Aluminum Co. of America

National Labor Relations Board - Board Decisions

Nov 18, 1938

9 N.L.R.B. 944 (N.L.R.B. 1938)

In the Matter of ALUMINUM COMPANY OF AMERICA and ALUMINUM
EMPLOYEES ASSOCIATION
In the Matter of ALUMINUM COMPANY OF AMERICA AND ITS WHOLLY-
OWNED SUBSIDIARY , CAROLINA ALUMINUM COMPANY and INTERNA-
TIONAL UNION9 ALUMINUM WORKERS OF AMERICA
Cases Nos. R-1020 and R-1021, respectively.Decided November
18, 1938 ,
Aluminum Manufacturing Industry-Investigdtion of Representatives: con-
troversy concerning representation , of employees : employer 's refusal to grant
recognition until question concerning representation was determined by ,the
Board-Contract : no bar to determination of representatives where initial
period had expired and contract was terminable on 30 days ' notice, and where
no exclusive bargaining rights, but merely right to bargain for members only,-
were granted-Unit Appropriate for Collective ' Bargaining : production and-
maintenance employees , time checkers and way clerks , excluding supervisors
and office employees , watchmen , guards, office janitors , farm and dairy em-
ployees; stipulation as to-Election Ordered
Messrs. Maurice J. Nicoson, Berdon M. Bell, and M. A. Prowell,
for the Board. . -
Mr. R. R. Kramer, of Knoxville, Tenn., for the Company.
Mr. Will A. MeTeer, of Maryville, Tenn., for the Association.
Mr. J. Alfred Wilner, of Pittsburgh, Pa., for the Union.
Messrs. Charlton Ogburn cep Arthur Reyman, of New York City,
Mr. James F. Barrett, of Atlanta, Ga., and Mr. Arthur R. Cook, of
Pittsburgh, Pa., for Local No. 19104.
Mr. S. G. Lippman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 20, 1937, Aluminum Employees Association , an unaf-
filiated organization, herein called the Association, filed with the
Regional Director for the Tenth Region (Atlanta, Georgia), a pe-
tition, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Aluminum Company of
9 N. L. It . B., No 89.
944
DECISIONS AND ORDERS 945,
America, Alcoa, Tennessee, herein called the Company, and request-
ing an investigation and certification of representatives pursuant to.
Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On May 31, 1938, International Union, Alu-
minum Workers of America, affiliated with the Committee for In-
dustrial Organization, herein called the Union, also filed a petition
with the same Regional Director, alleging that a question affecting
commerce had arisen concerning the representation of employees of
the Company. On August 9, 1938, the National 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 1, as amended, ordered an in-
vestigation and authorized the Regional Director to conduct it and
to provide for an -appropriate hearing, and further ordered, in ac-
cordance with Article III, Section 10 (c) (2), of the above-men-
tioned Rules and Regulations, that the petitions filed by the Associa-
tion and the Union should be consolidated for the purpose of hearing.
On August 25, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the Asso-
ciation, the Union, and Aluminum Workers Union, Local No. 19104,
affiliated with the American Federation of Labor, herein called Local'
No. 19104, a labor organization claiming to represent employees di-.
rectly affected by the investigation. On August 30, 1938, an amended
notice of hearing was issued by the Regional Director and duly
served on all parties postponing the hearing. Pursuant to the notice,
a hearing was held on September 15, 1938, at Knoxville, Tennessee,.
