General Refractories Co.

National Labor Relations Board - Board Decisions

Jan 18, 1957

117 N.L.R.B. 81 (N.L.R.B. 1957)

GENERAL REFRACTORIES COMPANY 81
with those in voting group (B) .16 The Regional Director conducting
the election is instructed to issue a certification of representatives to
the labor organization elected by a majority of the employees in the
pooled group which the Board in such circumstances finds to be appro-
priate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
MBMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Elections.
is If ;the votes are pooled, they are to be tallied in the following manner : the votes for
the Boilermakers shall be counted as valid votes, but neither for nor against UAW or the
Independent which seek to represent these employees in the more comprehensive produc-
tion and maintenance unit ; all other votes are to be accorded their face value whether
for representation by a union seeking the comprehensive unit or for no union.
General Refractories Company and International Association of
Machinists , AFL-CIO, Petitioner . Case No. 6-RC-1797. Janu-
ary X8,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Donald J. Myers, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. Since 1944 the Intervenor, United Construction Workers, Divi-
sion of District 50 United Mine Workers of America, on behalf of
itself and Local Union No. 290, has represented a unit of production
and maintenance employees at the Employer's Claysburg, Pennsyl-
vania, operation, where the Petitioner now seeks to sever a unit of
machine shop employees. Successive contracts have been executed
since then, with the last one timely opened for negotiation of a new
contract by letter of May 11, 1956. A stipulation agreement of July
10, 1956, providing that either party might terminate on 10, days'
notice, continued the contract indefinitely beyond its July 15 anni-
versary date. The petition here was filed June 20, 1956. A separate
pension agreement between the Employer and the Intervenor runs
until July 15, 1957. Both the Employer and the Intervenor urge
dismissal of the petition on the ground of contract bar. It is well
117 NLRB No. 20.
423784-57-vol. 117-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settled that a temporary contract of indefinite duration following a
fixed term does not bar a representation proceeding . See Cadillac
Motor Car Division , General Motors Corporation , 114 NLRB 181;
New Jersey Porcelain Company , 110 NLRB 790 , 791. It is also clear
that an agreement limited in scope to the supplemental topic of pen-
sions cannot prevent a rival union from obtaining a determination of
its representative status. See Florence Pipe Foundry Machine Co.,
106 NLRB 828, 829. The motion to dismiss on the ground of contract
bar is denied.
4. The Petitioner seeks to sever a unit of machine shop employees
at the Employer's Claysburg , Pennsylvania , operation from the pro-
duction and maintenance unit which has existed since 1944. The
Employer manufactures silica refractory products at Claysburg, the
operation consisting of a plant and three adjacent quarries. It has
additional operations in Pennsylvania and in 11 other States. It con-
tends that the petition should be dismissed because only the existing
all-employee unit is appropriate in view of the history of bargaining
on that basis at Claysburg , and the fact that industrial type units
constitute the bargaining pattern in nearly all of its plants and in
the refractory industry as a whole. In addition it contends that the
unit here sought is not appropriate for severance either as a craft or
a department within the meaning of the American Potash decision,'
and that the Petitioner has become predominantly an industrial union
and therefore is not qualified to represent the unit sought in any event.
The Employer would have the Board deny severance in the refrac-
tories industry just as it does in the basic steel , aluminum , lumber, and
wet milling industries . It alleges that the refractories industry op-
erates "in tandem" with the steel industry , locating in the same areas,
supplying the necessary refractory products , and paralleling the wage
structure of the steel industry . On this basis it contends that indus-
trial type units should obtain in both . Obviously similar arguments
for plantwide bargaining could be made as to many industries. We
see nothing in the argument advanced to change the Board 's clear
statement of policy in American Potash to the effect that it will not
further extend the National Tube doctrine 2 beyond those industries
in which it had already been applied . Recently the Board has re-
iterated this policy .' The remaining contentions of the Employer'have
to do with the characteristics of the unit sought and their impact upon
severance.
The Claysburg operation presently employs approximately 450 and
has 7 departments : molding, setting, burning, burned brick , machine
shop, quarry , and maintenance . Until the beginning of 1956 the ma-
1 American Potash & Chemical Corporation, 107 NLRB 1418, 1422.
s National Tube Company, 76 NLRB 1199.
United States Smelting , Refining and Mining Company , 116 NLRB 661.
GENERAL REFRACTORIES COMPANY 83
chine shop and maintenance had been one department. For job-bid-
ding purposes they are still considered one. However , each has its
separate supervision. The machine shop employs 76 and the mainte-
nance department 11, the latter group consisting of repairmen, car-
penters, painters, an electrician, and helpers.
