Tennessee-Schuylkill Corp.

National Labor Relations Board - Board Decisions

Feb 4, 1938

5 N.L.R.B. 65 (N.L.R.B. 1938)

In the Matter of TENNESSEE-SCHUYLKILL CORPORATION and INTERNA-
TIONAL UNION OF MINE, MILL AND SMELTER WORKERS, LOCAL
No. 384
Case No. B-460.-Decided February 4, 1938
Mining and Milling Industry-Investigation of Representatives : controversy
concerning representation of employees : refusal by employer to recognize and
bargain with petitioning union as exclusive representative-Unit Appropriate
for Collective Bargaining : production employees ; no controversy as to-Election
Ordered
Mr. David Sokol, for the Board.
Mr. Carl G. Krook, of Kingman, Ariz., for the Company.
Mr. James R. Lord and Mr. Walter Goodwin, of Jerome, Ariz., for
the Union.
Mr. D. R. Dimick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 2, 1937, International Union of Mine, Mill and Smelter
Workers, Local No. 384, herein called the Union, filed with the Re-
gional Director for the Twenty-first Region (Los Angeles, California)
a petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Tennessee Mine, Chloride,
Arizona, 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 October 15, 1937, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9. (c) of the Act and Article III, Section 3, of Na-
tional Labor Relations Board Rules and Regulations- Series 1, as
amended, ordered an investigation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice. On November 22, 1937, the Union filed an amended-
petition substituting the Tennessee-Schuylkill Corporation, Chloride.
Arizona, herein called the Company, for the Tennessee Mine.
On November 22, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the Union,
65
66 NATIONAL LABOR RELATIONS BOARD
the Central Labor Council of Phoenix, Arizona, the Central Labor
Council of Los Angeles, California, and upon the Los Angeles Indus-
trial Union Council, of Los Angeles, California. Pursuant to the
notice, a hearing was held on November 29,1937, at Kingman, Arizona,
before Dwight W. Stephenson, the Trial Examiner duly designated
by the Board. The Board and the Company were represented by
counsel, and the Union by the International Representative and Dis-
trict Organizer for the International Union of Mine, Mill and Smelter
Workers. All participated in the hearing. The other organizations
who were served with notices of the hearing did not appear or par-
s icipate in the proceeding. 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 course of the hearing the
Company filed a plea to the jurisdiction of the Board. The Trial Ex-
aminer held that the plea was in substance a motion by the Company
to dismiss the proceedings for lack of jurisdiction and denied the same.
The Trial Examiner also made several other rulings on motions and on
objections to the admission of evidence. The Board has reviewed all
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
. I. THE BUSINESS OF THE COMPANY
The Company, a Delaware corporation, owns and operates a mine
at Chloride, Arizona, and in conjunction with the mine owns and
operates a mill for the purpose of reducing the ore obtained at its mine
to concentrates. The concentrates are loaded on trucks at the mill,
which is located at Chloride, and trucked to Kingman, Arizona, where
they are placed on board railroad cars operated by the Santa Fe
Railroad.
The Company produces chiefly lead and zinc concentrates, although
there is to be found in these concentrates gold, silver and iron. The
American Smelting and Refining Company purchases all of the con-
centrates milled by the Company. The lead and zinc concentrates
are, respectively, shipped to the purchaser's smelters at El Paso,
Texas, and at Amarillo, Texas. One hundred per cent of the output
of the Company's mine and mill is, therefore, shipped outside Ari-
zona.
The mine operated by the Company is one of the largest mines in
the vicinity of Chloride, Arizona, and is to be found in a district that
is devoted largely to mining and grazing. From the start of its op-
erations, in September 1936, to the end of December 1936, the Com-
pany sold 638 tons of lead at a gross value of $42,091.93; 477 tons of
DECISIONS AND ORDERS 67
zinc at a gross value of $38,174.90; 377 pounds of copper at a gross
value of $15.66; and 369 tons of iron at a gross value of $3,890.88.
From January 1 to September 30, 1937, the Company sold 1,966 tons
of lead at a gross value of $161,929.00; 1,288 tons of zinc at a gross
value of $144,675.27; and 1,273 tons of iron at a gross value of
$12,844.81. In addition to lead, zinc, copper and iron, the Company
also-sold an appreciable amount of gold and silver.
II. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, Local No.
.384, which received its charter from International Union of Mine,
Mill and Smelter Workers about June 16, 1937, is a labor organiza-
tion, admitting to its membership all men working in and around a
mine, mill or smelter, excluding office workers, clerical and supervi-
sory employees, jiggers, and shift bosses.
III. THE QUESTION CONCERNING REPRESENTATION
On August 25, 1937, the International Union of Mine, Mill and
Smelter Workers sent a letter 1 to the Company stating that the Union
had been chosen by approximately 75 per cent of the Company's em-
ployees as their collective bargaining representative, and asking that
