Tennessee Auger Co., Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1968

169 N.L.R.B. 914 (N.L.R.B. 1968)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tennessee Auger Company, Inc. and Tennco, Inc.
and United Mine Workers of America, Peti-
tioner I and Southern Labor Union Locals No. 106
& 214, Joint Intervenors .2 Case 10-RC-6763
February 16, 1968
DECISION ON REVIEW AND
CERTIFICATION OF REPRESENTATIVES
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 20, 1967, the Regional Director for Re-
gion 10 issued a Supplemental Decision, Order, and
Direction of Second Election in the above-entitled
proceeding,3 in which, inter alia, he sustained the
UMW's Objection 1, overruled its other objections,
set aside the election conducted May 3, 1967, and
directed a second election.4 Thereafter, the Em-
ployer and the SLU filed timely requests for review
of the Regional Director's Supplemental Decision
on the grounds, inter alia, that in sustaining Objec-
tion I he departed from precedent and made errone-
ous findings on substantial factual issues. The
UMW filed opposition thereto and a separate
request for review as to the Regional Director's
overruling of Objections 4 and 5.
On November 26, 1967, the National Labor
Relations Board by telegraphic Order granted the
Employer and the SLU's requests for review and
denied the UMW's request.5 Thereafter, the UMW
filed a brief in support of the Regional Director's
ruling on Objection 1. The SLU filed a statement of
position.
Upon the entire record in this case, including the
facts as set forth in the Regional Director's Supple-
mental Decision, the Employer and the SLU'S
requests for review, the opposition thereto, and the
brief on review, the Boards makes the following
findings:
Objection 1 alleged that during the critical period
before the election the Employer negotiated an
hourly increase and bonus plan with SLU for cer-
tain unit employees and that these increased
benefits were granted to all unit employees before
the election.
On September 15, 1966, the Regional Director
issued a Decision and Direction of Election in the
UMW's requested unit of employees at all of the
Employer's mines, i.e., employees at its Tennco
strip mine and its Walnut Mountain deep mine, then
represented under a separate contract by the SLU,
Local 106, and those at the Employer's new Graves
Gap deep mine, then represented by the SLU,
Local 214, under a contract which the Regional
Director found to be a premature extension of the
SLU, Local 106's contract. The election directed
therein was scheduled for October 6, 1966. The
Employer filed a request for review of the Decision,
urging that the Regional Director erred in his appli-
cation of the premature extension doctrine and that
he should have dismissed the petition. The Board,
on October 4, 1966, granted the request for review
and postponed the election pending its decision on
review. The Board issued its Decision on Review
on April 13, 1967, affirming the Regional
Director's Decision and Direction of Election. Pur-
suant thereto, the election was held on May 3,
1967.
As to the matters alleged in Objection 1, the Re-
gional Director found that on October 1, 1966, a
contract was entered into between the Employer
and the SLU, Local 106, which provided, inter alia,
a wage increase of 15 cents per hour, an increase in
vacation pay of $25 per vacation period,' and an in-
cetive bonus plan whereby deep mine employees
would receive $1 for every ton of coal over 5,500
tons mined per month, to be paid twice yearly." The
parties are all in accord that this contract was not
finalized until October 20, 1966, and that it was
retroactive to September 1, 1966. On November 1,
1966, the same benefits, except for a slight modifi-
cation in the bonus plan, were granted to the em-
ployees of the Graves Gap deep mine.
As pointed out by the Regional Director, the Em-
ployer's contract with the Tennessee Valley
Authority (TVA), to which it sells all of its coal, has
a clause, referred to as an escalation clause, which
provides, inter alia, that should the industrywide
prevailing wage rate increase, the Employer, upon
application to the TVA, would be authorized to in-
crease the per-ton price charged TVA, provided the
Employer had, prior thereto, increased the wage
rate paid its employees in conformity with the new
industrywide prevailing wage. The Employer, after
granting the above-discussed increases, applied for,
and was subsequently granted, authorizarion by
TVA to raise its prices.
