American Development Company

In the Matter of AMERICAN DEVELOPMENT COMPANY and INTERNA- TIONAL UNION OF MINE, MILL AND SMELTER WORKERS, LOCAL NO . 111, AFFILIATED WITH THE CONGRESS OF IN DUSTRIAL ORGANIZATIONS Case No. C-V94.Decided August 26, 1942 Jurisdiction : lead and zinc mining industry. Settlement : stipulation providing for compliance with the Act. Remedial Orders : entered on stipulation. Mr. Robert S. Fousek, for the Board. Mr. Grant Waggoner and Mr. Dewey Suns, of Picher, Okla.,'for the respondent. Mr. Gobel F. Cravens, of Joplin, Mo., for the Union. Mr. Gilbert V. Rosenberg; of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed by International Union of Mine, Mill and Smelter Workers, Local No. 111, affiliated with the Congress of Indus- trial Organizations, herein called the Union, the National Labor Rela- tions Board,-herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated July 25, 1942, against American Development Company, Picher, Oklahoma, herein called the respondent, alleging that the respondent had. engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and of the notice of hearing thereon were duly served upon the respondent and the Union. Concerning the unfair labor practices, the complaint alleged in sub- stance (1) that on or about January 10, 1942, the respondent dis- charged James W. Lamb, and has since refused to reinstate him be- cause of his membership and activity on behalf of the Union; and (2) that by the foregoing acts, by threatening to cease operations before it would recognize the Union, by anti-union statements, and by threaten- 43 N L. R B, No. 99. 661 662 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD ing to discharge union members, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. -Prior to the hearing, the respondent, the Union, and a representative of the Board entered into a stipulation in settlement of the case, subject to approval by the Board. The stipulation provides as follows : It is hereby stipulated by and between American Development Company, hereinafter called the respondent, by Grant Wag- goner, its attorney, Sand International Union of Mine, Mill and Smelter Workers, Local No. 111, (C. I. 0.), by,Gobel F. Cravens,, its representative, and Robert S. Fousek, attorney, National Labor Relations Board, Seventeenth Region, as follows : I Charges were filed by International Union of Mine, Mill and 'Smelter Workers, Local No. 111, affiliated with the Congress of Industrial Organizations, alleging that the respondent had engaged in and were engaging in certain unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act. Upon the filing of such charges the Na- tional Labor Relations Board, through George J. Bott, Regional Director, Seventeenth Region, Agent of the National Labor-Re- lations Board, acting pursuant to authority granted in Section 10 (b) of the National Labor Relations Act, approved July 5, 1935, and pursuant to Rules and Regulations, Series, 2, as amended, Article IV, Section 1, issued its complaint on the 25th day of July, 1942, against respondent herein. II The respondent is and has been since August 6, 1941, a cor- poration organized under and existing by virtue of the laws of the State of Oklahoma . The respondent has its principal place of business at Picher, Oklahoma. The respondent is engaged, in the mining of lead and zinc ores near Picher, Oklahoma. III The respondent, in the course and conduct of its business, as above described, mined and sold, during the first six (6) months of 1942, in excess of seventy-five (75) rock tons of ore per day. During•this period of time, the,ore mined by the respondent was valued at in excess of Seventy-five Thousand Dollars ($75000.00). AMERICAN DEVELOPMENT COMPANY • L- 663 IV The ore mined by the respondent is shipped to the Central Mill, of the Eagle Picher Mining and Smelting Company, Picher, Okla- homa, where it is treated. The ore mined by the respondent is- - mingled with other ores which are similarly treated by the Eagle Picher Mining and Smelting Company. In excess of eighty-five' (85) percent of the finished products, concentrates or metals, pro- duced from orbs mined by the respondent are shipped to states of the United States, other than the State of Oklahoma. V 0 It is stipulated and agreed that the operations of the respondent have a close, intimate and substantial relation to trade, traffic and commerce among the several states, and that the respondent is en- gaged in commerce within the meaning of. Section 2 (6) and (7) of the National Labor Relations Act. L VI International Union of Mine, Mill and Sinelter Workers, Local No. 111, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2, Sub- Section (5), of the National Labor Relations Act. VII The execution of this stipulation and the provisions of this, stipulation shall not be construed as an admission of any of the allegations of the complaint, except as specifically admitted in this stipulation, nor as an admission that the respondent has engaged in unfair labor practices within the meaning of the National Labor Relations Act. VIII All parties hereto expressly waive their right to a hearing in this matter and to appear in person or otherwise, to give testi- mony and to examine or cross examine witnesses (as provided in Section 10 (b) of the National Labor Relations Act, and in the Rules and Regulations of the National Labor Relations Board, Series 2, as amended). All parties hereto expressly waive the making of findings of fact and conclusions of law by the National Labor Relations Board in this matter. 0 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IY It is expressly consented and agreed by'the parties hereto that upon the basis of the pleadings and formal papers herein (con- sisting of charge, complaint and notice of hearing, affidavit as to service 'of complaint and notice of hearing), and this stipulation, the following order may be made and entered by the National' Labor Relations Board:, 1. The respondent, American Development Company, ,and its officers, agents, successors, and assigns, shall: Cease and desist from : (a) Discouraging membership in International Union of Mine, Mill and Smelter Workers, Local \No. 111, affiliated with the Congress of Industrial Organizations, or in any other labor or- ganization of its employees, by discharging any of its employees, refusing to reinstate any of its employees, or by in any manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment; and (b) In any other manner interfering with, restraining or coerc- ing its employees in the exercise of their right to organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action in order to effectuate the policies and purposes of the National Labor Relations Act : (a) Offer to James W. Lamb immediate reinstatement at its mine at Picher, Oklahoma, to his former or a substantially equiv- alent position, without prejudice to his seniority or other rights or privileges. (b) Make whole James W. Lamb for any loss of pay that he may have suffered by reason of any alleged discrimination against him by the respondent, by paying to James W. Lamb the sum of ,($0) No dollars. (c) Post immediately in conspicuous places on the bulletin boards at its mine in Picher, Oklahoma, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees, stating : 1. That the respondent will not engage in the conduct from which it is ordered to cease and desist in Paragraphs 1 (a) and 1 (b) of this order. 