Texas-Zinc Minerals Corp.

National Labor Relations Board - Board Decisions

Feb 11, 1960

126 N.L.R.B. 603 (N.L.R.B. 1960)

TEXAS-ZINC MINERALS CORPORATION 603
Washington news bureau and his staff, the business, food and student
correspondents, and all other employees, supervisors, and guards as
defined in the Act
[Text of Direction of Election omitted from publication ]
Texas-Zinc Minerals Corporation I and United Steelworkers of
America, AFL-CIO, Petitioner. Case No 20-RC-3851 Feb-
ruary 11, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert Magor, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed 2
Briefs were submitted by the Petitioner, in behalf of itself and
the Joint Intervenors,' by the Employer, and by the Navajo Tribe
of Indians 4 The Board has fully considered the briefs and the entire
record in this case, and finds
1 The Navajo Tribe intervened for the sole purpose of moving
to dismiss the petition The principal issues presented are whether
the Act applies to a plant located on the Navajo Indian reservation,
and if the Act does apply, whether the Board should assert jurisdic-
tion over such a facility
The Employer is a corporation which operates a uranium concen-
trate mill at Mexican Hat, Utah Pursuant to a contract with the
Atomic Energy Commission, the Employer annually ships over
$5,000,000 worth of uranium concentrate to the A E C in Colorado.
The Employer's operations are subject to the security regulations of
the A E C , and the Employer may not sell its product to a third
person without the consent of the A E C All the land occupied by
the mill is located on the Navajo reservation and leased to the Em-
ployer by the, Navajo Tribe Of the 87 employees in the requested
unit, 47 are members of the Tribe and 40 are not Indian The Navajo
reservation is comprised of contiguous tracts of land lying in the
States of Arizona, New Mexico, and Utah, occupies 25,000 square
3 The name of the Employer appears as corrected at the hearing
Z The parties' requests for oral argument are denied , as the record and the briefs ade
quately present the issues and the positions of the parties
s The International Union of Operating Engineers, AFL-CIO, and the International
Hodearriers, Building and Common Laborers Union of America, AFL-CIO, intervened
jointly on the basis of a showing of interest
4 The Navajo Tribe of Indians is hereafter referred to as the Navajo Tribe
126 NLRB No 70
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
miles, an area equivalent to that of the State of West Virginia; and is
inhabited by about 87,000 Indians.
Over a year before the instant petition was filed, the Petitioner 5
and one of the Joint Intervenors 6 filed petitions for an election among
employees of the Employer. On April 2, 1958, a consent election was
conducted off the reservation. The chairman of the Navajo Tribe's
governing body immediately protested to the Employer and the Peti-
tioner, claiming that the election was a nullity. In May 1958, while
the results of the election were still inconclusive, both petitions were
withdrawn with the approval of the Regional Director. During the
summer of 1958, the Navajo Tribe's Advisory Committee held hear-
ings at which representatives of unions and management testified with
respect to the advantages and disadvantages of unions. August 26,
1958, the Tribal Council approved a resolution 7 which provides in
part :
... It shall be unlawful for any person to solicit for member-
ships in or to conduct any other incident or adjunct of unioniza-
tion activities on the Navajo Indian reservation... .
.. . Any Indian who shall knowingly . . . violate . . . this reso-
lution . . . shall be sentenced to labor for a period . . . not to
exceed 30 days.
. . . Any non-Indian who shall knowingly . . . violate . .. this
resolution . . . shall be excluded from Navajo Tribal land. .. .
The instant petition was tiled May 12, 1959, and the Navajo Tribe,
as a special Intervenor, is the sole party herein to oppose the direc-
tion of an election.
It is well established that the Indian tribes in America are deemed
to have many of the attributes of a nation. Thus, although their
external sovereignty has been extinguished, their internal sovereignty
is preserved except where limited by treaty or Act of Congress.11
The Navajo Tribe contends that it retains broad powers of self-
government under its treaty s with the United States and that the
Act does not evince a congressional purpose to supersede tribal author-
ity over labor relations on the reservation.
8 Case No 20-RC-3469, filed January 14, 1958
6 Case No. 20-RC-3540, filed April 9, 1958.
4 This resolution was submitted to the Commissioner of Indian Affairs of the Depart-
ment of the Interior A memorandum to the Conimisrioner from the Assistant Solicitor
for Indian Legal Activities of the Department of the Interior was admitted in evidence.
It states that the law does not require the Commissioner to approve or disapprove the
resolution
9 See Department of the Interior, The Federal Indian Law (1958), p 398
9 Treaty of June 1, 1868, 15 Stat 667 Article II of this treaty states
The United States agrees that [the Reservation] . shall be, and the same is
hereby, set apart for the . . Navajo Tribe , and the United States agrees
that no persons except . such employees of the government , or of the Indians,
as may be authorized to enter upon Indian reservations in discharge of duties im-
TEXAS-ZINC MINERALS CORPORATION 605
In J. R. Simplot Company, d/b/a Simplot Fertilizer Company,10
the Board directed an election among the Indian and non-Indian
employees of a plant located on a reservation of the Shoshone-Bannock
Tribes. The Navajo Tribe would distinguish that case on the ground
that the Shoshone-Bannock Tribes, unlike the Navajos, have adopted
a constitution under the Wheeler-Howard Act." The constitution and
bylaws of the Shoshone-Bannock 'Tribes provide that the governing
body of their reservation shall exercise certain powers-
.. , subject to any limitations imposed by the statutes or the
Constitution of the United States . . . .
