Colorado Portland Cement Co.

National Labor Relations Board - Board Decisions

Oct 30, 1942

45 N.L.R.B. 197 (N.L.R.B. 1942)

In- the Matter Of COLORADO, PORTLAND CEMENT` COMPANY and
CONSTRUCTION WORKERS DIVISION OF DISTRICT 50, UNITED MINE
WORKERS OF AMERICA
Case No. R-41'339:-Decided' October 30, 19412
Jurisdiction : cement- manufacturing industry.
Investigations ands Certification : of Representatives : existence of question,: re-
fusal to. accord' petitioner. recognition until certified by the Board ; election
necessary.
Unit. Appropriate for Collective Bargaining : production and maintenance em-
ployees at one mill and quarry- of Company, including truck drivers, watch-
men, and the-assistant chief, engineer, but excluding, clerical and supervisory,
employees.
Mr. J. F. Kaufman, of Denver, Colo., and Mr. M. F. Fleming,, of
Portland, Colo., for the. Company.
Mr. Fred Hefferly, of Denver, Colo., Mr. Austin Barnes, Mr.
Craddoc I. Davies, and Mr. Everett Runkle; of Florence, Colo., for
U. MI. W.
Mr: M'elvin.Ferron, of Seattle, Wash., for the A. F. of L.
Miss Viola James, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE. CASE
Upon an amended petition duly filed by Construction Workers
Division of District 50, United Mine Workers of America,, herein
called' U. M. W.,, alleging that, a question affecting commerce had
arisen concerning the representation of employees of Colorado Port-
land Cement Company, Portland, Colorado, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate'hearing -upon due'notice before Elmer L: Hunt, Trial, Examiner.
Said hearing, was held at Florence, Colorado,, on September 24, 1942.
The Company, the, U^ M. W., and United' Cement, Lime and, Gypsum
Workers International' Union, affiliated' with American Federation, of
Labor, herein calledi the- A. F. of L., appeared, and participated. All
parties were afforded' full opportunity to be heard,, to -examine and
45, N. L. Jr. B , No 36'
197
198
11
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-examine witnesses , and to introduce evidence bearing on the
issues. The Trial Examiner's rulings are free from prejudicial error
and are hereby affirmed. '
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Colorado Portland Cement Company, a Colorado corporation,
is engaged in the manufacturing and wholesaling of cement and cement
plaster. For this purpose it owns and operates two mills and quarries.
During the last year the Portland mill and quarry,' has produced and
sold approximately 800,000 barrels of cement and plaster valued at
approximately $2,000,000, 15 percent of which was shipped to ' pur-
chasers in other States. The Company admits, and we find, that it is
engaged in commerce within the meaning of the National Labor Rela-
tions Act.
H. THE ORGANIZATIONS INVOLVED
Construction Workers Division of District 50, United Mine Workers
of America, and United Cement, Lime and Gypsum Workers Inter-
national Union, affiliated with American Federation of Labor, are
labor organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
About August 12, 1942, the U. M. W. requested recognition as the
-bargaining agent for the Company's employees and sought to arrange
a consent election. The Company refused the request and will not
recognize the U. M. W. as the bargaining agent unless and until it is
certified by the Board.
The Regional Director's statement, introduced into evidence at the
hearing, shows that the U. M. W. and the A. F. of L. each represents
a substantial number of employees in the unit hereinafter found to be
appropriate.'
1 The Portland mill and quarry is the only operation involved herein. It employs ap-
proximately 136 persons.
2 The Regional Director reported that the U . M. W. submitted 101 authorization cards,
of which 71 were dated July 8 to August 20, 1942, and 30 were undated ; that all the cards
bore apparently genuine original signatures ; and that 91 cards bore the names of persons
on the Company 's pay roll of August 31, 1942. The A. F. of L submitted 37 authorization
cards, dated August 18 to 28, 1942 , all of which bore apparently genuine original signa-
tures , and 35 of which bore the names of persons on the Company ' s pay roll of August 31,
1942. The A. F. of L submitted 15 additional cards to the Trial Examiner , who found
that all 15 cards bore apparently genuine original signatures , were dated August 25 to
September 18, 1942, and bore the names of persons on the Company 's pay roll of August
31, 1942.
COLORADO PORTLAND CEMENT COMPANY 199
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company , within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties desire a unit of production and maintenance employees.
They all agree to exclude clerical employees , of whom there are four,
and we shall exclude them . The parties are in dispute as to truck
drivers , watchmen , laboratory employees , and supervisory employees.
Truck drivers and watchmen: There are two truck drivers, whom the
U. M. W. and the A. F. of L. desire to include.3 They drive only on
the premises, are paid by the hour, and are considered by the Company
as common laborers . There are three watchmen whom the U. M. W.
desires to include, and the A. F. of L. and the Company desire to ex-
clude. They are paid by the hour and perform the customary duties
of watchmen. We find that both the truck drivers and the watchmen
should be included in the unit.
Laboratory employees : The laboratory , in which there are eight em-
ployees, is divided into a chemical and physical laboratory. The
parties agreed to exclude the employees in the chemical division. The
U. M. W. desires to include , and the A. F. of L. and the Company would
