Harbison-Walker Refractories Co.

National Labor Relations Board - Board Decisions

Sep 3, 1942

43 N.L.R.B. 936 (N.L.R.B. 1942)

In the Matter of HARBISON-WALKER REFRACTORIES COMPANY and
UNITED CONSTRUCTION WORKERS, Div. OF D IST. 50, U. M. W., AFFILI-
ATED WITH C. I. 0.; and INDUSTRIAL UNION, AFFILIATED WITH C. I. O.
Case No. RE-41.-Decided September 3, 1942
Jurisdiction : refractory material manufacturing industry.
Investigation and Certification of Representatives : existence of question:
refusal to recognize either of two ri\ al unions until certified by the Board;
election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at one of Company's plants, except clerical and supervisory em-
ployees, chemists, and watchmen ; agreement as to.
Practice and Procedure : Board assumed jurisdiction where resolution of con-
flicting claims of rival unions affiliated with the same parent body could not be
had without resort to administrative processes of the Act.
Mr. Henry Shore, for the Board.
Mr. Frank G. Smith, of Clcarfield, Pa., and Mr. F. H. Atwood, of
Pittsburgh, Pa., for the Company.
Mr. Gardner Wales and Mr. Cecil Owen, of Washington, D. C., and
Mr. Peter Ferrara, of Indiana, Pa., for the U. C. W.-W. M. W.
Mr. Eugene Cotto^i, of Washington, D. C., and Mr. Anthony J.
Federoff and Mr. John H. Radzyminski, of Pittsburgh, Pa., for the
C. I. O.
Mr. Joseph Aveni, Mr. Joseph illaioriana, Mr. Raymond D. Rowles,
and Mr. Anthony V. Ortasic, of Clearfield, Pa., for Local 1196.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Harbison-Walker Refractories Com-
pany, Pittsburgh, Pennsylvania, herein called the Company, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice,before
Robert M. Gates, Trial Examiner. Said hearing was held at Clearfield,
Pennsylvania, on July 3, 1942. The Board; the Company; United
Construction Workers, Division of District 50, United Mine Workers
of America, herein called U. C. W.-U. M. W.; United Clay Products
Workers, Local Industrial Union #1196, affiliated with the C. 1. 0.,
43 N L R. B, No. 161.
936
HARBISON-WALKER REFRACTORIES COMPANY 937
herein called Local 1196; and the Congress of Industrial Organiza-
tions, herein called the C. I. 0., 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
Trial Examiner's rulings made at the hearing are free from prejudicial
error' and are hereby affirmed.
Pursuant to notice, a hearing was duly held before the Board in
Washington, D. C., on August 6, 1942, for the purpose of oral argu-
ment. The Company, Local 1196, and the C. I. 0., appeared and
participated in the argument.
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, a Pennsylvania corpora-
tion having its principal office in Pittsburgh, Pennsylvania, is en
gaged in the manufacture of fire brick and other refractory material.
The Company operates plants and mines in Pennsylvania, Texas,
Alabama, Indiana, Missouri, Kentucky, Ohio, Wisconsin; and Geor-
gia. This case involves the Company's plant known as the Clear-
field 1 Works'at Clearfield, Pennsylvania. For the first 6 months
of 1942 the total value of raw materials and supplies used by the
Company at its Clearfield #1 Works was approximately $148,000,
of which approximately 3.percent represented raw materials and sup-
plies purchased and received from outside the Commonwealth of
Pennsylvania. 'During the same period the value of finished products
sold and shipped by the Company from its Clearfield #1 works was
approximately $466,000, of which approximately 65 percent repre-
sented finished products sold and shipped to points outside the Com-
monwealth of Pennsylvania. The Company admits, for the pur-
pose of this proceeding, that it is engaged in commerce within the
meaning of'the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Construction Workers, Division of District 50, United Mine
Workers of America, is a labor organization admitting to mem-
bership employees of the Company. District 50, United Mine Workers
of America, is affiliated with the C. I. O.
United Clay Products Workers, Local Industrial Union #1196,
affiliated with the C. I. O., is a labor organization admitting to mem-
bership employees of the Company.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On July 1, 1942, a contract between the Company and United Con-
struction Workers Organizing Committee, an executive committee
established directly by the C. I., 0., for the purpose of organizing
employees in the construction and related industries, herein called
U. C. W. O. C., was terminated, by its terms, upon notice tendered
the Company by U. C. W. O. C. on June 1, 1942.
On June 4, 1942, prior to the termination date of the contract, cer-
tain officials of U. C. W. O. C. and District 50, United Mine , Workers
of America, had executed an agreement purporting to affiliate with
District 50, United Mine Workers of America, the local unions estab-
lished by U. C. W. O. C. and thereby creating U. C. W.-U. ' M. W.
On June 11, 1942, the C. I. O. announced, iii substance, that the agree-
ment of June 4, 1942, was unauthorized and invalid; that the local
unions established by U. C. W. O., C. would be allowed to determine
for themselves the question of their affiliation; and that U. C. W. O. C.
was dissolves'.. On June 12, 1942, a majority of the members of Local
#266, United Construction Workers, the local union theretofore estab-
lished by U. C. W. O. C. at the Clearfield #1 Works, herein called
Local #266, voted to apply for a charter directly from the C. I. O.
On June 15, 1942, representatives of the Company met with repre-
sentatives of U. C. W.-U. M. W. and Local, #266. Both labor organ-
