Aluminum Co. of America

In the Matter of ALUMINUM COMPANY OF AMERICA and ALUMINUM EMPLOYEES ASSOCIATION In the Matter of ALUMINUM COMPANY OF AMERICA AND ITS WHOLLY- OWNED SUBSIDIARY , CAROLINA ALUMINUM COMPANY and INTERNA- TIONAL UNION9 ALUMINUM WORKERS OF AMERICA Cases Nos. R-1020 and R-1021, respectively.Decided November 18, 1938 , Aluminum Manufacturing Industry-Investigdtion of Representatives: con- troversy concerning representation , of employees : employer's refusal to grant recognition until question concerning representation was determined by ,the Board-Contract : no bar to determination of representatives where initial period had expired and contract was terminable on 30 days ' notice, and where no exclusive bargaining rights, but merely right to bargain for members only,- were granted-Unit Appropriate for Collective ' Bargaining : production and- maintenance employees , time checkers and way clerks , excluding supervisors and office employees, watchmen, guards, office janitors , farm and dairy em- ployees; stipulation as to-Election Ordered Messrs. Maurice J. Nicoson, Berdon M. Bell, and M. A. Prowell, for the Board. . - Mr. R. R. Kramer, of Knoxville, Tenn., for the Company. Mr. Will A. MeTeer, of Maryville, Tenn., for the Association. Mr. J. Alfred Wilner, of Pittsburgh, Pa., for the Union. Messrs. Charlton Ogburn cep Arthur Reyman, of New York City, Mr. James F. Barrett, of Atlanta, Ga., and Mr. Arthur R. Cook, of Pittsburgh, Pa., for Local No. 19104. Mr. S. G. Lippman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 20, 1937, Aluminum Employees Association , an unaf- filiated organization, herein called the Association, filed with the Regional Director for the Tenth Region (Atlanta, Georgia), a pe- tition, alleging that a question affecting commerce had arisen con- cerning the representation of employees of Aluminum Company of 9 N. L. It. B., No 89. 944 DECISIONS AND ORDERS 945, America, Alcoa, Tennessee, herein called the Company, and request- ing an investigation and certification of representatives pursuant to. Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 31, 1938, International Union, Alu- minum Workers of America, affiliated with the Committee for In- dustrial Organization, herein called the Union, also filed a petition with the same Regional Director, alleging that a question affecting commerce had arisen concerning the representation of employees of the Company. On August 9, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations. Board Rules and Regulations-Series 1, as amended, ordered an in- vestigation and authorized the Regional Director to conduct it and to provide for an -appropriate hearing, and further ordered, in ac- cordance with Article III, Section 10 (c) (2), of the above-men- tioned Rules and Regulations, that the petitions filed by the Associa- tion and the Union should be consolidated for the purpose of hearing. On August 25, 1938, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the Asso- ciation, the Union, and Aluminum Workers Union, Local No. 19104, affiliated with the American Federation of Labor, herein called Local' No. 19104, a labor organization claiming to represent employees di-. rectly affected by the investigation. On August 30, 1938, an amended notice of hearing was issued by the Regional Director and duly served on all parties postponing the hearing. Pursuant to the notice, a hearing was held on September 15, 1938, at Knoxville, Tennessee,. before Horace - A. Ruckel, the Trial- Examiner duly designated by- the Board. The Board, the Company, the Association, the Union,, and Local No. 19104 were represented by counsel and participated 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. At the beginning of the hearing counsel for- the Union moved to' amend its petition to include Carolina Alumi- num Company, a wholly owned subsidiary of the Company. No, objection was raised to the request, and the Trial Examiner granted the motion. Counsel for Local No. 19104 appeared and filed peti- tions requesting permission to intervene. The Trial Examiner granted the motion. Local No. 19104 also moved that the petitions, filed by the Association and the Union for certification of'representa-- tives be dismissed. The Trial Examiner denied these motions. These, rulings of the Trial Examiner are hereby affirmed. During the course, of the hearing the Trial Examiner made several" other rulings on, motions and objections to the admission of evidence. The Board has_ reviewed the rulings of the Trial Examiner, and finds, that no preju dicial errors were committed. The rulings are hereby affirmed. On, 946 NATIONAL LABOR RELATIONS BOARD September 17, 1938, Local No. 19104 requested permission to argue orally before the Board. On October 15, 1938, the Board denied this request but accorded Local No. 19104 an opportunity to file a memo- randum in support of its position within 5 days from the date of the order. On October 19, 1938, Local No. 19104 asked for a reconsid- eration of the Board's denial and in the alternative requested an extension of 10 days in which to file a memorandum in support of its position. The Board granted the requested, extension. Local No. 19104, however, did not avail itself - of , this privilege and failed to file any memorandum. Upon the-entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 1 Aluminum Company of America,,a Pennsylvania corporation, to- gether with its 17 subsidiaries,, is engaged in the mining, refining of bauxite, and in the smelting, manufacturing, and fabrication of aluminum. Carolina Aluminum Company, a North Carolina cor- poration, is one of the subsidiaries of the Company, which owns and operates power plants at Rymers Ferry, North Carolina, and Tapoco, North Carolina. In the present proceeding-we are only concerned with the operations of the Aluminum Company of America, located at Alcoa, Tennessee, and at Calderwood, Tennessee, and the power plants of Carolina Aluminum Company, its wholly owned subsidiary at Rymers Ferry, North Carolina, and Tapoco, North Carolina, herein collectively