Tennessee Copper Co.

National Labor Relations Board - Board Decisions

Jul 23, 1938

8 N.L.R.B. 575 (N.L.R.B. 1938)

In the Matter of TENNESSEE COPPER COMPANY aiul A. F. OF L.
FEDERAL UNION No. 21164
Case No. R-574
Mining and Milling Industry--Prior Election ; held null and void ; Interfer-
ence and intimidation by supervisory employees ; supervisory employees held
not entitled to participate in election campaign although members of a par-
ticipating labor organization ; objections as to location of polling place dis-
missed ; objections alleging discriminatory lay-offs affecting result of election
held not sustained by proof , dismissed ; action of supervisory employees held
prejudicial to objecting labor organization-New Election Ordered
Mr. Maurice J. Nicoson, for the Board.
Franz, McConnell c Seymour, by Mr. Robert M. McConnell, of
Knoxville, Tenn., for the Company.
Mr. Robert T. Brown, of Centreville, Tenn., and Mr. Reid Robin-
son, of Denver, Colo., for the International.
Mr. Paul J. Aymon and Mr. James F. Barrett, of Atlanta, Ga.,
and Mr. John Deal and Mr. J. P. Chastain, of Copperhill, Tenn., for
the A. F. of L.
- Mr. Richard A. Perkins, of counsel to the Board.
SECOND SUPPLEMENTAL DECISION
AND
SECOND, DIRECTION OF ELECTION
July l3, 1938
On March 3, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election 1 in
the above-entitled proceeding. On March 15, 1938, the Board issued
a Supplemental Decision and Amendment to Direction of Election.2
The Direction of Election, as amended, provided that an election by
secret ballot be conducted within twenty (20) days from the date of
the original Decision among all the employees of Tennessee Copper
Company, Copperhill, Tennessee, herein called the Company, in the
Ducktown, Tennessee, basin, who were on the pay roll of the, Com-
pany on November 19, 1937, excluding clerical and supervisory em-
ployees, chemists, technical engineers, and those who had since quit
or been discharged for cause, to determine whether they desired to
15 N. L. R. B. 768.
' 5 N. L. R . B. 775.
8 N. L. R. 13., No. 59.
575
576 NATIONAL LABOR RELATIONS BOARD
be represented by American Federation of Labor, herein called the
A. F. of L., or International Union of Mine, Mill , and Smelter
Workers, herein called the International, for the purposes of collec-
tive bargaining, or by neither.
Pursuant to the Direction, as amended, an election by secret ballot
was conducted under the direction and supervision of the Regional
Director for the Tenth Region (Atlanta, Georgia) on March 18, 1938.
On March 21, 1938, the Regional Director, acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, issued and duly served upon the par-
ties his Intermediate Report on the ballot.
As to the balloting and its results the Regional Director reported
as follows :
Total number eligible----------------------------------------- 1,122
Total ballots cast--------------------------------------------- 1,047
Total number of ballots cast for American Federation of Labor__ 543
Total number of ballots cast for International Union of Mine,
Mill , and Smelter Workers--------------------------------- 488
Total number of ballots cast for neither ---------------------- 12
Total number of challenged ballots----------------------------- 2
Total number of void ballots---------------------------------- 2
On March 26, 1938, the International duly filed with the Regional
Director its objections to the Intermediate Report. On May 13, 1938,
the Regional Director, acting pursuant to Article III, Section 9, of
said Rules and Regulations, having found that said objections raised
a substantial and material issue with respect to the conduct of the
ballot, issued a notice of hearing thereon, copies of which were duly
served upon the Company, the A. F. of L., and the International.
Pursuant to the notice, a hearing on said objections was held on
May 19, 20, 30, and 31, and June 1 and 2, 1938, at Chattanooga,
Tennessee, before Albert L. Lohm, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, and the Interna-
tional were represented by counsel and the A. F. of L. by union offi
cials. All participated in the hearing. Full opportunity to be
heard, to examine and cross -examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. On May 30,
1938, the Trial Examiner allowed a motion by the International for
leave to file amended objections to the Intermediate Report on the
ballot, and the amended objections were received. During the course
of the hearing the Trial Examiner made several other 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 committed. The rulings are hereby affirmed.
At the close of the hearing the Company and the A. F. of L. moved
for dismissal of all the objections, and counsel for the Board moved
DECISIONS AND ORDERS 577
to dismiss the first original objection and the fourth amended objec-
tion. The Trial Examiner reserved ruling on the motions. The
motions to dismiss are allowed as to the first and fourth original ob-
jections and the fourth and fifth amended objections, as hereinafter
more fully appears. As to the other objections, the motions to dis-
miss are hereby denied.
The first original objection and the fourth amended objection re-
late to the polling place situated at Copperhill-one of the two loca-
tions chosen by the Board's agents in charge of the election. It is
alleged that this polling place was situated on Company property
close to the Company's offices, and that the International was prej-
udiced by the fact that Company officials could observe who voted.
There is no claim that the secrecy of the balloting itself was violated.
The objections relating to the polling place are obviously without
merit, and are hereby dismissed.
The fourth original objection alleges by inference that the Com-
pany had advance notice of the filing of the original petition herein
by the A. F. of L., and that the International was thereby prejudiced.
This allegation is not borne out by the proof, and, in any event the
International could not have been prejudiced, since a sufficient time
elapsed between the filing of the petition and the election for the
International to make preparations therefor. This objection is
hereby dismissed.
The fifth amended objection avers that the Company transferred
employees from its operations at Ducktown and Isabella, where the
