Tennessee Copper Co.

National Labor Relations Board - Board Decisions

Mar 29, 1950

88 N.L.R.B. 1516 (N.L.R.B. 1950)

In the Matter of TENNESSEE COPPER COMPANY, EMPLOYER and
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS
AND HELPERS OF AMERICA, AFL, PETITIONER
Case No. 10-RC-743.-Decided March 09, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition duly filed, a hearing was held before
John C. Carey, Jr., hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby aff'irme'd.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor orgalhzations involved claim to represent certain
employees of the Employer.
3. In January 1945, the Board certified Federal Labor Unions Nos.
21164 and 21755, AFL, as the bargaining representative of all em-
ployees of the Employer with certain listed exclusions; thereafter the
Employer and those unions signed a collective bargaining agreement
which, as extended, terminated on October 3, 1949. On November 10,
1949, the Board amended the 1945 certification by substituting the
name of the Intervenor, International Chemical Workers Union, AFL,
Locals 400 and 401, as the certified bargaining representative?
On September 21, 1949, the Petitioner filed its original petition
designating as an appropriate bargaining unit "all boilermakers, help-
ers, and apprentices, including those employed at the round house
and in the plate shop and on maintenance and the punch and shear
men." On October 411949, the Employer and the Intervenor executed
' The Intervenor ' s motion to dismiss the petition is denied for reasons indicated in
paragraphs numbered 3 and 4 of this Decision , and because the Petitioner ' s Local 586,
which admits to membership employees herein involved , has complied with Section 9 (f),
( g), and ( h) of the Act.
2 The Board ' s amending order stated that the substitution of the Intervenor ' s name was
not to be construed as a recertification.
88 NLRB No. 258.
1516
TENN'ES.SEE ` COPPER COMPANY 1517
a new 2-year agreement for the established bargaining unit, which
includes all employees the Petitioner here seeks to represent. On
October 25, 1949, the Petitioner filed an amended petition in which the
unit was described as "all boilermakers, helpers and apprentices, in-
cluding all employees in the boilermaker or plate shop and those de-
tailed to the railway shop." The Intervenor argues that the amended
petition asserts a claim different from that made in the original peti-
tion, and, for that reason, that the October 4 agreement constitutes
a bar to this proceeding.
The difference between the original petition and the amended peti-
tion is one of phraseology, not substance. Both petitions describe
units in which boilermakers, their helpers, and apprentices compose
the basic elements ; both would include all such categories working in
the plate (boilermaker) shop-their headquarters and where the
greatest part of their number works. The substitution in the amended
petition of the "railroad shop" for the "round house" named in the
original petition effected no real change, it being clear that both peti-
tions sought to designate boilermakers working in the Employer's
railway department. Nor were real changes effected by the elimina-
tion from the amended petition of the references to "maintenance"
and the "punch and shear men" : the former term was only descrip-
tive surplusage, the evidence showing that the boilermakers' work is
concerned almost entirely with maintenance at the Employer's in-
stallation; the latter was not essential, only 3 employees performing
punch and shear work, 2 of whom are classified as boilermakers. The
basic sameness of the 2 petitions is further emphasized by the fact
that each describes a unit of approximately 52 employees.
It appears, therefore, that the claim made by the Petitioner in its
original petition was not substantially changed by the filing of the
amended petition, both petitions being essentially alike as to the char.
acter of, and number of employees within, the units requested .3 For
that reason, we conclude that the Intervenor's contention is without
merit, and that the October 4 agreement is not a bar to this proceeding.
A question affecting commerce exists concerning the representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and. Section 2 (6) and (7) of the Act.
4. The Petitioner, as indicated above, seeks a craft unit composed
of boilermakers and their helpers and apprentices at the Employer's
facilities in the Ducktown Basin, Tennessee.4 The Employer and the
3 See Hyster Company, 72 NLRB 937, for an enunciation of the principle that the peti-
tions are to be examined as to both the character and the numerical composition of the
units requested in order to determine whether a new claim has been made.
4 The area in the vicinity of Copperhill, Ducktown, and Isabella, in Polk County, Tennes-
see, is known as the Ducktown Basin.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intervenor assert that only an industrial unit is appropriate, and fur-
ther contend that the requested unit is defective in that it would not
include all employees having comparable skills and performing similar
work.
The Employer is engaged in the mining and processing of copper
ore and its byproducts, of which sulphuric acid is the principal con-
stituent, and which include copper sulphate, iron sinter, commercial
slag, and zinc concentrates. Its facilities include a number of mines,.
processing plants, mills, and an interconnecting surface railway sys-
tem. A total of approximately 1,874 employees is employed in the
Employer's operations.
Attached to each of the Employer's operating departments is a
group of employees classified as repairmen. The repairmen perform
"rough" maintenance and repair work on the machinery and equip-
ment within their respective departments; most of the repairmen are
specialists, performing a particular type of work, such as welding or
work on pipes. In addition to the repairmen, the Employer has a
mechanical department, with approximately 105 employees, which
is charged with the over-all maintenance and repair of plants, ma-
chines, and other equipment; this department includes a machine
shop, a pipe fitters shop, a blacksmith shop, and a plate (boilermaker)
shop to which are assigned most of the employees the Petitioner seeks