called the Alcoa Works. The Alcoa plants are engaged principally in the manufacture of carbon electrodes, the smelting of aluminum, the fabrication of sheet and plate aluminum, the fabrication of aluminum ingots, and the manufacture of aluminum powder. The plants at Calderwood, Ry- mers Ferry, and Tapoco furnish the power which is necessary for the operation of the manufacturing units at Alcoa. The principal raw material used at the Alcoa plant is alumina, which is shipped to Alcoa from points outside the State of Tennes- see. • The Company also uses divers other products, the majority of which also comes from points outside the State of Tennessee. From January 1, 1938, to August 1, 1938, the Company received approxi- mately 2,255 carloads of raw materials. More than 90 per cent of the products of the Alcoa plants are shipped tp points outside the State of Tennessee. From January 1, 1938, to August 1, 1938, the 1 For further discussion of 'the business of the Aluminum Company of America, see Matter of Aluminum Company of America and Aluminum Workers Union ' No. 19104, 1 N. L. R. B . 530. DECISIONS AND ORDERS 947 Company shipped approximately 589 carloads of its products pro- duced at Alcoa, Tennessee. In conjunction with its Alcoa operations, the Company operates a quarry, a concrete mixing plant, and a brick plant. The products of these plants are used when needed for building and maintenance work. The balance of the product is sold in the open market. The Company also owns a town site which is mainly inhabited by its employees. A service department, a farm and a dairy are maintained by the Company for the benefit of the town site: The Company and Carolina Aluminum Company in all the above operations employ approximately 4,032 employees. II. THE ORGANIZATIONS INVOLVED Aluminum Employees Association is an unaffiliated labor union admitting to its membership employees at the Alcoa Works, exclu- sive of supervisory and salaried employees. International Union, Aluminum Workers of America, is a labor organization affiliated with the Committee for Industrial Organiza- tion. It admits to its membership employees at the Alcoa Works, exclusive of supervisory and clerical employees. Aluminum Workers Union, Local No. 19104, is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership employees at the Alcoa Works, exclusive of supervisory and clerical employees. III. THE QUESTION CONCERNING REPRESENTATION On December 2, 1936, the Company and its subsidiaries entered into an agreement with various aluminum workers' locals affili- ated with the American Federation of Labor, herein called the A. F. of L. The agreement covered members of the A. F. of L. at six plants located at Alcoa, Tennessee; Badin, North Carolina; East St. Louis, Illinois; Logans Ferry, Pennsylvania; Massena, New York; and New Kensington, Pennsylvania. It was to remain in effect "until November 1, 1937, and thereafter until modified after at least thirty (30) days' notice." Neither the A. F. of L. nor the Company has asked that the agreement be modified. The agreement does not grant the A. F. of L. exclusive bargaining rights but only the right to bargain "for any employee at the aforesaid plants who designates the Union as his or her representative." On July 17, 1937, approximately 500 members of Local No. 19104 voted to affiliate with the Committee for Industrial Organization, herein called the C. I. O. The Union; affiliated with the C. I. O. was subsequently :established. Local No., 19104 did not go out of, existence but continued to represent those of its members who did not wish to affiliate with the C. I. O. 134068-39-vol. ix--61 948 NATIONAL LABOR RELATIONS BOARD On September 30, 1937, the Union wrote to the Company advising it that a majority of the employees covered by the agreement had shifted their allegiance to the Union, and that it represented a ma- jority of the Company's employees. The Union also requested a bar- gaining conference. The Company replied that it would deal with the Union only as the representative of such employees as had desig- nated it as their representative, but that the Company would not deal with the Union as the exclusive representative of the employees until it has been established by the Board "that those employees in units appropriate for such purpose shall have designated or selected your locals or International as their bargaining agency." On December 30, 1937, the Union sent a second letter to the Company enclosing a copy of a revised contract in which the Union stated its intention to bargain for the six plants mentioned in the A. F. of L. contract, and all other plants of the Company as the exclusive bargaining rep- resentative. The Company replied reiterating its answer to the Union's first letter and in addition stated, "After this question has been settled we will be glad to arrange for a convenient date to meet with your committee to discuss the proposed changes in the agree- ment for such of our plants as your committee may represent." The Association claims to represent 'a majority of the employees of the Company at the Alcoa Works. On September 14, 1937, the Association met with the Company for. the purpose of negotiating a contract. The Company stated that there were three labor organi- zations at Alcoa and that it could not enter into any agreement until it had been established which of the labor organizations had been designated by a majority of its Alcoa employees. Local No. 19104 asserted in its motion to dismiss the petitions that the contract of December 2, 1936, which is still in existence, is a bar to any determination of representatives by the Board. We cannot agree with this contention. After November 1, 1937, the contract having run for almost a year, it became terminable upon 30 days' notice. On September 30, 1937, the Union gave notice to the Com- pany of its claim to exclusive bargaining rights. Under these circum- stances the contract offers no bar to a determination of representatives in this proceeding.2 Furthermore, the contract does not grant Local No. 19104 exclusive bargaining recognition, but merely the right to represent those who had designated it as their bargaining agency. Each of the petitioners in this proceeding is expressly seeking ex- clusive recognition. Such an agreement for members only will not 2 Matter of Metro-Goidwyn-Mayer Studios, and Motion Picture Producers Assn, et al. and Screen Writers Guild, Inc, 7 N. L. R. B. 662; Matter of Utica Knitting Company and American Federation of Labor, Local No. 21500 , 8 N. L. R. B. 783; Matter of Quality Furniture Mfg. Co. and United Furniture Workers of America , Local 576, C. I. 0., 8 N. 