Tampa Sand & Material Co., Inc.

TAMPA SAND & MATERIAL COMPANY, INC. 621 unit for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN HERZOG and MEMBER MURDOCK took no part in the con- sideration of the above Supplemental Decision and Certification of Representatives. TAMPA SAND & MATERIAL COMPANY, INC. and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO, PETITIONER. Case No. 10-RC=1052. July 26, 1951 Second Supplemental Decision and Order On December 8, 1950, the Board issued a Decision and Direction ,of Election in the above-entitled proceeding, finding that a unit of all employees at the Employer's concrete products plants at Tampa, Florida, excluding office and clerical employees, professional em- ployees, guards, watchmen, and supervisors as defined in the Act, was appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act.' On January 8, 1951, the Peti- tioner won the election thereby directed by a vote of 134 to 3. Of a total of 170 ballots cast, 31 were challenged. The majority of the challenged ballots was cast by employees whose inclusion in the unit was first disputed by the parties at the time of the election, and had not been formally resolved by the Board's Decision and Direction. As the challenged ballots were insufficient in number to affect the results of the election, the Petitioner was thereafter certified as representa- tive of the employees in the stated unit.2 On March 13, 1951, the Petitioner requested that the Board clarify the certification by the specific inclusion of employees at the Em- ployer's asphalt plant, and cement finishers, laborers, and truck drivers assigned from the sand yard main property of the Employer to various ITampa Sand c6 Material Company, Inc ., 10-RC-1052, not reported in printed volumes of Board decisions . Pursuant to the provisions of Section 3 (b) of the Act , the Boaid has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Murdock and Styles]. 2 The Intervenor, Local 925 of the International Union of Operating Engineers, AFL, filed objections to the conduct of the election on the ground that the Board agent conduct- ing the election erroneously notified certain employees whose inclusion in the unit was in dispute, that lie would challenge their ballots. The objections were investigated by the Regional Director for the Tenth Region who thereafter issued his report in which he found that the objections raised no substantial or material issues with respect to either the conduct or results of the election and recommended that they be dismissed No exceptions having been filed to the report of the Regional Director , the findings therein and the recommendation to dismiss were adopted by the Board . In making his report , the Regional Director specifically did not make any finding on the issue of whether the challenged employees were properly within the bargaining unit found appropriate Tampa Sand ct Material Company, Inc, 10-RC-1052 ( Supplemental Decision and Certification ) not re- ported in printed volumes of Board decisions. 95 NLRB No. 76. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construction projects in and around the city of Tampa. Pursuant to an order of the Board reopening the record and remanding proceedings to the Regional Director, a hearing was held before Charles M. Paschal, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed .3 The Employer operates a block manufacturing plant and storage yard, a sand and raw material storage yard, and a ready-mix concrete plant. The parties agree that the appromixately 177 employees work- ing at these locations are within the unit as it is presently comprised. The Petitioner contends, however, that 14 employees at an asphalt plant operated by the Employer and 32 other employees working on construction projects for the Employer are also within the unit found appropriate and requests amendment and clarification of the certifica- tion to specifically include those employees. The Employer asserts that neither the asphalt plant nor construction project employees should be within the appropriate bargaining group. Twenty-five of the employees in the disputed groups cast challenged ballots at the election. The Employer owns and operates an asphalt plant located approxi- mately 5 miles from the remainder of its operations. The plant pro- duces paving materials, at a fixed fee per ton, for another business firm which furnishes the raw materials and uses the entire production. There is no interchange of materials or personnel among the asphalt plant and the other operations of the Employer. The 14 employees assigned to the asphalt plant are separately supervised and have no contact with the remainder of the Employer's work force, although their rates of pay are comparable. Under these circumstances and upon the entire record, the Board finds that the employees at the asphalt plant are not a part of the bargaining unit found appro- priate for the employees at the concrete products plants of the Em- ployer and denies the request to clarify and amend the certification to include that group within the bargaining unit. In addition to the manufacture of concrete and allied products, the Employer also contracts to perform certain types of concrete construc- tion work in the course of which it furnishes the materials and labor. There are 32 employees, classified respectively as cement finishers, apprentices, and laborers, who perform this work .4 • The cement fin- At the reopened hearing, the Employer renewed its motion for dismissal of the petition herein on the grounds that its operations were not within the jurisdiction of the Board. For the reasons stated in the previous decision in this case and in Tampa Sand & Material Company, 91 NLRB 865, the motion is herewith denied. 4 The parties are agreed that temporary employees now assigned to work at a special project in St. Petersburg, Florida, should not be included in the unit . While the Petitioner requested that employees in the concrete placement division classified as truck drivers should be included in the unit the record shows that no employees in that group are so classified. . TAMPA SAND & MATERIAL COMPANY, INC. 623 ishers, with the assistance of their apprentices and the laborers, do the finishing and placement of concrete at the projects where they are under the separate supervision of the Employer's foremen. Materials used at the construction projects are hauled to the job sites by employees who are admittedly within the bargaining unit. The concrete place- ment crews report for work either at the sand yard main property of the Employer or at the project itself while it is in progress. While the work hours of these employees sometimes vary from those of the other employees of the Employer, and there is no interchange of employees in the placement crews and the other plants, all employees are on a central payroll and receive top supervision from the main plant. Upon these facts and inasmuch as the cement finishers, appren- tices, and laborers are engaged in work which is a supplement to that of employees working at the concrete plants, the Board finds that these employees are included within the unit referred to. in the Decision and Direction of Election in the instant proceeding. Accordingly, the Board grants the request of the Petitioner to clarify and amend the certification to specifically include cement finishers, apprentices, and laborers in the concrete placement division of the Employer .5 The Board will further direct that the certification be amended to spe- cifically exclude foremen6 in the concrete placement division, and employees working at the Employer's Tampa asphalt plant. Order IT IS HEREBY ORDERED that the Supplemental Decision and Certifica- tion of Representatives be, and it hereby is, amended specifically to include in the unit therein referred to, all cement finishers, apprentices, and laborers in the concrete placement division of the Employer's Tampa operations, and to specifically exclude all foremen in the con- crete placement division, and all employees at the Employer's asphalt plant. See Weyerhaeuser Timber Co., 81 NLRB 472. The Employer contends that an elec- tion should be directed to determine whether these employees wish to become a part of the bargaining unit. We find no merit in this contention . The concrete placement crew employees are and were a part of the bargaining unit found appropriate in the Decision and Direction of Election in this proceeding. While it is true that the unit placement of these employees was not litigated at the hearing preceding the Board's decision , as found herein they are a constituent part of the unit found appropriate. Although some of the employees in this group were challenged as voters in the election, the Board notes that their ballots could not have been determinative of the result. O The parties agreed and the Board finds that William Cooper and Troy Crews, regular foremen, and G. K. Philpot , acting foreman , are supervisors within the meaning of the Act and should be excluded from the bargaining unit.