izations claimed to- represent a majority of the employees. The Com-
pany replied that, under the circumstances, it would refuse to recognize
or negotiate with eithei until the questioir concerning representation
was settled by the Board. The Company filed its petition herein on
-June 17, 1942, .
Also, on June 17, 1942, the C. I. O. issued a charter establishing
Local 1196 and according it the same jurisdiction theretofore exercised
by Local #266. Following issuance of this charter, more than 90
percent of the members of Local #266 applied for membership in
Local 1196. The extent of the membership, if any, remaining with
Local #266, does not appear from the record.
U. C. W.-U. M. W. claims that Local #266, whose charter is still
outstanding, is affiliated with U. C. W.-U. M. W. by virtue of the agree-
ment of•June 4, 1942, and that a majority of the employees desire to
be represented by U. C. W.-U. M. W. Local 1196 denies that by the
agreement of June 4, 1942, Local #266 became affiliated with U. C. W.-
U. M. W. and urges that, in any event, a majority of the employees
have now shifted their membership from Local # 266 to Local 1196.
A report prepared by the Regional Director, and introduced in
evidence at the hearing , indicates that. Local 1196 represents a sub-
HARBISON-WALKER 'REFRACTORIES COMPANY .939
stantial number of employees in the unit hereinafter found' to be
appropriate.
The question thus befoi e us is whether'-U. C. W.-U. Al. W. or Local
1196 is the duly.designated representative of the employees in question
for the purposes of collective bargaining. U. C. W.-U. Al. W.-argues,
in_ substance, that, since the conflict between it and Local 1196 is in
fact a dispute as to the jurisdiction of two organizations affiliated
with a single parent body, the Board should not intervene. We cannot
accept the position urged by U: C. W.-U. Al. 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 disputes - where
adequate and appropriate machinery was availale to them lender the
procedures of the parent organization.- At oral argument in, the
present case, counsel for the C.-T. O. stated that the C. I. O. had at-
tempted to settle the dispute here involved but that U..C. W.-U. Al. W.
had refused to recognize the'superior authority of the parent body. It
is consequently; apparent that ,effective resolution of the -existing con-
flict cannot be had without resort to the administrative processes of the
Act.3 Moreover, no other remedy is -available to,the employer, who
instituted this proceeding as a means of detern-lining which of the rival
unions is the collective bargaining representative of the employees
involved.
We find that a question affecting commerce has arisen concerning the
representation of the employees'of the Company within the meaning
of Section 9 ('c), and Section 2 (6) and (7) of the Act.
IV. TILE APPROPRIATE UNIT
We find, `in accordance with a stipulation of, the parties, that all
production and maintenance employees, except clerical and super-
' The Regional Dii ector reported that (a), Local 1196 submitted to hint 252 application-
foi-membeiship cards. all bearing apparently genuine, original signatures; (b) 218 of
the-cards were dated between Tune 17 and 27, 1042, and 36 were undated, (c) 239 of
the cards bole signatures corresponding with names on the Company's pay roll for June
1.i, 1942, ishich lists 2,52 employees in the unit alleged in the petition to be appiopiiate
The Regional Director further iepoi ted that U C W -U M W, which submitted no
pioof of representation to him, clanned an interest in the proceeding by virtue of the
contract between the Company and U C W 0 C
2 Matter of The Axton-Fisher Tobacco Company and Intei national Association of
Machinists, Local No 681, and Tobacco TVorheis International Union, Local No 16,
1 N L R B 604; Matte) of Standard Oil Coiripanq of California and International
Association of Oil Field, Gas (Nell and Refinery Workers of America, 1 N L R B 614;
Matter of Aluminum Company of eliiieiica and Aluminum 11'orlems union No 1910),
1 N L R B 530 . I1littei of Curtis Zia Tominq Company and Mar ice Engineers' Ilene.
fmcial A sociation No 5, etc , '4 N L R 11 1360 ; Matter of Weyerhaeuser Timber Company
and International 11'oodnaoilers of America, Local No 107, Booninnen and Rafters, 16
N L R B 902
3 platter of, Intel lane hors Coi partition and Toledo Council, Coni,m ittee for Industrial
'Oigantieatioa, 2 N L. R B 1036, Mallet of Federal Knitting lulls Company and Bam,-
berger Reinthal Company and International Ladies Garment Woihers Union, etc., 3
N L R B 257. -
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visory employees, chemists and watchmen, at the Clearfieldi#1 Works
of the Company constitute a unit appropriate for the purposes of col-
lective 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 Elec-
tion herein, subject to the limitations and additions set forth in said
Direction.
N
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
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, 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 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 employees -%vlio did not work during
said pay-roll period becausethey 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 they desire to be represented by United
Construction Workers, Division of District 50, United Aline Workers
of America, or United Clay Products Workers, Local Industrial Union
#1196, affiliated with the C. I. 0., for the purposes of collective bar-
gaining, or by neither.
i The unit found above to be npproprinte is substantially identical with the unit covered
in the contractVbetween U. C. W. O. C. and the Company.