Hiram Swank's Sons

National Labor Relations Board - Board Decisions

Oct 16, 1942

44 N.L.R.B. 1270 (N.L.R.B. 1942)

In the Matter of HIRAM SWANK'S SONS and UNITED BRICK WORKERS
LOCAL INDUSTRIAL UNION No. 1230 (C. I. 0.)
Case No' R-4351.-Decided October 16, 194.
Jurisdiction : refractory products manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; contract rind 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
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees at one of Company's plants, excluding clerical and supervisory
employees ; stipulation as to.
Mr. Philip N. Shettig, of Ebensburg, Pa., for the Company.
Mr. A. B. Martin, of Johnstown, Pa., for the C. I. O.
Mr. Peter Ferrara, of Indiana, Pa., for'Distriet"50.
Mr. Fred B. Hughes, of Clearfield, Pa., for the A. F. of L.
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATE1IENT OF THE CASE -.
Upon petition duly filed by United Brick Workers Local Industrial
Union No. 1230 (C. I. 0.), herein called the C. I. 0., alleging that a
question affecting commerce hadxarisen:,concer-iaingthe .representation,:
of employees of Hiram Swank's Sons, Johnstown, Pennsylvania,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Henry Shore,
Trial Examiner. Said hearing was held at Johnstown, Pennsylvania,
on September 29, 1942. , The Company, the C. I. 0., United Construc-
tion Workers Division of District 50, United Mine Workers of Amer-
ica, herein called District 50, and United Brick & Clay Workers of
America. (A. F. L.), herein called the A. F. of L., appeared, partici-
pated, and were 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:
44 N: L. R. B, No. 238.
1270
HIRAM SWANKS SONS
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
1271
Hiram Swank's Sons, a Pennsylvania corporation, having its princi-
pal office in Johnstown, Pennsylvania, is engaged at its plants in vari-
ous psrts of the Commonwealth of Pennsylvania, in the manufacture
of fire clay refractory products. The Company also owns- and oper-
ates several clay mines in the Commonwealth of Pennsylvania. This
case involves the Company's plant located at Johnstown, Pennsyl-
vania. During the first 6 months of 1942, the Company purchased for
use at its Johnstown plant raw materials valued at approximately
$50,787.00, all of which were purchased and mined within the Com-_
monwealth of Pennsylvania. During the same period, the Company
manufactured at its Johnstown plant finished products valued, at
approximately $324,007.00, of which approximately 47 percent was
shipped ;to^,points.outside,,the Commonwealth of Pennsylvania. The
Company admits that, in its operations at the Johnstown, Pennsyl-
vania, plant, it is engaged in,commerce within the meaning of the
National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Brick Workers Local Industrial Union No. 1230, 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 member-
ship employees of the Company.
United' Brick & Clay Workers of America, affiliated with the
American,,] ederation of Labor, is a labor organization,admitting to
niemb'ersliip employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
I
On May 8, 1941,.the Company-and United Construction Workers
Organizing Committee, herein, called the U. C. W. O. C., entered
into a collective bargaining contract which, according to its terms,
was to remain in effect until March 31, 1942, 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 February 25, 1942, the U. C. W. O. C., notified the Company of
its desire to meet with the Company for negotiations for a supple-
mentary agreement. A conference was scheduled for March 24, 1942.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Demands for an increase in wages and a vacation plan were sub-
mitted to the Company. No definite result was reached, and the
U. C. W. O. C. and the Company met again sometime in April 1942.
The Company at that time granted the demand with regard to the
vacation plan, which became effective May 4, 1942. The Company
informed the committee that with regard to the demand for an in-
crease in wages, it would await the War Labor Board's decision
concerning the Little Steel Industry. It was understood that as
soon as the decision was,handed down, the Company and the negotia-
ting committee would meet for further negotiation concerning wages.
On June 4, 1942, certain officials of the U. C. W. O. C. and District
50, United Mine Workers of America, executed an agreement' pur-
porting to affiliate with District 50, United Mine Workers of Amer-
ica, the local unions established-by the U. C. W. O. C. and thereby
creating United Construction Workers Division of District 50. On
June 9, 1942, the Company and District 50 executed a document en-
titled "Rider to Agreement," apparently for the purpose of 'subs'ti-
tuting District 50 for the U. C. W. O. C. as a party to the contract
executed on May 18, 1941, between the Company and the U. C.
W.. O. C.1 This rider was executed without the knowledge of the
local.
On June 11, 1942, a conference was held in Indiana, Pennsylvania,
to which officers of each local were invited. The affiliation with the
United Mine Workers of America, and the agreement of June 4,
were explained to the, officers- and a request was made that each
local either/approve or disapprove the action taken. Three of the
of icers of the local herein involved attended that conference. On
,June 11, 1942, the Congress of Industrial.Organizatiols announced,
in substance, that the agreement of June 4, 1942, between certain
officials of the U. C. W. O. C. and District 50, United Mine Workers
of America, was -unauthorized and invalid; that the local unions ,
