Santa Cruz Portland Cement Co.

National Labor Relations Board - Board Decisions

Sep 6, 1943

52 N.L.R.B. 444 (N.L.R.B. 1943)

In the Matter of SANTA CRUZ PORTLAND CEMENT COMPANY and INTER-
NATIONAL ASSOCIATIONS OF MACHINISTS, DISTRICT LoDan #93
Case No. R-5802.--Decided September 6, 1943
Morrison, Hohfeld, Foerster, Schuman & Clark, by Mr. J: Hart
Clinton, of San Francisco, Calif., for the Company.
Messrs. E. B. Scott and F. W. Gorham, of San Jose, Calif., for
District Lodge #93.
Mr. John H. Leonard, of Santa Cruz, Calif., for Santa Cruz
Local #46.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petitions duly filed by International Association of Machin-
ists, District Lodge #93, herein called District Lodge #93, alleging
that a question affecting commerce had arisen concerning the represen-
tation of employees of Santa Cruz Portland Cement Company, Daven-
port, California, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before John Paul Jennings, Trial Examiner. Said hearing was held
at Santa Cruz, California, on July 30, July 31, and August 4, 1943.
The Company, District #93, and United Cement, Lime ,& Gypsum
Workers, Santa Cruz Local #46, herein called Santa Cruz Local
#46, appeared, participated, and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby af-
firmed. All parties were afforded opportunity to file briefs with
the Board.
52 N. L. R. B., No. 69.
L.
444
SANTA CRUZ PORTLAND CEMENT COMPANY 445
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Santa Cruz Portland Cement Company is engaged in the operation
of a cement ' plant, consisting of a quarry and mill, at Davenport,
California. During 1942 the Company purchased gypsum, mined
in Nevada, at an approximate cost of $107,000. The greater part of
all raw materials used at the Company's plant was purchased outside
California. During 1942 the Company sold products valued in ex-
cess of $3,000,000, of which approximately 25 percent was sold and
shipped to points outside California.
U. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District Lodge #93, is
an unaffiliated labor organization. Lodge No. 504, an affiliate, ad-
mits to membership employees of the Company.
United Cement, Lime & Gypsum Workers, Santa Cruz Local #46,
is a labor organization, affiliated with the American Federation of
Labor, admitting to membership employees of the Company.
M. THE QUESTION CONCERNING REPRESENTATION
In 1937, the American Federation of Labor, herein called the A.
F. of L., and craft unions affiliated with the A. F. of L., began or-
ganizing employees of the Company at its mill and quarry. Em-
ployees on the repair gang at the mill joined International Association
of Machinists, Local No. 504, herein called the Machinists, and elec-
tricians and certain other craft employees at the mill and at the
quarry joined respectively appropriate affiliated craft organizations.
During 1937, the A. F. of L. chartered for the Company's employees,
Santa Cruz Cement Mill Workers' Union, Local No. 21162, herein
called Local No. 21162. A majority of employees joined the federal
labor union and relinquished their several craft affiliations. Em-
ployees on the repair gang, however, as a group, retained their mem-
bership in the Machinists. A few electrical employees retained their
membership in their craft union. Other affiliated craft organizations
gradually withdrew from the plant.
On September 9, 1937, Local No. 21162 asked the Company for
recognition as exclusive bargaining representative of employees at
the mill and quarry. On September 13, 1937, the Company in writing
accorded the desired recognition. The repair gang at the mill desired
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to constitute a bargaining unit separate from other employees of the
Company and to be represented by the business agent of the Ma-
chinists in negotiating a contract with the Company for their group.
In view, however, of the recognition accorded to the affiliated indus-
trial union, the business agent of the Machinists agreed to the cover-
age of the repair gang under the same contract that included other
maintenance and production employees of the Company. Represent-
atives of the Machinists accordingly participated in discussions for
the negotiation of a contract between the Company and Local No.
21162. The wage scale for members of the repair gang was agreed
upon by separate discussions between the Machinists and the Com-
pany. The rates thus agreed upon were incorporated into the general
contract. On the instruction of their business agent, representatives
of the Machinists signed the contract as representatives of the repair
gang. This contract was signed on December 16, 1937, and was made
retroactive to October 5, 1937. The contract provided that it be in
force and effect until October 5, 1938, and renewable thereafter from
y ear to year unless terminated by 30 days' written notice. The con-
tract was automatically renewed in 1938 and 1939.
