Baltimore Brick Co.

In (the Matter of BALTIMORE BRICK COMPANY and MATERIAL YARD & RESIDENTIAL CONSTRUCTION LABORER'S UNION, LOCAL 912, OF THE BALTIMORE DISTRICT COUNCIL, INTERNATIONAL HOD CARRIERS', BUILDING & COMMON LABORERS' UNION OF AMERICA Case No. R-1887.-Decided July 22, 1940 Jurisdiction : brick manufacturing industry. Investigation and Certification of Representatives : existence of question.: con- flicting claims of rival representatives ; employer refuses to accord recog- nition to any union unless certification be obtained; election necessary. Unit Appropriate for Collective Bargaining : industrial or several craft units: other factors evenly balanced, determining factor desire of the employees; determination of dependent upon results of elections. Mr. Guy Farmer, for the Board. Semmes, Bowen cC Semmes, by Mr. William D. MacMillan and Mr. W. Randall Compton, of Baltimore, Md., for the Company. Mr. Lawrence B. Fenneman, of Baltimore, Md., for Local 912. Mr. Roscoe Eminiser, of Baltimore, Md., for the Engineers. Mr. Joseph A. Jantz, of Baltimore, Md., for the Teamsters. Mr. Frank J. Bender, of Baltimore, Md., for Local #936. Miss Marcia Hertzmark, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On May 4, 1940, Material Yard & Residential Construction La- borer's Union, Local 912, of the Baltimore District Council, Inter- national Hod Carriers', Building & Common Laborers' Union of America,' herein called Local 912, filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Baltimore Brick Company, Baltimore, Mary- land, herein called the Company, and requesting an investigation 'The petition v%as filed by Baltimore District Council, International Hod Carriers', Building and Common Laborers' Union of America. It was amended at the bearing to read as above. 25 N. L. R. B. No. 85. 759 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. On May 24, 1940, the Natiomil 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 Regu- lations-Series 2, as amended , ordered an investigation and author- ized the Regional Director to conduct it and to provide for an ap. propriate hearing upon due notice. On May 29, 1940, the Regional Director issued a notice of hearing, copies of which were served upon the Company , Local 912, and Congress of Industrial Organizations, herein called the C. I. 0., a labor organization named in the petition as claiming to represent employees of the Company. Pursuant to notice , a hearing was held on June 10, 1940, at Balti- more, Maryland, before E. G. Smith, the Trial Examiner duly desig- nated by the Board. Written motions to intervene in the proceedings were filed by International Union of Operating Engineers , Locals 272 and 272A, herein called the Engineers , by Truck Drivers & Helpers Local Union 355, of International Brotherhood of Teamsters , Chauf- feurs, Stablemen & Helpers of America, herein called the Team- sters, and by' United Brick & Clay Workers Union, Local #936, herein called Local # 936. The Board, the Company, and Local 912 were represented by counsel . The Engineers and Teamsters were represented by their business agents and Local # 936 was represented by a Regional Director of the Congress of Industrial Organizations. All participated in the hearing . - Full opportunity to -be heard, to examine and cross -examine witnesses and to introduce evidence bear- ing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence . The Board has reviewed the rulings , of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Baltimore Brick Company is a Delaware corporation with its office and principal place of business in Baltimore, Maryland. It is engaged in the manufacture and sale of brick at three plants, two in the city of Baltimore, and one in Rossville, Baltimore County, Mary- land. Each plant is a complete unit for the manufacture of brick. The principal raw materials used by the Company are clay, coal, molding sand, oil. chemicals, and water. During the fiscal year BALTIMORE BRICK COMPANY 761 ending March 31, 1940, the Company used about 28,842 tons of clay valued at $36,052.52; 16 ,025 tons of coal valued at $82,000; 6,805 gallons of oil valued at $884.65; 14.43 tons of chemicals valued at $1,301.57; 1,800 cubic feet of water valued at $850; and 195 tons of molding sand valued at $585. Of the coal used, 71 per cent was pur- chased outside the State of Maryland and shipped to that State and 29 per cent was purchased in Maryland 'but transported through West Virginia to the Company's plants in Maryland . Approxi- mately 83 per cent of the chemicals and 65 per cent of the molding sand used by the Company were purchased outside the State of Maryland . During the same period the Company sold approximately 29,702,184 bricks valued at $455,056.99 , of which 96 per cent were sold and delivered within the State of Maryland and 4 per cent outside the State. The Company employs approximately 216 persons in its three plants. II. THE ORGANIZATIONS INVOLVED Material Yard & Residential Construction Laborer's Union, Local 912, of the Baltimore District Council, International Hod Carriers', Building & Common Laborers' Union of America, is a labor organ- ization affiliated with the American Federation of Labor. It ad- mits to membership employees of the Company except clerical, ad- ministrative, and supervisory employees, truck drivers, engineers, and watchmen. International Union of Operating Engineers, Locals 272 and 272A, are labor organizations affiliated with the American Federation of Labor. They admit to membership engineers and firemen. Truck Drivers & Helpers Local Union 355, of International Broth- erhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, is a labor organization affiliated with the American Federation of Labor, which admits to membership truck drivers employed by the Company. ° United Brick and Clay Workers Union, Local #936, is a labor organization affiliated with the Congress of Industrial Organizations, and admits to membership employees of the Company excluding supervisors, clerical employees, and watchmen. lII. THE QUESTION CONCERNING REPRESENTATION During April 1940 representatives of the Teamsters, Engineers, and Local 912 held a series of conferences with representatives of the Company. Each of the unions claimed to represent a majority of the employees in the unit it claimed to be appropriate for the purpose of collective bargaining and offered to produce evidence of such a 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority. Each of them requested recognition as the exclusive bar- gaining agent for the employees included in the unit it alleged to be appropriate. The Company refused to recognize the Teamsters, the Engineers, or Local 912 because the C. I. 0. was organizing its em- ployees at the same time and because it doubted that they represented majorities in the respective units which they claimed were appropri- ate. The Company further refused to recognize or bargain with any organization unless it was certified by the Board as the exclusive representative of its employees in an appropriate unit.2 We find that a question has arisen concerning the representation of employees of the Company. 1V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has 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 Local 912 contends that an appropriate unit consists of all produc- tion employees at the Company's three plants, excluding supervisory, administrative and clerical employees, truck drivers, engineers, and watchmen. The Engineers contend that an appropriate unit consists of all the employees at the three plants engaged as engineers , firemen, and locomotive engineers, but excluding kiln firemen. The Teamsters contend that an appropriate unit consists of all employees at the three plants who are known as chauffeurs and engaged in hauling raw materials, delivering finished products, or hauling debris. Local #936 contends that an appropriate unit consists of all employees at the Company's three plants, excluding supervisors, clerical employees, and watchmen. The Company took no position with respect to the question of the appropriate unit. The claims of Local 912, the, Engineers, and the Teamsters as to the respective units each contends is appropriate do not conflict or overlap. Their combined jurisdictional claims include all employ- ees within the industrial unit claimed by Local #936 to be appro- priate. It appears that the Company's production and maintenance 2 Substantially the above facts were stipulated by all parties at the hearing. BALTIMORE BRICK COMPANY 763 employees can be considered either as a single unit appropriate for the purposes of collective bargaining as claimed by Local #936, or as separate units as claimed by the Teamsters, the Engineers, and Local 912. The record discloses no prior history of collective bar- gaining in the Company's plants. , In accordance with our previous rulings in this type of case, we hold that the determining factor-as to these various groups is the desire of the employees in the respective groups 3 The record is inconclusive on this point.4 We conclude that three separate ballots should be- prepared and that the desires of the employees as expressed on such ballots should control the de- termination of the unit or units appropriate for,the purposes of collective bargaining. , Balloting will be conducted as follows: 1. Among the employees within the classifications' claimed by the Engineers to constitute an appropriate unit, to determine whether they desire to be represented by the Engineers, by Local #936, or by neither. 2. Among the employees within the classifications claimed by the Teamsters to constitute an appropriate unit, to determine whether they desire to be represented by the Teamsters, by Local #936, or by neither. 