Dolese & Shepard Co.

National Labor Relations Board - Board Decisions

Aug 25, 1944

57 N.L.R.B. 1598 (N.L.R.B. 1944)

In the Matter of DOLEsE' & SIIEPARD COMPANY, CONSUMERS COMPANY,
MATERIAL SERVICE CORPORATION, CHICAGO-ELMHURST 1 STONE COM-
PANY and TRANSPORT WORKERS UNION or AMERICA, AMALGAMATED
LOCAL, C. I. O.
Case, No. 13-R-2479.-Decided August 26 ; 194-11
Messrs. Kirkland, Fleming, Green, Martin cti Ellis, by Mr. Vernon.
M. Welsh, of Chicago, Ill., for Dolese, Consumers, and Elmhurst.
Messrs. Schradzke d Gould, by Mr. Benjamnin Gould, of Chicago,
Ill., for Material Service:
Messrs. Meyers ct Meyers, by Mr. Ben Meyers, of Chicago, Ill., for
the Transport Workers.
Mr., R. Ganshou, of Chicago, Ill., for the Operating Engineers.
Mr. D. M. Burroughs, of Chicago, Ill., for the Machinists.
Messrs. Samuel H. Shapiro and Anthony C. D'Andrea, both of Chi-
cago, Ill., for the Laborers.
Mr. David V. Easton, of counsel to the Board.
DECISION
DIRECTION OF ELECTION.
AND
ORDER
STATEMENT OF THE CASE
Upon a. petition duly filed by Transport Workers Union of America,
Amalgamated Local, C. I. 0., herein called the Transport Workers,
alleging that- a question affecting commerce had arisen concerning
the representation of employees of Dolese & Shepard Company, Chi-
cago, Illinois, herein called Dolese; Consumers Company, Chicago,
Illinois, herein called Con sumers; Material Service Corporation, Chi-
cago, Illinois, herein called Material Service; and Chicago-Elmhurst
Stoner Company, Elmhurst, Illinois, herein called Elmhurst, the Na-
tional Labor Relations Board provided for an'appropriate hearing
upon due notice before Russell Packard, Trial Examiner. Said hear-
i
'The name of this Company is amended to read as written aboxe pursuant to a stipula.
tion made on, the record.
57 N. L. R. B., No. 263. o
1598 '
DOLESE & SHEPAED COMPANY 1599
mg was held at Chicago, Illinois, on July 21, 24, and 26,1944. The four
Companies; the Transport Workers; International Association of
Machinists, Local 701, AFL, herein called the Machinists; Interna-
tional Union of Operating Engineers, Local 170, A. 7. L., herein called
the Operating Engineers; and Local 681, Sand, Gravel and Crushed
Stone ' -Workers Union, International Construction and General
Helpers Council of Chicago and Vicinity, A. F. L., herein called the
Laborers, appeared, participated, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. Each of the four Companies and the
Laborers moved at the hearing for a dismissal of the 'petition; the
Trial Examiner reserved ruling upon these motions for, the Board.
For reasons stated in Section III herein, the motions are granted in-
sofar as they affect employees currently represented by the Machinists
and the Laborers; they are denied insofar as they affect the employees
currently represented by the Operating Engineers. The Trial Ex-,
aminer's rulings made at the hearing are free from prejudicial error,
tied, are hereby affirmed. , All parties were afforded an opportunity
to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT.
1. THE BUSINESS OF THE COMPANIES
Do]ese & Shepard Company, an Illinois corporation with its plant
located at McCook, Illinois, and its principal office located in Chicago,
Illinois, is engaged in the business of producing, selling, and distrib-
uting crushed rock of various grades. During the year 1943, the gross
income received by Dolese from the sale of all its products exceeded
$400,000, approximately- 27 percent of which represents the value of
products shipped to points outside the State of Illinois.
Material Service Corporation, an Illinois corporation with its prin-
cipal office located in Chicago, Illinois, is engaged in the production,
sale, and distribution of crushed rock, gravel, coal, and various build-
ing materials. For this purpose, it operates, in addition to its own
facilities,, those of two subsidiary corporations, Thornton Quarries
Corporation and Stearns Lime and Stone Compaily.2 During the year
1943, its sales exceeded $6,000,000 in value, approximately 20 percent
of which represents the value of crushed rock and gravel products
produced in the State of Illinois and transported to points outside that
State.
