Tennessee Copper Co.

National Labor Relations Board - Board Decisions

Jul 6, 1940

25 N.L.R.B. 218 (N.L.R.B. 1940)

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.