Standard Lime & Stone Co.

National Labor Relations Board - Board Decisions

Nov 2, 1939

17 N.L.R.B. 147 (N.L.R.B. 1939)

In the Matter of STANDARD LIME & STONE CO. and LOCAL #175,
QUARRY WORKERS UNION
Case No. B-1246.-Decided November 2, 1939
Limestone Quarrying and Cement Manufacturing Industry-Investigation of
Repre..entalive.s•: controversy concerning representation: employer refuses to
recognize and questions status, of petitioning Union ; rival organization-Unit
.Appropriate for-Collective Bargaining: all employees; excluding laboratory and
office employees, officials, and foremen, having stibforemen under them ; stipula-
tion as to-Current Labor Dispute: strike which commenced on- April 24, 1935,
ceased to be-Representatives : eligibility to participate in choice : former em-
ployees who went on strike and failed to return to work not eligible to partici-
pate-Election Ordered: pay roll immediately preceding Direction of Election
-chosen as a basis for determining eligibility to vote ; petitioning Union may
(request the Board to remove its name from the ballot.
Mr. Jacob Blum and Mr. Samuel M. Spencer, for the Board.
Mr. Harry H. Byrer and Mr. L. I. Rice, of Martinsburg, W. Va.,
and Al','. Charles lblarkell, of Baltimore, Md., for the Company.
Mr. Charles G. Gain, of Martinsburg, W. Va., for Local 175.
Cllr. E. L. Luttrell, of Martinsburg, W. Va., for the Independent.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TI-11E CASE
On November 10, 1938, Local #175, Quarry Workers Union, herein
called Local 175, filed with the Regional Director for the Fifth Region
(Baltimore, Maryland) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
Standard Lime and Stone Co., Martinsburg, West Virginia, 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 January 16,
1939, 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
1, as amended, ordered. an investigation and authorized the Regional.
17 N. L. R. B., No. 7.
147
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On January 20, 1939, the Regional Director issued a notice of hear-
ing, copies of which Were duly served upon the Company, Local 175,
and Independent Employees Organization of the Martinsburg Plant,,
Standard Lime and Stone Company,' herein called the Independent,
a labor organization claiming to represent employees directly affected
by the investigation.
Pursuant to notice, a hearing was held at Martinsburg, West Vir-
ginia, on February 2, 3, 4, 6, and 7, 1939, before Herbert' Wenzel, the
Trial Examiner duly designated by the Board. The Board, the
Company, Local 175, find the Independent were represented by coun-
sel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties. During the course
of the hearing, the Trial Examiner made rulings on several motions
and objections to the admission of evidence. The Trial Examiner
reserved decision on 'a motion made by the Company at the close of
the hearing to dismiss the petition. The motion is hereby denied.
The Company fired exceptions to 'the rulings of the Trial Examiner
and the Regional Director, and a brief in support thereof, both of
which were duly considered by the Board. The Board has reviewed
the rulings of the Trial Examiner and the Regional Director and
finds that no prejudicial errors were committed.2 The rulings are
hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Standard Lime & Stone Company is a Maryland corporation with
its main office in Baltimore, Maryland. Among the properties which
it operates is a plant located near Martinsburg, West Virginia. That
plant is the only property of the Company involved in this proceed-
ing. It covers a tract of 265 acres.of land where the respondent is,
engaged in the quarrying, crushing, and screening of limestone, and
'Incorrectly designated in the notice of hearing as "Independent Employees Organiza-
tion of the Standard Lime and Stone Company, Martinsburg, West Virginia."
2 Prior to the • hearing • the. Company filed with : the. Regional Director a petition for
Issuance of a subpena requiring the attendance of J.' B. Foreman, president of Local 175,
and a notice requesting the production of certain documents . The Regional Director denied,
the petition and declined to comply with the notice. Foreman nevertheless testified volum-
farily and no prejudicial error resulted from the Regional Director 's action.
STANDARD LIME S STONE COMPANY 149;
in the manufacture of cement, "staflux," and other products of lime-
stone. Until October 1935 the Company also manufactured lime at
this plant.
