Koch Sand & Gravel Co.

National Labor Relations Board - Board Decisions

Dec 19, 1940

28 N.L.R.B. 692 (N.L.R.B. 1940)

In the Matter of KOCH SAND & GRAVEL COMPANY and LOCAL 181,
INTERNATIONAL UNION OF OPERATING ENGINEERS, AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR
Case No. R-P 01.Decided December 19, 1940
Jurisdiction : sand and gravel excavating industry.
Investigation and Certification of Representatives : existence of question : dis-
pute as to appropriate unit ; election necessary.
Unit Appropriate for Collective Bargaining : all employees, on the tug boat,
dredge boat, and derrick boat of the Company, excluding supervisory and clerical
employees; shore employees excluded in view of existing extent of organization.
Mr. Isidor Kahn, of Evansville, Ind., for the Company.
Mr. Arthur Watkins, of Evansville, Ind., for the Union.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 17, 1940, Local 181, International Union of Operating
Engineers, affiliated with the American Federation of Labor, herein
called the Union, filed with the Regional Director for the Eleventh
Region (Indianapolis, Indiana) a petition alleging that a question
affecting commerce had arisen concerning the representation of employ-
ees of Koch Sand & Gravel Company, Evansville, Indiana, herein called
the Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On December 3, 1940, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act, and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing' upon due notice.,
On December 4, 1940, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
Union. On December 5, 1940, the Company filed a motion for a con-
tinuance. On December 6, 1940, the Regional Director issued an order,
28 N. L. R. B., No. 102.
692
KOCH SAND & GRAVEL COMPANY 693
granting the motion. Pursuant to notice, a hearing was held on
December 11, 1940, at Evansville, Indiana, before Arthur R. Donovan,
the Trial Examiner duly designated by the Board. The Company
was represented by counsel, the Union by its representative; both par-
ticipated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner made several rulings on-motions and on objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. 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
Henry Koch, Minnie Koch, Bert Koenig, and John Ohl, co- partners
doing business as Koch Sand & Gravel Company, are engaged in
digging sand and gravel from land in and adjoining the Ohio River,
portions of which are in the States of Kentucky and Indiana. The
Company excavates over 100,000 tons of sand and gravel annually,
approximately 25 per cent of which is moved in interstate commerce.
The Company admits that it is engaged in interstate commerce.
II. THE ORGANIZATION INVOLVED
Local 181, International Union of Operating Engineers, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership all employees on the tug boat, dredge boat, and
derrick boat of the Company, excluding supervisory and clerical
employees.'
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant exclusive recognition to the
Union because it contends that the unit urged by the Union is inap-
propriate. A statement of the Trial Examiner at the hearing shows
that the Union represents a substantial number of the employees in
the unit alleged by it to be appropriate.'
We find that a question has arisen concerning the representation of
employees of the ,Company. '
' The Trial Examiner's statement shows that 1 7 employees whose names appear on the
Company 's pay roll of December 14, 1940, have signed application cards in the Union
There are approximately 17 employees in the unit alleged by the Union to be appropriate:
694 DECISIONS .9F NATIONAL LABOR RELATIONS BOARD
1V. THE EFFECT OF.THEQUESTION CONCERNING REPRESENTATION UPON
COMMERCEi
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 and
tends to lead to labor- disputes burdening and obstructing commerce,and
the free flow of commerce.
V. THE APPROPRIATE-UNIT
The Union urges that; all employees, on • tlie jtug boat, dredge boat,
and derrick boat of the Company, excluding supervisory and clerical
employees, constitute an appropriate, unit.: The Company contends
that these employees, plus its shore employees, constitute an appropri-
ate bargaining unit. The parties are also in disagreement as to the
,supervisory status of five named employees. ,
The employees in the unit urged by ,the Union. are all employed
by the Company in its marine operations. There is no indication in
the record that the shore employees are eligible to membership in the
