Lone Star Industries, Inc.

National Labor Relations Board - Board DecisionsSep 8, 1971

193 N.L.R.B. 80 (N.L.R.B. 1971)

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lone Star Industries , Inc.' and International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , General Drivers, Ware- housemen and Helpers Local Union No. 968, Petitioner2 and United Steelworkers of America, AFL-CIO, Petitioner3 and Inland Boatmen's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, Petitioner.4 Cases 23-RC-3519, 23-RC-3525, and 23-RC-3547 September 8, 1971 DECISION, ORDER , AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 15 and 29, 1970, respectively, the Teamsters and the Steelworkers filed with Region 23 of the National Labor Relations Board separate petitions for certification of representative pursuant to Section 9(c) of the National Labor Relations Act, as amended. Thereafter, the parties entered into a Stipulation for Certification Upon Consent Election for a unit of production, maintenance, and marine employees which was approved by the Regional Director on November 10, 1970. The Regional Director withdrew his approval of the stipulation when the SIU on December 10, 1970, filed with Region 23 a petition for a more limited unit consisting of marine department employees. The Regional Director dismissed the SIU petition on the ground that the requested unit was inappropriate. Upon SIU's appeal, the Board reinstated the petition on February 22, 1971. Thereafter, a consolidated hearing was held in the above-entitled cases before Hearing Officer Bernard D. Getto for the purpose of taking testimony with respect to the issues raised by all of the petitions.5 Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and State- ments of Procedure, Series 8, as amended, these cases were transferred to the National Labor Relations Board in Washington, D.C., for decision. Briefs have been timely filed by the Employer, the Teamsters, the SIU, and the Association. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its i Subsequent to the hearing, the Employer, Lone Star Cement Corporation , advised the Board of its new name 2 Herein called the Teamsters 3 Herein called the Steelworkers a Herein called the SIU 5 The Lone Star Employees Association , herein called the Association, was permitted to intervene on the basis of its bargaining agreement with powers in connection with this proceeding to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds they are free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this proceeding, including the briefs, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved herein claim to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Teamsters, the Steelworkers, and the Association rely on the Mallinckrodt decisions in opposing any severance from the unit which the Association has represented for about 33 years; namely, the production, maintenance, and marine employees in the concrete and shell department and the marine department at the Employer's South Texas Agcrete operation.? The SIU, which contends that the guidelines set forth in Mallinckrodt are not entirely applicable to the instant situation, seeks a separate marine department unit or a self-determination election therefor. However, in the event the Board finds that only an overall unit is appropriate, the SIU is willing to participate in an election covering a unit of that scope. The marine department consists of a shell dredging barge, herein called the dredge, other barges, tug- boats, other boats, and a shop known as the Harrisburg shop. The concrete and shell department is composed of shell plants, ready-mix plants, mixer trucks, and a maintenance shop known as the Renwick shop.8 The dredge is located in the center of San Antonio Bay9 where it "dredges up" the oyster shell. The shell is then loaded on barges, moved by tugboats to the various shell plants, unloaded by cranes, placed into hoppers and mixed with sand or cement, and delivered to the Employer's customers by ready-mix trucks. There are about 90 employees in the marine department: The dredge has employees, none of whom are licensed, in the following hourly paid classification: the Employer 6 Mall,nckrodi Chemical Works, 162 NLRB 387 7 Acquired from the W D Haden Company in 1966. 8 The facilities of this department are located in Houston or within 100 miles thereof 9 About 225 miles from the main plant in Houston. 193 NLRB No. 17 LONE STAR INDUSTRIES The leverman operates the suction pipe which cuts up the shell and sucks it up to the dredge for processing. The electrician is semiskilled, is not required to be certified, and performs minor electrical work. The engineers see to it that the engines function properly. The welder is not certified and performs minor repairs to keep the equipment operating until major repairs can be made. 10 The loaders do not require any special skill for their work of loading the barges. The utility man does general work. The dayman performs housekeeping and maintenance tasks on the dredge. The deckhands, oilers, and cooks perform the usual functions associated with those positions. The crews on the tugs and other boats are paid on a monthly basis and include a captain, mates, junior engineer, cooks, and deckhands. The Employer has no formal apprenticeship program and does not require any member of the crews