2 The operations of these subsidiaries are considered het em as operations of Material
Service
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consumers Company, a Delaware 'corporation with a general office
located in Chicago, Illinois, is engaged in the production, sale, and
distribution of gravel, crushed rock, coal, ice, and various building
materials. During the year 1943, sales of its rock and gravel products
originating in the State of Illinois exceeded $2,000,000 in value, of
which more than 20 percent represents the value of products shipped
from points located within the State of Illinois to points outside that
State.
Chicago-Elmhurst Stone Company, an Illinois Corporation, owns
and operates a limestone quarry and has its principal place of busi-
ness in Elmhurst, Illinois. During the 12 months ending June 30,
1944, Elmhurst's sales of crushed stone and stone for ballasting
amounted in value to approximately $275,000. Between 15 and-20
percent of these sales was made to a common carrier engaged in
interstate commerce.
Each of the four Companies admits that it is engaged in commerce
within the meaning of the National Labor Relations Act.
11. THE ORGANIZATIONS INVOLVED
` Transport Workers Union,of America, Amalgamated Local, is a
labor organization affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of the four Companies.
International Association of Machinists, Local 701; International
Union of Operating Engineers, Local 150; and Local 681, Sand, Gravel
and Crushed Stone Workers Union, International Construction and
General Helpers Council of Chicago and Vicinity, are labor organiza-
tions affiliated with the American Federation of Labor, admitting to
membership employees of the four Companies.
III. THE QUESTION CONCERNING REPRESENTATION; THE ALLEGED QUESTION
CONCERNING REPRESENTATION
On or about September 30, 1943, the Transport Workers requested
recognition from Dolese, Material Service, and Consumers, as the
collective bargaining representative of certain of their employees.
These requests were denied. Thereupon; the Transport Workers filed
petitions before the Board for investigation and certification of rep-
resentatives.3 On May 15, 1944, the Board dismissed these petitions,
finding that the units" sought in each were inappropriate.4 Shortly
thereafter, the Transport Workers again requested recognition from
Dolese, Material Service, and Consumers, and, in addition, from
Cases Nos . 13-R-2138, 13-R-2139, and 13-R-2142.
4 Matter of Dolese & Shepard Company , et at, 56 N. L. R B. 532.
DOLESE & SHEPARD COMPANY 1601
Elmhurst, as the representative of certain of their employees; these
requests have not been granted.
Each of the four Companies is engaged in * contractual relations
with the Laborers and the Operating Engineers. In addition,
Material Service has a collective bargaining agreement with the
Machirlists.5 The contract between the Operating Engineers and the
four Companies 6 became effective as of May 16, 1941, and expires
May 31, 1946; the most recent agreement between the Laborers and each
of the four Companies became effective as of September 15, 1943, and
expire^December 31, 1944, subject to automatic renewal from year to
year in the absence of 30 days' notice of a desire to terminate given by
either party prior to any anniversary date; and the contract between
the Machinists and Material Service was executed January 10, 1944,
providing for a term of 1 year and automatic renewal for yearly terms
thereafter in the absence of 60 days' notice given by either party
prior to any anniversary date of a desire to change the terms of the
agreement.
We are of the opinion that the contracts between the Laborers and
the four Companies and the contract between the Machinists and
Material Service constitute bars to a determination of representatives
of the employees embraced within their terms. No question, con-
cerning representation was raised by the requests for recognition
made on or about September 30, 1943, since the units proposed by these
demands were found by the Board to be inappropriate. After the dis-
missal of the petitions concerning Dolese, Material Service, and Con-
the requests or claims upon which they were based were no
longer operative. Consequently, the only requests which can be con-
sidered by the Board are those made in untimely fashion subsequent to
the effective dates of these contracts.' Accordingly we shall dismiss
the petition insofar as it affects employees.elnbraced within the terms
of these contracts without prejudice, however, to 'the right of the
Transport Workers seasonably to file a new petition at a later date.
