Great Lakes Carbon Corp.

'In the Matter` of GREAT LAKES CARBON CORPORATION and DISTRICT-50, UNITED MINE WORKERS or AMERICA Case. No. 3-R-798.-Decided July 7, 19/.¢ Mr. F. B. Thatcher, of Niagara Falls, N. Y., for the Company. Mr. Stanley Denlinger, of Akron, Ohio, and Mr. Rinaldo Cappel- li., of Niagara Falls, N. Y., for District 50. Mr. Charles A. Doyle, of Niagara Falls, N. Y., for the C. I. O. Mrs. Catherine W. Goldman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition'duly, filed by District 50, United Mine Workers of America, herein called District 50, alleging that a question affecting commerce had arisen concerning the representation of employees of Great Lakes Carbon Corporation, Niagara Falls, New York, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Peter J. Crotty, Trial Examiner. i Said hearing was held at NiagaraFalls, New York,: on May 22, 1944. At the hearing the Trial Examiner granted a motion to intervene made by United Gas, Coke and Chemical Workers, Local 12327, C. I. 0., herein called the C. I. O. The Company, Dis- trict 50, and the C. -1. 0., appeared and participated. The C. I. O. moved to dismiss the petition because of a contract between it and the Company. For reasons hereinafter stated, the motion is hereby denied. All parties' were' afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bear- ing 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 an opportunity to file briefs with the Board., Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Great Lakes Carbon Corporation, a Delaware corporation, is engaged in the manufacture of carbon and cathodes at Niagara Falls, 57 N. L R. B., No. 23. 115 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York, the only operation involved in this proceeding. From January to May, 1944, the Company used at its Niagara Falls plant, raw materials amounting in value to $50,000, of which 60 percent was shipped from points outside the State of New York. During the same period,. the Company manufactured at its Niagara Falls plant, finished products amounting in value to $50,000, of which 50 percent was shipped to points outside the State of New York. , The Company admits that it is engaged in commerce within the mean- ing of the National Labor Relations Act. ' II. THE' ORGANIZATIONS INVOLVED District 50, affiliated with the, United Mine Workers of America, is. a labor organization admitting to membership employees of the Company. • ' United Gas, Coke and Chemical Workers, Local 12327, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize District 50 as the' exclusive bargaining representative of its employees because of an existing con- tract with the C. I. O. ' The contract between the Company and the C. I. O. was executed on May 5,1943, following certification of the C. I. O. on February 24,1943, as bargaining' representative of the Company's production and main- tenance employees'.' The'contract was to be effective until the 5th day of May following termination of the war, and thereafter on a year-to- year basis. It contained the substantive terms usually included in a collective bargaining contract,, with the exception of provisions con- cerning wages and union security, which matters were submitted to the War Labor Board. On June,5, 1943, the ,War Labor Board issued its directive order denying the C. I. O.'s request for a general 'wage, increase and directing the parties to establish an incentive wage system. On July 25, 1943, the Company and the C. I. O. executed a' supple- mentary agreement embodying the directive of the War Labor Board. The supplemental agreement contained a maintenance of membership clause, and a check-off arrangement; fixed-hiring rates to be effective when approved by the War Labor Board; provided that female em- ployees should receive rates of pay equal to those of male employees for equal work; and granted a 5-cent per hour premium to employees on certain shifts. Pursuant to the directive of the War Labor Board, The ceitifleation followed an election directed by the Board in Matter of Great Lake8 Carbon Corporation, 46 N. L. R. B. 1259. , GREAT LAKES- CARBON CORPORATIONS 7_` X117 the-incentive wage system, finally' agreed upon by-the, Company and the C. I. 0., was submitted to that agency for approval about March' 1944. ' At the time of the hearing the War Labor Board had not reached a determination on the wage issue. - The Company and the C. I. 0. contend that the contract of May 5, 1943, and the proceedings before the War Labor Board bar a present determination of representatives. ' The contract of May 5, 1943; how- ever,'is a contract of indefinite duration, which has been in effect'for a reasonable-period, and consequently cannot operate to bar this case.2 We are also of the opinion, that the application for wage changes before the War Labor Board does not preclude an investigation concerning representation at this time. The Board has held that a-newly recog- nized or certified representative is entitled to a reasonable opportunity to obtain for the employees the benefits of exclusive representation, and that where delay in obtaining such benefits is caused by resort to the orderly processes of governmental agencies, the Board will not proceed with a new determination of representatives.' Mere pendency of pro- ceedings before a governmental agency; however, does not bar.an elec- tion where the exclusive bargaining representative has had opportunity to obtain substantial benefits for the employees.4 , The facts, of the instant case convince us that the C. I. 0. has had opportunity to, and has' obtained, such benefits. Accordingly, we find that neither .the contract of May 5, 1943, nor the pendency of the proceeding before the War Labor Board bars a present determination of representatives. A, statement of a Board agent, introduced into evidence at the hear- ing, indicates that District 50 represents a substantial number of em- ployees in the unit hereinafter found appropriate.5 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning e of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE'UNIT. The parties 'are generally agreed that the unit should cover all production and maintenance employees, excluding construction brick- layers, deputized watchmen, office employees, laboratory employees ex- ecutives, and foremen s They are ''in' disagreement,- however, con- e See Matter of The Trailer Company of America, 51 N L. R B 1106 3 See Matter of Allis-Chalmers Manufacturing Company, 50 N. L. R. B 306; Matter of Kennecott Copper Corporation,, 51 N. L R. B. 1140 4 See Matter of Lan4le4 Machine Company, 54 N. L R B. 1440, Matter of International Harvester Company, 55 N. L. R. B. 497. The Field .Examiner reported that District 50 submitted 103 authorization cards ; that. the names of 80 persons appearing on the cards were listed on the Company's pay roll of April 30, 1944 ; that there are 196 employees ih the unit requested ; a'nd'that the cards were dated between August 1943 , and April 194¢, with the exception of 4 which were undated. The C I. 0 relies upon its contract to establish its interest in the proceeding. ^This unit is substantially the same as that covered by the contract between-the Com- pany and the C. I. O. 118 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD cer_ning inspectors, whom the Company would exclude; and District 50 and- the C. I. O. would include. - The Company employs six inspectors, who check the quality of the products produced' in the various departments. 'They-are responsible to the chief inspector, who has his office in the laboratory, but work throughout the plant among the production employees. The' inspec- tors have authority to,reject work when it is not up to a speciAi'.ed 'standard, but there is no indication that such rejection affects the status of the production employees, or that, in the course of their du- ties, the inspectors acquire confidential innformation concerning the Company's labor relations. - Thus, it appears that the inspectors are hired. in neither a supervisory nor a confidential capacity. Accord- ingly, we shall include inspectors 'in the unit. '-We find that all production and maintenance employees of the Company's plant at Niagara Falls, New York, including inspectors, but excluding construction bricklayers, deputized watchmen, office em- ployees, laboratory employees, executives, foremen, and all other su- pervisory employees with authority to, hire,, promote, discliarge, dis- cipline, ,or otherwise effect changes in the status of employees, or ef- fectively recommend such action, 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 appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions 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 3, it.is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Great Lakes Car- bon Corporation; Niagara Falls, New York, 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 super- - vision of the Regional Director for the Third, 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, ° GREAT LAKES CARBON CORPORATION l19 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 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 `those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by District 50, affiliated with the United Mine Workers of America, or by United Gas, Coke and Chemical Workers, Local 12327, affiliated with the Congress of Industrial Organizations, for the purposes of col- lective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.