before Horace - A. Ruckel, the Trial- Examiner duly designated by-
the Board. The Board, the Company, the Association, the Union,,
and Local No. 19104 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. At the beginning of the hearing counsel for-
the Union moved to' amend its petition to include Carolina Alumi-
num Company, a wholly owned subsidiary of the Company. No,
objection was raised to the request, and the Trial Examiner granted
the motion. Counsel for Local No. 19104 appeared and filed peti-
tions requesting permission to intervene. The Trial Examiner
granted the motion. Local No. 19104 also moved that the petitions,
filed by the Association and the Union for certification of'representa--
tives be dismissed. The Trial Examiner denied these motions. These,
rulings of the Trial Examiner are hereby affirmed. During the course,
of the hearing the Trial Examiner made several" other rulings on,
motions and objections to the admission of evidence. The Board has_
reviewed the rulings of the Trial Examiner, and finds, that no preju
dicial errors were committed. The rulings are hereby affirmed. On,
946 NATIONAL LABOR RELATIONS BOARD
September 17, 1938, Local No. 19104 requested permission to argue
orally before the Board. On October 15, 1938, the Board denied this
request but accorded Local No. 19104 an opportunity to file a memo-
randum in support of its position within 5 days from the date of the
order. On October 19, 1938, Local No. 19104 asked for a reconsid-
eration of the Board's denial and in the alternative requested an
extension of 10 days in which to file a memorandum in support of
its position. The Board granted the requested, extension. Local No.
19104, however, did not avail itself - of , this privilege and failed to
file any memorandum.
Upon the-entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY 1
Aluminum Company of America,,a Pennsylvania corporation, to-
gether with its 17 subsidiaries,, is engaged in the mining, refining
of bauxite, and in the smelting, manufacturing, and fabrication of
aluminum. Carolina Aluminum Company, a North Carolina cor-
poration, is one of the subsidiaries of the Company, which owns and
operates power plants at Rymers Ferry, North Carolina, and
Tapoco, North Carolina.
In the present proceeding-we are only concerned with the operations
of the Aluminum Company of America, located at Alcoa, Tennessee,
and at Calderwood, Tennessee, and the power plants of Carolina
Aluminum Company, its wholly owned subsidiary at Rymers Ferry,
North Carolina, and Tapoco, North Carolina, herein collectively
called the Alcoa Works.
The Alcoa plants are engaged principally in the manufacture of
carbon electrodes, the smelting of aluminum, the fabrication of sheet
and plate aluminum, the fabrication of aluminum ingots, and the
manufacture of aluminum powder. The plants at Calderwood, Ry-
mers Ferry, and Tapoco furnish the power which is necessary for the
operation of the manufacturing units at Alcoa.
The principal raw material used at the Alcoa plant is alumina,
which is shipped to Alcoa from points outside the State of Tennes-
see. • The Company also uses divers other products, the majority of
which also comes from points outside the State of Tennessee. From
January 1, 1938, to August 1, 1938, the Company received approxi-
mately 2,255 carloads of raw materials. More than 90 per cent of
the products of the Alcoa plants are shipped tp points outside the
State of Tennessee. From January 1, 1938, to August 1, 1938, the
1 For further discussion of 'the business of the Aluminum Company of America, see
Matter of Aluminum Company of America and Aluminum Workers Union ' No. 19104, 1
N. L. R. B . 530.
DECISIONS AND ORDERS 947
Company shipped approximately 589 carloads of its products pro-
duced at Alcoa, Tennessee.
In conjunction with its Alcoa operations, the Company operates
a quarry, a concrete mixing plant, and a brick plant. The products
of these plants are used when needed for building and maintenance
work. The balance of the product is sold in the open market. The
Company also owns a town site which is mainly inhabited by its
employees. A service department, a farm and a dairy are maintained
by the Company for the benefit of the town site:
The Company and Carolina Aluminum Company in all the above
operations employ approximately 4,032 employees.
II. THE ORGANIZATIONS INVOLVED
Aluminum Employees Association is an unaffiliated labor union
admitting to its membership employees at the Alcoa Works, exclu-
sive of supervisory and salaried employees.
International Union, Aluminum Workers of America, is a labor
organization affiliated with the Committee for Industrial Organiza-
tion. It admits to its membership employees at the Alcoa Works,
exclusive of supervisory and clerical employees.