On the other hand, the contract between the Operating Engineers
and the four Companies provides for a 5-year term, and it has been
in effect for more than 3 years. Under these circumstances; it does not
constitute a bar to. a current determination of representatives.s
An Exhibit," introduced into evidence at the hearing, indicates that
the Transport Workers and the Operating Engineers each represents
Consumers also has a contract with the Machinists . However this contract concerns
employees not embraced within the scope of the petition herein
This contract is a single document signed by the five parties
7 Matter of North Range Mining Co+npany, 47 N. L R B. 1306.
Matter of Metro-Goldwyn -Mayer 'Studios; 7 N. L R B . 662 at 696 and 697 ., Matter of
Columbia Broadcasting System, Inc , 8 N. L It. B . 508 at 511 and 512
U Board Exhibit 11.
601248-45-vol 57 102
1602 DECISIONS Or; NATIONAL LABOR RELATIONS BOARD
a substantial number of employees in the unit hereinafter found
appropriate io
We find that a question affecting commerce has arisen concerning
the representation of certain employees of Dolese, Material Service,
Consumers, and'Eli iiurst, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the`Act.
IV. THE APPROPRIATE UNIT
Substantially in accordance with an agreement' of the Transport
Workers and the Operating Engineers made at the hearing, unopposed
by the other parties involved herein, we find that all engineers on
shovel and drag lines; crane operators and shovel cranemen; locomo-
tive engineers; engineers on ,cranes, derricks, hoisters, cable ways, and
other equipment used for handling material after it leaves the pit;
and firemen and oilers employed by Dolese, Material Service,' Con-
sumers, and Elmhurst, excluding superintendents, foremen, all other
supervisory employees with authority to hire, prouiote, discharge,
discipline, or otherwise effect ch t. es in the status of employees,
,or effectively recommend such action, and all other employees of
these Companies, constitute a single unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
V. THE DETERMINATION OF IIEP1MSENTAT1VES
We shall direct that the question concerning representation which
has arisen be resolved by all election by secret ballot among the em
ployees 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
0 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 3, as amended, it is
hereby
10 The Operating Engineers relies upon its cloned-shop contract with the Companies for
the establishment of its interest. Board Exhibit 11 indicates that there are 136,employees
in the unit covered by this contract ; that the Operating Engineers submitted 53 designa-
tions ; and the Transport workers 18 In view of the closed-shop provisions of the con-
tract, we find that the 'showing of interest submitted by the Transport workers, amounting
to slightly more than 13 percent, is sufficient to warrant the entertainment of this
proceeding. ' -
DOLESE & SHEPARI) COMPANY 1603
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Dolese & Shepard
Company, Chicago, Illinois; Material Service Corporation, Chicago,
Illinois; Consumers Company, Chicago, Illinois; and Chicago-Elm-
hurst Stone Company, Elmhurst, Illinois, an election by secret ballot
shall be_cpnducted as early as possible, but not later than thirty (30)
days from-the date of this Direction, under the direction and super-
vision of the Regional Director for the Thirteenth 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 Regu-
lations,^among the employees in the unit found. appropriate in Sec-
tion IV, above, who were employed during the pay-roll-period imme-
diately preceding the date of this Direction, including employees who
did not work during the, said pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in the
aimed 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 tliey desire to be repre-
sented by Transport Workers Union of America, Amalgamated Local,
affiliated with the Congress of Industrial Organizations, or by Inter-
national Union of Operating Engineers, Local 150, affiliated with the
American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.
ORDER
IT is HERESY ORDERED that the petition filed by Transport Workers
Union of America, Amalgamated Local, C.-I. 0., for investigation and
certification of representatives of the employees of Dolese & Shepard
Company, Chicago, Illinois; Material Service Corporation, Chicago,
Illinois; Consumers Company, Chicago, Illinois;, and Chicago-Elm-
hurst Stone Couipauy, Elmhurst, Illinois, insofar as it affects em
ployees of these Companies not within the unit found appropriate in
Section IV, suupva, be, and it hereby is, dismissed, without prejudice
to the right seasonably to file a new petition at a_later date.
CHAIRMAN MTLLis took no part in the consideration of the above
Decision, Directioii of Election and Order.