Frazier Mining Co.

National Labor Relations Board - Board Decisions

Nov 2, 1942

45 N.L.R.B. 318 (N.L.R.B. 1942)

In the Matter of J. S . FRAZER , AN INDIVIDUAL DOING BUSINESS UNDER
THE NAME OF FRAZIER MINING COMPANY and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA
Case No. R-4356.-Decided November 2, 1942
Jurisdiction : mining industry.
Investigation and Certification of Representatives : existence of question : failure
of Company to recognize union on request ; clection necessary. -
Unit Appropriate for Collective Bargaining : all employees, excluding the work-
ing foreman.
Mr. Johz i A. Moore, of Marion, Ky., and Mr. J. M. Blayney, •1r.,
and Mr. Harold S. Cook, of St. Louis, Mo., for the Company.
Mr. David Hunter, of Marion, Ky., for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by District 50, United Mine Workers of
America, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
J. S. Frazer, an individual doing business under the name of Frazer
Mining Company, Mexico, Kentucky, herein called the Company,!
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Robert D. Malarney, Trial Examiner.
Said hearing was held at Marion, Kentucky, on October 7, 1942. The
Company and the Union appeared, participated, iind 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. On October 22, 1942, the Company filed a brief
which the Board has considered.
Upon the entire record in the case, the Board makes the follow-
ing:
1 The petition and other formal papers in this proceeding aie hereby amended to disclose
the correct name of the Company.
45 N. L. R B., No. 50.
318
J. S. FRAZER
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
319
J. S. Frazer, an individual doing business under the name of Frazer
Mining Company, operates the Pigmy Mine, a fluorspar mine near
Mexico, Kentucky. The mine is owned by Pigmy Corporation, a
subsidiary of Rosiclare Lead and Flourospar Mining Company. Un-
der contract - with Pigmy Corporation, Frazer mines the ore 2 and
processes it at the mine for use in the production of steel and alumi-
num. Frazer is paid for his mining and processing services accord-
ing to the tonnage of ore which he handles. During the year ending
October 1, 1942, the amount of ore handled by Frazer amounted to
about 7,000 tons and Frazer's gross receipts exceeded $50,000. All
ore mined and processed by Frazer is sold by Pigmy Corporation to
Rosiclare Lead and F11lorspar Mining Company, by which it is sent
from Frazer's mill at the mine to customers, practically all of whom
are located outside Kentucky. We find that Frazer, contrary to his
contention, is engaged in commerce within the meaning of the Na-
tional Labor Relations Act.3
II. THE ORGANIZATION INVOLVED
District 50, United Mine Workers of America; is a labor organiza
tion, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 25, 1942, the Union, by letter, asked that the Company
recognize the Union as sole bargaining representative of its employees.
At the time of the hearing the Company had not yet recognized the
Union.
1'I'he greater part of the ore from the Pigmy Mine is brought to the surface through
the agency of Shelley Patton, an individual to whom Fiazer has subcontracted such work
See Mattel of Shelley Patton and District JO, United Mine Workers of America, 45 N L
R B 315, issued this day
Cf l 'ainblatt v N L R B , 306 U S 001 ; rev'g 98 F (2d) 015 (C C A 3), setting
aside Mattel of Beilaniin Fainblatt and Mailotie Fainblatt, Individuals, doing business
under the firm tames and styles of Sotnerstlle illanufactuitag Company and Somerset
Dfanufacturing Company and International Ladies' Garment Workers' Union, Local No
139, 1 N L It B 864 , 4 N L R B 598 ; Santa Cruz Fruit Packing Co. v N L. R B, 302
U S 453, aff'g 91 F (2d) 790 (C C A 9), enf'g as mod. Matter of Santa Cruz Fruit
Packing Company, a corpordtion and Weighers, Warehousemen and Cereal Workers, Local
18 try, International Longshoremen's dssociatton, 1 N L R B 454; Sunshine Mining
Co V N L R B, 110 F (2d) 780 (C C A 9), enforcing Matter of Sunshine Mining Cont-
pany and International Union of Mine, Mill and Smelter Workers, 7 N L. R. B 1252
cert denied 312 U S 678.
`320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A statement prepared by the Regional Director and, admitted into
evidence at the hearing indicates that the Union represents a sub-
stantial number of employees in the appropriate unit.4
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
The Union contends that all employees of the Company except
Virgil Baird constitute an appropriate bargaining unit. The Com-
pany would include Baird in the unit.
Employees of the Company spend their time chiefly in prospecting
for ore or in processing the mined ore at the mine.5 Employees do
,not generally shift from prospecting to processing work except in
emergencies. All employees perform physical work. Baird is the
highest paid employee of the Company. He performs physical work.
At the commencement of the hearing, Frazer characterized Baird as
a "supervisory" employee, and Baird is regarded by other employees
as their foreman. Frazer is not continuously at the mine, and Baird',
is the most experienced employee. We find that Baird is a working
foreman and we shall exclude him, as a supervisory employee, from
the bargaining unit.
We find that all employees of the Company, excluding the working
foreman, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act. -
P. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election, subject
to the limitations and additions set forth therein.
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
* The Union submitted to the Regional Director 13 applications , 6 dated in November
1941 and the remaining dated in 1942, 10 of which appear. to bear genuine signatures
of employees on the Company 's pay roll , of August 28, 1942. This pay roll lists 19
emloyees.
6 As noted in footnote 2, above, most of the ore processed by Frazer-,is mined and
brought to the surface through the agency of Shelley Patton, with whom Frazer contracts
for such services. Miners employed by Patton are not directly concerned herein, since the
Union does not contend at this time that the bargaining unit should include all the
workers through whose efforts the ore is mined and processed for production purposes.
J. S. FRAZER 321
Act, and pursuant to Article III, Section 9, 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 purposes of collective bargaining with J. S. Frazer, an
individual doing business under the name of Frazer Mining Company,
Mexico, Kentucky, 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 Eleventh Region, acting in this matter as agent for
the National Labor Relations Board and subject to Article III, Sec-
tion 10, of said Rules and Regulations, among all employees of the
Company within 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 dur-
ing such 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 employees who have since quit or been
discharged for cause, to determine whether or not they desire to be
represented by District 50, United Mine Workers of America, for the
purposes of collective bargaining.
MR. GERARD D. REUa.Y took no part in the consideration of the above
Decision and Direction of Election.
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