The principal materials used by the Company in its manufacturing
processes are limestone, gypsum, mill scale, and shale. The limestone
and shale are quarried at the plant, but the gypsum and mill scale
are brought to Martinsburg by rail from-New York, Pennsylvania,,
and New Jersey. In 1935 the respondent purchased 2,620 net tons
of gypsum and 3,005 gross tons of mill scale, amounting to 1 per cent.
of the materials used, outside of West Virginia. In addition it pur-
chased 45,000 tons of coal, which, though originating in West Vir-
ginia, crossed State lines before being delivered at the Martinsburg
plant. The machinery and equipment used by the respondent in
quarrying and manufacturing at the Martinsburg plant were pur-
chased outside West Virginia.
During the year 1935 the respondent produced 301,061 gross tons.
of stone, 395,169 barrels of cement, 21,160 net tons of "staflux," and
22,017 net tons of lime at its Martinsburg plant. During the same-
period 83 per cent of respondent' s sales were made in 10, States other-
than West Virginia, and in the District of Columbia. The remaining
17 per cent of the products sold by the respondent were shipped to
points in West Virginia, but all of them, with the exception of 2 or 3
per cent, crossed State lines before reaching their destination in
West Virginia. .
The respondent has a trade-mark, registered with the United
States Patent Office, for use in commerce among the several States.'-
11. THE ORGANIZATIONS INVOLVED
Local #175, Quarry Workers Union, is a labor organization affili--
ated with the Committee for Industrial Organization? It admits to.
membership all employees of the Company's Martinsburg quarry and-.
other quarries in the vicinity except officials and top foremen.
The Independent Employees Organization of the Martinsburg
Plant, Standard Lime and Stone Company, is an. unaffiliated labor
organization, admitting to membership all persons employed at the
Martinsburg plant except officials and foremen.
3 The parties stipulated that the entire record before' the Board and before the Unite&
States Circuit Court of Appeals for the Fourth Circuit in Matter of Standard Lime '&
Stone Company and Branch No. 175, Quarry Workers International Union of North America,
,5 N. L. R. B. 100, and in Standard Lime & Stone Company v . National Labor Relations
Board, 97 F . ( 2d) 531, should be considered as evidence in this case. The findings in this
section are taken from the Board's decision in that case.
4In January 1938, Local 175, formerly known as Branch No. 175, Quarry Workers=
International Union of North America, transferred its affiliation from the American Federa-
tion of Labor to the Committee for Industrial Organization , now the Congress of:'
Industrial Organizations.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HI. THE ° RIIESTION CONCERi\ iNG"REPRESENTtSTTbN
On February 14, 1938, Local 175 sent a letter to the Company re-
.questing a conference "for the purpose of collective bargaining," and
to discuss the reinstatement of certain of its members pursuant to
.a. Decision and Order of the Board issued on February 4, 1938, in
..''clatter of Standard Lime cC Stone Company and Branch No. 175,
.Quarry Workers International Union of North America.5 The Com-.
pany replied by letter dated February 16 that it had filed a petition
for review of the Board's Order in the United States Circuit Court of
Appeals for the Fourth Circuit. On October 28, 1938, Local 175 sent
the Company a letter stating that it still represented a majority of
,the C.olnpanry's~employees"a7 d `requestilig That representatives of the
Company meet with representatives of Local 175 to settle "the labor
difficulties still existing" between the Company and members of Local
175. By letter dated October 31, the Company informed Local 175
that so far as it knew Local 17 5 did not represent any of its employees
and denied that there were any labor difficulties among its employees..
At the hearing, the Independent contended that it represents ' a
majority of the present employees of the Company and requested that
it be certified as their exclusive bargaining agent.
We find that a question has arisen concerning the representation
.of employees of the Company.
IV. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connecting with the,operations of the Company
described in Section I above, has a close, intimate, and 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 parties stipulated early in the hearing that all of the Com-
pany's production employees and all other employees at its Martins-
burg plant, except laboratory and office employees, officials, and
foremen having subforemen under them, constitute a unit appropriate
for collective bargaining. Subsequently, Local 175 stated that it
did not intend by the stipulation to agree to the inclusion of guards.
