
Case No. R-2113.-Decided November 15,1940
Jurisdiction : cement manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
'fusal to accord recognition to union ; election necessary
Unit Appropriate for Collective Bargaining : all production, maintenance, and
laboratory employees, exclusive of the chief chemist, the assistant chemist, and
supervisory and clerical employees.
Mr. Toney Gallo, of Chicago, Ill., Mr. Reuben Roe, of Buffalo, Iowa;
Mr. Orval Webber, of Dewey, Okla., Mr. Lester Alwmbaugh, of Iola,
Kans., and Mr.-R. E. James, for the Union.
Mr. Frederick G. Apt, of Iola, Kans., and Mr. John Young, of Allen-
town, Pa., for the Company.
Mr.,David H. Karasick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 16, 1940, United Cement, Lime and Gypsum Workers,
Local 104, affiliated with the American Federation of Labor, herein
called the Union, filed with the Regional Director for the Seventeenth
Region (Kansas City, Missouri) it petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Lehigh Portland Cement Company, Iola, Kansas, herein
called the Company, and requesting.an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On October 12,
1940,,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,
as amended, ordered an investigation and authorized the Regional
27 N. L. R B., No. 217.
1380
LEHIGH PORTLAND CEMENT COMPANY 1381
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On October 15, 1940, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
Union. Pursuant to notice a hearing was held on October 24, 1940, at
Iola, Kansas, before Daniel J. Leary, the Trial Examiner duly desig-
nated by the Board. The Company was represented by counsel and
the Union by its representatives; both participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing, the Trial Examiner made-several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed 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
Lehigh Portland Cement Company, a Pennsylvania corporation
with general offices in Allentown, Pennsylvania, is engaged in the
manufacture and sale of cement. The Company owns and operates 13
plants in 10 States. The present proceeding involves only the plant
located at Iola, Kansas. Limestone, the primary raw material used
by the Company in its manufacturing operations at Iola, is secured
from sources within the State of Kansas. The Iola plant produces
approximately 500,000 barrels of cement annually, of which about
50-per cent is shipped to customers located in States other than Kansas.
The Company does business in 41 States and admits that it is engaged
in interstate commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Cement, Lime and Gypsum- Workers, Local 104, affiliated
with the American Federation of Labor, is a labor organization
admitting to its membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 29, 1940, Reuben Roe, a vice president of the Union,
called on Swiggett, superintendent of the Company, and presented
him with a proposed contract providing for recognition of the Union
as the, exclusive representative of certain of the Company's em-
ployees, which the parties agreed Swiggett would refer to the general
I
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office of the Company. The Company thereafter requested the Union
to produce proof of its majority. After some correspondence, a
meeting was arranged between a representative of the Company and
a representative of the Union at which time proof of the Union's
authority was submitted. On August 22, 1940, the Company wrote
to the Union, stating that it was not satisfied by the evidence which
had been submitted that a majority of the employees at the Iola
plant had designated the Union as their bargaining agent- and refus-
ing to recognize the Union as the exclusive representative of the
employees. A report of the Regional Director of the Board shows
that the Union represents a substantial number of the employees
of the Company in the unit which it claims to be appropriate for
the purposes of collective bargaining.'
We find that a question has arisen concerning the representation
of employees of the Company.2
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 I above, has a close, intimate,'„an'd'. substantial
relation to trade, traffic, and commerce among the several States' and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union urges that all the production, maintenance, and labora-
tory employees of the Company, exclusive of the chief chemist, the
assistant chemist, and supervisory and clerical employees, constitute
an appropriate bargaining unit. The Company contends that the
laboratory employees should not be included in the unit.
The laboratory is on the second floor of the building in which
the general offices of the Company are located. The chief, chemist,
the assistant,chemist, two chemical testers, one physical tester, and
two sample carriers comprise the laboratory staff. The chief chemist
is iii charge of the laboratory and is regarded as a supervisory
The report of the-Regional Director of the Board shows that, of a total of 104 em-
plovees listed on the Company's pay roll for September 13, 1940, in the unit claimed by
the Union to be appropiiate, 53 signed application or authorization cards variously dated
between August 1939 and October 1940
a Counsel for the Company contended at the hearing that no question concerning repre-
sentation existed because the Union had filed its petition prior to the time the Company
had refused to recognize it as the bargaining agency of the employees We find this
contention to be without merit.
