Walsh Refractories Corp.

National Labor Relations Board - Board DecisionsNov 7, 1941

36 N.L.R.B. 768 (N.L.R.B. 1941)

In the Matter of WALSH REFRACTORIES CORPORATION and UNITED BRICK AND CLAY WORKERS OF AMERICA, LOCAL No. 806, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-3095-Decided November 7, 1941 Jurisdiction : brick and clay products manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord union recognition ; election necessary. Unit Appropriate for Collective Bargaining : production employees, excluding supervisory, assistant supervisory, and clerical workers, machinists, and con- struction workers. Mr. Albert R. Menzi and Mr. Albert R. Stockard, of St. Louis, Mo., for the Company. Mr. H. R. Flegal and Mr. J. E. Cooper, of St. Louis, Mo., for the Union. Mr. Stanley L. Drexler, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 18, 1941, United Brick and Clay Workers of America, Local No. 806 , affiliated with the American Federation of Labor, herein called the Union , filed with the Regional Director for the Fourteenth Region ( St. Louis, Missouri ) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Walsh Refractories Corporation , Vandalia, Missouri, herein called the Company , and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. On September 27, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On September 29, 1941 , the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and 36 N. L . R. B., No. 158. 768 WALSH REtFR'ACTORIEIS CORPORATION 769 the Union. Pursuant to notice, a hearing was held' on October 1, 1941, at Vandalia, Missouri, before L. N. D. Wells, Jr., the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany and the Union were represented and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and tb introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 17, 1941, the Union filed a brief, and on October 18, 1941, the Company filed a brief. These briefs have been considered by the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Walsh Refractories Corporation, a Missouri corporation, operates, among other enterprises, a plant near Vandalia, Missouri, where it is-engaged in the manufacture and sale of fire brick and refractory products. The raw materials used in the manufacture of the Com- pany's products are obtained within the State of Missouri. During 1940 the Company sold within the State of Missouri products of its Vandalia plant valued at approximately $10,000, and shipped to places outside the State of Missouri products having a value in excess of $100,000. ' II. THE ORGANIZATION INVOLVED United Brick and Clay Workers of America , Local No. 806, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Union has requested recognition from the Company as the exclusive representative of its employees. The Company has refused to accord the Union such recognition unless and until the Union has been certified as such representative by the Board. A statement of the Regional Director introduced into evidence shows that the Union represents a substantial number of employees in the unit herein found to be appropriate., The Regional Director 's report shows that the Union submitted 81 authorization cards bearing apparently genuine signatures of persons in the unit herein found to be appropriate whose names appeared on the pay roll of the Company as of August 26, 1941 . The record indicates that the Company employs about 170 persons in the unit herein found to be appropriate. - 433118-42-vol. 36-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We -find , that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and : commerce among the several States and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The parties agree that the appropriate unit should include all production employees of the Company at its Vandalia, Missouri, plant, excluding supervisory, assistant supervisory, and clerical employees. The Company contends that approximately 20 con- ^:struction workers and about 10 machinists 2 should also be included in the appropriate unit. The Union wishes to exclude these con- struction workers and machinists. The machinists prepare dies used in the production of refractories. In addition they spend a substantial portion of their time repairing machinery and in other maintenance work about the plant. They are under a machinists' foreman and work, for the most part, in a separate section of the plant. Their wages are approximately one third higher than the wages of the production employees. The construction work- ers are also under a separate foreman. At the time of the hearing, ,they were engaged in constructing a new kiln. The majority of the construction workers had been hired for this particular job, which the Company began in August 1941.3 It is clear that the machinists and construction workers constitute groups separate and distinct from the production employees and we see no reason to combine them, under the circumstances herein pre- sented, with the production employees. There has been no previous history of collective bargaining at the plant, and no other labor organi- zation is now seeking to include the machinists and construction work- ers together with the production employees. We find, accordingly, that all production employees of the Company at its Vandalia, Mis- souri, plant, excluding supervisory, assistant supervisory, and clerical z Throughout the bearing the parties referred to "about 10" machinists. A pay roll, introduced as an exhibit, against which the parties checked the names of employees of the Company lists only 5 machinists. The Company stated at the hearing that it would retain those construction workers who desired to continue with the Company after the kiln was completed. WALSH REFRACTORMS CORPORATION 771 employees, construction workers, and machinists, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. \'I. THE DETERMINATION OF REPRLSENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The Union requested that the pay-roll period ending August 13, 1911, the date when the Union first requested exclusive recognition from the Com- pany, be used to determine eligibility to vote in the election. In justi- fication of its request, the Union stated that the Company had since "taken on new construction workers and taken on new employees continuously." No other evidence was offered to indicate whether or not the Company had hired new employees nor was any reason ad- vanced to justify depriving employees currently on the pay roll of the Company of a voice. in-the determination of a..bargaining representa- tive.4 We shall direct thitraii election by secret ballot be held among the employees of the Company in the appropriate. unit who were em- ployed during the pay-roll period immediately preceding the date of this Direction of Election, subject to the limitations and additions set forth in the Direction. Upon the 'basis of the above findings of fact and upon the entire record in the case, the 'Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Walsh"Refractories Co'rpora`tion, Vandalia, Missouri, within the meaning of. Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production employees of the Company at its Vandalia, Mis- souri, plant, excluding supervisory, assistant supervisory, and clerical employees, construction workers and machinists, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b)' of the National Labor Relations Act. 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 4In addition , it should be noted , we have excluded construction workers from the appro- priate unit. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 a part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Walsh Refractories Corporation , Vandalia , Missouri , 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 direc- tioi and supervision of the Regional Director for the Fourteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regular tions, among all production employees of the Company at its Vandalic, Missouri , plant, who were employed during the pay-roll period imme- diately preceding the date of this Direction , including employees who did not work during 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 supervisory , assistant supervisory , and clerical employees , construction workers and machin- ists, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Brick and Clay Workers of America, Local No. 806, affiliated with the American Federation of Labor, for. the purposes of collective bargaining.