The Independent did not amplify its understanding except to state
that the stipulation did not specifically exclude guards from the
agreed unit. The Company did not comment on this issue.
5 5 N. L. R. B. 106.
STANDARD LIME & STONE COMPANY 151
On the Company's pay roll for - January 15, 1939, in evidence, no
persons are classified as guards , but three appear as watchmen. Under
the circumstances-of this case and in view of the fact that the record
affords no basis for the exclusion of guards or watchmen , we shall
adopt the stipulation entered into at the hearing without the modifi-
cation requested by Local 175.
We find that all employees of the Company at its Martinsburg
plant, excluding laboratory and office employees , officials, and fore-
men having subforemen under them, constitute a unit appropriate for
the purposes of collective bargaining , and that said 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.
Q
VI. THE DETERMINATION OF REPRESENTATIVES
Local 175 contends that it now represents 210 employees of the
Company within an appropriate unit who went out on strike on April
24, 1935, and who have neither returned to work for the Company nor
obtained other regular and substantially equivalent employment;
that a controversy which arose between the Company and Local 175
and resulted in a strike on April 24, 1935, is a labor dispute within the
meaning of Section 2 (9) of the Act 6 which has been and now is
current; that the above-mentioned 210 employees are still employees
of the Company within. the meaning of Section 2 (3) of the Act; 7
that pursuant to the rule enunciated by the Board in the Sartgrius
case," the Company's pay roll of April 30, 1935, being the last one
to include all persons employed by the Company on the date of the
commencement of the strike, should be used to determine eligibility;
and that the afore-mentioned 210 employees are a majority'of''em'
ployees within an appropriate' unit whb were employed' by the
Company on April '24, 1935.
The Company denies that there is a current labor dispute now iii
existence among its employees. It contends that the dispute which
arose on April 24, 1935, is no longer current, that its former employees
Section 2 (9) reads as follows : The term "labor dispute " includes any controversy
concerning terms, tenure or conditions of employment , or concerning the association or
representation of persons in negotiating , fixing, maintaining, changing , or seeking to
arrange terms or conditions of employment, regardless of whether the disputants stand in
the proximate relation of employer-and employee.
7 Section 2 (3) reads as follows : The term "employee " . . . shall include any individual
whose work has ceased as a consequence of, or in connection with, any current labor
dispute or because of any unfair labor practice, and who.has not obtained any other regular
and substantially equivalent employment . . .
8 Matter of A. Sartorius .& Co., Inc. and United Mine Workers of America, District 50,
Local 12090, 10 N. L. R. B. 493 , in which the Board held that during the currency of a
strike ( not the result of an unfair labor practice ) only those persons who were employees of
the Company at the commencement of the strike , excluding persons subsequently hired
to replace striking employees, are eligible to participate in the election of bargaining
representatives.
247384-40-vol. 17-11
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who went out on strike and failed to return to work are no longer its
employees within the meaning of the Act, and that the eligibility rule
stated in the Sartorius 0 case is not applicable here.
The Independent requested at the hearing that it be certified as
the exclusive representative for all employees in the appropriate unit
or be placed on the ballot in the event an election is ordered. -It
claims to have- been designated by a majority of the present em-
ployees of the Company within the appropriate unit as their repre-
sentative.
Resolution of these conflicting contentions requires a determination
whether the work of the individuals whom Local 175 claims to.repre-
sent ceased as a consequence of, or in connection with, any current
labor dispute. That the cessation of their work resulted from a' labor
dispute is conceded. The crux of the matter is the currency of the
dispute.
The strike in question was not caused by unfair labor practices of
the Company. It started, prior to the effective date of the Act, on
April 24, 1935, and was still current on July 15, 1935,10 the date of an
alleged refusal by the Company to bargain collectively. By the end
of July 1935 the Company had replaced the strikers. Regular picket-
ing nevertheless continued until September 15, 1935, and sporadic
picketing "for several months thereafter." 11
On February 24, 1936, Local 175 filed charges upon. which, the
Board issued a complaint against the Company alleging, among
other things, that on July 15, 1935, the Company had refused to
bargain collectively within the meaning of Section 8 (5) of the Act.
