The Niles Fire Brick Co.

In the Matter of THE NILES FIRE BRICK COMPANY and UNITED BRICK WORKERS L. I. U. No. 198 (C. I. 0.) Case No. R-2013.-Decided September 10, 1040 Jurisdiction : firebrick manufacturing industry Investigation and Certification of Representatives : existence of question : re- fusal to accord recognition to union ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- - ployees, including janitors but excluding supervisory and clerical employees, mill police, watchmen, and timekeepers. Mr. Paul Z. Hodge and Mr. George W. Secrest, of Warren, Ohio, for the Company. Mr. Jacob Clayman, of Niles, Ohio, for the Union. Mr. D. M. Byrd, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On Julie 14, 1940, United Brick Workers L. I. U., No. 198 (C. I. 0.) herein called the Union, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of The Niles Fire Brick Company, Niles, Ohio, herein called the Com- pany, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 14, 1940, 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, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On August 15, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to the notice a hearing was held on August 21, 1940, at Niles, Ohio, before Harry L. Lodish, the Trial Examiner duly designated by 27 N. L. R. B., No. 39. 171 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board. The Company and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing upon the'issues was afforded all parties. During the course of the hear- ing the Trial Examiner made several rulings upon motions and objec- tions to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. During the hearing the Company made a motion to dismiss the proceedings. The Trial Exam- iner reserved ruling on the motion for the Board.' The motion is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TILE COMPANY The Company is an Ohio corporation engaged in the manufacture, sale, and distribution of refractories, particularly firebrick. The Company's office and plant are located at Niles, Ohio, which is only a few miles from the boundary line between Ohio and Pennsylvania. The Company operates clay mines in both Ohio and Pennsylvania. The principal raw material's used in the manufacture of its product are flint, fire clay, plaster clay; silica gravel, and lime. The Com- pany uses coal for the purpose of firing its furnaces. During a period of 12 months the Company spent approximately $275,000 in the purchase of such raw materials including coal. Sixty per cent of these materials, including coal, purchased by the Company are shipped to its plant from points outside Ohio. Coal, which repre- sents 25 per cent of the Company's total purchases, is purchased from a company in Ohio, but is sent to the Company from such company's mines in "Pennsylvania. The total sales of the Company's products during a period of 12 months annou rated to approximately $600,000, of which 10 per cent represents shipments to points outside Ohio. II. THE ORGANIZATION INVOLVED United Brick Workers L. I. U. No. 198, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. 3 Tho motion was apparently directed to a petition filed by the Union in which it was erroneously designated as affiliated with the A F of L The Union thereafter filed a cor- rected petition . The Order Directing Investigation and Hearing erroneously designated the affiliation of the Union as the American Federation of Labor. That order was supplanted by one on August 16, 1940 , correctly designating the Union 's affiliation with the Congress of Industrial Organizations. THE NILES FIRE BRICK COMPANY 173 III. THE QUESTION CONCERNING REPRESENTATION On June 1, 1940, representatives of the Union requested the Com- pany for recognition as the sole collective bargaining agency for employees of the Company within an appropriate unit. Company officials, however, reserved decision until a subsequent conference on June 8, 1940, when such recognition of the Union was denied. We find that a question has arisen concerning the representation of employees of the Company. IV. 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- 1 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT During the hearing the parties stipulated that all production and maintenance employees, excluding supervisory and clerical employees, mill police, watchmen, and timekeepers constitute an appropriate bargaining unit. In addition to the exclusions thus stipulated,, the Union would exclude janitors. The only janitor now employed, Nick Fusco, is eligible for membership in the Union, however, and janitors were not excluded from the unit found appropriate in a previous decision involving the same parties.' We shall include janitors within the appropriate unit. We find that all the Company's production and maintenance em- ployees, including janitors but excluding supervisory and clerical employees, mill police, watchmen, and timekeepers, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and oth- erwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES During the hearing a statement of the Regional Director concerning the Union's claims for representation was introduced in evidence. The Regional Director reported therein that the Union had submitted to ,The Niles Fite Brick Company and Unite'l B77c1 Wor/ers L I U No 198, 18 N L R. I B. 883. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him 247 cards of which 134 have signatures of employees in the appro, priate unit as of June 15, 1940, authorizing the Union to represent them for 'the purposes, of collective bargaining. , It was estimated at the hearing that the appropriate unit contained approximately' 197 employees. We find that the question concerning representation which has arisen can best be resolved by an election among the employees in the appropriate unit to determine their desires with regard to representation. In accordance with our usual practice, we shall direct that employees of the Company within the appropriate unit hereinbefore described, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who, as of such period, were ill, on vacation, or temporarily laid off, but ex- cluding those who 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 Niles Fire Brick Company, Niles, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the Company's production and maintenance employees, in- eluding janitors, 'but excluding supervisory and, clerical employees, mill police, watchmen, and timekeepers, constitute a unit appropriate 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, A amended, 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 Niles Fire Brick Company, Niles, 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 Eighth Region, acting in this matter as agent of the National Labor Relations Board and sub- ject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees of the Company who were THE NILES FIRE BRICK COMPANY 175 employed during the pay-roll period immediately preceding the date of this Direction, including janitors and employees who did not work during such pay-roll period because they were ill, on vacation, or temporarily laid off, but excluding supervisory and clerical employees, mill police, watchmen, and timekeepers, and employees who have since quit or been discharged for cause to determine whether or not they desire to be represented by United Brick Workers L. I. U. No. 198 (C. I. 0.) for the purposes of collective bargaining.