Santa Cruz Portland Cement Co.

In the Matter of SANTA CRUZ PORTLAND CEMENT COMPANY and INTER- NATIONAL ASSOCIATIONS OF MACHINISTS, DISTRICT LoDan #93 Case No. R-5802.--Decided September 6, 1943 Morrison, Hohfeld, Foerster, Schuman & Clark, by Mr. J: Hart Clinton, of San Francisco, Calif., for the Company. Messrs. E. B. Scott and F. W. Gorham, of San Jose, Calif., for District Lodge #93. Mr. John H. Leonard, of Santa Cruz, Calif., for Santa Cruz Local #46. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petitions duly filed by International Association of Machin- ists, District Lodge #93, herein called District Lodge #93, alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Santa Cruz Portland Cement Company, Daven- port, California, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before John Paul Jennings, Trial Examiner. Said hearing was held at Santa Cruz, California, on July 30, July 31, and August 4, 1943. The Company, District #93, and United Cement, Lime ,& Gypsum Workers, Santa Cruz Local #46, herein called Santa Cruz Local #46, appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. All parties were afforded opportunity to file briefs with the Board. 52 N. L. R. B., No. 69. L. 444 SANTA CRUZ PORTLAND CEMENT COMPANY 445 Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Santa Cruz Portland Cement Company is engaged in the operation of a cement ' plant, consisting of a quarry and mill, at Davenport, California. During 1942 the Company purchased gypsum, mined in Nevada, at an approximate cost of $107,000. The greater part of all raw materials used at the Company's plant was purchased outside California. During 1942 the Company sold products valued in ex- cess of $3,000,000, of which approximately 25 percent was sold and shipped to points outside California. U. THE ORGANIZATIONS INVOLVED International Association of Machinists, District Lodge #93, is an unaffiliated labor organization. Lodge No. 504, an affiliate, ad- mits to membership employees of the Company. United Cement, Lime & Gypsum Workers, Santa Cruz Local #46, is a labor organization, affiliated with the American Federation of Labor, admitting to membership employees of the Company. M. THE QUESTION CONCERNING REPRESENTATION In 1937, the American Federation of Labor, herein called the A. F. of L., and craft unions affiliated with the A. F. of L., began or- ganizing employees of the Company at its mill and quarry. Em- ployees on the repair gang at the mill joined International Association of Machinists, Local No. 504, herein called the Machinists, and elec- tricians and certain other craft employees at the mill and at the quarry joined respectively appropriate affiliated craft organizations. During 1937, the A. F. of L. chartered for the Company's employees, Santa Cruz Cement Mill Workers' Union, Local No. 21162, herein called Local No. 21162. A majority of employees joined the federal labor union and relinquished their several craft affiliations. Em- ployees on the repair gang, however, as a group, retained their mem- bership in the Machinists. A few electrical employees retained their membership in their craft union. Other affiliated craft organizations gradually withdrew from the plant. On September 9, 1937, Local No. 21162 asked the Company for recognition as exclusive bargaining representative of employees at the mill and quarry. On September 13, 1937, the Company in writing accorded the desired recognition. The repair gang at the mill desired 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to constitute a bargaining unit separate from other employees of the Company and to be represented by the business agent of the Ma- chinists in negotiating a contract with the Company for their group. In view, however, of the recognition accorded to the affiliated indus- trial union, the business agent of the Machinists agreed to the cover- age of the repair gang under the same contract that included other maintenance and production employees of the Company. Represent- atives of the Machinists accordingly participated in discussions for the negotiation of a contract between the Company and Local No. 21162. The wage scale for members of the repair gang was agreed upon by separate discussions between the Machinists and the Com- pany. The rates thus agreed upon were incorporated into the general contract. On the instruction of their business agent, representatives of the Machinists signed the contract as representatives of the repair gang. This contract was signed on December 16, 1937, and was made retroactive to October 5, 1937. The contract provided that it be in force and effect until October 5, 1938, and renewable thereafter from y ear to year unless terminated by 30 days' written notice. The con- tract was automatically renewed in 1938 and 1939. During 1938 and 1939, the Machinists was dissatisfied with its bargaining relations and tried unsuccessfully to induce Local No. 21162 to release employees on the repair gang from the industrial unit for which the Company had recognized Local No. 21162 as bargaining representative. Although Local No. 21162 conceded to employees on the repair gang the right to retain their membership in the Ma- chinists and to treat with the Company and to adjust their grievances through a shop steward who was a member of the Machinists, Local No. 21162 was not willing to concede that the repair gang constituted a separate Anit