Aluminum Co. of America

National Labor Relations Board - Board Decisions

Jul 22, 1942

42 N.L.R.B. 772 (N.L.R.B. 1942)

In the_ Matter of ALUMINUM Co OF AMERICA and BRICKLAYERS'
SUB' UNION #10, TENN
Case No R-3832 .Decsded July 22, 1942
Jurisdiction : aluminum manufacturing industry
Investigation and Certification of Representatives : existence of question re-
fusal to 'enter into agreement iecognizuig petitioner as exclusive bargaining
representative of bricklayers without Boaid certification, election necessary
Unit Appropriate for Collective Bargaining : bricklayers permitted to determine
whether they should constitute a separate appropriate unit or be included in
a previously certified unit of production and maintenance employees
Mr. R R Kramer and Mr Berry C Williams, of Knoxville, Tenn.,
for the Company
Mr J T Brzscoe, of Washington, D C, for the Union
Mr. Fred A Wetmore and Mr Jack Wetmore, of Knoxville, Tenn ,
for the'Aluminum Workers
Mr Raymond J Heilman, of counsel to the Board
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Bricklayers' Subordinate Union #10,
Tennessee, of the Bricklayers, Masons, and Plasterers International
Union of America, A F L , herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Aluminum Company of America, herein called the
Company, at Alcoa, Tennessee, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Alexander
E Wilson, Trial Examiner Said hearing was held at Knoxville,
Tennessee, on May 15, 1942 The Company, the Union, and Inter-
national Union, Aluminum Workers of America, Local #9, C. I 0.,
herein called the Aluminum Workers, appeared, participated, and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed
Upon the entire record in the case, the Board makes the following :
42NLRB,No150
772
ALUMINUM CO OF AMERICA
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
773
Aluminum Company of America, a Pennsylvania corporation, to-
gether with its 17 subsidiaries, is engaged in the mining and refining
of bauxite and in the smelting, manufacturing, and fabricating of-
aluminum ' At its Alcoa, Tennessee, plant, here involved, the Com-
pany smelts aluminum and manufactures carbon electrodes, sheet and
plate aluminum, aluminum ingots, and aluminum powder The prin-
cipal raw material used by the Company in connection with its Alcoa
operations is alumina, which is obtained outside the State of Tennessee
Over 90 percent of the products of the Alcoa plant are shipped to
points outside the State More than 90 percent of the output of the
Alcoa plant is sold for the manufacture of implements of war.
The total number of employees in the Alcoa plant is approximately
11,000
H THE ORGANIZATIONS INVOLVED
Bricklayers' Subordinate Union #10, _ Tennessee, of the Brick-
layeis, Masons, and Plasterers Inteinational Union of America, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company
International Union, Aluminum Workers of America, Local #3,
is a labor organization affiliated with, the Congress of Industiial
Organizations, admitting to membership employees of the Company.
III THE QUESTION CONCERNING REPRESENTATION
Shortly before February 13, 1942, the Union requested that the
Company enter into an agreement recognizing the Union as the ex-
clusive bai gaining representative of the bricklayers employed by the
Company at its Alcoa plant The Company declined to enter into
such agreement without certification by the Board
A statement of the Field Examiner, inti oduced in evidence at the
hearing, shows that the Union represents a substantial number of
employees in the alleged appropriate unit 1
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 National Labor
Relations Act
1 The Field Examiner reported that the Union had submitted to him 57 designations
bearing apparently genuine signatures, of which 7 were undated and 50 bore dates between
March 9, 1921, and August 19, 1941 The petition states that the approximate number
of employees in the,unit sought by the Union is 91
The Field Examiner also reported that the Aluminum workers, in support of its claim
of representation among the bricklayers, had submitted to him 14 designations, bearing
apparently genuine signatures, of which 2 were undated and 12 bole dates between April
1941 and Febiuary 1942
e
i
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
IV TIIE APPROPRIATE UNIT
The Union seeks a unit consisting of the bricklayers in the Alcoa
plant, including foremen The Aluminum Workers contends that the-
bricklayers should be deemed to be included in a unit of production
and maintenance employees of the Company, established heretofore
by certification of the Board.
