Alabama By-Products Corporation, Coke Oven Division

National Labor Relations Board - Board Decisions

Jun 28, 1939

13 N.L.R.B. 427 (N.L.R.B. 1939)

In the Matter of ALABAMA BY-PRODUCTS CORPORATION, COKE OVEN
DIVISION and DISTRICT 50, UNITED MINE WORKERS OF AMERICA
(C. I. 0.)
Case No. R-1319.Decided June 28, 1939
Processing of Coal Byproducts industry-Investigation of Representatives:
controversy concerning representation of employees : employer refused to grant
recognition of petitioning union until directed to do so by the Board-Contract:
no bar to investigation of representatives , where applicable to members only and
where petition filed prior to time for renewal-Unit Appropriate for Collective
Bargaining : production , maintenance, shipping , and receiving employees, ex-
cluding supervisors , foremen, clerks on fixed salaries , stenographers , chemists,
samplemen , draftsmen , and timekeepers-Election Ordered
Mr. Alexander E. Wilson, Jr., for the Board.
Mr. W. W. Bankhead, of Jasper, Ala., and Mr. W. F. Shillito, of
Birmingham, Ala., for the Company.
Mr. Yelverton Cowherd, of Birmingham , Ala., for District 50.
Mr. J. L. Busby, of Birmingham, Ala., for No. 19133.
Mr. Roscoe L. Barrow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 26, 1938, District 50, United Mine Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
District 50, filed with the Regional Director for the Tenth Region
(Atlanta, Georgia) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees in the
Coke Oven Division of Alabama By-Products Corporation, Tarrant,
Alabama, 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 March 13, 1939, 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 1, as amended , ordered an investigation and
13 N. L R . B., No. 49.
427
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
The Regional Director issued on March 17, 1939, a notice of hearing
and on March 29, 1939, an, amended notice of hearing. Copies of
the notice and amended notice were duly served upon the Company,
District 50, and By-Products Workers Union No. 19133, affiliated with
the American Federation of Labor, herein called No. 19133. Pur-
suant to the notices, a hearing was held on April 13 and 14, 1939, at
Birmingham, Alabama, before Earl S. Bellman, the Trial Examiner
duly designated by the Board. The 'Board, the Company, District
50, and No. 19133 were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was af-
forded all parties. During the course of the hearing the Trial Exam-
iner made several rulings on motions and objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner 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
I. THE BUSINESS OF THE COMPANY
Alabama By-Products Corporation is a Delaware corporation
having its main office in Birmingham, Alabama. Its Coke Oven
Division plant, the only plant with which these proceedings are con-
cerned, is located in Tarrant, Alabama. The Coke Oven Division is
engaged in the production of coke, coal tar, sulphate of ammonia,
benxol , toluol , motor benzol , xyol, and gas. The principal raw mate-
rials used in the Company's operations at its Coke Oven Division
plant are coal and sulphuric acid. The cost of such raw materials
during 1938 was approximately $1,793,000, and the value of the prod-
ucts sold during 1938 was approximately $2,646,000. Almost 25 per
cent of the raw materials used during 1938 were shipped to the Com-
pany from points outside Alabama. During the same period over
51 per cent of the finished products were sold and shipped to points
outside Alabama.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to membership production and maintenance, shipping, and
receiving employees, excluding supervisors, foremen, and technical
and clerical employees on salaries.
ALABAMA BY-PRODUCTS CORPORATION 429
By-Products Workers Union No. 19133 is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership all employees in the plant except executives and foremen
with authority to employ or discharge.
III. THE QUESTION CONCERNING REPRESENTATION
District 50 began to. organize the employees in the Tarrant plant
on March 14, 1938. On August 24, 1938, it notified the Company
that it had attained a majority status and requested that representa-
tives of the Company meet with it for the purposes of collective bar-
gaining. On August 25, 1938, the Company advised District 50 that
it was bound by a contract with No. 19133, and that it would not feel
free to bargain with District 50 until directed to do so by the Board.
On the following day District 50 filed its petition herein.
