Harbison-Walker Refractories Co.

National Labor Relations Board - Board Decisions

Oct 6, 1942

44 N.L.R.B. 816 (N.L.R.B. 1942)

In the Matter of HARBISON-WALKER REFRACTORIES COMPANY .and
UNITED CLAY PRODUCTS WORKERS, LOCAL INDUSTRIAL UNION
1205.''No.
In the Matter Of HARBISON-WALKER REFRACTORIES COMPANY and
UNITED CON. WORKERS, Div. OF DIST. 50, U. M. W., AFFILIATED WITH
THE C. I. 0. and UNITED CLAY PRODUCTS WORKERS, LOCAL INDUSTRIAL
UNION No. 1262.
In the Matter of HARBISON-"TALKER REFRACIORIES COMPANY and
UNITED CON. WORKERS, Div. OF DIST. 50, U. M. W., AFFILIATED WITH
THE C. I. 0. and UNITED CLAY PRODUCTS WORKERS, LOCAL INDUSTRIAL
UNION No. 1206
In the Matter Of HARBISON-WALKER REFRACTORIES COMPANY and
UNITED CON. WORKERS, Div. OF DIST. 50, U. M. W., AFFILIATED WITH
THE C. I. 0. and UNITED CLAY PRODUCTS WORKERS, LOCAL INDUSTRIAL
UNION No.1263
Cases Nos. R-4157, RE-46 to RE-48 inclusive, respectively.Decided
October 6,1942
Jurisdiction : refractory products manufacturing industry.
Investigation and Certification of Representatives : existence of questions: con-
flicting claims of rival representatives ; contract held no bar when because of
alleged unauthorized change of affiliation of contracting union there existed an
unresolved doubt with respect to the identity of the labor organization which
employees desired as their representatives; elections necessary
Units Appropriate for Collective Bargaining : separate units comprising re-
spectively all employees at each of three plants of Company, and production
and maintenance employees at a fourth plant; stipulation as to
Mr. Henry Shore, for the Board.
Mr. Frank G. Smith, of Clearfield, Pa., for the Company.
Mr. Phillip M. Curran, of Pittsburgh, Pa., for the Clay Workers.
Mr. Cecil ,Owen and Mr. Gardner H. Wales, of Washington, D. C.,
for the U. C. W.-U. M. W. `
Miss Melvern R. Krelow, of counsel to the Board.
44 N. L. R. B., No. 160.
816
'HARBISON_WALKER REFRACTORIES COMPANY 817
DECISION
AND
DIRECTION OF, ELECTIONS
STATEMENT OF TIIE CASE
Upon petitions -duly filed by Harbison-Walker, Refractories Com-
pany,, Pittsburgh, Pennsylvania, herein called the Company, and by
United Clay Product Workers, (C. I. 0.), herein called the Clay
Workers,' alleging .that a question affecting commerce had arisen con-
cerning the representation of employees of the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice -before Samuel Edes, Trial Examiner. Said hearing was held
at Clearfield, Pennsylvania, on August 10, 1942. The Board, the Com-
pany, the Clay 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 examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. The Company and the
Clay Workers moved to amend their petitions with regard to the
approprite units.. The Trial Examiner reserved ruling on the motions.
They are hereby granted. At the close of the hearing', the U. C. W.-
U. M. W. moved for dismissal of the petitions. The Trial Examiner
reserved ruling on the motion. For reasons hereinafter set forth, the
motion is hereby denied. The Trial Examiner's rulings made at the
hearing are free from prejudicial, error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Harbison-Walker Refractories Company is a Pennsylvania corpora-
tion having its principal offices in Pittsburgh, Pennsylvania. It is en-
gaged in various parts of the United States in the manufacture of
fire brick and other refractory materials.' This case involves the
Company's plants located in the Commonwealth of Pennsylvania,
known as the Barrett Works,, the Retort Works, the Wallaceton
Works, and the Clearfield Works #2. During the first 6 months of
1942, the Company purchased for use ' at its Barrett Works, Retort
' A motion was made by the Clay Workers to amend the formal papers to provide for a
change of name from "Industrial Union , affiliated with the C . I. O " in Case Nos RE=46,
47 and 48 , and from "United Clay Product Workers (C I. 0)" in Case No R-4157, to
"United Clay Products Workers , Local Industrial Union Nos. 1262, 1206, 1263 and 1205,"
respectively ., The Trial Examiner reserved ruling on the motion The motion is hereby
granted.
