The Cincinnati Concrete Pipe Co.

National Labor Relations Board - Board Decisions

Dec 6, 1941

37 N.L.R.B. 360 (N.L.R.B. 1941)

In the Matter of THE CINCINNATI CONCRETE PIPE COMPANY and
UNITED CONSTRUCTION WORKERS, LOCAL No. 50, C. 1. O.
Case No. R-3231.-Decided December 6, 1941
Jurisdiction : concrete sewer pipe manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord union recognition ; affiliated organizations of international
union to appear jointly on ballot ; election necessary.
Unit Appropriate for'Collective Bargaining : all production employees, and truck
drivers, excluding supervisory and clerical employees, salesmen, and construc-
tion employees.
Mr. Herman A. Bayless and Mr. Shipley A. Bayless, both of
Cincinnati, Ohio, for the Company.
Mr. George E. Rice, of Cincinnati, Ohio, for the Construction
Workers.
Mr. E. C. Bundy, of Cincinnati, Ohio, for the American Federation
of Labor.
Mr. Harry Rissman, of Cincinnati, Ohio, for the Hod Carriers.
Mr. Sam Butcher, Mr. John Graber, and [11r. Sam Overend, all of
Cincinnati, Ohio, for the Teamsters.
Mr. Sydney, S. Asher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 10, 1941, United Construction Workers, Local No. 50,
affiliated with the Congress of Industrial Organizations, herein called
the Construction Workers, filed with the Regional Director for the,
Ninth Region (Cincinnati, Ohio) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Cincinnati Concrete Pipe Company, Reading, Ohio,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On October
18, 1941, the National Labor Relations Board, herein-called-the Board',,
37 N. L. R. B., No. 59.
360
CINCINNATI CONCRETE PIPE COMPANY 361
acting pursuant to-Section 9 (c) of the Act, and Article III, Section
3, of National Labor Relations Board Rules and Regulations- Series
2, as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On October 20, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
Construction `Workers and upon Local Union No. 513, International
Hod Carriers', Building and Common Laborers' Union of America,
affiliated with the American Federation of Labor, herein called the
Hod Carriers, and International Brotherhood of Teamsters, Chauf-
fers, Warehousemen, and Helpers, affiliated with the American Fed-
eration of Labor, herein called the Teamsters, labor organizations
claiming to represent employees directly affected by the investiga-
tion.i Pursuant to notice, a hearing was, held on October 28, 1941,
at Cincinnati, Ohio, before Alba B. Martin, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company, the Con-
struction Workers, the American Federation of Labor, the Hod Car-
riers, and the Teamsters were represented and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses,Yand toxintroduce evidence bearing on the issues was afforded
all parties. During the course of the hearing, the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rul-
ings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Cincinnati ,Concrete Pipe Company is an Ohio corporation
with its principal offices in Reading, Ohio. It is engaged primarily
in the manufacture and sale of concrete sewer pipe and, incidentally,
in the manufacture and sale of concrete blocks. Over 50 percent of
its raw materials is purchased outside of the State of Ohio. Delivery
of approximately 5 percent of its sales, which exceed $100,000'a year,
is made to points outside of the State of Ohio.
' Copies of the notice of bearing were also served upon International Brotherhood of
Firemen & Oilers , and International Union of Operating Engineers , both of which are
affiliated with the American Federation of Labor. Neither of these unions appeared at
the hearing. Counsel for the American Federation of Labor stated at the hearing that he
was informed that both of these unions had decided not 'to enter an appearance because
of an arrangement made with those unions affiliated with the American Federation of
Labor which did appear at the hearing.
362 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
H. THE ORGANIZATIONS INVOLVED
United ,Construction Workers, Local No. 50, is adabor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership employees of the Company.
Local Union No. 513, International Hod Carriers', Building and
Common Laborers' Union of America, and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers, are
labor organizations affiliated with the American Federation of Labor.
They admit to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 2, 1941, the Construction Workers wrote to the Com-
pany alleging that it 'represented a majority of the Company's em-
ployees and requesting recognition as their collective bargaining
representative. On October 6, 1041, the Company replied, suggesting
that the Construction Workers file a petition with the Board and
indicating that the Company would negotiate with any bargaining
representative certified by the Board. At the hearing, the parties
stipulated that a question has arisen concerning the representation of
employees of the Company.
The Construction Workers, the Hod Carriers, and the Teamsters
submitted to the Trial Examiner proof of substantial representation
among the employees of the Company.2
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection 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
2 The Construction workers submitted 24 signed application cards, the Hod Carriers
submitted 10 signed application slips, and the Teamsters submitted 7 signed application
cards. These were all checked against the Company's pay rolls for the weeks ending
October 8 and 28, 1041. The pay roll of October 8, 1941, carried the names of 26 pro-
duction workers and truck drivers, excluding supervisory and clerical employees, salesmen,
and employees engaged in construction. The pay roll of October 28, 1941, carried the
names of 25 employees in the same classifications. Of the 24 names appearing on the
