Monolith Portland Cement Co.

In the Matter of MoN OLITUI PORTLAND CEMENT COMPANY, E111'r oY ER and INTERNATIONAL UNION, UNITED CEMENT, LIME AND GYPsu r WORKERS AND INTERNATIONAL LOCAL 52 (A. F. L.), PETITIONER Case 21'o . PI-R-3.1189 -Decided January 13, 1947 Mr. TV. D. Barnett, of Los Angeles, Calif., for the Employer. Ili. Floyd TV. IIw,ice, of Tehachapi, Calif., for the Petitioner. Mr. Howard Goddard, of Los Angeles, Calif., for the Intervenor. Miss Platovia P. Kaldes, of counsel to the Board. DECISION AND DIRECTION OF ELECTION -Upon a petition duly filed, hearing in this case was held at Los Angeles, California, on August 26, 1946, before George II. O'Brien, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing the International Union of Mine. Mill and Smelter Workers, and In- ternational Local Union No. 550, C. I. 0., Intervenor in these proceed- ings, moved to dismiss the petition on the ground that the Intervenor's contract with the Employer constituted a bar to a present determina- tion of representatives. The motion was referred to the Board. For the reasons hereinafter set forth, the motion is hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. 71IE BUSINESS OF TILE EMPLOYER Monolith Portland Cement Company is a Nevada corporation licensed to do business in the State of California. It owns and oper- ates a plant at Monolith, California, where it manufactures cement. During the year ending December 31, 1945, it purchased fuel oil, greases, gasoline, explosives, and repair material of all kinds necessary to maintain its machinery and equipment, amounting to approx- imately $360,000. Of these purchases, materials valued at approx- imately $175,000 were obtained from sources located outside the State of California, and shipped to the Employer's plant at Monolith. 72N.L R B, No 9 - 35 36 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the same fiscal period it manufactured and sold cement amounting to approximately $2,200,000, in value, approximately $1,670,000 of which was sold to purchasers located outside the State of California. The Employer admits 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. International Union of Mine, Mill and Smelter Workers, and Inter- national Local Union No. 550, Intervenor herein, is a labor organiza- tion affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION On November 6, 1945, the Employer and the Intervenor entered into a collective bargaining agreement effective until June 30, 1946, and thereafter from year to year unless written notice of a desire to termi- nate, modify or alter the same was given by either party at least 30 days prior to the termination date of the contract. The agreement provided, further, that the wage clauses of the contract could, however, be negotiated on 10 days' notice in the event that either a governmental order issued granting a general wage increase or four competing South- ern California mills granted'their employees an increase. Pursuant to the latter provision, and following the governmental announcement of the "Big Steel" wage formula on February 18, 1946, the Intervenor demanded an increase of 181/2 cents per hour in the latter part of February or the early part of March 1946. On March 13, 1946; the Employer agreed to an increase of 9.39 cents per hour, and both parties agreed to submit the remainder of the wage dispute to the U. S. Depart- ment of Labor. On March 21, 1946, the parties signed an agreement providing that the wage agreement of March 13, 19,46, would remain in effect until June 30, 1947, subject to reopening only if the four Southern California mills granted higher increases to their employees and providing further, that all other provisions of the existing agree- ment "may be negotiated on June 30, 1946, according to the terms thereof." On May 23, 1946, the Intervenor notified the Employer that it was "the union's desire to alter or modify the present working agreement between the Company and union on or before June 30, 1946." On June 8, 1946, and June 26, 1946, the Petitioner wrote to the Em- ployer requesting recognition. The Employer made no reply to either of these requests. MONOLITH PORTLAND CEMENT COMPANY 37 On July 8, 1946, the Petitioner filed the petition herein. That same day, the Employer wrote to the Petitioner stating that it would not meet with the Petitioner for the reason that its agreement with the Intervenor would not expire until June 30, 1947. On July 13, 1946, the Intervenor submitted to the Employer a copy of the union's proposed agreement containing a "partial list of changes and additions" which it proposed to negotiate, and on July 24, 1946, commenced negotiations. On July 31, 1946, the Employer and the Intervenor signed an agreement effective to June 30, 1947, incorporat- ing the results of the negotiations. This agreement included, inter alia, a provision for an additional 5.61 cent per hour increase, which equalized the Employer's rate of pay to that of the four competing Southern California mills which in the interim had granted their employees an increase of 15 cents per hour. As indicated above, the wage provisions of the contract were subject to renegotiation upon 10 days' notice in the event the four competing mills in question increased the wages of the employees to a rate higher than that paid by the Employer to its employees. The Employer and the Intervenor contend that the March 21, 1946, agreement replaced the November 6, 1945, contract, that the July 31, 1946, agreement was merely supplemental to the March 21, 1946, agreement, and that the March 21, 1946, agreement, as supplemented and modified on July 31, 1946, constitutes a bar to this proceeding. We do not find it necessary to determine whether the agreement of March 21, 1946, was intended to supplant the entire agreement of November 6, 1945, because under either contract, the terms of the agreement between the parties were subject to renegotiation before June 30, 1947, as to all provisions other than wages, by notice 30 days prior to June 30, 1946, and as to wages, if the four competing South- ern California mills effected an increase to a rate higher than that paid by the Employer. Both of these events occurred, and pursuant to negotiations an entirely new document incorporating the agreement of the parties as to both wages and other provisions was executed on July 31, 1946. In view of the fact that the Petitioner gave notice of its claim to rep- resentation and filed its petition herein prior to the execution of the July 31, 1946, agreement, we find that neither that contract nor the March 21, 1946, contract constitutes a bar to a present determination of representatives. 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. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. TILE APPROPRIATE U'N'IT We find, substantially in accord with the stipulation of the parties, that all production and maintenance workers of the Employer at its Monolith, California, plant, including all workers on vacation or "on leave" who remain entitled to seniority status, but excluding the safety secretary, all employees engaged in transportation upon public high- ways, all agricultural workers, all members of the clerical staff, all technicians on a salary biisis, purchasing agents, armed watchmen and guards, all members of the executive and supervisory staff, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with9Moiiolith'Portland Cement Com- pany, Monolith, California, an election by secret ballot shall be con- ducted 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sec- tions 203.55 and 203.56, of National Labor Relations Board Rules and Regulations--Series 4, among the employees in the unit found appro- priate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including enn- ployees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including em- ployees 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 International Union, United Cement, Lime and Gypsum Workers and International Local 52 (A. F. L.), or by International Union of Mine, Mill and Smelter Workers and its local No. 550, C. I. 0., for the purposes of collective bargaining, or by neither. I The pasties agree that leadermen are supervisoiN employees within the above definition.