Standard Lime and Stone Co.

National Labor Relations Board - Board Decisions

Aug 16, 1951

95 N.L.R.B. 1141 (N.L.R.B. 1951)

STANDARD LIME AND STONE COMPANY 1141
issuance of the notice of election shall be eligible to vote.3 Where no
I ecords of employment are available for persons who meet these vot-
ing requirements, these persons shall establish their eligibility by an
affidavit to be furnished to the Regional Director, in which they shall.
certify that they have met all of the voting requirements described
above.
Because of the seasonal nature of the industry, and in order to ex-
tend the franchise to the greatest number of eligible voters, we direct
that the election be held at or near the peak of the 1951 season on a date
to be determined by the Regional Director.
[Text of Direction of Election omitted from publication in this
volume.]
'See h orcal Packing Company, 76 NLRB 254. See Watery out Employers Association
of the Pacific Coast, et al., 72 NLRB 3'i6
STANDARD LIME AND STONE COMPANY and UNITED CEMENT, LIME AND
Gypsum WORKERS , INTERNATIONAL UNION, AFL, PETITIONER. Case
No. 5-RC--8444. August 16, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hear ng was held before John H. Garver, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. The Employer and Local 337, urge a contract bar i o a present
determination of representatives. The Petitioner and the C. I. O.
take a contrary view that the contract is not a bar.
On June 9, 1950, the Employer and the United Construction
Workers, UMWA, entered into their most recent contract 2 which waq
to be effective until July 1, 1951, and thereafter from year to year
3 United Gas, Coke and Chemical Workers of America, CIO, was permitted to intervene
on the basis of interest shown Local Union No 337, United Construction Woi kei s,
UMWA, was permitted to intervene on the basis of current contractual interest. Herein-
after the United Coke and Chemical Workers of America, CIO, will be referred to as
CIO and Local Union No 337, United Construction Workers, U11IWA, as Local .1,37.
2 The collective bargaining relationship of the parties commenced during 1946.
95 NLRB No. 148.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless a notice to modify or terminate was given by either party 60
days prior to the, termination--of-the contract. The petition herein
was-'filed on Mardi 12, 1951, a date well in advance of the automatic
renewal date of the contract. As the petition was filed in advance of
the automatic renewal date, we find that the contract is not a bar to
a present determination of representatives.3
We find, therefore, that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The. Petitioner-seeks a unit composed of all production and main-
tenance employees including supply room employees, subforemen, and
the toolroom employee, but excluding office clericals, the laboratory
employee, watchmen, guards, and supervisors as defined in the Act.4
The CIO and Local 337 agree generally with the composition of the
unit sought, but would exclude supply room employees and subfore-
men. The Employer also is in general agreement with the composi-
tion of the unit, but would exclude supply room elnployees,5 and the
toolroom employees. However, it takes no position as to the exclusion
or inclusion of subforemen.
Sub f oremen: The Employer's plant is organized into 4 depart-
lnents : the mine, plant, maintenance, and office departments. At
present there are 4 subforemen in the maintenance department and 1
subforeman in the mine department: The maintenance department,
which consists of approximately 26 to 31 employees and 4 subforemen,
I See International Harvester Company ( McCormick Works ), 85 NLRB 1260; Ryan
Aeronautical Company, 85 NLRB 1189 Sangamo Electric Company , 90 NLRB No. 20 ;
Fioks Reed Company, 91 NLRB No. 158; International Shoe Company, 93 NLRB 331;
The Gates Rubber Company, 95 NLRB 351 . In view of this disposition of the question
of contract bar we find it unnecessary to decide whether or not the notices sent by
Local 337 to the Employer on March 17, 1951 , 1had the effect of forestalling the automatic
renewal of the contract.
4 The petition originally included the laboratory employee and watchmen in a description
of the unit sought. During the hearing the Petitioner modified its position to that set
forth above,
5 The history of collective bargaining reveals that these employees were excluded from
a production and maintenance unit established by the Board pursuant to a consent
election agreement between the Employer and United Construction Workers, UMWA, in
1945 ( Standard Lime and Stone Company, Case No. 5-R-2046 , unpublished ). They were
included by agreement of the parties in a clerical unit found appropriate by the Board
in 1947 ( Standard Lime and Stone Company, 74 NLRB 893 ). The Employer contends
that these prior Board determinations and the resultant bargaining history preclude the
Board from now including the supply room clerks in the unit sought by the Petitioner.
However, the Board has repeatedly held that bargaining history established by consent
election agreements is not controlling . ( National Oats Company, 93 NLRB 939 ;
Memphis Cold Storage Warehouse Company, 91 NLRB 1404 ; Peoples Life Insurance
Company, 72 NLRB 1406 , 1408; Accord : Kohler Company , 93 NLRB 398 ; Illinois Cities
Water Company, 87 NLRB 109 , 111.) Nor is the bargaining history since 1947 controlling
.as the record reveals that United Construction Workers, UMWA , the certified bargaining
representative for the employees in the clerical unit, has never executed a written
contract on their behalf. (See Metal Textile Corporation, 88 NLRB 1326 ; Wasatch -Oil
Refining Company, 76 NLRB 417 , 419; Mascot Stove Company , 75 NLRB 427, 429, 430;
International Harvester Company, 68 NLRB 383 .) Evidence of collective bargaining
