Continental Clay Products Co.

National Labor Relations Board - Board Decisions

Jan 5, 1946

65 N.L.R.B. 168 (N.L.R.B. 1946)

In the Matter Of CONTINENTAL CLAY PRODUCTS COMPANY and UNITED
CONSTRUCTION WORKERS, AFFILIATED WITH U. M. W. OF A.
Case No. 5-R-19.51.-Decided January 5, 1946
Mr. William F. Kelley, of Washington, D. C., for the Company.
Mr. Robert E. Smedley, of Martinsburg, W. Va, for the U. M. W. A.
Mr. Stanley B. Korengold, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Construction Workers, affili-
ated with U. M. W. of A., herein called the U. M. W. A., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Continental Clay Products Company, Martins-
burg, West Virginia, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before John H. -Carver, Trial Examiner. Said hearing was held at
Martinsburg, West Virginia, on August 30, 1945. The Company and
the U. M. W. A. appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Continental Clay Products Company, a West Virginia corporation,
with its principal office and place of business in Martinsburg, West
Virginia, is engaged in the manufacture of clay products. The Com-
pany annually purchases coal, machine parts, and office equipment
from points outside the State of West Virginia, valued at approxi-
65 N. L. R. B., No. 32.
168
CONTINENTAL CLAY PRODUCTS COMPANY 169
mately $28,000. The Company's finished products annually amount
to over $100,000 in value, 90 percent of which is sold and distributed
to points outside the State of West Virginia.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Construction Workers, affiliated with United Mine Work-
ers of America, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognize the U. M. W. A. as the exclu-
sive bargaining representative of its production and maintenance em-
ployees until the U. M. W. A. has been certified by the Board in an
appropriate unit.
At the hearing the Company contended that the Board should not
direct an election at this time because less than a year had elapsed since
the Board conducted a consent election in which the U. M. W. A. had
participated.' We do not agree with the Company's contention. Al-
though the Board customarily will not proceed with an investigation
of representatives on the basis of a new petition by the same labor or-
ganization filed within less than a year after an inconclusive election,
it will do so where the union's showing of membership on the second
occasion is such as to indicate a renewal and extension of organiza-
tional activity since the prior election.2 In the instant case; a state-
ment of a Board agent introduced into evidence at the hearing indi-
cates that the U. M. W. A. not only represents a substantial number
of employees in the unit hereinafter found appropriate, but also has
obtained all its employee designations since the prior election 3 It is
therefore our opinion that the U. M. W. A.'s present representation
showing evidences the fact that it has renewed and extended its
organizational efforts since the prior election.
1 On January 16, 1945, the Board conducted a consent election among the production
and maintenance employees of the Company which resulted in the dismissal of the petition
because the U M. W. A ., the only union on the ballot, failed to secure a majority of the
votes cast.
2 Matter of Cleveland Cliffs Iron Company (Marine Department ), 63 N. L. R. B. 674;
Matter of World Publishing Company, 63 N. L. R. B. 462.
1 The Field Examiner reported that the U . M. W. A. submitted 36 membership and
authorization cards ; that 21 of these cards checked with the names of persons appearing
on the Company ' s pay roll of July 23 , 1945 ; that except for 1 undated card, all the cards
were dated subsequent to April 1945 ; and that there are 43 persons in the alleged appro-
priate unit.
At the hearing the U. M. W. A. submitted to the Trial Examiner 3 additional member-
ship and authorization cards, 1 of which corresponds with a name listed on the above pay
Toll. The card was also dated subsequent to April 1945.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, it should be emphasized that the balloting will not
take place until approximately 1 year after the original election. Ac-
cordingly, we find that the prior election does not operate as a bar to a
present determination of bargaining representatives.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in substantial accord with a stipulation of the parties, that
all production and maintenance employees, including watchmen, but
excluding clerical employees and all supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
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, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 3, as amended,
it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Continental Clay
Products Company, Martinsburg, West Virginia, an election by secret
ballot shall be conducted as early as possible, but not later than
sixty (60) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Fifth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during said pay-roll period because they were ill or on
CONTINENTAL CLAY PRODUCTS COMPANY 171
vacation or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether or not they desire to
be represented by United Construction Workers, affiliated with the
U. M. W. of A., for the purposes of collective bargaining.