General Refractories Co.

In the Matter of GENERAL REFRACTORIES COMPANY, EMPLOYER and UNITED BRICK AND CLAY WORKERS OF AMERICA, AFL, PETITIONER Case No. 9-RC-16.-Decided March 19, 1948 Mr. Roy S. Parsons, of Philadelphia, Pa., Mr. Richard S. Greene, of Olive Hill, Ky., and Mr. Elmer Frazier, of Oak Hill, Ohio, for the Employer. Mr. Leo DeLong, of Wellston, Ohio, and Mr. A. E. Messer, of Jack- son, Ohio, for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Oak Hill, Ohio, on December 19, 1947, before Alan A. Bruckner, hearing officer. 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 1 makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER 0 General Refractories Company, a Pennsylvania corporation, is en- gaged in the mining of clay and manufacture of refractory products in Oak Hill, Ohio. The Employer used, during the past 12 months, materials, supplies, and equipment valued at $250,000, of which 75 percent was received from points outside the State of Ohio. Sixty percent of the Employer's finished product 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. 'Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three -man panel consisting of the undersigned Board Members [ Houston, Murdock, and Gray]. 76 N. L. R. B., No. 117. 835 781902-48-vol. 76 54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in accordance with the stipulation of the parties, that all production and maintenance employees of the Employer at the Oak Hill plant and mines,2 excluding all technical engineers, laboratory, clerical, and professional employees, guards, and supervisors, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES At the hearing, the Petitioner stated that, in determining eligibility to vote, it would object to use of any pay-roll subsequent to November 17, 1947, the date of a prehearing conference attended by representa- tives of the Board, the Employer, and the Petitioner. It appears that, during late November and early December, the Employer increased its production and maintenance staff from approximately 152 to 175 em- ployees to handle a special order. The Petitioner seeks to have the recelitly hired employees excluded from the election on the ground that they are temporary employees. The Employer submits that all employees on the pay-roll at the time of the election should participate in the election. The Employer's business is a fluctuating one. Its staff has varied in the past from 145 to 250 employees, but has averaged between 175 and 180, which is the present level of employment. When a large order comes in, personnel is increased, and when orders slacken, em- ployees are laid off on the basis of last hired, first discharged. When an increase in personnel becomes necessary, the Employer rehires what- ' It was further stipulated that this unit description includes the plant and nine located at Oak Hill , Ohio ; the Fire Buick nine located at Fire Brick, Ohio ; and the Kline -line located at Scioto County, Ohio Employees are interchanged between the plant and the nines. GENERAL REFRACTORIES COMPANY 837 ever former employees are available, though it does not maintain a recall list. The approximately 25 newly hired employees, whose status is here in question, work for the most part in the shed in the loading depart- ment, packing and preparing brick for shipment. The Employer had no one engaged in this kind of work immediately prior to the hiring of these 25 men. At the time these men were hired, some 15 to 20 older employees were transferred from other work to loading operations. Some of the new men have been used in the regular crews where necessary. The plant superintendent estimated that the current order for which the new people were hired would take 3 to 4 months from the date of the hearing to complete. He also indicated that brick was being pre- pared pursuant to another order, release of which was expected before the completion of the present order, which would necessitate keeping the number of employees at the present level for an indefinite period. We find no reason to depart from our customary practice of using the pay-roll period immediately preceding the date of the direction of election as the criterion of eligibility to vote. The contingency that some employees, the number and identity of whom cannot be definitely ascertained, may be discharged at some indefinite future date does not justify depriving them of an opportunity to vote.' DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with General Refractories Com- pany, Oak Hill, Ohio, 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 Ninth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations- Series 5, among the employees in the unit described 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 oIi vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by United Brick and Clay Work- ers of America, AFL, for the purposes of collective bargaining. 3 latte, of I 1V E,aitS, 71 N L it. B. 1039 Matter of Moittr/on,ery lVa,d and Co , Iire, 73 N L R B 416