The Flintkote Co.

National Labor Relations Board - Board Decisions

Jul 27, 1942

42 N.L.R.B. 929 (N.L.R.B. 1942)

In the Matter o f THE FLINTKOTE COMPANY, ( MERIDIAN, MISSISSIPPI)
and DISTRICT 50, UNITED MINE WORKERS OF AMERICA, CIO
Case No R-4905 -Decided July 07, 1942
Jurisdiction : roofing products manufacturing industry
Inveatrgation and Certification of Representatives : existence of question re-
fusal by Company to grant petitioner's Iequest for recognition and request that
Company cease negotiations for renewal contract with a rival labor oigamzation,
which had been previously certified by Board as statutory representative of
Company's employees, contract executed after institution of proceedings with
notice of petitioning union's claim, held no bar, persons severed from employ-
ment upon reduction of staff found to haN e been discharged and hence ineligible
to vote, election necessary -
Unit Appropriate for Collective Bargaining : all houily paid employees, includ-
ing watchmen, cost clerks and/or timekeepers, pushers, and laboratory
employees, but excluding supervisory and clerical employees
Mr J C Floyd, of Meridian, Miss, for the Company.
Mr E K Collins, of Laurel, Miss, Mr Maxwell M Lackey, of
Meridian, Miss , and 111,r Howard Nail, of Birmingham, Ala., for
District 50
Mr Felix C. Jones and Mr James H Nelson, of Meridian, Miss , for
Local Union No 134
Mr Frederic B Parkes, 2nd, of counsel to the Board
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by District 50, United Mine Workers of
America, CIO, herein called District 50, alleging that a question affect-
ing commerce had arisen concerning the representation of employees of
The Flrntkote Company, Meridian, Mississippi, her ern called the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon due notice before J Michael Early, Tilal Examiner.
Said hearing was held at Meridian, Mississippi, on July 7, 1942 The
Company, District 50, and United Cement, Lime and Gypsum Workers
International Union, Local No. 134, affiliated with the American Feder-
42 N L R B, No 175
929
472814-42-vol 42-59
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ation of Labor, herein called Local No 134, appealed, participated, and
were afforded full opportunity to be heard, to examine and cross-
exam-ine witnesses, and to introduce evidence bearing on the issues The
Ti ial Examiner's rulings made at the hearing ai e fi ee fi om prey udicial
error and are hereby affirmed
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Flintkote Company, a Massachusetts corpoiation, is engaged
in the manufacture and sale of various asphalt and asbestos-cement
roofing and siding products, insulation board products, asphalt emul-
sions, chipboards and boxboards, solid and con rugated containers, set-
up and folding boxes, dry and saturated felts, rubber compounds, and
allied products. The Company operates 13 plants located in 7 States
of the United States and in Canada The instant proceeding is con-
cerned solely with the employees of its plant at Meridian, Mississippi.
During the first 6 months of 1942, approximately 12 percent of the raw
materials used at the Company's Meridian plant was' purchased and
shipped from points outside the State of Mississippi During the
year 1941,,appioximately 99 percent of products manufactured at the
Company's Meridian plant was shipped to points outside the State of
Mississippi The Company employs appioximately 365 employees
at its Meridian plant
II THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the Company
United Cement, Lime and Gypsum Workers International Union,
Local-No 134, is a labor organization affiliated with the American
Federation of Labor, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 3, 1941, a consent election was conducted by the Board
among the Company's hourly paid employees to determine whether
or not they desired to be represented by Local No 134 for the purposes
of collective bargaining Having won the election, Local No 134 was'
duly certified On July 1, 1941, the Company entered into a collective
bargaining contract with Local No 134, recognizing that labor organi-
zation as the exclusive representative of-the Company's hourly paid
employees, excluding supervisory and clerical employees The contract
I
THE FLINTKOT'E COMPANY 931
provided that it should continue in effect until July 1, 1942, and'from
year to year thereafter unless 60 days' notice of intention to terminate
be given prior to any expiration date On May 1, 1942, Local No 134
notified the Company that it desired to negotiate certain changes in
its contract
District 50 commenced its organizational activities among the Com-
pany's employees in May 1942 On June 8, 1942, District 50 informed
the Company by letter that it represented a majority, of the Company's
employees and requested the Company not to negotiate a new contract
with Local No. 134. The Company replied on June 17, 1942, that
since the Board had certified Local No 134, the Company would con-
tinue its negotiations with that union District 50 filed its petition
on June 13, 1942.
After several bargaining conferences, the Company and Local No.
134 reached an agreement on July 3, 1942, which was reduced to writing
and signed by the Company's vice president in charge of operations,
its plant manager, and the representative of Local No. 134, but which
would become effective only upon the signature of the Company's ex-
ecutive vice president Th@ contract between the Company and Local
No. 134 is obviously no bar to a present investigation and determina-
tion of representatives, since it was ;entered into after the Company
had notice of District 50's claim to represent the employees of the
Company.,
Statements of the Regional Diiectoi and the Trial Examiner indi-
