Exxon Co., U.S.A.

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exxon Company, U.S.A., Highland Uranium Opera- tions and International Union of Operating Engi- neers, Local Union 326, AFL-CIO, Petitioner. Case 27-RC-5111 June 24, 1976 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Daniel C. Ferguson of the National Labor Relations Board.' Following the close of the hearing, the Regional Di- rector for Region 27 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing, and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. The parties stipulated that the Employer, a New Jersey corporation, is engaged near Douglas, Wyoming, in the operation of a uranium mine. The parties further stipulated that during the year preceding the hearing the Employer purchased and received at the mine goods and materials valued in excess of $50,000 di- rectly from outside the State of Wyoming, and that during the same period the Employer shipped ore valued in excess of $50,000 directly to points and places outside the State of Wyoming. 2. The parties further stipulated that the Peti- tioner, which claims to represent certain employees of the Employer, and the Intervenor are labor orga- nizations as defined in the Act. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of pro- 1 Oil, Chemical and Atomic Workers Union intervened in this proceeding and participated in the hearing duction and maintenance employees at the Employer's open pit strip mine and mill located north of Douglas, Wyoming, excluding technical em- ployees, at least some plant clericals,' office clericals, guards, professionals, and supervisors.' The Employ- er, however, contends that the only appropriate unit must include all the production and maintenance personnel at its Highland uranium mine site, which, in addition to the employees sought, would include those in its underground mine which was still under construction and not producing at the time of the hearing.4 The Employer further contends that the employees whom the Petitioner would exclude as technicals or plant clericals should be included in the unit. The Employer's mining operation at the Highland site as of the time of the hearing included: (1) open pit strip mining; (2) pit wall mining (i.e., excavation of a horizontal tunnel into the open pit wall); (3) solution mining (which extracts uranium by "in-situ" methods); and (4) a mill which processes all of the uranium mined by the three methods. When the un- derground mine is activated, its uranium will also be processed by the mill. Administratively, the Highland site is organized under the overall supervision of a mine manager. Re- porting to him are five superintendents. The employ- ee relations superintendent is responsible for all hir- ing for the site and keeps all personnel records. The administrative superintendent is responsible for cleri- cal personnel, the warehouse, and purchase of mate- rials. The safety advisor is responsible for all safety aspects of the site-e.g., radiation protection and safe operation of equipment. The surface operation superintendent is responsible for the surface mining operations and the mill. The underground mining su- perintendent is, of course, responsible for the under- ground mine which, at the time of the hearing, con- sisted largely of work preparatory to actual production, such as construction of the shaft, and building of ramps and ventilation systems.' All employees working at the Highland site have frequent contact with one another both on and off thejob. The site itself is located 28 miles from Doug- las, 30 miles from Glenrock, and 55 miles from Cas- per. Because of the isolated location, carpools are 2 The Petitioner's position at the hearing was ambiguous concerning plant clericals 3 The petition was amended at the hearing At the time of the hearing, the Employer employed four nonsupervisory employees in its underground operation The Employer expected, however, that by the end of the first quarter of 1976 100 employees will have been hired, representing two-thirds of the total final complement of underground mine employees The Employer represented to this Board, in an attachment to its brief, that 46 of the first 100 employees had already been hired as of that time 5 The actual construction of the underground mine was contracted out by the Employer 225 NLRB No. 3 EXXON COMPANY, U.S A 11 encouraged by the Employer. While the total number of such carpools is not stated in the record, they con- sist of people who work in all the functions at the site. The employees have further contact with one another off the worksite through participation in Highland Recreation Club activities and through at- tendance at dinner meetings sponsored by the Com- pany which may be held at a hotel or country club, and to which all employees and their spouses are in- vited. At these meetings, such things as benefit plans and current happenings at the minesite are discussed. The employees also have contact with one another at the site, either in carrying out their functions or through temporary job interchange. Some classifica- tions, such as grade controllers, laboratory techni- cians, engineering technicians, and warehousemen, service all activities at the site. When the under- ground mine, which is located 2 miles from the ex- isting open pit and mill, begins its operation, it too will be serviced by such employees. The underground mine will also employ the same production employee classifications as are employed in the surface opera- tions-operations technicians, operations specialists, and maintenance specialists. Their functions will be the same as those of their counterparts in the surface operation, and they will use similar equipment al- though on a smaller scale. Indeed, Underground Su- perintendent Lewis testified that the work performed in the pit wall operation, whose employees are sought by Petitioner, is exactly the same as the work that will be performed by the "stope" miners under- ground. It was anticipated by the Employer at the hearing that some of the surface operation personnel would be transferred to the underground mine.6 With regard to existing practices, the Employer's employee relations superintendent testified that a great deal of temporary job interchange presently exists. He stat- ed, for example, that a warehousemen might