Aetna Fire Brick Co.

National Labor Relations Board - Board Decisions

May 25, 1944

56 N.L.R.B. 849 (N.L.R.B. 1944)

In the Matter of AETNA FIRE BRICK COMPANY and UNITED CONSTRUC-
TION WORKEP.S, DIvmmION OF UNITED MINE WoRKERs OF AMERICA, DIs-
TRICT 50
Case No. 9-C-1944.-Decided May 25, 19414
Mr. James A. Shaw and Mr. Thomas E. Shroyer, for the Board.
Miller, Searl ct Fitch, by Mr. Chester P. Fitch, of Portsmouth, Ohio,
for the respondent.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on September 3, 1943, by United Con-
struction Workers, Division of United Mine Workers of America, Dis-
trict 50, herein called the Union, the National Labor Relations', Board,
herein called the Board, by the Acting Regional Director for the Ninth
Region (Cincinnati, Ohio), issued its complaint dated September 18,
1943, against Aetna Fire Brick Company, Oak Hill, Ohio, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by Notice of Hearing thereon,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in
substance : (1) that all the respondent's production and maintenance,
employees, excluding supervisory and office employees, constituted a
unit appropriate for the purposes of collective bargaining; (2) that
the Union at all times since December 29, 1942, was the exclusive rep-
resentative of all the employees in said unit; and (3) that on or about
July 14, 1943, and at all times thereafter, the respondent refused to
bargain collectively, with the Union as such representative. On or
about September 24, 1943, the respondent duly filed its answer, denying
the alleged unfair labor practices.
56 N. L. R. B, No. 158. .
849
587784-45-voI 56 --55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Pursuant to notice, a hearing was held on October 7, 1943, at Jackson,
Ohio, before John H. Eadie, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board and the respondent were rep-
resented by counsel; and the Union by a representative. All parties
participated in the hearing, and were afforded full opportunity to be
heard, to 'examine and cross-examine witnesses, and to introduce evi-
dence bearing upon the issues. At the close of the hearing, counsel
for the Board and the respondent argued orally before' the Trial Ex-
aminer. Pursuant to permission granted at the hearing, the respond-
ent subsequently filed a brief.
On October 21, 1943, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and the
Union. In the Intermediate Report, the Trial Examiner found that
the respondent had engaged in the alleged unfair labor practices, and
recommended that it cease and desist therefrom and take certain
affirmative action. Thereafter the respondent duly filed exceptions to
the Intermediate Report and a supporting brief.
On February 11, 1944, the Board, upon "request of the respondent,
ordered that the record "be reopened, [and] that a further hearing be
held for the purpose of retaking the testimony which employee John
Gray gave, at a hearing held before the Regional Director , * *
on January 6, 1943, with regard to his challenged ballot." Pursuant
to notice, such further hearing was held on February 28, 1944, at
Jackson, Ohio, before Trial Examiner Eadie. The Board and the
respondent were represented by counsel, participated in the hearing,
and were afforded full`opportunity to be heard, to examine, and cross-
examine witnesses, and to introduce evidence in accordance with the
,order of the Board. The Union did not appear nor participate in the
hearing.' At the close of the hearing, counsel for the respondent
argued orally before the Trial Examiner. Thereafter the respondent
duly filed a brief. During the course of both the original and the re-
opened hearings and in his Intermediate Report and Supplemental
Intermediate Report, the Trial Examiner made rulings on various
motions and objections to the admission of evidence.' The Board has
reviewed the rulings of the Trial Examiner and finds that no prejudi-
cial error was committed. ' The rulings are hereby affirmed. ,
On March' 14, 1944, the Trial .Examiner issued his Supplemental
Intermediate Report, copies of which were duly served upon the
respondent and the Union. In the Supplemental Intermediate Report,
the Trial Examiner' considered the further 'evidence adduced at the
'' At the original hearing , the Trial Examiner rejected the respondent 's offer in evidence
of the transcript of the April 30, 1943 , hearing before the Regional Director , hereinafter fully
described however, the transcript was attached to the exhibit folder , pursuant to his
order . In his Supplemental Intermediate Report he based certain findings on this tran-
script , thereby reversing his original ruling . ' We find that this transcript is in evidence in
this case
AETNA FIRE BRICK COMPANY 851
reopened hearing; found that such evidence, considered in conjunc-
tion with the evidence introduced at the original hearing, did not
serve to change or amend any of the findings, conclusions, or recom-
mendations in his original Intermediate Report; and reiterated all
such' findings, conclusions, and recommendations. Thereafter the
respondent duly filed exceptions to the Supplemental Intermediate
Report and a supporting brief. No request for oral argument, before
the Board at Washington, D. C., was made by any of the parties.