487408-42-vol 44-52
818 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
Works, Wallaceton Works, and Clearfield Works #2 , raw materials
valued at approximately $66,300.00, $34 ,000.00, $33 ,800.00 and $103,-
400.00, respectively . Of said raw materials purchased , approximately
4.7 percent was shipped to the Barrett Works , approximately 1 per-
cent to the Retort Works , approximately 3.2 ,percent to the Wallace-
ton Works , and approximately 6.6 percent to the Clearfield Works #2,
from points outside the Commonwealth of Pennsylvania . During
the same period , the Company manufactured at its , Barrett Works,
Retort Works, Wallaceton Works, and Clearfield Works - #2, finished
products valued at approximately $223,100.00 , $147,140.00 , $103,100.00
and $399,400 .00, respectively . Of said finished products manufac-
tured, approximately 7 percent was shipped from the Barrett Works,
approximately 66 percent from the Retort Works , approximately 73
percent from the Wallaceton Works, and approximately 76 percent
from the Clearfield Works #2, to points outside the Commonwealth
of Pennsylvania.
The Company admitsi for the purpose - of this proceeding , that its
Barrett Works, Retort Works, Wallaceton Works, and Clearfield
Works #2 are engaged in commerce within the meaning of the Na-
tional Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Clay Products Workers, Local Industrial Unions Nos. 1262,
1206, 1263, and 1205, are labor organizations affiliated with the Con-
gress of Industrial Organizations. They admit to membership em-
ployees 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.
III. TILE QUESTIONS- CONCERNING REPRESENTATION
On' May 9, 1942, the Company and United Construction Workers
Organizing Committee, herein called the U. C. W. O. C., an executive
committee established directly by the Congress of Industrial Organi-
zations, herein called the C. I. 0., for the purpose of organizing em-
ployees in the construction and related, industries, entered into a col-
lective bargaining contract covering the Clearfield Works #2, which,
according to its terms, was to remain in effect until March 31, 1943,
and to continue from year to year thereafter unless either party gave
written notice of termination or change at least 30 days -prior to
March 31 of any year.
On July 1, 1942, collective bargaining contracts between the Com-
pany and the U. C. W. O. C. covering the Barrett Works, the Retort
HARBISON-WALKER REFRACTORIES COMPANY 819
Works, and the Wallaceton Works, expired by virtue of notice ten-
dered the Company by the 'U. C. W. O. C. on June 1, 1942.
On June 4, 1942, certain officials of the U. C. W. O. C. and District
50, United Mine Workers of America, executed an agreement purport-
ing to affiliate with District 50, United Mine Workers of America, the
local unions established by the U. C. W. O. C. and thereby creating the
U. C. W.-U. M. W. On June 8, 1942, the Company and the U. C. W.-
U. M. W. executed a document entitled "Rider to Agreement" appar-
ently for the purpose of substituting the U. C. W.-U. M. W. for the
U. C. W. O. C. as'a party to the contract executed on May 9, 1942, be-
tween the Company and the U. C. W. O. C.2
On June 11, 1942, the C. 1. 0. announced, in substance, that the agree-
ment of June 4, 1942, was unauthorized and invalid; that the local
unions established by the U.. C. W. O. C. would be allowed to deter-
mine for themselves the question of their affiliation; and that the
U. C. W. O. C. was'dissolved.
On June 11, 1942, the membership of the Retort Works Local, ,the
local union theretofore established by the U. C. W. O. C., at the Retort
Works, voted to apply for' a charter directly from the C. I. O. This
charter was issued by the C. I. 0., and was received by the local on
June 19, 1942.
On June 12, 1942, the membership of the Wallaceton Works Local
voted to affiliate with the U. C. W.-U. M. W. On June 22, 1942, it
voted to remain affiliated with the C. I. O. On the same date, the
membership again voted and this time decided to affiliate with the
U. C. W.-U. M. MT. On July 19, 1942, at a special meeting, the mem-
bership voted to remain affiliated with the C. I. 0., and to apply for
a charter directly from the C. L O. Following the local's vote, ap-
parently on June 12, 1942, District, 50, United Mine Workers of
America issued a charter establishing Local Union 300. The C. I. O.
also 'issued a chaster which as received by the local on or about
August 1, 1942.
On June 16, 1942, the membership of the Clearfield Works #2 Local
voted unanimously to apply for a charter directly from the C. I. O.
The charter was issued by the 'C. I. O. and was received by the local
on June 19, 1942.
On June 17, 1942, the membership of the Barrett Works Local voted
to apply for a charter directly from the C. I. O. The charter was
issued by the C. I. 0., and was received by the local on July 30, 1942.
