Standard Lime & Stone Co.

In the Matter of STANDARD LIME & STONE CO. and LOCAL #175, QUARRY WORKERS UNION Case No. B-1246.-Decided November 2, 1939 Limestone Quarrying and Cement Manufacturing Industry-Investigation of Repre..entalive.s•: controversy concerning representation: employer refuses to recognize and questions status, of petitioning Union ; rival organization-Unit .Appropriate for-Collective Bargaining: all employees; excluding laboratory and office employees, officials, and foremen, having stibforemen under them ; stipula- tion as to-Current Labor Dispute: strike which commenced on- April 24, 1935, ceased to be-Representatives : eligibility to participate in choice : former em- ployees who went on strike and failed to return to work not eligible to partici- pate-Election Ordered: pay roll immediately preceding Direction of Election -chosen as a basis for determining eligibility to vote ; petitioning Union may (request the Board to remove its name from the ballot. Mr. Jacob Blum and Mr. Samuel M. Spencer, for the Board. Mr. Harry H. Byrer and Mr. L. I. Rice, of Martinsburg, W. Va., and Al','. Charles lblarkell, of Baltimore, Md., for the Company. Mr. Charles G. Gain, of Martinsburg, W. Va., for Local 175. Cllr. E. L. Luttrell, of Martinsburg, W. Va., for the Independent. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TI-11E CASE On November 10, 1938, Local #175, Quarry Workers Union, herein called Local 175, filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Standard Lime and Stone Co., Martinsburg, West Virginia, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor 'Relations Act, 49 `Stat. 449,"herein called the Act.' On January 16, 1939, the National Labor Relations Board, herein called the Board,, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered. an investigation and authorized the Regional. 17 N. L. R. B., No. 7. 147 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director to conduct it and to provide for an appropriate hearing upon due notice. On January 20, 1939, the Regional Director issued a notice of hear- ing, copies of which Were duly served upon the Company, Local 175, and Independent Employees Organization of the Martinsburg Plant,, Standard Lime and Stone Company,' herein called the Independent, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held at Martinsburg, West Vir- ginia, on February 2, 3, 4, 6, and 7, 1939, before Herbert' Wenzel, the Trial Examiner duly designated by the Board. The Board, the Company, Local 175, find the Independent were represented by coun- sel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing, the Trial Examiner made rulings on several motions and objections to the admission of evidence. The Trial Examiner reserved decision on 'a motion made by the Company at the close of the hearing to dismiss the petition. The motion is hereby denied. The Company fired exceptions to 'the rulings of the Trial Examiner and the Regional Director, and a brief in support thereof, both of which were duly considered by the Board. The Board has reviewed the rulings of the Trial Examiner and the Regional Director and finds that no prejudicial errors were committed.2 The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Standard Lime & Stone Company is a Maryland corporation with its main office in Baltimore, Maryland. Among the properties which it operates is a plant located near Martinsburg, West Virginia. That plant is the only property of the Company involved in this proceed- ing. It covers a tract of 265 acres.of land where the respondent is, engaged in the quarrying, crushing, and screening of limestone, and 'Incorrectly designated in the notice of hearing as "Independent Employees Organiza- tion of the Standard Lime and Stone Company, Martinsburg, West Virginia." 2 Prior to the • hearing • the. Company filed with : the. Regional Director a petition for Issuance of a subpena requiring the attendance of J.' B. Foreman, president of Local 175, and a notice requesting the production of certain documents . The Regional Director denied, the petition and declined to comply with the notice. Foreman nevertheless testified volum- farily and no prejudicial error resulted from the Regional Director 's action. STANDARD LIME S STONE COMPANY 149; in the manufacture of cement, "staflux," and other products of lime- stone. Until October 1935 the Company also manufactured lime at this plant. The principal materials used by the Company in its manufacturing processes are limestone, gypsum, mill scale, and shale. The limestone and shale are quarried at the plant, but the gypsum and mill scale are brought to Martinsburg by rail from-New York, Pennsylvania,, and New Jersey. In 1935 the respondent purchased 2,620 net tons of gypsum and 3,005 gross tons of mill scale, amounting to 1 per cent. of the materials used, outside of West Virginia. In addition it pur- chased 45,000 tons of coal, which, though originating in West Vir- ginia, crossed State lines before being delivered at the Martinsburg plant. The machinery and equipment used by the respondent in quarrying and manufacturing at the Martinsburg plant were pur- chased outside West Virginia. During the year 1935 the respondent produced 301,061 gross tons. of stone, 395,169 barrels of cement, 21,160 net tons of "staflux," and 22,017 net tons of lime at its Martinsburg plant. During the same- period 83 per cent of respondent's sales were made in 10, States other- than West Virginia, and in the District of Columbia. The remaining 17 per cent of the products sold by the respondent were shipped to points in West Virginia, but all of them, with the exception of 2 or 3 per cent, crossed State lines before reaching their destination in West Virginia. . The respondent has a trade-mark, registered with the United States Patent Office, for use in commerce among the several States.'- 11. THE ORGANIZATIONS INVOLVED Local #175, Quarry Workers Union, is a labor organization affili-- ated with the Committee for Industrial Organization? It admits to. membership all employees of the Company's Martinsburg quarry and-. other quarries in the vicinity except officials and top foremen. The Independent Employees Organization of the Martinsburg Plant, Standard Lime and Stone Company, is an. unaffiliated labor organization, admitting to membership all persons employed at the Martinsburg plant except officials and foremen. 