Railways Ice Co.

In the Matter of RAILWAYS ICE COMPANY and STEEL WORKERS ORGANIZING COMMITTEE, C. I. O. Case No. R-3290.-Decided December 03, 1941 `Jurisdiction : ice manufacturing and sales industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition unless certified by the Board; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees'at both the Nonconnah and Yale plants of the Company at Memphis, Tennessee, excluding clerical and supervisory employees, held to constitute an appropriate unit notwithstanding contention of Company that the employees at each plant should constitute a separate unit, where the plants are only nine miles apart, they are both under one local manager, production and maintenance employees at each are paid at approximately the same hourly rate, and in view of the fact that the petitioner admits to membership and has organized employees at both plants, and there are no other labor organiza- tions seeking to represent employees in either plant. Mr. John Vorder Br uegge and Mr. Vincent Vorder Bruegge, of Memphis, Tenn., for the Company. Mr. Will Watts, of Memphis, Tenn., for the Union. Mr. William H. Bartley, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE' On August 23, 1941, Steel Workers Organizing Committee, C. I. 0., herein called the Union, filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting commerce has arisen concerning the representation of the employees of the Railways Ice Company, Memphis, Tennessee, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of,the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 29, 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 Rela- tions Board Rules and Regulations-Series 2, as amended, ordered 37 N. L. R. B, No. 143. - 883 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 4, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing wa's held on November 13, 1941, at Memphis, Tennessee, before John C. McRee, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Company and the Union were represented and participated 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 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF'THE COMPANY Railways Ice Company is a Delaware corporation with its principal office in Chicago, Illinois. It is engaged in the manufacture and sale of ice in numerous plants in large cities throughout the United States. In Memphis, Tennessee, the Company operates two plants, the Nonconnah and Yale plants, which are involved in this proceed- ing. During the first eleven months of 1941, the Yale plant sold 12,000 tons of ice for resale or private consumption within Memphis, 1,777 tons to the Rock Island and Frisco railroads for local use, 8,580 tons to railroads for air conditioning of passenger cars used within and outside -the State of Tennessee, and 2,218 tons to the Frisco railroad for the refrigeration of freight cars used in the trans- portation of goods to points outside the State of Tennessee. Dur- ing the same period, the Nonconnah plant sold 7,999 tons of ice to the Yale plant, 7,346 tons to railroads for the refrigeration of freight cars used in the transportation of goods outside the State of Tennessee, 2,694 tons to railroads for local use, 6,283 tons to dealers and private consumers in Memphis, Tennessee, and 882 tons to various customers for use outside the State of Tennessee. The Company sold the ice ,at wholesale prices varying between $3.50 to '5.00 per ton and at -retail prices of approximately 50 cents per hundred pounds. The Com- pany purchases annually 2,000 pounds of ammonia for the Nonconnah plant and 1,200 to 1,500 for the Yale plant, almost all of which is pur- chased from outside the State of Tennessee; 65 tons of salt for the two plants, most of which is purchased in the States of Kansas and Louisi- ana; and 2,000 tons of coal produced outside the State of Tennessee. RAILWAYS ICE COMPANY II. THE ORGANIZATION INVOLVED 885 Steel Workers Organizing Committee is a labor organization affili- ated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the Union unless the Board certifies it as the bargaining representative of the Company's em- ployees. A. statement of the Regional Director introduced in evidence shows that the Union represents a substantial number of employees in the unit hereinafter found appropriate.' 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union desires a unit of all production and maintenance em- ployees and truck drivers at the Nonconnah and Yale plants, exclud- ing clerical and supervisory employees. The Company contends that the employees at each plant should constitute a separate bargaining unit. The plants are nine miles apart. The Nonconnah plant is located on ground leased from the Illinois Central Railroad and the Yale plant is on ground owned by the Company. The plants are under one local manager, who determines labor policies, although each plant has its own superintendent. The Nonconnah plant pro- duces a substantial amount of ice for transfer by book sales to the Yale plant during the summer months; the Yale plant produces ice for sale to the Nonconnah plant during the winter. The common laborers engaged in production and maintenance work at each plant are paid approximately the same hourly rate. Employees at both plants are eligible to membership in the Union. There are no other 3 The Regional Director's statement shows that the Union has presented 61 application cards with apparently genuine signatures, 12 of which bear the names of persons on the Nonconnah pay roll of October 20 , 1941, and 29 of persons on the Yale pay roll for the same date ' There were then approximately 19 persons at Nonconnah and 50 at Yale within the unit hereinafter found to be appropriate. 