Bricklayers employed at the Alcoa plant are engaged in mainte-
nance of furnaces in the reduction depaitment, maintenance work in
the fabricating department, and construction work 2
In 1938 and 1939, the Boaid conducted a series of elections pursuant
to pioceedmgs in which the Aluminum Workeis and two other labor
organizations 3 each sought ceitification as the exclusive collective
bargaining representative of the employees of the Company 4 In ac-
cordance with the results of the final election conducted on August 31,
1939, the Board, on September 16,1939, eel tified the Aluminum Workers
as the exclusive bargaining representative of the production and main-
tenance employees, time checkeis, and way-clerks of the Company, ex-
chiding ,j anitors and farm and dairy employees
At the hearing preceding the Board's original Decision and Direc-
tion of Election, the paities had stipulated that "all the production
and maintenance employees," with substantially the same exclusions as
were specified in the Board's certification, should constitute the appro-
priate bargaining unit,6 including all "construction employees" shown
on the pay roll and "all employees in the Alcoa, Tennessee, operation
. .117 Subsequent to the certification, on November 11, 1939, the
2 The Company employed approximately 38 bricklayers at the time of the hearing-4 or
5 in the reduction department, 23 in the fabricating department, 8 in construction work
outside those departments Depaitment heads testified that under normal conditions
4 or 5 bricklayers would be employed in the reduction department, 10 or less in the fabri-
cating depaitment and none in construction work, as such A witness for the Union
testified that under prewar noim'il conditions the aveiage number of bricklayers employed
in the Alcoa plant was 10 The number of bricklayers employed there has ianged since
some time before 1921 from a minimum of 2 to a maximum of 125, reached durin g the
present expansion program
3 Aluminum Employees' Association, unaffiliated, and Aluminum Woikers' Union
(A F L)
4Matter of Aluminum Comptiny of America and Aluminum Employees Association, in
the Matter of Aluminum Company of America and its wholly owned subsidiary, Carolina
Aluminum Company and Inteinational Union, Aluminum Workers of America, 9 N L R B
944, 12 N L R B 237, 12 N L R B 240, 13 N L R B 79, 13 N L R B 82, 14 N L
R B 318, 14 N L R B 319
6 15 N L R B 413
6 9 N L R B 944, at 949
7The Union was not sersed with official notice of, and did not take part in, the pro-
ceedings which resulted in the above-mentioned certification At the bearing in the present
case, there was testimony on behalf of the Union that its officers and members had believed
that its interests would not be affected by any election which might be held in consequence
of those pioceedings, in which it belieied that only the factory woikers were involved
A witness for the Union also testified that officers and members of the Aluminum workers
had green informal assurances that the Union would not be interfered with-by the Alumi-
num woikers regardless of the results of any election which might be held It appears
that all the bricl.laiers, of whom-theie were six or seven at that time, all of whom were
members of the Union, voted in the elections
ALUMINUM CO OF AMERICA 775.
Company and its subsidiaries entered into an agreement with the Alu-
minum Woikers, whereby the Company recognized the Aluminum
Workers as the exclusive collective bargaining agency for those em-
ployees in its Alcoa and other plants for which the Aluminum Workers
had been cat titled by the Board 8
The Union's position is that the Company, for many years prior
to certification of the Aluminum Workers had recognized and dealt
with the Union as,the_representative of the bricklayers, and that later,
notwithstanding its collective bargaining agreement with the Alumi-
num Workers, the Company had consistently bargained with the Union
until early in 1942 Hence, the Union, in effect, argues that the Com-
pany and the Aluminum Workers did not regard the bricklayers as
included in the unit for which the Aluminum Workers was certified.