The Board has considered the Intermediate Report, the Supple-
mental Intermediate Report, the respondent's exceptions and briefs,
and the entire record in the case, and finds that the exceptions are
without merit insofar as they are inconsistent with the findings, con-
clusions, and order hereinafter set forth.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Aetna Fire Brick Company, is an Ohio corporation
with its principal office and place of business located at Oak Hill, Ohio,
where it is engaged in the manufacture and sale of brick. 'In 1942 ap-
proximately 10 percent of the respondent's raw materials, valued at
more than $5,000, was purchased outside Ohio, and 75 percent of its
gross sales of finished products, exceeding $150,000 in value, was
shipped to points outside Ohio. At the hearing the respondent ad-
mitted that it was engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATION INVOLVED
United Construction Workers, Division of United Mine Workers of
America, District 50, is a labor organization, admitting to membership,
employees of the respondent.
III. TIIE UNFAIR LABOR PRACTICES
A. Baclcgrou 'id
Self-organization among the respondent's employees began late in
the summer of 1942. Prior to November 20, 1942, Oscar B. Allen, rep-
resenting the Union, conferred with certain officials of the respondent,
informed them that the Union represented a majority of the employees,
requested recognition, and was advised that the respondent was not
satisfied that the Union represented a majority of the employees. On
November 21, 1942, the Union filed a petition for investigation and cer-
tification of representatives, pursuant to Section 9 (c) of the Act.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about December 10, 1942, the respondent and the Union entered
into a consent-election agreement, which was approved by the Regional
`Director. The agreement provided in part that "all maintenance and
production employees, excluding supervisory and office help," consti-
tuted a unit appropriate for the purposes of collective bargaining,
and that the Regional Director should conduct a secret-ballot election'
to determine whether the Union represented a majority of the em-
ployees in the said unit. The agreement contained the following
further provision :
Said election shall be held in accordance with the Act, the Rules
and Regulations, and the customary procedures and policies of
the Board; provided that the determination of the Regional Direc-
tor shall be final and binding upon any question (including ques-
tions as to the eligibility of voters) raised by either party hereto
relating in any manner to the election and not specifically covered
in this Agreement.
On December 29, 1942, the election was duly held, resulting in 29
ballots for and 28 against the Union, with 1 additional ballot challenged
by the Union on the ground that the voter, Gray, was a supervisory
employee and thus did not come within the stipulated bargaining
unit.2 .
On January 6 and April 30, 1943, the Regional Director held hear-
ings, in which- the respondent and the Union participated, on the
question of whether Gray came within the agreed appropriate unit.
On May 25, 1943, the Regional Director issued and served on the
parties a "Report on Consent Election," finding that Gray did not come
within the agreed appropriate unit, that the Union had consequently
been designated by a majority of 29 to 28 votes, and that the Union was
therefore the exclusive representative of all the employees in the said
unit.
B. The appropriate unit.
Like the Trial Examiner, we find, in accoidance with the agreement
of the parties, that all maintenance and production employees, exclud-
ing supervisory and office help, at all times material herein constituted,
and now constitute, a unit appropriate for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and that said unit insured to
employees of the respondent the full benefit of their rights to self-
organization and collective bargaining and otherwise effectuates the
policies of the Act.
2In addition to challenging Cray, the Union had originally challenged 1 of the 28 votes
against it , but later withdrew this challenge.
AETNA FIRE BRICK COMPANY 853
C. Representation by the Union of a majority in the appropriate unit
As found above, the respondent agreed that the Regional Director's
determination with respect to the election should be final and binding
upon any question (including questions as to the eligibility of voters)
not specifically covered in the agreement. The Regional Director duly
determined that Gray did not come within the aforesaid unit, and ac-
cordingly found that the Union had been designated and selected by a
majority of the employees in said unit and therefore was the exclusive
representative of all the employees therein.
The respondent contends that, in accordance with the standard an-
nounced in our decision in the Capitol Greyhound case,3 the Regional
Director's determination as to Gray was arbitrary and capricious and
for that reason should be reversed by us. However, we find that there
is substantial evidence to support the Regional Director's determina-
tion, and that consequently the determination was not arbitrary or
capricious. Gray works in the yard of the respondent's brick plant.
