Kentucky Fluorspar Co.

In the Matter of KENTUCKY FLUORSPAR COMPANY and DISTRICT 50, UNITED MINE WORKERS OF AMERIOA Case No. B-5743.-Decided August 27, 194.3 Mr. Robert K. Heineman, of East St. Louis, Ill., and Mr. Robert N. Frazer, of Marion, Ky., 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 Kentucky Fluorspar Company,' Marion, Kentucky, herein called the Company, the National Labor Relations Board provided for an ap- propriate hearing upon due notice before Ryburn L. Hackler, Trial Examiner. Said hearing was held at Evansville, Indiana, on July 23, 1943. The Company and the Union appeared, participated, and-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. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kentucky Fluorspar Company has its office and principal place of business at Marion, Kentucky, where it is engaged in the milling of fluorspar. During 1942 the Company processed fluorspar mined in 1 The petition and other formal papers were amended at the hearing to disclose the correct name of the Company. 52 N. L. R. B., No. 32. 549875-44-vol. 52-16 227 228 IYE'C1SQ-ONS OF NAfrIONAL LABOR RELATIONS BOARD Kentucky valued in'excess of $50,000, substantially all of which was shipped to points outside Kentucky. During the same period the Company purchased material, machinery, and equipment, valued in excess of $5,000, more than 50 percent of which came to its mill from points outside Kentucky. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED District 50, United Mine Workers of America, is an unaffiliated labor organization, admitting to membership employees of the Company. 111. THE QUESTION CONCERNING REPRESENTATION On or about June 3, 1943, the Union, alleging that it represented a majority of the Company's employees, asked the Company to recog- nize the Union as their sole bargaining representative. The Company refused such recognition. On June 22, 1943, the Union filed the peti- tion in this proceeding. Roberts and Frazer, herein called the partnership, is a partnership composed of four persons who are owners and stockholders of the Company. The partnership owns and operates three fluorspar mines in the vicinity of Marion, Kentucky, where the Company operates its fluorspar mill. In December 1942, the Regional Director for the Eleventh Region,' pursuant to a consent election agreement, conducted an election- among employees of the Company and employees of the partnership to determine whether or not they desired to be represented by the Union. The Union lost the election. Thereafter the Union concentrated its organizational efforts among employees at the Com- pany's mill. The instant petition is limited to those employees. The Company contends inter alia, that the petition is prematurely brought, since it is filed within 12 months of the election of December 1942. We find no merit in this contention. The election of December 1942 did not result in the selection of a bargaining representative. The record indicates that the Union represents a substantial number of'the Com- pany's mill employees, whom they would include in a bargaining unit.8 For these reasons, and for the reasons set forth in Section IV, below, we believe that the policies of the Act will best be effectuated by holding 2 At that time the territory where the Company's mill is located was included in the Eleventh Region of the Board's operations . At the time of the hearing this territory had been transferred to the Board's Fourteenth Region. 8 The Union submitted 15 authorization cards, 14 of which appear to bear genuine original signatures of employees of the Company on the pay roll of June 15, 1943. Of these cards, 4 are dated in December 1942, 9 in June 1943, and 1 is undated. There are approximately 18 employees in the proposed bargaining unit. KE4NIruuOKY FLUORSPAR COMPANY 229 an election without delay in order that the mill employees may, if they so desire, designate the Union as their representative, for the purposes of collective bargaining.` 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 a unit limited to employees at the Com- pany's mill is an appropriate bargaining unit. The Company con- tends that the proposed unit is not appropriate and that the bargain- ing unit for employees at the mill should likewise include employees at the three mines of the partnership on the ground that the mill and the mines are operated as a single enterprise.5 The Company operates a mill at Marion, Kentucky, for the proc- essing of fluorspar ore. Approximately 25 percent of the ore proc- essed at this mill comes from mines in_ which the Company's stock- holders have no financial interest. The remaining ore processed at the mill is the entire output of three fluorspar mines, which the four stockholders of the Company operate as partners under the name of Roberts and Frazer. The three mines are known as the Babb Mine, the Ellis Mine, and the Tyner Mine. The Babb Mine is located about 12 miles from the mill and employs 47 workers; the Ellis Mine, 25 miles from the mill and employs 13 workers ; and the Tyner Mine, 12 miles from the mill and employs three workers. The Company em- ploys 18 production employees at its mill. Some preliminary processing of the ore is done at the mines ac- cording to established practice in this industry. Ore is brought from the partners' mines to the Company's mill by trucks operated by an independent contractor. It is thereafter carried by wheelbarrow and dumped into the hoppers of automatic, power-driven machines by employees of the mill. The ore is crushed and thereafter screened and sorted by agitation to eliminate impurities. Jigmen and the "tableman" who tend the screening and sorting operations are semi- skilled employees. The Company thus employs 2 grinders, 2 jigmen, a tableman, and about 12 common laborers. At the mines the partners employ drillmen, hoisters, firemen, blacksmiths, and unskilled laborers. There is no exchange between 4 Matter of Kansas City Star Company, 47 N. L. it. B. 386. 