Salmon & Cowin, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1944

59 N.L.R.B. 312 (N.L.R.B. 1944)

In the Matter Of SALMON & COwIN, INC., MINING ENGINEERS & CON-
TRACTORS, AND MINE AND CONTRACTORS SUPPLY Co., INC. and INTER-
NATIONAL UNION OF MINE, MILL AND SMELTER WORKERS
Case No. 1O-R---13O..-Decided November 16, 1944
Messrs. Horace C. Wilkinson, and Borden Burr, of Birmingham,
Ala., for the Companies.
Mr. J. P. Mooney, of Bessemer, Ala., for the Union.
Mr. Louis R. Mercado, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the International Union of Mine, Mill
and Smelter Workers, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Salmon & Cowin, Inc., Mining Engineers & Contractors,
herein called Salmon Company, and Mine and Contractors Supply
Co., Inc., herein called the Supply Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Mortimer H. Freeman, Trial Examiner. Said hearing was
held at Birmingham, Alabama, on October 19, 1944. Salmon Com-
pany, the Supply Company, and the Union appeared and participated.
All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded 'an opporounity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Salmon & Cowin, Inc., Mining Engineers & Contractors, an Alabama
corporation with its principal office and place of business in Birming-
59 N. L. R. B., No. 66.
312
SALMON & COWIN, INC. - 313
ham, Alabama, is engaged in the business of mining engineering and
contracting and the investigation and appraisal of mining property
in Alabama. It contracts for the performance of services with respect
to mining construction and development, consisting chiefly of excava-
tions of shafts, tunnels, and slopes in coal and ore mines within the
State of Alabama exclusively. The greater part of this service is
rendered to the Tennessee Coal, Iron & Railway Company, a sub-
sidiary of the United States Steel Company, Sloss-Sheffield Steel &
Iron Company, and Alabama Power Company .1L Salmon Company
does an annual business of 'approximately $225,000; it annually pur-
chases material and equipment valued at $65,000, of which 5 percent
is purchased from Supply Company, and the balance from other firms
within the State of Alabama.
Mine and Contractors Supply Co., Inc., is an Alabama corporation
with its principal office and place of business in Birmingham, Alabama.
This Company was organized in 1940 to take over certain phases of
Salmon Company's business in order to remove certain employees from
the jurisdiction of the Federal Wage and Hour Act.2 The part of the
business taken over from Salmon Company by the Supply Company
and in which it is now engaged, is the manufacture, sale , and distribu-
tion of tools used in mining machines, equipment for mine and road
contractors, and general mining supplies.' During the past year Sup-
ply Company purchased finished materials valued approximately at
$170,000, all of which originated from points outside the. State of
Alabama; it annually sold materials valued in excess of $190,000, of
which approximately 1 percent was delivered to points outside the
State of Alabama.
While Salmon Company and Supply Company maintain separate
legal and accounting identities, they are in fact operated as a single
integrated enterprise within the same industry.' They have common
stock ownership 5 and managerial control and the operations of the
two Companies are coordinated .6 Mr. Cowin is president of each
I See Matter of Tennessee Coal, Iron and Railroad Co., 32 N. L. R. B . 375; 41 N. L. R. B.
1364 ; Matter of Sloss-Sheffield Steel and Iron Co., 37 N. L. R. B. 134 ; Matter of Republic,
Steel Corp ., 37 N. L . R. B. 173.
' This was admittedly done on the suggestion of representatives of the Wage and Hour
Division of the Department of Labor. Employees of the Salmon Company performing the
work of the operations taken over by Supply Company were transferred to it from Salmon
Company.
8 The bulk of Supply Company sales consist of rock drill steel , rock drills , vent tubing,
air compressors , pumps, rubber and suction hose, drill repair parts, and rock drill bits,
which are principally sold by Supp ly Company as manufacturer 's agent.
Matter of Salmon d Cowin , Inc., Mining Engineers it Contractors , and Mine and Con-
tractors Supply Co ., Inc., 57 N. L. R. B 845.
5 Ownership of the stock of each Company is divided equally between Mr. Cowin and the
heirs of the late Mr. Salmon.
There is some interchange of employees , including the managerial employees , and the
clerical force of Salmon keeps the books of both Companies ; in each case the respective
Company is billed for the time spent by such employees in its services.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4
Company and actively conducts the operations of each. The Com-
panies maintain their principal offices at the same address.'
We find that Salmon Company and Supply Company are engaged
in commerce within the meaning of the National Labor Relations Act.g
i
II. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that the Union, by letter dated August 28,
1944, requested recognition as the exclusive bargaining representa-
tive of certain employees of the Salmon Company and the Supply
Company, and that by letter dated September 9, 1944, both Compa-
nies refused to grant recognition to the Union as exclusive bargaining
representative until the Union has been certified by the Board in an
appropriate unit.