The employees carried on the roll of the machine shop are as fol-
lows : 28 shaper operators , 2 planer operators , 3 lathe operators, 5 mill-
ing machine operators , 1 do-all saw operator , 2 saw operators, 2 sur-
face grinders , 1 blacksmith , 3 welders , 4 drill press operators, 3 hand
mold changers , 3 machine mold assemblers , 5 diesetters , 11 miscellane-
ous laborers , 3 general shop men . The Employer has no apprentice-
ship system and states that it does not need journeyman skills for the
work done. The machine shop employees make molds , die boxes, and
pallets for use in the brick manufacturing process both at Claysburg
and at other operations of the Employer. Some of this work requires
close tolerances and one employee testified that he works from blue-
prints, but much of the work is not of that character. The record indi-
cates that there is no pattern of job progression in the shop. Pay in-
creases are based on length of service and the contract shows only 3
classifications-machinist, welder, and shop blacksmith-into which
the 76 employees listed above fit , all at the same basic rate of pay. Job
openings in the first nine categories listed above , are posted , first for
departmental bidding and then for bid by any employee. A 10-day
trial period is given. Apparently no employee has failed to succeed
in a job bid upon . An opening in 1 of the last 6 categories , that is,
drill press operator, hand mold changer, machine mold assembler, die-
setter , and so forth , is normally filled by assignment . In some job
categories, including that of welder , direct hirings have occurred.
. The machine shop at Claysburg is apparently the Employer's
largest in Pennsylvania . It has its own building , with separate rooms
for welding, heat treating, blacksmith, office, and toilet facilities. The
blacksmith and the welders work under shop supervision-the black-
smith repairing tools and occasionally making tools for various oper-
ations of the Employer and the welders working on molds from the
machine shop. They also weld production equipment in the plant and
at the quarries as required. Generally speaking, machine shop em-
ployees do not go into the plant, even eating their lunch in the shop.
One of them does plumbing work in the plant and for company houses,
and the miscellaneous laborers on the shop roll may be used to supple-
ment other crews, including the repair crew. Production employees
and maintenance employees may come into the shop to use some of
the machines, apparently those which are not identified with bid-in
jobs. Also , pressmen from the molding department come into the
shop to get molds , and at times the diesetters and mold changers do
go into the plant to help with the molds.
84 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer takes the position that the machine situp is one of the
plant producing departments and that the duties of its employees
overlap and are integrated with those of production employees, hence
it is not the type of department suitable for severance. Also it con-
tends that the machine shop employees are not severable as a craft.
We .find merit in its position that these employees lack true craft char-
acteristics. Their work entails no substantial period of training and
requires the exercise of only limited skills. Essentially it is of a re-
petitive nature. Viewed from the craft severance angle, the problem
here appeares much the same as that involved in the Board proceed-
ing involving two of the Employer's refractory plants in Kentucky,
where the Board denied craft severance to a group of employees, in-
cluding machinists, who performed much the same functions here per-
formed by the machine shop employees.' However, the group here
sought does constitute a functionally distinct department at the Clays-
burg operation, such as we have severed despite a history of bargaining
on an industrial basis.5 Although the machine- shop has an im-
portant production function, it also has the usual machine shop func-
tions. None of its work is duplicated in other parts of the plant and
it appears that the alleged overlapping of duties between employees
outside, the shop and those employed in it is negligible. We find from
these circumstances and from the entire record that the machine shop
is a functionally distinct department containing employees identi-
fied with traditional trades or occupations distinct from those of
other employees.6 Accordingly we find that the machine shop em-
ployees may constitute a separate appropriate unit if they so desire.
Our dissenting colleague's conclusion that this is a "pure" production
department which the Board does not sever, relying on the Bossert de-
cision, disregards the fact that the Claysburg machine shop is sepa-
rately housed, has a machine shop as well as a production function,
and that no other employees at Claysburg are shown to duplicate the
work done by the machine shop, employees. Conversely, department
50 which we refused to sever in the Bossert case was distinctly a pro-
duction department, was not separately housed, and more than 12 em-
ployees, in at least 2 other departments of the plant, regularly operated
presses in operations similar to the forming operation of depart-
ment 50. Clearly the petitioning union has traditionally represented
units of machine shop employees.7 For the reasons stated above, the
motion to dismiss the petition because of inappropriate unit is denied.
4 See General Refractories Company, 96 NLRB 665.
8 See Unated States Smelting, Reftnting and Mansng Company, supra; American Bemberg,
Division of Beaunit Mills, Inc. and, North American Rayon Corporation, 111 NLRB 963,
967; The Formsca Company, 109 NLRB 964; see also St. Louis Car Company, 108 NLRB
1388, 1390.
