U. S. Vanadium Corp.

In the Matter of U. S . VANADIUM CORPORATION and I. U. No. 210 of I. W. W. ° In the Matter of U. S. VANADIUM CORPORATION and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 12, AFL Cases Nos. R-3639 and R-3919, respectively.Decided August 0011942 Jurisdiction : mining and milling industry. Investigation and Certification of Representatives : existence of question : refusal to accord either of petitioning organizations recognition until certified by the Board ; elections necessary.. , Unit Appropriate for Collective Bargaining : single or separate units compris- ing (1) operators in upper and lower mills and at lower crusher, operators, welders, helpers, repairmen, and oilers on tram ; welders, mechanics, machin- ists, - pipefitters, and oilers at mill; heavy duty operators and mechanics, repairmen; and oilers on heavy duty equipment; and (2) remaining employees, excluding executives, technical workers, clerical, workers, foremen and shift bosses, guards, caretakers, truck drivers - and helpers-determination of, dependent upon results of separate elections. - Mr. Clarence M. Oddie, of San Francisco, Calif., and Mr. Charles D. Peet, of New York City, for the Company. • Mr. R. W. Henderson, of Bakersfield, Calif., for the I. W. W. -Mr. Mr. Lester O. Wilson and Mr. Clues. A. Evans, of Los Angeles, Calif., and Mr. Theodore Lawson, of Bishop, Calif., for the A. F. of L. ' Miss Grace McEldowney, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS _ STATEMENT OF THE CASE Upon petition duly filed by Industrial Union No. 210 of I: W. W.,' herein called the I. W. W., alleging that a question affect- ing commerce had arisen concerning the-representation of employees of U. S. Vanadium Corporation, Pine Creek Unit, Inyo County-, Laws, California, herein called the Company, the National Labor I Also referred to in the record as Metal Mine Workers Industrial Union No. 210 of the Industrial Workers of the World. 43 N. L. R. B., No. 72. 418 U. S. VANADIUM CORPORATION . 0 419 Relations Board, herein called the Board, provided for an appropriate hearing upon due notice before LeRoy Marceau, Trial Examiner. Said hearing was held at Bishop, California, on March 12, 1942. The Company and the I. W. W. appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On March 30, 1942, after'the close of the hearing, the Company filed with the Board a motion to remand the proceeding for further hearing or to dismiss the petition. On April 14, 1942, International Union of Operating Engineers, Local 12, AFL, herein called the A. F. of L., filed a petition alleging that a question 'affecting commerce had arisen concerning the representation of employees of the Company. On May 12, 1942, the Board remanded Case No. R-3639 for further hearing, provided for an appropriate hearing upon due notice in Case R-3919, and consolidated the two cases for hearing. - A consolidated hearing was held from May 27 to 29, 1942, in- elusive, at Bishop, California, before,LeRoy Marceau, Trial Exam- iner. The Company, the I. W. W., and the A. F. of L. appeared, participated, and, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. The Trial Examiner's rulings, made at both hearings, are free from prejudicial error and are hereby affirmed. On June 17,• 1942, l the Company and-the I. W. W. filed briefs; on June 25; 1942, the A. F. of L. filed a brief ; and on July 3, 1942, the Company filed a supplemental brief. All the briefs have been duly considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY U. S. Vanadium Corporation, a wholly owned subsidiary of Union Carbide and Carbon Corporation, is a Delaware corporatioi having its principal place of business in New York City. It is engaged in the development of natural resources and the production of strategic materials, including vanadium, tungsten, chromium, molybdenum, manganese, and cobalt, and the preparation of these metals for use in industry. At its Pine Creek plant, located in Inyo County, California, the only plant involved in this proceeding, the Company produces tung- sten, molybdenum, and copper, which are there mined, milled, and reduced to the form of concentrates. During 1941 equipment and supplies worth more than $50,000 were purchased by the Company 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in ' States other than California for use at the Pine Creek plant. Over 75 percent of the products of the Company, valued at more than $100,000, i"s shipped out of the State each year. - II. THE ORGANIZATIONS INVOLVED Industrial Union No. 210 is a labor organization affiliated with the Industrial Workers of the World, admitting to membership em- ployees of the Company.2 - International Union of Operating Engineers, Local 12, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION Both the I. W. W. and- the A. F. of L. have requested the Company to bargain with them as the representatives of employees in the units they claim as appropriate. The Company has refused to bar- gain with either organization without certification by the Board. A statement of an agent of the Regional Director, introduced in evidence at the hearing in