practices -with regard to similar employees in other plants of the Employer is not
determinative in this proceeding.
STANDARD LIME AND STONE COMPANY 1143
is under the supervision of a general foreman. There is 1 subforeman
in charge of the service section of the mine department; he is in com-
plete charge of the service work on the 3 p. m. to 11 p. m. shift.
The subforemen spend a substantial portion of their time. working
with groups of two to five employees: They are responsible for the
proper execution of the particular operation assigned to them and
the group of employees with whom they work. Although the record
reveals no instance of its exercise by these subforemen,. there is un-
contradicted testimony that they have the authority effectively to
recommend the hire, discharge, or discipline of- employees. Thd
record further discloses that the subforemen attend the supervisory
meetings held by the Employer where they have been instructed "to
make recommendations effecting or leading to discipline or promo-
tions" of employees working under them. The bargaining history at
this plant reveals that subforemen were never included in the pro-
duction and maintenance unit bargained for by the Employer and
United Construction Workers, UMWA.
Upon these facts, and in the absence of any testimony to, the con-
trary,6 we find that all subforemen 7 are supervisors within the mean-
ing of the Act and we shall therefore exclude them from the unit found
appropriate herein.8
Toolroom clerk: The record discloses that this employee works
under the supervision of the general maintenance foreman and devotes
a substantial portion of his time to the manual task of issuing various
tools to the production and maintenance employees. He also reports
on tools lost and arranges for the repair of damaged ones. In addition
he performs clerical work required for the maintenance of inventories
and other stock records. We find that this employee performs the
duties customarily performed -by plant.clericals,"w¢hom we have re-
peatedly included in production and maintepance units .9 Therefore,
we shall include the toolroom clerk -inthe-unit found- appropriate
herein.
Supply clerks: There are four supply clerks employed in the Em-
ployer's supply room which is situated in the plant supply building.
The supply clerks, consisting of. the chief supply clerk, one female
6 White Sewing Machine Corporation, 89 NLRB 1284, 1286.
7 Included in this group is a subforeman in the maintenance department who,' although
working alone a majority of his time, on various occasions when his work assignments
require it supervises as many as five employees. While we have held that sporadic
exercise of supervisor? authority does not make an employee a supervisor, we do not
regard the exercise of supervisory authority by this subforeman as sporadic in nature.
He is vested with the same powers as-the other subforemen and, it. is, Vlearlyt within the
purview of his work that on various occasions he will exercise the supervisory powers
vested in him.
s Accord : Valley Tractor and Equipment Company, 92 NLRB 240; Ellison Bronze
Company, Inc., 90 NLRB No. 79; General Box Company, 89 NLRB 1439, 1440, 1441;
Public Services Electric and Gas Company of New Jersey, 81 NLRB 1191, 1194.
Westinghouse Electric Corporation , 89 NLRB 8, 33; Victor Chemical Works, 85 NLRB
495; Oswego Sheet Metal Works, 80 NLRB 1199.
1144 DECISI6NS' 'OF NATIONAL LABOR RELATIONS BOARD
clerk, and two male''clerks are under the supervision of the office fore-
man. All the parties . have agreed to exclude the chief supply clerk
and the female clerk from the unit on the ground that they are office
clericals.. There is' disagreement with regard to, the two male clerks.
In substance the duties of these two clerks are as follows : They check
all incoming materials and parts against the packing slips and store
them in their proper places; they issue various parts to production
and maintenance employees on requisitions and perform the necessary
clerical work. In the course of issuing materials they come into
frequent contact with the production and maintenance employees.
They package materials for shipment by express or parcel post and
make the necessary deliveries; they maintain inventories and check
the items stored.- The record discloses that they devote approximately
50 percent of their, time to the manual task involved in issuing ma-
terials and parts and the balance of their time to clerical duties.
We find that the two male supply clerks perform in effect the duties
ordinarily performed by stock clerks and plant clericals and therefore
shall include them in the unit found appropriate herein 10
'We find the following employees employed at the Employer's Kim-
ballton, Virginia, plant, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act : All production and maintenance employees, including the tool-
room employee and the two supply clerks who are stock or plant
clericals; but excluding the office clericals, the laboratory employee,
watchmen, guards, foremen, subforemen and all supervisors as defined
in the Act.
• '[Text of Direction of Election omitted from publication in this
volume.]
10 M. Snower & .Co., 92 NLRB No. 41; General Electric Company, 80 NLRB 174.
SOMERVILLE CREAM COMPANY, INC., and MILK WAGON DRIVERS AND
CREAMERY WORKERS UNION, LOCAL 380, INTERNATIONAL B ROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL, PETITIONER. Case No. 1-CA-744. Augi st 17,
1951
Decision and Order
On May 18, 1951, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report, finding that the Respondent had engaged in certain
unfair labor practices in violation of Section 8 (a) (1) and (3) of
the Act, and recommending that it cease and desist therefrom and
take certain. affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Respondent filed exceptions
95 NLRB No. 156'.