Neff Concrete Products Co.

National Labor Relations Board - Board Decisions

Jun 6, 1947

73 N.L.R.B. 1499 (N.L.R.B. 1947)

III the Matter of NEFF CONCRETE PRODUCTS CO., EMPLOYER and UNITED
BRICK AND CLAY WORKERS OF AMERICA, AFFILIATED WITH THE A. F.
OF L., PETITIONER
Ca.se No. 13-R-41212.-Decided June 6, 1947
Mr. W. A. Neff, of Danville, Ill., for the Employer.
Mr. Oscar Erhardt, of Chicago, Ill., for the Petitioner.
Mr. Orville E. Rhode, of Danville, Ill., for the Operating Engineers.
Mr. Grover Allen, of Danville, Ill., for the Hod Carriers.
Mr. Samuel G. Hamilton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Danville,
Illinois, on March 4, 1947, before Joseph L. Hektoen, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. TILE BUSINESS OF THE EMPLOYER
Neff Concrete Products Company, an Illinois corporation with its
principal place of business located at Danville, Illinois, is engaged
in the manufacture of concrete building blocks. During the past year,
the Employer purchased more than $75,000 worth of raw materials,
consisting of cement, sand, and gravel, of which approximately 95
percent represented shipments from points outside the State of Illi-
nois. During the same period, approximately 30 percent of its finished
products, worth more than $75,000, was shipped to points outside the
State of Illinois.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
73 N. L . R. B., No. 253.
1499
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with "the American
Federation of Labor, claiming to represent employees of the Employer.
International Union of Operating Engineers, Local 841, herein
called the Operating Engineers, and International Hod Carriers,
Building and Common Laborers Union of America, A. F. L., Local
624, herein called the Hod Carriers, are labor organizations affiliated
with the American Federation of Labor, claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
On January 9, 1941, the Hod Carriers entered into a contract with
the Employer. The Hod Carriers claims that this contract was to
remain in operation until January 9, 1942, and from year to year there-
after unless terminated by notice given by either party at least sixty
(60) days prior to January 9 of any year.' The Hod Carriers further
claims that this contract was automatically renewed until 1946. The
Employer asserts that it expired by its own terms in 1942. In effect,
the Hod Carriers contends that this contract, together with an alleged
verbal interim agreement, constitutes a bar to this proceeding. In
October 1946, the Hod Carriers presented the Employer with a form
of new contract, stating that if it were not executed the employees
would strike. Since a new contract was not executed, and the verbal
interim agreement had previously expired on December 31, 1946, the
employees struck in January 1947. They returned to work on Janu-
ary 29, 1947, the day following the filing of the petition herein.
Assuming that the 1941 contract was then in existence, and con-
tained the automatic renewal clause described by the Hod Carriers,
the Hod Carriers, in presenting a form of new contract in October
1946, more than sixty (60) days prior to the operative date of the
automatic renewal clause, thereby evinced a desire to terminate the
1941 contract as of its 1947 anniversary date and forestalled operation
of the alleged renewal clause. Since no new contract was signed, and
the verbal interim agreement, if otherwise effective, having expired,
there was no contract in existence between the Hod Carriers and the
Employer which could constitute a bar to this proceeding, when the
Petitioner filed its petition on January 28, 1947. Consequently, there
is no bar to a present determination of representatives.'
1 No copy of the contract was introduced into evidence at the hearing.
2 Matter of The William Koehl Company, 65 N. L. R. B. 190,; Matter of Wisconsin
Telephone Company , 65 N. L. R. B 368.
NEFF CONCRETE PRODtiCT5 CO. 1501
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit comprising all production employees
of the Employer, including the mixing-man and crane operators, but
excluding all office and clerical employees, and all supervisory em-
ployees. The Employer and the Hod Carriers agree that the unit
sought by the Petitioner is appropriate. The Operating Engineers
seeks to carve out of the unit sought by the Petitioner a separate unit
comprising the mixing-man and the crane operators.
The entire operation of making concrete building blocks is largely
automatic. The mixing-man operates a cement mixing machine; the
two crane operators operate industrial trucks or cranes. The work of
all production employees appears to be closely interrelated, interde-
pendent, and to requires similar skills. The unit of all production em-
ployees sought by the Petitioner is the unit covered by the 1941 contract
of the Hod Carriers, and there is nothing in the record to indicate that
the employees sought by the Operating Engineers were not included
within the contract unit.'
For the foregoing reasons, we find that all production employees of
the Employer, including the mixing-man and crane operators, but
excluding all office and clerical employees, and all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION'
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Neff Concrete Products Co., Dan-
ville, Illinois, 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 Thirteenth Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Sections 203.55 and 203.56,
of National Labor Relations Board Rules and Regulations-Series 4,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately pre-
ceding the date of this Direction, including employees who did not
'Moreover, the Operating Engineers admitted at the hearing that it had no showing
of interest among the employees it seeks to represent.
' Any participant in the election herein may , upon its prompt request to , and approval
thereof by , the Regional Director , have its name removed from the ballot.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work during said pay -roll period 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 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 they desire to be represented by United
Brick and Clay Workers of America, affiliated with the A. F. of L., or
by International Hod Carriers, Building and Common Laborers Union
of America , A. F. L., Local 624, for the purposes of collective bargain-
ing, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.