During 1938 and 1939, the Machinists was dissatisfied with its
bargaining relations and tried unsuccessfully to induce Local No. 21162
to release employees on the repair gang from the industrial unit for
which the Company had recognized Local No. 21162 as bargaining
representative. Although Local No. 21162 conceded to employees
on the repair gang the right to retain their membership in the Ma-
chinists and to treat with the Company and to adjust their grievances
through a shop steward who was a member of the Machinists, Local
No. 21162 was not willing to concede that the repair gang constituted
a separate Anit appropriate for bargaining. In September 1939, the
Machinists asked the Company to recognize the Machinists as bargain-
ing representative of employees on the repair gang. The Company
refused such recognition pending advice by the A. F. of L. that the
Machinists had exclusive jurisdiction over the employees whom it
desired to represent. The Machinists appealed to the president of
the A. F. of L. for a decision upon this dispute. The issue was
referred to a western representative of the organization. Some in-
effective efforts were made to settle the dispute by affiliated labor
councils.
In December 1939, United Cement, Lime & Gypsum Workers, here-
in called the Cement Workers, was organized as an international in-
dustrial union, affiliated with the A. F. of L. Its jurisdiction covered
employees working in cement plants. Santa Cruz Local #46, the
intervenor in this proceeding, was chartered by the Cement Workers
and succeeded Local No. 21162 as exclusive bargaining representative
SANTA CRUZ PORTLAND CEMENT COMPANY 447
of employees at the Company's plant. The struggle of the Machinists
to gain separate bargaining rights for employees on the repair gang,
begun with Local No. 21162, thereafter continued with Santa Cruz
Local #46.
In 1940, the international president of the Cement Workers agreed,
with the Machinists that the Cement Workers would not seek to
contract for employees on the repair gang at the Company's plant.
On September 13, 1940, the Machinists asked the Company for
recognition as bargaining representative of these employees. Santa
Cruz Local #46 did not claim any employees on the repair gang as
union members. It refused to concede, however, that such employees
were properly under the craft jurisdiction of the Machinists. It
repudiated the agreement of its international president with respect
to the bargaining rights for employees on the repair gang at the Com-
pany's plant. Under these circumstances, the Company denied the
desired recognition to the Machinists. On October 4, 1940, Santa
Cruz Local #46 and the Company signed a new contract covering
employees at the Company's mill and quarry, including employees on
the repair gang.
On October 8, 1940, the Machinists filed with the Regional Director
a petition for investigation and certification of representatives. The
Machinists protested the contract signed subsequent to its demand
upon the Company to represent employees on the repair gang. On
December 18, 1940, the Regional Director dismissed the petition, on
the ground that the issue therein raised was a jurisdictional dispute
between the Machinists and Santa Cruz Local #46, both of whom
were affiliated with the same parent organization.
The contract between the Company and Santa Cruz Local #46,
signed on October 4, 1940, provided that it be in effect for 1 year, re-
newable thereafter from year to year unless terminated by 30 days'
written notice by either party. Negotiations between the Cement
Workers and the Machinists continued for the release of the employees
on the repair gang from coverage under this contract. On March 10,
1941, the Machinists filed a second petition for investigation and cer
tification with the Regional Director, claiming to represent the em-
ployees on the repair gang and requesting certification as bargaining
representative of these employees. On March 29, 1941, Santa Cruz
Local #46, pursuant to official action by its membership, wrote the
Regional Director that it did not represent the 21 employees on the
repair gang, all of whom were admittedly members of the Machinists.
The Regional Director then requested a statement from Santa Cruz
Local #46, admitting that employees on the repair gang constituted
an appropriate bargaining unit apart from other employees at the
Company's plant. Although Santa Cruz Local #46 was willing to
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concede that all employees on the repair gang were members of the
Machinists, it refused to admit the propriety of their functioning as
a separate bargaining unit. On July 10, 1941, the Regional Director'
dismissed the petition of the Machinists, on.the ground that the issue
between the two labor organizations was a jurisdictional dispute to be
settled by their common parent organization. The Machinists there-
after without avail continued its efforts to obtain from the A. F. of L.
a settlement of the issue. -
On November 28, 1941, the Company and Santa Cruz Local #46
signed a new contract retroactive to October 5, 1941, covering em-
ployees at the plant, including the repair gang. Although previous
contracts had been for 1-year periods with automatic renewal clauses,
the new contract provided for a 3-year term." It is thus, by its terms,
in effect until October 5, 1944. It contains a closed-shop provision.
The closed-shop provision has not been- enforced to require employees
on the repair gang to join the contracting union .2 The contract pro-
vides that each year the wage clause may ,be reopened for revision.