On September 14, 1938, District 50 cited to the Company .a pro-
vision in the Company's contract with No. 19133 which permits indi-
viduals or groups not a party to the contract to bargain with the
Company concerning his or their interest or welfare, and requested
the Company to recognize it as the bargaining agent for its own
members until such time as the Board certified one of the unions as
representative for all the employees. It'also suggested that a con-
sent election be held to decide whether District 50 or No. 19133 had a
majority status. The Company replied that it preferred to allow
the matter to be handled by the Board.
The Company first entered into a contract with No. 19133 on
December 1, 1934. The contract ran continuously until December 1,
1937, at which time negotiations for changes in the contract were
had, Another contract was entered into on May 1, 1938, which was
to run for one year and thereafter, unless one of the parties should
request a change 30 days before the renewal date. The contract
covers only members of No. 19133. District 50's petition was filed
several months before the renewal date of the contract. Under either
of these circumstances, the contract is no bar to a determination of
representatives at this time by the 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,
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
In its petition, District 50 asserts that all production, maintenance,
shipping, and receiving employees of the Company, excluding fore-
men, supervisors, and office clerks on fixed salaries, constitute a unit
appropriate for the purposes of collective bargaining. At the hear-
ing District 50 specifically designated certain employees as those
whom it wishes excluded from the appropriate unit. The Company
and No. 19133 assert that the unit should consist of all the employees
in the Company's Coke Oven Division, except 7 supervisory officials
who, admittedly, have authority to hire and discharge.,
At the hearing a statement prepared by the Company was intro-
duced, describing the duties of those employees who District 50 asserts
should be excluded from the unit. This statement was supplemented
by testimony.
From the statement and testimony the following appears : A. E.
English, H. S. Milstead, C. A. Anthony, W. D. English, J. W. Hes-
ter, E. J. Hubbard, M. E`. Lackey, C. W. Sims, I. S. Sims, T. F.
Beery, J. J. Christian, C. W. Broadway, and J. K. Williamson are
foremen having no authority to employ or discharge. It appears
that they recommend discharge, but an investigation is made before
the recommendation is approved or disapproved. It also appears
that each has 5 or more men under his direction. L. O. Little, J. E.
Murphree, and O. T. Payne collect and prepare samples for the
laboratory. R. Gaskins, C. F. Walters, and W. F. Prosch are chem-
ists. Y. B. Haynes, W. H. Crawford, E. Chamblis, J. T, Mobley,
and T. S. Winn are clerks. V. Winn and I. Buchner are stenogra-
phers. C. N. Lee is a mechanical draftsman. C. O. Wright is a
timekeeper . With the exception of W. C. Broadway and I. S. Sims,
all of these employees are on salary.
Where one union desires to exclude employees of the above types
from a unit composed of production and maintenance employees,
and another does not, it has been the practice of the Board to exclude
them,2 unless some special reasons appear for their inclusion. No
1 These employees are A. R. Overton, G. It. Ozley, H. B . Owen, W. M Mobley, T.
Sizemore, H. Carder, and L. K. Almon.
'Foremen excluded : Matter of the International Nickel Company , Inc. and Square Deal
Lodge No. 40 , Amalgamated Association of Iron, Steel, and Tin Workers of North America,
Through Steel Workers Organizing Committee , 11 N. L. R B. 97; Matter or Rea
Manufacturing Co., Inc. and A. F. L. Federal Local Union No. 20893, 7 N. L. R. B. 95
Chemists and Samplers excluded : Matter of Interlake Iron Corporation and Amalgamated
Association of Iron , Steel, and Tin Workers of North America, Local No 1657, 6 N L. It. B
780; Matter of Armour d Company and Amalgamated Meat Cutters and Butcher Work-
men of North America, Local Union 413, 5 N. L. It. B . 975. Clerks excluded : Matter of
Allis-Chalmers Manufacturing Company and International Union, United Automobile
ALABAMA BY-PRODUCTS CORPORATION 431
such reasons appear in the record as to the employees listed above.
