Lone Star Cement Corp.

National Labor Relations Board - Board Decisions

Mar 9, 1945

60 N.L.R.B. 1135 (N.L.R.B. 1945)

In the Matter of LONE STAR CEMENT CORPORATION and CONGRESS OF
INDUSTRIAL ORGANIZATIONS
In the Matter of LONE STAR CEMENT CORPORATION and CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Cases Nos. 16-R-1150 and 16-R-1157, respectively.Decided
March 9, 1945
Messrs. Lewis R. Ferguson and C. C. Duff , of Dallas , Tex., for the
Company.
Mr. Lindsay P. Walden, of Fort Worth , Tex., and Mr. A. R.
Hardesty , of Dallas, Tex ., for the C. I. O.
Mr. E. G. Hammer, of Pasadena , Tex., Mr . James Thorp , of Dallas,
Tex., and Mr . TV. A. Critchett , of Birmingham , Alai for Locals 67
and 71.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT Or THE CASE
Upon separate petitions duly filed by Congress of Industrial Or-
ganizations , herein called the C. I. 0., alleging that questions affecting
commerce had arisen concerning the representation of employees of
Lone Star Cement Corporation , Dallas and Houston , Texas, herein
called the Company, the National Labor Relations Board consolidated
the cases mane pro tune and provided ' for an appropriate hearing upon
due notice before Glenn L. Moller, Trial Examiner . Said hearing
was held at Dallas, Texas, on February 6, 1945. At the, commencement
of the hearing , the Trial Examiner granted motions of United Cement,
Lime & Gypsum Workers International Union, Local 67 and Local
71,i herein called Local 67 and Local 71, respectively, to intervene.
The Company, the C. I. 0., Local 67, and Local 71 appeared, partici-
pated, and were afforded full opportunity to be heard , to examine and
cross 'examine witnesses, and to introduce evidence bearing on the
issues. During the hearing, Locals 67 and 71 moved to dismiss the
petition. Ruling upon the motion to dismiss was reserved for the
Board . The motion is hereby denied . The Trial Examiner's rulings
60 N. L R . B., No. 191.
1135
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
- Lone Star Cement Corporation is a Maine corporation operating
cement plants in the States of New York, Pennsylvania, Indiana, Ala-
bama, Louisiana; Kansas, and Texas. We are here concerned with its
plants at Dallas and Houston, Texas. During 1944 the Company pur-
chased raw materials for use at its Dallas and Houston plants valued
in excess of $100,000, a substantial portion of which was shipped to it
from points outside the State of Texas. During the same period it
shipped products from its Dallas and Houston plants to points outside
the State of Texas valued in excess of $400,000.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Congress of Industrial Organizations is a labor organization, admit-
ting to membership employees of the Company.
United Cement, Lime & Gypsum Workers International Union, Lo-
cal 67 and Local 71, are labor organizations affiliated -with the Amer-
ican Federation of Labor, admitting to membership employees of the
Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
On December 6 and December 12, 1944, respectively, the C. I. O.
requested the Company to recognize it as the exclusive collective bar-
gaining representative of the employees at the Houston and Dallas
plants. The Company did not reply to these requests.
On October' 1, 1942, the Company entered into agreements with
Local 67 and Local,71 covering the employees at the Dallas and Hous-
ton plants. These agreements, by their terms, were to remain in effect
until October 1, 1943, and from year to year thereafter unless notice
of a desire to terminate was given by either party thereto not less than
sixty (60) days prior to any annual expiration date. On August 1,
1943, the contract automatically renewed itself. During July 1944,
the Company notified Local 67 and Local 71 that it desired to negotiate
changes in the existing contracts. Negotiations commenced during
August 1944, and when the parties were unable to agree upon terms for
new agreements they adjourned, agreeing orally that they would live
LdNE STAR -CEMENT CORPORATION 1137
under the terms of the then current agreements until new contracts were
executed. On December 6,1944, Locals 67 and 71 requested that nego-
tiations be resumed. Such negotiations were going on when the Com-
pany received notice of the C. I. O.'s claims. On December 15 and 16,
1944, respectively, the Company executed new contracts with Locals
67 and 71 covering the employees at the Dallas and Houston plants,
said contracts being retroactive to October 1, 1944.
Locals 67 and 71 contend that the contractual relationship between
them and the Company, as set out above, constitutes a bar to the instant