,In July 1942, the Machinists requested a revision of the wage rates
for the repair gang and desired to represent the repair gang in negotia-
tions with the Company for such revision. Santa Cruz Local #46
refused this request, but formally appointed the business agent and
shop steward of the Machinists as members of its plant negotiating
committee and, as such, these two members of the Machinists partici-
pated in the negotiations between the Company and the contracting
union. The result of the negotiations was a flat wage increase for all
employees of the Company. Thus, the efforts of'the Machinists to
secure an appreciable wage increase for employees on the repair gang
were unsuccessful.
On April 2, 1943, the Machinists filed the original petition in this
proceeding. On June 1, 1943, the international union with which the
Machinists is affiliated withdrew from the A. F. of L. On July 20,
1943, the Machinists filed an amended petition. On July 19 or 20,1943 '
the Machinists wrote the Company requesting recognition as bargain-
ing representative for employees on the repair gang. The Company
thereafter refused to recognize the Machinists since the question con-
cerning the representation of employees on the repair gang was
presently before the Board.
I The 3-year term was suggested by a United States Conciliator , whom the parties invited
to assist them in determining some provisions of the contract affecting the quarry workers.
The record does not disclose that contracts for more than 1 year are usual in this industry.
I It has likewise not been enforced to require certain individual electrical employees who
retained their membership in their craft organization to become members of the contracting
union. -
3 It was, and is, the contention of the Machinists that the repair gang at the Company's
plant received a lower wage than employees in local plants where the Machinists was
bargaining representative. The record bears out this contention.
SANTA CRUZ PORTLAND CEMENT COMPANY 449
The Company and Santa Cruz Local #46 contend that the 3-year
contract of October 1941 constitutes a bar to an investigation and
determination of representatives at this time. The contract has run
substantially more than half of -its 3-year term. We note that this
contract and the two previous contracts covering employees at the
plant were signed with the full knowledge of the claim of the Machin-
ists to represent employees on the repair gang as a separate bargaining
unit. Organization of the Company's employees had its inception as
a craft project. The Machinists organized the repair gang as a craft
group. Although other employees at the Company's mill and quarry
generally relinquished their craft membership and other craft groups
freely consented to merge in the industrial group, the repair gang
retained its craft membership in the Machinists and, as a group, has
been represented by a shop steward and business agent of the Machin-
ists and has consistently struggled' to maintain its identity and rights
as a separate entity. On October 8, 1940, and on March 10, 1941,
respectively, the Machinists filed a petition to adjudicate its contentions
that the repair gang constituted a separate unit appropriate for bar-
gaining purposes; that the Machinists represented a majority of such
employees; and that its right to function as their bargaining repre-
sentative was protected by the Act. The Regional Director dismissed
these petitions pursuant to the practice of the Board to refer to a
parent organization jurisdictional disputes' between member unions.
The Machinists, at the present time, no longer acknowledges the
authority of the A. F. of L. to determine its jurisdiction. Under the
circumstances above set forth, and upon the entire record in the case,
we find that the contract between the Company and Santa Cruz Local
#46 is not a bar to a determination of representatives, pursuant to the
petition filed herein .4
A statement prepared by the Field Examiner and introduced into
evidence at the hearing indicates that the Machinists represents a sub-
stantial number of employees in the unit herein found appropriate:5
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 Act.
4 Cf. Matter of Rosedale Knitting Company, 23 N. L It. B. 527, 529.
5 The dues records of the Machinists which were submitted to the Field Examiner's inspec-
tion disclosed that 17 employees in the repair gang are paid members of the Machinists. The
records indicate that their dues are paid up as follows : 1 through April 1, 1 through May,
4 through June, 2 through July, 2 through August, 6 through September , and 1 through
December 1943. The names of these 17 employees appear on the Company's pay roll of July
6, 1943, listing 21 employees in the repair gang. Evidence introduced at the hearing indi-
cates that 5 employees on the repair gang are members of Santa Cruz Local #46, 3 of whom
are also members of the Machinists.
There are 21 employees in the appropriate unit.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The Machinists contends that employees on the repair gang at the
Company's mill constitute a bargaining unit apart from other produc-
tion and maintenance employees at the plant. The Company and
Santa Cruz Local #46 contend that the plant unit, including all
production and maintenance employees at the mill and at the quarry,
constitute the only appropriate bargaining unit.
