Harbison-Walker Refractories Co.

National Labor Relations Board - Board Decisions

Sep 12, 1942

43 N.L.R.B. 1349 (N.L.R.B. 1942)

In the Matter of HARBISON -WALKER REFRACTORIES Co. and UNITED
BRICK WORKERS L. I. UNION No. 1203, C. I. O.
Case No. R-4096.-Decided September 12,194
Jurisdiction : refractory material manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; valid existing- contract with labor
organization no longer in existence, the successorship of which was a matter
of. unresolved dispute between rival claimants, held no bar to a determination
of the representative to administer the contract; election necessary.,
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees of one of Company's plants, including machinists crew and janitors,
but excluding supervisory employees, clerical, office, laboratory, and manage-
ment employees, and uniformed watchmen ; stipulation as to.
Mr. Geoffrey J. Cunniff, for the Board.
Mr. Frank G. Smith, of Clearfield, Pa., for the Company.
Mr. David H. H. Felix, of Philadelphia, Pa., for the Brick Workers.
Mr. Otto Hartmann, of Delair, N. J., and Mr. John J.' Clark and
Mr. Anthony Sabatino, of Philadelphia, Pa., for U. C. W.-U. M. W.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Brick Workers Local Industrial
Union No. 1203, affiliated with the Congress of Industrial Organiza-
tions, herein called the Brick Workers, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Harbison -Walker Refractories Co., Chester, Pennsylvania , herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before William B. Barton,
Trial Examiner. Said hearing was held at Chester, Pennsylvania,
on July 30 , 1942. The Board, the Company, the Brick Workers, and
',United Construction Workers Division of District ' 50, United Mine
Workers of America, herein called the U. C. W.-U . M. W., appeared,
participated , and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses , and to introduce evidence bearing
43 N. L R. B., No. 209.
0
1349
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
on the issues. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. On August 12,
1942, the Brick Workers filed a brief, which the Board has duly con-
sidered.
Upon the entire record in the case, the Board makes the following.
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Harbison-Walker Ref ractories Co., a Pennsylvania corporation hav-
ing its principal office in Pittsburgh, Pennsylvania, is engaged at its
plants in various parts. of the United States in the manufacture of
fire brick and other refractory material. This case involves the Com-
pany's plant located at Chester, Pennsylvania. During the first three
months of 1942, the Company purchased for use at its Chester plant
raw materials valued at approximately $500,000, of which about 89
percent represented raw materials originating outside the Common-
wealth of Pennsylvania. During the same period, the Company manu-
factured at its Chester plant finished products valued at approximately
$1,000,000, of which about 67 percent represented finished products
.sold and transported to points outside the Commonwealth of Pennsyl-
vania., The Company admits , for the purpose of this proceeding, that
it is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Brick Workers Local Industrial Union No. 1203, affiliated
with the Congress of Industrial Organizations , is a labor organization
admitting to membership employees of the Company.
United Construction Workers Division of District 50, United Mine
Workers of America, is a labor organization admitting to membership
employees of the Company. United Mine Workers of America is
affiliated with the-Congress of Industrial Organizations.
III. THE QUESTION CONCERNING REPRESENTATION
On March 2, 1942, the Company and United Construction Workers
Organizing Committee, herein called U. C. W. O. C. -entered into a
collective bargaining contract which, according to its terms, was to
remain in effect until March 1, 1943 , and to continue from year to year
thereafter unless either party gave written -notice of termination at
least 30 days prior to March 1 of any year. U. C. W. O. C. had estab
lished at the Chester plant a local union, herein called Local #447,
U. C. W. O. C. On June 4, 1942, certain officials of U. C. W. O. C. and
HARRISON-WALKER REFRACTORIES CO. 1351
District 50, United Mine Workers of America, executed an agreement
purporting to affiliate with District 50, United Mine Workers of Amer--
the local unions established by U. C. W. O. C. and thereby creating
U. C. W.-U. M. W. On June 6, 1942, U. C. W.-U. Al. W., 'on its
own notion, issued a charter to the charter members of Local #447,
U. C'. W. O. C., to constitute a, new local union to be known as Local
,$ 447, U. ,C. W.-U. M. W. On June 8,1942, the Company and U. C. W.-
U. M. W. executed a document entitled "Rider to Agreement," ap-
parently for the purpose of substituting U. C. W.-U. M. W. for
U. C. W. O. C. as a party to the contract executed on March 2, 1942,
between the Company and U. C. W. 0. C.1
On June 11, 1942, the Congress of Industrial Organizations, herein
called the C. I. 0., announced, in substance, that the agreement of
June 4, 1942, between certain officials of U. C. W. O. C. and District
50, United Mine Workers of America, was unauthorized and invalid;
that the-local Anions established by U. C. W. O. C. would be allowed
to determine for themselves the question of their affiliation; and
that U. C. W. O. C. was dissolved. Thereafter, on June 15, 1942,
the members of the former Local #447, U. C. W. O. C., voted unani-
mously to apply for a new charter directly from the C. I. O. On
June 18, 1942, the C. I. O. issued a certificate of affiliation creating
the Brick Workers as a local industrial union affiliated directly with
the C. 1. 0.2 -
About July 15, 1942, the Brick Workers first heard of the Rider to
Agreement executed on June 8, 1942, by, the, Company and U. C. W.-
U. M. W. The Brick Workers at once asked the Company to rescind