Union or that the Union has ever attempted to organize these employ-
ees.. In view of the existing extent of organization among the em-
ployees of the Company we find that the marine employees and the,,,
shore employees of the' Company should not be combined in a single
unit at this time.
With respect to the status of the five employees in dispute, it
appears that Fred ,Wainman,and, L: Johnson are employed by the,
Company as engineers, Tilford Baker,,as a pumpman,,,and ,Theodore.; :.,
Johnson and Thomas Miller as pilots. ,,The -Company; asks, that;,,.:
Wainman, L. D. Johnson, and Baker,be excluded from, the unit on the,,,,
ground'that'they are supervisory employees and the Union urges that;
Theodore Johnson and Miller be excluded from the unit because they
are supervisory employees; , The;engiiieers, and_the.pilots are licensed
by the United States Government whereas the remaining employees,
are not. The.record,contains no evidence that the engineers perform
supervisory. functions except that. they.. give instructions to the fire-
men. ,It appears ,that; Baker's„duties- are similar 'to those of the
engineers:,*,.'Although the, pilots direct the course of the. Company's
tug boat, it does not appear that their, duties, are such as, to align them
with. the management of the,Company.. One of the partners of the
Company is in complete charge of its marines, operations and-is-con-
stantly overlooking the Company's operations. ;' 'LTpder,,the e,, circum
stances , we` find that :Fred..1 I.VPainmen , , L. D. Johnson , Tilford Baker
, f` 713'^,"4 . ),
^, l..t 1, 1 ... k . ^•
Theodore, Johnson, and Thomas Miller should be included in the unit.
KOCH'SAND & GRAVEL COMPANY 695
We find' that 'all the` employees' on the tug boat, "dredge boat, and
'derr'ick boat of the Corn any; excluding supervisory and clerical em-
ployees, 'constitute a unit' appropriate for the 'purposes of collective
bargaining, 'an'd that such unit will insure to employeest of the Corn-
' pant the'full bene'fi't` of their right to self-org'ani`zation_and to'collective
bai wining aiid'otherwise effectiiate'the policies of the Act.
`' W.2 THE DETERMINATION OF` REPRESENTATIVES
We find that' the`question concerning representation 'Wliich' "has
arisen, can best be resolved'by an election by secret ballot. Originally,
the Union andthe Company'agreed•that in the event' the Board directed
an election they desired that the pay toll of December 14,"1640, be'iised
to determine eligibility to vote., The' Comp,,iny'the'reafter `stated'that
it agreed to this'pay roll only if employees hired' subsequent'the'reto
would also'be• eligible to' vote. No reason appears 'Why the'pay 'roll
•-inun'ediately'preceding the date of 'our` Direction'should notbe used to
determine eligibility to vote in'the election."'We find tha the 'employ-
ees of,the Company eligible to vote in the election shall be those em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of this Direction of Election
herein, including employees who did not work during such pay-roll
period because they were ill or on vacation and employees who were
then or have since been temporarily laid off, but excluding those who
have since quit or been discharged for cause.
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 rep-
resentation of employees of Koch Sand & Gravel Company, Evansville,
Indiana, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All employees on the tug boat, dredge boat, and derrick boat of
the Company, excluding supervisory and clerical employees, consti-
tute 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 Relations Act,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation authorized by the-Board
to ascertain representatives for the purposes of collective bargaining
with Koch Sand & Gravel Company, Evansville, Indiana, 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 Eleventh Region, act-
ing in this matter as agent of the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations, among
all the employees on the tug boat, dredge boat, and derrick boat of the
Company who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during such pay-roll period because they were ill or on vacation
and employees who were then or have since been temporarily laid 'off,
but excluding supervisory and clerical employees and employees who
have since quit or been discharged for cause, to determine whether or
not they desire to be represented by Local 181, International Union of
Operating Engineers, affiliated with the American' Federation of Labor,
for the purpose of collective bargaining.