Blair Limestone Co.

In the Matter Of BLATR LIMESTONE COMPANY, EMPLOYER and UNITED, CEMENT, LIME AND GYPSUM WORKERS INTERNATIONAL UNION, AFL, PETITIONER Case No. S-R4360.-Derided August 26,1946 Mr. James C. Beech, of Pittsburgh, Pa., for the Employer. Mr. Artkvrr J. Strunk, of Toledo, Ohio, for the Petitioner. Mr. Gaston Le Blanc, of Martinsburg, W. Va., for the Intervenor- Mr. Bernard Dmiaa, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, hearing in this case was held at Martins- burg, West Virginia, on June 20 , 1946, before Earle K. Shawe, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing the Trial Examiner reserved for ruling by the Board the motion of the Employer and the Intervenor to dismiss the petition on the ground of an existing collective bargaining agreement which it is contended is a bar to the present proceeding . For reasons hereinafter stated, the motion and the Employer's request for oral argument are denied. Upon the entire record in the case, the National Labor Relations. Board makes the following : FINDINGS of FACT 1. THE BUSINESS OF THE EMPLOYER The Blair Limestone Company, a Pennsylvania corporation having its principal office and place of business at Martinsburg, West Vir- ginia, is a wholly-owned subsidiary of the Jones & Laughlin Steel Corporation, Pittsburgh, Pennsylvania. The Employer is engaged in the business of quarrying limestone, dolomite, and fluxing stone, and in burning dolomite, at its quarries, crushing and screening plants, and kilns at Martinsburg, West Virginia, and at Millville, West Vir- ginia. Its operations at the Martinsburg plant, also known as the 70N L.R B, No 52 689 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blairton plant, are solely involved in this proceeding. During the year 1945, the Employer shipped more than 200,000 tons of fluxing stone, lime, dolomite, and commercial stone, valued in excess of $250,000, to points outside the State of West Virginia. I The Employer admits, for the purposes of this *proceeding, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor claiming to represent employees of the Employer. United Stone & Allied Products Workers of America, herein called the Intervenor, is a labor organization affiliated with the Congress of Industrial Organizations claiming to represent employees of the Employer. M. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer because of its collective bargaining agreement with the Intervenor. As a result of its victory in a consent election held on August 14, 1941,' the Intervenor was recognized by the Employer as the exclusive bargaining representative of the production and maintenance em- ployees at the Employer's Martinsburg, West Virginia, plant. A col- lective bargaining agreement was entered into between the Employer and the Intervenor on November 14, 1941 to expire on July 1, 1942. Thereafter, annual contracts were negotiated, each bearing an anni- versary date of July 1, and the last agreement arrived at in this manner was to expire on July 1, 1946. However, on March 14, 1946, a document was executed between the parties entitled "Supplement to Agreement Dated July 1, 1945," providing for an 181/2 cents per hour increase in the rates of pay established by the earlier contract, discontinuing a vacation allowance for employees who voluntarily quit or are discharged, extending the expiration date of the earlier contract to March 16, 1947, and stipulating that the contract was to be annually renewable thereafter subject to termination on 30 days' notice prior to any yearly expiration date. The July 1, 1945, agreement contained no provision for modification of its terms during the life of the con- tract, and the supplemental agreement was negotiated in order to conform to the uniform pattern of wage increases prescribed by the Jones & Laughlin Steel Corporation for its subsidiaries. The mem- bership of the Intervenor had in good form approved the extension, I Case No. 5-R-678. BLAIR LIMESTONE COMPANY 691 but after its adoption disaffection arose in the organization spear- headed by the individuals who had comprised the negotiating com- mittee, and a movement towards affiliation with the Petitioner was undertaken. On April 20, 1946, the Petitioner wrote to the Employer requesting recognition as the exclusive bargaining representative of its employees, and on April 22, 1946, its petition was docketed. The Petitioner admits that there had been no rival organizational activity amongst the employees prior to the extension, and that the extension was not entered into in bad faith for the purpose of precluding a deter- mination of representatives. The Employer and the Intervenor urge their collective bargaining contract as a bar to a present determination of representatives, despite the fact that it is a premature extension of an earlier agreement, and its necessary effect, if it operates as a bar, is to foreclose the employees,- opportunity to change their representatives at the end of the original contract term. It is familiar Board practice to refuse under these circumstances to treat a contract as a bar, but it is contended, in sub- stance, that the premature extension doctrine is not applicable in this case on the grounds (1) that the supplemental agreement is a new contract, and