Harbison-Walker Refractories Co.

In the Matter of HARBISON -WALKER REFRACTORIES COMPANY and UNITED BRICK AND CLAY WORKERS of AMERICA, LOCAL #702 Case No. B-3271.-Decided December 19, 1941 Jurisdiction : brick manufacturing industry. Investigation and Certification of Representatives : existence of question : refusal of Company to accord union recognition Until certified by the Board ; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance workers at both the clay mine and the brick works of the Company, excluding supervisory and clerical employees, and skilled mechanics, held, to constitute an appropriate unit, notwithstanding request of the Company for two separate units, where the two operations are continuous and interrelated,the interests of the employees at each are substantially similar, and where although or- ganization started on the basis of separate units, it has since proceeded on the basis of a single combined unit; construction workers engaged in con- struction of new kiln at the brick works included where the Company expects to retain a number of them permanently as production and maintenance workers, and their wages and hours are approximately the same as those of other workers in the unit. Mr. F. H. Atwood, of Pittsburgh, Pa., for the Compttiny. Mr. Charles S. Stinson, of Ashland, Ky., for the Union. Mr. Ben Law, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 9,,1941, United Brick -and Clay Workers of-America, Local:#7O2,'herein called the Union, fled with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition alleging that a question affecting commerce had arisen concerning the' representation of employees of Harbison-Walker Refractories Company,' Olive Hill, Kentucky, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the 'At the hearing all of the formal papers were amended to state the name of the Company as above 37 N. L R. B, No. 124. 785 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 21, 1941, 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 au- thorized the Regional Director to conduct It and to provide, for an appropriate hearing upon due notice. - On October 24, 1941; the Regiontil Director issued a notice of hear ing, copies of which were duly served upon the parties. Pursuant to notice, a hearing was held on October 31, 1941, at Cincinnati, Ohio, before Alba B. Martin, the Trial Examiner duly designated- by the Chief Trial Examiner. All parties were represented by coun- sel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing 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. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Harbison-Walker Refractories Company, a Pennsylvania corpora- tion with its principal office in Pittsburgh, Pennsylvania, is engaged in the mining of clay and the manufacturing of bricks. It operates 34 mines and 24 brick works in various States of the United States. The only one of the Company's mines involved in this proceeding is that at Brinegar, Kentucky, and the only one of its brick works involved, is that at Olive Hill, Kentucky. The entire output of the mine at Brinegar is used at the brick works at Olive'Hill.2 The coal and natural gas used in the burning process at the brick works also come from Kentucky. About 98 per cent of the approximately 8,000,000 bricks produced annually at the brick works is shipped to steel mills which are located outside Kentucky. II. TILE ORGANIZATION INVOLVED United Brick. and Clay Workers of America, Local #702, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company., I The'brick plant at Olive Hill also obtains clay from various other sources in Kentucky. HARBISON-WALKER REFRACTORIES COMPANY" III. THE QUESTION CONCERNING REPRESENTATION 787.' The parties stipulated at the hearing that the Company has refused to recognize the Union until it has been certified by the Board as the- bargaining representative of the Company's employees in an appro- priate unit. There was introduced in evidence 'a statement by the Regional Direc- tor showing, that the Union represents a substantial number, of, em ployees within the unit which it contends is appropriate.3 We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF TIIE 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 The Union contends that all production and maintenance employees at the brick works at Olive Hill and at the mine at Brinegar, excluding supervisory officials, clerical workers, and all those engaged in con- struction work at the brick works, constitute a single appropriate unit. The Company contends that the production and maintenance workers at the brick works at-Olive Hill, including the nonsupervisory con- struction workers whose names appear upon the pay roll for the brick works, but excluding supervisory officials and clerical employees,- con-, stitute one separate appropriate unit and that all employees at the mine at Brinegar, exclusive of supervisory officials and clerical em- ployees, constitute another separate appropriate unit. 3 The statement of the Regional Director recites : (a) that the Union submitted to him 151 membership cards bearing apparently genuine, original signatures, all dated in 1941 ; (b) that 121 of the signatures are the names of persons whose names appear on the list of 255 non-supervisory production and maintenance employees at the Olive Hill worl:s_as- of September 1 to 15, 1941, (c) that 8 of the signatures are the names of persons whose names appear on the list of 46 non-supervisory emplo3 ees at the mine at Brinegar as of September 1 to 15, 1941 ; (d) that the signatures on the remaining 22 cards 'were the names of persons not listed on the Company's pay rolls for September 1 to 15, 1941 , and (e) that the Union submitted no membership cards for the 35 non-supervisory construc- tion employees at the Olive 1-1111 :works as of September 1 to 15, 1941 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The mine and the brick works The evidence discloses that the mine at Brinegar and the brick works at Olive Hill are 11 miles apart. There is a public highway, as well as a railroad, used in the hauling of clay, connecting the two places. The mine is under the jurisdiction of the Company's mining depart- ment, while the brick works is under the jurisdiction of its works department' Employees at the mine consist of clay miners, prospectors, mule drivers, trainmen' blacksmiths and various subclassifications- of the foregoing. The clay produced at the mine is of a special, hard kind used in the manufacture of fire bricks. The processes required in ex- tracting it are very similar to those used in the mining of coal. As previously stated, all of the clay produced at the mine is used at the brick works. At the brick works, clay is stored in bins, then sized, graded, and crushed. Moisture is added and bricks are moulded and pressed. They are thereafter burned in kilns. The last steps consist of grading and shipping the bricks. The record indicates that the skills of employees as between the mine and the brick works are differ- ent in kind, but approximately equal in degree. The basic wage rates for labor and the hours of employment