Herein referred to as the UMW.
2 Herein referred to as the SLU.
a On the same day the Regional Director issued an Order correcting
his Supplemental Decision.
4 The tally of ballots showed that of approximately 131 eligible voters,
128 cast ballots , of which 64 were for the SLU, 49 for the UMW, 6 were
against the participating labor organizations , and 9 were challenged. In his
Supplemental Decision , the Regional Director overruled 8 of the chal-
lenges and sustained 1.
5 On July 7, 1967, the UMW filed charges in Case 10-CA-7006, alleg-
ing violations of Section 8(a)(1), (2), and (3), duplicating, in part , Objec-
tions 1, 4, and 5. The charges were subsequently dismissed.
' Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel.
' As employees received vacation benefits twice yearly, this increase
amounted to $50 per year.
d In December 1966, deep mine employees each received in excess of
$100 in bonus money.
169 NLRB No. 134
TENNESSEE AUGER COMPANY, INC.
The Employer asserted that its motive for agree-
ing to the increased employee benefits was its
desire to raise its prices pursuant to the escalation
clause of its contract with TVA rather than any in-
tention to interfere with the free choice of em-
ployees in any election which might be held.
As further found by the Regional Director, em-
ployees were first apprised of the increases in
benefits at a meeting held by the SLU, Local 106,
approximately 2 weeks prior to their actual initia-
tion, when the proposed benefits were catalogued
to them by the SLU negotiating committee. In their
requests for review, the Employer and the SLU as-
sert that the UMW in its campaign propaganda
made reference to the proposed increases in
benefits and asked why they were not put into effect
immediately.9
In the light of the foregoing undisputed facts, we
are unable to agree with the Regional Director that
the timing of the increases in benefits had the effect
of interfering with employee free choice in the elec-
tion. We note that the Employer agreed to the in-
creases because of the increase in the prevailing in-
dustrywide wages, and, pursuant to the escalation
clause of its contract with TVA, in order to increase
the prices at which it could sell its coal. Further-
more, at the time the increases in benefits were ef-
fectuated, the Board had granted the Employer's
request for review of the Regional Director's Deci-
sion and the question whether an election would be
held remained to be resolved on review. In addition,
the UMW in its campaign letter to employees dated
October' 10, 1966,' in effect, invited the Employer
9 The SLU attached to its request for review a copy of the UMW's
letter to this effect addressed to all employees and dated October 10,
1966.
10 In view of our disposition of Objection 1 on the basis of the un-
915
to raise the benefits of employees to the prevailing
industrywide level, and, after the benefits were ef-
fectuated, it did not file unfair labor practice
charges with respect thereto until after the election
was held, at a time when the charges were barred as
untimely under Section 10(b) of the Act. Under the
facts and circumstances presented, we conclude
that the Employer has satisfied its burden of show-
ing that the increases in benefits were agreed to and
effectuated for reasons unrelated to the election and
that its conduct did not raise material and substan-
tial issues affecting the election held on May 3,
1967. Objection 1 is therefore overruled.10
Accordingly, as one challenge has been sustained
and as the tally of ballots shows that the SLU has
received a majority of the valid ballots cast, includ-
ing the eight challenges which the Regional
Director overruled, we shall issue a certification of
representatives to the SLU.
CERTIFICATION OF REPRESENTATIVES
It is hereby certified that Southern Labor Union,
Locals Nos. 106 and 214, have been designated and
selected by a majority of the employees of the Em-
ployer in the appropriate unit as their representa-
tives for the purposes of collective bargaining, and
that, pursuant to Section 9(a) of the Act, as
amended, the said labor organizations are the exclu-
sive representatives of all employees in such unit
for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
disputed facts, we need not resolve certain factual issues raised in the
requests for review. The UMW's alternative request for a hearing to
resolve factual issues is therefore denied
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