Texas Construction Material Co.

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sales records, the garage foreman, and all other supervisors as defined in the Act,9 constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 9 The parties agree that 35 named individuals are supervisors. Texas Construction Material Company and Operating Engineers Local 450 of the Union of Operating Engineers, A. F. of L., Petitioner. Case No. 39-EC-871. October 12, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John F. Burst, hearing of- ficer? The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer contends, among other things, that it will not effectuate the policies of the Act to assert jurisdiction in this case. The Employer is a Texas corporation with its principal office at Houston. It is engaged exclusively in Texas in the production of sand and gravel at 10 facilities designated in the record as plants. The con- tinuing operation of each of these facilities is of necessity limited by the availability of sand and gravel. At the time of the' hearing, -3 of the so-called plants were located at Eagle Lake, 1 at Alleyton, and 2 at Altier, all in Colorado County about 8 to 20 miles from each other; 3 at Ronlayor in Liberty County; and 1 about 5 miles from Corrigan in Polk County. The plants at Romayor and the one near Corrigan are 125 to 150 miles and 175 to 200 miles, respectively, from the plants in Colorado County, and 75 to 100 miles from each other. Employees at all locations work under the overall supervision of the Employer's president and its vice president and production engineer, and under the separate immediate supervision of superintendents, who are in charge of both production and maintenance at their respective locations. All employees in the same classification are paid at the same rate, except the 3 or 4 part-time employees at Corrigan. Payroll forms, showing the time worked, are prepared at each plant or location and sent to the Employer's principal office at Houston. Thereafter, pay- 1 At the close of the hearing, the Employer moved to dismiss the petition on juris- dictional, contract-bar, and unit grounds. The hearing officer referred ruling on the motion to the Board. For reasons hereinafter set forth, we deny the,motion. The Employer's further contentions addressed to Petitioner 's showing are rejected, as this is an administrative matter which is not litigable by the parties . Moreover, we are satisfied that the Petitioner has an adequate showing. 114 NLRB No. 71. TEXAS CONSTRUCTION MATERIAL COMPANY 379 checks are mailed from that office to the respective superintendents for distribution. All employees have the same hospitalization, surgical; group life insurance, and workmen's compensation benefits. There is some exchange of both equipment and personnel among the- plants in Colorado County. There is no such exchange between these plants and the Romayor and Corrigan plants, or between the latter plants. The Employer holds safety meetings for employees of the Colorado County plants, which are not attended by employees from either Romayor or Corrigan. All ,basic company policies are made at the Employer's Houston office and are applicable to all the plants. The Employer's sales department, consisting, of a sales manager, his as- sistant, and three salesmen, is located at Houston. All major supply items are purchased-by the Houston office. The Employer also has shipping points for each of its five locations. The shipping point for the plant near Corrigan is located at that town. The Employer hauls sand by truck from this plant to Corrigan, and there transfers it to railroad, cars for shipment to purchasers. The other shipping points are apparently very near their respective lo- cations. From these shipping points, the Employer by means of its own "little" locomotive hauls cars loaded with sand and gravel over its own tracks to the tracks of regular railroads.' During 1953 and 1954, the Employer made shipments from all its plants valued at $2,027,417 and $2,346,904, respectively. Of the Em- ployer's 1954 shipments, $1,343 represents the value of materials sold to the Texas Highway Department; about $11,735 the value of sand and gravel sold to companies engaged in highway construction; and $95,142 the value of sand and gravel sold and delivered within Texas to oil and chemical companies such as Union Carbide & Carbon Co., E. I. Dupont de Nemours, and Shell Oil Co. The Employer sells 15 to 20 cars of sand per year to the Santa Fe Railroad and about 10 cars per year from its plants in Colorado County to the T & NO Railroad 3 No interstate shipments are made from the Employer's plants in Colorado County. However, during 1953 and 1954, sand valued at $66,805 and $89,445, respectively, was shipped by the methods de- scribed above from the Romayor and Corrigan plants to customers outside Texas. All shipments were made f. o. b. plant site and the purchasers were responsible for the freight charges. The out-of-State purchasers were thereafter billed by the Employer for the price of the merchandise. During 1953, the Employer made purchases for all its plants valued at $650,487, of which. $535,998 represents intrastate purchases and $114,489 represents out-of-State purchases. During 1954, the Em- 9 Of the total material sold by the Employer , a very small amount-less than' l per- cent-is shipped by truck. S The record does not disclose the value :of the sales to the Santa Fe Railroad; those to the T & NO Railroad amount to $250 to $300 per year. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer made overall purchases valued at $806,473, of which $637,879 represents intrastate purchases and $168,594 represents out-of-State purchases. In view of the nature of Employer's operations, the common over- all supervision, the same rates of pay for all full-time employees, the same employee benefits, and the central control of wages, sales, and policy, Acting Chairman Rodgers and Member Leedom find that the 10 facilities of the Employer constitute an enterprise sufficiently inte- grated to warrant viewing the commerce facts in their totality. Ac- cordingly, as the annual outflow from the Romayor and Corrigan plants exceeds $50,000, they find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case.4 Members Murdock and Peterson agree that the Employer's opera- tions satisfy the Board's jurisdictional standards for an intrastate nonretail enterprise. They regard their colleagues' reliance on the in- tegrated nature of the Employer's operations as a basis for totaling the outflow of all of its plants; as introducing a more restrictive juris- dictional test for such enterprises, however. Heretofore, the question of whether the operations of various facilities are or are not integrated was material in determining jurisdictional issues only in those cases involving enterprises of more than one employer, which are alleged to be a "single employer." As the Employer, a single corporation, clearly` is a single employer, there is no need in their view to rely on the integrated nature of its operations as a basis for totaling the out- flow of all of its facilities. 2. The labor organization involved claims to represent certain em- ployees of the Employer.' 3. The Employer contends that a current contract between the Em- ployer and the committee representing the employees, covering em- ployees at the Colorado County plants, effective through December 31, 1955, and from year to year thereafter in the absence of a 60-day written notice, is a bar to the instant proceeding, insofar as it relates to these employees. Because the automatic renewal date of the con- tract is less than 30 days away from the date of issuance of this deci- sion, we find that the contract cannot bar a present determination of representatives.' 'Jonesboro Grain Drying Coopeiatit'e , 110 NLRB 481, at 483 and 484 The Employer contends that it makes no interstate shipments at all from its Romayor and Corrigan plants on the ground , in substance, that title to the merchandise passes to the purchasers within Texas We find no merit in this contention . Mast Lumber Company, Inc., 111 NLRB 18, and Homer Chevrolet Company, 110 NLRB 825 , relied on by the Employer in its brief in support of this contention , are clearly distinguishable as there , unlike the instant case , the customers took delivery inside the State. G The committee representing the employees , although served with notice of the hearing, did not appear or participate in the proceeding. 6 Anheuser-Busch, Ino, 102 NLRB 800, at 803. GENERAL SHOE CORPORATION 381 We therefore find that a question affecting commerce exists concern- ing the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. At the close of the hearing, the Petitioner amended its petition to request the following units, excluding from each professional em- ployees, clerical employees, guards, and supervisors as defined in the Act : (a) A unit of all employees of the Employer at all its plants, in- cluding employees both at the plants in Colorado County and at. the plants at or near Romayor and Corrigan or, in the alternative, should the foregoing Employerwide unit be, found inappropriate; (b) a sepa- rate unit of all employees at the Employer's plants in Colorado County, including employees at Alleyton, Altier, and Eagle Lake; and (c) a combined unit of all employees at the Employer's plants at or near Romayor and Corrigan or, should this combined unit be found inappropriate, (1) a separate unit of employees at the Em- ployer's plants at Romayor and (2) another separate unit of employ- ees at the Employer's plant near Corrigan. The Employer took the position that the Employerwide unit pri- marily sought by the Petitioner vas inappropriate, on the ground that employees at the Romayor and Corrigan plants should not be included in the same unit with employees at the Colorado County plants. In view of the integration of the Employer's operations, we find, in accordance with Petitioner's primary unit request, that an Employer- wide unit, including employees at all the plants, is appropriate. Upon the entire record herein, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: all employees of the Employer at all its plants, including employees both at the plants in Colorado County, Texas, located at Alleyton, Al- tier, and Eagle Lake, and at the plants at or near Romayor and Cor- rigan, Texas, excluding professional employees, clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] General Shoe Corporation and Boot & Shoe Workers' Union, AFL, Petitioner. Case No. 10-IBC-3125. October 12, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Edwin R. Hancock, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 114 NLRB No. 76.