Tennessee Coal, Iron and Railroad Co.

National Labor Relations Board - Board Decisions

Aug 3, 1942

42 N.L.R.B. 1230 (N.L.R.B. 1942)

In the Matter of TENNESSEE COAL, IRON AND RAILROAD COMPANY
and INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS
(CIO)
Case No R-3976 -Decided August 3, 1942
Practice and Procedure
Following indefinite adjouinment of original healing uuhen parties en-
tered into consent election agreement to resolve question conceimng repre-
sentation and following certification of union by Regional Director after,
election, healing was reopened "for the purpose of receiving additional
evidence upon the question of iepiesentation, where parties sought to place
before Board the issue of the scope of the "ore tine" unit R hich parties
had agreed to be appropriate' in the consent election agreement
Unit Appropriate for Collective Bargaining : Board found that "ore mine" unit
did not include employees of the Tenement Rehabilitation Department, as
such employees comprised a cohesive group and could constitute a separate
bargaining unit, fact that names of some of the Tenement Rehabilitation
Department employees were listed on the eligibility list used in the "ore
mine', election and that some of them voted in the election, held inconclusive
of the scope of the "ore mine" unit
Mr. Alecander E W lson, Jr, for the Board
Mr D. K. McKamy and Mr. Borden Burr, of Birmingham, Ala.,
for the Company.
Mr J A L? psco7n b of Bessemer, Ala, for the Union
Mr. Robert E. Tillman, of counsel to the Board
DECISION
Upon petitions duly filed on June 4 and 7, 1941, by International
Union of Mine, Mill & Smelter `Yorkers (CIO), herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Tennessee Coal, Iron and
Railroad Company, Birmingham, Alabama, herein called the Com-
pany, the National Labor Relations Board provided for an appropri-
ate hearing upon due notice. On August 1, 1941, the date set for the
heaiing, tlie.Company and the Union entered into a consent election
agreement, and the heaiing was adjourned indefinitely Thereafter,
on August 25, 1941, the Regional Director for the Tenth Region con-
ducted the election and subsequently certified that the Union had been
chosen by a majority of the employees in the appropriate unit
42 N LB B, No 225
1230
TENNESSEE COAL, IRON AND RAILROAD COMPANY 1231
On June ' 18, 1942, the Acting Regional Director for the Tenth
Region issued a Notice of Reopening Hearing for the purpose of re-
ceiving additional evidence upon the question of representation af-
fecting commerce Pursuant to this notice, a hearing was held at
Birmingham, Alabama, on June 23, 1942, before Robert M Gates,
Trial Examiner The Company and the Union appeared, partici-
pated, and 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 ire hereby affirmed
On July 8 and 9, 1942, iespectively, the Union and the Company
filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following .
FINDINGS OF FACT
In seeking a reopening of the hearing in this proceeding, the parties
sought to place before the Boaid the issues of the scope of the ore
mines unit which the parties agreed to be appropriate In then consent
election agreement This agreement established the following unit
All production and maintenance employees regularly employed
by the Company in its ore and limestone mines located at Muscoda,
Wenonah, and Ishkooda, Alabama, and in its sintering plant at
Wenonah, excluding foremen, assistant foremen, supervisors in
charge of any classes of labor, watchmen, guards, clerical and
salaried employees
Subsequent to its certification by the Regional Director as the collec-
tive bargaining representative of employees in this unit, the Union took
up grievances for certain carpenters of the Company working in the
Tenement Rehabilitation Department A controversy ensued in which
it developed that the Union claimed that these carpenters had been
included in the consent election unit, and therefore were covered by a
contract between the parties which applied to employees in the consent
election unit'; the Company argued that the carpenters had not been in-
cluded Thereupon, the Company denied that the Union had exclusive
bargaining lights on behalf of any employees in the Tenement Re-
habilitation Department ,
At the hear ing, the Union contended that all employees of the Tene-
ment Rehabilitation Department who work in and around the ore mines
or the ore mine villages are included in the consent election unit The
Company contended that the employees of the Tenement Rehabilitation
Department constitute an appropriate unit separate and apart from the
ore mines unit, and that none of the employees therein were intended
to,be, or logically can be, placed in the ore mines unit. The parties
agreed that the Board should determine this issue
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Tenement Rehabilitation Department is a department com-
posed of maintenance employees, including carpenters, pipe fitters,
electricians, plumbers, painters, brickmasons, rockmasons, cement fin-
ishers, plasterers, tanners,' road-machine operators, truck drivers, and
ordinary laborers. Its principal function is to repair and maintain
houses in the Company-owned villages about its ore mines, its coal
mines,' and its manufacturing plants
The Union accuses the Company of setting up the Tenement Re-
habilitation Department as an artificial device whereby to withdraw
employees from the ore mines unit and thus diminish the size of that
unit. One of the grounds upon which the Union relies to support this
claim is that many of the employees of the Tenement Rehabilitation
Department are engaged in work identical to that which they per-
-formed for years prior to the establishment of that department; and
that part of their functions has consisted of maintenance work around
the ore mines and the ore mine villages, which render them eligible to
inclusion in the ore mines production and maintenance unit A second
ground urged by the Union in support of its claim is that employees
of the Tenement Rehabilitation Department are not paid at a central
location, but continue to receive their pay at the same place they were
paid prior to their transfer to the Tenement Rehabilitation Depart-
ment, their names having remained on the same pay roll after their
transfer. The Company denies that its purpose in establishing the
Tenement Rehabilitation Department was to cut down the ore mines
unit, and claims that this action was taken solely for efficiency reasons.
It admits the facts as to the place of payment of Tenement Rehabilita-
tion Department employees, but asserts that this method of payment
is used solely for the convenience of the employees concerned, who
prefer to be paid near where they live or work