cate that District 50 and Local No 134 each iepresents a substantial
number of the employees in the unit found below to be appropriate 2
We find that a question affecting commerce has arisen concerning
the repiesentation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act
IV THE APPROPRIATE UNIT
District 50 contends that.all hourly paid employees of the Company,
excluding supervisory and cleiical employees, cost clerks and/or
timekeepers, and watchmen constitute an appropriate unit Local
No. 134'and the Company are in disagieement with District 50 only
' See Matter of New Jersey Broadcasting Corporation and Local Union 1212, International`
Brotherhood of Electrical Workers, AFL, 41 N L R B 1221, and cases cited therein
2 The Regional Director stated that Distiict 50 submitted to him 186 application cards
dated between May and June 1942, and that all cards bore apparently genuine and original[
signatures, of which 168 were the names of persons on the Company's pay roll of June
27, 1942,
The Tiial Examiner stated that Local No 134 submitted to him 234 application cards
dated as follows 113 between February and June 1941, 217 between July and Decembeu-
1g41 , and 81 between January and June 1942 The Trial Examiner stated that 215 caidg
bore the signatures of employees whose names appealed on the Company's pay roll of
June 1942 There are appioxunately 330 employees within the unit hereinafter found
to be appropriate
'932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in that they urge the inclusion of cost clerks and/or timekeepers and
watchmen
The cost clerks and/or timekeepers are paid on an hourly basis, work
in the plant, and keep records of the hours worked by all employees
and records of materials entering and leaving the plant. Since they
were included in the unit in the previous election and\ were covered
by the contracts between the Company and' Local No 134, ,we shall
include the cost clerks and/or timekeepers in the unit
The watchmen have been deputized at the request of the United
States Government They watch the gates, patrol the plant, and
punch time clocks as they make their rounds No additional watch-
men have been hired and no material change has been made in their
duties since they were deputized. In view of the fact they were in-
,cluded in the unit in the previous election and are governed by the
contiacts between the Company and Local No 134, we shall include
them in the unit.
The record does not clearly disclose whether District 50 would ex-
clude br include laboratory employees and pushers, whom the Com-
pany and Local No 134 would include in the unit Pushers are hourly
paid and perform the same type of work done by the employees
subject to their direction Pushers, however, receive a slightly higher
wage rate. They do not have authority to hire or discharge employees
or to recommend such action They were also included in the unit
in the previous election and in the contract unit We shall include
• pushers in the unit
Laboratory employees secure samples of products in various stages
of manufacture and with the use of machines make routine tests which
require no technical tiammg They perform no research work The
record of the results of their tests is made on a printed form from
which the supervisor of the department makes a recapitulation. They
weie also included in the unit of the previous election and are gov-
erned by contract between Local No 134 and the Company. We shall
include laboratory employees in the unit
We find that all hourly paid employees of the Company, including
watchmen, cost clerks and/or timekeepers, pushers, and laboratory
employees, but excluding supervisory and clerical employees, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act
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. To determine
eligibility to vote, the Company and Local No. 134 urge the use of a
pay roll current at the time of the election, and District 50 requests
THE FLINTKOTEi COMPANY 933
the use of the pay roll immediately preceding June 13, 1942 On that
date the Company discharged a number of employees, pursuant to a
policy, inaugurated in February 1942, of reducing its operations and
staff 3 District 50 contends that the workers whose employment was
terminated on June 12 or 13, 1942, were laid off and not discharged.
The Company, however, states that such employees were discharged,
that they have lost their seniority and if rehired would occupy the
status of new, employees, and that it has never pursued a policy of
laying off employees We find that the severances constituted dis-
charges We shall direct that the employees eligible to vote in the
election shall be those 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.
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 Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Flintkote
Company, Meridian, Mississippi, an election' by'seci et 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 Fifteenth 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 the employees in
the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including any such employees who did not work during that
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 any who have since quit or been discharged for cause,
to determine whether they desire to be represented by District 50,
United Mine Workers of America, affiliated with the Congress of In-
dustrial Organizations, or by United Cement, Lime and Gypsum Work-
ers International Union, Local No ' 134, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or by
neither
MR GERARD D REILLY took no part in the consideration of the above
Decision and Direction of Election
'The record indicates that 10 of the discharged employees have since been rehired