2. That the respondent will take the affirmative action set -forth in Paragraphs 2 (a) and 2 (b)°of this order; and AMERICAN DEVELOPMENT COMPANY 665, 3. That the respondent's employees are free to become or to remain members of International Union of Mine, Mill and Smelter Workers, Local No. 111, affiliated with the Congress,of Industrial Organizations, and that the respondent will not dis- criminate against any employee because of his membership or activities in that organization; and , (d) Notify the Regional Director of the National Labor Rela-= tions Board, Seventeenth Region, within Ten (10) days after the entry of the Board's order, what steps it has taken to comply therewith. X It is further expressly stipulated and agreed that upon offer of reinstatement to James W. Lamb, the said James W. Lainb. shall submit to the regular physical examination customarily given to all employees of respondent before their employment. If such physical examination shall show James W. Lamb to be' unfit for employment, under the usual standards of fitness re- quired by respondent of other-employees, respondent shall not be, required to reemploy James W. Lamb. If James W. Lamb shall not be satisfied with the results of such physical examination he. shall be entitled to •a further physical examination by a disin-' terested examiner to be selected by respondent and James W. Lamb, or upon their failure to agree upon such examiner within ten (10) days after report of the first examination, then by such examiner as may be designated by the Regional Director of the Seventeenth Region, National Labor Relations Board. The re- port of the selected examiner is to be final as to both respondent and James W. Lamb. The reasonable expenses of such examina- tion to be borne by respondent. XI It is expressly consented and agreed that, upon application by the National Labor Relations Board, a decree may be entered by the Circuit Court of Appeals for the appropriate Circuit, en- forcing the order, of said Board. The respondent expressly waives the, right to contest entry of said decree or receive notice of such application. XII The entire agreement between the parties is contained herein' and there is no agreement, -either written or oral,, which alters, varies or adds to it. 666 ' `3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD XIII This stipulation is subject to the approval of the National Labor Relations Board after its submission to the Board in Wash- ington, D. C. On August 18, 1942, the Board issued an Order' approving the stip- ulation, making it a part of the record, and pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, transferring the proceeding to the Board for the purpose of entry of a, Decision and Order pursuant to the provisions of the stipulation. Upon the basis of the above stipulation and the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT American Development Company, an Oklahoma corporation, is engaged in the mining of lead and-zinc ores near Picher, Oklahoma. During the first 6 months of 1942, the respondent mined ore valued at more than $75,000. Ore mined by the respondent is treated at the Central Mill of Eagle Picher Mining and Smelting Company, Picher, Oklahoma, and more than 85 percent of the products, concentrates or metals, extracted from such ore is shipped to destinations outside the State of Oklahoma. The respondent admits that it is engaged in commerce within the meaning of the Act. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact, the stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor' Relations Board hereby orders that American Development Company, Picher, Oklahoma, its officers, agents, successors, and assigns shall : Cease and desist from : (a) Discouraging membership in International Union of Mine, Mill and Smelter Workers, Local No. 111, affiliated with the Congress of Industrial Organizations, or in any other labor organization of its employees, by discharging any of its employees, refusing to reinstate any of its employees, or by in any manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment; and AMERICAN DEVELOPMENT COMPANY 667 (b) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to organize, to'form, join, or assist labor organizations, to bargain collectively through represent- atives of their own choosing, and to engage in concerted activities for - the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2: Takes the following affirmative action in order to effectuate the, policies and purposes of the National Labor Relations Act : (a) Offer to James W. Lamb immediate reinstatement at its mine 'at Picker, Oklahoma, to his former or a substantially equivalent posi- tion, without prejudice to his seniority or other rights or privileges. (b) Make whole 'James W. Lamb for any loss of pay that he may have suffered by reason of any alleged discrimination against him by. the respondent, by paying to James W. Lamb the-,stun of ($0) No dollars. (c) Post immediately in conspicuous places on the bulletin boards at it's mine in Picher, Oklahoma, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees, stating : 1. That the respondent will not engage in the conduct from which it is ordered to cease and desist in Paragraphs it (a) and 1 (b) of this Order; 2. That the respondent will take the affirmative action set forth in Paragraphs 2 (a) and 2 (b) of this Order; 3. That the respondent's employees are free to become or to remain members of International Union of Mine, Mill and Smelter Workers, Local No. 111, affiliated with the Congress of Industrial Organiza-' tions, and that the respondent will not discriminate against any employee because of his membership or activities in that organization; (d) Notify the Regional Director of the National Labor Relations Board, Seventeenth9Region, within Ten (10) days after the entry of the Board's Order, what steps it has taken to comply therewith. CHAIRMAN MILLIS took no part in the consideration of the above ' Decision and Order.