General Shale Products Corp.

In the Matter of GENERAL SHALE PRODUCTS CORP., EMPLOYER and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO5 PETITIONER Case No. 10-R--21148.-Decided January 29, 194'7 Kelly, Penn d Hunter, by Mr. E. G. Hunter, of Kingsport, Tenn., for the Employer. Mr. Melville Kress, of Knoxville, Tenn., and Messrs. G. G. Mitchell and J. B. Foreman, of Kingsport, Tenn., for the Petitioner. Mr. Thomas Davis, of Johnson City, Tenn., for the Intervenor. Mr. Samuel G. Hamilton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Kings- port, Tennessee, on October 25, 1946, before Clifford L. Hardy, hear- ing officer. At the hearing the Intervenor moved to dismiss the peti- tion and the hearing officer referred this motion to the Board for disposition. For reasons set forth in Section III, infra, the motion is denied. The Petitioner's motion to exclude the Intervenor from the ballot in any election directed by the Board was also referred to the Board for ruling by the hearing officer. This motion is also denied for reasons set forth in Section V, infra. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: - FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Ueneral Shale Products Corp., a Delaware corporation, is engaged in the manufacture of building brick and cinder blocks at its Kings- port, Tennessee, plant. The raw materials used by the Employer are shale, cinders, and cement. The Employer quarries shale, and pur- chases cinders and cement, within the State of Tennessee. Annually, 72N L R B,No 64 344 GENERAL SHALE PRODUCTS CORP. 345 the Employer ships in excess of $50,000 worth of finished products, of which more than 30 percent is shipped to points outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. United Construction Workers, United Mine Workers of America, herein called the Intervenor, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION Continuous contractual relations have existed between the Employer and the Intervenor since July 14, 1942, the effective date of a contract entered into by them. This contract contained the following termina- tion clause: This agreement" shall be effective until October 1, 1943, and from year to year thereafter, unless at least thirty (30) days prior to any annual expiration date either party hereto shall notify the other in writing of its decision to amend, modify or terminate this agreement. The employer may notify the Union in writing thirty (30) days prior to any annual expiration date that the majority status of the Union is in question, in which case the Union must prove its majority. On or about August 21, 1946, the Petitioner addressed a letter to the Employer requesting recognition as the exclusive bargaining representative of certain of its employees. The Employer refused to grant such recognition until the Petitioner had been certified by the Board in an appropriate unit. On August 26, 1946, the petition herein was filed by the Petitioner. On September 5, 1946, the Inter- venor requested a meeting with the Employer to negotiate a new contract. On September 10, 1946, the Employer advised the Inter- venor of the the claim of the Petitioner for recognition and of the futility of meeting to discuss the subject matter of a new contract until the Board had passed on the question of representation. Inasmuch as the Petitioner filed its petition before the operative date of the automatic renewal clause in the 1942 agreement, it is clear that the 1942 contract does not preclude a current determination of 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives.' Nor is there any other reason for withholding a direction of election.- We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit consisting of all production and main- tenance employees of the Employer, including brick masons, but ex- cluding office, clerical, technical, and supervisory employees. The Employer and the Intervenor agree with the position of the Petitioner, except that they would exclude brick masons. Brick Masons: The Employer at present employs only one brick mason.3 He is engaged exclusively in the repair of brick kilns and stacks. For approximately 20 years all brick masons have been lured through a local of the Brick Layers, Masons and Plasterers Inter- national Union of America, AFL, and for the past 4 years all brick masons have been bargained for by this local. Brick masons have not been considered as covered by the contract between the Employer and the Intervenor. In these circumstances, we shall exclude all brick masons from the appropriate bargaining unit. We find that all production and maintenance employees of the Em- ployer at its Kingsport, Tennessee, plant, excluding brick masons, office, clerical, and technical employees, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bar- gaining 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, subject to the limitations and additions set forth in the Direction. The Petitioner contends that the Intervenor has not shown sufficient interest in this proceeding to be allowed a place on the ballot. How- ever, we are satisfied that the showing of interest of the Intervenor by reason of its submission of authorization cards at the hearing, war- rants its participation in the election. 1 See Matter of Ste Genevieve Lime d Quarry company, 70 N. L R. B. 1259 , Matter of Drmjden Rubber company , 71 N L R B 572. -Contrary to the Intervenor's contention, these is no requirement that a petition be filed within 10 days following the service of notice by one of the contracting parties of a desire to reopen the contract or within 10 days following the anniversary date of the contract. 3 Sturgeon Leonard. GENERAL SHALE PRODUCTS CORP. DIRECTION OF ELECTION 347 As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with General Shale Products Corp., Kingsport, Tennessee, 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 in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations- Series 4, among the employees in the unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period im- mediately preceding the date of this Direction, including employees who did not work during s iid 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 dis- charged 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 United Stone and Allied Products Workers of America, CIO, or by United Construction Workers, UMWA, for the purposes of collective bargaining, or by neither.