to be licensed. The Harrisburg shop, a land-based facility located near the main cement plant in Houston, is responsible for maintaining and repairing barges and equipment used on the tugs and the dredge; on occasion its employees also work on shell plant equipment. The employees in this shop are hourly paid maintenance engineers, machinists, welders, and laborers. The concrete and shell department has about 130 hourly paid employees: Most major maintenance functions are performed at the Renwick shop in Houston. The plant mainte- nance welders work out of the shop and perform maintenance and repair tasks in order to keep the various plants operating. The welders and the machinists have the same skills as the employees in similar categories at the Harrisburg shop and do not have to be certified. Other employees in the depart- ment are crane operators, loaders, laborers, and mixer truck drivers. Some safety meetings are held on a departmental basis but others cross departmental lines by including plant employees, ready-mix drivers, tugboats employ- ees, and Harrisburg shop employees. An exhibit submitted by the Employer for the period since 1955 shows the following movement between departments: 23 permanent transfers, 8 temporary transfers, and 9 employees terminated in one department and rehired in the other department. According to Personnel Manager Brown, there were also "quite a few" inter-departmental transfers on a half-day or full-day basis for which records were not kept by the Employer. All transfers take place without loss of seniority. All hiring for both departments is done at one central location. As indicated above, all employees, except those on the tugs and other boats, are hourly 10 According to Personnel Manager Bobby W Brown, this welder is -probably" less skilled than the welders at the Harrisburg and Renwick 81 paid. Working hours on tugs, other boats, and the dredge are in terms of trips and watches in contrast to regular workdays for employees in the concrete and shell department and the Harrisburg shop. All employees receive the same benefits and are covered by the same contract. All employee grievances are taken up with the management official who handles labor relations for both departments. In support of its proposed unit, the SIU, which concedes that there is no craft issue herein, asserts, inter alia, that the marine department constitutes a homogeneous, as well as a functionally and geograph- ically distinct, department with separate identity and working conditions that differ from those in the concrete and shell department. SIU argues that some of the marine employees, unlike the land-based employees, have long working hours and tours of duty and possess special skills and a knowledge of navigation. The Employer and the other labor organizations contend, and we agree, that the marine department is not functionally distinct from the concrete and shell department in view of the long history of bargaining for the overall unit, the common labor policy, the interchange of employees, and the similarity of duties of many employees in both departments. A prime condition for severance, which the Board enunciated in Mallinckrodt, requires that the employ- ees in the proposed unit must constitute "a functional- ly distinct department, working in trades or occupa- tions for which a tradition of separate representation exists." We are of the opinion that this condition has not been met in the instant proceeding. Thus, both the Harrisburg machine shop, an onshore facility which is part of marine department, and the shop and plants in the concrete and shell department have such common classifications as machinist, welder, and laborer, and the dredge also employs welders. Although, as the SIU contends, the boats and the dredge have personnel whose duties are marine in character, its proposed unit includes the land-based Harrisburg shop which has maintenance functions similar to those of the Renwick shop in the concrete and shell department. Moreover, there is a considerable amount of interchange of personnel between the two departments. In view of the foregoing, we conclude that a unit restricted to the Employer's marine department is inappropriate for severance because it does not constitute a functionally distinct and homogeneous group and we shall dismiss the petition in Case 23-RC-3547. However, we find that the long-estab- lished overall unit is appropriate. We shall therefore direct an election among the following employees: shops 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production, maintenance, and marine employ- ees in the Marine Department and the Concrete and Shell Department at the Employer's South Texas Agcrete operation, excluding all office clerical employees, inside salesmen, outside sales- men, technical employees, research employees, guards, watchmen, captains, mates, second pilots, 11 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc., 156 NLRB 1236; N.L.R.B. v Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed chief engineers , and supervisors as defined in the Act. ORDER It is hereby ordered that the petition in Case 23-RC-3547 be, and it hereby is, dismissed. [Direction of Election 11 omitted from publication ] by the Employer with the Regional Director for Region 23 within 7 days of the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.