Lehigh Portland Cement Co.

In the Matter of LEHIGH PORTLAND CEMENT COMPANY AND UNITED CEMENT, LIME AND Gypsum WORKERS, LOCAL 104, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR. Case No. R-3373.-Decided January 16,1949 Jurisdiction : cement manufacturing and sales industry. Investigation and Certification of Representatives : existence of question. re- fusal to accord union recognition , election, wherein petitioning union failed to obtain a majority, held approximately one year prior to present decision, no bar to ; election necessary. Unit Appropriate for Collective Bargaining : all production, maintenance, and laboratory employees of the Company at its Iola, Kansas, plant, exclusive of the chief chemist, the assistant chemist, and supervisory and clerical em- ployees; laboratory employees included notwithstanding desire of the Company for their exclusion, where they have been so included in some of the prior contracts between the union and the Company, and in view of the fact that they were included in the same unit now contended for in it prior determination by the Board Mr. Frederick, G. Apt, of Iola, Kans., and Mr. John Young, of Allentown, Pa., for the Company. Mr. Reuben Roe, of Buffalo, Iowa, Mr. Charles Wasson, and Mr. Lester Alumbaugh, of Iola, Kars., for the Union. Mr. J. Benson Saks, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 24, 1941, United Cement, Lime and Gypsum Workers, Local 104, affiliated with the American Federation of Labor, herein called the Union, filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri ) a petition alleging that a question affecting commerce had arisen concerning the ;representation of employees of Lehigh Portland Cement Company, Iola, Kansas, herein called the Company, and requesting an investigation and certi- fication of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat . 449, herein called the Act . On Novem- ber 13, 1941, the National Labor Relations Board, herein called the 38 N. L. R. B., No. 66 308 LEIIGH PORTLAND CEMENT COMPANY 309 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 appropriate hearing upon due notice. On November 26,^ 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on December 9, 1941, at Iola, Kansas, before Clarence D. Musser, the Trial Examiner duly designated by the Chief Trial Examiner. The Company was represented by counsel and the Union by its representatives; both par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objec- tions 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 Lehigh Portland Cement Company, a Pennsylvania corporation with general offices in Allentown, Pennsylvania, is engaged in the manufacture and sale of cement. It owns and operates 13 plants in 10 States. The instant proceeding involves only the respondent's plant located at Iola, Kansas. The Iola plant produces - approxi- mately "500,000 barrels of cement annually, of which over 50 percent is shipped to customers located in States other than Kansas. The Company does business in 41 States and concedes that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED United Cement, Lime and Gypsum Workers, Local 104, affiliated with the American Federation of Labor, is a labor organization ad- mitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION Pursuant to a,petition filed by the Union, 'the Board on Novem- ber 15, 1940, -directed an election. This election, held on December 11, 1940, resulted in a vote of 39 to 60 against the Union. The Board, accordingly, on January 4, 1941, dismissed the petition. In 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August or the first part of September 1941, the Union requested ex- clusive recognition of the Company, asserting that it represented 67 or 69 employees out of a total -of 108. The Company took the position that "it is against the policy of the National Labor Relations Board in carrying out the intent and purposes of the Wagner Act to conduct frequent elections for the determination of the proper bargaining agent." Accordingly the Company refused the Union's request for recognition. A report of the Regional Director of the Board shows that the Union represents a substantial number of employees in the appropriate unit.' We find that the election which was held in December 1940 should not preclude an election now, and that a question has arisen con- cerning 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 Union urges that all the production, maintenance, and lab- oratory employees of the Company, exclusive of the chief chemist, the assistant chemist, and supervisory and clerical employees, consti- tute an appropriate bargaining unit. The Company contends, that the laboratory employees should not be included in the unit. The laboratory is on the second floor of the building in which the general offices of the Company are located and is adjacent to the office of the plant superintendent. The chief chemist, the assistant chemist, two laboratory testers, one laboratory assistant, and two laboratory helpers comprise