San Manuel Copper Corp.

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Manuel Copper Corporation and International Union of Mine, Mill and Smelter Workers, Independent, Petitioner San Manuel Copper Corporation and United Steelworkers of America, AFL-CIO, Petitioner San Manuel Copper Corporation and Brotherhood of Locomotive Firemen and Enginemen , Independent, Petitioner San Manuel Copper Corporation and International Brotherhood of Electrical Workers, AFL-CIO, Petitioner San Manuel Copper Corporation and International Association of Machinists, AFL-CIO, Petitioner San Manuel Copper Corporation and Local Union No. 428, Inter- national Union of Operating Engineers, AFL-CIO, Petitioner San Manuel Copper Corporation and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers of America, AFL-CIO, Petitioner San Manuel Copper Corporation and Chauffeurs, Warehousemen & Helpers, Local Union No. 310, AFL-CIO, Petitioner San Manuel Copper Corporation and Southeastern Arizona Dis- trict Council of Carpenters, AFL-CIO, Petitioner San Manuel Copper Corporation and United Association of Jour- neymen and Apprentices of the Plumbing . and Pipefitting In- dustry, AFL-CIO, Petitioner San Manuel Copper Corporation and International Brotherhood of Painters, Decorators and Paperhangers of America, AFL- CIO, Petitioner San Manuel Townsite Co. and United Steelworkers of America, AFL-CIO, Petitioner. Cases Nos. 21-RC-4172, 21-RC-4291, 21-RC-4299, 21-RC-4319, 21-RC-4341, 21-RC-4346, 21-RC-4353, 21-RC-4359, 21-RC-4370, 21-RC-4397, 21-RC-4415, and 21-RC- 4378. July 17,1957 SECOND SUPPLEMENTAL DECISION On September 21, 1956, the Board issued a Decision, Direction of Elections, and Order 1 in the above-entitled proceeding, finding, inter alia, that engineers, brakemen, motormen, helpers, flagmen, and loaders assigned to the ore transportation facilities might, if they so desired, constitute a separate appropriate unit, but reserved the ques- tion of whether train bosses or conductors should be in the unit because "the record is inadequate to show whether or not conductors are 1116 NLRB 1153. 118 NLRB No. 87. SAN MANUEL COPPER CORPORATION 735 supervisors." The Decision directed that the conductors should be permitted to vote subject to challenge. The Brotherhood of Loco- motive Firemen and Enginemen, Independent, herein called the Fire- men, won the election in the aforesaid voting group by a margin sufficient to make unnecessary the counting of challenged ballots. Ac- cordingly, on January 24, 1957, the Board issued a Supplemental Decision and Certification of Representatives, certifying the Firemen as the bargaining representative of the railroad employees' unit. Thereafter, the Firemen requested that the Board either find that the train bosses or conductors were not supervisors and include them in the unit, or reopen the record for the purpose of determining the status of such individuals. On April 10, 1957, the Board issued an order reopening the record "for the purpose of receiving evidence with respect to the status of conductors or train bosses." Pursuant thereto, a reopened hearing was held on May 7, 1957, before James W. Cherry, Jr., hearing officer. The Firemen and the Employer appeared at the reopened hearing and fully participated in the proceedings. • The hearing officer's rulings made therein are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, including the original and reopened hearing, the Board finds as follows : The ore transportation department is responsible for loading rail- road cars with ore from bins at the mine site and transporting it over a 7-mile single-track railroad to the mill for processing. The trans- portation operation is carried on 24 hours a day, 7 days a week. A transportation department foreman, who works the day shift, is in immediate charge ' of all operations. Under him are three train crews operating different shifts. Each crew consists of a train boss, an engineer, 2 brakemen, 3 loaders, and 1 chute blaster. ' The train boss is in charge of each crew. There is a dispute, however, as to the extent of his authority. All three train bosses appeared as witnesses at the hearing? One train boss testified that his authority was rou- tine, and that the work of the crewmen was outlined by the foreman who alone had supervisory authority. The two other train bosses gave a different picture of their authority. They testified that they can, on their own authority, send a crewman home if he appears for work in an unfit condition; that they can adjust minor grievances of their crewmen; that their permission is necessary before a crewman can be transferred to or from their shifts or is given time off; that they exercise discretion in directing their crews; and that they substi- tute for the foreman on the latter's day off, assuming the foreman's duties and authority in addition to their own on that day. They also testified that they believe that their recommendation for disciplinary 2In addition to the train bosses , the ore transportation foreman, the general manager, and several crewmen also testified. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action against, or promotion for, a crewman would be followed' by the foreman. We find, on the basis of the preponderance of the credible testimony, that the train bosses are supervisors and hence are excluded from the unit for which the Firemen has been certified as bargaining representative.' . MEMBER JENKINS took no part in the 'consideration of the above Second Supplemental Decision. 3 United States Gypsum Company, 114 NLRB 1285, 1290 (conductor) ; Western •Equip- ment Company, 96 NLRB 1376, 1378 (conductor) ; Northern Redwood Lumber Company, 88 NLRB 272, 279 (conductor). Sweet-Orr and Co., Inc. and Confectionery and Tobacco Drivers & Warehousemen's Union, Local 805, International Brother- hood of Teamsters, AFL-CIO, Petitioner. Case No. 2-RC-8541. July 1 7,1957 SUPPLEMENTAL DECISION AND DIRECTION . Pursuant to a Decision and Direction of Election 1 issued in this proceeding on March 26, 1957, an election was conducted by mail ballot returnable to the Board's Regional Office no later than the close of business on April 18, 1957, under the direction and super- vision of the.. Regional Director for the Second Region among the employees in the unit found appropriate by the Board. Following the election, a tally of ballots was furnished the parties. The tally shows that 22 ballots were cast in the election of which 11 ballots were cast for the Petitioner, 9 against the Petitioner, and 2 were challenged. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director investigated the eligibility of those individuals whose ballots were challenged. Thereafter, on May 29, 1957, the Regional Director issued a report on challenged ballots in which he recommended that the challenges be overruled and that the ballots be opened and counted. On June 7, 1957, the Petitioner filed exceptions to the report on challenges. . 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 [Members Murdock, Rodgers,. and Bean]. The. Board has considered the Regional. Director's report -on chal- lenged ballots and the Petitioner's exceptions and adopts the Regional Director's recommendations.. ' The Petitioner' contends. that Paul Brojde and Robert;D..Furbee:.are not eligible •to vote inasmuch as ? 117 NLRB,796.. 118 NLRB No. 88.