Case No; R-3639, and a statement of the Trial Examiner at the consolidated hearing indicate that both the I. W. W. and the A. F. of L. represent substantial numbers of the Company's employees in the units they claim as appropriate.8 We find that questions affecting commerce have arisen concern- ing the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2 By its motion to remand , the * Company raised the question of the capacity of the I. W. W. to act as a bargaining agent. Although its authority to enter into agreements is limited by the constitution and bylaws of the Industrial workers of the would, the exist- ence of the provision forbidding agreements for any specific length of time is insufficient, upon this record, to persuade us that the I. W. W. has instituted this proceeding without the intention to bargaih collectively in the event it is certified we shall accordingly afford it a place on the ballot in each of the elections hereinafter directed. , 2 According to the statement of the Regional Director , submitted in evidence in Case No. R-3639, the I. W. W. had theretofore submitted , in support of its claim , a petition bearing the signatures of 171 of the Company 's 380 production and maintenance em- ployees The agent of the Regional Director also reported that the International Union of Mine, Mill and Smelter workers , affiliated with the C. I. 0 , which bad asserted an interest in the matter, was unable to produce any evidence in support of its claim. At the consolidated hearing the Trial Examiner reported that the A. F. of L. had sub- mitted 49 cards, 41 of which were dated between February 10 and Apiil 2, 1942, and 8 were undated ; and that all the cards bore apparently genuine original signatures, of which 30 were the names of persons on the Company's pay roll of May 23, 1942, within the unit contended for by the A F. of L , which unit included 75 employees . He further reported that the I. W. W., had submitted a petition signed between May 21 and 25, 1942, bearing apparently genuine oiiginal signatures of 286 persons; that he had.com- paied 78 of these names with the pay roll of May 23, 1942; that 66 of the 78 names appeared on the pay roll within the unit claimed as appropriate by the I W. W, consisting of 431 employees ; and that 15 of the 66 w ere also within the unit contended for by the A. F. of L. If the same ratio applied to all the signatures, 242 of the 286 names would be on the pay roll within the unit claimed by the I. W. W. and 55 would also be in the unit claimed by the A. F. of L. U.' S. -VA\ADIUM CORPORATION _ -421 IV. THE APPROPRIATE UNIT; THE. DETERMINATION OF REPRESENTATIVES The I. W. W. contends that the unit appropriate for bargaining at-the Company's Pine Creek plant consists of all employees- except executives, technical workers, clerical workers, foremen and shift bosses, guards, caretakers, and truck drivers and helpers in inter- state commerce. The A. F. of L. claims that employees within its organizational jurisdiction constitute a craft unit appropriate -for the purposes of bargaining, and in its petition describes this pro- posed unit as "mill foreman, mill operators, welders, mechanics- heavy duty repairman, fireman, Universal Machine operators, shovel, dragline, crane, clamshell, apprentice engineers ( oilers, greasers), pipefitters, millwrights, tractor operators-dozer, drag scraper, boom, motor patrol operators, and machinists." 4 The Company- objects to the segregation of any group or groups of its employees, craftsmen or otherwise, in a separate bargaining -unit; and to the inclusion in the unit of any supervisory employees. It agrees that the industrial unit claimed by the I. W. W. is appropriate. The Company's plant, which is located approximately 26 miles from Bishop, Inyo County, California, consists of the Pine Creek Mine at an altitude of 10,780 feet; the Pine Creek Mill, also called the "upper mill," consisting of a concentrating plant and a chemical plant, located about 2 miles from the mine and at a lower altitude; and ore-carrying tramway connecting the mine and mill; and a smaller mill, known as the Scheelite Plant or the "lower mill," some distance below the Pine Creek Mill.' The Company plans to open new portals to the mine near the Pine Creek Mill and to discontinue the operation of the Scheelite Plant. When this is done, all opera- tions-of the plant will be in close proximity to each other . Because of the isolated locoation of the plant, most of the employees live in bunk houses or family houses on the premises. The Company's business is a closely integrated -enterprise. To a large extent the employees share common interests and working conditions; men are frequently shifted from one job to another; and practica]ly all the employees have been originally hired as laborers and subsequently trained for other jobs as they have become avail- able. Wage rates for similar work at the mine and mill are the same except for the so-called "high altitude, differential" customary in the industry. 'In its brief the A. F. of L. requests that the description of the unit in its petition be amended to include "churn and diamond drillers above ground," omitted by inadvertence. It appears, however, that the only men in these classifications working at the Company's plant are on contractors ' pay rolls , and it is not contended that they are employees of the Company. 5 There is also an open pit or "glory hole ," but it is now being operated by independent contractors whose employees are not included in either of 'the claimed units. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On several occasions the Company has received petitions from its'employees as a result of which it has conferred with committees and- has granted wage increases and has adjusted grievances regard- ing working Conditions. Such petitions were received by the Com- pany ' in November - 1940, July 1941, and December 1941 . On these occasions the committees represented all classifications of employees and the demands covered practically all the men . However, in May 1942 the, Company received a petition from employees of the Pine Creek Mill, Scheelite Plant, and tram only , the committee which conferred with the superintendent stating that they understood that the employees of the mine had already been recognized . Although they were .told that their requests would be considered, apparently no action has been taken on the matter. The Company has no collective bargaining contracts ; but in Decem- ber 1941 it, was told that the committee of employees with which it was conferring represented the I . W. W. 'No other union has pre- sented demands on behalf of 'a4 of the employees. On the basis of the organization of the Company 's business and the bargaining history , in the plant, an industrial unit' appears to be appropriate for the purposes of collective bargaining . However, the, unit claimed by the A. F. of L . is composed largely of mill and machine operators , employees whose work is more highly skilled than that of,the majority of the other employees working with theme and whose interests are distinguishable on that ground. The A. F. of L. represents employees in the ,classifications it is now claiming at plants of other companies and, as `stated above, has been designated as bargaining representative by a substantial number of such em- ployees in its, proposed unit at the Company's plant. Upon the record we''believe that such employees might properly, be considered either as a separate unit or as part of a larger - nit of the Company's employees. Under the circumstances we.hold that the desires of the employees involved shall govern, and we shall therefore direct that separate elections be held among the mill and machine operators, with certain inclusions and exclusions discussed below, and among other employees at the Company's plant. Upon the results of these elections will depend in part our determination of the appropriate unit or units . If a majority of the mill and machine operators' group select the A . F. of L. as their representative, that group will constitute a separate and distinct bargaining unit; if a majority of them choose the I . W. W. and a majority of the other group also express their desire to be represented by the I. W. W., then the two groups will together constitute a single unit. e As noted below, the A. F., of L would exclude all mine employees, regardless of skill, and all maintenance men at the mine, with the exception of one welder 'U. S. VANADIUM CORPORATION 423 As stated above, the I. W. W. and the Company would exclude executives, technical workers, clerical workers, foremen and shift bosses, guards, caretakers, and truck drivers and helpers in interstate commerce. At the hearing the A. F. of L. agreed to the exclusion from its proposed unit of such employees with the exception of the mill foreman, mill shift bosses, and the foreman of the road de- partment;' in its brief it stated that it claimed no foremen or shift bosses. We shall exclude from both groups all employees in the above classifications, including foremen and shift bosses. The A. F. of L. would also exclude, but the I. W. W. would include, all employees listed on the Company's pay roll under the classifica- tions of mine," bullgang, construction, boarding house flunkies, and bull cooks. Since- such employees perform duties not closely con- nected with the work of the employees claimed by the A. F. of L., or are in 'classifications over which other unions in the A. F. of L. organization have jurisdiction, we shall exclude them from the mill and machine operators' group, but shall include them in the industrial group. - The employees whom the A. F. of L. would include fall within the following pay-roll classifications and on the basis of such classifica- tion we shall indicate the employees to be included in the mill and machine operators' group : Upper mill, lower mill, and lower crusher: The A. F. of L. would include in its proposed unit all operators in these classifications, but would exclude laborers. On the basis of the nature of the work performed, we shall include the operators. - Tram: The A. F. of L. requests the inclusion of a welder, two welders' helpers,-and an oiler listed in this