3 The parties stipulated that the entire record before' the Board and before the Unite& States Circuit Court of Appeals for the Fourth Circuit in Matter of Standard Lime '& Stone Company and Branch No. 175, Quarry Workers International Union of North America, ,5 N. L. R. B. 100, and in Standard Lime & Stone Company v . National Labor Relations Board, 97 F. ( 2d) 531, should be considered as evidence in this case. The findings in this section are taken from the Board's decision in that case. 4In January 1938, Local 175, formerly known as Branch No. 175, Quarry Workers= International Union of North America, transferred its affiliation from the American Federa- tion of Labor to the Committee for Industrial Organization , now the Congress of:' Industrial Organizations. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD HI. THE °RIIESTION CONCERi\ iNG"REPRESENTtSTTbN On February 14, 1938, Local 175 sent a letter to the Company re- .questing a conference "for the purpose of collective bargaining," and to discuss the reinstatement of certain of its members pursuant to .a. Decision and Order of the Board issued on February 4, 1938, in ..''clatter of Standard Lime cC Stone Company and Branch No. 175, .Quarry Workers International Union of North America.5 The Com-. pany replied by letter dated February 16 that it had filed a petition for review of the Board's Order in the United States Circuit Court of Appeals for the Fourth Circuit. On October 28, 1938, Local 175 sent the Company a letter stating that it still represented a majority of ,the C.olnpanry's~employees"a7 d `requestilig That representatives of the Company meet with representatives of Local 175 to settle "the labor difficulties still existing" between the Company and members of Local 175. By letter dated October 31, the Company informed Local 175 that so far as it knew Local 17 5 did not represent any of its employees and denied that there were any labor difficulties among its employees.. At the hearing, the Independent contended that it represents ' a majority of the present employees of the Company and requested that it be certified as their exclusive bargaining agent. We find that a question has arisen concerning the representation .of employees of the Company. IV. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connecting with the,operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among-the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The parties stipulated early in the hearing that all of the Com- pany's production employees and all other employees at its Martins- burg plant, except laboratory and office employees, officials, and foremen having subforemen under them, constitute a unit appropriate for collective bargaining. Subsequently, Local 175 stated that it did not intend by the stipulation to agree to the inclusion of guards. The Independent did not amplify its understanding except to state that the stipulation did not specifically exclude guards from the agreed unit. The Company did not comment on this issue. 5 5 N. L. R. B. 106. STANDARD LIME & STONE COMPANY 151 On the Company's pay roll for - January 15, 1939, in evidence, no persons are classified as guards, but three appear as watchmen. Under the circumstances-of this case and in view of the fact that the record affords no basis for the exclusion of guards or watchmen, we shall adopt the stipulation entered into at the hearing without the modifi- cation requested by Local 175. We find that all employees of the Company at its Martinsburg plant, excluding laboratory and office employees , officials, and fore- men having subforemen under them, constitute a unit appropriate for the purposes of collective bargaining , and that said unit will insure to employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. Q VI. THE DETERMINATION OF REPRESENTATIVES Local 175 contends that it now represents 210 employees of the Company within an appropriate unit who went out on strike on April 24, 1935, and who have neither returned to work for the Company nor obtained other regular and substantially equivalent employment; that a controversy which arose between the Company and Local 175 and resulted in a strike on April 24, 1935, is a labor dispute within the meaning of Section 2 (9) of the Act 6 which has been and now is current; that the above-mentioned 210 employees are still employees of the Company within. the meaning of Section 2 (3) of the Act; 7 that pursuant to the rule enunciated by the Board in the Sartgrius case," the Company's pay roll of April 30, 1935, being the last one to include all persons employed by the Company on the date of the commencement of the strike, should be used to determine eligibility; and that the afore-mentioned 210 employees are a majority'of''em' ployees within an appropriate' unit whb were employed' by the Company on April '24, 1935. The Company denies that there is a current labor dispute now iii existence among its employees. It contends that the dispute which arose on April 24, 1935, is no longer current, that its former employees Section 2 (9) reads as follows : The term "labor dispute " includes any controversy concerning terms, tenure or conditions of employment , or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer-and employee. 7 Section 2 (3) reads as follows : The term "employee " . . . shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who.has not obtained any other regular and substantially equivalent employment . . . 8 Matter of A. Sartorius .& Co., Inc. and United Mine Workers of America, District 50, Local 12090, 10 N. L. R. B. 493 , in which the Board held that during the currency of a strike ( not the result of an unfair labor practice ) only those persons who were employees of the Company at the commencement of the strike , excluding persons subsequently hired to replace striking employees, are eligible to participate in the election of bargaining representatives. 