Shenandoah-Dives Mining Co.

In the Matter of SHENANDOAH-DIVES MINING COMPANY and INTERNA- TIONAL UNION OF MINE, MILL & SMELTER WORKERS , LOCAL No. 26 Case No. C-617.-Decided March 2, 1939 Silver and Gold Mining Industry-Alleged Compromise Agreement : between Regional Director and respondent ; corroboration by a union member included in terms of alleged agreement ; given effect in order to effectuate the policies of the Act-Complaint : dismissed. Mr. Charles A. Graham, for the Board. Reise McCloskey and Charles Beise, by Mr. Charles Beise, of Durango, Colo., for the respondent. Mr. William Strong, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges 1 duly filed by the International Union of Mine, Mill & Smelter Workers, Local No. 26, herein called the Union, the National Labor Relations Board, herein called the Board, by Aaron W. Warner, Regional Director for the Twenty-second Region (Denver, Colorado), issued its complaint dated February 3, 1938,2 against Shenandoah-Dives Mining Company, 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. In substance, the complaint alleged that the respondent dis- charged Alfred Giecek from its employ because he had joined and assisted the Union, and that by such discharge, and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 'Original charges were filed by Alfred Giecek, on March 8, 1937, with the Regional Director for the Seventeenth Region and named the respondent as "Charles A. Chase, Gen Mgr., Mayflower Mine " On November 16, 1937, the Board issued an order trans- ferring the proceeding to the Twenty-second Region. Thereafter the Union filed the amended charges. 2 A typographical error in the date of the complaint was corrected by amendment at the hearing. 11 N. L. R. B., No. 67. 164275-39-vol. xi-57 885 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint and accompanying notice of hearing were duly served upon the respondent and the Union. Thereafter the respond- ent filed an answer contesting the Board's jurisdiction and denying the unfair labor practices charged. Pursuant to the notice of hearing and several postponements, a hearing was held at Silverton, Colorado, on April 7, 8, and 9, 1938, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by coun- sel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. Numerous motions and objections to the admission of evidence were made and ruled upon at the hearing. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 21, 1938, the respondent filed a brief, which the Board has considered. On May 7, 1938, the Trial Examiner issued his Intermediate Report, wherein he found that the Board had jurisdic- tion of the subject matter of the case, and that the respondent, by dis- charging and refusing to employ Giecek, had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such unfair labor practices and reinstate Giecek with back pay. The respondent thereafter filed exceptions to the Intermediate Report, which the Board has con- sidered. Those of the respondent's exceptions which relate to the Board's jurisdiction of the subject matter are hereby overruled. By its exception numbered "29" the respondent contends : The Trial Examiner erred in his Intermediate Report in this respect, to wit: That no mention was made of the compromise offer presented to the respondent by Mr. Warner, Regional Direc- tor of the N. L. R. B., as the same is testified to on p. 181 et fol., wherein it appears that a compromise offer was made by an au- thorized agent of the National Labor Relations Board and said offer was unqualifiedly accepted by the respondent by the re- instatement of one Carl Larson. Wherefore, said report is in error and in truth and in fact the N. L. R. B. should be estopped to prosecute this case as will more fully appear from the brief of the respondent heretofore filed herein. Our conclusion regarding the foregoing contention 3 renders un- necessary the disposition of the respondent's remaining exceptions. 'Discussed in Section III, infra. SHENANDOAH-DIVES MINING COMPANY ET AL. 887 Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Shenandoah-Dives Mining Company is a Colorado corporation engaged at its mine in Silverton, Colorado, in the business of mining, transporting, and milling metalliferous ore, and selling the contained gold, silver, copper, and lead as concentrates. During 1936 the re- spondent milled 180,822 tons of ore, from which 7,332 tons of con- centrate resulted, of a gross value of $997,597. That year the respondent purchased materials and supplies costing approximately $329,000, all of which were completely consumed in producing ore. Of the materials and supplies purchased, about 40 per cent originated at points outside of the State of Colorado. Pursuant to a contract between it and the American Smelting and Refining Company, the respondent ships all the concentrates pro- duced by it to smelters of the latter company at Durango, Colorado, and Leadville, Colorado.4 Title passes at the unloading bins of the smelters. The concentrates are further processed at Durango and Leadville, and lead bullion and copper matte, containing gold and silver, emerge. Thereafter the American Smelting and Refining Company ships the lead bullion to Omaha, Nebraska, and the copper matte to Garfield, Utah, for further refining.5 At the time of the hearing the respondent employed about 200 persons. II. THE ORGANIZATION INVOLVED International Union of Mine, Mill and Smelter Workers, Local No. 26, is a labor organization affiliated with the Committee for 'Industrial Organization, admitting to membership employees of the respondent. III. THE AGREEMENT COMPROMISING THE ALLEGED UNFAIR LABOR PRACTICES A. The, compromise At the hearing Charles A. Chase, vice president and general man- ager of the respondent, testified that he, Aaron W. Warner, the Regional Director, and Frank Nelson, a member of the Union, met at the respondent's office at Silverton on July 28, 1937, to discuss the allegedly discriminatory discharge by the respondent of two em- ployees, Carl V. Larson and Alfred Giecek. Chase testified further 4 The contract provides that the American Smelting and Refining Company may sell or divert the concentrates produced by the respondent to any smelter. Cf. Matter of Sunshine Minting Company and International Umon of Mane, Mill and Smelter Workers, 7 N L. R B. 1252. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at that meeting a definite understanding was reached whereby the respondent was to reinstate Larson and the case of Giecek was to be dropped. Neither Warner nor Nelson testified at the hearing, and the testimony of Chase is therefore uncontradicted. Larson, moreover, testified that later in the day of the conference described by Chase, Warner told Larson and Giecek that Warner and Chase had agreed substantially as Chase testified. The two employees were not satisfied with the compromise. On the same day, Warner informed Chase to that effect and stated that Giecek's case would therefore be continued. Although it is not clear exactly when the respondent notified Larson to return to work pursuant to the al- leged agreement, it appears that the latter resumed working for the respondent the following day. Thereafter the Board issued its complaint. B. Conclusions regarding the compromise Although we do not agree that the compromise agreement estops the Board from proceeding herein, we believe that effective adminis- tration of the Act requires that the Board's agents have the respect and confidence of labor organizations and employers with whom their work brings them in contact. Repudiation of agreements entered into and relied on in good faith necessarily impairs such respect and confidence. It may well be that the Regional Director intended the instant agreement to be subject to acceptance by the complainant, Giecek, or approval by the Board, or both. There is, however, no evidence to that effect. The respondent apparently relied and acted upon the agreement, reinstating an employee the legality of whose discharge had not been adjudicated. We believe the policies of the Act will best be effectuated by giving effect to the agreement and refraining from consideration of the alleged unfair labor practices. The complaint will be dismissed. Upon the basis of the foregoing findings of fact and upon the record in the case, the Board makes the following : CONCLUSION OF LAW The operations of the Shenandoah-Dives Mining Company have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States. ORDER Upon the basis of the above findings of fact and conclusion of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the com- plaint be, and it hereby is, dismissed.