Lehigh Portland Cement Co.

National Labor Relations Board - Board Decisions

Jan 12, 1942

38 N.L.R.B. 167 (N.L.R.B. 1942)

In the Matter of LEHIGH PORTLAND CEMENT CO., & MODERN VALVE AND
BAG Co. and LIME & GYPSUM WORKERS, LOCAL No. 167 , AFFILIATED
WITH THE A. F. OF L.
Case No. B-3362.-Decided January 1. ,194.
Jurisdiction : cement manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal of Company to accord recognil ion to either of two competing unions until
one or the other is certified by the Board ; election necessary.
Unit Appropriate for Collective Bargaining : all production, maintenance, and
laboratory employees of the Company at its plant, excluding supervisory,
clerical, and temporary miscellaneous employees, held to constitute an appro-
priate unit, notwithstanding the desire of one union to include the employees
of another Company who work at the plant, where the two Companies appear
to be wholly separate enterprises.
Messrs. John Young and M. A. Johnson, of Fordwick, Va., for the
Cement Company.
Mr. Floyd N. Burke, of Staunton, Va., for Local 167.
Messrs. W. B. Timberlake, Jr., of Staunton, Va., and W. R. Hender-
son, of Craigsville, Va., for the Association.
Mr. Reynolds C. Seitz, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
On September 18, 1941, Lime & Gypsum Workers, Local Union No.
167, affiliated with the A. F. of L., herein called Local 167, filed with
the Regional Director for the Fifth Region (Baltimore, Maryland) a
petition, and on November 28, 1941, an amended petition, alleging that
a question affecting commerce had arisen concerning the representation
of employees of Lehigh Portland Cement Co., & Modern Valve and
Bag Company, herein respectively called the Cement Company and
the Bag Company, at the Fordwick, Virginia, plant of the Cement
Company, and requesting an investigation and certification of repre-
38 N. L. R. B., No. 43.
167
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On November 26, 1941
(amended on December 2, 1941). 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 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 November 29, 19411 the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Cement Company, the
Bag Company, Local 167, and Lehigh Portland Protective Associa-
tion, herein called the Association, a labor organization claiming to
represent employees directly affected by the investigation. On Decem-
ber 5, 1941, pursuant to notice, a hearing was held at Staunton, Vir-
ginia, before Charles F. McErlean, the Trial Examiner duly designated
by the Chief Trial Examiner. The Cement Company, Local 167, and
the Association were represented at. and participated in, the hearing 1
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce 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 Examiner and finds that
no prejudicial errors were committed. 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 COMPANIES
Lehigh Portland Cement Co., a Pennsylvania corporation, operates
15 plants in 11 States. This proceeding is confined to the Company's
Fordwick, Virginia, plant where the Company manufactures regular
cement, high early strength cement, modified cement, and mortar ce-
ment. In the manufacture of such products, limestone, shale, coal,
and some other raw materials are used. From outside the State of
Virginia the Company receives monthly about 5,000 tons of coal and
4,000 pounds of explosives. The Company also secures a large pro-
portion of the lubricants used by it from outside Virginia. About
90,000 barrels of cement are produced monthly and about 50 percent
thereof is shipped out of Virginia.
Modern Valve and Bag Co., a Pennsylvania corporation, bags and
ships the cement produced by the Cement Company at the Fordwick
I The Bag Company had received notice, but did not appear at the hearing. At the open-
ing of the hearing the Trial Examiner communicated with the Bag Company and ascer-
tained that it would not appear.
LEHIGH PORTLAND CEMENT CO. 169
plant. Neither Company owns stock in, or exercises control over, the
other or over the employees of the other.
II. THE ORGANIZATIONS INVOLVED
Lime & Gypsum Workers, Local No. 167, affiliated with the A. F.
of L., and Lehigh Portland Protective Association are labor organiza-
tions admitting to membership employees of the Cement Company.
III. THE QUESTION CONCERNING REPRESENTATION
It is stipulated by and between the parties that both Local 167 and
the Association have made demands on the Cement Company, in
writing, to be recognized as the bargaining agency for the employees
at the Fordwick plant, and that the Cement Company has refused
to recognize either of the named organizations until one of them is
certified as the proper bargaining agency by the Board.
A check of applications cards made by the Trial Examiner and
introduced into evidence at the hearing indicates that Local 167 and
the Association each represents a substantial number of the Cement
Company's employees in the unit hereinafter found appropriate.2
