Tennessee Copper Co.

In the Matter of TENNESSEE COPPER COMPANY and AIIEI:ICAN FEDERA- TION OF LABOR Case No. R-1853-Decided July 6, 1940 Jurisdiction : mining and milling industry. Investigation and Certification of Representatives : existence of question : refusal to accord recognition to union; contract with rival union subject to Board action ; election necessary. Strikers who pursuant to a strike settlement agreement obtained a prefer- ential status for hiring held eligible to vote. Persons hired during currency of a strike in the position of striking em- ployees held eligible to vote where pursuant to a strike settlement agreement strikers agreed to preferential status for reemployment. Unit Appropriate for Collective Bargaining : employees in mines and mills operated by employer at three communities exclusive of clerical and supervisory employees, chemists, and technical engineers Messrs. Warren Woods and Aleaander'E. Wilson, Jr., for the Board. Messrs. R. M. McConnelll; H. M. Barton, Jr., and G. Parks 'Hyatt, of Knoxville, Tenn. for the Company. Mr. Joseph Jacobs, of Atlanta`, Ga., for the A. F. of L. Messrs. J. A. Lipscomb and Edwin Brobston, of Bessemer, Ala.,'for the International. Miss Margaret Holmes, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 3, 1940, American Federation of Labor, herein called the A. F. of L., filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of Tennessee Copper Company, Copperhill, Tennessee, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 14, 1940, the Na- tional 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 2, as amended, 25 N. L. R. B., No. 22. . 218 TENNESSEE COPPER COMPANY 219 ordered an investigation and authorized the Regional Director to con- duct it and to provide for an appropriate hearing upon due notice. On May 14, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the A. F. of L., and International Union of Mine, Mill and Smelter Workers, herein called the International, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on May 23, 1940, at Chat- tanooga, Tennessee, before Mortimer Riemer, the Trial Examiner duly designated by the Board. At the commencement of the hearing, the Trial Examiner granted a motion to intervene filed by the Inter- national. The Board, the Company, the A. F. of L., and the Inter- national 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. During the hearing the International requested a continuance of 1 week on the ground that it had insufficient time to prepare for the hearing and on the further ground that it was prejudicially surprised by the introduction in evidence of a statement of the Regional Direc- tor concerning the membership claims of the A.' F. of L. The Trial Examiner denied the motion for a continuance and his ruling is hereby affirmed., The Trial Examiner also denied various motions by the International to dismiss the petition. His rulings are hereby affirmed. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 18, 1940, oral argument was had before the Board in Washington, D. C. The Company and the A. F. of L. were repre- sented and participated in -the argument. The Company, the A. F. of L., and the International filed briefs with the Board, which have been considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT L THE BUSINESS OF THE COMPANY Tennessee Copper Company, a New Jersey corporation; mines ore containing copper and other metals and produces pig copper and various byproducts at its mines and processing plants in Polk County, Tennessee. The ore is broken up and transported to flotation and sintering plants and to the smelter. The flotation plants extract 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copper, iron, zinc, and sulphur from the ore. The smelter extracts copper. The sintering plants produce a high-grade iron ore known as iron sinter. Acid plants produce sulphuric acid as a byproduct. Copper sulphate is another byproduct. The Company's operations center about three communities, Cop- perhill, Ducktown, and Isabella, which are collectively known as the Ducktown Basin. These three settlements describe an isosceles tri- angle with its apex at Copperhill on the south. Isabella and Duck- town are about one and one-half miles apart and are each about four miles from Copperhill. At Copperhill are the general offices of the Company, railroad shops serving the Company's private railroad connecting the three communities, a chemical laboratory, mechanical and carpenter shops, blast furnaces, a slag plant, copper converters, roasters, a sintering plant, acid plants, a company store, and a hospital. The headquarters of the Company's mining operations is at Duck- town, which also has a company store and a hospital. Burra Burra, McPherson, and London mines are near Ducktown. The Company operates a flotation plant at London mine but does not carry on mining operations there. At Isabella there are a flotation plant, a sintering plant, roasters, acid plants, a company store, and a hospital. Near Isabella are the Isabella and Eureka mines. These mines are connected with Burra Burra mine, which includes McPherson mine, and all are conducted as a single operation. The Company employs 718 persons at Copperhill, 411 at Ducktown, and 225 