appropriate for bargaining. In September 1939, the Machinists asked the Company to recognize the Machinists as bargain- ing representative of employees on the repair gang. The Company refused such recognition pending advice by the A. F. of L. that the Machinists had exclusive jurisdiction over the employees whom it desired to represent. The Machinists appealed to the president of the A. F. of L. for a decision upon this dispute. The issue was referred to a western representative of the organization. Some in- effective efforts were made to settle the dispute by affiliated labor councils. In December 1939, United Cement, Lime & Gypsum Workers, here- in called the Cement Workers, was organized as an international in- dustrial union, affiliated with the A. F. of L. Its jurisdiction covered employees working in cement plants. Santa Cruz Local #46, the intervenor in this proceeding, was chartered by the Cement Workers and succeeded Local No. 21162 as exclusive bargaining representative SANTA CRUZ PORTLAND CEMENT COMPANY 447 of employees at the Company's plant. The struggle of the Machinists to gain separate bargaining rights for employees on the repair gang, begun with Local No. 21162, thereafter continued with Santa Cruz Local #46. In 1940, the international president of the Cement Workers agreed, with the Machinists that the Cement Workers would not seek to contract for employees on the repair gang at the Company's plant. On September 13, 1940, the Machinists asked the Company for recognition as bargaining representative of these employees. Santa Cruz Local #46 did not claim any employees on the repair gang as union members. It refused to concede, however, that such employees were properly under the craft jurisdiction of the Machinists. It repudiated the agreement of its international president with respect to the bargaining rights for employees on the repair gang at the Com- pany's plant. Under these circumstances, the Company denied the desired recognition to the Machinists. On October 4, 1940, Santa Cruz Local #46 and the Company signed a new contract covering employees at the Company's mill and quarry, including employees on the repair gang. On October 8, 1940, the Machinists filed with the Regional Director a petition for investigation and certification of representatives. The Machinists protested the contract signed subsequent to its demand upon the Company to represent employees on the repair gang. On December 18, 1940, the Regional Director dismissed the petition, on the ground that the issue therein raised was a jurisdictional dispute between the Machinists and Santa Cruz Local #46, both of whom were affiliated with the same parent organization. The contract between the Company and Santa Cruz Local #46, signed on October 4, 1940, provided that it be in effect for 1 year, re- newable thereafter from year to year unless terminated by 30 days' written notice by either party. Negotiations between the Cement Workers and the Machinists continued for the release of the employees on the repair gang from coverage under this contract. On March 10, 1941, the Machinists filed a second petition for investigation and cer tification with the Regional Director, claiming to represent the em- ployees on the repair gang and requesting certification as bargaining representative of these employees. On March 29, 1941, Santa Cruz Local #46, pursuant to official action by its membership, wrote the Regional Director that it did not represent the 21 employees on the repair gang, all of whom were admittedly members of the Machinists. The Regional Director then requested a statement from Santa Cruz Local #46, admitting that employees on the repair gang constituted an appropriate bargaining unit apart from other employees at the Company's plant. Although Santa Cruz Local #46 was willing to 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concede that all employees on the repair gang were members of the Machinists, it refused to admit the propriety of their functioning as a separate bargaining unit. On July 10, 1941, the Regional Director' dismissed the petition of the Machinists, on.the ground that the issue between the two labor organizations was a jurisdictional dispute to be settled by their common parent organization. The Machinists there- after without avail continued its efforts to obtain from the A. F. of L. a settlement of the issue. - On November 28, 1941, the Company and Santa Cruz Local #46 signed a new contract retroactive to October 5, 1941, covering em- ployees at the plant, including the repair gang. Although previous contracts had been for 1-year periods with automatic renewal clauses, the new contract provided for a 3-year term." It is thus, by its terms, in effect until October 5, 1944. It contains a closed-shop provision. The closed-shop provision has not been- enforced to require employees on the repair gang to join the contracting union .2 The contract pro- vides that each year the wage clause may ,be reopened for revision. ,In July 1942, the Machinists requested a revision of the wage rates for the repair gang and desired to represent the repair gang in negotia- tions with the Company for such revision. Santa Cruz Local #46 refused this request, but formally appointed the business agent and shop steward of the Machinists as members of its plant negotiating committee and, as such, these two members of the Machinists partici- pated