Aluminum Workers Union, Local No. 19104, is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership employees at the Alcoa Works, exclusive of supervisory and
clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
On December 2, 1936, the Company and its subsidiaries entered
into an agreement with various aluminum workers' locals affili-
ated with the American Federation of Labor, herein called the
A. F. of L. The agreement covered members of the A. F. of L.
at six plants located at Alcoa, Tennessee; Badin, North Carolina;
East St. Louis, Illinois; Logans Ferry, Pennsylvania; Massena, New
York; and New Kensington, Pennsylvania. It was to remain in
effect "until November 1, 1937, and thereafter until modified after
at least thirty (30) days' notice." Neither the A. F. of L. nor the
Company has asked that the agreement be modified. The agreement
does not grant the A. F. of L. exclusive bargaining rights but only
the right to bargain "for any employee at the aforesaid plants who
designates the Union as his or her representative."
On July 17, 1937, approximately 500 members of Local No. 19104
voted to affiliate with the Committee for Industrial Organization,
herein called the C. I. O. The Union; affiliated with the C. I. O.
was subsequently :established. Local No., 19104 did not go out of,
existence but continued to represent those of its members who did
not wish to affiliate with the C. I. O.
134068-39-vol . ix--61
948 NATIONAL LABOR RELATIONS BOARD
On September 30, 1937, the Union wrote to the Company advising
it that a majority of the employees covered by the agreement had
shifted their allegiance to the Union, and that it represented a ma-
jority of the Company's employees. The Union also requested a bar-
gaining conference. The Company replied that it would deal with
the Union only as the representative of such employees as had desig-
nated it as their representative, but that the Company would not deal
with the Union as the exclusive representative of the employees until
it has been established by the Board "that those employees in units
appropriate for such purpose shall have designated or selected your
locals or International as their bargaining agency." On December
30, 1937, the Union sent a second letter to the Company enclosing
a copy of a revised contract in which the Union stated its intention
to bargain for the six plants mentioned in the A. F. of L. contract,
and all other plants of the Company as the exclusive bargaining rep-
resentative. The Company replied reiterating its answer to the
Union's first letter and in addition stated, "After this question has
been settled we will be glad to arrange for a convenient date to meet
with your committee to discuss the proposed changes in the agree-
ment for such of our plants as your committee may represent."
The Association claims to represent 'a majority of the employees
of the Company at the Alcoa Works. On September 14, 1937, the
Association met with the Company for. the purpose of negotiating
a contract. The Company stated that there were three labor organi-
zations at Alcoa and that it could not enter into any agreement until
it had been established which of the labor organizations had been
designated by a majority of its Alcoa employees.
Local No. 19104 asserted in its motion to dismiss the petitions that
the contract of December 2, 1936, which is still in existence, is a bar
to any determination of representatives by the Board. We cannot
agree with this contention. After November 1, 1937, the contract
having run for almost a year, it became terminable upon 30 days'
notice. On September 30, 1937, the Union gave notice to the Com-
pany of its claim to exclusive bargaining rights. Under these circum-
stances the contract offers no bar to a determination of representatives
in this proceeding.2 Furthermore, the contract does not grant Local
No. 19104 exclusive bargaining recognition, but merely the right to
represent those who had designated it as their bargaining agency.
Each of the petitioners in this proceeding is expressly seeking ex-
clusive recognition. Such an agreement for members only will not
2 Matter of Metro-Goidwyn-Mayer Studios, and Motion Picture Producers Assn, et al.
and Screen Writers Guild, Inc, 7 N. L. R. B . 662; Matter of Utica Knitting Company
and American Federation of Labor, Local No. 21500 , 8 N. L. R . B. 783; Matter of
Quality Furniture Mfg. Co . and United Furniture Workers of America , Local 576, C. I. 0.,
8 N. 'L. R. B. 850. - '
DECISIONS AND ORDERS 949
preclude the Board from certifying a representative as the exclusive
bargaining agent of employees within an appropriate unit, if a
majority of the employees within such unit desire such representa-
tive.3 We find that the contract is no bar to any determination of
representatives under Section 9 (c) of the Act.
We find that a question has arisen concerning representation of em-
ployees of the Company and of Carolina Aluminum Company, its
wholly owned subsidiary, at the Alcoa Works.