International claimed its principal support, to Copperhill, where the
A. F. of L. predominated, and then laid off such employees. The
evidence indicates that transfers and lay-offs were effected pursuant
to the Company's regular seniority policy. This objection is
dismissed.
The remaining objections are substantial. In effect, they allege
that the Company by its supervisory employees intimidated and
coerced its employees to vote for the A. F. of L. rather than the
International.
The testimony shows that Arthur Dalton, truck foreman, and Ed
Donaldson, a labor foreman, electioneered for the A. F. of L. and
transported voters to the polls by automobile. The two men involved
were members of the A. F. of L. Federal Union No. 21164 at Copper-
hill. Dalton, in fact, had been president of the local union at Cop-
perhill from 1934 through 1937. He had previously been a foreman
until 1932, when he was reduced to a non-supervisory status. He
again became a foreman in March 1937. During most of the period
of Dalton's tenure in office-until February 1937-the Copperhill
local was affiliated with the International. At the hearing on the
578 NATIONAL LABOR RELATIONS BOARD
objections evidence was adduced to the effect that the Isabella and
Ducktown locals of the International admitted foremen to member-
ship provided they had not the right to hire and discharge. Dalton
and Donaldson were of this category.
Union membership requirements may be considered in the deter-
mination of a unit appropriate for the purposes of collective bar-
gaining. Membership qualifications, as such, however, are not within
the control of the Board but rather are to be governed by labor or-
ganizations themselves. The boundaries of eligibility for member-
ship in a labor organization need not coincide with the unit for which
the organization bargains. But whether or not supervisory em-
ployees are members of a labor organization, they will, in the interest
of a free choice of representatives, be required to abstain from active
participation in a contest between labor organizations!3
In addition to Dalton and Donaldson, whom we have discussed
specially, several other foremen engaged in activity which tended
to coerce employees in their choice of representatives. On election
day, Young Querry, assistant general foreman at the Isabella plant,
told Walter Loudermilk that if the C. I. O. (International) won,
John L. Lewis would call the employees out on sympathetic strikes.
Some time between March 1 and March 15, O. K. Lyle, a foreman,
told Noah Parris that the C. I. O. was un-American and that "if
the C. I. O. won the employees would have no jobs." On March 15,
Marion Hamby, general rigger foreman, said to H. Wright, "I un-
derstand you lined up with them Ducktown boys. You better lay
off that bunch there. The C. I. O. isn't anything to have here." On
March 16, D. B. Epperson, general foreman of the Isabella plant,
told A. Elrod and C. Maney that he would know what was what
before long, and that it was not long until the election. He said he
belonged to neither union, but that his advice would be to join the
A. F. of L., adding that Lewis was a dictator, and that if they voted
for the C. I. O. they voted their jobs away. Two or three days after
the election Arthur Bellew, copper sulphate foreman, told David
Queen that he was satisfied with the result of the election and that he
had done all he could to influence employees to vote for the A. F. of
L. without actually telling them to do so.
The incidents recounted above were denied by none of the foremen
involved. In addition, witnesses related similar occurrences involv-
ing Wes Helton, Isaac A. Turner, Carl Panter, Gus Nelson, and A. J.
Harper, also foremen. We need not discuss the latter statements,
about which the evidence is conflicting, for the reason that the un-
8 matter of Carrollton Metal Products Company and Amalgamated Association of Iron,
Steel, and Tin Wo,kers of North America, Local No. 1571, 6 N. L. R. B. 569.
DECISIONS AND ORDERS 579
controverted evidence previously described establishes such employer
interference as to require a new election. Such statements on the
part of supervisory employees cannot be realistically considered other
than as interferences and as threats of reprisals. We therefore de-
clare the election of March 18, 1938, to be null and void and shall
direct that a new election be held.
SECOND 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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Tennessee Copper Company, Copperhill, Tennessee, a new elec-
tion by secret ballot be conducted within twenty (20) days from
the date of this Direction, under the direction and supervision of
the Regional Director for the Tenth Region, acting 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 of the Company in the Ducktown basin who were on the
pay roll on November 19, 1937, excluding clerical and supervisory
employees, chemists, technical engineers, and those who have since
quit or been discharged for cause, to determine whether they desire
to be represented by American Federation of Labor or International
Union of Mine, Mill, and Smelter Workers for the purposes of
collective bargaining, or by neither.
[SAME TITLE]
AMENDMENT TO SECOND DIRECTION OF ELECTION
August 6, 1938
On July 23, 1938, the National Labor Relations Board, herein
called the Board, issued a Second Supplemental Decision and Second
Direction of Election in the above-entitled proceeding, the election
to be held within twenty (20) days therefrom, under the direction
and supervision of the Regional Director for the Tenth Region (At-
lanta, Georgia).
On August 2, 1938, American Federation of Labor Federal Labor
Union No. 21164 filed certain "Objections, Exceptions, and Motions"
relating to said Second Supplemental Decision and Second Direction
117213-39-vol 8-38
580 NATIONAL LABOR RELATIONS BOARD
of Election. In order to consider the issues raised therein we shall
postpone the election for the present.
The Board hereby amends its Second Direction of Election by
striking therefrom the words "within twenty (20) days from the
date of this Direction" and substituting therefor the words "at such
time as the Board will in the future direct."
T%IR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Amendment to Second Direction of Election.
8 N. L. R . B., 59a.