Hiram Swank's Sons

National Labor Relations Board - Board Decisions

Feb 16, 1944

54 N.L.R.B. 1401 (N.L.R.B. 1944)

In the Matter of HIRAM SWANK'S SONS and CONGRESS OF INDUSTRIAL
ORGANIZATIONS, LOCAL 1285
Case No. 6-R-.871.-Decided Febriuary 16, 191f4
Mr. E. M. Custer, of Johnstown, Pa., for the Company.
Mr. J. H. Radzyminski, of Pittsburgh, Pa., for the C. I. O.
Mr. Alfred G. Wagner, of Williamsport, Pa., for the A. F. L.
Mr. Charles W. Schneider, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Congress of Industrial Organizations,
Local 1285, herein called the C. I. 0., alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Hiram Swank's Sons, Johnstown, Pennsylvania, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before James A. Shaw, Trial Exam-
iner. Said hearing was held at Clearfield, Pennsylvania, on January
11, 1944. The Company, the C. I. 0., and United Brick and Clay
Workers of America, Local No. 457, herein called the A. F. I.., ap-
peared, participated, 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. All
parties were, afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Hiram Swank's Sons, a Pennsylvania corporation having its prin-
cipal place of business -in Johnstown, Pennsylvania, is engaged in the
manufacture, sale, and distribution of refractory products at plants
located in Johnstown, Large, Clymer, and Irvona, Pennsylvania. The
54 N. L. R. B., No. 217.
1401
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company also owns and operates seven clay mines in the State of
Pennsylvania. The present proceedings involve only the No. 16 mine,
located in Lawrence Township, Clearfield County.
At the No. 16 mine the Company mines, per month, approximately
300 tons of clay, valued at $900, which is processed at the Irvona plant
into refractory products. During the past year the Company has pro-
duced at the Irvona plant finished products valued in excess of $600,000,
50 percent of which was shipped to purchasers outside the State of
Pennsylvania.
The Company stipulated that it is engaged in commerce within the
meaning of the National Labor Relations Act.
U. THE ORGANIZATIONS INVOLVED
Congress of Industrial Organizations, Local 1285, is a labor organ-
ization admitting to membership employees of the Company.
United Brick and Clay Workers of America, Local No. 457, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 23, 1943, the C. I. O. notified the Company that it
represented a majority of the Company's employees at the No. 16 mine,
and requested recognition as collective bargaining representative. The
Company declined to accord such recognition.
On April 1, 1943, the Company and the A. F., L. executed a collective
bargaining contract effective for 1 year, and providing for automatic
renewal unless notice of a desire to change the contract was given by
either party 30 days prior to the termination date. Although the
agreement does not specifically describe the bargaining unit for which
the A. F. L. was recognized, the A. F. L. contends that the contract
covers the employees at the No. 16 mine, and is a bar to an election.
Since the period for automatic renewal is imminent, and for other
reasons apparent hereinafter, we find that the contract is not a bar
to a present determination of representatives.
A statement of the Regional Director, introduced into evidence at
the hearing, indicates that both labor organizations represent substan-
tial numbers of employees in the unit hereinafter found to be appro-
priate."
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.
1 The Regional Director reported that the C I. O. submitted evidence indicating that it
-represented four of the four employees in the appropriate unit as of October 31, 1943;
and that the A. F. L. submitted evidence that it represented two of those employees.
HIRAM SWANK'S SONS
IV. THE APPROPRIATE UNIT
1403
The C. I. 0. contends that all employees at the No. 16 mine, exclud-
ing supervisory employees, constitute an appropriate unit. The A.
F. L. contends (1) that those employees are covered by the existing
contract, and (2) that the employees at the No. 12 and No. 16 mines,
excluding supervisors, constitute an appropriate unit. The Company
takes no position. ,
As indicated heretofore, the contract does not describe the bargain-
ing unit. However, the testimony indicates that it was intended by
the parties at the time of execution to cover the employees at the
Irvona and Clymer plants and at the Company's No. 3 and No. 12
mines. The latter two mines, along with No. 16, furnish clay for the
Irvona plant. The No. 12 mine also furnishes clay for the Company's
Johnstown plant whose employees are covered by a contract with the
C. 1. 0. 2
,The Company purchased the No. 16 mine about August 1, 1943, 4
months after the contract with the A. F. L. was executed. At the time
of execution of the contract, the acquisition of No. 16 was not within
the contemplation of the parties. No. 16 is located 30 miles from the
Irvona plant, and about 15 miles from No. 12. There are no other
Company mines in the vicinity.
There is no interchange of miners between No. 16 and other Com-
pany operations. Two of the four employees at No. 16 were employed
there by the Company's predecessor in title. The other two were
hired by the Company when it took over No. 16.
If the clay is satisfactory, employment at No. 16 will be increased to
12 men, at a hiring rate of 1 new employee each 4 months. However,
No. 16 is substantially an experimental project, involving the use of a
new type of clay, and its future development is dependent upon the
results achieved.
Since the acquisition of No. 16 was not within the contemplation of
the parties at the time of the execution of the contract, and in view
of the nature of operations at No. 16, as well as its separation from the
Company's other operations, we are of the opinion that the employees
at No. 16 constitute an appropriate bargaining unit.3
We therefore find that all employees at the No. 16 mine of the Com-
pany, excluding supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
2 At mine No. 15, in Somerset County, which also provides clay for the Johnstown plant,
the Company is under contract with the United Mine Workers of America.
3 Matter of Pacafie Box Co., 50 N. L. R. B. 720.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning repre%entation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate union who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
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 Re-
lations Act, and pursuant to Article III, Section 9, of the National
Labor Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Hiram Swank's
Sons, Clearfield, 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,
Sections 10 and 11, of said Rules and Regulations, among the em-
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 employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for cause,
and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by Congress
of Industrial Organizations, Local 1285, or by United Brick and
Clay Workers of America, Local No. 457, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or
by neither.