Frazier Mining Co.

In the Matter of J. S. FRAZER , AN INDIVIDUAL DOING BUSINESS UNDER THE NAME OF FRAZIER MINING COMPANY and DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. R-4356.-Decided November 2, 1942 Jurisdiction : mining industry. Investigation and Certification of Representatives : existence of question : failure of Company to recognize union on request ; clection necessary. - Unit Appropriate for Collective Bargaining : all employees, excluding the work- ing foreman. Mr. Johz i A. Moore, of Marion, Ky., and Mr. J. M. Blayney, •1r., and Mr. Harold S. Cook, of St. Louis, Mo., for the Company. Mr. David Hunter, of Marion, Ky., for the Union. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by District 50, United Mine Workers of America, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of J. S. Frazer, an individual doing business under the name of Frazer Mining Company, Mexico, Kentucky, herein called the Company,! the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert D. Malarney, Trial Examiner. Said hearing was held at Marion, Kentucky, on October 7, 1942. The Company and the Union appeared, participated, iind were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. ' The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On October 22, 1942, the Company filed a brief which the Board has considered. Upon the entire record in the case, the Board makes the follow- ing: 1 The petition and other formal papers in this proceeding aie hereby amended to disclose the correct name of the Company. 45 N. L. R B., No. 50. 318 J. S. FRAZER FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 319 J. S. Frazer, an individual doing business under the name of Frazer Mining Company, operates the Pigmy Mine, a fluorspar mine near Mexico, Kentucky. The mine is owned by Pigmy Corporation, a subsidiary of Rosiclare Lead and Flourospar Mining Company. Un- der contract - with Pigmy Corporation, Frazer mines the ore 2 and processes it at the mine for use in the production of steel and alumi- num. Frazer is paid for his mining and processing services accord- ing to the tonnage of ore which he handles. During the year ending October 1, 1942, the amount of ore handled by Frazer amounted to about 7,000 tons and Frazer's gross receipts exceeded $50,000. All ore mined and processed by Frazer is sold by Pigmy Corporation to Rosiclare Lead and F11lorspar Mining Company, by which it is sent from Frazer's mill at the mine to customers, practically all of whom are located outside Kentucky. We find that Frazer, contrary to his contention, is engaged in commerce within the meaning of the Na- tional Labor Relations Act.3 II. THE ORGANIZATION INVOLVED District 50, United Mine Workers of America; is a labor organiza tion, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On July 25, 1942, the Union, by letter, asked that the Company recognize the Union as sole bargaining representative of its employees. At the time of the hearing the Company had not yet recognized the Union. 1'I'he greater part of the ore from the Pigmy Mine is brought to the surface through the agency of Shelley Patton, an individual to whom Fiazer has subcontracted such work See Mattel of Shelley Patton and District JO, United Mine Workers of America, 45 N L R B 315, issued this day Cf l 'ainblatt v N L R B , 306 U S 001 ; rev'g 98 F (2d) 015 (C C A 3), setting aside Mattel of Beilaniin Fainblatt and Mailotie Fainblatt, Individuals, doing business under the firm tames and styles of Sotnerstlle illanufactuitag Company and Somerset Dfanufacturing Company and International Ladies' Garment Workers' Union, Local No 139, 1 N L It B 864 , 4 N L R B 598 ; Santa Cruz Fruit Packing Co. v N L. R B, 302 U S 453, aff'g 91 F (2d) 790 (C C A 9), enf'g as mod. Matter of Santa Cruz Fruit Packing Company, a corpordtion and Weighers, Warehousemen and Cereal Workers, Local 18 try, International Longshoremen's dssociatton, 1 N L R B 454; Sunshine Mining Co V N L R B, 110 F (2d) 780 (C C A 9), enforcing Matter of Sunshine Mining Cont- pany and International Union of Mine, Mill and Smelter Workers, 7 N L. R. B 1252 cert denied 312 U S 678. `320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement prepared by the Regional Director and, admitted into evidence at the hearing indicates that the Union represents a sub- stantial number of employees in the appropriate unit.4 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 Union contends that all employees of the Company except Virgil Baird constitute an appropriate bargaining unit. The Com- pany would include Baird in the unit. Employees of the Company spend their time chiefly in prospecting for ore or in processing the mined ore at the mine.5 Employees do ,not generally shift from prospecting to processing work except in emergencies. All employees perform physical work. Baird is the highest paid employee of the Company. He performs physical work. At the commencement of the hearing, Frazer characterized Baird as a "supervisory" employee, and Baird is regarded by other employees as their foreman. Frazer is not continuously at the mine, and Baird', is the most experienced employee. We find that Baird is a working foreman and we shall exclude him, as a supervisory employee, from the bargaining unit. We find that all employees of the Company, excluding the working foreman, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. - P. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election, subject to the limitations and additions set forth therein. 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 Relations * The Union submitted to the Regional Director 13 applications , 6 dated in November 1941 and the remaining dated in 1942, 10 of which appear. to bear genuine signatures of employees on the Company 's pay roll , of August 28, 1942. This pay roll lists 19 emloyees. 6 As noted in footnote 2, above, most of the ore processed by Frazer-,is mined and brought to the surface through the agency of Shelley Patton, with whom Frazer contracts for such services. Miners employed by Patton are not directly concerned herein, since the Union does not contend at this time that the bargaining unit should include all the workers through whose efforts the ore is mined and processed for production purposes. J. S. FRAZER 321 Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with J. S. Frazer, an individual doing business under the name of Frazer Mining Company, Mexico, Kentucky, 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 Eleventh Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 10, of said Rules and Regulations, among all employees of the Company within the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding ;the date of this direction, including employees who did not work dur- ing such 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 employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by District 50, United Mine Workers of America, for the purposes of collective bargaining. MR. GERARD D. REUa.Y took no part in the consideration of the above Decision and Direction of Election. 493508-43--vo1. 45--21