In effect, the Navajo Tribe argues that this provision conferred juris-
diction on the Board in the Simplot case and that Simplot is therefore
inapposite. We are not persuaded by this line of argument; for, if
the Board possessed jurisdiction in Simplot, it did so by virtue of the
Act and not by virtue of tribal legislation. Nevertheless, in light of
the importance and novelty of the issues raised by the Navajo Tribe,
we have decided to reappraise the finding in Simplot that the Board
has, and should exercise, statutory jurisdiction over a commercial
enterprise on an Indian reservation.
The Navajo Tribe contends that the instant case does not involve
a question "affecting commerce" as that term is used in Section
9(c) (1), and defined in Section 2(6) and (7) of the Act. Section
2(6) of the Act, which defines "commerce," does not mention com-
merce "with the Indian Tribes." Since Section 2(6) is fashioned
after the "Commerce Clause" in article I, section 8, of the Federal
Constitution, which does refer to commerce "with the Indian Tribes,"
it is argued that the failure to make such a reference in Section 2(6)
evinces a congressional purpose to exclude such commerce. In sup-
port of this interpretation of the Act, the Navajo Tribe cites the
Supreme Court doctrine of Elk v. Wilkins. 12 That case contains the
following dictum :
. .. General acts of Congress did not apply to the Indians, unless
so expressed as to clearly manifest an intention to include them.
posed by law , or the orders of the President , shall ever be permitted to pass over,
settle upon, or reside in, the territory described in this article. [Emphasis added.]
See Williams v. Lee, 358 U S 217, 221-222 (1959), in which the Supreme Court con-
strued this treaty to mean that ". . . the internal affairs of the Indians remained ex-
clusively within the jurisdiction of whatever tribal government existed."
10 100 NLRB 771, 107 NLRB 1211
"The Wheeler-Howard Act provides in part :
Any Indian tribe . shall have the right to org,inize for its common welfare, and
may adopt an appropriate constitution and bylaws . . . . Act of June 18, 1934, 48
Stat. 987, 25 U S.C.A. Sec. 476.
-112 U.S. 94 , 100 (1884).
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, the Navajo Tribe contends that, if the Act were inter-
preted to apply to Indian reservations, it would conflict with the act
of Congress defining the purview of the Commissioner of Indian
Affairs. That statute, which was in force at the time the Wagner Act
was passed, states :
The Commissioner of Indian Affairs shall . . . have the man-
agement of all matters arising out of Indian relations.13
The above contentions merit, and have been afforded, careful study
and consideration. We believe, however, that a contrary result is
supported by the weight of authority.
Section 2(6) of the Act defines "commerce," inter alia, as
... trade, traffic, commerce, transportation, or communication
among the several States... .
Since the substantial shipments of uranium concentrate from the
Employer's mill cross the Utah and Colorado lines, there is no doubt
that these shipments literally constitute " commerce." Thus, although
located on an Indian reservation, the Employer's milling operation
would clearly appear to affect "commerce" as that term is defined in
the Act.
We perceive no valid basis for reading the Act to exclude from its
coverage Indians or Indian reservations as a class . It is well estab-
lished that Congress incorporated into the Act the full sweep of its
commerce powers under the Constitution. The Supreme Court has
held, for example, that the language of the Act-
.. . evidences the intention of Congress to exercise whatever
power is constitutionally given to it to regulate commerce. ...14
Where, under similar Federal statutes, Congress has legislated con-
cerning a particular field of major national policy and where the
reach of the statute is defined in sweeping language, the courts have
held that Indians and Indian reservations, although not specifically
mentioned , are contemplated with statutory coverage.15 Thus, in
'3 See Rev. Stat . Sec. 463 , 25 U S C.A. Sec 2
is N.L R B. v. Fainblatt , at al., 306 U S. 601, 607 ( 1939 ) ; see also Amalgamated Asso-
ciation of Street, etc ., Employees of America, at al. v. Wisconsin Employment Relations
Board, 340 U . S 383 , 391 (1951 ) , Polish National Alliance of the United States of North
America v . N L.R.B., 322 US . 643, 647 ( 1944 ) ; Floridan Hotel of Tampa, Inc., 124
NLRB 261.
as We note that the solicitor of the Department of the Interior has expressed the
opinion that the dictum of Elk v. Wilkins , supra, was intended to apply only where a
statute would affect the Indians adversely . Pursuant to this theory, the solicitor has
expressed the view that Indians are entitled to the benefits of the Social Security Act
and that the Federal Wage and Hour Act applies to certain Indian tribal enterprises.
