The Kentucky Fire Brick Co.

In the Matter of THE KENTUCKY FIRE BRICK COMPANY and- LOCAL No. 510, UNITED BRICK & CLAY WORKERS OF AMERICA Case No R-1659.-Decided January 16, 1940 Firebrick Industry-Investigation of Representatives : controversy concerning representation of employees : rival organizations ; contract for members only terminable on 20 days ' notice, no bar to-Unit Appropriate for Collective Bar- gaining: stipulation that unit should include production and maintenance em- ployees of the company, except watchmen , salaried employees, foremen, and assistant foremen or supervisors in charge of any classes of labor ; timekeepers and.storekeeper included over Company's objection, where one union requests inclusion and other union has no objection-Representatives : stipulation that each union has substantial membership-Election Ordered Mr. Norman F. Edmonds, for the Board. Mr. B. L. Rawlins, Jr., of Pittsburgh, Pa., for the Company. Mr. Charles S. Stinson, of Haldeman, Ky., for the A. F. of L. Local. Mr. Julius Holzberg, of Cincinnati, Ohio, for the C. I. O. Local. Mr. Harold M. Weston, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 10, 1939, United Brick & Clay Workers of America, Local No. 510, affiliated with the American Federation of Labor, herein called the A. F. of L. Local, filed with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition, alleging that a question affecting commerce had arisen concerning representation of employees of The Kentucky Fire Brick Company, Haldeman,,,Ken- tucky, herein called the Company, and requesting an investigation and certification of representatives, pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 27, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 532 THE KENTUCKY FIRE BRICE COMPANY 533 On November 30, 1939, the Regional Director issued a notice of hearing and on December 5, 1939, an amended notice of hearing, copies of which were duly served upon the Company, upon the A. F. of L. Local, and upon the United Clay and Tile Workers, Local Industrial Union No. 795, affiliated with the Congress of Industrial Organizations, herein called the C. I. O. Local. Pursuant to the amended notice, a hearing was held on December 14, 1939, at Mt. Sterling, Kentucky, before Edward Grandison Smith, the Trial Ex- aminer duly designated by the Board. The Board, the Company, the A. F. of L. Local, and the C. I. O. Local were represented and participated in the hearing. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. No motions or objections were made during the course of the hearing. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Kentucky Fire Brick Corporation, a Kentucky corporation, operates two clay mines and two firebrick plants at Haldeman, Ken- tucky. The Company transports the clay from its mines to the plants where it is manufactured into. firebrick. All of the firebrick is sold to subsidiaries of the United States Steel Corporation, located in at least 10 States other than Kentucky, where it is used as lining in open-hearth furnaces. During the 11-month period ending November 30, 1939, the Com- pany manufactured 50,000 tons of brick, all of which were shipped to points outside the State of Kentucky. During this period the Company's purchases of machinery, parts, and coal amounted to approximately $120,000, of which approximately 52 per cent were transported to the Company's mines and plants from points outside Kentucky. The.Company admits that its operations are within the jurisdiction of the Board? II. THE ORGANIZATIONS INVOLVED United Brick & Clay Workers of America, Local No. 510, is a labor organization affiliated with the American Federation of Labor, and admits to membership employees of the Company. ' In a prior decision involving these same mines and plants, the Board concluded that it had jurisdiction over We Company's operations. Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N. L. It. B. 455. The Board's determination was affirmed by the United States Circuit Court of Appeals for the Sixth Circuit in National Labor Relations Board v. Kentucky Fire Brick Co., 99 F. (2d) 89. 283030-41-vol. 19-- 3 5 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Clay and Tile Workers, Local Industrial Union No. 795, is a labor organization affiliated with the Congress of Industrial Organ- izations, and also admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On May 12, 1938, the Company and the C. I. O. Local entered into an agreement covering only members of the C. I. O. Local. The agreement contained no expiration date but provided for its termina- tion on 20 days' notice by either party. On August 3, 1939, repre- sentatives of the A. F. of L. Local submitted to the Company a pro- posed contract providing, among other things, for the recognition of the A. F. of L. Local as sole collective bargaining agent. The Com- pany rejected the proposed contract but stated that it was willing to enter into an agreement covering only members of the A. F. of L. No contention was made at the hearing that the contract between the Company and the C. I. O. Local precluded the existence of a question concerning representation. Manifestly the contract is no bar to a determination of representatives, since it covers only mem- bers of the C. I. O. Local ,2 was entered, into more than 19 months ago, and is terminable by either party on 20 days' notice.3 At the hearing, it was stipulated by the Company, the A. F. of L. Local, and the C. I. O. Local that each union represents a substantial number of the Company's employees. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question of representation which has thus arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing, the Company, the A. F. of L. Local, and the C. I. O. Local agreed that the appropriate unit should include all production 2 Matter of Sebastian Stuart Fish Co., a corpn . and Cannery Workers Union, Local 21173 , A. F. of L., 17 N. L. R. B. 352 ; Matter of Motor Products Corporation and Local 203, International Union, United Automobile Workers of America, affiliated with the C. I. 0., 13 N. L. R. B. 1320. 