exclude, the employees in the physical laboratory . Both divisions are
in the same building and both are under the supervision of a chief
chemist. The chief chemist testified that the work in both divisions
is technical and that it is necessary for the employees in both to have
an understanding and knowledge of chemistry . All but one of the
laboratory employees have at least a high school education . They do
not perform any production work except in the sense of controlling
the quality of the raw material and finished product , which they test
according to a procedure outlined by the chief chemist. We shall
exclude all the employees in both divisions of the laboratory , as well
as the chief chemist, who is a supervisory employee.
Supervisory employees : The U. M. W. seeks to exclude all employees
who act in a supervisory capacity ; the A. F. of L. would exclude as
supervisory only those foremen who are not "working foremen"; and
the Company desires to exclude as supervisory the general foreman,
foremen, and the chief and assistant chief engineer of the powerhouse.
The plant superintendent testified that he is the only person who has
the authority to hire and discharge employees, but that there are other
employees who can recommend hiring and discharging , and who other-
wise carry responsibility and perform the duties of supervisors.
Cozad is the general foreman of the mill , which includes the kiln,
raw, mechanical , and finish departments . He is the chief assistant to
The Company took no position as to the truck diners.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant superintendent, from whom he delegates authority to the
quarry foreman, the shift bosses, the chief engineer, and the chief elec-
trician. Donahue is foreman of the quarry which includes the crush-
ing department. He has approximately 20 men under him. Brohmal
is shop foreman of the mechanical department. He is a machinist and
is highly skilled. He is the supervisor and is in complete control of the
repairmen during the absence of the general, foreman, Cozad. The
finish department is under the supervision of shift bosses, of whom
there are 5: Brogran, Weber, Callis,4 Knisley, and Jones. The shift
bosses alternate so that one is in charge of each 8-hour shift.' They act
as head millers and have the responsibility of regulating the fineness
of materials according to reports furnished by the laboratory. Myers
is the chief engineer in the power department. He has supervision
over the other engineers. Kenley is the assistant chief engineer. He
is paid on an'hourly basis, whereas Myers is on a salary. Kenley has no
supervision except during Myers' absence. Leak is chief electrician in
the electrical department, with 5 men under him. Lucas is chief
chemist in charge of both divisions of the laboratory. Dixon is fore-
man of the plaster plant with 7 men under him. In the shipping de.
partment Victor and Phillip Bononcini, brothers, are in charge, each
on alternate days. They have approximately 20 employees under
their supervision. All but 4 of the above-named employees are paid a
salary, and all except Kenley act in a supervisory capacity. We find
that all these employees, other than Kenley, are supervisory, and we
shall exclude them as such from the unit.
We find that all production and maintenance employees of the Com-
pany at its Portland, Colorado, mill and quarry, including the truck
drivers, watchmen, and Kenley, the assistant chief engineer, but ex-
cluding clerical employees and supervisory employees, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE-DETERMINATION OF REPRESENTATIVES
The U. M. W. prefers the pay-roll period from the middle of
August to the middle of September as the eligibility date, but offers
no reason for the preference. We shall, therefore, follow our usual
practice concerning the eligibility date, and shall direct that the
question concerning representation which has arisen be resolved by
an election by secret ballot among the employees in the appropriate
unit who were employed during the pay-roll period immediately pre-
ceding the date of the Direction of Election herein, subject to the
limitations and additions set forth in the Direction.
Callis is also referred to as Despotopulos.
The mill runs 24 hours a day, in 3 shifts of 8 hours each.
COLORADO PORTLAND CEMENT COMPANY 201
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 Re-
lations Act , 49 Stat. 449 , and pursuant to Article III, Section 9,
of National Labor Relations Board Rules and Regulations-Series
2, as amended , it is hereby
DZRFCTFD that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Colorado Portland Cement Company, Portland , Colorado, an
election by secret ballot shall be conducted as early as possible, but
not later than thirty ( 30) clays from the date of this Direction,
under the direction and supervision of the Regional Director for the
Twenty-second Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Section 10,
of said Rules and , Regulations , 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 any such employees who did not work during said pay-roll
period because they were ill or on vacation or in the active military
service or training of the United States, or temporarily laid off, but
excluding any who have since quit or been discharged for cause, to
determine whether they desire to be represented by Construction
Workers Division of District 50, United Mine Workers of America,
or by United Cement , Lime and Gypsum Workers International
Union, affiliated with American Federation of Labor, for the pur-
poses of collective bargaining , or by neither.
MR. GFRARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.