Southern Cement Co.

National Labor Relations Board - Board Decisions

Dec 16, 1940

28 N.L.R.B. 596 (N.L.R.B. 1940)

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.