come into the mill in the morning and find that he has to replace someone at the mine who has not reported for work. In summary, contrary to the view of our dissenting colleague, the record discloses that the Employer's Highland mine operation, which at the time of the hearing employed a total of 193 employees in the categories considered herein, is centrally organized under the mine manager' with a highly integrated production process. As noted above, the under- ground operation will be serviced in some categories by the same employees who presently service and will continue to service the surface operation. As fur- 6 At the time of the hearing, numerous requests for transfer to the under- ground operations were pending 7 While the function of hiring personnel is that of the employee relations superintendent , employees may be discharged only by the mine manager ther noted, the mill, which currently processes the ore produced in the surface operation, will also process the ore in the underground operation. Any labor problems which may arise at the mill will therefore have a profound effect on the entire production pro- cess at the Highland site. Likewise, because of its isolated location, any labor problem arising at any other part of the site will likely also have an effect on the entire site. By focusing on the Employer's vertical hierarchical structure established for the different mining opera- tions, our dissenting colleague has ignored the overall integrated nature of the Employer's Highland opera- tion, and has thereby sacrificed the forest for the trees. Accordingly, we conclude that the employees in the underground mine share a community of inter- est with the surface mine, mill, and warehouse per- sonnel whom the Petitioner seeks, and thus an over- all unit, including the underground mine production personnel, constitutes the only appropriate unit. Since a substantial number of the underground mine employees have already been hired, the election date need not be postponed any longer and the payroll period for determining eligibility shall be that ending immediately before the date of this Decision and Di- rection of Election. Clericals As noted above, the Petitioner's position regarding plant clerical employees was ambiguous. Indicating early in the record that it would exclude some plant clericals but not others, the Petitioner never defi- nitely indicated its position regarding the mine main- tenance clerk, mill maintenance clerk, cardex clerk, or expeditor. The Employer would include all four employees in the unit. The record discloses that the aforementioned individuals are indeed plant cleri- cals. The mine maintenance clerk works with the main- tenance coordinator planning preventive mainte- nance programs, ordering parts, and keeping logs on equipment. His work brings him into frequent con- tact with the production personnel.' The maintenance clerk in the mill likewise has fre- quent contact with the production personnel. Sixty percent of this clerk's time is devoted to dispensing tools at the mill. The other 40 percent of his time is spent cleaning tools, cleaning the toolroom, re- cording PH checks, recording hours used on equip- ment, and posting. The cardex clerk receives "issues and orders" from the warehousemen and posts them to the cardex 8 While the record also indicates that he interrelates with the maintenance supervisors, there is no indication that he is a supervisor 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card. This clerk, who works in the warehouse, also assists the warehousemen in reconciliation of the in- ventory. The expeditor maintains contact with vendors on receipt of equipment and materials by letter and phone, assists warehousemen in reconciliation of purchase orders, and becomes involved in the inven- tory and issuance of parts. It is thus apparent that the four plant clerical em- ployees at the Employer's Highland operation have frequent contact with and share a community of in- terest with the production and maintenance employ- ees sought by Petitioner.' The plant clerical employ- ees will therefore be included in the unit found appropriate herein. Technical Employees As further noted above, the parties are also in dis- agreement concerning the status of four employee classifications. These are the laboratory technicians, instrument technicians, grade control technicians, and engineering technicians; all of whom the Peti- tioner would exclude as technical employees. The Employer employs nine laboratory techni- cians, five of whom are located in the mill in a sepa- rate laboratory area which contains X-ray analyzers, PH meters, and other laboratory equipment. Fifty percent of their time, however, is spent outside the laboratory area, either in the other parts of the mill, or out in the "ore pad" or getting samples from the "probe tower." Their function is to test ore for grade, uranium content, and leaching characteristics in or- der to determine the necessary quantities of chemi- cals to be used in the extraction process in the mill. This information is then relayed by the laboratory technician to the operators in the mill who also do testing from time to time at their particular posts and who work together with the laboratory technicians on certain instrumentations such as the calibration of the PH meter. The record does not clarify where the other laboratory technicians work, although one lab- oratory technician runs the Employer's solution mine and drives the finished product from that operation in a truck over to the mill for further processing. The laboratory technicians need a very basic knowledge of chemistry for employment. No degree or any for- mal schooling is required and they receive on-the-job training. Supervision of the laboratory technicians is by a supervisory metallurgist who reports to the sur- face operations superintendent. The three instrument technicians repair various in- struments in the mill. They are also used for electri- cal work of all kinds from changing lightbulbs or running conduit to fixing an electrical motor. They were characterized by the Employer's surface opera- tions superintendent as performing normal plant maintenance on instrumentation. No evidence was presented concerning the training requirements for this job. The record also does not disclose who