Regularly employed in the yard are four gangs of three employees
each, whose task it is to take the bricks from the kilns, after the bak-
ing or burning process is completed, and to place them in various racks'
in a large storage shed or railroad freight cars. Gray, who is not a
member of any of these gangs, is instructed by "Lou" Foster, the su-
perintendent or general manager, as to which bricks to have removed
from the kilns and where to have them placed. Gray then transmits
these instructions to the gangs, but does not ordinarily work as-part
of any gang. Moreover, Gray is an hourly employee, whereas the em-
ployees on the gangs are piece workers; and Gray occasionally trans-
mits their piece-work records to the superintendent. In addition,
Gray instructs new employees'and at times assigns them to a particular,
gang. As a result, the employees in the plant regard Gray as a "boss"
or "foreman"; and Superintendent Foster lent credence to this general
belief by telling a yard employee who had been reassigned by Gray
that Gray was a "foreman." Except for the superintendent, the rec-
ord reveals no other supervisory employee in the yard besides Gray;
and Superintendent Foster admitted at the April 30 hearing before
,the Regional Director that in "running" the gangs Gray took over
part of Foster's former duties. Moreover, Gray substituted for the
absent superintendent on one occasion.
It is true that there is other evidence in the record indicating that
Gray was not a- full supervisory employee. However, the Regional
Director, whom the respondent had entrusted with the authority to
8 Matter of Capitol Greyhound Lines, et al , 49 N L. R B 156 , enforced 140 F (2d)
754 (C. C. A 6).
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make final determinations on eligibility questions, did not give such
evidence controlling weight in view of the evidence recited above.
Under the circumstances, and. regardless of, how we might have de-
termined the question if the respondent had not authorized the Re-
gional Director to determine it, we cannot say that the Regional Di-
rector's determination was arbitrary and capricious,4 or that it lacked
substantial support in the record. Accordingly, we shall not disturb
his determination that Gray did not come within the appropriate
unit.
We find that at all times material herein the Union was the bargain-
ing representative of a majority of the employees in the aforesaid ap-
propriate unit, and that by virtue of Section 9 (a) of the Act the
Union at all such times was, and now is, the exclusive representative
of all the employees in said unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
D. The refusal to bargain
As found above, on May 25, 1943, the Regional Director duly deter-
mined that the Union was the statutory representative of the em-
ployees in the agreed appropriate unit. The respondent thereupon
filed objections to this determination and requested the Board for a
hearing thereon. On June 2, 1943, the Board denied the request.
On- July 14, 1943, Charles H. Moon, a representative of the Union,
in a telephone conversation with Chester P. Fitch, ,counsel for the
respondent, requested a meeting with the respondent for the purpose of
negotiating a contract. Fitch replied that he would'"contact the Com-
pany and wanted to study the question."
On or about July 23, 1943, Moon called Fitch, on the telephone and
again requested a meeting with the respondent in order to discuss the
negotiation of 'a collective bargaining contract. Fitch,replied that the
respondent "did not think that the Union represented a majority of
the employees at that time," since there were "16 new employees on '
the Company's pay roll since December 29, 1942," and that the respond-
ent therefore did not consider the Union to be the majority representa-
tive. In support of this assertion, Lester F. Simms, general manager
of the respondent, testified without contradiction that between De-
cember 29, 1942, the date of the election, and June 12, 1943, a date
shortly before-the Union's request to bargain, there was a "turnover"
,of 12 or 15 of the respondent's employees. - Other than this testimony,
See, for example , Matter of Stacy Brothers Gas Construction Company, 54 N. L. It. B.
651, where we found that certain working foremen were supervisory employees although
they did not have authority to hire, discharge , change the status of employees , or recommend
such action.
AETNA FIRE BRICK COMPANY 855
the respondent did not adduce any evidence to rebut-the presumption
of continuing majority arising from the Regional Director 's certifica-
tion of the Union on May 25, 1943.
On August 11, 1943, representatives of the respondent and the Union
met again in the respondent 's office, this time in the presence of a fed-
eral conciliator . Joseph T . McNerlin , an officer of the Union , testified
without contradiction and we, like the Trial Examiner , find that a
representative of the Union again asked the 'respondent to bargain
collectively with the Union ; that Fitch replied that the respondent
would not bargain with the Union unless another election was held
to prove that the Union had a majority ".to date"; that the Union then
offered to show the respondent the membership application cards of the
new employees in order to prove , a continuing majority; that the re-
spondent would not accept these application cards as proof thereof ;
that- the Union 'then proposed that the conciliator be delegated to
interview the new employees to verify the Union 's claim; that the
respondent refused to agree to this proposal ; and that all'but one of
the new employees had become members of the Union ., McNerlin
further testified without contradiction that Fitch then said that if
the Union went to court to establish its right to bargain collectively
with the respondent , the Union would "be a year and a half before you
get any recognition."
We are convinced , as was the Trial Examiner , that on or about July
23, 1943, and at all times thereafter the respondent -violated its statu-
tory duty to bargain collectively with the Union as the representative
of its employees in'the aforesaid appropriate unit. The respondent
in effect concedes that it refused to bargain with the Union , but con-
tends that the facts in this case rebut the normal presumption that the
Union's majority continued until the date of the refusal to bargain.