at Isabella. The total annual pay roll is about $2,000,000. About half of the supplies used by the Company, amounting to ap- proximately $50,000 each month, are purchased outside Tennessee, and include dynamite, fuse, and other materials. The Company produces annually about 12,000,000 pounds of pig copper, which is shipped to a refinery in New York City and after refining is sold in the market gen- erally, both domestic and foreign. The annual output of sulphuric acid is approximately 425,000 tons, 63 per cent of which is sold outside Tennessee in 10 States. The Company's annual production of iron sinter is 180,000 tons. Of this total, 85 per cent is shipped to Alabama and 10 per cent to Ohio. About 10,000,000 pounds of copper sulphate is manufactured yearly and sent to practically every State. The Com- pany's entire output of zinc concentrates, amounting to 3,500 tons annually, is shipped to Pennsylvania. The Company agreed that it is engaged in interstate commerce within the meaning of the Act. TENNESSEE COPPER COMPANY II. THE ORGANIZATIONS INVOLVED 221 The American Federation of Labor is a labor organization admitting to membership employees of the Company.' International Union of Mine, Mill and Smelter Workers is a labor organization which has chartered Local 176 at Copperhill, Tennessee, Local 183 at Ducktown, Tennessee, and Local 184 at Isabella, Ten- nessee. These locals, admit to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 26, 1939, the Board certified the International as the exclusive representative of the employees of the Company for the pur- poses of collective bargaining.2 Following the certification, there were negotiations between the Company and the International concerning a collective agreement. On July 14, 1939, the International called a strike which resulted in a stoppage of the Company's operations until August 28, 1939. The strike was settled on May 7, 1940, by the execu- tion of two contracts between the Company and the International. One of the contracts covered conditions of work and expressly provided that it would terminate if and when the Board certified a bargaining agency other than the International. The other contract was a strike settlement which provided that the International would cease picketing company plants and would call off the strike. By the terns of this agreement, 384 striking employees were placed on a preferential list for reemployment when work becomes available. Commencing in January 1939 the A. F. of L. made repeated requests, through its local officers and through the national office of the Aneri- can Federation of Labor in Washington, D. C., that the Company negotiate and bargain with it. The Company at all times refused to deal with the A. F. of L. on the ground that the Board had certified the International. We find that a question has, arisen concerning the representation of employees of the Company. 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 1 The petitioning union was referred to throughout the hearing as the American Federa tion of Labor However, in Matter of Tennessee Copper Company and A F of L Federal Union No 21164, 5 N L R. B 768, the petitioning union, which is apparently the same union as is here involved, was referred to as American Federation of Labor , Federal Union No 21164 'Matter of Tennessee Copper Company and A F. of L , Federal Union No 21164, 10 N. L R B. 1433. 222 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD 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 In its prior Decision 3 the Board found that an appropriate unit for the purposes of collective bargaining'consisted of all employees in the Ducktown basin,' excluding clerical and supervisory employees, chemists, and technical engineers. The A. F. of L. and the Company contend that such unit is the appropriate one. The International agrees that clerical and supervisory employees, chemists, and technical engineers should be excluded, but it insists that there should-be a separate unit at each of the Company's plants. As is pointed out in Section I, the operations of the Company center around the communities of Copperhill, Ducktown, and Isabella, Tennessee. The offices, shops, acid and sintering plants, and smelter are located at Copperhill and the evidence discloses that most of the Company's craft workers, such as machinists, lead-burners, and brick- layers, are stationed there. The mining operations are mainly cen- tered around Ducktown and Isabella. In its Decision of March 3, 1938, the Board found that there existed a high degree of interde- pendence and division of labor among the three communities and that there was a close physical relation among the various areas of operation. The Board also found that prior to 1937 collective bar- gaining had been conducted in general on the basis of a company- wide unit. The International insists that bargaining on the basis of the present company-wide unit has been dominated by the craft employees, thereby depriving the miners of a voice in collective bargaining. However, the International admits to membership employees engaged by the Company in the various types of craft work. It is also urged by the International that the conditions of work of the miners