The repair gang is a group of maintenance employees who have
their headquarters in the machine shop at the Company's mill. They
repair and maintain the machinery and mechanical equipment of the
plant. All employees on the repair gang spend part of their time
in the shop, although some spend most of their time in the plant,
so that they may be immediately available for repair work. They
are under the supervision of the master mechanic, wherever they may
perform their work. The only other employees who work regularly
in the machine shop are electricians engaged in electrical repair and
maintenance under the supervision of the chief electrician. Em-
ployees in the plant occasionally make minor mechanical repairs and
adjustments on their machines in connection with their regular pro-
duction jobs and spend a small proportion of their time in such work.
Employees on the repair gang are the only employees in the mill who
devote the greater portion of their time to mechanical repairs in the
plant.6 Some employees on the repair gang have acquired their
mechanical skills through their experience in the Company's plant.
Many of them were production workers who were promoted to jobs
on the repair gang by bidding for such jobs when vacancies were
posted, pursuant to the terms of the contracts noted above. Em-
ployees on the repair gang are more highly skilled in mechanical work
than other employees in the plant and as a group they receive a
higher hourly wage.
Employees on the repair gang clearly constitute a homogeneous
group which could function effectively either as a separate bargain-
ing unit or as a part of a plant unit. The Company and Santa Cruz
Local #46 contend that employees on the repair gang have been
adequately represented by the latter as part of the plant unit for the
past 6 years, that they have acquiesced in such plant representation,
and that they have secured adjustments of their grievances through
the machinery established by the contracts between the Company
and Santa Cruz Local #46. The record clearly discloses that since
1937 employees on the repair gang have maintained membership in
6 The Company's quarry is about 3 miles from the mill. A blacksmith at the quarry,
under the supervision of the quarry superintendent, is engaged in mechanical work at the
quarry He is not a member of the Machinists and he has not constituted part of the group
of employees who have continually sought separate craft representation.
SANTA CRUZ PORTLAND CEMENT COMPANY 451
their craft union and have consistently striven to secure craft repre-
sentation for their group. Contrary to the contention of the con-
tracting parties, the record does not disclose that these employees
have acquiesced in representation by Santa Cruz Local #46, but
on the contrary that they have not ceased to struggle to obtain recogni-
tion for themselves as•a separate craft group. While it appears that
employees at cement plants generally are organized on an industrial
basis, it is clear that there are at least two cement plants wherein
repair gangs, which constitute well-defined groups of skilled em-
ployees, are represented by the Machinists. Under these circum-
stances, we believe that the desires of the employees on the repair
gang should be decisive with respect to the scope of the bargaining
unit most appropriate for them. We shall direct an election among
employees on the repair gang to determine whether they desire to be
represented by the Machinists or by Santa Cruz Local #46 or by
neither. If a majority of the employees voting choose the Machinists,
we shall find that employees on the repair gang at the Company's mill
constitute a separate bargaining unit and shall certify the Machinists
as bargaining representative thereof; otherwise, we shall dismiss the
petition filed herein, and the repair gang will remain part of the plant
unit for which Santa Cruz Local #46 is bargaining representative.'
The master mechanic spends his time in supervising and directing
the work of employees on the repair gang. He has authority to make
recommendations with regard to employees under his supervision and
his recommendations are effective. All parties agree, and we find,
that the master mechanic should be excluded from the bargaining unit
which includes employees on the repair gang.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot.
District Lodge #93 requests that it appear upon the ballot as
International Association of Machinists, Lodge No. 504. Santa Cruz
Local #46 requests that it appear on the ballot as United Cement,
Lime & Gypsum Workers International Union, Local #46, A. F. of L.
We shall grant these requests.
Those eligible to vote in the election should be all employees on
the repair gang at the Company's mill, excluding the master me-
chanic, who were employed during the pay-roll period immediately
preceding the date of the Direction of Election herein, subject to
the limitations and additions set forth in the Direction.
7Matter of Bendiv Products Division o f Bendier Aviation Corporat ion, 39 N L. R. B
81, 86.
549875-44-vol. 52-30
452 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 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 representa-
tives for the purpose of collective bargaining with Santa Cruz Port-
land Cement Company, Davenport, California, 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 Twentieth Region, act-
ing in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and Reg-
ulations, among all employees on the repair gang at the Company's
mill, who were employed during the pay-roll period immediately pre-
ceding the date of this Direction, including employees who did not
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 the master mechanic and employees who have since
quit or been discharged for cause, to determine whether they desire
to be represented by International Association of Machinists, Lodge
No. 504, or by United Cement, Lime & Gypsum Workers, International
Union, Local #46, A. F. of L., for the purpose of collective bar-
gaining, or by neither.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.