Tennessee Coal, Iron & Railroad Co.

National Labor Relations Board - Board Decisions

Feb 26, 1946

65 N.L.R.B. 1416 (N.L.R.B. 1946)

In the Matter of TENNESSEE COAL, IRON & RAILROAD COMPANY and
UNITED STEELWORKERS OF AMERICA, CIO
Case No. 10-B-1628.-Decided February 26, 1946
Messrs. Borden Burr and John H. Williamson, of Birmingham,
Ala., for the Company.
Mr. R. M. Poarch, of Birmingham, Ala., for the Steelworkers.
Mr. C. C. Wilson, of Birmingham, Ala., and Mr. Charles E. May,
of Cleveland, Ohio, for the Brotherhood.
Mr. Seymour Cohen, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America, CIO,
herein called the Steelworkers, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Ten-
nessee Coal, Iron & Railroad Company, Birmingham, Alabama, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Paul S. Kuelthau,
Trial Examiner. The hearing was held at Birmingham, Alabama,
on October 30, 1945. The Company, the Steelworkers, and the
Brotherhood of Locomotive Firemen and Enginemen, herein called
the Brotherhood,' appeared and participated. All parties were af-
forded 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 opportu-
nity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Tennessee Coal, Iron & Railroad Company, a subsidiary of United
States Steel Corporation, is an Alabama corporation, with its prin-
' At the hearing, the Brotherhood' s oral motion to intervene was granted.
65 N. L. R. B., No. 233.
1416
TENNESSEE COAL, IRON & RAILROAD COMPANY 1417
cipal office and place of business at Birmingham, Alabama. It is
there engaged in the manufacture of steel and steel products. Ap-
proximately 80 percent of the Company's products are shipped to
points outside the State of Alabama.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to mem-
bership employees of the Company.
Brotherhood of Locomotive Firemen and Enginemen is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 7, 1945, the Steelworkers wrote a letter to the Company
claiming to represent a majority of the firemen and enginemen
employed by the Company in its Railroad Transportation Depart-
ment. The Company made no reply to the letter, but took, and still
takes, the position that it cannot recognize the Steelworkers as the
exclusive bargaining representative of these, employees until the
Steelworkers has been certified by the Board in an appropriate unit.
By a contract dated July 28, 1939, the Company recognized the
Brotherhood as the collective bargaining, agency for those of the
Brotherhood's members employed as locomotive firemen, engineers,
and hostlers by the Company.
This contract contains the following clause:
Section 12-Change or Termination. This agreement shall con-
tinue until changed or terminated as follows :
(a) Either party may at any time and from time to time
give ten (10) days written notice to the other party of the time
for the commencement of a conference of the parties for the
purpose of negotiating the terms and conditions of a change of
this agreement, which conference shall be at the office of the
Company in Birmingham, Alabama, unless otherwise mutually
agreed, and
(b) If, because of a failure to agree, this agreement is not
changed by written agreement entered into by the Company and
the Committee within twenty (20) days from the signing of said
notice, then this 'agreement and all the provisions thereof shall
terminate upon the expiration of twenty (20) days from the
giving of said notice.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as the contract is, in effect, terminable at will, and is
also a "members-only" agreement, we find it to be no bar to a deter-
mination of representatives at this time.2
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Steelworkers represents a substantial
number of employees in the unit hereinafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in substantial agreement with the stipulation of the parties,
that all locomotive firemen, enginemen, and hostlers employed in the
Transportation Department of the Company's Birmingham, Alabama,
plant, excluding all supervisory employees with authority to hire, pro-
mote, 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 mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Brotherhood requests that those employees in the appropriate
unit who are now in the armed forces of the United States be allowed
to participate in the election by mail ballots, if necessary 4 The
Steelworkers objects to mail ballots, while the Company takes a
neutral position in the matter. We believe that the conditions under
which mail balloting may be allowed, as recently set forth in Matter
of South West Pennsylvania Pipe Lines,' have not here been met.
There is no adequate evidence in the record as to the number of
employees in the appropriate unit now on military leave nor as to
their names and addresses. Nor is there sufficient evidence as to the
availability of such information.6 Consequently, we shall allow only
those employees in the armed forces of the United States who present
themselves in person at the polls to vote.
2 See Matter of Ionia Desk Company, 59 N L R B 1522 ; Matter of Rheem Manufac-
turing Company, 56 N L. It B 159
3 The Field Examiner reported that the Steelworkers submitted 68 authorization cards,
and that the names of 59 persons appearing on the cards were listed on the Company's
pay roll of September 16. 1945 , which contained the names of 169 employees in the appro-
priate unit The Brotherhood relies on its contract as evidence of its interest
4 Although the Brotherhood confined its request to employees on military leave now
within the continental limits of the United States , it is reasonably clear from the record
that the Brotherhood actually desires that all employees in the armed forces be granted
an opportunity to vote
5 64 N L R B. 1384
° A witness for the Brotherhood stated that there were approximately 25 of its members
in the appropriate unit in the armed forces and that the Brotherhood probably had their
TENNESSEE COAL, IRON & RAILROAD COMPANY 1419
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
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 Tennessee Coal,
Iron & Railroad Company, Birmingham, Alabama, an election by
secret ballot shall be conducted as early as possible after the date of
this Direction at such time in the future as the Regional Director for
the Tenth Region deems advisable, under his direction and super-
vision, 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 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 per-
son 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 they desire to be
represented by United Steelworkers of America, CIO, or by Brother-
hood of Locomotive Firemen and Enginemen, for the purposes of
collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
current addresses A company witness stated that the Company would have the military
addresses of those employees on military leave who had corresponded with the Company
or had left their addresses with its employment bureau
In an informal investigation made by the Regional Director after the hearing, the
Company was unable to furnish the number of employees involved or their names and
addresses Also, the Brotherhood , it was learned , now indicates that it has no data as
to the military addresses of those of its members now on military leave and would have
to rely on information furnished by the Company
7In the informal investigation adverted to in the preceding footnote, it was ascertained
that the Company' s employees are now on strike , that the plant is not operating , and that
all parties believe that an election should not be held while this situation exists Con-
sequently, we shall provide that the election be conducted at such time in the future as
the Regional Director deems advisable.