In support of its contention , the respondent adduced no affirmative
evidence that a majority of the employees no longer desired the Union
to represent them, but offered only the speculative evidence that there
had been a turnover of some 16 employees in the appropriate unit
since the election . Yet when the Union at the August 11 meeting of-
fered the respondent proof that 15 of ' the 16 new employees had
joined the Union, the respondent flatly rejected the Union 's -offer.
Under these circumstances , the showing made by the respondent is
clearly insufficient to relieve it of its statutory duty to bargain col- '
lectively with the representative of its -•employees . 5 Moreover, the
Union's majority status was not established until the Regional Di-
5 Valley Mould & Iron Corp. v. N. L. R. B, 116 F. (2d) 760 (C. C A. 7) ; N. L. R. B. V.
Whither Mills Company, et al. , 111 F (2d) 474 (C. C. A. 5) : N L. R B. v. Highland Park
Manufacturing Company, 110 F. (2dj) 632 (C. C. A. 4) ; N. L. R.'B. v. Piqua Munising
Wood Producto Company, 109 F. (2d) 552 (C. C. A. 6).
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector's determination of , May 25, 1943. In the interests of stable
labor relations, a bargaining representative elected by a majority of
the employees in an appropriate unit "must be permitted to exist and
function for a reasonable period in which it can be given a fair chance
to succeed." 6 No such reasonable period has elapsed- in this case,
and the record discloses no persuasive reason for departing from this
principle. We therefore find no merit in the respondent's contentions.
We find, as did the Trial Examiner, that on or about July 23, 1943,
and at all times thereafter the respondent refused to bargain collec-
tively with the Union as the exclusive representative of its employees
in the aforesaid appropriate unit, thereby interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
.occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and-obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices affecting commerce, we shall order it to cease and desist
therefrom and to take certain affirmative action, which we find will
effectuate the policies of the Act.
We have found that the respondent has refused to bargain collec-
tively with the Union as the exclusive representative of its employees
in the aforesaid appropriate unit. We shall order that the respondent
bargain collectively with the Union upon,request.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the' Board makes the following :
CONCLUSIONS OF LAW
1. United Construction Workers, Division of United Mine Workers
of America, District 50, is a labor organization within the meaning
of Section 2 (5) of the Act.
2.- All, the respondent's maintenance and production employees, ex-
cluding supervisory and office help, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
. 8 Franks Brothers Company v N. L. R B, 321 U. S 702. See also N L. R B v.
Appalachian Electric Power Company, 140 F (2d) 217 (C C.A 4) ; N. L R B v Century
Oxford Manufacturing Company, 140 F . ( 2d) 541 (C. C. A. 2).
AETNA FIRE BRICK COMPANY 857
3. United Construction Workers, Division of United Mines Workers
of America , District 50, at all times material herein was, and now is,
the exclusive representative of all the employees in the aforesaid
appropriate unit within the meaning of Section 9 (a) of the Act.
4. By refusing on or about July 23, 1943, and at all tines thereafter,
to bargain collectively, with United Construction Workers, Division
of United Mine Workers of America, District 50, as the exclusive
representative of the employees in the aforesaid appropriate, unit,
the respondent has engaged in and is engaging in unfair' labor prac-
tices within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices af-
fecting commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Aetna Fire Brick Com-
pany, Oak Hill , Ohio, and its officers, agents , successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Construction
Workers, Division of United Mine Workers of America, District 50,
as the exclusive representative of all its maintenance and production
employees, excluding supervisory and office help, in respect to rates
of pay, wages , hours of employment , and other conditions of employ-
ment;
(b) Engaging in any like or related acts or conduct interfering
with, restraining , or coercing its employees in the exercise of the
right to self -organization , to form, join, or assist labor organizations,
to bargain collectively ' through representatives of their own choos-
ing, and to engage in concerted activities , for the purpose of collective
bargaining or other mutual aid or protection , as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action , which the Board finds will
effectuate the policies of the Act : .
(a) Upon request, bargain collectively with United Construction
Workers, Division of United Mine Workers of America, District 50,
as the exclusive representative of all its maintenance and production
employees, excluding supervisory and office help , in respect to rates
858 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
of pay, wages,, hours of employment, and other'. conditions of em-
ployment ;
(b) Post immediately in conspicuous, places throughout its plant
and yard at Oak Hill, Ohio, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs 1
(a) and (b) of this Order, and (2) that the. respondent will take the
affirmative action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
CHAIRMAN MILLIS took no part- in the consideration of the above
Decision and Order.