Tennessee Copper Co.

National Labor Relations Board - Board Decisions

Dec 15, 1944

59 N.L.R.B. 1079 (N.L.R.B. 1944)

In the Matter of TENNESSEE COPPER COMPANY and INTERNATIONAL
UNION OF MINE, MILL & SMELTER WORKERS (CIO)
Case No. lo-R-1320.-Decided December 15, 1944
Mr. R. M. McConnell, of Knoxville, Tenn., Mr. G. Parks Hyatt, of
Ducktown,'Tenn., and Mr. H. G. Harper, of Copperhill, Tenn., for the
Company.
Mr. Homer Wilson, of Bessemer, Ala., Mr. Charles H. Wilson, of
Strawberry Plains, Tenn., and Mr. Rubin Kaufman, of Copperhill,
Tenn., for the C. AI. 0.
Messrs. Joseph Jacobs and George L. Googe, of Atlanta, Ga., for
the A. F. L.
- Mr. Thomas A. Ricci, of counsel-to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Union of Mine, Mill &
Smelter Workers (CIO), herein called the C. I. 0., alleging that a
question affecting commerce had arisen concerning the representation
of employees of Tennessee Copper Company, Copperhill, Tennessee,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before T. Lowry
Whittaker, Trial Examiner. Said hearing was held at Blue Ridge,
Georgia, on October 20, 1944. The Company, the C. I. 0., Federal
Union No. 21164 and Federal Union No. 21755, both affiliated with
the A. F. L., herein collectively called the A. F. L., appeared and par-
ticipated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. At the hearing the A. F. L. and the Company
moved to dismiss the petition. The Trial Examiner referred the mo-
tions to the Board for determination. For reasons set forth in Section
III, infra, the motions are denied. All parties filed briefs with the
Board and requested oral argument. Inasmuch as the briefs ade-
quately cover all pertinent issues, the requests for oral argument are
hereby denied.
59 N. L. R. B., No. 191. 1079
1080 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE, BUSINESS OF THE COMPANY
Tennessee Copper Compaii'y` is- a New Jersey~corpbratioii having its
principal, 9ffice-and place of business at New York City. • It operates
mines and processing plants in the vicinities of the' Copperhill, Duck-
.town, and Isabella communities, Polk County, Tennessee, known as
the Ducktown Basin, where it is engaged in the mining processing,
and sale of copper ore and its byproducts. Raw materials and prod-
ucts purchased by the Company during the 12-month period immedi-
ately preceding the date"of the hearing were valued in excess of
'$2,000,000,' of which approximately 75 'percent was received from
points. outside the State of Tennessee. During the same period the
Company's finished products were valued in excess of $10,000,000
of which approximately 90 percent was sold, shipped, and distributed
to points outside that State.-' •
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine;^Mill & Smelter Workers, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.
Federal Union Local No. 21164 and Federal Union Local No. 21755,
both affiliated with the American Federation of Labor, are labor
organizations admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 21, 1944, the C. I. O. sent a telegram to the Company
advising that it represented a substantial number of the Company's
production and maintenance, employees, stating that it was filing a
petition with the Board, and requesting the Company not to make
any agreement with any other labor organization until a bargaining
agent was determined. On September 22, 1944, the C. I. O. filed the
petition herein and on the same day the Board's Regional Director
sent a letter to the Company informing it of the filing of th'e petition
and suggesting a consent election. The Company did not reply to
either of these communications. . I
On March 24, 1943, the Company and the A. F. L. made a collective
bargaining" agreement covering the employees whom the C. I. O. seeks
to represent. The contract was to remain in effect until November
TENNESSEE;COP,PEI COM'PAIS7Y^'' r.. ,,.. _ 1081
18, 1944, and to continue in effect for -a period-of' 1:yearj thereafter
unless 30 days written notice, was given by, either partyi.,prior-•to
November 18, 1944. , ,
Contending that the telegram of September 21, 1944, was an inade-
quate demand because .it did-not- state that the .C. I. 0. represented a
majority of the employees and failed to request recognition_ as exclu-
sive collective bargaining representative, the A; F. `L and the 'Com-
pany assert that their 1943 agreement renewed itself automatically
before the Company was properly apprised of a, rival claim to repre-
sentation and therefore precludes a present determination of'-repre-
sentatives. Apart from the question of the effectiveness of `the";Sep
tember 21 telegram, it is clear that the filing of the petition prior to ttie
operative date of the automatic renewal clause in the 1943-contract was
in itself sufficient to prevent the agreement from barring' the instant
proceeding.' '
There also is testimony by a representative of.the A: F. L. that on
or about August 20, 1944, while negotiating a wage increase for `the
Company's guards, who were covered by the 1943 contract, the A. F. L.
and the Company orally agreed not to avail themselves of the.30-day
clause in the contract and "to continue the contract until " Noveiinbei 18;
1945." The argument was made by him that "This was in August and
as far as we are concerned the contract was automatically renewed then
until November 18, 1945." Even in this posture of the case, no bar
exists to a current determination of representatives, for the agreement
was not reduced to writing and constituted at best a premature extent