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
and Carolina Aluminum Company, its wholly owned subsidiary,
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
During the hearing the parties agreed "that all the production
and maintenance employees, including the timecheckers and way
clerks, but excluding supervisors, office employees, watchmen, guards,
and office janitors, shall constitute the appropriate bargaining unit."
The parties interpreted this unit to include all employees who are
shown on the pay roll as construction employees and all employees
in the power division at Calderwood, Tennessee, Rymers Ferry, North
Carolina, and Tapoco, North Carolina, and all employees in the Mis-
cellaneous, Operation and Construction Division, excluding farm
and dairy employees. We see no reason to alter the agreed unit.
We find that the production and maintenance employees, time check-
ers and way clerks at the Alcoa Works, excluding supervisors and
office employees, watchmen, guards, office janitors,_ farm and dairy
employees, constitute a unit appropriate for the purposes of collec-
tive bargaining, and that such unit will insure to employees of the
Company and of Carolina Aluminum Company, its wholly owned
subsidiary, at the Alcoa Works the full benefit of their right to self-
organization and collective bargaining, and otherwise effectuate
the policies of the Act.
3 Matter o f McKesson & Robbins , Inc., Biumauer Frank Drug Division , et al., 5 N. L.
It. B. 70; Matter of City Auto Stamping Company and International Union, United Auto-
mobile Workers of America, Local No. 12, 3 N. L. R: B. 306; Matter of Northrop Corpora-
tion and United Automobile Workers, Local No. 229, 3 _ N. L. R. B. 228.
950 NATIONAL LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
The Union, the Association, and Local No. 19104 each claim to
represent a majority of the employees in the appropriate unit. No
evidence was introduced at the hearing on the basis of which we can
make a finding that a majority of the employees in the appropriate
unit has designated and selected any of said organizations as their
representative for the purpose of collective bargaining. We, there-
fore, find that an election by secret ballot is necessary to resolve the
question concerning representation. The Company's pay roll for
the week including February 1, 1938, was introduced into evidence.
At the hearing it was stipulated by the parties that the employees in
the appropriate unit on the pay roll of the Company for the week
including February 1, 1938, excluding those who have since quit or
been discharged for cause, should be eligible to vote, and we shall
so direct.
On 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 repre-
sentation of employees of Aluminum Company of America, and of
Carolina Aluminum Company, its wholly owned subsidiary, at the
Alcoa Works, within the meaning of Section 9 (c), and Section 2 (6)
and (7) of the National Labor Relations Act.
2. The production and maintenance employees, time checkers and
way clerks at the Alcoa Works, excluding supervisors and office em-
ployees, watchmen, guards, office janitors, farm and dairy employees,
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the National Labor Rela-
tions 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 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 authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Aluminum Company of America and Carolina Aluminum Com-
pany, its wholly owned subsidiary , at the Alcoa Works, an election
by, secret ballot shall be conducted within fifteen ( 15) days from the
date of this Decision and Direction of Election , under the direction
and supervision of the Regional Director for the Tenth Region, act-
DECISIONS AND ORDERS 951
ing 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 and maintenance employees, time checkers and
way clerks at the Alcoa Works on the pay roll for the week including
February 1, 1938, excluding supervisors and office employees, watch-
men, guards, office janitors, farm and dairy employees, and those who
have since quit or been discharged for cause, to determine whether
or not they desire to be represented by the Aluminum Employees
Association, the International Union, Aluminum Workers of Amer-
ica, affiliated with the Committee for Industrial Organization, the
Aluminum Workers Union, Local No. 19104, affiliated with the Amer-
ican Federation of Labor, for the purposes of collective bargaining,
or by none of them.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
November 29, 1938
On November 18, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in
the above-entitled proceeding, the election to be held within fifteen
(15) days from the date of the Direction, under the direction and
supervision of the Regional Director for the Tenth Region. The
Board, at the request of the Regional Director, hereby amends the
Direction of Election issued on November 18, 1938, by striking there-
from the words, "within fifteen (15) days from the date of this
Direction," and substituting therefor the words, "within twenty (20)
days from the date of this Direction."
9 N. L. R . B., No. 89a.