San Manuel Copper Corp.

174 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, 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 San Manuel Copper Corporation and International Association of Machinists, 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, 21-RC-4378, and 21-RC-5031. March 21,1958 THIRD SUPPLEMENTAL DECISION AND DIRECTION OF ELECTION On September 21, 1956, the Board issued a Decision, Direction of Elections and Order in the above-entitled proceeding.' Subsequently, on January 24, 1957, the Board issued a Supplemental Decision and 116 NLRB 1153 120 NLRB No. 29. SAN MANUEL COPPER CORPORATION 175 Certification of Representatives in which it certified International Union of Mine, Mill and Smelter Workers, Independent, herein called Mine Mill, as the bargaining representative of the employees in the production and maintenance unit sought in Case No. 21-RC-4172. On October 10, 1957, International Association of Machinists, AFL- CIO, herein called the Machinists, filed a petition (Case No. 21-RC-5031) seeking representation of a residual unit of employees in the assayer's department. Thereafter, on November 15, 1957, International Union of Mine, Mill and Smelter Workers, Independent, and its Local 937, filed a petition seeking clarification of the unit place- ment of assayers and underground dispatchers and requesting a hear- ing to determine the status of these individuals. On December 6, 1957, the Board directed that a hearing be held for the purpose of taking testimony with respect to the unit placement of assayers and dispatchers. Pursuant thereto, a reopened hearing was held on January 6, 1958, before James W. Cherry, Jr., hearing officer. The Employer, Mine Mill, and the Machinists 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, the Board finds as follows : 1. The parties at the reopened hearing agreed, and the Board finds, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All assayers in the assayers department of the Employer's mine at San Manuel, Arizona, excluding chief chemist, office clerical employ- ees, all other employees, watchmen, guards, professional employees, and supervisors as defined in the Act. The parties further agreed that an immediate election should be held in the aforesaid appropriate unit. There remains for consideration Mine Mill's request for clarification of the unit placement of dispatchers. Mine Mill contends that the dispatchers are not supervisors and are included in the production and maintenance unit for which it is the certified bargaining representa- tive. The Employer asserts that the dispatchers are supervisors and are therefore excluded from that unit. The Machinists is not inter- ested in the dispatchers and withdrew from the hearing after agree- ment had been reached on the holding of an election for the assayers. There are 3 full-time dispatchers, 1 on each shift. At the election held on October 18, 1956, they cast challenged ballots.2 As their votes could not affect the election results, the Board did not determine whether they were supervisors. Neither did the parties thereafter. 2 At the time of the election the dispatchers were classified as jigger bosses. Some weeks later their job title was changed to dispatcher. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They are not covered by the collective-bargaining contract covering production and maintenance employees signed on June 8, 1957. The dispatchers work underground and are part of the haulage) operation which is in charge of an assistant foreman. Under him on each shift is 1 haulage boss, 1 dispatcher, 2 jigger bosses, and the various crews. The haulage boss and the jigger bosses are admittedly supervisors. The function of the haulage crews is to move ore from the mining area to the shaft pocket area, a distance of about 11/2 miles. They load the trains, haul them to the shaft, dump the ore, return the empty train to the mining area, reload and rehaul. One of the jigger bosses works in the immediate mining area "more or less concentrating on the loading of the trains," the other works "at the shaft area look- ing after the dumping and hoisting operations." The dispatcher directs the movement of all trains at the haulage level by radio com- munication. He directs trains to the appropriate drifts for loading and to the dumps for unloading. No train can move without clearance from the dispatcher. He also keeps a report on loading time, dump- ing time, and traveltime. The dispatcher works under the immediate supervision of the haulage boss who gives him his "general lineup" and checks with him at least once an hour. There is a dispute among the witnesses as to whether the dispatchers have the authority effectively to recommend promotions, discipline, or discharge. Mine Mill's witnesses denied that he had such power, the Employer's affirmed it. Although asserting that such power existed and had been exercised, the Employer's witnesses were able to give no specific examples of effective recommendations for promotion or discharge and only one for disciplinary action. The latter is sus- pect in view of the testimony of the assistant foreman in charge of haulage that he did not expect a dispatcher to recommend specific disciplinary action, but only to give his "honest opinion" as to whether the person under investigation had violated the haulage rules. This is not what the Board means by effective recommendation. The dis- patcher who testified to an example of effective disciplinary recom- mendation also stated that he had never recommended any employee for promotion although promotions were a common occurrence, that he had had nothing to do with the appointment of his relief dispatcher, that he had never recommended discharge, and that in a case where he had recommended disciplinary action for one man as the result of an accident, another man was found at fault by his superiors and dis- ciplined. We find, that the dispatchers do not have real power effectively to recommend hire, discharge, or discipline. Undoubtedly the job of dispatcher is of some responsibility. This is indicated by his pay rate which is identical with that of the jigger boss. However, this fact is not significant because other nonsuper- visory employees are also paid at the same rate. It is difficult to per- 'ADAMS DAIRY, INC. 177 ceive how the dispatcher can supervise the traincrews since he has ,)nly radio and no physical contact with them. We are- satisfied that the haulage boss and the jigger bosses are the immediate supervisors of the haulage crews and that the direction of the traincrews by the dispatcher is not supervisory within the meaning of the Act .3 Accordingly, we find that the dispatchers are included in the produc- tion and maintenance unit for which Mine Mill is the certified bargaining representative. [Text of Direction of Election omitted from publication.] MEMBER JENIUNS took no part in the consideration of the above Third Supplemental Decision and Direction of Election. 8 On October 1, 1957, the Employer 's mine superintendent distributed a circular to all mine supervisors listing the "Rules for Disciplinary Action." In this bulletin it is stated that only supervisors of foreman status , which includes assistant foremen, can discharge an employee . However, "a direct supervisor or boss will exercise disciplinary action by : 1. Giving proper warning to employees. 2. Give employees the proper number of days off for his offense. 3. When necessary, recommend an employee's transfer or discharge to his foreman. All bosses have the direct right to immediately send a man out from underground or off the job when he becomes insubordinate , insulting and abusive. Whether he will be penalized or discharged can be reviewed and determined later." The dispatchers admittedly do not issue warnings to employees or layoff employees for violation of rules. Further, there is no credible evidence that they have ever recom- mended transfer or discharge as a disciplinary measure, or have sent a man out from underground because of insubordination or insulting or abusive conduct. Adams Dairy, Inc. and Mikal Wallace. Case No. 14-CA-1532. March 24, 1958 DECISION AND ORDER On June 14, 1957, Trial Examiner Lee J. Best issued his Intermedi- ate Report in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' 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 [Members Rodgers, Bean, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- i The Respondent' s request for oral argument is hereby denied as the record , excep- lions, and brief, adequately present the positions of the parties. 120 NLRB No. 28. 483142--59--vol. 120-13