sion of the 1943 contract.2
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. 0. represents a substantial number of em-
ployees in the unit hereinafter found appropriate.3
' See Matter of Portland Lumber Mills, 56 N. L. R. B. 1536.
It is noted furthermore , that, before the renewal clause ' took effect , the Company was
actually informed of the filing of the petition, and any doubts on the part of the Com-
pany concerning the C. I O.' s claim to majority representation , occasioned by the wording
of the telegram, must have been dispelled by the letter of the Regional Director in which
the C. I. O.'s assertion of majority status as alleged in the petition was clearly set forth.
8 Matter of Eicor, Inc., 46 N. L. R. B. 1035 ; and Matter of Wichita Union Stockyards
Company, 40 N. L. R. B. 369
. " The Field Examiner reported that the C. I. O. submitted 681 authorization cards, of
which 561 bore names of persons found on the Company's pay roll for September 27, 1944.
The record indicates that there are approximately 1,429 employees in the unit sought by
the C. I. 0.
The A. F. L. relies upon its 1943 contract to establish its interest in the instant
proceeding.
The A.F. L. and the Company claim that the admission into evidence of the Field
Examiner 's report was improper , on the ground that it is not the best evidence to establish
that the C. I. 0. was designated by the Company ' s employees as their representative. They
argue that their rights guaranteed by the Fifth Amendment to the Constitution are vio-
lated if the weight of competent evidence is accorded the statements contained in the report
without affording them the right to cross-examine 'the Field Examiner and a C. I. 0. repre,
sentative , and the right to inspect the authorization cards submitted by the C. I. 0. We
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section, 9, ( c) and , Section 2 ( 6) and (7) of the Act.
IV. THE APPROPRIATE`VNIT
The parties are in agreement concerning the composition of an
appropriate unit. This unit includes about 40 guards for whom the
A. F. L. has bargained since the last election among the Company's
employees in 1940. The guards are armed, wear a uniform cap and
badge, and perform the usual duties of their classification. Six of
them, assigned to one of the Company's operations located in a plant
owned by the Government, were sworn as auxiliary military police in
September 1942, as required by law. The remaining- guards, not sub-
ject to that requirement, were militarized at their own request. The
duties of all guards and their conditions of employment were in no
way affected by their militarization. The record is not clear as to
whether or not they are now demilitarized, and the A. F. L., at the
request of the guards and with the approval of the Company, is en-
deavoring 'to ascertain whether the United States Army still deems
these guards to be militarized or has released them from their oaths.
In accordance with the Board's established policy, we shall exclude
militarized guards, if any.4 All others shall be included.
c We find, in substantial accordance with the agreement of the parties
and in accordance with our foregoing determination, that all the
Company's employees at its operations in the Ducktown Basin, Polk
County, Tennessee, including apprentice chemists 5 and non-militarized
guards, but excluding clerical employees, chemists, technical em-
ployees; militarized guards, and all supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act."
rejected identical arguments in Matter of Seneca Falls Machine Company, 58 N. L. R. B.,
1413. "The submission of cards is an expedient adopted by the Board to determine for
itself whether or not a question concerning representation has arisen . It is a part of the
Board 's administrative procedure • • '." Matter of Buffalo Arms Corporation, 57
N. L. R. B. 1577.
* Matter of Drava Corporation , 52 N. L. R. B. 322,.
E The Company employs 12 girls as apprentice chemists whom the parties agree to include,
The record seems to indicate that the A. F. L. has bargained for them heretofore. They
are high school graduates who have replaced regular chemists for the duration of the
war and who may not be retained permanently . Although they acquire greater knowledge,
none of them has attained the status of chemist , a technical classification excluded from
the unit also pursuant to the parties' stipulation . They perform routine tests under the
supervision of the chief chemist.
This is the same unit established by the Board in Matter of Tennessee Copper Company,
25 N. L. R. B. 218, with the exception of militarized guards and apprentice chemists, two
classifications which came into existence after that decision.
TENNESSEE COPPER, COMPANY
V. THE DETERMINATION OF REPRESENTATIVES
1083
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.7
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 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of 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, 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, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work dur-
ing said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding any who have since, quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to
determine, whether they desire to be represented by International
Union of Mine; Mill, & Smelter Workers (C. I.0.) , or; by the American
Federation of Labor, for the purposes of collective bargaining, or by
neither.
a The A. F. L. requests that its name appear on the ballot as set forth in the Direction
of Election.