Texas-Zinc Minerals Corp.

TEXAS-ZINC MINERALS CORPORATION 603 Washington news bureau and his staff, the business, food and student correspondents, and all other employees, supervisors, and guards as defined in the Act [Text of Direction of Election omitted from publication ] Texas-Zinc Minerals Corporation I and United Steelworkers of America, AFL-CIO, Petitioner. Case No 20-RC-3851 Feb- ruary 11, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert Magor, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 Briefs were submitted by the Petitioner, in behalf of itself and the Joint Intervenors,' by the Employer, and by the Navajo Tribe of Indians 4 The Board has fully considered the briefs and the entire record in this case, and finds 1 The Navajo Tribe intervened for the sole purpose of moving to dismiss the petition The principal issues presented are whether the Act applies to a plant located on the Navajo Indian reservation, and if the Act does apply, whether the Board should assert jurisdic- tion over such a facility The Employer is a corporation which operates a uranium concen- trate mill at Mexican Hat, Utah Pursuant to a contract with the Atomic Energy Commission, the Employer annually ships over $5,000,000 worth of uranium concentrate to the A E C in Colorado. The Employer's operations are subject to the security regulations of the A E C , and the Employer may not sell its product to a third person without the consent of the A E C All the land occupied by the mill is located on the Navajo reservation and leased to the Em- ployer by the, Navajo Tribe Of the 87 employees in the requested unit, 47 are members of the Tribe and 40 are not Indian The Navajo reservation is comprised of contiguous tracts of land lying in the States of Arizona, New Mexico, and Utah, occupies 25,000 square 3 The name of the Employer appears as corrected at the hearing Z The parties' requests for oral argument are denied , as the record and the briefs ade quately present the issues and the positions of the parties s The International Union of Operating Engineers, AFL-CIO, and the International Hodearriers, Building and Common Laborers Union of America, AFL-CIO, intervened jointly on the basis of a showing of interest 4 The Navajo Tribe of Indians is hereafter referred to as the Navajo Tribe 126 NLRB No 70 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miles, an area equivalent to that of the State of West Virginia; and is inhabited by about 87,000 Indians. Over a year before the instant petition was filed, the Petitioner 5 and one of the Joint Intervenors 6 filed petitions for an election among employees of the Employer. On April 2, 1958, a consent election was conducted off the reservation. The chairman of the Navajo Tribe's governing body immediately protested to the Employer and the Peti- tioner, claiming that the election was a nullity. In May 1958, while the results of the election were still inconclusive, both petitions were withdrawn with the approval of the Regional Director. During the summer of 1958, the Navajo Tribe's Advisory Committee held hear- ings at which representatives of unions and management testified with respect to the advantages and disadvantages of unions. August 26, 1958, the Tribal Council approved a resolution 7 which provides in part : ... It shall be unlawful for any person to solicit for member- ships in or to conduct any other incident or adjunct of unioniza- tion activities on the Navajo Indian reservation... . .. . Any Indian who shall knowingly . . . violate . . . this reso- lution . . . shall be sentenced to labor for a period . . . not to exceed 30 days. . . . Any non-Indian who shall knowingly . . . violate . .. this resolution . . . shall be excluded from Navajo Tribal land. .. . The instant petition was tiled May 12, 1959, and the Navajo Tribe, as a special Intervenor, is the sole party herein to oppose the direc- tion of an election. It is well established that the Indian tribes in America are deemed to have many of the attributes of a nation. Thus, although their external sovereignty has been extinguished, their internal sovereignty is preserved except where limited by treaty or Act of Congress.11 The Navajo Tribe contends that it retains broad powers of self- government under its treaty s with the United States and that the Act does not evince a congressional purpose to supersede tribal author- ity over labor relations on the reservation. 8 Case No 20-RC-3469, filed January 14, 1958 6 Case No. 20-RC-3540, filed April 9, 1958. 4 This resolution was submitted to the Commissioner of Indian Affairs of the Depart- ment of the Interior A memorandum to the Conimisrioner from the Assistant Solicitor for Indian Legal Activities of the Department of the Interior was admitted in evidence. It states that the law does not require the Commissioner to approve or disapprove the resolution 9 See Department of the Interior, The Federal Indian Law (1958), p 398 9 Treaty of June 1, 1868, 15 Stat 667 Article II of this treaty states The United States agrees that [the Reservation] . shall be, and the same is hereby, set apart for the . . Navajo Tribe , and the United States agrees that no persons except . such employees of the government , or of the Indians, as may be authorized to enter upon Indian reservations in discharge of duties im- TEXAS-ZINC MINERALS CORPORATION 605 In J. R. Simplot Company, d/b/a Simplot Fertilizer Company,10 the Board directed an election among the Indian and