Harbison-Walker Refractories Co.

National Labor Relations Board - Board Decisions

Dec 19, 1941

37 N.L.R.B. 785 (N.L.R.B. 1941)

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