proceeding and they urge that the petitions be dismissed. We find that
the October 1, 1942, contract is not a bar to the instant proceeding, in-
asmuch as it expired by its terms on October'l, 1944, because of the
Company's notice of July 1944. At the time of the C. I. O.'s claims, the
Company and Locals 67 and 71 were operating under an oral extension
of that agreement, said extension being for an indefinite period of time.
We have consistently held that oral agreements or agreements for in-
definite periods of time 2 do not act as bars to determinations of repre-
sentatives, nor do the agreements of December 15 and 16, 1944,
constitute bars to these proceedings, inasmuch as they were entered into
after the C. I. O. had made its claims upon the Company.
Statements of a Field Examiner of the Board, introduced into evi-
dence at the hearing, indicate that the C. I. O. represents it substantial
number of employees in each of the units hereinafter found to be
appropriate.8
We find that questions affecting commerce have 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.
IV. THE APPROPRIATE UNITS
- We find, in substantial agreement with the parties, that all produc-
tion and maintenance employees at the Dallas and Houston plants
of the Company, including watchmen and laboratory employees, but
excluding clerical employees, storekeeper, order desk clerk, research
chemists, foremen, assistant foremen, chief chemists, assistant chief
chemists, and any 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 two
1 Matter of Eicor, Inc , 46 N L. R B 1035
2 Matter of Corning -Class Works, Charleroi Division, 54 N. L. R. B 963.
3 The Field Examiner reported that the C . I. 0. presented 44 authorization cards bearing
the names of-persons who appear on the December 24, 1944, pay roll for the Dallas plant.
He further reported that the C . I. O. presented 68 authorization cards bearing the names
of persons who appear on the December 24, 1944, pay roll of the Houston plant. There are
approximately 129 employees in the appropriate unit at the Dallas plant and approximately
124` employees in the appropriate unit at the Houston plant . Locals 67 and 71 did not
present any evidence of representation , but rely upon their contracts, alluded to above, as
evidence of their representation. _
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1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate units- appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the-Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by means of elections by secret ballots among
the employees in the appropriate units who were employed during the
pay-roll period or periods immediately preceding the date of the
Direction of Elections herein, subject to the limitations and additions
set forth in the Direction.
DIRECTION OF ELECTIONS
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 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 Lone Star Cement
Corporation, Dallas and Houston, Texas, elections by secret ballot
shall be conducted as early as possible, but not later than sixty (60)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Sixteenth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations;
(1)- Among the employees in the Dallas plant unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period or periods immediately preceding the date of this Direction,
including employees who did not work during said pay-roll period
or periods because they were ill or on vacation or temporarily laid
off, and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding any who
have since quit or been discharged for cause and have not been yehired
or reinstated prior to the -date of the elections, to determine whether
they desire to be represented by Congress of Industrial Organiza-
tions, or by United Cement, Lime & Gypsum Workers International
Union, Local 67, A. Y. of L., for the purposes of collective bargaining,
or by neither;
(2) Among the employees in the Houston plant unit found appro-
priate-in' Section IV, above, who were employed during the pay-roll
period or periods immediately preceding the date of this Direction, in-
eluding employees who did not work during said pay-roll period or
periods because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States
LONE STAR CEMENT CORPORATION 1139 -
who present themselves in person at the polls, but excluding any who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the elections , to determine whether
they desire to be represented by Congress of Industrial Organizations,
Local 71, A. F. of L.,for the purpose of collective bargaining , or by-
Local 71, A. F. of L., for the purposes of collective bargaining, or by
neither.