Harbison-Walker Refractories Co.

National Labor Relations Board - Board Decisions

Oct 16, 1942

44 N.L.R.B. 1280 (N.L.R.B. 1942)

In the Matter Of HARBISON-WALKER REFRACTORIES Co. and NATIONAL
COUNCIL OF GAS, COKE, AND CHEMICAL WORKERS, LOCAL 12120,
INDEPENDENT
Case No. R--4273.-Decided 0etober 16, 1942
Jurisdiction : refractory products manufacturing industry. y
Investigation 'and Certification of Representatives : existence of question : re-
fusal to accord petitioner recognition until certified by the Board ; 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 representative ; election
necessary. I
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees at one of Company's plants, exclusive of supervisors and clerical em-
ployees ; stipulation as to.
Mr. Robert T. Drake, for the Board. I . .^
Mr. H. TV. Gethin, of East Chicago, Ind., for the Company.
Mr. Joe Norrick, of East Chicago, Ind., for the National Council.
Mr. Charles A. Kistler, of Hammond, Ind., for the U. C. W.-U. M. W.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by National Council of Gas, Coke and
Chemical Workers, Local 12120, Independent, herein called the Na-
tional Council, alleging that a question affecting commerce,had arisen
concerning the representation of employees of Harbison-Walker Re-
fractories Co., East Chicago, Indiana, herein called the Company,
the National Labor Relations Board provided for an appropriate hear-
ing upon due notice before Robert M. Gates, Trial Examiner. Said
hearing was held at Chicago, Illinois, on September, 11, 1942.. The
Board, the Company, the National Council, 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
44 N L. R B., No 240
1280
HARBISON-WALKER REFRACTORIES co. 1281
afforded full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the issues. 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 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,
distribution, and sale of high temperature fire-brick. This case in-'
volves the Company's plant-located at East Chicago, Indiana. During
the period between April 1, 1942, and June 30, 1942, the Company
purchased for use at its East Chicago plant raw materials valued at
approximately $162,923.00, of which approximately $139,559.00 repre-
sents raw iaterials originating outside the State of Indiana. During
the same period, the Company manufactured at its East Chicago plant
finished products valued at approximately $549,671.00, of which about
50 percent represents finished products sold and shipped to points out-
side the State of Indiana.
H. THE ORGANIZATIONS INVOLVED.
National Council of Gas, Coke and Chemical Workers, Local 12120,
Independent, is an unaffiliated labor organization admitting to mem-
bership employees of the Company.
United Construction Workers Division of District 50, United Mine
Workers of America, is a labor organization admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Shortly before the filing of the present petition, the National
Council requested that the Company, bargain collectively. The
Company, however, declined to bargain until after the question of
representation had been determined by the Board.
The U. C. W.-U. M. W. contends that the present proceeding is barred
by reason of a contract alleged to be outstanding between the Company
and the U. C. W.-U. M. W. The contract relied upon is an agree-
ment • dated April 30, 1942, between the Company and "Local 111,
United' Construction Workers Organizing Committee, or successors,
affiliated with the Congress of Industrial Organizations" and pro-
vides for an exclusive bargaining agency for a period of 1 year from
487498-42-vol. 44-81
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 1, 1942, subject to an automatic renewal clause which is not-
material in the present instance.
Subsequent to the signing of this agreement, the National Policy
Board of the United Construction Workers, at a meeting held on
May 29, 1942, voted to change the affiliation of the United Construc-
tion Workers from the C. I. O. to the United Mine Workers, ' at or
about which time the United Construction Workers Organizing Com-
mittee was dissolved. Thereafter on June, 4, 1942, the executive offi-
cers of the United Construction Workers entered into an agreement
with District 50 of the United Mine Workers, under the terms of
which the United Construction Workers became an affiliate of Dis-
trict 50 with the title' "United Construction Workers Division of
District 50, U. M. W. of A." Thereafter the Company-and "United,
Construction Workers Division of District 50, U. M. W. of A."
executed a rider to the agreement of April 30, 1942, to the effect that'
the party of the second part, (the Union) should be known as
"United Construction Workers Division of District 50, United Mine
Workers of America." The rider was agreed upon without the
knowledge or consent of Local 111, which was the Local named in
the contract of April 30, 1942. 1
The signing of this rider was reported at the meeting of Local 111,,
held on June 14, 1942, on which occasion a motion was made and car-
ried that all officers be instructed to sign no transfer affecting the Local
Union and to withhold the per capita tax for 30 days. On June 29,
1942, at a regular meeting of the Local attended by some 50 or 60 mem-
bers it was voted unanimously by those present to withdraw from the
United Construction Workers and to remain in the C. I:: O. At the_
same time, there was adopted a resolution 1 that the Local sever its rela-