As a result'of a conference held with regard to the Company's Clear-
field Works #1 (not here involved), in which representatives of
2 The Rider to Agreement provided as follows :
It is hereby understood and agreed that the party of the second part of agreement
entered into on May 9 , 1942, for Clearfield Woiks #2 , shall be known as United Con-
struction Workers , Division of District 50, United Mine Workeis of America
820 DECISIONS'iOJ 7 ATIO\'AL.-LABOR :•RELAT1o\ S BOARD
both 'labor organizations involved herein claimed to represent a ma-
jority of the employees, conferences scheduled for the Retort Works,
the Wallaceton Works, and the Barrett' Works were cancelled. The
Company refused to recognize or negotiate with either organization
until the question concerning representation was settled by the Board.
The Company thereafter on June 22, 1942, filed its petitions herein.
In answer to the Clay Workers' request for recognition with regard ,to
the Clearfield Works #2, the Company also refused to recognize or
negotiate with either organization until the question concerning repre-
sentation was settled by the Board. The Clay Workers filed its
petition herein on July 6, 1942.
Reports prepared by the Regional Director and introduced in
evidence at the hearing indicate that the Clay Workers represents a
substantial number of employees in the units hereinafter found to
be appropriate s• I •
The U. C. W.-U. M. W. contends that it is the legitimate successor
to the U. C. W. 0. C., and that, as such, it acquired all rights of the
latter organization, including the collective bargaining- con tract of
May 9; 1942,'covering the 'Clearfield Works #2; and that since the
contract will not expire before March 31, 1943, it constitutes a bar to
a present determination of representatives. 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. Where,
The Regional Director ieported that (1) As to the Bairett Works, the Clay Workers
submitted a petition for a charter as a local industrial union ; 'affiliated with the C I 0 , and
1 authorization card. The authorization card is undated The petition bears a total of 106
signatures and is dated June 22, 1942 All of the signatures on the petition and the signa-
ture on the card appear to be genuine signatui es of per sons oo hose names are on the Com-
pany's pay roll of June 15, 1942. The pay roll contains 142 names of emplovees in the unit
hereinafter found to be appropriate
(2) As to the Retort Works, that the Clay Workers submitted 75 application cards for
membership , 1 dated June 16, 32 dated June 29, 40 dated June 30, 1942 , 2 undated All of
the 75 signatures on the cards appear to be genuine signatures of persons A hose names are
on the Company 's pay roll of June 15 , 1942 The pay roll contains 106 names of employees
in the unit hereinafter found to be appropriate
(3) As to the Wallaceton Works , the Clay workers submitted 32 application cards, 2,
dated July 19, 19 dated July 20, 1942 , 11 undated . All signatures on the cards appear to
be genuine signatures. Of the 32 cards presented , 30 are the names of persons who appear on
the Company 's pay roll of June 22, 1942 The pay roll contains 89 names of employees in
the unit hereinafter found to be appropriate
(4) As to the Clearfield Works #2, the Clay Workers submitted 112 application cards
for membership , 1 dated June 2, 7 dated July 1, 23 dated July 2, 5 dated July 3 , 1 dated
July 8 , 1942 , 75 undated All of the signatures appeai to be genuine signatures Of the
112 cards presented , 109 are names of persons who appear on the Company's pay roll of
June 15, 1942 The pay roll contains 187 names of employees in the unit hereinafter found
to be appropriate
As to the U . C. W.-U. M . W, the Regional Director further reported that it is claiming
an interest in the proceeding with regard to the Barrett Works, Retort Woiks , and Wallace-
ton Woiks, by virtue of its claimed contracts with the Company which expired July 1, 1942;
and with regard to the Clearfield Works # 2 the U C W -U M W has an interest in the
proceeding evidenced by a contract entered into between the Company , and the U C W. 0 C
which contract does not expire until March 31, 1943
'HARBISON-WALKER REFRACTORIES COMPANY ' $ 21
however, a labor organization seeks to effect a change in its designation
or organization or affiliation, the Board, as a matter of policy, issues
a rule to show cause why such change should not be permitted. Upon
cause being shown, hearings are held so that the dispute may be re-
solved. District 50 contends that Mr. A. D. Lewis, exercising the
functions delegated to him by the other members of the U. C. W. 0. C.,
was authorized to and did affiliate that organization with District 50.
The C. I. 0. ,contends that Mr. Lewis' act was beyond the scope of his
authority and that, consequently, when the U. C. W. 0. C. was dis-
solved, the employees were free to adopt any affiliation which they de-
sired. District 50 bases its claim to successorship to the defunct
U. C.' W. 0. C. upon the rider executed between the Company and the
U. C. W.-U. M. W. on June 8,1942. The C. I. 0. bases its claim upon
the action of the local on June 16, 1942, and June 19, 1942, in which
the C. I. 0. charter was accepted. Resolution of this question, in-
volving as, it does a construction of the constittitions of the C. I. 0.
and of the United Mine' Workers and of ,the charters granted to the
U. S. W. 0. C. local, is not the function of the Board., But these con-
flicting claims do establish that there is an unresolved doubt with re-
spect to the identity of the labor organization which the employees
desire to represent them 4 Under such circumstances, we hold that
the contract does not constitute a bar 'to a present determination of
representatives and we shall resolve.the dispute which has arisen by an
election by secret ballot. As we have stated, the contracts covering the
other three plants here involved have expired.