the Rider to Agreement, and upon refusal by the Company, went out
on strike. The strikers returned to work four days later when the
Conpan r agreed to deal with the "present shop committee" on all
matters pertaining to wages, hours, and other conditions of employ-
ment until the Board should determine the exclusive bargaining
representative of the employees. On July 20, 1942, the Brick'
Workers filed its petition hereiii. -
A report prepared by the Regional Director, and introduced in
'evidence at the hearing, indicates that the Brick Workers represents
a substantial number of the employees in the unit hereinafter found
to be appropriate.3 -
' The Rider to Agreement provided as follows -
It is hereby understood and agreed tluit the party of the second part of agreement
entered into on June 8, 1942, for Chester Works shall be known as United Construction
Workers Division of District 50, United 'fine workers of America.
,The certificate of affiliation names as charter members of the Brick workers 9 of the
to employees who were chaster mernbeis of Local #447, U. C W 0 C., and to whom
U C W -U 'Al W issued its charter on June 0, 1042, to establish Local #447, U C. W.
U 'I W
3 The Regional Director reported that (a) the Brick Workers submitted 205 membership-
authmization cards bearing apparently genuine, original signatures and 7 membership-
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. C. W.-U. M. ' W. contends that it is the legitimate successor to
U. C. W. O. C. and that, as such, it acquired all rights of the latter
organization, including the collective bargaining contract of March 2,
1942. U. C. W.-U. M. W. urges' further that, since the contract will
not expire before March 1, 1943, it constitutes a bar to a present
determination of representatives. The Brick Workers contends that
the Company's employees within the appropriate unit are the real
successors to the contract and that it is for the Board to determine
the identity of their bargaining representative. The Company takes
a neutral position as to these issues.
As a general rule, the Board will not proceed with an' investigation
as to representation where there exists a valid contract, having a
reasonable period to run, with an active labor organization of clearly,
established identity. Here, however, the original contracting union,
U. C. W.O. C., is no longer in existence. -The identity,of its successor,
if any, is a matter of unresolved dispute between -rival claimants.
Under these circumstances, we hold that the contract does not con-
stitute a bar to a present determination of representatives.4 It is
not, however, our intention to invalidate the contract or to disturb it
in any respect. The election which we shall hereinafter direct is for
the purpose of determining the representative who shall administer
the contract.
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.
11'. THE APPROPRIATE UNIT
We find, in accordance with a stipulation of the parties, that all
production and maintenance employees of the Company at its Chester,
Pennsylvania, plant, including machinists crew and janitors, but ex-
eluding. supervisory employees, clerical, office, laboratory and manage-
ment employees, and uniformed watchmen, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.5
authorization cards bearing an "X" mark for the signatures , 3 of the 7 being witnessed,
and 4 unwitnessed ; ( b) all of the 272 cards ' bear signatures corresponding with names
on the Company 's pay roll which lists 317 employees in the unit alleged to be appropriate
in the petition ; and (c) of the 272 cards , 1 was dated "5/1/42 " ; 3 were dated from
June 14 to 30, 1942 , 7 were dated from July 1 to 10. 1942 ; 245 were dated from July 10
to 20, 1942 , and 16 were undated The Regional Director further reported that U. C W.-
U M W. had informed him that it hdd no application, designation, or authorization cards
from the employees here involved. '
4 Cf. Matter of 1 ational Tea Company and Progressir, e Grocery and Warehouse Workers
Union, Local No. 1, 35 N L R B 340 ; Matter of Brewster Aeronautical Corporation and
International Union, United Automobile Workers of America, Local 365 ; affiliated with the
Congress of Industrial Organizations , 1'4 N. L. R B '1024
' The unit hereinabove found appropriate is identical with that' covered by the contract
of March 2, 1942
HARRISON -WALKER REFRACTORIES CO. 1353
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 our Direction of
Election herein, subject to the limitations and additions set forth in
said 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 Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended , it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purpose of collective bargaining with Harbison-Walker
Refractories Co., Chester , Pennsylvania , an election by secret ballot
shall he conducted as early as possible, but not later than thirty (30)
days from the date of this Directioni, under the direction and super-
vision of the Regional Director for the Fourth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Section 9, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during thepay-roll period- immediately preceding the
date of this Direction, including any such employees who did not work
during said pay-roll period because they were ill or on vacation or,
in the active military service or training of the United States, or tem-
porarily laid off, but excluding any who have since quit or been' dis-
charged for cause, to determine whether they desire to be represented
by United Brick Workers Local Industrial Union No.,1203, affiliated
with the Congress of Industrial Organizations, or by United Construc-
tion Workers Division of District 50, United Mine Workers of America,
for the purposes of collective bargaining,' or by neither.
CHAIRMAN MILLTS took no part in the consideration of the above
Decision and Direction of Election.
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