3. Among the remaining production employees, excluding super- visory, administrative and clerical employees, and watchmen, to de- termine whether they desire to be represented by Local 912, by Local #936, or by neither. If one or more of the elections results in a majority for one of the unions other than Local #936, employees within the classifica- tions covered by such ballot or ballots, will constitute a separate unit or units for the purposes of collective bargaining. In. the event that a majority of the employees voting in one or more of the groups choose Local #936, all employees within that group or groups will constitute a single unit for purposes of collective bargaining. Vt. THE DETERMINATION OF REPRESENTATIVES We have concluded above that elections are necessary to determine the desires of the employees as to the appropriate unit or units. 3 Matter of The Globe Machine and Stamping Co, and Metal Polishers Union Local No. 3; International Association of Machinists District No. 54, 3 N L R B . 294, and sub- sequent cases . 4 The only evidence as to membership of the various unions is as follows : Local 912 submitted to the Regional Director 134 authorization cards dated between March 16, 1940, and May 4 , 1940; the C I 0 submitted 65 authorization cards dated between January 1, 1940, and April 1, 1940 ; the Engineers submitted 10 authorization cards dated be- tween November 10, 1939, and March 30, 1940 At the hearing the Teamsters submitted for the inspection of the Trial Examiner 5 authorization cards but there is some doubt as to the validity of 2 of these cards . It does not appear whether there are any duplica- tions among the authorization cards submitted by the various unions. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such elections will also determine their desires as to their bargain- ing representative or representatives . The parties stipulated at the hearing that those eligible to vote in the elections directed by the Board shall be those persons , not heretofore excluded from any ap- propriate unit , whose names appear on the pay roll of June 5, 1940, including employees who were not on such pay roll because they were on that date ill or on vacation , and employees who were then laid off, and excluding employees who have since quit or been dis- charged for cause. We shall direct the use of the Company's pay roll of June 5, 1940 , to determine eligibility to vote. On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW A question affecting commerce has arisen concerning the represen- tation of employees of Baltimore Brick Company , at its plants in Baltimore and Rossville, Maryland, within the meaning of ` Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS 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 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that , as part of the investigation authorized by the Board to ascertain representatives for collective, bargaining with Balti- more Brick Company, Baltimore, Maryland, separate elections by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of the Regional Director for the Fifth 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 those employees of Baltimore Brick Company who fall within the groups indicated below who were on the Com- pany's pay roll of June 5, 1940, including employees whose names do not appear on such pay roll because they were ill or on vacation, and employees who were then temporarily laid off, but excluding those employees who have since quit or been discharged for cause : (1) All engineers, firemen, and locomotive engineers, excluding kiln firemen, to determine whether they desire to be represented for the purposes of collective bargaining by International Union of BALTIMORE BRICK COMPANY 765 Operating Engineers, by United Brick & Clay Workers, Local #936, or by neither ; (2) All truck drivers engaged in hauling raw materials, delivering finished products, or hauling debris to determine whether they desire to be represented for the purposes of collective bargaining by Truck Drivers & Helpers Local Union 355, of International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, by United Brick & Clay Workers, Local #936, or by neither; (3) All remaining production employees, excluding supervisory, administrative and clerical employees, and watchmen, to determine whether they desire to be represented for the purposes of collective bargaining by Baltimore District Council, International Hod Car- riers', Building & Common Laborers' Union of America, affiliated with the American Federation of Labor,5 by United Brick and Clay Workers, Local #936, or by neither. Mr. EDWIN S. SMrTH;,dissenting: I dissent from the opinion of the majority with respect to the determination of the appropriate unit or units. There is no evidence in the record of any bargaining history by the craft groups prior to their requests for recognition made immediately before the insti- tution of this proceeding. In order to preserve the maximum bar- gaining power of the employees, and thus to effectuate the policies of the Act, I would, in accordance with my,previous expressions,6 find the industrial unit to be appropriate. o The petitioning union requested at the hearing that it be so designated upon the ballot. 9 See Matter of Allis-Chalmers Manufacturing Company, and International Union, United 4utomobile Workers of America, Local 248, 4 N L. B B. 159; Matter of American Can Co. and Engineers Local No. 80, et al , 13 N. L. B B 1252.