The Ohio River Co.

National Labor Relations Board - Board Decisions

Feb 28, 1946

66 N.L.R.B. 128 (N.L.R.B. 1946)

In the Matter of THE OHIO RIVER COMPANY (ILLINOIS RIVER DIVI-
SION) and LOCAL No. 6, NATIONAL MARINE ENGINEERS BENEFICIAL
ASSOCIATION, C. I. O.
Case No. 13-R-3131.-Decided February 28, 1946
Mr. Morris Creditor, of Cincinnati, Ohio, and Mr. J. C. Marting,
of Canton, Ohio, for the Company.
Mr. H. B. Brannon, of LeMay, Mo., for the MEBA.
Mr. Joseph P. Clark, of St. Louis, Mo., for the F. & O.
Mr. Joseph D. Manders, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local No. 6, National Marine Engi-
neers Beneficial Association, C. I. 0., herein called the MEBA, alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of The Ohio River Company (Illinois
River Division), Cincinnati, Ohio, herein called the Company, the
National Labor Relations Board provided for an appropriate hear-
ing upon due notice before Leon A. Rosell, Trial Examiner. The
hearing was held at Peoria, Illinois, on September 25, 1945. The
Company, the MEBA, and International Brotherhood of Firemen
and Oilers, Maintenance Men and Helpers, Local No. 6, A. F. of L.,
herein called the F. & 0., appeared and participated. At the hearing,
the F. & O. moved for dismissal of the petition. For reasons set
forth in Section III, infra, the motion is denied. 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 opportunity
to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
66 N. L . R. B., No. 4.
128
THE OHIO RIVER COMPANY (ILLINOIS RIVER DIVISION) 129
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Ohio River Company, a West Virginia corporation, with its
principal office in Cincinnati, Ohio, is engaged in the operation of
vessels and barges on the Ohio, Mississippi, and Illinois waterway
river systems. The Company maintains terminals at Canton and
Joliet, Illinois, Huntington, West Virginia, and Cincinnati and
Addyston, Ohio. Its operation of vessels on the Illinois River Sys-
tem is solely involved in the present proceeding. During 1944, the
Company's vessels and barges handled approximately 4,000,000 tons
of raw materials, consisting principally of coal, steel, alcohol, and oil,
valued in excess of $2,500,000.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act, and we so find.
II. THE ORGANIZATIONS INVOLVED
National Marine Engineers Beneficial Association, Local No. 6, is
a labor organization, affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company.
International Brotherhood of Firemen and Oilers, Maintenance
Men and Helpers, Local No. 6, is a labor organization, affiliated with
the American Federation of Labor, admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On August 31, 1943, the Company entered into a joint collective
bargaining agreement with the F. & O. and the National Organiza-
tion of Masters, Mates & Pilots, hereinafter called the MMP. In the
contract, the Company recognized the F. & O. and the MMP as
joint representatives for the licensed and unlicensed engineers and
the masters, mates, and pilots operating its boats on the Illinois
River Division, respectively.' As to duration, termination, and mod-
ification, the contract provides as follows :
This agreement shall be and remain in full force and effect for
a period of two years . . . [June 1, 1943, to May 31, 1945],
and for subsequent periods of one year thereafter, unless notices
are sent by either party at least thirty (30) days prior to . . .
[May 31, 1945], or to any anniversary thereof, of desire to termi-
1 There is no question concerning the representation of masters , mates, or pilots in
this proceeding.
688572-46-10
130 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
nate or modify this agreement. The above to be in effect except
as to general wage rates, hours and working conditions, which
may be reopened for making adjustments by either party by
giving thirty (30) days written notice at any time after sixty
(60) days from the date of the signing of this contract [August
31, 1943].
On April 26, 1945, the MMP addressed a letter to the Company,
which reads' as follows : 2
In accordance with the existing agreement between The Ohio
River Company of Cincinnati, Ohio, and the National Organiza-
tion of Masters, Mates and Pilots of America the above-men-
tioned organization desires to serve the thirty days written notice
as provided for in the above-mentioned agreement with its
request to amend the present agreement.
The MEBA filed its petition herein on June 4, 1945, and immediately
thereafter the Board's Regional Director notified the Company of
the filing of the petition .3
At the hearing, the F. & O. contended that the contract was auto-
matically renewed on May 31, 1945, for a period of 1 year,' before
