Southern Cement Co.

In the Matter of SOUTHERN CEMENT COMPANY and STEEL WORKERS ORGANIZING COMMITTEE Case No. B-2172.-Decided December 16, 1940 Jurisdiction : cement manufacturing industry. Investigation and Certification of Representatives : existence of question : refusal to accord recognition to union and request that certification be obtained ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, including watchmen but excluding supervisory and clerical employees. Cabaniss cC^ Johnston, by Mr. Forney Johnston, of Birmingham, Ala., for the Company. Mr. Noel R. Beddow, of Birmingham, Ala., for the S. W. O. C. Mr. N. Barr Miller, of counsel to the Board. DECISION AND DIRECTION OF. ELECTION STATEMENT OF THE CASE On September 30, 1940, the Steel Workers Organizing Committee, herein called the S. W. O. C.1 filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of Southern Cement Company, Birmingham, Alabama, herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49- Stat. 449, herein called the Act. On No- vember 7, 1940, 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 Regula- tions-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appro- priate hearing on due notice. On November 22, 1940, the Regional Director issued a notice of hearing, copies of which were served upon the Company and the 1 The petition is signed only by Green Scott. The notice of hearing states that it was filed by the S. W. O. C. 28 N L R B., No. 8R 596 SOUTHERN CEMENT COMPANY 597 S. W. O. C. Pursuant to notice, a hearing was held on November 29, 1940, at Birmingham Alabama, before Alexander E. Wilson, Jr., the Trial Examiner duly designated by the Board. The Company and the S. W. O. C. were represented and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was af- forded all parties. During the course of the hearing the Trial Exam- iner made several rulings relating to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. 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 Southern Cement Company was incorporated in the State of Ala- bama in 1901. Its principal place of business is located in Birming- ham, Alabama, where it is engaged in the production of mortar and slag cement. During the year preceding the date of this hearing, the Company purchased raw materials consisting of slag, lime, chemicals, and Portland cement in the amount of 140,600 tons. Of this amount, 21,000 tons were purchased and delivered from points outside the State of Alabama. During the same period, the Com- pany produced 70,356 tons of prepared mortar and, slag cement, approximately 82 per cent of which was sold and delivered to points outside the State of Alabama. The Company employs approximately 150 persons of whom 125 are in the unit claimed appropriate by the S. W. O. C. II. THE ORGANIZATION INVOLVED Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership maintenance and production employees of the Company? III. THE QUESTION CONCERNING REPRESENTATION A representative of the S. W. O. C. testified that he wrote to the Company on about October 1, 1940, stating that the S. W. O. C. had as members nearly all the employees of the Company, and requested recognition on behalf of the S. W. O. C. The Company replied that It was stipulated at the hearing that the S. W. O. C. is a labor organization within the meaning of Section 2 (5) of the Act. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was unwilling to recognize the S. W. 0. C. until that organiza- tion had been certified as the exclusive bargaining representative of the employees pursuant to an election conducted by the Board. - The S.W. 0. C. thereupon filed its petition. The S. W. 0. C. submitted to the Regional Director , prior to the date of the hearing, evidence that it has a substantial membership among the employees of the Company.' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF, THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection 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 S. W. 0. C. desires a unit composed of all maintenance and production employees of the Company, including watchmen, but exclusive of supervisory and clerical employees. The Company has requested that watchmen be excluded on the ground that they are ordinarily the sole representatives of the management at the plant when it is not in operation. However, the evidence discloses that in addition to the usual patrol duties performed by watchmen, the watchmen at this plant act as messengers in transmitting samples of cement from the mill to the laboratory for testing purposes. They perform such duties about once each hour during every shift. We shall include watchmen in the appropriate unit. We find that all maintenance and production employees of the Company, including watchmen, but exclusive of supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to the 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. There was received -in evidence at the hearing the statement of the Regional Director that the S. W. O. C. had submitted to him 92 signed authorization cards, 75,of which bore dates between August 1 and November 9, 1940; the remaining 17 were undated. The Regional Director further stated in his report that the signatures on the 92 cards appear to be original genuine signatures of persons listed on the Company 's pay roll for October 28, 1940. SOUTHERN CEMENT COMPANY VI. THE DETERMINATION OF REPRESENTATIVES 599 Both the S. W. O. C. and the Company desire the Board to con- - duct an election to determine the exclusive bargaining representative of the employees in the appropriate unit. We find that the question- concerning representation which has arisen among employees of the Company can best be resolved by an election by secret ballot. At the hearing the Company expressed its willingness to supply any pay roll which the Board might select as appropriate for deter- mining eligibility. A representative of the Company stated at the hearing that the number of employees working for the Company was expected to fluctuate very little between the date of the hearing and January 15, 1941. We shall direct that the eligibility 'of em- ployees to vote shall be determined by the pay roll of the Company last preceding the date of our Direction of Election. 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 Southern Cement Company, Birmingham, Alabama, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All maintenance and production employees of the Company, in- cluding watchmen, but excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargain- ing 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 the National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Southern Cement Company, Birmingham, Alabama, 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 Tenth Region, acting iii this matter as agent for the National Labor Rela- tions Board and subject to Article III, Section 9, of said Rules and 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regulations, among all maintenance and production employees of the Company who were employed during the pay-roll period last preceding the date of this Direction, including watchmen and em- ployees who did not work during such pay-roll period because they were ill or on vacation, but excluding any employees who, between such pay-roll date and the date of the election, have quit or been discharged for cause, to determine whether or not they desire to be represented for the purpose of collective bargaining by Steel Work- ers Organizing Committee, affiliated with the Congress of Industrial Organizations. CHAIRMAN HARRY A. MILLIs took no part in the consideration of the above Decision and Direction of Election.