the laboratory staff. The chief chemist is in charge of the laboratory and is regarded as a supervisory em- ployee both by the Company and the,Union. During his absence, the assistant chemist is in active charge of the staff. He, also, acts in 1 The report shows that, of a total of 92 maintenance and production employees listed on the Company 's pay roll for the period ending October 15, 1941, 65 signed application or authorization cards variously dated between July 22 and September 25, 1941 At the hearing six additional cards bearing dates from August 8 to December 10, 1941, were sub- mitted to the Trial Examiner . He authenticated five of these as containing apparently genuine signatures of persons whose names appear on the Company's pay roll as of Septem- ber 24, 1941. LEHIGH PORTLAND, CEMENT COMPANY 311 a supervisory capacity, and therefore is conceded not to be within the appropriate unit. The labor of these employees would seem to be on the periphery of scientific work. It amounts to the employment of technical mate- rials in a routine fashion under supervision. One of the laboratory testers studied chemistry in high school, had some college work but did not graduate as a chemist. The other laboratory tester has had no specialized training as a prerequisite for his laboratory work. The laboratory assistant is a college graduate who majored in chem- istry and taught the subject in school. The two helpers are high school boys who gather hourly samples of the cement from the plant and bring them to the laboratory for the routine tests. The Company and the Union have entered into 11 contracts cov- ering employees in other plants. The parties have considered labo- ratory employees with respect to each of these contracts, and have in some instances regarded them as within, and in other instances as without, a unit composed primarily of production and maintenance employees. In its previous Decision and Direction of Election on November 15, 1940, involving 'the same 'plant and the same contentions as are at issue here, the Board determined that the appropriate unit was pre- cisely that now contended for by the Union.2 The evidence adduced in this proceeding does not persuade us to alter the unit there found. We find' that all the production, maintenance, and laboratory em- ployees of the Company at its Iola,' Kansas, plant, exclusive of the chief chemist, the assistant chemist, and supervisory and clerical employees constitute a unit appropriate for purposes of collective bargaining and that such unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to col- lective bargaining and otherwise effectuate the policies of the Act. All. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. We shall direct that those eligible to vote shall be the employees in the appropriate unit whose names appear upon the Company's pay roll immediately preceding the date of our Direction of Elec- tion, subject to such limitations and additions as are set forth in the Direction. 2 Matter of Lehigh Portland Cement Company and United Cement, Lime and Gypsum Workers, Local No 101,, 27 N. L R B 1380 Cf Matter of The B F. Goodrich Com- pany and United Rubber Workers of America, Local No 43, 3 N L. R. B 420; Matter of Marlin-Rockwell Corporation and Local No. 335, United Automobile Workers of America, 5 %N L R B 206; Matter of Lansdale Company (Re Ltineoltn Bleachery and Dye Works Divi- sion) and Lincoln Mutual Benefit Association, 27 N. L R B 910. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 'A question affecting commerce has arisen concerning the repre- sentation of employees of the Lehigh Portland Cement Company, Iola, Kansas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the production, maintenance, and laboratory employees of the Company at its Iola, Kansas, plant, exclusive of the chief chem- ist, the assistant chemist, and supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the 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, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining n ith the Lehigh Portland Cement Company, Iola, Kansas, an elec- tion by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Elec- tion under the direction and supervision of the Regional Director for the Seventeenth 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 production, maintenance, and laboratory employees at the Iola, Kansas, plant, whose names appear upon the Company's pay roll immediately preceding the date of this Direction of Election including any employees who did not work during said pay-roll period because they were ill or on vaca- tion, or in the active military service or training of the United States, and employees who were then or have since been temporarily laid off, but excluding the chief chemist, the assistant chemist, and super- visory and clerical employees and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Cement, Lime and Gypsum Workers, Local 104, affiliated with the American Federation of Labor, for the purposes of collective bargaining.