not simply the extension of an existing contract, (2) that the agreement was entered into in good faith, and (3) that it was negotiated in order to keep pace with changed economic conditions. Each of these contentions has been frequently made in various forms in the past, and the Board has uniformly rejected them as a basis for avoiding the impact of the premature extension doctrine. It is imma- terial whether the supplemental agreement is treated analytically as a new contract or as the extension of an existing contract. The bona fides of the parties is equally immaterial,' except that a petition will be entertained even where filed subsequent to the expiration date of the original contract if the extension were entered into for the purpose of precluding a determination of representatives.4 The Board has applied the doctrine to extensions embodying jar Labor Board di- rectives, indicating that it is of no consequence that its purpose is to express in writing the results of negotiations necessitated by changed economic circumstances.5 None of the considerations urged alter the fact that extensions entered into at irregular intervals make un- predictable the time at which a challenge to an incumbent's bargaining status is propitious. It would impose upon the employees a burden ' National Labor Relations Board, Tenth Annual Report, (Gov't. Print. Off 1946), p 20; Matter of Virginia-Lincoln Corporation,.63 N L R. B 590 e Matter of Virginia-Lincoln Corporation, id , Matter of American White Cross Labora- tories, 60 N. L R. B. 1148; Matter of Michigan Light Alloys Corporation, 58 N. L R B. 113. 1111atter•of United States Fini4hing Company, 63 N L R B 575, and the interpretation therein of Matter of Erie Concrete & Steel Supply Co, 55 N. L R. B. 1124 5Matter of Swift and Company, 64 N L R B 880; Matter of American White Cross Laboratories, supra ; Matter of Michigan Light Alloys Corporation, supra. 712344-47-vol 70--45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of constant vigilance, and it would entail changes in plans for organi- zational activity which would ordinarily be timed with the approach of the expiration of the contract term. The hindrance to the free choice of representatives caused by this uncertain and indefinite pro- longation of the time at which employees can oust or reaffirm their agents is a consideration paramount in importance to the possible im- pairment of a stable bargaining relationship caused by an unwilling- ness to negotiate needed changes because of lack of assurance that the- new terms so negotiated will be non-assailable by a third party for an extended period of time.° We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The parties are in agreement that all production and maintenance employees of the Employer's Martinsburg, West Virginia plant, ex- cluding office clerical employees, technical employees, and supervisory employees, donstitute an appropriate unit. The parties are in dis- agreement concerning the inclusion of one H. M. Ritenour, gang leaders, and watchmen. H. M. Ritenour : The Employer and the Intervenor desire the ex- clusion of this employee because of his alleged supervisory status. The petitioner would include him. Ritenour is employed as a machin- ist, and works under the supervision of the master mechanic. The master mechanic supervises a group of about 35 to 40 employees, among whom are 10 employees working in the machine shop. The master me- chanic spends a good part of the day away from the shop overseeing the operations in other parts of the plant. During this time, Ritenour co- ordinates the activities of the other employees in the shop . Twenty- five to thirty percent of his time is devoted to this duty. When the master mechanic is absent due to vacation , sickness , or emergency, Ritenour oversees the entire complement of 35 to 40 employees. Dur- ing the master mechanic 's absence, Ritenour may attend foremen's meetings, but this occurs only rarely. It is stated that he may effec- tively recommend discharge, but he has never presumed to exercise this authority . His wage is the same as that of the other machinists who have no asserted supervisory responsibility . He voted in the last - election) but his supervisory duties are said to have been added since that time. The general characterization - that during the master miechanic's absence Ritenour "exercises all the prerogatives" of the master mechanic, evaluated in the context of specific duties, does not ° Cases heretofore cited ; Matter of the Sherwin-Willaams Company, 54 N. L. R. B. 660; hatter of Memphis Furniture Manti/aeturing Company, 51 N. L. R. B. 1447 ; Matter of- Nxchsta Union Stockyards Company, 40 N L. R. B. 369. BLAIR LIMESTONE COMPANY 693 establish Ititenour's supervisory status. We find that he is a non- supervisory employee, and we shall include him in the unit as a pro- duction and maintenance worker. Gang leaders: The Petitioner and the Intervenor desire the inclu- sion of these employees in the unit, but the Employer contends that they are supervisors and were excluded from the contract unit as "bosses in charge of any classes of labor." These employees, of whom there were three at the time of the hearing, are variously designated as gang leaders, pushers, and bosses. They