The Aluminum Workers claims that, since the execution of its col-
lective bargaining agreement with the Company, the latter has bar-
gained with it on an industrial basis and has not separated out the
bricklayers as a special group and, further, that pursuant to the agree-
mezit,a,the, Aluminum Workers has already bargained effectively for
the bricklayers
The Company's position is that it has under stood that the unit for
which the Aluminum Workers was certified included the bricklayers
and that it has dealt with the Aluminum Workers accordingly
On the pact of the Union there was testimony that the Company,
since a time preceding its collective bargaining agreement with the
Aluminum Workers, has had a verbal agreement with the Union that
bricklayers, were to apply for membership in the Union before going
to work for the Company and that, with a few unimportant excep-
tions, the Company has employed only bricklayers who were members
of the Union A bricklayer foreman, Who is a member of the Union,
testified that he has always hired bricklayers through the Union
'11iere also was testimony on the part of the Union that questions
of wages; hours, and woiking conditions for the bricklayers had been
settled through negotiations between the Company and representa-
tives of the Union A letter dated April 9, 1940, from the Union's
financial secretary and business iepiesentative to the secretary of the
Union's international organization stated that the Company had
asked permission of the Union to change the work-day period for
certain joutneymen bricklayers There also was testimony for the
Union that it had been customary for the Union to recommend from
time to time wage increases for the bricklayers and that the ' Com-
pany had invariably granted these, as recommended, until early in
1942, when a recommendation by the Union of a scale of wage in-
8 The agreement provides that it shall be in-effect for 2 years and thereafter , unless 30
days' notice of termination shall be given A new proposed agreement has been sub-
mitted to the war Labor Board for approval
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
creases was not acted upon by the Company because the Aluminum
Workers had notified the Company that the assent of the Aluminum
Workers was iequiied before the scale could be put into effect -
As further supporting the contention of the Union that, notwith-
standing the collective bargaining agieement above-mentioned, the.
Union has continued to repiesent the bricklayers for collective baigail-
ing with the Company, these was testimony for the Union that in 1941
the Company settled a dispute concerning overtime rates foi brick-
layers by complying with the, piovisions of an agreement entered into
for defense woik between Government representatives and the Build-
ing and Construction Trades Department of the Ameiican Federation
of Labor
Supporting the Aluminum Woi kers'contention that it has bargained
effectively foi the bricklayers since the above-mentioned collective
bargaining agreement, was an admission by the president of the Union
that, in December 1940, the Company proposed to increase the weekly
wage of bricklayers fiom $37 to $38 and that an increase to $39 was
recommended by the AluminumWorkets and granted by the Company
The superintendents of the Company's reduction, fabrication, and
construction departments testified that they had made no formal or
written agreement with the Union and that the Union had not bar-
gained with them since the collective bargaining agreement between
the Company and the Alumrnurh Workers The superintendent of
the reduction department denied that he had ever called upon the Union
to furnish bricklayers or that such was the Company's practice He
explained, however, that the biicklayei foreman may have obtained
bricklayers through the Union He stated also that, since the time
of the agreement `,nth the Aluminum Workers, the latter had bar-
gained with him and that the wages of bricklayers had thereby been
increased by $8 per week The superintendent of the fabricating de-
pai tment testified that ordinarily he would not ask the Union to fur-
nish bricklayers and that, to his knowledge, theie had been no such
practice The superintendent of the construction department testified
that, since the above-mentioned collective bargaining agreement, he
had, in accordance with its provisions, hired and laid bricklayers off
on the basis of seniority, using lists'of employees and former employees
which are kept by the Company'
O The Union contends further that the denial of its petition would result in compelling
the biicklavers to become members of the Aluminum Workeis, a consequence which would
work considerable hardship on the bricklayers by reason of the fact that no employer in
