West Kentucky Coal Co.

In the Matter of WEST KENTUCKY COAL COMPANY and NATIONAL MARITIME UNION, INLAND BOATMEN'S DIVISION (C. I. 0.) Case No. R-24227.Deeided j pril 26, 1941 Jurisdiction : coal mining and shipping industry. Investigation and Certification of Representatives : existence of question: stip- ulated; election necessary Units Appropriate ' for Collective Bargaining : separate units comprising (1) all persons employed by the Company at Caseyville, Kentucky, as fleetmen or fleet watchmen, tipplemen and pumpmen, and (2) all persons employed by the Company at Paducah, Kentucky, as fleetmen, fleet watchmen, digger- men, elevator men and pumpmeu. - Wheeler and Shelbourne, by Mr. James G. Wheeler, of Paducah, Ky., for the Company. Mr. Joseph S. Freeland, of Paducah, Ky., and William L. Stand- ard, by Mr. Max Lustig, of New York City for the Union. Mr. Louis S. Penfield, of counsel to the Board. DECISION. AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On February 14, 1941, National Maritime Union, Inland Boat- men's Division ' (C. I. 0.), 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 employees of West Kentucky Coal Company, Sturgis, Kentucky, herein called the Company, and re- questing 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 March 13, 1941, the National Labor Rela- tions 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 March 19, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and upon 31 N. L R. B No 60 394 WEST KENTUCKY COAL COMPANY 395 the Union . Pursuant to notice, a hearing was held on March 27, 1941, at Paducah, Kentucky , before Arthur R. Donovan, the Trial Examiner duly designated by the Chief Trial Examiner . The Com- pany and the Union were represented by counsel and both parties participated in the hearing . Full opportunity to be heard ,- to ex- amine 'and cross-examine witnesses and to introduce evidence bearing on the issues, was afforded all parties . At the commencement-of the hearing, the Company filed a motion to dismiss the, petition for fail- ure to comply with Article III, Section 2 (a), of National Labor Relations Board Rules and Regulations-Series 2, as amended. Rul- ing thereon was reserved by the Trial Examiner . The petition filed complied substantially with the rule . The motion is hereby denied. 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 committed. The rulings are hereby affirmed. On April 10,' 1941, pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C. The Company and the Union were represented by counsel and par- ticipated in the hearing. On April 8 , 1941, the Company and the Union, respectively , filed briefs with the Board in support of their respective positions. Upon the entire record in the case, - the Board makes the following; FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY At the hearing, the Board and the Company stipulated that the Company is engaged in substantially the same type of business as is set forth in a prior Board decision,' and that there has been no mate- rial change, in the Company's business since said decision was issued by the Board. In that decision we found, and we now find,'as follows: The Com- pany, a New Jersey corporation having its principal office and place of business at Sturgis, Kentucky, is engaged in the general business of coal mining. In connection with its business the Company oper- ates a coal-loading tipple on the Ohio River near Caseyville, Ken- tucky, and facilities for the unloading and distribution of coal as well as a barge plant for the construction and repair of coal barges at Paducah, Kentucky, and at other points on the Ohio and Missis= 'Matter of West Kentucky Coal Company and Inland Boatmen's Union, C. I. 0., 17 N. L. R. B 724. ' 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sippi Rivers. The- Company owns approximately 70 coal barges which it uses to transport its coal, in addition to three steamers which are used for the purposes of towing such barges. Between 6,000 and 12,000 tons of coal are shipped downstream from the tipple at Casey- ville each month. During the year 1937 and for a number of years prior thereto, approximately 59 per cent of the coal produced by the Company was shipped,to points outside the State of Kentucky either by rail or by barge. The present proceeding is concerned solely with approximately 30 persons engaged in connection with the loading and, unloading of barges at Caseyville and Paducah, respectively. II. THE ORGANIZATION INVOLVED International Maritime Union, Inland Boatmen's Division, is a labor organization affiliated with the Congress of Industrial Organi- zations. It admits to membership employees of the Company di- rectly,engaged in loading and unloading the Company's coal barges. III. THE QUESTION CONCERNING REPRESENTATION The Company and the Union stipulated that the Company refused and refuses to recognize the Union as the statutory representative of its employees until such time as the Board has determined an appropriate collective bargaining unit, and has certified the Union as the representative of a majority of the employees in such unit.- A statement of the Regional Director, introduced into evidence ' shows that the Union represents a substantial number of employees in each of the collective bargaining units hereinafter found to be appropriate.' We find that t 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 commerce and the free flow of commerce. 