247384-40-vol. 17-11 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who went out on strike and failed to return to work are no longer its employees within the meaning of the Act, and that the eligibility rule stated in the Sartorius 0 case is not applicable here. The Independent requested at the hearing that it be certified as the exclusive representative for all employees in the appropriate unit or be placed on the ballot in the event an election is ordered. -It claims to have- been designated by a majority of the present em- ployees of the Company within the appropriate unit as their repre- sentative. Resolution of these conflicting contentions requires a determination whether the work of the individuals whom Local 175 claims to.repre- sent ceased as a consequence of, or in connection with, any current labor dispute. That the cessation of their work resulted from a' labor dispute is conceded. The crux of the matter is the currency of the dispute. The strike in question was not caused by unfair labor practices of the Company. It started, prior to the effective date of the Act, on April 24, 1935, and was still current on July 15, 1935,10 the date of an alleged refusal by the Company to bargain collectively. By the end of July 1935 the Company had replaced the strikers. Regular picket- ing nevertheless continued until September 15, 1935, and sporadic picketing "for several months thereafter." 11 On February 24, 1936, Local 175 filed charges upon. which, the Board issued a complaint against the Company alleging, among other things, that on July 15, 1935, the Company had refused to bargain collectively within the meaning of Section 8 (5) of the Act. After a hearing upon the complaint, but before issuance of a decision, the Board, on June 16, 1936, dismissed its complaint without prejudice.12 On May 19, 1937, Local 175 filed new charges is upon which the Board issued a complaint against the Company similar- to that which it had dismissed in June 1936. ' The proceeding before. the Board culminated in a Decision and Order issued February 4, 1938. On June 13, 1938, the Circuit Court of Appeals for the Fourth Circuit issued a decree 14 setting aside the Board's order. The petition in the instant proceeding was filed by Local 175 on November 10, 1938. 9 See footnote 8, supra. 11 Matter of Standard Lime A Stone Company and Branch No . 175, Quarry Workers International Union of North America, 5 N. L. R. B. 106; Matter of Standard Lime h Stone Company v. National Labor Relations Board, 97 F. (2d) 531. u Matter of Standard Lime d Stone Company and Branch No. 175, Quarry Workers International Union of North America, 5 N. L: R. B. 106. 12 The dismissal followed the decision of the Supreme Court in Carter and Carter Coal Co., 298 U. S. 238. >s The filing of the new charges followed the decision of the Supreme Court in Jones and Laughlin Steel Corporation, 301 U. S. 1. uMatter of Standard Lime t Stone Company v . National Labor Relations Board, 97 F. (2d) 531. q STANDARD LIME & STONE COMPANY 153 Except for sporadic picketing found by the Board -to have con- tinued "for several months" after September 15, 1935, the record is barren of any evidence of strike activity during the past 4 years. Litigation of the labor dispute has not been continuous. It was interrupted during the 11-month period from June 1936 to May 1937, and terminated in June 1938, 5 months prior to the filing of the petition herein. Under all the circumstances of this case, we find that the strike which commenced on April 24, 1935, was no longer current at the time of the initiation of this proceeding. The doctrine of the Sar- torius case-'-5 1 is therefore inapplicable. Inasmuch as the strike was not caused by unfair labor practices, and is no longer current, former employees of the Company who went on strike on April 24, 1935, and who have not since returned to work for the Company are not em- ployees of the Company within the meaning of Section 2 (3) of the Act and will, accordingly, be excluded from participation in the se- lection of bargaining representatives. The Independent, claiming to represent a majority of the Com- pany's present employees in the appropriate unit, introduced evidence in support of its claim. Local 175 claims that present employees of the Company who were its members in 1935 would vote for it in an election to select bargaining representatives. We shall order an election by secret ballot among the Company's employees in the ap- propriate- unit who were employed during the pay-roll period im= mediately preceding the date of this Decision and Direction of Elec- tion to determine whether they desire to be represented by Local 175, by the independent, or by neither, for the purposes of collective bar- gaining. In view of our determination that former employees of the Com- pany who went on strike on April 24, 1935, and have not since re- turned to work for the: Company are ineligible to vote in the election, Local 175 may desire to have its name withdrawn from the ballot. If it so desires it should notify the Board to that effect within 5 days from the'date of this decision. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Standard Lime & Stone Co., Martinsburg, West Virginia, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 15 See footnote 8, Supra. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All employees of the Company, excluding laboratory and' office employees, officials , and foremen having subforemen under them, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Rela- tions Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby . DIRECTED that, as a part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Standard Lime & Stone Co., Martinsburg, West Virginia,- 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 of Election, under the direction and supervision of the Regional 'Di- rector for the Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all employees of Standard Lime & Stone Co., at its plant' in Martinsburg, West Virginia, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were till, or on va- cation, and employees who were then or have,since, been temporarily laid off, but excluding laboratory and office employees, officials, fore- men having subforemen, under them, and all employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local #175, Quarry Workers Union or by the ' Independent Employees Organization of the Martinsburg Plant, Standard Lime and Stone Company, or by neither, for the purposes of collective bargaining.