A statement of a Field Examiner, received for identification at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriates The Com-
panies objected to the introduction of this statement in evidence, con-
tending that there should be separate units for each Company and that
the statement of the Field Examiner merely indicated the total num-
ber of employees and union cards for both Companies. The State-
ment discloses that two cards bear the signatures of employees of
Supply Company and subsequent testimony established that there
were nine employees of Supply Company eligible for inclusion in the
appropriate unit. The Trial Examiner apparently inadvertently
omitted to rule on the objection. We find the statement relevant and
the objection without merit and-order the statement received in evi-
dence as Board's Exhibit No. 3.
We find that a question affecting commerce has arisen concerning
T The premises are owned by Salmon Company which rents office , shop and yard space to
Supply Company. Each Company has its own stationery , bank accounts , and telephone
numbers, but they maintain an extensive intercommunication system between their offices.
8 N. L. R. B . v. Fainblatt, 306 U. S. 601 ; N. L. R. B . v. Sunshine Mining Co ., 110 F. (2d)
780 (C. C A. 9) ; Consumers Power v . N. L. R. B ., 113 F . ( 2d) 38 ( C. C. A. 6).
° The Field Examiner reported that the Union submitted 47 cards, all of which bore
apparently genuine original ' signatures ; that the names of 46 persons appearing on the
cards were listed on both Companies ' pay roll of September 20, 1944, which contained
the names of 69 employees in the appropriate unit; and that the cards were dated as
follows : prior to 1944, 7 ; January , 16 ; August , 20 ; September , 3 ; undated , 1. These
include 2 employees of the Supply Company. 1 of whom. J. P. Milam , has been found by
the Board to have been illegally discharged prior to September 20, and whose reinstate-
went has been ordered . Milam does not appear on the pay roll of September 20. Matter
of Salmon h Cowin, Inc., Mining Engineers & Contractors, and Mine and Contractors
Supply Company, Inc, 57 N. L. R. B. 845.
SALMON & COWIN, INC. 315
the representation of employees of the Companies, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union contends that the appropriate unit should consist of a
single unit of all production and maintenance employees, exclusive
of supervisory employees, of both Salmon Company and Supply
Company. Salmon Company and Supply Company do not object
to an election, but contend that the employees of each Company
should be voted in separate units. The Companies take the position
that they are separate corporations and distinct legal entities, inde-
dependent of each other in their business operations.
The evidence establishes that Salmon Company and Supply Com-
pany are -operated as a single integrated enterprise under common
ownership and management. Mr. Cowin is president of both Com-
panies and he coordinates the business and labor relations policy of
each Company, interchanging employees when convenient.10 Under
these circumstances and upon the entire record, we find that the
employees of Salmon Company and Supply Company have common
interests and that the full benefit of their right to self-organization
and to collective bargaining will be insured by the establishment of a
single appropriate unit.
The parties stipulated that the leadermen 11 should be included
within the unit. Mr. Cowin testified that these employees "are just
the best workers there [are] in the crew." Although they have some
minor supervisory authority, their relationship with coemployees ap-
proximates that of journeyman-helper. The leadermen may rec-
ommend hiring or discharging, but there is no evidence that their
recommendations have been given any more weight than that of any
other employee. Under the circumstances, we find that the authority
and duties of the leadermen do not come within our usual definition
of supervisory employees and we shall include them within the unit.12
We find that all production and maintenance employees of Salmon
Company and Supply Company, including leadermen, but excluding
clerical employees and supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
10 See Matter of Salmon & Cowin , Inc., Mining Engineers d Contractors , and Mine and
Contractors Supply Company, Inc., 57 N. L R B. 845; Matter of Elliott Bay Lumber
Co, 8 N L R B. 753; Matter of Union Premier Food Stores , Inc., 11 N. L R. B. 270.
"There are eight of these employees ; some are paid on a salary basis and some on an
hourly basis.
11 Matter of Edgewater Steel Company , 56 N. L. R. B. 1778 ; Matter of Faultless Caster
Corporation , 53 N. L . R. B. 1335.
- 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES I
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction. -
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, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Salmon & Cowin,
Inc., , Mining Engineers & Contractors, and Mine and Contractors
Supply Co., Inc., Birmingham, Alabama, 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 super-
vision 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, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during the said pay-roll period because they were ill or on
vacation or temporarily laid off, and including employees. in the
armed forces of the-United States who present themselves in person
at the polls, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether or not they
desire to be represented by International Union of Mine, Mill and
Smelter Workers, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining.