Kennecott Copper Corp.

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of employment concerning the three plants are determined in the Winston-Salem office. The three plants have the same job classifications, hiring rates, wage schedules, working hours, pension plans, holidays, vacations, grievances procedure, personnel policies, and plant rules. The Winston-Salem and Burlington plants began operations in 1946. Following Board-conducted elections in an agreed single unit of the production and maintenance employees of both these plants, the Intervenor or its predecessor was certified on March 28, 1947,5 and on December 12, 1949,6 as bargaining representative, and con- tracts were executed covering the employees of the Winston-Salem and Burlington plants on a multiplant basis. On December 5, 1951, the Greensboro plant, which was established in November 1950, was included in the contract covering the Winston-Salem and Burling- ton plants' In view of the foregoing history of collective bargaining on a multi- plant basis and the functional and administrative integration of the radio shops at Winston-Salem, Burlington, and Greensboro, North Carolina, we believe that a unit limited to the employees of the 3Bur- lington plant, as requested by the Petitioner, is not appropriate.' We shall therefore dismiss the instant petition. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 'Cases Nos . 5-R-2607 and 5-R-2737 . The certified union was the Southern Radio Equipment Workers, predecessor of the Intervenor. 8 Case No. 34-RC-164. The Petitioner was a party to the consent election agreements in this case and the cases mentioned in footnote 5, above. 7 This contract was not pleaded as a bar to this proceeding. 8 See e. g. Lever Brothers Company, 97 NLRB 1240, and International Paper Company, Tonawanda Mill, 97 NLRB 764, and cases cited therein. KENNECOTT COPPER CORPORATION and INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, AND ITS LOCAL 890, PETITIONER. Case No. 33-RC-386. June 16, 1952 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 Alan Bruce, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. Upon the entire record in this case, the Board finds : 99 NLRB No. 110. KENNECOTT COPPER. CORPORATION 749 1. The Employer is a New York corporation with its principal office in New York City. The Employer is engaged in operations con- sisting of an open pit copper mine at Santa Rita, New Mexico, and a mill, smelter, and refinery at Hurley, New Mexico, which operations are known as its Chino Mines division. In connection with the above operations, the Employer maintains a hospital at Santa Rita and a branch dispensary at Hurley., This proceeding involves only the employees employed in the Employer's hospital operation. Copper processed by the Chino Mines division during the past year valued in excess-of one million dollars was shipped to points outside the State of New Mexico. While the Employer concedes that it is engaged in interstate commerce with respect to its mining activities, it denies that the Board has jurisdiction over its hospital operation. In the event that the Board should find that it has jurisdiction over the hospital, the Employer requests the Board, in the exercise of its discretion, not to assert its jurisdiction in this proceeding. The record shows that the hospital is owned and operated solely by the Employer. It was testified by representatives of the Em- ployer that a primary reason for the existence of the hospital is to provide security to the Employer against on-the-job injuries and that the hospital would not be maintained by the Employer were it not for its mining operations in the area. Thus, employees with on-the-job injuries are accorded preferential treatment at the hospital. The use of the hospital facilities by production employees is clearly tied to their status and earnings as employees of the Employer. An unmarried employee has $1.50 and a married employee $2 deducted from his monthly salary which entitles the employee and the members of his family to treatment of all ordinary ills and injuries without additional charge. For obstetrics and surgery, a charge at one-half the prevailing rate in the area is made. The hospital payroll de- duction is made whether or not an employee chooses to avail himself of the Employer's hospital facilities.2 Admission of patients not connected with the Employer is discretionary and all are required to pay for treatment. It was testified, however, that for 5 percent or loss- of the total number of patients treated, little or nothing in payment is received. The record shows that during the past 4 years, an average of about 86 percent of the patients treated have been employees or members of their families while the remainder was outside patients. The hospital has no separate legal identity. The Employer pays all hospital expenses including salaries out of the same funds availa- ble to it to pay its other obligations. The hospital revenues have not in the past equaled its expenses and it was testified that under cur- ' Hereinafter , the term hospital will be used to refer to both the hospital and dispensary. 2 The record discloses that there are two public hospitals and one Government hospital within 15 miles of Santa Rita , which the employees sometimes use 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rent policy, a profit in the operation of the hospital was impossible. In computing its income tax, all losses or expenses incurred in op- erating the hospital are offset by the Employer against any profits resulting from its mining operations. The Employer directs the over-all policy of the hospital, including its labor relations policy. Although grievances raised by patients are rare, on those occasions when such grievances are raised, they are referred to the Employer for adjustment. The Employer's gen- eral manager approves all purchases and additions of new equipment including the expansion or curtailment of services. However, as far as professional decisions and the details of running the hospital are concerned, these are left to the chief surgeon who is also chief ad- ministrative officer of the hospital. The chief surgeon testified that he looks to the Employer's general manager as his immediate super- visor. Although there is little or no interchange of employees between the hospital and the mining operations, the Employer uses its regular maintenance employees for the maintenance of the hospital buildings and equipment. Deliveries of supplies and materials to the hospital are normally made by trucks and drivers attached to the Employer's mining operations. Hospital ambulances are serviced and maintained by the Employer's regular truck department. The ambulance drivers are also attached to the mining operations. No special pay arrange- ments are made when regular mining employees do work connected with .the hospital, but they are paid on their regular time tickets through their regular departments. At the end of the hearing, the Employer made a motion, further supported in its brief, to dismiss the petition on the grounds that, (1) with respect to its hospital operation, it is exempted from the jurisdiction of the Board under Section 2 (2) of the Act,3 and (2) the operation of the hospital is not involved in interstate commerce nor does such operation affect interstate commerce. The Petitioner contends, in essence, that the hospital is an integral part of the Employer's operations at its Chino Mines divsion, and thus comes within the jurisdiction of the Board. We find no merit to the Employer's first contention because the Board has held that a hospital is exempted by Section 2 (2) of the Act only if the corporation operating the hospital is, itself, operated on a nonprofit basis.4 Sec. 2 (2) reads: "The term 'employer ' . . . shall not include . . any corporation or association operating a hospital , if no part of the net earnings inures to the benefit of any private shareholder or individual. . . . 