applications submitted by the Construction workers, 20 appear on the pay roll of October
8, 1941, and 17 appear on the pay roll of October 28, 1941. Of the 10 names appearing
on the applications submitted by the Hod Carriers, 9 appear on the pay roll of October 8;
1941, and 8 appear on the pay roll of October 28, 1941. Of the 7 names appearing on
the applications submitted by the Teamsters, 4 appear on the pay roll of October 8, 1941,
and 5 appear on the pay roll of October 28, 1941.
CINCINNATI CONCRETE PIPE COMPANY 363
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Construction Workers seeks a unit composed of all production
employees, excluding supervisory and clerical employees, salesmen,
construction employees,3 and truck drivers 4 The Hod Carriers and
the- Teamsters contend that, in addition to the employees specified
by the Construction Workers, the truck drivers should also be in-
cluded in the appropriate unit.,' As noted below, the Hod Carriers
and the Teamsters desire to appear on the ballot jointly under, the
name "American Federation of Labor." The Company did not state
its position with respect to the appropriate unit.
It is our opinion that, under the circumstances of this case, the
truck drivers should be included in the appropriate unit. Although
truck drivers have often separated themselves from production and
maintenance employees for the purposes of collective bargaining, in
the case before us the Teamsters seeks to include them with the re=
inaining employees. Nor have the truck drivers had any separate
history of collective bargaining at the plant. We find, accordingly;
that all production employees and truck drivers of the Company,
excluding supervisory and clerical employees, salesmen, and con-
struction employees, 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 will effectuate the policies of
the Act.
VI. THE DETERMINATION OF 'REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by, and
we shall accordingly direct, an election by secret ballot.
The Construction Workers seeks to have eligibility to vote based
upon the pay roll of October 8, 1941. The Company, the Teamsters,
and the Hod Carriers expressed no preference with, respect to the
pay-roll date to be used in determining eligibility to vote in the
election. The Construction Workers contends that since October 8,
1941, several employees of the Company have quit their jobs "due to
the coercion and interference and intimidation on the part of the
S In seeking the exclusion of the construction workers, the parties had reference to
employees who were working for the company at the time of the hearing in the erection
of a garage "near the Company."
* The Construction Workers ' petition had sought to include the truck drivers
The record does not disclose how many truck drivers are employed by the Company.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company and the American Federation of Labor" and that other
employees have been hired by the Company and "told to have nothing
to do with the Union." Such a contention, however, is not properly
'voiced in a proceeding for an investigation and certification ' of rep-
resentatives. It is our usual practice to base eligibility to vote on a
current payroll, and we shall so provide herein.
The American Federation of Labor requests that its affiliated
organizations be represented on the ballot under the single designa-
tion of "American Federation of Labor." The Hod Carriers and the
Teamsters, join in this request, but the Construction Workers opposes
it. The record discloses no valid reason why the request should not
be granted. Accordingly, we shall permit the affiliated organizations
of the American Federation of Labor to be jointly designated on the
ballot as "American Federation of Labor."
We shall direct that the employees of the Company eligible to
vote in the election shall be all production employees and truck
drivers of the Company, excluding supervisory and clerical employ-
ees, salesmen, and construction employees, who were employed during
the pay-roll period immediately preceding the date of the Direc-
tion of Election herein, subject to the limitations and additions set
forth-in the Direction.
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 The Cincinnati Concrete Pipe Company,
Reading, Ohio, within the meaning of Section 9 (c) and Section 2
(6) and (7) of the National Labor Relations Act.
2. All production employees and truck drivers of the Company,
excluding supervisory and clerical employees, salemen, and construc-
tion employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the
National Labor Relations 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 S, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
CINCINNATI CONCRIEPE% PIPE COMPANY 365
with The Cincinnati Concrete Pipe Company, Reading, Ohio, an elec-
tion by secret ballot shall be conducted as early as possible, but not
later than thirty (30) days from the,date ofthisDirection ofElection,
under the direction and supervision of the Regional Director for the
Ninth 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 production employees and truck drivers of
the Company who were employed during the pay-roll period imme-
diately preceding the date of this Direction of Election, including
employees who did not work during such pay-roll period because they
were ill or on vacation or in the active military service or training
of the United States, or temporarily laid off, but excluding super-
visory and clerical employees, salesmen, construction employees, and
employees who have since quit or been discharged for cause, to deter-
mine whether they desire to be,represented by United Construction
Workers, Local No. 50,, affiliated with the Congress of Industrial Or-
ganizations, by American Federation of Labor, for the purposes of
collective bargaining, or by neither.