Continental Clay Products Co.

In the Matter Of CONTINENTAL CLAY PRODUCTS COMPANY and UNITED CONSTRUCTION WORKERS, AFFILIATED WITH U. M. W. OF A. Case No. 5-R-19.51.-Decided January 5, 1946 Mr. William F. Kelley, of Washington, D. C., for the Company. Mr. Robert E. Smedley, of Martinsburg, W. Va, for the U. M. W. A. Mr. Stanley B. Korengold, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Construction Workers, affili- ated with U. M. W. of A., herein called the U. M. W. A., alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Continental Clay Products Company, Martins- burg, West Virginia, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before John H. -Carver, Trial Examiner. Said hearing was held at Martinsburg, West Virginia, on August 30, 1945. The Company and the U. M. W. A. appeared and participated. All parties 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 an 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 Continental Clay Products Company, a West Virginia corporation, with its principal office and place of business in Martinsburg, West Virginia, is engaged in the manufacture of clay products. The Com- pany annually purchases coal, machine parts, and office equipment from points outside the State of West Virginia, valued at approxi- 65 N. L. R. B., No. 32. 168 CONTINENTAL CLAY PRODUCTS COMPANY 169 mately $28,000. The Company's finished products annually amount to over $100,000 in value, 90 percent of which is sold and distributed to points outside the State of West Virginia. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Construction Workers, affiliated with United Mine Work- ers of America, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the U. M. W. A. as the exclu- sive bargaining representative of its production and maintenance em- ployees until the U. M. W. A. has been certified by the Board in an appropriate unit. At the hearing the Company contended that the Board should not direct an election at this time because less than a year had elapsed since the Board conducted a consent election in which the U. M. W. A. had participated.' We do not agree with the Company's contention. Al- though the Board customarily will not proceed with an investigation of representatives on the basis of a new petition by the same labor or- ganization filed within less than a year after an inconclusive election, it will do so where the union's showing of membership on the second occasion is such as to indicate a renewal and extension of organiza- tional activity since the prior election.2 In the instant case; a state- ment of a Board agent introduced into evidence at the hearing indi- cates that the U. M. W. A. not only represents a substantial number of employees in the unit hereinafter found appropriate, but also has obtained all its employee designations since the prior election 3 It is therefore our opinion that the U. M. W. A.'s present representation showing evidences the fact that it has renewed and extended its organizational efforts since the prior election. 1 On January 16, 1945, the Board conducted a consent election among the production and maintenance employees of the Company which resulted in the dismissal of the petition because the U M. W. A ., the only union on the ballot, failed to secure a majority of the votes cast. 2 Matter of Cleveland Cliffs Iron Company (Marine Department ), 63 N. L. R. B. 674; Matter of World Publishing Company, 63 N. L. R. B. 462. 1 The Field Examiner reported that the U . M. W. A. submitted 36 membership and authorization cards ; that 21 of these cards checked with the names of persons appearing on the Company 's pay roll of July 23, 1945 ; that except for 1 undated card, all the cards were dated subsequent to April 1945 ; and that there are 43 persons in the alleged appro- priate unit. At the hearing the U. M. W. A. submitted to the Trial Examiner 3 additional member- ship and authorization cards, 1 of which corresponds with a name listed on the above pay Toll. The card was also dated subsequent to April 1945. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, it should be emphasized that the balloting will not take place until approximately 1 year after the original election. Ac- cordingly, we find that the prior election does not operate as a bar to a present determination of bargaining representatives. 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 We find, in substantial accord with a stipulation of the parties, that all production and maintenance employees, including watchmen, but excluding clerical employees and all supervisory employees with au- thority 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 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 Elec- tion 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 Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Continental Clay Products Company, Martinsburg, West Virginia, an election by secret ballot shall be conducted as early as possible, but not later than sixty (60) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fifth 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 Regula- tions, 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 CONTINENTAL CLAY PRODUCTS COMPANY 171 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 or not they desire to be represented by United Construction Workers, affiliated with the U. M. W. of A., for the purposes of collective bargaining.