differ from those of the craft employees. However, the International intro- duced no evidence to establish that the conditions of work of the miners and craft workers are different from what they were when the Board considered them in its prior Decision, and the general manager of the Company testified that there has been no substantial change. We do not feel that either contention of the International 3 Matter of Tennessee Copper Company and A F. of L , Federal Union No. 21164, 5 N. L. R B 768 4 The Ducktown basin consists of all the mines , plants , and facilities of the Company in the areas of Coppeihill , Isabella, and Ducktown , Tennessee TENNESSEE COPPER COMPANY 223 presents a ground for disturbing tlie' unit we have previously found to be appropriate.5 ' We find that all employees of the Company in the Ducktown.basin, exclusive of clerical and supervisory employees, chemists, and .techni- cal engineers, constitute a unit 'appropriate for the purpose of collec- tive bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of. the Act.' VI. THE DETERMINATION OF REPRESENTATIVES Both the A. F. of L. and the International claim to represent a majority of the employees of the Company. A check by the Regional Director of the A. F. of L. membership claims reveals that a sub- stantial number of the employees are affiliated with the A. F. of L. Although the International did not submit its membership claims to the Regional Director for verification, its representative testified at the hearing that a substantial number of the employees of the Company are members of the Internationale We find that an elec- tion by secret ballot is necessary to a determination of representatives. The A. F. of L. and the Company contend that a current pay roll should be used to determine eligibility to'vote in the election. The International desires a pay' roll as of a period preceding July 14, 1939, the date on which the strike occurred. Since the strike termi- nated -by agreement between the Company and the International prior to the hearing in this case, we will direct that the pay roll last preceding the date of the Direction of Election be used. The International contends that some 384 persons whose names were-placed on a preferential hiring list -by the Company pursuant to the strike settlement are eligible to vote. The A. F. of L.- and the Company contend that only those employees on the preferential list who have actually `been hired should vote: The contract in settlement of the strike, executed on May 7, 1940, provides that 384 persons shall be hired-by the Company in all posi- 6 Compare Matter of Phelps Dodge Corporation, United Verde Branch and American Fedei ation of Labor, etc, 15 N L R B 732; Matter of Pittsburgh Plate Glass Company and Federation of Flat Glass Workers of America, s,ffiliated with the C 1. 0., 15 N. L. R B. 515; Pacific Greyhound Lines and Brotherhood of Railroad Trainmen, 22 N. L. R. B 111 e The International asserts that it was prejudiced by the introduction, in evidence of the Regional 'Dnector's statement since it was not permitted to challenge, the membership claims of the A. F. of L: This position is without merit. ° The International moved that no election be directed by the Board for` a period of 1 year on the ground that the Company had aided and assisted the A F of L. and dis- couraged membership in the International. The Trial Examiner denied the motion and ruled that evidence sought to be elicited by the International to support its charge was immaterial to the issues in a representation proceeding. His rulings have been affirmed in Section I, supra. t , . . , 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions which become available within the period of 1 year from the date of the contract, if from that group the Company is able to obtain persons qualified to do the work available. These individuals are to be hired as new employees, subject to a physical examination and without seniority or other rights incident to their previous employ- ment. Pursuant to the agreement, by June 18, 1940, the Company had hired 70 persons from the preferential list. At the oral argu- ment, counsel for the Company stated that 15 additional persons would be employed before July 15, 1940. Prior to May 7, 1940, the persons whose names now appear on the preferential list occupied the status of employees under Section 2 (3) of the Act, since their work had ceased in consequence of a current labor dispute. Incident to their status of striking employees was the right to participate in the selection of a bargaining repre- sentative to the exclusion of persons hired in their places during the strike, since to hold otherwise "might effectively foreclose the possibility of the settlement of the labor dispute,, whether by the return of the striking employees to their jobs and the displacement of the individuals occupying those jobs during the strike, or by some other settlement agreement, a possibility which the Act contem- plates should not be `foreclosed during the currency of the strike." 