super- vises the instrument technicians. The six grade control technicians work with Geiger counters or other instruments to locate ore bodies and determine their quality. They also direct machin- ery using their instruments and periodically drive trucks. Again, no evidence was presented concerning the training requirements for this job. The grade con- trol technicians are supervised by a supervisory geol- ogist who reports to the surface operations superin- tendent. The Petitioner agreed that the grade control technicians should be included in the unit, but only to the extent that they work in the field, locate ore bodies, and place flags or other control points for the operators. The Petitioner would not include them to the extent that they determine the amount of urani- um in a given pile of dirt. The six engineering technicians perform general surveyor-type work, carrying a coordinate system around and measuring to determine where holes may be drilled and indicating center lines and grade lines to the miners. The engineering technicians also some- times do grade control work or "any work that may be assigned to them." They are supervised by a su- pervisory mining engineer who reports to the surface operations superintendent. Here again, no testimony was offered regarding the educational or training re- quirements for this classification. Based upon the lack of evidence presented con- cerning the educational and training requirements and the degree of independent judgment used by the grade control technicians, engineering technicians, and instrument technicians, we are unable to pass upon their status as technical employees. We note, however, that these classifications enjoy a great deal of contact with other employees sought by the Peti- tioner. They will therefore be included in the unit found appropriate herem.10 The laboratory technicians are not required to have any specialized training usually acquired in col- leges, technical schools, or special courses. We there- fore find that they are not technical employees." The laboratory technicians also have a great deal of con- tact in performing their job with other employees sought by the Petitioner. We therefore find that they share a community of interest with unit employees and will include the laboratory technicians in the unit found appropriate herein. ^0 The Sheffield Corporation, 134 NLRB 1101 (1961) 9 See Armour and Company, 119 NLRB 623 (1957) ^1 Fisher Controls Company, 192 NLRB 514 (1971) EXXON COMPANY, U S A 13 Accordingly, upon the entire record, we find that the following employees of the Employer constitute the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance and plant cleri- cal employees employed in the milling and min- ing operation at the Highland site north of Douglas, Wyoming, including operations spe- cialists, senior operations specialists, mainte- nance specialists, operations technicians, ware- housemen, senior warehousemen, laboratory technicians, engineering technicians, instrument technicians, grade control technicians, mainte- nance clerk (mine), maintenance clerk (mill), cardex clerk, and expeditor; but excluding all office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act." [Direction of Election omitted from publication.]" CHAIRMAN MURPHY, dissenting: Unlike my colleagues, I would find that the unit sought by Petitioner, consisting of the Employer's production and maintenance employees employed at its open pit mine and mill near Douglas, Wyoming, is an appropriate unit within the meaning of Section 9 of the Act. The majority concludes that the only appropriate unit must also include employees to be employed at some future date at the Employer's deep mine locat- ed some 2 miles distant from the surface operations and which, at the time of the hearing, was not yet operational. Although such a unit might well be ap- propriate as the optimum unit at the Employer's Highland uranium operations, it is not necessarily the only appropriate unit and it does not necessarily render a smaller unit inappropriate. Indeed, we have repeatedly stated that the appropriate unit for pur- poses of collective bargaining does not have to be the optimum unit or even the most appropriate unit. It is sufficient that the unit is an appropriate one-i.e., one consisting of a distinct or homogeneous grouping of employees who share a community of interest with one another. Where, as here, more than one unit may be appropriate among the employees of a particular employer, it is the Board's established policy to limit its unit consideration to the question of whether the unit requested by the petitioner is appropriate.14 The majority appears not to have followed this policy in this case. As stated, Petitioner seeks to represent a unit of approximately 171 employees 15 employed in the Employer's open pit mine and mill, collectively called the surface operation. There is no bargaining history for the employees involved and no labor or- ganization seeks to represent the employees in a broader unit. The Employer's supervisory hierarchy is as fol- lows: The mine manager is in overall charge of the entire mining and milling operations. Reporting di- rectly to him is a surface operations superintendent who, as the title suggests, is in charge of the surface operations (the open pit mine, the mill, and certain technical support employees). Also reporting to the mine manager is an underground superintendent who, as the title again suggests, will be in overall charge of the deep mining operation. In addition, there are three other superintendents, charged with providing specific support services to the entire min- ing operation, who report directly to the mine man- ager. These are the administrative superintendent, the safety advisor, and the employee relations super- intendent. The latter does all of the hiring and firing and maintains the personnel records for the entire site. The majority makes much of the above superviso- ry hierarchy as part of an effort to show centralized control and a highly integrated production process. What my colleagues fail to note, however, is evidence disclosing the structure of the supervisory staff em- ployed at the open pit mine and mill, and their re- sponsibility for the day-to-day operations of those facilities, including the control and direction of the