Op. Sol I D., M. 29999, November 28, 1938, Op Sol I D, April 22, 1936 Similarly,
we believe that employees should not be deprived of the protection of Section 7 of the
Act because they are of Indian ancestry, or because the commercial enterprise which pro-
vides their employment is located on an Indian reservation . It appears in this case that
there is compliance with the Social Security Act and the Internal Revenue Code on the
.Navajo reservation , and that members of the tribe may vote in congressional elections.
TEXAS-ZINC MINERALS CORPORATION 607
Superintendent v. Com,imiss-ioner of Internal Revenwe,ls the Federal
income tax law was held to apply to certain income of a Creek Indian.
There, the theory of the Elk v. Wilkins case was urged as ground for
excluding Indians from coverage of that law. However, the Supreme
Court found to the contrary, relying on the broad scope of the
statutory references to "every individual" and income derived "from
any source whatever." Similarly, the United States Court of Appeals
for the Second Circuit referred to the broad statutory coverage of
"every male citizen" in holding that the Selective Service Act applied
to an Iroquois Indian."
In view of all of the foregoing, we are constrained to conclude that
the Act applies to commercial enterprises operating on an Indian
reservation, and particularly to the Employer in this case. As in our
opinion the requisite legal jurisdiction of the Board exists under the
Act, we can perceive no validity in the further contention that the
Board should nevertheless decline to assert its jurisdiction here. The
Employer's operations, which plainly have a substantial impact on
interstate commerce and the national defense," meet the requirements
of the Board's jurisdictional standards. We have considered the
relevant pronouncements of the Congress, the Department of the In-
terior, and the courts, and we discern no Federal policy encouraging
Indian self-government with which an exercise of jurisdiction herein
would be at variance. Nor do we believe that the Tribal labor rela-
tions resolution and the implied threats stemming therefrom can be
grounds for depriving the Employer's employees of their rights under
the Act. Accordingly, we find that the Employer's operations affect
commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. We find that all production, maintenance, transportation and
service-station attendant employees of the Employer at its Mexican
Hat, Utah, operations, excluding all office clerical employees, dormi-
tory employees, metallurgical and chemical laboratory employees,
technical employees, professional employees, watchmen, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the
Is 295 U.S 418 (1935)
17 Ex Parte Green, 123 F. 2d 862 (CA. 2, 1941), cert. denied 316 U.S. 668
Is See Ready Mixed Concrete & Materials , Inc., 122 NLRB 318, Siemens Mailing Service,
122 NLRB 81, Member Jenkins concurring specially.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining within the meaning of Section 9(b)
of the Act.19
[Text of Direction of Election 20 omitted from publication.]
MEMBERS RODGERS and JENKINS, dissenting :
We dissent because in our view the National Labor Relations Board
does not have jurisdiction over the Employer in this case.
19 The unit was stipulated by the parties
10 In its brief, the Navajo Tribe asserts that • (1) A direction of election and a re-
quirement that the Employer enter into collective bargaining as to its operations on the
Navajo reservation would in effect require the Employer to violate the tribal labor rela-
tions resolution , and (2) such it violation of Navajo law would entitle the Navajo Tribe
to cancel the Employer ' s lease and shut down the Employer's operations on the reserva-
tion As to (2), the Employer adverts to paragraph 14 of its lease from the Navajo
Tribe , which provides
The lessee further agrees that it will not use or permit to be used any part of
said premises for any unlawful conduct or purposes whatsoever; . , and that any
violation of this clause by the lessee or with its knowledge, shall render this lease
voidable at the option of the lessor
In light of these facts , the Employer requests that the Board stay any order directing
an election pending a final judicial determination of the Board 's jurisdiction herein
Whether or not the lease can be terminated by the Navajo Tribe on a theory that "un-
lawful conduct" was committed by the Employer in violation of the tribal resolutions
(which are clearly contrary to statutory law under the Act), is a matter outside the
purview of a representation proceeding Whether or not the Board stays its election
order would not affect such rights , as exist , of the Employer or any of the parties to
proceed in the courts concerning any matter directly or indirectly involved herein
Since such a stay would be contrary to the Board's consistent practice and would, in our
opinion, serve no useful purpose, the Employer 's request is denied.
Cecil J. Daggett , George Kruft , Joe W. King, Lewis Carriere,
William Rote , Paul Ecenia , W. F. Trent, and Roy Kruft d/b/a
Allied Chain Link Fence Company and Shopmen 's Local 694
of the International Association of Bridge , Structural and
Ornamental Iron Workers , AFL-CIO. Case No. 23-CA-856.1
February 12, 1960
DECISION AND ORDER
On August 14, 1959, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report, and
supporting briefs.
1 The original case number-39-CA-856-has been amended to reflect a recent change
in the numerical designation of cases from the Board 's regional office in Houston , Texas.
126 NLRB No. 74.