8 However, by the agreement of May 7, 1940, which terminated the strike, the striking employees relinquished the possibility of securing their jobs by the displacement of persons hired in their places during the strike and therefore the considerations which would warrant us to deny to the individuals who are now occupying positions formerly held by strikers the right to participate in the selection of a bar- gaining representative do not ,exist. The persons hired during, the currency of the strike in the positions of the striking employees are eligible to vote. ,The execution of the agreement, however, did not forfeit the right of the striking employees also to participate in the selection of a bargaining representative. The,settlement was in accordance with the declared policy of the Act to obviate industrial strife and the resultant burdens upon commerce through resort to the collective bargaining procedure.9 'By its terms,'the strike was terminated and the striking employees, through their chosen representatives, obtained a preferential status for hiring in lieu of certain rights incident to 8 Matter of A. Sartorius f Cc, Inc, and United Mine Workers of America District 50, Local 12090, 10 N L R B 493 See Also Matter of Horace G Prettyman and Interna- tional Typographical Union, 12 N L R B. 640; Matter of Easton Publishing Company and Eastern Typographical Union No 258, etc , 19 N L R B 389 9 Section 1 of the National Labor Relations Act, 49 Stat. 449, provides . It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the ' free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining . . . . TENNESSEE COPPER COMPANY 225 their status as striking employees. In our opinion the effectuation of the purposes of the Act requires recognition of this preferential status acquired through collective bargaining. That status, which has already resulted in the employment of a considerable number of the persons Who were formerly on strike, gives the persons possessing it an interest in employment and conditions of employment which entitles them to vote.10 Accordingly, we shall direct that all employees of the Company in the appropriate unit Whose names appear on the pay roll of, the Company and on the preferential list as of the pay-roll date last pre- ceding our Direction of Election,11 including employees Who did not work during such period because they were ill or on vacation and those who were then or who have since been temporarily laid off, but excluding those who have-since quit or been discharged for cause, shall be eligible to participate in the election. 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 Tennessee Copper Company, Copperhill, Tennessee, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees of the Company in the Ducktown basin, ex- clusive of clerical and supervisory employees, chemists, and technical engineers, constitute 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 . 10Compare Matter of The Connor Lumber (C Land Co and Inte ) national Ttvoodu,oil,eis of America, Local \'o 125 (C. I. 0), 11 N L. R B 776 ; Matte) of Armour d Corn pany and Looal 561, Meat Cutters Union, etc , 15 N. L R B 268 ; Matter of Rosedale Knitting Com- pany and Rosedale Employees Association, 23 N. L R B 527 11 The contract of May 7 , 1940 , permits the Company to remove the names of employeeu who are convicted of crimes or who fail to apply for ieunstatement fiom the preferential list of 334 poisons compiled at the time the contract was made Persons whose names have been so removed are not entitled to vote Therefore, we will dii ect that only those persons chose names appear on the preferential list as of the pa3-roll date last preceding the Direction of Election are eligible to vote 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Tennessee Copper Company, Copperhill,'Tennessee, 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 of Election under the direction. and . supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all employees of the Company in the Ducktown basin whose names appear on the pay roll of the Company and on the preferential list as of the pay-roll date last preceding this Direc- tion of Election, including employees who did not work during such period because they were ill or on vacation and those who were then or have since been temporarily laid off, but excluding clerical and supervisory employees, chemists, and technical engineers, and those employees who have since quit or been discharged for cause, to determine whether they wish to be represented by the American Federation of Labor, or by International Union of Mine, Mill and Smelter Workers, or by neither, for the purposes of collective bargaining. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION July 05, 1940 On July 6, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above entitled matter, the election to be conducted as early as possible but not later than thirty (30) days from the date of the Direction. The Board, having been advised by International Union of Mine, Mill and Smelter Workers that it does not desire its name to appear on the ballot, hereby amends its'Direction of Election issued on July 6, 1940, by striking therefrom the words "or by International Union of Mine, Mill and Smelter Workers, or by neither." MR. WILLIAM M. LEISERSON took'no part in the consideration of the above Amendment to Direction of Election. 25 N. L. It B., No. 22a.