in the negotiations between the Company and the contracting union. The result of the negotiations was a flat wage increase for all employees of the Company. Thus, the efforts of'the Machinists to secure an appreciable wage increase for employees on the repair gang were unsuccessful. On April 2, 1943, the Machinists filed the original petition in this proceeding. On June 1, 1943, the international union with which the Machinists is affiliated withdrew from the A. F. of L. On July 20, 1943, the Machinists filed an amended petition. On July 19 or 20,1943 ' the Machinists wrote the Company requesting recognition as bargain- ing representative for employees on the repair gang. The Company thereafter refused to recognize the Machinists since the question con- cerning the representation of employees on the repair gang was presently before the Board. I The 3-year term was suggested by a United States Conciliator, whom the parties invited to assist them in determining some provisions of the contract affecting the quarry workers. The record does not disclose that contracts for more than 1 year are usual in this industry. I It has likewise not been enforced to require certain individual electrical employees who retained their membership in their craft organization to become members of the contracting union. - 3 It was, and is, the contention of the Machinists that the repair gang at the Company's plant received a lower wage than employees in local plants where the Machinists was bargaining representative. The record bears out this contention. SANTA CRUZ PORTLAND CEMENT COMPANY 449 The Company and Santa Cruz Local #46 contend that the 3-year contract of October 1941 constitutes a bar to an investigation and determination of representatives at this time. The contract has run substantially more than half of -its 3-year term. We note that this contract and the two previous contracts covering employees at the plant were signed with the full knowledge of the claim of the Machin- ists to represent employees on the repair gang as a separate bargaining unit. Organization of the Company's employees had its inception as a craft project. The Machinists organized the repair gang as a craft group. Although other employees at the Company's mill and quarry generally relinquished their craft membership and other craft groups freely consented to merge in the industrial group, the repair gang retained its craft membership in the Machinists and, as a group, has been represented by a shop steward and business agent of the Machin- ists and has consistently struggled' to maintain its identity and rights as a separate entity. On October 8, 1940, and on March 10, 1941, respectively, the Machinists filed a petition to adjudicate its contentions that the repair gang constituted a separate unit appropriate for bar- gaining purposes; that the Machinists represented a majority of such employees; and that its right to function as their bargaining repre- sentative was protected by the Act. The Regional Director dismissed these petitions pursuant to the practice of the Board to refer to a parent organization jurisdictional disputes' between member unions. The Machinists, at the present time, no longer acknowledges the authority of the A. F. of L. to determine its jurisdiction. Under the circumstances above set forth, and upon the entire record in the case, we find that the contract between the Company and Santa Cruz Local #46 is not a bar to a determination of representatives, pursuant to the petition filed herein .4 A statement prepared by the Field Examiner and introduced into evidence at the hearing indicates that the Machinists represents a sub- stantial number of employees in the unit herein found appropriate:5 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4 Cf. Matter of Rosedale Knitting Company, 23 N. L It. B. 527, 529. 5 The dues records of the Machinists which were submitted to the Field Examiner's inspec- tion disclosed that 17 employees in the repair gang are paid members of the Machinists. The records indicate that their dues are paid up as follows : 1 through April 1, 1 through May, 4 through June, 2 through July, 2 through August, 6 through September, and 1 through December 1943. The names of these 17 employees appear on the Company's pay roll of July 6, 1943, listing 21 employees in the repair gang. Evidence introduced at the hearing indi- cates that 5 employees on the repair gang are members of Santa Cruz Local #46, 3 of whom are also members of the Machinists. There are 21 employees in the appropriate unit. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE APPROPRIATE UNIT The Machinists contends that employees on the repair gang at the Company's mill constitute a bargaining unit apart from other produc- tion and maintenance employees at the plant. The Company and Santa Cruz Local #46 contend that the plant unit, including all production and maintenance employees at the mill and at the quarry, constitute the only appropriate bargaining unit. The repair gang is a group of maintenance employees who have their headquarters in the machine shop at the Company's mill. They repair and maintain the machinery and mechanical equipment of the plant. All employees on the repair gang spend part of their time in the shop, although some spend most of their time in the plant, so that they may be immediately available for repair work. They are under the supervision