New Enterprise Stone and Lime Co.

In the Matter of J. S. DETWILER, PAUL I. DETWILER, DALE DET- WILER, EMMERT DETWILER AND GALEN DETwILER, CO-PARTNERS, D/B/A NEW ENTERPRISE STONE AND LIME COMPANY,' EMPLOYER and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, C. I. O., PETITIONER Case No. 6-R-1533.-Decided January 28, 1947 Mr. Martin Goodman, of Altoona, Pa., and 31r. J. S. Detuiler, of Everett, Pa., for the Employer. Mr. Gaston Le Blanc, of Huntingdon, Pa., for the Petitioner. Mr. Edmund J. Flynn, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Bedford, Pennsylvania, on October 31, 1946, before Joseph Lepie, hearing officer. The hearing officer reserved for the Board ruling on a motion made by the Employer to dismiss the petition. For reasons stated in Sec- tion III, infra, the motion is hereby denied. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDTNGS OF FACT I. THE BUSINESS OF THE EMPLOYER J. S. Detwiler, Paul I. Detwiler, Dale Detwiler, Emmert Detwiler and Galen Detwiler are co-partners, doing business in the Common- wealth of Pennsylvania under the firm name of New Enterprise Stone and Lime Company. The Employer is engaged in quarrying lime- stone and producing crushed limestone, hydrated lime, agricultural pulverized limestone, and ready-mixed concrete. The Ashcom plant, ' The name of this Employer appears as amended at the hearing 72 N L R. B , No. 60. 308 NEW ENTERPRISE STONE AND LIME COMPANY 309 yard and quarry, the largest of the Employer's four operating units and the only one involved in this proceeding, is located at Everett, Pennsylvania. During the 12-month period preceding the hearing, the Employer purchased for its Ashcom plant about $25,000 worth of machinery, 50 percent of which was shipped from points outside the Commonwealth of Pennsylvania. During the same period the Employer sold to the U. S. Department, of Agriculture 40,000 to 50,000 tons of agricultural limestone, 5,000 tons of which, valued at from $25,000 to $30,000, were shipped directly from the Ashcom plant to consignees in the State of Maryland. In 1945, the Employer pur- chased,principally for the Ashcom plant, in excess of $500,000 worth of machinery, a substantial portion of which came from outside the Commonwealth of Pennsylvania. We find that the Employer is engaged in commerce within the mean- ing of the National Labor Relations Act.2 II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. Ill. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive Petitioner has been certified by the Board in an appropriate unit. Petitioner has been certified by the Board in an appropriate unit. On January 25, 1946, a consent election was conducted under Board auspices among the employees of the Employer's Ashcom plant .3 The Petitioner, the sole union on the ballot, failed to receive a majority of the valid votes cast. On July-23, 1946, the Petitioner filed the orig- inal petition in this case. The Employer contends that no election should now be directed because the petition was filed less than a year after the consent election was held, for no other purpose than to harass the Employer. But there is no evidence that this proceeding was instituted to harass the Em- ployer. On the contrary, the report of our Field Examiner concerning the Petitioner's recent showing of interest among the employees here sought, indicates that, prima facie, it represents a substantial number of them and thus apparently requests an election in good faith to de- termine whether or not these workers desire to designate it as their agent for the purposes of collective bargaining. Moreover, approxi- mately 1 year has now elapsed since the consent election. In these 2 Matter of Thomas Christian, d/b/a Christian Coal Company , 70 N. L. R B 161 ; Matter of McLeansboro Shale Products Company , 69 N L. R. B. 809. 'Case No 6-R-1289. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, we perceive no reason to delay a determination of representatives.4 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 In accordance with the agreement of the parties, we find that all production and maintenance employees at the Employer's Ashcom plant, yard, and quarry, excluding clerical employees, and all super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. -DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with J. S. Detwiler, Paul I. Detwiler, Dale Detwiler, Emmert Detwiler and Galen Detwiler, co-partners d/b/a New Enterprise Stone, and Lime Company, Everett, Pennsyl- vania, 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 Sixth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding 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 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 or not they desire to be represented by United Stone and Allied Products Workers of -America, C. I. 0., for the purposes of collective bargaining. MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision and Direction of Election. 4 Matter of Continental Clay Products Company, 65 N. L. R. B 168.