433257-42-voL. 37--57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organizations seeking to represent employees in either plant, and the Union introduced evidence indicating that it had organized employees at both plants. Under all the circumstances we are of the opinion that the employees in the two plants should constitute a single bargaining unit. The Company and the Union agree that clerical and supervisory employees, should be excluded from the unit.2 The Company con- tends, however, that A. M. Vick, retail platform clerk at the Non- connah plant should be included in the unit. The Union asserts that Vick is a' clerical employee, and desires his exclusion. Vick spends approximately two hours each day doing office work and ap- proximately six hours in waiting on customers. He is paid by the month. We are of the opinion that Vick is a clerical employee and should be excluded from the unit. We find that all production and, maintenance employees and truck drivers at the Nonconnah and Yale plants of the Company, exclud- ing clerical and supervisory employees, constitute a unit appro- priate for the purposes of collective bargaining and that such 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. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The Company desires the use of a current pay roll in determining eligibility to vote in the election. The Union contends that an August 1941 pay roll should be used. In support of its contention, the Union points out that both plants reach their peak business in August and that the number of production employees at the Non- connah plant has fallen from 34 in August to 17 at the present time. At the Yale plant the number of production and maintenance em- ployees remains approximately the same throughout' the year. The record indicates that the employees whose services with the Company have been terminated since August either quit voluntarily or were' discharged and that in all probability they' will not be reemployed. Under all these circumstances, we see no reason for using the August 2 The Company and the Union agreed at the hearing that the superintendent , chief engi-' veer, night foreman, and assistant engineers at the Nonconnah plant and the superintend- ent, chief engineer , foreman, assistant engineers , sales manager, assistant sales manager,' retail foremen , and clerks at the Yale plant should be excluded as supervisory or clerical employees. The parties also agreed that C L. Boehm, ,who has charge of the retail garage, should be excluded as a supervisory , employee. The.parties took no specific positions re- garding M . B Burnette, assistant to Boehm , but the record shows that Burnette has the power to discharge garage employees and is paid a monthly salary. We are of the opinion he is a supervisory employee and should be excluded from the, unit. RAILWAYS ICE COMPANY' 887 pay-roll date. We shall direct that those eligible to vote in the elec- tion shall be the employees in the appropriate unit who were' em- ployed by the Company during the pay-roll period immediately pre- ceding the Direction of Election herein, 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 rep- resentation of employees in the Nonconnah and Yale plants of Rail- ways Ice Company, Memphis, Tennessee, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Re- lations Act. 2. All production and maintenance employees and truck drivers in the Nonconnah and Yale plants of the Company, excluding cler- ical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the 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 Rela- tions Act, 49 Stat. 449, and 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 bargain- ing with Railways Ice Company, Memphis, Tennessee, at its Non- connah and Yale plants, an election by secret ballot shall be con- ducted 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 Tenth 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 all production. and maintenance employees and truck drivers in the Non- connah and Yale plants of the Company at Memphis, Tennessee, who are employed by the Company during the pay-roll period im- mediately 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 clerical and supervisory employees and employees who have since quit or been discharged,for 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause, to determine whether or not they desire to be represented by Steel Workers Organizing Committee, C. I. 0., for the purposes of collective bargaining. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.