LEHIGH PORTLAND CEMENT COMPANY 1383
employee by both the Compdny and the Union. During his absence,
the assistant chemist is in active charge of the staff. He, too, acts
in a supervisory capacity, and therefore is not to be included in the
appropriate unit.
The two chemical testers and the one physical tester, respectively,
conduct chemical and physical analyses and tests on samples of
cement secured during various stages of the manufacturing process.
One of the chemical testers is a college graduate who majored in
chemistry and the other studied chemistry in high school. The
physical tester has had no particular education which would qualify
him as a laboratory worker other than the knowledge he had pre-
viously acquired as an operator in the mill. The two sample car-
riers gather hourly samples of the cement from, the plant. Their
duties are apparently routine in nature. The Company took the
position at the hearing that, while it believed the other laboratory
employees should be excluded, it would not object to inclusion in
the appropriate unit of the two sample carriers. '
- While -the wages of laboratory employees are generally higher
than those of production employees, the extent of the difference in
the present case does not appear. The hours of work of the labora-
tory employees, like those of the production employees, vary accord-
ing to production schedules.
_, The Company and the Union have entered into 10 contracts
covering employees in other plants. In none of these contracts are
laboratory employees expressly mentioned Nevertheless, the parties
have considered laboratory employees with respect to each of these
contracts, and have in some instances regarded them as within, and
in other instances as without, a unit composed primarily of pro-
duction and maintenance employees.
Upon a review of the entire record and upon consideration of the
foregoing factors, we are of the opinion that the laboratory employees
should be included in the unit.3
We find that all the production, maintenance, and laboratory em-
ployees of the Company at its Iola, Kansas, plant, exclusive of the chief
chemist, the assistant chemist, and supervisory and clerical employees,
constitute a unit appropriate for purposes of collective bargaining
and that such unit will insure to employees of the Company the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuate the policies of the Act.
8 See Matter of The B F. Goodrich Company and United Rubber Workers of America,
Local No 43, 3 N. L R. B. 420 ; Matter of Marlin -Rockwell Corporation and Local No. 338,
United Automobile Workers of America, 5 N. L. R . B. 206; Matter of Lansdale Company
.(Be Lincoln Bleachery and Dye Works Division ) and Lincoln Mutual Benefit Association,
27 N L R B 910.
1384 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
The Union did not seek to prove its majority at the hearing, but
instead requested that the Board hold an election. We find that the
question which has arisen concerning the representation of employees
of the Company can best be resolved by an election by secret ballot.
We shall direct that those eligible to vote shall be the employees
in the appropriate unit whose names' appear upon the Company's
pay roll immediately preceding the date of this Direction of Election,
including any employees who did not work :luring said pay-roll period
because they were ill or on vacation, and employees who were then
or have since been temporarily laid off, but excluding those who have
since quit or been discharged for cause.4
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 rep-
resentation of employees of the Lehigh Portland Cement Company,
Iola, Kansas, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All the production, maintenance, and laboratory employees of
the Company at its Iola, Kansas, plant, exclusive of the chief chem-
ist, the assistant chemist, and supervisory and clerical employees,
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section '8, of
- National -Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargain-
ing with the Lehigh Portland Cement Company, Iola, Kansas, 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
d The Company and the Union agreed that Max E. Johnston was ineligible to vote ; but
the Union contested the Company's claim that Sam D. Dellinger was likewise ineligible.
Both Johnston and Dellinger were production employees They were hired in April 1940
to replace two regular production employees who had been transferred to construction
work. When the construction job was completed, the two regular employees were returned
to their jobs in production and Johnston and Dellinger were discharged on September 21.
1940. It is clear that neither Johnston nor Dellinger is eligible to vote. -
LEHIGH PORTLAND CEMENT COMPANY 1385
Election under the direction and supervision of the Regional Director
for the Seventeenth Region, acting in this matter as agent for the
National Labor Relations Board and subject-to Article III, Section
9, of said Rules and Regulations among all production, maintenance,
and laboratory employees at the Iola, Kansas, plant, whose names
appear upon the Company's pay roll immediately preceding the date
of this Direction of Election, including any employees who did not
work during said pay-roll period because they were ill or on vacation,
and employees who were then or have since been temporarily laid
off, but excluding the chief chemist, the assistant chemist, and super-
visory and clerical employees and employees who have since quit or
been discharged for cause, to determine whether or not they desire to
be represented by United Cement, Lime, and Gypsum Workers, Local
104, affiliated with the American Federation of Labor, for the pur-
poses of collective bargaining.