non-Indian employees of a plant located on a reservation of the Shoshone-Bannock Tribes. The Navajo Tribe would distinguish that case on the ground that the Shoshone-Bannock Tribes, unlike the Navajos, have adopted a constitution under the Wheeler-Howard Act." The constitution and bylaws of the Shoshone-Bannock 'Tribes provide that the governing body of their reservation shall exercise certain powers- .. , subject to any limitations imposed by the statutes or the Constitution of the United States . . . . In effect, the Navajo Tribe argues that this provision conferred juris- diction on the Board in the Simplot case and that Simplot is therefore inapposite. We are not persuaded by this line of argument; for, if the Board possessed jurisdiction in Simplot, it did so by virtue of the Act and not by virtue of tribal legislation. Nevertheless, in light of the importance and novelty of the issues raised by the Navajo Tribe, we have decided to reappraise the finding in Simplot that the Board has, and should exercise, statutory jurisdiction over a commercial enterprise on an Indian reservation. The Navajo Tribe contends that the instant case does not involve a question "affecting commerce" as that term is used in Section 9(c) (1), and defined in Section 2(6) and (7) of the Act. Section 2(6) of the Act, which defines "commerce," does not mention com- merce "with the Indian Tribes." Since Section 2(6) is fashioned after the "Commerce Clause" in article I, section 8, of the Federal Constitution, which does refer to commerce "with the Indian Tribes," it is argued that the failure to make such a reference in Section 2(6) evinces a congressional purpose to exclude such commerce. In sup- port of this interpretation of the Act, the Navajo Tribe cites the Supreme Court doctrine of Elk v. Wilkins. 12 That case contains the following dictum : . .. General acts of Congress did not apply to the Indians, unless so expressed as to clearly manifest an intention to include them. posed by law , or the orders of the President , shall ever be permitted to pass over, settle upon, or reside in, the territory described in this article. [Emphasis added.] See Williams v. Lee, 358 U S 217, 221-222 (1959), in which the Supreme Court con- strued this treaty to mean that ". . . the internal affairs of the Indians remained ex- clusively within the jurisdiction of whatever tribal government existed." 10 100 NLRB 771, 107 NLRB 1211 "The Wheeler-Howard Act provides in part : Any Indian tribe . shall have the right to org,inize for its common welfare, and may adopt an appropriate constitution and bylaws . . . . Act of June 18, 1934, 48 Stat. 987, 25 U S.C.A. Sec. 476. -112 U.S. 94 , 100 (1884). 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, the Navajo Tribe contends that, if the Act were inter- preted to apply to Indian reservations, it would conflict with the act of Congress defining the purview of the Commissioner of Indian Affairs. That statute, which was in force at the time the Wagner Act was passed, states : The Commissioner of Indian Affairs shall . . . have the man- agement of all matters arising out of Indian relations.13 The above contentions merit, and have been afforded, careful study and consideration. We believe, however, that a contrary result is supported by the weight of authority. Section 2(6) of the Act defines "commerce," inter alia, as ... trade, traffic, commerce, transportation, or communication among the several States... . Since the substantial shipments of uranium concentrate from the Employer's mill cross the Utah and Colorado lines, there is no doubt that these shipments literally constitute " commerce." Thus, although located on an Indian reservation, the Employer's milling operation would clearly appear to affect "commerce" as that term is defined in the Act. We perceive no valid basis for reading the Act to exclude from its coverage Indians or Indian reservations as a class . It is well estab- lished that Congress incorporated into the Act the full sweep of its commerce powers under the Constitution. The Supreme Court has held, for example, that the language of the Act- .. . evidences the intention of Congress to exercise whatever power is constitutionally given to it to regulate commerce. ...14 Where, under similar Federal statutes, Congress has legislated con- cerning a particular field of major national policy and where the reach of the statute is defined in sweeping language, the courts have held that Indians and Indian reservations, although not specifically mentioned, are contemplated with statutory coverage.15 Thus, in '3 See Rev. Stat. Sec. 463 , 25 U S C.A. Sec 2 is N.L R B. v. Fainblatt, at al., 306 U S. 601, 607 ( 1939) ; see also Amalgamated Asso- ciation of Street, etc., Employees of America, at al. v. Wisconsin Employment Relations Board, 340 U.S 383 , 391 (1951 ) , Polish National Alliance of the United States of North America v. N L.R.B., 322 US . 