classification, but would exclude operators, loaders, a millwright, and a repairman. Since the A. F. of L. has asked for the inclusion of other operators and repairmen on the machines they operate, we see no reason for ex- cluding them in this instance. -Accordingly, we shall include in the mill and inachine operators' group all operators,repairmen, welders, welders' helpers, and oilers working on the tram. Maintenance: The A. F. of L. would include welders, mechanics, machinists, pipefitters, and oilers at the mill, and one of two welders at the mine, but would exclude carpenters, electricians, helpers, and laborers at the mill and all maintenance employees at the mine except for the aforesaid welder. Since mine workers are excluded from the mill and machine operators' group, as desired by the A. ' F.- of L., 7 The non -supervisory employees on whose exclusion the parties agreed fall within the following pay-roll classifications : warehouses , laboratory , engineers , technical men, care- takers, watchmen , clerical, and interstate transportation. 8 All underground men are included in this classification . Although there are machine operators included among the mine employees , the A. F. of L. claims no jurisdiction over machines underground. 424 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD we shall also exclude maintenance 'men, including welders, working at' the mine. As to the maintenance employees at the mill, we shall include in the mill and machine operators' group only welders, mechanics, machinists, pipefitters, and oilers. Transportation and Heavy Duty: The A. F. of L. would include heavy duty equipment operators and, niechanics, repairmen, and oilers on heavy duty equipment, but would exclude truck drivers and laborers. Although the record is not clear as to the' reason -for excluding truck drivers, we assume that such employees are not within the jurisdiction of the A. F. of L. We shall, accordingly, include in the -mill and machine operators' group only heavy duty equipment operators, mechanics, repairmen, and oilers. - We shall, accordingly, direct that the questions concerning repre- sentation which have arisen be resolved by elections by secret ballot among the following groups of employees of the Company : Group A : Operators in the upper and lower mills and at the lower crusher; operators, welders, welders' helpers, repairmen,, and oilers on the tram; welders, mechanics, machinists, pipefitters, and oilers at the mill; and heavy duty operators and mechanics, repair- men, and oilers on heavy duty equipment, to determine whether they desire to be represented by Industrial Union No. 210 of the I. W. W., or by International Union of Operating Engineers, Local 12, AFL, for the purposes of collective bargaining, or by neither; and Group B : All employees except those in Group A, above, and executives, technical workers, clerical workers, foremen and shift bosses, guards, caretakers, and truck drivers and helpers in inter- state commerce, to determine whether or not they desire to be repre- sented by Industrial Union No. 210 of I. W. W. for the purposes of collective bargaining. Those eligible to vote in the election shall be the employees in the respective groups who were employed during the pay-roll period immediately preceding the date of the Direction of Elections, herein, subject 'to the additions and limitations set forth in the Direction. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations -Board Rules and Regulations=Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with U. S. Vanadium Corporation, Inyo County, California, separate elections by secret ballot shall be conducted as early as possible, but not later than U. S. VANADIUM CORPORATION 425 thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twentieth Region, acting in this matter as agent for the National Labor ' Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among those employees of the Company who fall within the groups described below and who were employed during the pay- roll period immediately preceding the date of this Direction, in- cluding employees - who did not work, during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding employees who have since quit or been discharged for cause : Group A : Operators in the upper and lower mills and at the lower crusher; operators, welders, welders' helpers, repairmen, and oilers on the tram ; welders, mechanics, machinists, pipefitters, and oilers at the mill; and heavy duty operators and mechanics, repairmen, and oilers on heavy duty equipment, to determine whether they desire to be represented by Industrial Union No. 210 of I. W. W. or by Interna- tional Union of Operating Engineers, Local 12, AFL, for the purposes of collective bargaining, or by neither; and Group B : All employees. except those in Group A, above, and executives, technical workers, clerical workers, foremen and shift bosses, guards, caretakers, and truck drivers and helpers in inter- state commerce, to determine whether or not they desire to be repre- sented by Industrial Union No. 210 of I. W. W. for the purposes of collective bargaining.