5 The attorney for the Company was authorized to enter an appearance for the partnership and, to move that the partnership be added as a coemployer in this proceeding. Since the Union does not desire to represent employees of the partnership at this time, the Trial Examiner ruled that the joinder of the partnership was unnecessaiy and that the present record was entirely sufficient for the Board's disposition of the issues raised by the petition herein . Robert N. Frazer, one of the partners, a stockholder of the Company, and the general manager of the mines and the mill , testified as a witness at the hearing concerning their joint operations. 230 DEcUSrIONS OF NAIPIONAL LABOR R'Ea.ATIONB BOARD mine and mill employees. Frazer is the general manager of the mill and of the mines and their operations are closely integrated for the benefit of the controlling financial interests of the two concerns. Upon the basis of the above _ facts and upon the entire record in this, proceeding, we conclude and find that employees at the Com- pany's mill constitute a clearly definable group of workers in the in- tegrated operations of the mining and processing of the ore. There is no well-defined pattern of collective bargaining among employees in the fluorspar, milling and mining industry. We have found in other representation proceedings units restricted to employees at mines and units restricted to employees at mills, and units embracing both classes of employees, respectively, appropriate bargaining units e There is no history of collective bargaining among employees herein involved. At the present time no labor organization seeks to include in a single bargaining unit employees of the Company and employees of the partnership. Under these circumstances, we find that em- ployees at the mill of the Company may ,function as a bargaining unit separate from employees at the mines of the partnership.' The Company and the Union agree, and we find, that all supervisory employees at the mill should be excluded from the bargaining unit. The only employees with any supervisory authority include the general manager, his assistant, and a foreman. The Company shares with the partnership the services of a stenographer-clerk. The Company and the Union agree, and we find, that she should be excluded from the bargaining unit. The Company employs one night watchman at the mill. He is armed but not uniformed, and he is not deputized or a part of the military police. He sweeps out the Company's office. The Union would exclude this watchman, and the Company agreed at the Union's request to his exclusion at the hearing. Since the watchman is clearly a maintenance employee, and a watchman as distinct from a plant-protection employee, we shall include him in the bargaining unit.8 Cf. Matter of Roszeiare Lead and Fluorspar Mining Company , 41 N. L R . B. 1143; Matter of Shelley Patton, 45 N. L. R. B: 315 ; Matter of Frazer Mining Company, 45 N. L. it. B. 318. 7 This finding will not preclude further investigation by the Board into the matter of the appropriate unit or units for employees of the Company and employees of the partnership upon a later petition for certification of representatives involving these employees. A prior determination that a certain unit is an appropriate bargaining unit is a circumstance which is given great weight by the Board in a subsequent proceeding involving the same plant or company, but when such prior determination has not resulted in either a certification or in any collective bargaining history the prior determination is not deemed to be controlling. Whether we shall enlarge the unit herein found appropriate to include employees at the mines will depend upon the scope of organization among such employees, the pattern of collective bargaining established among any group of employees concerned , and other circumstances which may then be presented for our consideration . So far as our decision in Matter of Globe Newspaper Company be inconsistent with the principle thus set forth, it is hereby expressly overruled . Matter of Globe Newspaper Company, 31 N. L. R. B. 916. ' Matter of Gluck Brothers , Inc., 45 N. L. R. B ., 1159. KErNTMCKY FLUORSPAR COMPANY 231 We find that all employees at the Company's mill, including the watchman, but excluding the stenographer-clerk and all supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and addi- tions set forth in the Direction. 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 Act, and pursuant to Article III, Section 9, of National Labor Relations 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 Kentucky Fluor- spar Company, Marion, 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 Fourteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among all employees of the Company 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 employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding employees who have since quit or been dis- charged for cause, to determine whether or not they desire to be repre- sented by District 50, United Mine Workers of America, for the pur- poses of collective bargaining. CHAIRMAN MILLIs took no part in the consideration of the above Decision and Direction of Election.