the petitioner's claim was asserted, and that the 30-day notice served
by its corepresentative, the MMP, merely "reopened [the contract]
for making adjustments" as to general wage rates, hours and working
conditions without affecting the remaining features of the contract
or rendering it ineffectual as a bar to a determination of representa-
tives 4 The MEBA, in effect, contends that the MMP's notice was
a 30-day notice to "terminate or modify," which forestalled the
operation of the automatic renewal clause, and thus rendered the
contract inoperative as a bar. The Company takes no position in
the matter.
In deciding this issue, although we find the text of the letter
amb} ;uous, we think its date is highly significant. April 26 was the
eminently suitable time for exercise of the power, possessed by each
of the contracting parties, to prevent the automatic renewal of the
agreement for another year. Indeed, only 5 days remained in which
Uncontradicted evidence reveals that the Company interprets this letter as "opening
up" the F. & O.'s, as well as the MMP's, portion of the joint contract for the purpose
of amendment.
• we find no merit in the Company's contention that these facts are insufficient to
raise a question concerning representation. See Matter of Portland Lumber M{lls, 56
N. L, R. B. 1336.
•In support of its position, the F. & O. points to the fact that on August 28, 1945,
more than 60 days after the terminal date, the Company, the F. & O , and the MMP
"amended" the contract, modifying the wage and vacation provisions thereof. Inas-
much as the question is one of objective interpretation of the letter, to determine
what intent it conveyed at the time it was written, we attach no controlling signifi-
cance to this fact.
THE OHIO RIVER COMPANY (ILLINOIS RIVER DIVISION) 131
that power could be exercised during the current contract term. In
contrast, the power merely to "reopen" the agreement for adjustments
as to wages, hours, or working conditions, could have been exercised
at any time after October 30, 1943, and was not subject to periodic
suspension. In the circumstances, we construe the letter of April
26 as a 30-day notice to "terminate or modify" the contract which,
pursuant to the first sentence of the clause quoted above, forestalled
operation of the automatic renewal provision. In addition, we note
that this contract which could be, and was, "reopened" as to wages,
hours, and working conditions, might in any event be deemed ineffec-
tive as a bar." For these reasons there is no contractual bar to an
immediate determination of representatives.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that MEBA represents a substantial number of
employees in the unit hereinafter found appropriate.6
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with the stipulation of the parties, that all
chief engineers, assistant engineers, and junior engineers, whether
licensed or unlicensed, employed on board all vessels owned and
operated by the Company in its Illinois River Division, excluding
the port engineer and all other employees of the Company, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.7
V. THE DETERMINATION OF REPRESENTATIVES
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.
5 See Matter of Standard Oil Company of Indsana (South Bend Division ), 56 N. L. R. B.
1101; Matter of Corn Products Refinsng Company , 52 N. L. R. B. 1324; Matter of Henry
Weis Manufactursng Company, Incorporated , 49 N. L. R. B. 511; Matter of Dedman
Foundry & Machine Company, 50 N. L. R. B. 1019; cf. Matter of Green Bay Drop Forge
Company, 57 N. L. It. B. 1417; Matter of Marvel-Schebier Division, Borg Warner Corpora-
tton, 56 N. L. R. B. 105.
The Trial Examiner reported that the MEBA submitted 10 cards, bearing the names
of 6 employees listed on the Company 's pay roll of June 30, 1945 , which contained the
names of 9 employees in the appropriate unit. The F. & O. relies upon its current
contract as evidence of its interest.
7 See Matter of Central Barge Company , 64 N. L. It. B. 1059.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Relations 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 The Ohio River
Company (Illinois River Division), Cincinnati, Ohio, 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 supervision of the Regional Director for the Thirteenth
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 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 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 they desire to be represented by Local No. 6,
National Marine Engineers Beneficial Association, C. I. 0., or by
International Brotherhood of Firemen, Oilers, Maintenance Men and
Helpers, Local No. 6, A. F. of L., 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.