'L. R. B. 850. - ' DECISIONS AND ORDERS 949 preclude the Board from certifying a representative as the exclusive bargaining agent of employees within an appropriate unit, if a majority of the employees within such unit desire such representa- tive.3 We find that the contract is no bar to any determination of representatives under Section 9 (c) of the Act. We find that a question has arisen concerning representation of em- ployees of the Company and of Carolina Aluminum Company, its wholly owned subsidiary, at the Alcoa Works. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company and Carolina Aluminum Company, its wholly owned subsidiary, 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 During the hearing the parties agreed "that all the production and maintenance employees, including the timecheckers and way clerks, but excluding supervisors, office employees, watchmen, guards, and office janitors, shall constitute the appropriate bargaining unit." The parties interpreted this unit to include all employees who are shown on the pay roll as construction employees and all employees in the power division at Calderwood, Tennessee, Rymers Ferry, North Carolina, and Tapoco, North Carolina, and all employees in the Mis- cellaneous, Operation and Construction Division, excluding farm and dairy employees. We see no reason to alter the agreed unit. We find that the production and maintenance employees, time check- ers and way clerks at the Alcoa Works, excluding supervisors and office employees, watchmen, guards, office janitors,_ farm and dairy employees, constitute a unit appropriate for the purposes of collec- tive bargaining, and that such unit will insure to employees of the Company and of Carolina Aluminum Company, its wholly owned subsidiary, at the Alcoa Works the full benefit of their right to self- organization and collective bargaining, and otherwise effectuate the policies of the Act. 3 Matter of McKesson & Robbins, Inc., Biumauer Frank Drug Division, et al., 5 N. L. It. B. 70; Matter of City Auto Stamping Company and International Union, United Auto- mobile Workers of America, Local No. 12, 3 N. L. R: B. 306; Matter of Northrop Corpora- tion and United Automobile Workers, Local No. 229, 3 _ N. L. R. B. 228. 950 NATIONAL LABOR RELATIONS BOARD VI. THE DETERMINATION OF REPRESENTATIVES The Union, the Association, and Local No. 19104 each claim to represent a majority of the employees in the appropriate unit. No evidence was introduced at the hearing on the basis of which we can make a finding that a majority of the employees in the appropriate unit has designated and selected any of said organizations as their representative for the purpose of collective bargaining. We, there- fore, find that an election by secret ballot is necessary to resolve the question concerning representation. The Company's pay roll for the week including February 1, 1938, was introduced into evidence. At the hearing it was stipulated by the parties that the employees in the appropriate unit on the pay roll of the Company for the week including February 1, 1938, excluding those who have since quit or been discharged for cause, should be eligible to vote, and we shall so direct. On 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 repre- sentation of employees of Aluminum Company of America, and of Carolina Aluminum Company, its wholly owned subsidiary, at the Alcoa Works, within the meaning of Section 9 (c), and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees, time checkers and way clerks at the Alcoa Works, excluding supervisors and office em- ployees, watchmen, guards, office janitors, farm and dairy employees, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the National Labor Rela- tions 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Aluminum Company of America and Carolina Aluminum Com- pany, its wholly owned subsidiary, at the Alcoa Works, an election by, secret ballot shall be conducted within fifteen ( 15) days from the date of this Decision and Direction of Election , under the direction and supervision of the Regional Director for the Tenth Region, act- DECISIONS AND ORDERS 951 ing in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the production and maintenance employees, time checkers and way clerks at the Alcoa Works on the pay roll for the week including February 1, 1938, excluding supervisors and office employees, watch- men, guards, office janitors, farm and dairy employees, and those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by the Aluminum Employees Association, the International Union, Aluminum Workers of Amer- ica, affiliated with the Committee for Industrial Organization, the Aluminum Workers Union, Local No. 19104, affiliated with the Amer- ican Federation of Labor, for the purposes of collective bargaining, or by none of them. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION November 29, 1938 On November 18, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, the election to be held within fifteen (15) days from the date of the Direction, under the direction and supervision of the Regional Director for the Tenth Region. The Board, at the request of the Regional Director, hereby amends the Direction of Election issued on November 18, 1938, by striking there- from the words, "within fifteen (15) days from the date of this Direction," and substituting therefor the words, "within twenty (20) days from the date of this Direction." 9 N. L. R. B., No. 89a.