After a hearing upon the complaint, but before issuance of a decision,
the Board, on June 16, 1936, dismissed its complaint without
prejudice.12
On May 19, 1937, Local 175 filed new charges is upon which the
Board issued a complaint against the Company similar- to that which
it had dismissed in June 1936. ' The proceeding before. the Board
culminated in a Decision and Order issued February 4, 1938. On
June 13, 1938, the Circuit Court of Appeals for the Fourth Circuit
issued a decree 14 setting aside the Board's order. The petition in
the instant proceeding was filed by Local 175 on November 10, 1938.
9 See footnote 8, supra.
11 Matter of Standard Lime A Stone Company and Branch No . 175, Quarry Workers
International Union of North America, 5 N . L. R. B. 106; Matter of Standard Lime h
Stone Company v. National Labor Relations Board, 97 F. (2d) 531.
u Matter of Standard Lime d Stone Company and Branch No. 175, Quarry Workers
International Union of North America, 5 N. L: R. B. 106.
12 The dismissal followed the decision of the Supreme Court in Carter and Carter Coal
Co., 298 U. S. 238.
>s The filing of the new charges followed the decision of the Supreme Court in Jones
and Laughlin Steel Corporation , 301 U. S. 1.
uMatter of Standard Lime t Stone Company v . National Labor Relations Board, 97 F.
(2d) 531.
q
STANDARD LIME & STONE COMPANY 153
Except for sporadic picketing found by the Board -to have con-
tinued "for several months" after September 15, 1935, the record is
barren of any evidence of strike activity during the past 4 years.
Litigation of the labor dispute has not been continuous. It was
interrupted during the 11-month period from June 1936 to May
1937, and terminated in June 1938, 5 months prior to the filing of
the petition herein.
Under all the circumstances of this case, we find that the strike
which commenced on April 24, 1935, was no longer current at the
time of the initiation of this proceeding. The doctrine of the Sar-
torius case-'-5 1 is therefore inapplicable. Inasmuch as the strike was
not caused by unfair labor practices, and is no longer current, former
employees of the Company who went on strike on April 24, 1935, and
who have not since returned to work for the Company are not em-
ployees of the Company within the meaning of Section 2 (3) of the
Act and will, accordingly, be excluded from participation in the se-
lection of bargaining representatives.
The Independent, claiming to represent a majority of the Com-
pany's present employees in the appropriate unit, introduced evidence
in support of its claim. Local 175 claims that present employees of
the Company who were its members in 1935 would vote for it in an
election to select bargaining representatives. We shall order an
election by secret ballot among the Company's employees in the ap-
propriate- unit who were employed during the pay-roll period im=
mediately preceding the date of this Decision and Direction of Elec-
tion to determine whether they desire to be represented by Local 175,
by the independent, or by neither, for the purposes of collective bar-
gaining.
In view of our determination that former employees of the Com-
pany who went on strike on April 24, 1935, and have not since re-
turned to work for the: Company are ineligible to vote in the election,
Local 175 may desire to have its name withdrawn from the ballot.
If it so desires it should notify the Board to that effect within 5 days
from the'date of this decision.
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 repre-
sentation of employees of Standard Lime & Stone Co., Martinsburg,
West Virginia, within the meaning of Section 9 (c) and Section 2
(6) and (7) of the National Labor Relations Act.
15 See footnote 8, Supra.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All employees of the Company, excluding laboratory and' office
employees, officials , and foremen having subforemen under them, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Rela-
tions 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, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
. DIRECTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Standard Lime & Stone Co., Martinsburg, West Virginia,- 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
Election, under the direction and supervision of the Regional 'Di-
rector for the Fifth 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 employees of Standard
Lime & Stone Co., at its plant' in Martinsburg, West Virginia, who
were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during such pay-roll period because they were till, or on va-
cation, and employees who were then or have,since, been temporarily
laid off, but excluding laboratory and office employees, officials, fore-
men having subforemen, under them, and all employees who have
since quit or been discharged for cause, to determine whether they
desire to be represented by Local #175, Quarry Workers Union or
by the ' Independent Employees Organization of the Martinsburg
Plant, Standard Lime and Stone Company, or by neither, for the
purposes of collective bargaining.