of the master mechanic, wherever they may perform their work. The only other employees who work regularly in the machine shop are electricians engaged in electrical repair and maintenance under the supervision of the chief electrician. Em- ployees in the plant occasionally make minor mechanical repairs and adjustments on their machines in connection with their regular pro- duction jobs and spend a small proportion of their time in such work. Employees on the repair gang are the only employees in the mill who devote the greater portion of their time to mechanical repairs in the plant.6 Some employees on the repair gang have acquired their mechanical skills through their experience in the Company's plant. Many of them were production workers who were promoted to jobs on the repair gang by bidding for such jobs when vacancies were posted, pursuant to the terms of the contracts noted above. Em- ployees on the repair gang are more highly skilled in mechanical work than other employees in the plant and as a group they receive a higher hourly wage. Employees on the repair gang clearly constitute a homogeneous group which could function effectively either as a separate bargain- ing unit or as a part of a plant unit. The Company and Santa Cruz Local #46 contend that employees on the repair gang have been adequately represented by the latter as part of the plant unit for the past 6 years, that they have acquiesced in such plant representation, and that they have secured adjustments of their grievances through the machinery established by the contracts between the Company and Santa Cruz Local #46. The record clearly discloses that since 1937 employees on the repair gang have maintained membership in 6 The Company's quarry is about 3 miles from the mill. A blacksmith at the quarry, under the supervision of the quarry superintendent, is engaged in mechanical work at the quarry He is not a member of the Machinists and he has not constituted part of the group of employees who have continually sought separate craft representation. SANTA CRUZ PORTLAND CEMENT COMPANY 451 their craft union and have consistently striven to secure craft repre- sentation for their group. Contrary to the contention of the con- tracting parties, the record does not disclose that these employees have acquiesced in representation by Santa Cruz Local #46, but on the contrary that they have not ceased to struggle to obtain recogni- tion for themselves as•a separate craft group. While it appears that employees at cement plants generally are organized on an industrial basis, it is clear that there are at least two cement plants wherein repair gangs, which constitute well-defined groups of skilled em- ployees, are represented by the Machinists. Under these circum- stances, we believe that the desires of the employees on the repair gang should be decisive with respect to the scope of the bargaining unit most appropriate for them. We shall direct an election among employees on the repair gang to determine whether they desire to be represented by the Machinists or by Santa Cruz Local #46 or by neither. If a majority of the employees voting choose the Machinists, we shall find that employees on the repair gang at the Company's mill constitute a separate bargaining unit and shall certify the Machinists as bargaining representative thereof; otherwise, we shall dismiss the petition filed herein, and the repair gang will remain part of the plant unit for which Santa Cruz Local #46 is bargaining representative.' The master mechanic spends his time in supervising and directing the work of employees on the repair gang. He has authority to make recommendations with regard to employees under his supervision and his recommendations are effective. All parties agree, and we find, that the master mechanic should be excluded from the bargaining unit which includes employees on the repair gang. 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. District Lodge #93 requests that it appear upon the ballot as International Association of Machinists, Lodge No. 504. Santa Cruz Local #46 requests that it appear on the ballot as United Cement, Lime & Gypsum Workers International Union, Local #46, A. F. of L. We shall grant these requests. Those eligible to vote in the election should be all employees on the repair gang at the Company's mill, excluding the master me- chanic, 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. 7Matter of Bendiv Products Division o f Bendier Aviation Corporation, 39 N L. R. B 81, 86. 549875-44-vol. 52-30 452 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purpose of collective bargaining with Santa Cruz Port- land Cement Company, Davenport, California, 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 Twentieth Region, act- ing in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Reg- ulations, among all employees on the repair gang at the Company's mill, who were employed during the pay-roll period immediately pre- ceding 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 the master mechanic and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by International Association of Machinists, Lodge No. 504, or by United Cement, Lime & Gypsum Workers, International Union, Local #46, A. F. of L., for the purpose of collective bar- gaining, or by neither. CHAIRMAN MILLIs took no part in the consideration of the above Decision and Direction of Election.