°established by the U. C. W. O. C. would be allowed to determine for
themselves the question of their affiliation; and that the U. C. W. O. C.
was dissolved. Thereafter, on June 16, 1942, the members of the
former local of the U. C. W. O. C. voted unanimously to apply for
a new charter directly from the Congress of Industrial Organizations.
On June 29, 1942, the local received the charter creating the United
Brick Workers as Local Industrial Union, No. 1230 affiliated di-
rectly with the Congress of Industrial Organizations.
On July 17, 1942, District 50 notified the local's president that,
since the War Labor Board had rendered a decision with respect to
'The Rider to the Agreement provides as follows : "It is hereby understood and agreed
that the party of the second `part of Agreement entered into on May 8 , 1941; for Plant at
Johnstown, Pennsylvania, shall be 'known as United Construction Workers Division of
District 50, United Mine Workers of America."
HIRAM SWANK'S SONS 1273
the wage issue in the "Little Steel" case, District 50, as the duly,
designated bargaining agent, was prepared to begin negotiations with
the Company as soon as the local's members, decided to do so. On
July 22, 1942, the local addressed a reply in which it, informed Dis-
trict, 50 that the local, by unanimous vote, "wanted nothing what-
soever to do with the United Construction Workers Division of Dis-
trict 50, United Mine Workers of America." No further negotia-
tions have been conducted with the Company.
A report prepared by the Regional Director and introduced in evi-
dence at the hearing, indicates that the C. I. O. represents a substan-
tial number of employees in the unit hereinafter found to be
appropriate.2
District 50 contends that it is the successor to the U. C. W. O. C.
and that, as such, it acquired all the rights of the latter organization,
including the collective bargaining contract of May 8, 1941, and that
since the contract was never terminated but negotiations were held
solely for the purpose of readjusting wages, 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.
District 50 contends that A. D. Lewis, chairman of the U. C. W. O. C.,
exercising the functions delegated to him by the other members of
the U. C. W. O. C., was authorized to and did affiliate that organiza-
tion with District 50, United Mine workers of America, and conse-
quently claims that the rider executed between the Company and
District 50 on'June 9, 1942, effectively substituted District 50 for the
U. C. W. O. C.,as the contracting union. The C. I. O. contends that
Mr. Lewis' act was beyond the scope of his authority and that, con-
sequently, when the U. C. W. O. C. wa"s dissolved,, the employees,
we're free to adopt any affiliation which they desired, and that the
employees affiliated with the Congress of Industrial Organizations
by their unanimous action in applying for and thereafter accepting
a charter from that organization. Resolution of this question, in-
volving as it does a construction of the constitutions of the C. I. O.
and of the United Mine Workers and of the charters granted to the
2 The Regional Director reported that the C . I 0 presented 165 application cards for
membership , dated between July 5 and 26, 1942 . All of these cards bear apparently genu -
ine signatures . Of the 165 cards submitted , 156 bear names of persons whose names
appear on the Company 's pay , roll of August 15, 1942, which lists 161 employees in the
unit hereinafter found to be appropriate The Regional Director further reported that the
A F. of L . presented 78 application cards for membership dated in February 1941. All 78
cards bear apparently genuine signatures Of the 78 cards submitted , 56 are of persons
whose names appear on the Company 's pay roll of August 15, 1942 Fifty-five. persons
appear to have signed membership cards in both the C I. 0 and the A P of L The
Regional Director further reported that District 50 claims an interest in the proceeding
evidenced by a contract with the Company executed on May 8, 1941.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. C. W. O. C. local, 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 to represent them.3 Under such circumstances, we hold that
the contract'does not constitute a bar to a present determination of rep-
resentatives and we shall' resolve the dispute fwhich, has'arisen' by an
election by, secret ballot.
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.
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 Johns-
town, Pennsylvania, plant, excluding clerical and supervisory em-
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-
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations' Board: Rules, and, Regulation=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 Hiram Swank's
Sons, Johnstown, Pennsylvania, 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 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 em-
3Matter of Brenizer Trucking Company, et at and United Paving and Building Supply
Workers, Local Industrial Union No. , 1221, C. 1. 0., 44 N. L R. B S10 ; Matter of
Harbison -Walker Refractories Company and United Clay Products Workers, Local Industrial
Union No 1205, etc., 44 N. L . R. B. 816.
HIRAM SWANK 'S SONS 1275
ployees 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 repre-
sented by United Brick Workers Local Industrial Union No. 1230
( C. I. 0.), or by United Construction Workers Division of District
50, United Mine Workers of America, or by United Brick & Clay
Workers of America ( A. F. L.) for the purpose of collective bargain-
ing, or ' by none of these organizations.