to represent.
The boilermakers are a group of approximately 50 employees
trained in the various skills of boilermaking, such as the riveting,
welding, caulking, chipping, rolling, flanging, and laying out of
sheet iron and steel. They fabricate and repair boilers, tanks, and
flues. Approximately 42 of this number are assigned to the plate
shop and are under the immediate supervision of a plate shop fore-
man and an assistant plate shop foreman; when working outside the
plate shop, as they do about 25 percent of the time, these employees
receive their general work assignments from the supervisors of oper-
ating departments, but whatever detailed supervision may be neces-
sary is supplied by the assistant plate shop foreman. The 8 other
boilermakers work in the Employer's railway shop where they are
supervised by the railway shop foreman, who also supervises a num-
ber of other employees.
A 4-year apprentice program is maintained by the Employer for
boilermakers; at the present time, there are five boilermaker appren-
tices. The boilermakers receive an hourly rate of $1.75 per hour, a
rate that is received by machinists and blacksmiths and is the top
rate paid to employees in the mechanical department; 5 a "prefer-
5 The welder-repairmen receive the same rate.
TENNESSEE' COPPER COMPANY 1519
.ential" rate of 14 cents per hour is paid to three boilermakers who
are presently performing layout work. Boilermakers in the plate
.shop are frequently "loaned" to the railway shop; only infrequently
have boilermakers been sent to construction or operating departments,
most of such transfers having occurred during a business depression
when, on the basis of their seniority, they were thus transferred in
order to have their employment continued.
Collective bargaining on behalf of employees at the properties in
the Ducktown Basin presently owned by the Employer commenced
in 1916. It lapsed shortly after the termination of World War I;
commenced again in 1934; and has continued to the present. At all
:such times, the bargaining units have been organized on an industrial,
rather than a craft, basis. The industrial units were sanctioned by
the Board in proceedings in 1938, 1940, and 1944; 6 no issues were
presented during those proceedings, however, concerning the appro-
priateness of the establishment of a craft unit.
On the basis of all the evidence adduced, we are of the opinion that
the employees the Petitioner seeks to represent constitute an identi-
fiable, skilled, and homogeneous craft group. In reaching that
opinion, we find no merit in the contention of the Employer and
the Intervenor that this group arbitrarily excludes other employees
who possess the same skills and perform similar work. Admittedly,
there are certain repairmen outside the Petitioner's group, such as
welders and riggers, whose duties somewhat overlap the duties of cer-
tain of the boilermakers. It is nevertheless true, however, that
although repairmen possess certain skills and perform certain tasks
possessed and performed by the boilermakers, they do not possess
the aggregate number of skills possessed by each journeyman boiler-
maker and they do not perform the aggregate number of duties
performed by most boilermakers. Moreover, even where there is a
nominal overlapping of specific skills and duties, it is possible to
differentiate amongst them. Thus, for example, although welders and
boilermakers both do electric-arc welding, only the latter perform the
acetylene welding that is necessary for certain airtight kinds of con-
struction; and although riggers and boilermakers both do riveting
work, only the latter perform watertight riveting.
We find, therefore, that notwithstanding their previous inclusion
in a broader unit, the boilermakers may if they so desire constitute
a separate unit.' However, we shall make no unit determination at
9 Tennessee Copper Company. 5 NLRB 768; 25 NLRB 218; 59 NLRB 1079.
7 The following illustrative cases controvert the Intervenor ' s contention that only indus-
trial units are appropriate in the chemical and mining industries . In each , the Board
granted self-determination elections to craft groups : Mathieson Chemical Corporation, Lake
Charles Operation, Si NLRB 1355; Jefferson Chemical Company, 81 NLRB 1393, 79 NLRB
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this time, but shall first ascertain, by the election we shall direct, the
desires of the employees in the following voting group :
All boilermakers, helpers, and boilermaker apprentices at the facili-
ties of the Employer in the Ducktown Basin, Tennessee, including
those employed in the plate and railway shops, but excluding repair-
men, all other employees, and supervisors as defined in the Act.
If, in the election, a majority of the employees select the Petitioner,
they will be taken to have indicated their desire to constitute a sepa-
rate bargaining unit. If, however, a majority of their number selects
the Intervenor, they will be taken to have indicated their desire to con-
tinue to be represented by the Intervenor as part of the existing unit
of operating and maintenance employees.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30 days
from the date of this Direction, under the direction and supervision of
the Regional Director for the Region in which this case was heard, and
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations, among the employees in the voting
group described in paragraph numbered 4, above, who were employed
during the payroll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said payroll period because they were ill or on vacation or temporarily
laid off, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election, and also excluding employees on strike who
are not entitled to reinstatement, to determine whether they desire to
be represented, for purposes of collective bargaining, by International
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, AFL, or by International Chemical Workers Union, AFL,
Locals 400 and 401, or by neither.
584; Hayden Chemical Corporation, 85 NLRB 1181 ; 72 NLRB 1240; B. F. Goodrich
Chemical Company, 75 NLRB 1142; Kaiser Steel Corporation, 87 NLRB 96 ; Kennecott
Copper Corporation, Ray Mines Division , Hayden operations, 84 NLRB 836.