4 General Electric Company, Sadler Hospital, 89 NLRB 1247 (Chairman Herzog dis- senting). In that case, the employer also operated a hospital at an annual loss in connection with its other activities which were in interstate commerce . After full con- sideration , the majority of the Board held- that the employer was not exempted as to its hospital operation under Section 2 (2) of the Act. KENNECOctT ' COPPER CORPORATION 751 We reject the Employer's second contention and, in accord with the Petitioner, find, on 'the basis of the foregoing facts, that the hospital is clearly an integral part of the Employer's operations at its Chino Mines division; and thus, in the operation of such hos- pital, the Employer is engaged in interstate commerce within the meaning of the Act.' Accordingly, the Employer's motion to dismiss on the ground that the Board has no jurisdiction is hereby denied.6 A record motion was also made by the Employer requesting that the Board, in the exercise of its discretion, not assert its jurisdiction in this proceeding. The main arguments advanced by the Employer at the hearing and in its brief in support of this motion relate to matters already considered by the Board in its disposition of the question of jurisdiction. As the hospital herein is intimately con- nected with the Employer's mining operations, concededly in inter- estate commerce,' and therefore, a labor dispute at the hospital could materially affect such mining operations, we find that it will effectuate the policies of the Act for the Board to assert its jurisdiction in this cases Accordingly, the Employer's second motion is hereby denied. 2. The labor organization involved claims to represent 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. The Petitioner seeks a unit of all hospital employees, excluding doctors and registered nurses. The Employer agrees to the unit thus defined, except that it would exclude the laboratory technician and the X-ray technician as professional employees and the chief cook as a supervisor. The laboratory technician performs all the laboratory work of the hospital such as urinalyses and blood tests. Although this employee has no college degree, he has had a formal training in chemistry and related subjects, which background is a necessary qualification for the position in question. In addition, the laboratory technician has had over 6 years on-the-job experience under the direct supervision of the chief surgeon. Laboratory tests are performed only at the request 5 General Electric Company, Kadlec Hospital, supra, and cases cited therein ; Phillips Petroleum Company, 97 NLRB 6T ; The Youngstown Mines Corporation, 72 NLRB 348. Under these cases , it is well estab1i hed that activities , which may be otherwise purely local in character , affect interstate commerce where such activity is an integral part of an employer 's operation which is in interstate commerce. 6 Chairman Herzog would dismiss this petition on the ground that the Santa Rita hos- pital comes within the exemption granted certain hospitals by Section 2 (2) of the amended Act. However, because the views expressed in his dissenting opinion in the General Electric case, supra, were rejected by a majority of the full Board, he deems himself bound by and follows the Board's decision in that case ' without further expression of dissent. 7 The Employer 's total annual out-of-State shipments much more than satisfy the mini- mum jurisdictional requirements set by the Board for asserting its jurisdiction . Stanislaus Implement-and Hardware Company, Limited, 91 NLRB' 618. 8 See footnote 5, supra. 752 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD of one of the doctors. -While, with the average tests, the laboratory technician needs no assistance, one of the doctors is normally avail- able for advice and counsel. The results of a test are submitted to the doctor for his consideration. A doctor may discuss a particular slide with the laboratory technician and seek his opinion with respect to it. The X-ray technician has worked at her job for over 2 years and prior to that time was a hospital aide who occasionally assisted in the X-ray room. She has had no formal training except for a 10-day course from a qualified radiologist. The X-ray technician, unlike the other employees, works under the direct supervision of the doctors who specify the exact pictures desired. She has no responsibility for read- ing the X-ray pictures, nor is her opinion sought in any respect. Without passing upon the question of whether the laboratory tech- nician and X-ray technician are professional employees within the meaning of the Act, upon the basis of the record we find that they are clearly technical employees with working conditions different from those of the other employees in the unit; accordingly, we shall exclude them s With respect to the chief cook, it was testified without contradiction that she is responsible for the preparation and serving of meals, the, maintenance of the kitchen, and the supervision of the kitchen help. The record shows that the chief cook is, in turn, subject to the over- all direction and supervision of the head nurse. Under the chief cook are found an assistant chief cook and six helpers. It was testified that if the chief cook should become dissatisfied with the work done by an employee, the former would probably consult with the head nurse be- fore discharging that person. Under all the circumstances including the number of employees attached to the kitchen, we are satisfied that the chief cook exercises responsible direction over the employees under her.10 Accordingly, we find that the chief cook is a supervisor within the meaning of the Act; we shall therefore exclude her from the unit. We find that all employees at the Employer's Santa Rita, New Mexico, hospital and Hurley, New Mexico, dispensary," including nurses' aides, kitchen employees, laundry workers, janitors, and jani- tresses, but excluding the tic oratory technician and X-ray technician, all doctors, registered nurses, the chief cook, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 9 See Standard Cott Company, 98 NLRB 1296 ; Lyntex Corporation,, 98 NLRB 1012; Swift & Company, 98 NLRB 746. 10 See Nicholson Transit Company, 85 NLRB 955, and cases cited therein. 31 At the hearing, the Petitioner with the consent of the Employer , amended its petition so as to specifically include the employees' at the Hurley dispensary which is a branch of the Santa Rita Hospital.