employees working under them, that is, the employ- ees here sought to be represented by Petitioner. Thus, reporting to the surface operations superintendent is a mine superintendent and a mill superintendent. The former is responsible for the open pit mining and stripping operation, including its maintenance and support. The latter is responsible for the milling operation. Working under the mill superintendent is a maintenance coordinator who is in charge of all maintenance repairs, and an operations section su- pervisor who is responsible for operating the mill. Reporting to each of these individuals are the various 12 While the Petitioner did not indicate whether or not it would be willing to proceed to an election in the unit found appropriate herein, we find that a dismissal of the petition would be highly prejudicial in the circumstances of this case The Petitioner will therefore be permitted to proceed to an election without a new showing of interest, or may, within 5 days of the !ssuance of this Decision and Direction of Election , withdraw its petition without prejudice 13 (Excelsior footnote omitted from publication ) 14 See Molts Shop Rite of Springfield, Inc and Molts Shop Rite of Chicopee, 182 NLRB 172 (1970) and cases cited therein at fn 3, U-Tote-Em Grocery Co, Division of Malone & Hyde, Inc, 185 NLRB 52, 54, fn 10 (1970) 15 This figure includes 18 so-called technical employees and 4 plant cleri- cal employees whom Petitioner would exclude from the unit For the rea- sons stated by my colleagues in the majority, I find no basis for excluding these 22 employees from the unit which I find appropriate 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift supervisors. Similarly, working under the mine superintendent is a maintenance coordinator who is in charge of maintenance and repair of all mining equipment, and an operations section supervisor who is in charge of production and stripping at the open pit mine. Reporting to the latter, are the various shift supervisors at the open pit mine. In addition to the mine and mill superintendents, there are various technical support groups who also report directly to the surface operations superinten- dent. These include a supervisory metallurgist who directs the work of the five laboratory technicians; a supervisory mining engineer who directs the work of the engineering technicians, surveyors, and drafts- men; and, a supervisory geologist who is in charge of the grade control program. According to the Employer's employee relations superintendent, at the time of the hearing the follow- ing classifications of employees were employed in the surface operation; operating technicians (125), oper- ations specialists (9), maintenance specialists (20), in- strument technicians (3), warehousemen (11), labora- tory technicians (9), grade control technicians (6), engineering technicians (6), and plant clericals (4). These employees, as is clear from the above-detailed supervisory hierarchy under the direction of the sur- face operations superintendent, are under separate supervision from those employees who will be em- ployed in the underground operation. In concluding that the appropriate unit must also include the underground mine employees, my col- leagues rely on various factors which, in my judg- ment, are either irrelevant, unpersuasive, or inade- quately supported by the record. Thus, my colleagues rely on the fact that thejob classifications of employ- ees in the underground operation will be the same as in the surface operation. I find little significance in this fact in view of the testimony of Employee Rela- tions Superintendent Haydel who explained that Exxon has never been known for close identifi- cation of classifications or titles as to what the individual actually does. And rather than having a series of 35 or 40 job classifications, we prefer to have a restricted number of classifications. ployees in the deep mine will have the same general job classifications as those in the surface operation (i.e., operating technician, operating specialists, maintenance specialist, etc.), their actual job duties, equipment, and working conditions will be vastly dif- ferent. Thus, Lewis testified that an operating techni- cian or specialist without prior underground mining experience cannot be transferred to work in the deep mine without some fairly extensive special training. I also find little evidence of employee interchange, or the possibility of such, between the surface and underground operations. Indeed, those working in the open pit mine who have had no prior under- ground experience will have to be specially trained to work in the deep mine. In these circumstances, I can find no significance in the fact that a number of em- ployees from the surface operation have requested permanent transfer to the underground operation. Also contrary to my colleagues, I see scant evidence in the record that employees in the underground mine will have much day-to-day contact with em- ployees in the open pit operation except perhaps through carpooling or company-sponsored social events. I find these insignificant in determining whether the employees have daily contact with one another in the performance of their respective tasks. My colleagues also conclude, apparently because the mill will process the ore retrieved from all sources, that the entire mining/milling operation constitutes an integrated operation. I cannot agree with this conclusion. The open pit mine and mill can produce an end product without input from the deep mine. The former is not dependent upon the latter. And, while the ore to be extracted from the deep mine will be processed at the null, together with that mined in the open pit, I do not view the operations as so intrinsically interdependent upon one another as to render a unit limited to the surface operation inap- propriate. Accordingly, for the reasons set forth above, I would find the unit petitioned for appropriate. The fact that the broader unit might well also be appro- priate does not, in my view, detract from that find- ing.16 In addition, the testimony of Underground Project Superintendent Lewis makes clear that although em- 16 As for my colleagues' accusation that I have "sacrificed the forest for the trees," must I remind them that without trees there cannot be a forest')