643, 647 ( 1944 ) ; Floridan Hotel of Tampa, Inc., 124 NLRB 261. as We note that the solicitor of the Department of the Interior has expressed the opinion that the dictum of Elk v. Wilkins, supra, was intended to apply only where a statute would affect the Indians adversely . Pursuant to this theory, the solicitor has expressed the view that Indians are entitled to the benefits of the Social Security Act and that the Federal Wage and Hour Act applies to certain Indian tribal enterprises. Op. Sol I D., M. 29999, November 28, 1938, Op Sol I D, April 22, 1936 Similarly, we believe that employees should not be deprived of the protection of Section 7 of the Act because they are of Indian ancestry, or because the commercial enterprise which pro- vides their employment is located on an Indian reservation . It appears in this case that there is compliance with the Social Security Act and the Internal Revenue Code on the .Navajo reservation , and that members of the tribe may vote in congressional elections. TEXAS-ZINC MINERALS CORPORATION 607 Superintendent v. Com,imiss-ioner of Internal Revenwe,ls the Federal income tax law was held to apply to certain income of a Creek Indian. There, the theory of the Elk v. Wilkins case was urged as ground for excluding Indians from coverage of that law. However, the Supreme Court found to the contrary, relying on the broad scope of the statutory references to "every individual" and income derived "from any source whatever." Similarly, the United States Court of Appeals for the Second Circuit referred to the broad statutory coverage of "every male citizen" in holding that the Selective Service Act applied to an Iroquois Indian." In view of all of the foregoing, we are constrained to conclude that the Act applies to commercial enterprises operating on an Indian reservation, and particularly to the Employer in this case. As in our opinion the requisite legal jurisdiction of the Board exists under the Act, we can perceive no validity in the further contention that the Board should nevertheless decline to assert its jurisdiction here. The Employer's operations, which plainly have a substantial impact on interstate commerce and the national defense," meet the requirements of the Board's jurisdictional standards. We have considered the relevant pronouncements of the Congress, the Department of the In- terior, and the courts, and we discern no Federal policy encouraging Indian self-government with which an exercise of jurisdiction herein would be at variance. Nor do we believe that the Tribal labor rela- tions resolution and the implied threats stemming therefrom can be grounds for depriving the Employer's employees of their rights under the Act. Accordingly, we find that the Employer's operations affect commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. We find that all production, maintenance, transportation and service-station attendant employees of the Employer at its Mexican Hat, Utah, operations, excluding all office clerical employees, dormi- tory employees, metallurgical and chemical laboratory employees, technical employees, professional employees, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the Is 295 U.S 418 (1935) 17 Ex Parte Green, 123 F. 2d 862 (CA. 2, 1941), cert. denied 316 U.S. 668 Is See Ready Mixed Concrete & Materials, Inc., 122 NLRB 318, Siemens Mailing Service, 122 NLRB 81, Member Jenkins concurring specially. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes of collective bargaining within the meaning of Section 9(b) of the Act.19 [Text of Direction of Election 20 omitted from publication.] MEMBERS RODGERS and JENKINS, dissenting : We dissent because in our view the National Labor Relations Board does not have jurisdiction over the Employer in this case. 19 The unit was stipulated by the parties 10 In its brief, the Navajo Tribe asserts that • (1) A direction of election and a re- quirement that the Employer enter into collective bargaining as to its operations on the Navajo reservation would in effect require the Employer to violate the tribal labor rela- tions resolution , and (2) such it violation of Navajo law would entitle the Navajo Tribe to cancel the Employer's lease and shut down the Employer's operations on the reserva- tion As to (2), the Employer adverts to paragraph 14 of its lease from the Navajo Tribe , which provides The lessee further agrees that it will not use or permit to be used any part of said premises for any unlawful conduct or purposes whatsoever; . , and that any violation of this clause by the lessee or with its knowledge, shall render this lease voidable at the option of the lessor In light of these facts , the Employer requests that the Board stay any order directing an election pending a final judicial determination of the Board 's jurisdiction herein Whether or not the lease can be terminated by the Navajo Tribe on a theory that "un- lawful conduct" was committed by the Employer in violation of the tribal resolutions (which are clearly contrary to statutory law under the Act), is a matter outside the purview of a representation proceeding Whether or not the Board stays its election order would not affect such rights , as exist , of the Employer or any of the parties to proceed in the courts concerning any matter directly or indirectly involved herein Since such a stay would be contrary to the Board's consistent practice and would, in our opinion, serve no useful purpose, the Employer ' s request is denied. Cecil J. Daggett, George Kruft, Joe W. King, Lewis Carriere, William Rote, Paul Ecenia, W. F. Trent, and Roy Kruft d/b/a Allied Chain Link Fence Company and Shopmen's Local 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case No. 23-CA-856.1 February 12, 1960 DECISION AND ORDER On August 14, 1959, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. 1 The original case number-39-CA-856-has been amended to reflect a recent change in the numerical designation of cases from the Board 's regional office in Houston , Texas. 126 NLRB No. 74.