are in charge of a group of men ranging from one to five in number who are apparently en- gaged in manual labor. The gang leaders work together with these men whom they select from a pool at the beginning of the work day. They receive a higher rate of pay than the men under them, but a lower rate of pay than other non-supervisory employees. The gang leaders report to the quarry foreman or to the assistant quarry fore- man disobedience or lack of cooperation of the men. At times, the gangs work some distance from the area in which the quarry foreman is generally present. The foreman and the gang leaders are equally familiar with the proficiency of the gang workers. General person- nel information disseminated to the employees by management is not transmitted to the gang workers through the gang leaders, but through higher levels of supervision. It is stated generally that the gang leaders are authorized to give the gang workers "time off," but, re- ferring to a specific instance, the general superintendent testified in substance that the gang leaders were reluctant to exercise the author- ity, and the workers declined to regard the gang leaders as the source of the authority. It is also stated generally that the gang leaders can effectively recommend discharge, but the general superintendent is unable to recall a single instance where discharge followed such recom- mendation. We find that the gang leaders are not supervisory em- ployees, and that they may properly be included in the unit. How- ever, since they were not included in the unit established under the prior contract, we shall conduct a separate election among these em- ployees to determine their desires with respect to the matter.' Watchmnen: The Employer employs four individuals as watchmen. They are non-uniformed, non-deputized, non-militarized, and un- armed. In addition to making tours of the plant and punching a clock hourly, they are responsible for firing locomotives standing idle at night, and they man pumps operated to remove water from the quarry. The watchmen were specifically excluded from the contract unit. The Petitioner desires their inclusion, because it customarily includes watchmen in production and maintenance units, and because these 'Matter of Union Manufacturing Company, 69 N. L. R. B. 640, Matter of Petersen & Lytle, 60 N L R B 1070. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen also perform maintenance duties. The Intervenor would not object to their inclusion, but because of the contract exclusion, and in order not to place itself in an inconsistent position, it feels con- strained to oppose their inclusion. The Employer desires their ex- clusion, relying on the contract. Since the watchmen were not in-- eluded in the unit established under the prior contract, we shall con- duct a separate election among these employees to determine whether they wish to be included in the unit.' In view of the fact that the sole reason for not including the gang leaders and the watchmen within the unit without a self-determination election is their exclusion under the contract unit, we shall include these employees in the same voting group for the purposes of deter- mining their desires. We shall also conduct a separate election among the production and maintenance employees of the Employer's Martins- burg, West Virginia, plant. We shall make no finding with respect to the appropriate unit or units for employees of the Employer, pending the outcome of the elections. We shall accordingly direct that separate elections be conducted among the employees in the separate voting groups described below, who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction : 1. All production and maintenance employees at the Employer's Martinsburg, West Virginia, plant, excluding office clerical employees, technical employees, and all supervisory employees 9 with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action; and 2. All watchmen and gang leaders. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with Blair Limestone Company, Martinsburg, West Virginia, separate elections 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 Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of National Labor Relations Board Rules and Regulations-Series 3, as amended, among the employees in the voting groups described in Section IV, above, who were employed during the 8 Matter of The Seagrave Corporation, 69 N L R B 749 ; Matter of Pittsburgh l:guitable Meter Company, 61 N. L. R. B 880; Matter of Petersen f Lytle, supra. 9 Among the excluded supervisory personnel are master mechanic , quarry foreman, assistant quarry foremen, kiln foreman, hydrator foreman, and crusher foreman. BLAIR LIMESTONE COMPANY 695 pay-roll period immediately preceding the date of this Direction, in- cluding employees who did not work during said pay-roll period be- cause they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present them- selves 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 they desire to be represented by United Cement, Lime and Gypsum Work- ers International Union, AFL, or by United Stone & Allied Products Workers of America, CIO, for the purposes of collective bargaining, or by neither. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Elections.