Koch Sand & Gravel Co.

In the Matter of KOCH SAND & GRAVEL COMPANY and LOCAL 181, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-P 01.Decided December 19, 1940 Jurisdiction : sand and gravel excavating industry. Investigation and Certification of Representatives : existence of question : dis- pute as to appropriate unit ; election necessary. Unit Appropriate for Collective Bargaining : all employees, on the tug boat, dredge boat, and derrick boat of the Company, excluding supervisory and clerical employees; shore employees excluded in view of existing extent of organization. Mr. Isidor Kahn, of Evansville, Ind., for the Company. Mr. Arthur Watkins, of Evansville, Ind., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 17, 1940, Local 181, International Union of Operating Engineers, affiliated with the American Federation of Labor, herein called the Union, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of employ- ees of Koch Sand & Gravel Company, Evansville, Indiana, herein called the Company, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 3, 1940, the National Labor Relations Board, herein called the Board, acting pur- suant 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 December 4, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. On December 5, 1940, the Company filed a motion for a con- tinuance. On December 6, 1940, the Regional Director issued an order, 28 N. L. R. B., No. 102. 692 KOCH SAND & GRAVEL COMPANY 693 granting the motion. Pursuant to notice, a hearing was held on December 11, 1940, at Evansville, Indiana, before Arthur R. Donovan, the Trial Examiner duly designated by the Board. The Company was represented by counsel, the Union by its representative; both par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to 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 Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Henry Koch, Minnie Koch, Bert Koenig, and John Ohl, co-partners doing business as Koch Sand & Gravel Company, are engaged in digging sand and gravel from land in and adjoining the Ohio River, portions of which are in the States of Kentucky and Indiana. The Company excavates over 100,000 tons of sand and gravel annually, approximately 25 per cent of which is moved in interstate commerce. The Company admits that it is engaged in interstate commerce. II. THE ORGANIZATION INVOLVED Local 181, International Union of Operating Engineers, is a labor organization affiliated with the American Federation of Labor. It admits to membership all employees on the tug boat, dredge boat, and derrick boat of the Company, excluding supervisory and clerical employees.' III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant exclusive recognition to the Union because it contends that the unit urged by the Union is inap- propriate. A statement of the Trial Examiner at the hearing shows that the Union represents a substantial number of the employees in the unit alleged by it to be appropriate.' We find that a question has arisen concerning the representation of employees of the ,Company. ' ' The Trial Examiner's statement shows that 1 7 employees whose names appear on the Company's pay roll of December 14, 1940, have signed application cards in the Union There are approximately 17 employees in the unit alleged by the Union to be appropriate: 694 DECISIONS .9F NATIONAL LABOR RELATIONS BOARD 1V. THE EFFECT OF.THEQUESTION CONCERNING REPRESENTATION UPON COMMERCEi 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 commerce,and the free flow of commerce. V. THE APPROPRIATE-UNIT The Union urges that; all employees, on • tlie jtug boat, dredge boat, and derrick boat of the Company, excluding supervisory and clerical employees, constitute an appropriate, unit.: The Company contends that these employees, plus its shore employees, constitute an appropri- ate bargaining unit. The parties are also in disagreement as to the ,supervisory status of five named employees. , The employees in the unit urged by ,the Union. are all employed by the Company in its marine operations. There is no indication in the record that the shore employees are eligible to membership in the Union or that the Union has ever attempted to organize these employ- ees.. In view of the existing extent of organization among the em- ployees of the Company we find that the marine employees and the,,, shore employees of the' Company should not be combined in a single unit at this time. With respect to the status of the five employees in dispute, it appears that Fred ,Wainman,and, L: Johnson are employed by the, Company as engineers, Tilford Baker,,as a pumpman,,,and ,Theodore.; :., Johnson and Thomas Miller as pilots. ,,The -Company; asks, that;,,.: Wainman, L. D. Johnson, and Baker,be excluded from, the unit on the,,,, ground'that'they are supervisory employees and the Union urges that; Theodore Johnson and Miller be excluded from the unit because they are supervisory employees; , The;engiiieers, and_the.pilots are licensed by the United States Government whereas the remaining employees, are not. The.record,contains no evidence that the engineers perform supervisory. functions except that. they.. give instructions to the fire- men. ,It appears ,that; Baker's„duties- are similar 'to those of the engineers:,*,.'Although the, pilots direct the course of the. Company's tug boat, it does not appear that their, duties, are such as, to align them with. the management of the,Company.. One of the partners of the Company is in complete charge of its marines, operations and-is-con- stantly overlooking the Company's operations. ;' 'LTpder,,the e,, circum stances, we` find that :Fred..1 I .VPainmen , , L. D. Johnson , Tilford Baker , f` 713'^,"4 . ), ^, l..t 1, 1 ... k . ^• Theodore, Johnson, and Thomas Miller should be included in the unit. KOCH'SAND & GRAVEL COMPANY 695 We find' that 'all the` employees' on the tug boat, "dredge boat, and 'derr'ick boat of the Corn any; excluding supervisory and clerical em- ployees, 'constitute a unit' appropriate for the 'purposes of collective bargaining, 'an'd that such unit will insure to employeest of the Corn- ' pant the'full bene'fi't` of their right to self-org'ani`zation_and to'collective bai wining aiid'otherwise effectiiate'the policies of the Act. `' W.2 THE DETERMINATION OF` REPRESENTATIVES We find that' the`question concerning representation 'Wliich' "has arisen, can best be resolved'by an election by secret ballot. Originally, the Union andthe Company'agreed•that in the event' the Board directed an election they desired that the pay toll of December 14,"1640, be'iised to determine eligibility to vote., The' Comp,,iny'the'reafter `stated'that it agreed to this'pay roll only if employees hired' subsequent'the'reto would also'be• eligible to' vote. No reason appears 'Why the'pay 'roll •-inun'ediately'preceding the date of 'our` Direction'should notbe used to determine eligibility to vote in'the election."'We find tha the 'employ- ees of,the Company eligible to vote in the election shall be those em- ployees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of this Direction of Election herein, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause. 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 rep- resentation of employees of Koch Sand & Gravel Company, Evansville, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees on the tug boat, dredge boat, and derrick boat of the Company, excluding supervisory and clerical employees, consti- tute 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 Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the-Board to ascertain representatives for the purposes of collective bargaining with Koch Sand & Gravel Company, Evansville, Indiana, 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, act- ing in this matter as agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the employees on the tug boat, dredge boat, and derrick boat of the Company who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid 'off, but excluding supervisory and clerical employees and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Local 181, International Union of Operating Engineers, affiliated with the American' Federation of Labor, for the purpose of collective bargaining.