Lone Star Cement Corp.

National Labor Relations Board - Board Decisions

Dec 12, 1942

45 N.L.R.B. 1298 (N.L.R.B. 1942)

In the Matter of LONE STAR CEMENT CORPORATION, NORFOLK, VA. and
UNITED' CEMENT, LIME & GYPSUM WORKERS INTERNATIONAL UNION,
LOCAL 191, AFL.
Case No. B-4560.-Deckled December 10,194
Jurisdiction : cement manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize petitioner because of alleged existing contract; contract with
an organization whose members voluntarily shifted affiliation to petitioner, be-
came inactive and exhibited no interest in the proceedings, held no bar ; election
necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees, including all hourly paid laboratory employees, but excluding all
supervisory, clerical, and salaried laboratory employees.
Mr. Dwight Morgan and Mr. W. W. Deadman, of Norfolk, Va., for
the Company.
Mr. Delmar Barr, of Martinsburg, W. Va. and Mr. M. B. Finley, of
South Norfolk, Va., for Local 191.
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Cement, Lime & Gypsum Work-
ers International Union, Local 191, A. F. L., herein called Local 191,
alleging that a question affecting cominerce had arisen concerning the
representation of employees of Lone Star Cement Corporation, Nor-
folk, Virginia, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice be-
fore Earle K. Shawe, Trial Examiner. Said hearing was held at Nor-
folk, Virginia, on November 20, 1942. The Company and Local 191
appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues., The Trial Examiner's rulings made at
1 Although served with notice, International Union of Operating Engineers, herein called
the Operating Engineers , did not appear at the hearing.
45 N. L. R B., No. 179.
1298
LONE STAR CEMENT CORPORATION 1299
the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Lone Star Cement Corporation, incorporated in the State of Maine,
is engaged in the manufacture of Portland cement. The Company
operates nine plants located in various States of the United States.
Only the Company's plant and quarry located in South Norfolk, Vir-
ginia, and Chuckatuck, Virginia, respectively, are involved in this
proceeding. The Company obtains all of its raw materials from its
Chuckatuck quarry, and annually manufactures at its South Norfolk
plant approximately 1,400,000 barrels of cement. During the year
1941, the Company produced at its South Norfolk plant cement valued
at approximately $1,729,000, about 10 percent of which was shipped
to places outside the State of Virginia. The Company admits that it is
.engaged,,in commerce within the meaning of the National Labor Re-
lations Act.
H. THE ORGANIZATION INVOLVED
United Cement, Lime & Gypsum Workers International Union,
Local 191, is a labor organization affiliated with the American Federa-
tion of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 9, 1942, after a period of organizational activity
among the production and maintenance employees, of the Company,
a representative-of-Local 191,advised the Company that it represented
a majority of said employees and requested recognition as their ex-
clusive bargaining agent. The Company took the position that an
existing contract with the Operating Engineers precluded it from
recognizing any other labor organization and expressed the desire
that the question of representation of its employees be settled by the
Board.
The contract with the Operating Engineers, referred to above, was
executed on August 6, 1941, covering the same group of employees
now sought to be represented by Local 191. The contract provided
that it was,to continue in effect until August 6, 1942, with automatic
renewal from year to year thereafter in the absence of a written
notice to amend by either party at least 30 days before the end of
any yearly period.
1300, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about June 15, 1942, at a membership meeting of the Oper-
'ating Engineers Local-, the employees present voted unanimously
to sever their affiliation with the Operating Engineers and designated
Local 191 as their exclusive bargaining representative. Through in-
advertence, notice of this action by the Local was not communicated
to the Company until July 17, 10 days after notice of termination
was required by the contract.
It appears that substantially all of the employees who were for-
merly affiliated with the Operating Engineers are now members of
Local 191.2 As a result of this defection, the Operating Engineers
Local has become inactive and, since June, has been unable to pay the
required per capita tax to the International Union of Operating
Engineers. The Company has 'received no communication from the
Operating Engineers since July and, as stated previously, the latter
made no appearance at the. hearing and exhibited no interest in this
proceeding.
It is clear that this case does not involve a contest between rival
labor organizations competing for the right to represent the em-
ployees, for substantially the entire membership of the Operating
Engineers Local, acting upon their own initiative,rtransferred their
-affiliation to Local .191, .and the Operating Engineers Local then
became dormant. The question, presented, therefore, is whether or
not Local 191 represents a majority of the employees in an appro
priate bargaining unit. Assuming that the contract renewed itself
automatically on August 6, 1942, it constitutes no bar to an election
at this time.3
A statement of a Field Examiner of the Board, introduced in evi-
dence at the hearing, shows that Local 191 represents -a substantial
number of employees in the unit hereinafter found to be appropriate.4
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, National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with a stipulation of the parties, that all
production and maintenance employees at the Company's 'South Nor-
2 See footnote 4, infra
8 See Matter of Sealed Power Corp and the Accuralite Co and International Union.
United Automobile, Aircraft and Agricultural Implement Workers pf America (UAW-
CIO), affiliated with the C. 1. 0 , 41 N L. R. B. 1225. - - '
i The Field Examiner stated that Local 191 submitted 117 -application cards, all bearing
apparently genuine original signatures , and 97 bearing dates from June .t9 Qctobei 1942.
Of the 117 signatures , 102 are the names of persons on the Company's pay roll for the
week ending Octbber 3, 1942. At that date there were approximately 127 employees
in the unit hereinafter found to be appropriate.
LONE- STAR CEMENT CORPORATION 1301
folk plant and at the'Company's Chuckatuck quarry, including all
hourly paid laboratory employees, but excluding all supervisory,
clerical, and salaried laboratory employees, constitute a unit appro-,
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act .5
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 the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding 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
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and.pursuant.to Article III, Section 9, of National Labor
Relations Board Rules .and Regulations-Series 2, as amended, it is
hereby -
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with Lone Star
Cement Corporation, Norfolk, Virginia, an election by secret ballot
shall be conducted as early as possible but not later than thirty (30)
clays from the date of this Direction, under the direction and super-
vision of the Regional Director for the Fifth Region, acting in this
matter as agent for the National Labor Relations Board and subject
to Article 111, Section 10, of said Rules and Regulations, among the
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 any such employees who did not
work during said pay-roll period because they were ill or on vaca-
tion or in the active military service or training of the United States,
or temporarily laid off, but excluding any who have since quit or
been, discharged for cause, to determine whether, or not they desire
to be represented by United Cement, Lime & Gypsum Workers In-
ternational Union, Local 191, A. F. L., for the purposes of collective,
bargaining. ,
'This is the same unit provided for in the contract.