Tennessee Copper Co.

National Labor Relations Board - Board Decisions

Oct 8, 1938

9 N.L.R.B. 117 (N.L.R.B. 1938)

In the Matter of TENNESSEE COPPER COMPANY and A. F. OF L.
FEDERAL UNION No. 21,164
Case No. R-574
Frantz, McConnell d Seymour , by Mr . Robert M. McConnell, of
Knoxville, Tenn ., for the Company.
Mr. Joseph A. Padway, of Washington , D. C., for the A. F. of L.
Mr. Anthony Wayne Smith, of Washington , D. C., and Mr. Reid
Robinson , of Denver , Colo., for the International.
- • Mr. Richard A. Perkins, of counsel to the Board.
THIRD SUPPLEMENTAL DECISION
AND
SECOND AMENDMENT TO SECOND DIRECTION OF
ELECTION
October 8, 1938
On July 23, 1938, the National Labor Relations Board,,herein called
the Board, issued a Second Supplemental Decision and Second Direc-
tion of Election 1 in the above-entitled proceeding, setting aside a
prior election conducted on March 18, ,1938, under the direction and
supervision of the Regional Director for the Tenth Region (Atlanta,
Georgia) pursuant to the Board's original Decision and Direction
of Election,' as amended ,3 among all employees of Tennessee, Copper
Company, Copperhill, Tennessee, herein called.the Company, in the
Ducktown, Tennessee, basin, who were on the pay roll of the, Company
on November 19, 1937, excluding clerical and supervisory employees,
chemists, technical engineers,. and those. who had since quit or been
discharged for cause, to determine whether said employees desired
to be represented by. American Federation of Labor,' herein called
the A. F. of L., or International Union of Mine, Mill, and Smelter
Workers, herein called the International, for the purposes of collec-
tive bargaining, or by neither. It was further provided in said
Second Supplemental Decision and Second Direction of Election
that a second election be conducted within twenty (20)' days from
the date thereof. -
18 N. L. R. B. 575.
2 5 N L. R B. 768.
8 5 N. L. R B. 775.
9 N. L. R. B., No. 19.
117
118 NATIONAL LABOR RELATIONS BOARD
On August 3, 1938, the A. F. of L. filed with the Board certain
"Objections, Exceptions, and Motions" asking that the Board set aside
the Second Supplemental Decision and Second Direction of Election
and certify the A. F. of L. as the exclusive bargaining representative
of employees in an appropriate unit, or alternatively that the Board
take further evidence upon the issues relating to the validity of the
election of March 18, 1938, allow oral argument thereon, and in any
event postpone the second election. On August 6, 1938, the Board
issued an Amendment to Second Direction of Election 4 postponing
the second election until such time as the Board should in the future
direct. On August 25, 1938, a hearing was held before the Board
in Washington, D. C., for the purpose of oral argument. The Com-
pany, the A. F. of L., and the International participated.
The original election was held invalid upon a finding, after a full
hearing, that certain Company foremen had engaged in conduct tend-
ing to coerce and intimidate other employees in their choice of repre-
sentatives.
The Company asserted at the hearing before the Board that it had
throughout maintained a position of neutrality toward the competing
organizations , and that activity on the part of minor supervisory
employees without the power to hire and discharge could not be
taken as expressing the policy of the Company, and was not in fact,
authorized by the Company's higher officials. In our Second Supple-
mental Decision we made no finding charging the Company's execu-
tive officers with improper conduct affecting the election. It may well
be that they maintained a neutral attitude. Nevertheless, the fore-
men are in constant association with employees, who take orders
from them and commonly learn from them the Company's policy on
other matters. The:activity of such supervisory employees must bind
the employer unless effectively disavowed.
Some of the activity on the part of foremen which we found
prejudicial consisted of statements to employees which indicated
possible loss of their jobs in the event of their selecting the Inter-
national as their representative, and which disparaged the Interna-
tional and the Committee for Industrial Organization, with which the.
International is affiliated. The A. F. of L. claims that the remarks
were merely expressive of opinion and not coercive in intent or
effect. The statements, which are referred to in our Second Supple-
mental Decision, are such as we have often held to transcend the limits
of opinion and to amount to coercion. The form of the utterance
is not controlling; the locus of economic power in the proximate rela-
tion of employer and employee gives coercive effect to words which
in another context might be mere statements of opinion.5
4 8 N L. R B 579
5 Virginian Ry. Co. v. System Federation No. 40 et al., 84 Fed. (2nd ) 041, aff'd . 300 U. S.
515.
DECISIONS AND ORDERS 119
The A. F. of L. further claims that two of the seven foremen whose
activities we found prejudicial were members of A. F. of L. Federal
Union No. 21,164, and that the International, having admitted similar
foremen to membership, cannot object to the activity of foremen in
behalf of the A. F. of L. The argument erroneously assumes that it
is the interests of candidates for the suffrage of employees which are
entitled to protection by the Board's rulings regarding the circum-
stances under which an election is held. Rather, the Act guarantees
to all employees the right to choose representatives free from inter-
ference by employers. Membership of supervisory employees in a
labor organization involved in a controversy over representation can-
not confer on such employees a privilege to interfere, nor can the
immunity guaranteed employees by the Act be impaired or diminished
by the membership rules of any labor organization. The employees'
right to a choice free from employer interference is absolute. Super-
visory employees, although eligible for membership in competing
labor organizations, are forbidden by the Act, in their capacity as the
employer's agents, to interfere in the selection of employee bargain-
ing representatives, yet there need be no conflict by reason of their
dual status. It is perfectly consistent for supervisory employees to
belong to labor organizations and yet be prohibited from conduct
permitted non-supervisory employees. In this case it cannot even be
contended that the supervisory employees, being permitted to vote,
must be allowed to attempt to influence voters. For here by agree-
ment of both unions they are excluded from the unit found appro-
priate.
We see no reason to disturb the conclusion in our Second Supple-
mental Decision that the activities of the Company's supervisory em-
ployees constituted such employer interference as to require it new
election. We therefore overrule the "Objections, Exceptions, and Mo-
tions" of the A. F. of L., except the request for oral argument which
has already been granted, and shall direct the second election to be
held.
SECOND AMENDMENT TO SECOND DIRECTION OF
ELECTION
The Board hereby amends its Second Direction of Election, as
amended, by striking therefrom the words "at such time as the Board
will in the future direct" and substituting therefor the words "within
thirty (30) days from the date of the Second Amendment to Second
Direction of Election."
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Third Supplemental Decision and Second Amendment to
Second Direction of Election.