We find that a question has arisen concerning the representation of
employees of the Cement 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 Cement
Company described in Section I above, has a close, intimate, and sub-
stantial 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.
2 The Trial Examiner certified as to the following :
The pay roll for the period from November 1 to 15, 1941 , contains 217 names of persons
within the unit contended for by Local No. 167. Local 167 has submitted 104 cards dated
between August and October 1941 and 41 undated cards. All the cards appear to bear
genuine original signatures and 110 of them bear names on the pay roll of the Cement
Company for the period November 1 to 15
The Protective Association submits 92 applications ; 88 of the names appear to be
genuine original signatures , and 4 persons appear to have signed by a mark. Eighty-four
of the names appear among the group of 217 on the pay roll of the Cement Company for
the period November 1 to 15.
3 Although the petition names the Bag Company as an employer of employees involved
herein , and although , as hereinafter appears, Local 167 contends that employees of the
Bag Company should be included in the bargaining unit, there is no showing that either .
labor organization represents or has sought recognition for any employees of the Bag
Company as such Accordingly and in view of the significant fact that the Bag Company
is a wholly separate enterprise , we shall dismiss the petition in so far as it relates to
employees of the Bag Company.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE APPROPRIATE UNIT
The parties agree that all maintenance , production , and laboratory
employees of the Cement Company at the Fordwick plant, excluding
supervisory , clerical , and temporary miscellaneous employees , should
be included in the bargaining unit. Local 167 contends that employees
of the Bag Company who work at the Fordwick plant of the Cement
Company should also be included , whereas the Association opposes
their inclusion. Inasmuch as the Cement Company and the Bag Com-
pany appear to be wholly separate enterprises and the employees of the
Bag Company are under its exclusive control and supervision , we shall
exclude them from the unit.
We find, therefore , that all maintenance , production , and laboratory
employees of the Cement Company, at the Fordwick plant, but exclud-
ing all supervisory , clerical , and temporary miscellaneous employees
constitute a unit appropriate for the purposes of collective bargaining.
We further find that such unit will insure the employees the full benefit
of their right to collective bargaining , and otherwise effectuate the
policies of the Act.
All. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation of employees of
the Cement Company which has arisen can best be resolved by an elec-
tion by secret ballot. We shall direct that the employees in the
appropriate unit who were employed during the pay-roll period im-
Inediately preceding the date of the Direction herein, subject to the
limitations and additions set forth in the Direction , shall be eligible
to vote.
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 Lehigh Portland Cement Co., Fordwick,
Virginia , within the meaning of Section 9 ( c) and Section 2 (6) and
( 7) of the National Labor Relations Act.
2. All maintenance , production , and laboratory employees of the
Cement Company, at the Fordwick plant, excluding all supervisory,
clerical, and temporary miscellaneous employees constitute a unit
appropriate for the purposes of collective bargaining within the mean -
ing of Section 9 (b) of the National Labor Relations Act.
3. No question has arisen concerning the representation of employees
of Modern Valve and Bag Co.
LEHIGH PORTLAND CEMENT CO.
DIRECTION OF ELECTION
171
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 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
with Lehigh Portland Cement Co., Fordwick, Virginia, an election by
secret ballot shall be conducted as early as possible but not later than
thirty (30) days after the date of this Direction under the direction
and supervision of the Regional Director 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 maintenance, production, and laboratory employees of the Cement
Company employed at its Fordwick plant during the pay-roll period
immediately preceding the date of the 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 all super-
visory, clerical, and temporary miscellaneous employees, and employees
who have since quit or been discharged for cause, to determine whether
they desire to be, represented by Lime & Gypsum Workers, Local 167,
affiliated with the A. F. of L., or by Lehigh Protective Association for
the purposes of collective bargaining, or by neither.
ORDER
IT IS HEREBY ORDERED that the petition for investigation and certifica-
tion of representatives filed by Lime & Gypsum Workers; Local 167,
in so far as it relates to employees of Modern Valve and Bag Co., be,
and the same is, hereby dismissed.