Prior to December 1936, each of the ore mines and other mines
of the Company maintained a staff of approximately six to eight
carpenters who were engaged in rough carpentering in or' around
the mines, such as building coal docks and working on tipples and
bath houses, and who also did occasional repair work on the village
houses There was no division among the carpenters, although those
who worked on the houses might have earned 1 or 2 cents more per hour
than those who worked in the mines, since house repair woik called for
finish rather than rough carpentry " t
The superintendent of the Tenement Rehabilitation Department
testified that in December 1936 the Company inaugurated a wide scale
program to rehabilitate the tenements of its villages scattered among
its ore mines, coal mines, and manufacturing plants For the first
2 years, ore mine employees continued to make repairs m,the ore mine
villages, coal mine employees made repairs in the coal mine villages,
and employees of the manufacturing plants took care of the manufac-
TENNESSEE COAL , IRON AND RAILROAD COMPANY 1233
turing villages This system pi oved to be inefficient in that the main-
tenance men divided then working time between the houses and the
mines or plants On November 11, 1938, the Company, therefore,
established the Tenement Rehabilitation Department as a separate
and distinct department to handle its entire rehabilitation program.
Most of the maintenance employees of the ore mines, the coal mines,
and the manufacturing plant s were transferred to the Tenement
Rehabilitation Department , and many new employees were added to
its rolls Each of the mines was left with a normal staff of 1 carpenter
and a helper , who do mostly coal dock and tipple work in and around
the'mines , The Tenement Rehabilitation Depaitment was given juris-
diction over approximately 900 houses in ore mine villages, 1,500
houses in coal mine villages , and 1,000 houses in the manufacturing
villages Under the new system, rehabilitation men are sent from
division to division of the Company as repass aie completed, some
have even been sent to Georgia The Company points to this as evi-
dence of its contention that the Tenement Rehabilitation Department
was established for efficiency reasons Thus, it claims ,that the new
system, by combining most of the maintenance employees in one de-
partment instead of scattering them throughout the mines and plants,
requires fewer employees and piovides for central direction'and spe-
cialization Also it relieves the mining divisions of a responsibility
unrelated to mining operations
Several maintenance employees involved in the transfer to the
Tenement Rehabilitation Department appear for some time to have
been unaware either of their transfer or that they were in a different
department However, the transfer of most of the maintenance em-
ployees to the Tenement Rehabilitation Department left maintenance
work in the mines to the mine employees and confined the Tenement
Rehabilitation employees to outside work almost exclusively Other
departments or divisions of the Company may call upon the Tenement
Rehabilitation Department for certain employees by sending a be-
tween-works order to that department and assuming the cost of the
work Thus , by requisition , employees of the Tenement Rehabilita-
tion Department may be called to do maintenance work in the ore
mines Usually such employees are turners , plumbers, or brickmasons,
since the mines have their own carpenters and electricians , and other
ci aft work is not requned in the mines
Several witnesses for the Company , including the acting assistant
manager of industrial relations , testified that seniority in the Tene-
ment Rehabilitation Department operates upon a department-wide
basis and is not related to other departments of the Company Em-
ployees whom the Company orders transferred to the Tenement
Rehabilitation Depaitment bring with them a record of continuous
time worked in other departments , but any voluntary transferee starts
472814-42-vol 42--78
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in as a new employee Likewise , any Tenement Rehabilitation De-
partment employee who voluntarily transfers out of the Tenement
Rehabilitation Department starts elsewhere as a new employee
In support of its position , the Union stresses the fact that the
names of a number of Tenement Rehabilitation Department em-
ployees were included on the eligibility list used in the consent elec-
tion, without any objection from the Company, and that several of
them participated in the election without challenge by the Company.
The Union contends that by this failure to object, the Company had
consented to the inclusion of these employees in the ore miles unit.
The Company's version of this circumstance is that, purely by a de-
partmental misunderstanding, the accounting office prepared an eligi-
bility list including certain Tenement Rehabilitation Department
employees The Company pointed out that the United Mine
Workers of America is the representative of employees in a pro- -
duction and maintenance unit in the coal mines similar to the ore
mines unit , and that in the election held among the coal mine em-
ployees the eligibility list did not include any Tenement Rehabilita-
tion Department employees, and the United Mine Workers does not
contend that they should be included
Upon this record the Union's, contention that the Tenement Re-
habilitation Department was set up for the purpose of affecting the
scope of the bargaining unit must be rejected The Tenement Re-
habilitation Department comprises a cohesive group of employees
who perform the same general type of work, under the same super-
visors, and accordingly have many interests in common These
employees could constitute a separate appropriate bargaining unit.
Moreover , the record does not justify the severance of some of the
Tenement Rehabilitation Department employees from the great ma-
jority and their inclusion in the ore mines unit, as requested by
the Union, since all employees of the Tenement Rehabilitation De-
partment are subject to orders sending them not only to the ore
mines but to the coal mines and the manufacturing plants of the
Company where the Union does not claim 'jurisdiction Further, the
circumstances are such that the fact that some of the Tenement
RBhabihtation Department employees whose names appear on the
ore mines pay roll were also listed on the eligibility list and voted in
the consent election is inconclusive as to the scope of the appropriate
unit.
Upon the entire record, we find that the ore mines unit does not
include employees of the Tenement Rehabilitation Department.
MR GERARD D REILLY took no part in the consideration of the
above Decision.