the construction industry in Tennessee and adjoining States employs bricklayers who are
inembeis of the Congress of Industrial Organizations , and that membership in the Union
would neNeitheless have to be continued in order to retain substantial rights in relief,
disability, and moituary funds
ALUMINUM Co OF AMERICA 777
We axe of the opinion that our decision in this case should follow
that rendeied by us in Matter of Bendix Products Division of Bendix
Aviation Corporation and Pattern Makers League of North America,
South Bend Association, (A F of L ), 39 N L R B , No 18, wherein
we found as follows
In view of all the circumstances, we are of the opinion that the
considerations axe sufficiently balanced to make the desires of the
pattern makers themselves controlling in our determination of the
type of unit through which they shall bargain 10 The history of
employee organization within the Company, the 1937 certification
of the U A W as the representative of the industrial unit, the
1939 dismissal of they League's petition for a separate pattern mak-
ers' unit, the U A W's exclusive bargaining contract with the
Company, and the benefits which the pattern makers and other
employees have received alike as a result of U A W bargaining,
all indicate the appropriateness of an industrial unit including the
pattern makers On the other hand, the industrial unit was estab-
lished without the acquiescence of the pattein makers and without
notice to'the League The League had filed its first petition for
certification" prior to the time the U A W obtained its first
exclusive recognition contract Furthermore, the League had
maintained and even extended its membership among the pattern
makers for nearly 5 years despite the lack of formal recognition
The pattein makers have resisted strong pressure to abandon the
League and to join the industrial units and have made unceasing
efforts to secure separate representation All these circumstances
are strongly persuasive of the appropriateness of a separate unit
of pattern makers
We believe that the evidence in the instant proceeding gives rise to
the same conflicting considerations Moreover, as in the Bendix case,
the issue of the appropriateness of the smaller unit, the bricklayers
here, was not raised or litigated in the prior proceeding 12 Accord-
ingly, we shall direct that an election be held among the bricklayers to
determine whether they desne to be represented by the Union or the
Aluminum Workers, of by neither If a majority of the bricklayers
shall select the Union as their representative, they will constitute a
lU Mattei of Globe Machine and Stamping Company and Metal Polishers Union, Local
No 4, et at , 3 N L R B 294, see Matter of The Maryland Dry Dock Company and
Baltimore Assn Pattern Makers , Patter n Makers' League of North America, 23 N L R B
917, Matter of General Electric Company and Pattern Makers ' League of North America,
A F L, 29 N L R B 162 , Mattel of Sullivan Machinery Company and Internatioyial
Union, United Automobile Workers of America , C I C, 31 N L R B 749, Matter of
Mullins Manufacturing Corporation and Pattern Makeis League of North America, 31
N L • R B 532 , Lakey Foundry and Machine Company and Patter a Makers Association
of Muskegon , 34 N L R B 677
11 November 4, 1937
12 \ote concurring opinion in Bendix case
778 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
separate and distinct bargaining unit, if a majority choose the Alum-
inum Workers, the petition will be dismissed and the bricklayers will
be deemed to be a part of the industrial unit for which the Aluminum
Workers has already been certified
Inasmuch as the Union has requested the inclusion of foremen in
the appropriate unit and no objection has been made to such request,
we shall permit the foremen to vote and shall subsequently include
them in any appropriate unit
V THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion of employees of the Company can best be resolved by means of an
election by secret ballot We shall direct that an election be conducted
among the bricklayers employed by the Company at its Alcoa, Tennes-
see, plant
Since neither labor organization nor the Company has signified the
choice of any particular date or period as of which to determine the
eligibility of employees to vote, we shall direct that, in accordance
with our usual practice, such ehgibihty be deter mined by the pay roll
of the Company for the date next preceding the date of this Direction,
subject to such limitations or additions as are set forth therein
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 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Aluminum Com-
pany of America, at its Alcoa, Tennessee, plant, 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 sub-
ject to Article III, Section 9, of said Rules and Regulations, among
the bricklayers who were employed by the Company at its Alcoa,
Tennessee, plant, during the pay-roll period ending immediately pre-
ceding the date of this Direction, including foremen and any such
employees who did not work during said pay-roll period because they
were ill or on vacation or in the active military service or training
of the United States, or temporarily laid off, but excluding employees
who have since quit or been discharged for cause, to determine whether
ALUMINUM CO OF AMERICA 779
they desire to be represented by Bricklayers Subordinate Union #10,
Tennessee, of the BI icklayers, Masons, and Plasteiers International
Union of America, affiliated with the American Federation of Labor,
or by International Union, Aluminum Workers of America, Local
#9, afhliated'with the Congress of Industrial Organizations, for the
purposes of collective bargaining, or by neither
CHAIRMAN MILLis, dissenting
I believe that the unit requested by the Union is inappropriate and
would, accordingly, dismiss the petition This case is, in my opin-
ion, not controlled by the Benclzx case, for I am not satisfied that
the evidence here adduced on behalf of the Union establishes a
distinct separation of the biicklayeis from the industrial unit, or
that the former group has strongly resisted representation by the
Aluminum Woikers At most, the evidence is inconclusive on the
Union's position that, notwithstanding our prior determination of the
unit and the agreement between the Company and the Aluminum
Workers, it has continued to bargain on behalf of the biicklayers as
a sepaiate group For this reason alone the petition should, in my
opinion, be dismissed, for the Union has failed to sustain the burden
of proof required by the circumstances of this case
Nor am I in agreement with the majority that, since the issue
of the appiopriateness of a separate bargaining unit was not spe-
cifically raised in our prior proceeding, we should now, in effect,
reexamine the question of unit appropriateness The Board's deter-
mination of the appropriate unit was in that proceeding, as in all
representation cases, based upon a judgment as to what would best
effectuate the policies of the Act and was not in any way affected by
the fact that the issue as to the biicklayeis was not specifically raised,
for that question was in fact before the Board when we were called
upon to designate the unit
In the prior proceeding we found a unit consisting of production
and maintenance employees to be appropriate The parties agreed
on the iecord in that proceeding that the unit as so defined was
to include construction workers Since the Company's bricklayers
were at that time, and have since been, engaged in maintenance and
constiuction work, their inclusion in the unit was unequivocal That
the bricklayers so understood the import of our determination, is evi-
dent from then participation in the election which we directed in
the earlier pioceediiig Moreover, the history of collective bargain-
ing as established by the weight of the evidence shows that the Com-
pany and the Aluminum Woikers ' iegarded our certification as a
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designation of the Aluminum Workers as representative for the
bricklayers as well as the other classes of employees,13 and that the
bricklayers participated in the benefits of such representation 14
In the absence of any prior determination of the unit, I would
nevertheless find, from the history of collective bargaining, that the
bricklayers alone do not constitute an appropriate unit 15
13 See Matter of Inland Steel Company and International Association of Machinists, et
al, 34 N L R B 1294
14 See Matter of Michigan Alkali Company and Bricklayers, Masons it Plasterers Inter-
national Union, Local 85, A F of L, 40 N L R B 480
11 See Matter of United Aircraft Products, Inc and International Union, United Auto-
mobile, Aircraft, and Agricultural Implement Workers, 36 N L R B 1198 In thus
relying upon bargaining history as the controlling factor in this case, I do not subscribe
to the general doctrine enunciated b3 Mr Leiserson in Matter of American Can Co and
Engineers Local No 30, et al , 13 N L R B 1252, where he took the position, contrary to
his decision in the instant case, that bargaining history as reflected in a collective agree-
ment is the sole and compulsory element in unit determination I believe, however, that,
as a matter of principle, bargaining history is a controlling and decisive factor in cases
where the unit has already been fixed by a course of dealing between the employees and
their employer and a contrary determination would, in fact, result, as Mr Leiserson
stated in American Can, in the overthrow of an existing stability of bargaining relations
0