tions with the United Construction Workers and make immediate ap
plication for a charter 2 of affiliation from the National Council.
Thereafter, the Local, as an affiliate of the National Council, attempted
to secure from the Company recognition as the exclusive collective bar-
gaining agency under the contract of April 30 1942. The Company,
however,' refused to recognize the National Council or any other union
until such time as the legal bargaining agent had been determined by,
the Board. '
As a general rule, the Board will not proceed with an investigation.
as' to representation here there exists a valid contract, having a
reasonable period to run, with an active labor orgahizailon of clearly
established identity. The U. C. W.-U. M. W. contends that the change
'T;-e,resolution contained a saving clause to the effect that this Local union and all
rta membership shall continue in existence and operation in accordance with its rules and
by-laws heretofore adopted excepting only such changes as may be necessary, in connection
with the foregoing provisions of this resolution and this Local shall : retain and continue'
all of its assets.and liabilities and all rights vested in it by contiact,or law
s The charter was received from the National Council on or about July, 13,1942.
1 > , r I i- .
HARBISON-WALKER REFRACTORIES COMPANY 1283
of affiliation of the contracting union from the C. I. O. to, District
50 ^vas-proper and consequently, that the rider to the agreement effec-
tively substituted the U. C. W.-U. M. W. as the contracting union.
The National Council contends that the change in affiliation was not
authorized, and that the employees were free to select the National
Council and to sever their relations with District 50.' Resolution of
this question, involving as it does a construction of the constitutions
and charters of the organizations involved, is not the function -of the
Board. But these conflicting claims do establish that there is an
unresolved doubt with respect to the identity of the labor organization
which the employees desire as their representative. Under the cir-
cumstances, therefore, we hold that the contract does not constitute
a bar to the present determination of representatives, and we shall
resolve the dispute which has arisen by an election by secret ballot.3
A statement prepared by, the Regional Director and introduced in
evidence at the hearing indicates that the National Council represents
a substantial number of employees in the unit hereinafter found to be
appropriate.4
. - We find that a question affecting commerce has arisen concerning, the
representation of employees within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
IV. THE APPROPRIATE UNIT
We. find, in accordance with a stipulation of the parties,-that all
production and maintenance employees of the 'Company at its East
Chicago, Indiana, plant, exclusive of supervisors and clerical em-a
ployees, constitute a unit appropriate for the purposes, of collective
bargaining within the meaning of Section 9 (b) of the Act.
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-
See Matter of Brenizer Trucking Company, et at. and United Paving and Building Supply
R orkei s, Local Industrial Union No 1221, C 1. 0, 44 N L R B , No 810; Matter of
Harbison-1Vatker Refsaetorses Company and United Clay Products IVorkci s, Local Industrial
Union No 1 ?05, etc , 44 N. L R B. 816
4The Regional Director reported that the National Council had submitted petitions
signed by 383 persons, stating that they had withdrawn from nienibership in and of li.ition
with the United Construction Workers Organizing Committee and were applying for mem-
bership in the National' Council, which was authorized to represent then in all matters
concerning wages, hours , and other conditions of employment ; that of the 383 signatures,
all of which appeared to be genuine, 341 are the names of persons whose names are on
the Comp i ny 's seniority list of July 18, 1942 , covering the alleged appropriate unit and
containing 440 names ; that the petitions bear no dates but according to affidavits were cir-
culated for signatures between July 24 and 27, 1942, and that the U C. w.-U M W.
contends that it is the second party to the agreement between the Company and the
Union , and bases its claim of interest on this agreement.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll period immediately preceding the date of our Direction of Elec=
tion 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 Rela-
tions Act , 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 to ascertain representa-
tives for the purpose of collective bargaining with Harbison -Walker
Refractories Co., East Chicago, Indiana, 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 super-
vision of the Regional Director for the Thirteenth 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 the pay-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 temporarily laid off, but excluding any who have
since quit or been discharged for cause , to determine whether they
desire to be represented by National Council of Gas, Coke and Chemi-
cal Workers , Local 12120, Independent , or by United Construction
Workers Division of District 50, United Mine Workers of America,
for the - purposes of collective bargaining , or by neither.
MR. Wi'r. M. LEISExsoN took no part in the consideration of the
above Decision and Direction of Election.