69 N.L.R.B. 648 (N.L.R.B. 1946)

The National Lime & Stone Co.

National Labor Relations Board - Board DecisionsJul 18, 1946

69 N.L.R.B. 648 (N.L.R.B. 1946)

In the Matter of THE NATIONAL LIME & STONE COMPANY ( FINDLAY PLANT) and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCALS 18 AND 18 C (AFL) Case No. 8-R-2049.-Decided July 18,1946 Messrs. D. G. Slee and V. C. Lytle, of Findlay, Ohio, for the Com- pany. Hartshorn, Thomas, Abele, Mitchell, and Edelman, by Mr. Arnold M. Edelman, of Cleveland, Ohio, and Mr. Frank P. Converse, of Cleve- land, Ohio, and Mr. M. E. Holstein, of Toledo, Ohio, for the Engi- neers. Messrs. A. 'B. Sparks and Carl C. Schmidt, of Columbus, Ohio, and Mr. Frank C. Corwin, of Findlay, Ohio, for the Construction Workers. Mr. B. M. Ettenson, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by the Internaional Union of Operating Engineers, Locals 18 and 18 C (AFL), herein called the Engineers, alleging that a question affecting commerce had arisen concerning the representation of employees of The National Lime & Stone Com- pany (Findlay Plant), Findlay, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before John A. Hull, Jr., Trial Examiner. The hearing was held at Findlay, Ohio, on May 29, 1946. The Com- pany, the Engineers, and United Construction Workers, affiliated with United Mine Workers of America (AFL), herein called the Construc- tion Workers, appeared and participated. All parties were afforded full opportunity to be heard, to examine, and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing, the Construction Workers moved to dismiss the petition, which motion was referred to the Board by the Trial Examiner. For reasons stated in Section III, infra, the motion is hereby denied. The Trial Exam- iner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: 69 N. L. R. B., No. S1. 648 THE NATIONAL LIME & STONE COMPANY 649 FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The National Lime & Stone Company is an Ohio corporation with its principal offices at Findlay, Ohio. The Company operates plants at five cities in the State of Ohio where it is engaged in the manu- facture of commercial and railroad stone and other lime and stone products. This proceeding is concerned only with its plant located at Findlay, Ohio, where it is engaged in the manufacture of crushed limestone for use in the construction and maintenance of roads and streets and ballast for railroad tracks. During a 6-month period preceding the date of this hearing, the Company sold products from its Findlay plant valued at in excess of $50,000, and of such amount in excess of $10,000 was sold to three different interstate railroads. During the same period the Company purchased supplies valued at in excess of $15,000, of which amount in excess of $900 was received by it at its Findlay plant from points outside the State of Ohio. The total value of finished products produced at all Ohio plants of the Company during the past calendar year was in excess of $500,000 in value, and of that amount in excess of 30 percent was shipped to points outside the State of Ohio. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Union of Operating Engineers, Locals 18 and 18 C, is a labor organization, affiliated with the American Federation of Labor, admitting to membership employees of the Company. United Construction Workers, affiliated with United Mine Workers of America, is a labor organization, affiliated with the American Fed- eration of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Engineers as the exclusive bargaining representative of the employees at the Com- pany's Findlay, Ohio, plant, until the Engineers has been certified by the Board in an appropriate unit. At the hearing, the Construction Workers moved to dismiss the petition on the grounds that the Company has engaged in unfair labor practices tending to frustrate its employees' desire to be repre- sented by the Construction Workers, that a pending charge relating to these alleged unfair labor practices precludes the Board from pres- ently making a determination of representatives and that the Con- struction Workers was certified as the statutory bargaining agent of {650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees of the Company at its Findlay, Ohio. plant, on Novem- ber 11, 1944. We find no merit in this motion. The charge to which the Construction Workers refers was administratively dismissed after investigation,' and the certification of the Construction Workers, .having been issued more than a year before these proceedings were instituted, presents no bar.2 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning 4of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT All parties agree that the appropriate unit for the purposes of col- lective bargaining at the Company's Findlay, Ohio, plant should in- clude all production and maintenance workers and exclude all clerical and supervisory employees. The record reveals that there are only three clerical workers and only one employee, the plant superintendent, who has the right to hire, promote, discharge, discipline, or otherwise .effect changes in the status of employees, or effectively recommend such .action. The plant superintendent, therefore, is the only employee whose duties bring him within our customary definition of a super- visory employee. We find that all production and maintenance employees of the Com- pany at its Findlay, Ohio, plant but excluding clerical workers, the plant superintendent, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such .action, constitute a unit appropriate for the purposes of collective bar- ;gaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit 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 I The Regional Director dismissed the charge in Case No. 8-G-1878, and on May 31, 1946, the Board dismissed the Construction workers' appeal. 2 Cf. Matter of Kimberly - Clark Corporation , 61 N. L . R. B. 90 ; Matter of Omaha Packing Company, 67 N. L. R. B. 304; Matter of Con P. Curran Printing Company, 67 N. L. R. B. 1419. THE NATIONAL LIME & STONE COMPANY 651 Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that , as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The National Lime & Stone Company (Findlay Plant), Findlay, Ohio, 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 Eighth Region , acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regula- tions, among 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 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 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 Inter- national Union of Operating Engineers, Locals 1S and 18 C (AFL) or by United Construction Workers, affiliated with United Mine Workers of America, for the purposes of collective bargaining, or by neither. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election.