In fact, the president of No. 19133 testified that certain foremen who
have no authority to employ or discharge, and very probably the
chemists, are ineligible for membership in No. 19133. It appears
that during the competitive activity of the two unions, No. 19133
signed up a number of these employees, who, according to its presi-
dent, were ineligible for membership therein. We shall exclude
from the unit the employees named above.
District 50 further asserted that L. E. Littleton should be excluded
from the unit on the ground'that he is an assistant electrical foreman.
The evidence shows that Littleton has no employees working under
his direction. It also appears that there are other electricians on the
pay roll whom District 50 does not seek to exclude from the unit.
We shall include Littleton in the appropriate unit.
We find that all the production, maintenance, shipping, and receiv-
ing employees of the Company in its Coke Oven Division, excluding
supervisors, foremen, clerks on fixed salaries, stenographers, chemists,
samplemen, draftsmen, and timekeepers, constitute a unit appro-
priate 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
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
During the hearing District 50 introduced 142 authorization and
membership cards. It also introduced 119 authorizations, which
were obtained from among members and non-members, indiscrim-
inately, within 48 hours preceding the hearing. No. 19133 intro-
duced in evidence 116 membership and authorization cards. There
are approximately 215 employees on the April 1, 1939, pay roll of
the Company at its Coke Oven Division, who are within the appro-
priate unit. We find that the question which has arisen concerning
the representation of employees of the Company can best be resolved
by holding an election by secret ballot.
District 50 stated that in the event of an election, it preferred
April 29, 1938, the date on which the Company had notice that Dis-
trict 50 was organizing the plant, and No. 19133 stated that it pre-
Workers of America Local 248, 4 N. L. It. B. 159; Matter of Walker Vehicle Company and
the Automatic Transportation Company, Divisions of the Yale and Towne Manufaetviing
Company and Walker-Automatic Independent Labor Association, 7 N L. R B 827.
Stenographers excluded : Matter of International Nickel Company, Inc. and Matter of Inter-
lake Iron Corporation, supra. Timekeepers excluded: Matter of American Radiator
Company (Bond Plant and Terminal Plant) and Amalgamated Association of Iron, Steel
d Tin Workers, Lodges 1199, 1629, 7 N. L. R. B. 452; Matter of Atlantic Basin Iron Works
and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 13,
6 N. L It. B. 402.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred April 13, 1939, the date of the hearing, as the date determin-
ing the eligibility of employees to vote therein. Both agreed, how-
ever, that any eligibility date selected by the Board would be
agreeable to them. We feel that a current eligibility date will best
effectuate the policies of the Act. We shall accordingly direct that
employees of the Company in its Coke Oven Division within the
appropriate unit who were on the Company's pay roll immediately
preceding the date of our Direction of Election herein, including
employees who did not work during such pay-roll period because
they were ill or on vacation and excluding those who have since
quit or have been discharged for cause, shall be eligible to vote.
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 Alabama By-Products Corporation at its
Coke Oven Division in Tarrant, Alabama, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the National Labor Rela-
tions Act.
2. The production, maintenance, shipping, and receiving employees
of the Coke Oven Division of the Company, excluding supervisors,
foremen, clerks on fixed salaries, stenographers, chemists, samplemen,
draftsmen, and timekeepers, 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives of employees at the Coke Oven Division
of the Alabama By-Products Corporation, for the purposes of col-
lective bargaining, an election by secret ballot shall be conducted
within fifteen (15) days from the date of this Direction of Election
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 the production, maintenance, shipping,
and receiving employees whose names appear on the Company's Coke
ALABAMA BY-PRODUCTS CORPORATION 433
Oven Division pay roll immediately preceding this Direction of Elec-
tion, including employees who did not work during such pay-roll
period because they were ill or on vacation, but excluding super-
visors, foremen, clerks on fixed salaries, stenographers, chemists,
samplemen, draftsmen, and timekeepers, and all who have since
quit or been discharged for cause, to determine whether they desire
to be represented for the purposes of collective bargaining by Dis-
trict 50, United Mine Workers of America, affiliated with the Con-
gress of Industrial Organizations, or by By-Products Workers Union
No. 19133, affiliated with the American Federation of Labor, or by
neither.
Mr. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Direction of Election.