the Company reply within five days advising where specified repre-
sentatives of the Union could meet with the officials of the Company
to discuss an agreement as to hours, wages and working conditions.
The letter stated that the specified representatives were employees
of the Company and were bona fide members of the Union.
The Company, by a letter 2 of August 28, 1937, replied that the
Union and the International Union of Mine, Mill and Smelter Work-
ers were unknown to the Company and that the Company could see
no reason to meet with the specified or any other representatives.
The letter added that the Company was always willing to discuss
working conditions with any of its employees.
We find that a question has arisen concerning the representation of
the 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
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
'Board Exhibit 3 (a).
2 Board Exhibit 3 (b).
68 NATIONAL LABOR RELATIONS BOARD
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union alleges in its petition that the production workers of the
Company at its Chloride, Arizona, mine and mill constitute an appro-
priate bargaining unit. The Union does not admit to its membership
office workers, clerical and supervisory employees, jiggers and shift
bosses, and the record shows that the Union desires to exclude such
employees from the bargaining unit. The Company raised no objec-
tion to the unit asked for by the Union.
We find that the production employees of the Company, excluding
office workers, clerical and supervisory employees, jiggers, and shift
bosses, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to employees of the Com-
pany the full benefit of their right to self-organization and to collec-
tive bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The record shows that on August 2, 1937, the date of the filing of
the original petition, the Company employed 121 persons within the
unit which we have found appropriate. On December 3, 1937, coun-
sel for the Company and counsel for the Board stipulated that on
November 29, 1937, the date of the hearing, the Company had in its
employ 141 employees excluding office workers, supervisors, jiggers,
shift bosses, the mine superintendent, together with any other per-
sons who have the right to hire or fire.3 Walter Goodwin, a union
organizer, testified at the hearing that 67 employees of. the Com-
pany were on August 2, 1937, members of the Union and the impli-
cation is that all such employees were within the appropriate unit.
Although the Union application cards were not introduced in evi-
dence, the record shows that Goodwin had such cards with him, that
he testified from an inspection of them, and that the cards were
thereafter handed to the Trial Examiner. Goodwin also testified
that additional employees joined the Union after August 2. Accord-
ing to the trial Examiner's account there were 78 application cards.
Although Goodwin testified that all persons whose names appeared
on the cards were members of the Union, no pay roll of the Company
was introduced into evidence and the record discloses no comparison
at any time of the cards and any pay roll of the Company. We feel,
therefore, that no adequate showing has been made that the Union
represents a majority of the employees of the Company within the
appropriate unit.
3 Board Exhibit 5. It does not appear the Union consented to the inclusion of the
exhibit as part of the record.
DECISIONS AND ORDERS 69
We find that the question which has arisen concerning the representa-
tion of employees of the Company can best be resolved by the holding
of an election by secret ballot. Eligibility to vote in the election Will
be extended to the employees within the appropriate unit who were
in the employ of the Company during the pay-roll period immediately
preceding November 22, 1937, exclusive of those who have voluntarily
quit or have been discharged for cause between that period and the
date of 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 represen-
tation of employees of Tennessee-Schuylkill Corporation, Chloride,
Arizona, within the meaning of Section 9 (c) and Section 2 (6) and"
(7) of the National Labor Relations Act.
2. The production employees of Tennessee-Schuylkill Corporation,
excluding office workers, clerical and supervisory employees, jiggers,
and shift bosses, 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,
49 Stat. 449, 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 authorized by the Board
to ascertain representatives for collective bargaining with'Tennessee-
Schuylkill Corporation, Chloride, Arizona, an election by secret ballot
shall be conducted within twenty (20) days from the date of this
Direction, under the direction and supervision of the Regional Director
for the Twenty-first 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 the production employees of
said Corporation, exclusive of office workers, clerical and supervisory
employees, jiggers, and shift bosses, who were in the employ of the
Corporation during the pay-roll period immediately preceding Novem-
ber 22, 1937, excluding those who have voluntarily quit or have been
discharged for cause between that period and the date of the election,
to determine whether or not they desire to be represented, for the pur-
poses of collective bargaining, by International Union of Mine, Mill
LocalSmelter Workers, No. 384.