8 Matter of North American A(oiatio -n, Inc. and United Automobile Workers of America, Local No. 228, C. I. 0., 13 N. L. R. B. 1134. THE, KENTUCKY FIRE BRICK COMPANY 535 and maintenance employees of the Company, and exclude watch- men, salaried employees, foremen, and assistant foremen or super- visors in charge of any classes of labor. No agreement, however, was reached with respect to Chester Stimson and C. Fay Eldridge, timekeepers, and G. Harlan Bocock, the supply-house storekeeper. The C. I. 0. Local desires their inclusion ; the Company asks for their exclusion; and the A. F. of L. Local takes no position in the matter.4 The Company contends that the timekeepers and the storekeeper are clerical employees and perform duties of a confidential nature. The claim of confidential character of the work of these employees is based upon the fact that the timekeepers are familiar with the earnings of the employees, and the storekeeper knows the prices paid for materials received by the Company. The timekeepers prepare the daily operating reports, enter and compute the employees' time,. and forward such information to the Company's main office. The storekeeper checks all materials received by the Company and distributes materials upon requisition from the plant superintendent; he performs his work in the storeroom and has no connection with the office where the Company's six clerks are employed. Unlike the office clerks, who are salaried employees, the timekeep- ers and the storekeeper are paid by the hour, as are all production and maintenance employees, except those who are paid piece rates.' In fact, the Company admitted that every employee knows "more or less" what the other production and maintenance employees earn. We find that the work of the timekeepers and storekeeper is closely enough related to that of the employees engaged in production and maintenance work to warrant their inclusion in the same unit where requested by one of the two labor organizations involved and the other labor organization has no objection thereto. While the char- acter of their work may not be such as to lead us to include them in such a unit over the objection of a labor organization, the contention that they should be excluded as confidential employees is plainly without merit. We find that all production and maintenance employees of the Company, including timekeepers and the supply-house storekeeper, but excluding watchmen, salaried employees, foremen, and assistant foremen or supervisors in charge of any classes of labor, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will afford to employees of the Company the full 'Both unions admit timekeepers to membership ; whether they also admit storekeepers does not appear. 5 At the time of the hearing, the Company employed 321 production and maintenance workers, at least 124 of whom were hourly ' rated employees. 536 DECISIONS OF NATIONAL LABCR RELATIONS BOARD benefit of their right to self -organization and to collective bargain- ing and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES As stated above, the Company, the A. F. of L. Local, and the C. I. O. Local stipulated at the hearing that each of the unions repre- sents a substantial number of the Company's employees . Neither labor organization , however, offered any evidence concerning the extent of its membership. We find that an election by secret ballot is necessary to resolve the question concerning representation which has arisen concerning ,the employees of the Company. In accordance with,,pur usual practice, we. shall . direct , that. em- ployees in the appropriate unit whose names appear upon the Com- pany's pay roll immediately preceding the date of our Direction of Election herein, including employees who did not work during such pay-roll period because they were ill or on vacation , but excluding employees who had then or have since quit or been discharged for cause, shall be eligible to vote in the election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLusIONS OF. LAw 1. A question „affecting ,commerce has arisen , concerning the repre- sentation of employees of The Kentucky Fire Brick Company, Halde- man, Kentucky , within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Company, including timekeepers and the supply-house storekeeper, but excluding watchmen, salaried employees , foremen, and assistant foremen or supervisors in charge of any classes of labor , constitute a unit appro- priate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the National Labor Relations Act. 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, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with The Kentucky Fire Brick Company, Haldeman, Kentucky, an election by secret ballot shall be conducted as early as possible, but THE KENTUCKY FIRE BRICK COMPANY 537 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, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among the production and maintenance employees, in- cluding timekeepers and the supply-house storekeeper, but excluding watchmen, salaried employees, foremen, and assistant foremen or supervisors in charge of any classes of labor, employed by The Kentucky Fire Brick Company, Haldeman, Kentucky, during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such.pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been discharged for cause, to determine whether they desire to be represented by United Brick & Clay Work- ers of America, Local No. 510, affiliated with the American Feder- ation of Labor,' or by,United 'Clay and Tile' Workers, Local Indus- trial Union No. 795, affiliated with the Congress of Industrial Organ- izations, for the purposes of collective bargaining, or by neither.