Elgin-Butler Brick Co.

National Labor Relations Board - Board Decisions

Apr 30, 1948

77 N.L.R.B. 435 (N.L.R.B. 1948)

In the Matter of ELGIN-BUTLER BRICK COMPANY, EMPLOYER and
UNITED BRICK AND CLAY WORKERS OF AMERICA, AFL, LOCAL UNION
993, PETITIONER
Case No. 16-RC---20.-Decided April 30, 1048
Hart, Brown and Sparks, by Messrs. Jay H. Proven, -and Jack
Sparks, of Austin, Tex., for the Employer.
Messrs. Paul Pel frey, of Athens, Tex., and C. G. Perez, of Elgin,
Tex., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Austin,
Texas, on January 20, 1948, before Charles Y. Latimer, hearing officer.
The hearing officer's rulings made at the hearing are free from prej udi-
cial error and are hereby affirmed.
Upon the entire record in the case, the National L•tbor Relations
Board' makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Elgin-Butler Brick Company, a Texas corporation, is engaged in
the manufacture of brick and other clay products at its plant in Butler,
Texas. During the year 1947, the Employer purchased materials
and supplies v,::tied at approximately $45,000, of which about $2,500
represented shipments from points outside the State of Texas. During
the same period, the Employer sold finished products valued at about
$653,000, of which approximately $56,000 represented shipments to
points outside the State.
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers In connection with this case to a three -man panel consisting
of the undersigned Board Members [Houston , Murdock , and Gray].
77 N. L. R. B., No. 73.
435
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.2
IT. THE ORGANIZATION INVOLVED
The Petitioner 3 is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.4
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit comprising all production and main-
tenance employees at the Employer's Butler plant, excluding labora-
' At the hearing , the Employer renewed its previous motion, filed with the Regional
Office of the Board , to revoke the subpena duces tecum requiring the Employer to produce
certain records which would enable the Board to ascertain the jurisdictional facts in the
case. The record indicates that, at the hearing , the Employer stipulated the jurisdictional
facts as set forth above , "subject to and without waiver of the Company ' s rights under its
motion to revoke the subpena duces tccum " The hearing officer granted the motion. In
its brief, the Employer contended that in granting the motion to revoke the subpena, the
stipulation as to jurisdictional facts was, in effect , withdrawn from the record , inasmuch
as the stipulation was "expressly conditioned upon the statement that if the records sought
to be described in the subpena were produced , such records would show certain things."
Having had the subpena quashed, the Employer's aignment continues, "the conditional
stipulation was of no further force or effect," and the Board is without jurisdiction in the
case. A mere statement of the proposition demonstrates its frivolousness . The hearing
officer was satisfied as, indeed , we axe, that the stipulation contained the necessary facts
upon which the Board could make a determination as to its jurisdiction over the Employer
That being so, there was no longer need for the recoi ds which the subpena was designed
to obtain . The one was an adequate substitute for the other Any other view of the
significance to be attached to the stipulation would lead to the absurd result urged by the
Employer. Accordingly, the contention of the Employer is found to be without merit.
' The name of the Petitioner appears herein as amended at the hearing
4 At the hearing, and in a brief filed with the Board thereafter, the Employer moved to
dismiss the petition on the grounds that ( 1) no evidence exists in the record of the Peti-
tioner ' s compliance with the filing requirements of Section 9 (f), (g), and ( h), of the
amended Act; and (2) Section 9 (c) (1) of the amended Act requires the Petitioner to
prove on the record that a substantial number of employees wish to be represented by the
Petitioner It is , well established that a Petitioner 's compliance status as well as its
showing of interest under the amended Act are administrative matters to be disposed of by
the Board itself and are not litigable by the parties. Moreover, we are administratively
satisfied as to the Petitioner's compliance with the filing requirements of the Act as'well
as its showing of adequate representative interest Accordingly, the motion to dismiss is
denied Matter of Dixie Wax Paper Company, 77 N L R B 80 , Matter of Lion Oil
Company, 76 N I, R B 565, Matter of Mascot Stove Go, 75 N. L R B 427
ELGIN-BUTLER BRICK COMPANY 437
tory workers, the chemist, industrial engineers, office employees, and
supervisors. The Employer contends that the unit is inappropriate.
There has been no collective bargaining history affecting this plant.
The unit sought is the conventional production and maintenance unit
of the type which-we have heretofore established in this industry.5
Moreover, the record amply demonstrates that these employees are
engaged in functionally interdependent tasks in accordance with an
integrated production scheme. Under all the circumstances, we find
that all production and maintenance employees e at the Butler, Texas,
plant of the Employer, excluding laboratory employees, the chemist,
industrial engineers, office employees, and all supervisors,? constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Elgin-Butler Brick Company,
Butler, Texas, 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 Sixteenth Region and subject to Sections 203.61 and 203.62
of National Labor Relations Board Rules and Regulations-Series 5,
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 vaca-
tion or temporarily laid off, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented by United Brick and Clay Workers
of America, AFL, Local Union 993, for the purposes of collective
bargaining.
5 Matter of Harbtison-TValker Refractories Company, 37 N. L. It. B. 785 ; Matter of Ken-
tucky Fore Brick Company , 19 N L. R. B. 532
6 Among the categories of employees included in the unit are truck drivers and pug mill
operator.
7Included in the category of supervisors are the head machine operator , the assistant
loading foreman , and foremen. However, the supervisory status of the electrician , brick-
layer, and one of the tractor operators appears questionable from the record For this
reason, we shall make no determination with respect to the exclusion of these employees from
the unit at this time . It any of the foregoing employees possess supervisory powers within
,the meaning of Section 2 (11) of the Act, they are to be excluded from the unit ; otherwise
they are to be included. Cf Matter of Allied Mills, Inc, 76 N L It. B 973.
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