6 Cf. Bossert New Castle Division, Rockwell Spring 4 Aole Co., 111 NLRB 331, 335.
7 See Kinnear Manufacturing Company, 109 NLRB 948, text at footnote4.
GENERAL REFRACTORIES COMPANY 85
We shall direct an election in a voting group of employees of the
Employer's Claysburg, Pennsylvania, machine shop, excluding all
other employees, guards, and supervisors as defined in the Act. If a
majority vote for the Petitioner, they will be taken to have indicated
their desire to constitute a separate appropriate unit, and the Regional
Director conducting the election is instructed to issue a certification
of representatives to the Petitioner for such unit, which the Board in
the circumstances finds to be appropriate for purposes of collective
bargaining.
[Text of Direction of Election omitted from publication.]
MEMBER BEAN, dissenting :
I would not direct an election in this case because it is clear to me
that the Petitioner is seeking to sever from the existing overall unit a
large group of employees who virtually constitute no more than one
of several production departments. As I read the Board's lead de-
cision on the subject of severance, the "functionally distinct and sepa-
rate" departmental test requires at least something more 'than the
inevitable and minimum distinction between one production depart-
ment and another.8 The general concept of the machine shop as a
severable department came into being in consequence of the develop-
ment of the machinists' trade. While it is true that the traditional
machine shop today need not conform to true craft unit standards.
nor even reveal the once required craft core or nucleus justification,
it does not follow that severance is proper even in the absence of an-,
craft skill at all. Identification by name "machine shop" in the Com-
pany's organizational chart cannot alone satisfy the functional test en-
visaged by evolving Board law.
Among the 76 employees in this machine shop there are 45 operators,
5 die setters, 3 assemblers, and 11 laborers. The remaining employees
consist of 3 welders, a grinder, 3 mold changers, and 3 general shop
men. Perhaps one at most of the entire group is a skilled craftsman.
Aside from a few workmen who also do repairs about the plant, the
work of the department is a repetitive production process, making
molds and die boxes used directly in the manufacture of bricks. In-
deed, the machines in this department operate in sequence as the molds
are produced. As the majority opinion admits, the work entails no
substantial period of training and requires the exercise of only limited
skills.
Thus, every fact points to the similarity between this department
and the others in the plant, rather than to functional distinctiveness.
While some such characteristics have not been deemed sufficient to
rebut the distinctive machinist character of machine shops described in
8 American Potash & Chemical Corp ., 107 NLRB 1418 , at page 1424.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other cases, we have in this record nothing more than indications of
community of interest between "machine shop" and all other employees
in the existing bargaining unit. For the record also shows that em-
ployees from this department have occasion to work in other areas of
the plant; that, conversely, other employees sometimes work inside
this shop ; that the laborers are really a pool furnishing services where-
ever needed; and that seniority extends substantially across depart-
mental lines. On these facts, I can only conclude that the evidence
points to a pure production department, rather than to the functional
distinctiveness of which the Board spoke in its American Potash de-
cision. The Board does not sever one production department from
another.' I see no reason for departing from that time-tested rule
now.10 Accordingly, I would dismiss the petition in this case.
e Dexdale Hosiery Mills, 115 NLRB 228.
1U Bossert New Castle Division, Rockwell Spring A Axle Co ., 111 NLRB 331.
Bi-States Company and International Alliance of Theatrical
Stage Employees and Moving Picture Machine Operators of the
United States and Canada , AFL-CIO, Petitioner . Case No.
17-RC-2225. January °22, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Harold L. Hudson,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
.
2. The Petitioner contends (a) that the Intervenor is not a labor
organization, and (b) that it is not authorized to represent rank-and-
file employees because of illegal domination of its organization and
activities by supervisors. As to (a), it appears from the record that
the Intervenor exists for the purpose of dealing with the Employer
concerning grievances , labor disputes, wages, rates of pay, hours,
and conditions of employment, and is therefore a labor organization
as defined in the Act. As to (b), it is well established that a con-
tention alleging domination or assistance of a labor organization by
an employer is in effect an unfair labor practice charge, and therefore
not properly litigable in a representation proceeding.' Any party
1 The hearing officer permitted the intervention of KHOL-TV and KHPL-TV Employees
Union in this proceeding. It therefore becomes unnecessary to consider its written motion
to intervene, copies of which were filed with the Board.
° Moreover , unlike the usual situation in which dismissal of the petition is sought be-
cause of the disqualification of the petitioning union, we have here a contention directed
117 NLRB No. 22.