at the mine and the brick works are substantially the same. In so far as the record discloses, there was no labor organization at the mine or the brick works prior to the advent of the Union in 1938 or 1939. The Union maintained separate locals at the mine and- the brick works until April 1941. At that time the two locals were con- solidated. The Company has not recognized a labor organization as! bargaining representative at any of its mines. It has, however, recog- nized unions affiliated with the Congress of Industrial Organizations at six of its other brick works.5 The Union introduced undisputed evidence that it has been recognized as bargaining representative for units combining a mine and brick works of four other brick-manufac- turing companies in Kentuckya It is evident that the processes of the Company at Brinegar and Olive Hill, from the mining of clay to completion' of finished bricks, are continuous and interrelated. The problems of the employees at the mine and the works are similar in many major respects. Al- * The mining department supervises all of the Company's mines and its works department supervises all of its brick works. The degree of separation of the two departments varies somewhat in different districts of the Company's operations. I The record does not disclose the location of any of these brick works or the circum- stances surrounding the establishment of the bargaining units at them. 9 Only one of these units was established as a rgsult of a decision by the Board. See Matter of Kentucky Fire Brick Company and Local 510, United Brick d Clay Workers of America, 19 N. L. R. B. 532. HARBISON-WALKER REFRACTORIES COMPANY 789, though self-organization started on the basis of separate units, it has since proceeded on the basis of a single combined unit. Under all the circumstances, we find that a single unit is best calculated to meet the needs of collective bargaining. B. The construction employees The evidence discloses that the construction workers listed on the pay roll of the brick works, numbering 35 as of September 1 to 15, 1941, have been engaged in the construction of a new kiln, which, when completed, will increase the capacity of the brick works by about 50 percent. They consist, in part, of men temporarily transferred from the regular production and maintenance force at the brick works and, in part, of new employees hired within the vicinity of Olive Hill. 'There has been some interchange of labor between the construction force and the other employees at the brick works. 'The Company stated at the hearing that upon completion of the kiln 25 to 30 of the employees engaged in construction will be retained at the brick works for regular production and maintenance operations. The basic wage rate for the conistruction employees is approximately the same as that for production and maintenance employees at the brick works. The construction workers are under the supervision of the superin- tendent of the brick works. Under the foregoing circumstances, we are of the opinion that the construction employees listed on the pay roll of the brick works should be included in the unit of production and maintenance employees at the mine and the brick works. In addition to the construction workers on the pay roll of the brick works at Olive Hill, the Company, as of September 1 to 15, 1941, employed 18 or 20 skilled mechanics and overseers on the same job. These 18 or 20 employees were sent to Olive Hill from the Com- pany's main office in Pittsburgh and their pay-roll records are kept at the latter office. Upon completion of the new kiln at Olive Hill, the Company will send them elsewhere. Both the Union and the Company wish to exclude this group from the unit. We shall ex- clude from the unit those skilled mechanics and overseers employed at the brick works at Olive Hill and listed on the Company's Pittsburgh pay roll. We find that all production and maintenance employees of the Company at its mine at Brinegar and at its brick works at Olive Hill and all construction employees listed on the pay roll of the brick works at Olive Hill, excluding supervisory officials, clerical employees, and skilled mechanics and overseers employed on construction at Olive Hill and listed on the Company's Pittsburgh pay roll, consti- 4333257-42-von 37-51 790 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD tute a unit appropriate for the purposes of collective bargaining. We further find that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES I1\Te find that the-question conceriiing-represeiitation which has 'arisen can best be resolved by iii election by secret ballot. Following our usual practice, we shall direct that all employees in the appropri- ate unit whose names -appear, on' the Company's pay rolls for the period immediately preceding the date of this Direction of Election, subject to such limitations and additions as'are hereinafter set forth in the Direction, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the 66se, the Board makes the following' CONCLUSIONS OF L_1\V 1. A question affecting commerce has arisen concerning the repre- sentation .of employees of Harbison-Walker Refractories Company, Olive Hill, Kentucky, within , the meaning oi' Section 9 (c) and Section 2 ( 6) and ( 7)'.of the National Labor Relations Act. 2. All' production and maintenance employees of the Coiupany at its mine at Brinegar and its brick works at Olive Hill and all construction employees listed on the pay roll of the brick works at Olive Hill, excluding supervisory officials, clerical employees, and skilled -mechanics and overseers employed 'on construction at Olive Hill and listed on the Company 's Pittsburgh pay roll, 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, 49 Stat. 449, 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 the purposes of collective bargaining with Harbison -Walker Refractories Company, Olive Hill, Kentucky; an election by i secret ballot shall be conducted as early as possible, but not later than thirty ( 30) days from-the date of this Direction of Election , under the direction and supervision of the Regional HARBISON-WALKER REFRACTORIES COMPANY 791 Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tion 9, of said Rules and Regulations, among all production and maintenance employees of the Company at its mine at Brinegar, Kentucky, -and- its brick works at Olive Hill, Kentucky, and all con- struction employees listed on the pay roll of the brick works at Olive Hill, Kentucky, who were employed during the pay-roll period next preceding the'date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or in the acts e military' service or training of the United States, or-tempor`arily laid. off, but excluding supervisory officials, clerical employees, and skilled mechanics .and overseers em- ployed in construction at Olive Hill, Kentucky, and listed on the Company's Pittsburgh pay roll, and employees who have since quit or been discharged for cause, to 'determine whether or not they desire to be represented by United Brick and Clay Workers of America, Local #702, for the purposes of collective bargaining. 0