The U. C. W.-U. M. W. further argues, in substances, that the con-
flict between it and the Clay Workers is in fact a dispute as to the
jurisdiction of two organizations affiliated With. a single parent body,
and that elections at this time would tend to cause disruption and
would actually interfere with the production of war materials. The
question thus before us is whether the U. C. W.-U. M. W.,or the Clay
Workers is the duly designated representative of. the employees for the
purposes of collective bargaining. We cannot accept the position
urged by the U. C. W.-U. M. W. In the past the Board has, as a
matter of policy, refused to permit rival unions affiliated with the same
parent organization to resort to the administrative processes of the Act
for settlement of their representation d'isputes where.adequate and
appropriate machinery was available to them under 'the procedures of
the parent organization. Here it is apparent, however, that effective
4Matter of Brenizer Trucking Company, et al. and United Paving and Building Supply
Workers Local Indust, !al Union No. 1221, 0. 1. 0., issued this day.
5Matter of The Axton -Fisher Tobacco Company and International Association of Ma-
chinists, Local No . 681, and Tobacco Workers International Union, Local No 16, 1 N L R B
64; Matter of Standard Oil Company of California and International Association of Oil
Field, Gas Well and Refinery Workers of America, 1 N L R B. 614; Matter of Aluminum
Coinpany of America and Aluminum Workers Union No. 1.9104, 1 N. L. R B 530; Matter of
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolution of the existing conflict cannot be had without resorting to
the administrative processes of the Act.6 Moreover, no other remedy
is available to the employer who instituted the proceedings as a means
of determining which-of the rival unions is the collective- bargaining
representative' of the employees.
We find that questions affecting commerce have arisen concerning
the representation of the employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act'..
IV. TIIE APPROPRIATE UNITS
We find, in accordance with a stipulation of the parties, that the
following employees'of the Company constitute units appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act:
(1) All employees, except office and clerical employees, chemists,
watchmen, and those engaged in the management of the Company's
business at the,Barrett Works.
(2) All employees, except office and clerical employees, chemists,
watchmen and miners, and those engaged in the management of the
Company's business at the Retort Works.
(3) All employees, except office and clerical employees, chemists,
watchmen, miners, and those engaged in the management of the Com-
pany's business at the Wallaceton Works.'
(4) All production and maintenance employees, excluding super-
visory employees and watchmen at the Clearfield Works #2.$
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by 'elections by secret-ballot among the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tions herein, isubject to the limitations and additions set forth in the
Direction.
Curtis Bay Towing Company and Marine Engineers' Beneficial Association No. 5, etc, 4
N. L. R. B . 360; Matter of Weyerhauser Timber Company and International Woodworkers
of America, Local No. 107, Boommen and Rafters, 16 N L R B 902 ,
'Matter of Interlake Iron Corporation and Toledo Council, Committee for Industrial
Organization, 2 N. L. it . B. 1036; Matter of Federal Knitting Mills Company and Banl-
berger Reinthal Company and International Ladiee Garment Workers Union , etc, 3 N L.
R. B. 257; Matter of Harbison-11alker Refractories Company and United Construction
Workers, Div. of Dist. 50, U. M . W., affiliated with the C . I. 0.; and Industrial Union,
affiliated with C I. 0., 43 N. L it. B. 936.
4 The units found above to be appropriate are substantially identical with the units cov-
ered , in,the contracts between the TJ C. W 0 C. and the Company which expired on\July 1,
1942.
8 The unit hereinabove found appropriate is identical with that covered by the contract of
May 9, 1942.
HARBISON-WALTER REFRACTORIES COMPANY 823
DIRECTION OF ELECTIONS
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 Company, Pittsburgh, Pennsylvania, elections 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 Sixth 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 units 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 vacation or in
the active military service or training of the United States, or tem-
porarily laid off, but excluding employees who have since quit or been
discharged for cause to determine whether they desire to be repre-
sented by Unitedti Construction Workers, Division of District 50,
United Mine Workers of America, or by United Clay Products Work-
ers, Local Industrial Union No. 1262 at the Barrett Works, No. 1206
at the Retort Works, No. 1263 at the Wallaceton Works, and No. 1205
at the Clearfield Works #2, for the purposes of collective bargaining,
or by neither.
MR. WM . M. LEISERSON took no part in the consideration of the
above Decision and Direction of Elections.