2 The Regional Directer reported that 26 undated application cards were submitted to him and that all appeared to bear genuine , original signatures . No pay roll , was furnished by the Company, but the Company does not challenge the claim of the Union to have a sub- stantial interest in the present proceedings . There are approximately 11 persons in the appropriate unit at Caseyville and 20 persoirs -in the appropriate unit at Paducah. WEST KENTUCKY COAL COMPANY V. THE APPROPRIATE UNIT 397 The Union alleged in its petition that a single unit of "all elevator 1nen; diggermen and fleet watchmen at Paducah, Kentucky, and coal tipple men at Caseyville, Kentucky," constitutes a. unit appropriate for collective bargaining purposes. At the hearing and at the oral argument, the Union, although still asserting that a single unit as alleged in its petition was appropriate, stated that it would not object to separate units at Caseyville and Paducah, respectively. The Company at all times asserted that separate units, including the afore-mentioned employees, should be established at each town, and that the Paducah unit should in addition include employees driving coal trucks and working in a barge construction and repair plant there located. The Company carries coal by railroad to a tipple at Caseyville, at which point it employs approximately 11 persons to load the coal on barges to be towed down the Ohio River. These employees in- clude persons variously known as fleetmen or fleet watchmen, tipple- men, and pumpmen, and they perform numerous duties connected with the moving and loading of barges. The loaded barges are towed downstream to'various distribution points. The first distribution point is about 25 miles downstream at Rosiclare, Illinois, where the Company employs approximately 7 persons to unload and otherwise move and handle 'coal barges. About 35 miles further downstream, at Paducah, Kentucky, is another distribution point with more exten- sive, but, except for the addition of an elevator used to store coal, essentially similar unloading facilities in connection with which the Company employs approximately 20 persons. Employees at both Rosiclare and Paducah perform essentially the, same type of work as employees at Caseyville except that they unload rather than load coal. The Union has made no attempts to organize employees at Rosiclare and does not desire to represent them at the present time. At Paducah, in addition to the afore-mentioned employees, the Com- pany also employs approximately 13 truck drivers who load their trucks at the afore-mentioned elevator and deliver coal to consumers and dealers throughout the city. Also located at Paducah is a barge plant where the Company employs approximately 26 persons to con- struct and repair its coal barges. The barge plant workers are; for the most part, highly skilled and their number includes carpenters, caulkers, and shipwrights. The Union has not, attempted to organize and does not wish to represent either truck drivers or barge-plant workers for the reason that such employees perform skilled work functionally distinct from that of the other employees and are eligible for representation by certain craft labor organizations. 398 DECISIONS Or NATIONAL LABOR RELATIONS BOARD We have held in a previous case involving the Company that a unit of its employees located at one distribution point in the river is appropriate for collective bargaining purposes.3 Separation, on a geographical basis of employees at Paducah and Caseyville, whom the Union seeks to represent, would result in the establishment of sepa- rate units comprised of all employees at Caseyville and Paducah, respectively, who are directly engaged in loading, unloading, moving, or otherwise handling coal barges. Under all the circumstances we are of the opinion such units are appropriate for the purposes of collective bargaining. We find that all persons employed by the Company at Caseyville, Kentucky, as fleetmen or fleet watchmen, tipplemen and pumpmen, constitute a unit appropriate for the purposes of collective bargain- ing, and-that all persons 'employed by the Company at Paducah, Kentucky, as fleetmen, fleet watchmen, diggermen, elevator men and pumpmen also constitute a unit appropriate for the purposes of col- lective bargaining, and that such units will insure to employees of the Company the full benefit of their right to self-organization and to collective' bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning represenation which has arisen can best be resolved by elections by secret ballot. The Company and the Union stipulated that the pay roll of Febru- ary 21, 1941, should be used for the purposes of determining the eligibility of voters. We see no reason to depart from the desires of the parties. Accordingly, we shall direct that those eligible to vote in the elections shall be the-employees in the appropriate units who are-on the Company's pay roll of February 21, 1941, subject to such limitations-and additions as are set forth in our Direction of Elections herein. ` 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- sent'ation of employees of West Kentucky Coal Company, Sturgis, Kentucky, within the meaning of Section 9 (c) and Section 2 (6) and' (7) of the National Labor Relations Act. 2. All persons employed by the Company at Caseyville, Kentucky, as fleetmen. or fleet watchmen, tipplemen and pumpmen, constitute a Matter o f West Kentucky Coal Company and International Longshoremen 's Association, Local No . 15119, 24 N L R B 863. WEST KENTUCKY COAL COMPANY 399 unit, appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 3. All persons employed by the Company at Paducah, Kentucky, as fleetmen or fleet watchmen, diggermen, elevator men, and pump- men, 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 ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III,, Section 8, of National Labor Relations Board Rules and Regulations, Series 2, as amended, it is hereby DIRECTED that, as-part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining, separate elections by secret ballot shall be conducted as early as pos- sible, but not later than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of thie Regional Director for the Eleventh 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 employees in each of the following described groups whose names appear on the Company's pay roll of Febsuary 21, 1941, 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 those persons who have since quit or been discharged for cause, to determine whether or not such employees desire to be represented by National Maritime Union, Inland Boatmen's' Division, C. I. 0., for purposes of collective bargaining : (1) All persons employed by the Company at Caseyville, Kentucky, as fleetmen, or fleet watchmen, tipplemen, and pumpmen; (2) All persons employed by the Company at Paducah, Kentucky, as fleetmen or fleet watchmen, diggermen, elevator men and pumpmen. G