Steelworkers Local 392 (Bp Minerals)

STEELWORKERS LOCAL 392 (BP MINERALS) United Steelworkers of America, Local 392 and Kennecott, Utah Copper Division , a Division of BP Minerals of America Kennecott-Utah Copper and Local 485, United Steel- workers of America, District 38, Subdistrict 5, Petitioner Cases 27-CD-225 and 27-UC- 112 April 28, 1989 DECISION, ORDER, AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS The petition in Case 27-UC-112 was filed on March 3, 1988, by USWA Local 485 (Local 485) It sought, by way of a unit clarification petition, to represent employees performing work on the Em- ployer's in pit crusher facility located at the Bingham Canyon minesite in Utah On March 31, 1988, the Acting Regional Director dismissed the petition finding clarification of the bargaining unit was not warranted, as the changed work and cir cumstances made the Employer' s assignment to USWA Local 392 (Local 392) appropriate On June 17, 1988, the Board remanded the case to the Regional Director for a determination on the merits The charge in Case 27-CD-225 was filed July 13, 1988, by the Employer, alleging that the Re- spondent, Local 392, violated Section 8(b)(4)(D) of the National Labor Relations Act by threatening a work stoppage with an object of forcing the Em ployer to continue to assign certain work to em ployees it represents rather than to employees rep- resented by Local 485 As the issues in the two cases were closely related, they were consolidated on July 26, 1988 The hearing was opened before Hearing Officer Donald E Chavez on August 9, 1988, and closed on November 14, 1988 The National Relations Board has delegated its authority in this proceeding to a three-member panel The Board affirms the hearing officer's rulings, finding them free from prejudicial error On the entire record," the Board makes the following find- ings i After the close of the hearing the Board received from Local 485 a supplemental affidavit of David James The Board also received a Janu ary 12 1989 motion from the Employer to strike the affidavit and a re quest to admonish Local 485 s counsel for alleged posthearing miscon duct regarding the submission of the affidavit Local 485 submitted a Jan uary 27 1989 motion to reopen the record to consider the affidavit and a motion to admonish the Employer for alleged misconduct during the hearing The parties have filed various memoranda and opposition state ments regarding these motions Insofar as the affidavit of David James reflects new or previously un available evidence regarding common supervision of employees repre sented by Local 485 and the employees assigned the work in dispute we 913 I JURISDICTION The Company conducts mining operations at its facility just outside of Salt Lake City, Utah It an- nually purchases and receives goods, materials, and services in excess of $50,000 from places outside of the State of Utah The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 392 and Local 485 are labor or- ganizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The Employer operates an open-pit copper mine in Bingham Canyon, Utah The Employer has had a lengthy collective bargaining relationship with both Locals Local 485 has historically represented certain employees working within the confines of the mine pit Local 392 has for more than 35 years represented certain employees performing work outside the mine pit, including those working in crusher/concentrator facilities outside the pit Be tween late 1987 and early 1988 the Employer es- tablished a modern crusher facility in the pit The Employer assigned the operation of the crusher to employees from the crusher/concentrator operation represented by Local 392 Local 485 then filed a unit clarification petition, and Local 392 threatened a strike if the work was taken from the employees it represented The Employer then filed a charge against Local 392 alleging a violation of Section 8(b)(4)(D) At the hearing, Local 485's president testified that he demanded the work in dispute be assigned to his members He also testified that if the employees currently operating the crusher re- mained but were represented by Local 485, he would not object Neither Local 485 nor Local 392 has relinquished its claim to the work, nor has Local 485 retreated from its stated willingness to represent the employees originally assigned the work B Work in Dispute The disputed work involves filling three classifi- cations (crusher operator, crusher attendant, and grant the January 27 1989 motion of Local 485 to reopen the record for the limited purpose of admitting the affidavit of David James dated Janu ary 6 1989 and deny the Employer s January 12 1989 motion to strike the affidavit See the Board s Rules and Regulations Secs 102 90 and 102 65(e)(1) However in view of our disposition of this case adverse to the contentions of Local 485 we find it unnecessary to conduct a further hearing on this matter in order to give the other parties an opportunity to present evidence relating to James duties We deny the requests of the Employer to admonish Local 485 s coun sel and of Local 485 to admonish the Employers counsel 293 NLRB No 111 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD crusher utilityman) that staff the crusher operation at the Employer's copper mine in Bingham Canyon, Utah 2 C Contentions of the Parties The Employer contends that this matter is a dis- pute over which Local's members should perform the new work rather than a dispute over which Union should represent the employees doing the new work It also contends that its assignment was proper, based on all factors, but it especially con- tends that the experience of employees represented by Local 392 in this type of work is extensive, cru- cial for efficiency of operations, and without paral- lel among the employees represented by Local 485 Local 485 contends that this matter is a dispute over whether the three new job classifications re lating to the new in-pit crusher should be part of its bargaining unit, in light of its prior production and maintenance certification and all other relevant factors including skills and training Local 392 did not file a brief, but was represent- ed at the hearing, where it remarked in its opening statement that it generally agreed with the Em- ployer's position D Applicability of the Statute Local 392's president, Ralph R Christensen, Jr, testified that he threatened a strike if the crusher work was reassigned to employees represented by Local 485 Despite the absence of anything other than a representational desire in Local 485 s posi- tion statement as set forth in its brief, the testimony of Local 485's president, as mentioned above, shows Local 485 also desired to secure the disput- ed work for Local 485's members 3 Neither Local 485 nor Local 392 has relinquished its competing claim to the disputed work In these circumstances, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred Further, there exists no agreed method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act Accordingly, we find that the dispute is properly before the Board for determination E Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors NLRB v Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U S 573 2 The description of the relevant job classifications appears as agreed to by the parties at the hearing 3 Although we find this we disagree with the Employers statement in its brief that the parties stipulated that both Unions were making claims to the disputed work The record shows that Local 485 s counsel re mewed silent when the stipulation was proposed (1961) The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal ancing the factors involved in a particular case Machinists Lodge 1743 (J A Jones Construction), 135 NLRB 1402 (1962) The following factors are relevant in making the determination of the dispute 1 Certifications and collective-bargaining agreements In 1943 Local 485 was certified to represent the "remaining production and maintenance employ- ees" in the mine 4 In 1951 Local 392 was certified as the bargaining representative of all the employ- ees at the then existing concentrator facilities "in the classifications covered by the existing contract between the Employer and the Intervenor " That agreement assigned job classifications pertaining to the operation of a coarse crusher to employees rep resented by Local 392 The record shows that these job classifications (tipple operator, coarse crushing operator, helper, and utilityman) had job descriptions very similar to those of the disputed classifications (crusher operator, crusher attendant, and crusher utilityman) pertaining to the modern in-pit crusher However, these job classifications came under the heading of mill operation, referring to the concentrator plants outside the mine Thus, although Local 392's certification identifies classifi- cations similar to ones used to describe the jobs in- volved in the work, it applies to a unit of employ ees who are employed away from the mine Simi- larly, although the new crusher operation is locat ed in the mine, the same location in which the em- ployees covered by Local 485's certification work, the unit description in that certification does not refer to the disputed work either by job classifica- tion or by machine Because each of the certifica tions has an element in support of the competing claims that the other lacks, the certification factor does not favor an award of the work to either group of employees The Employer's present collective-bargaining agreement with Local 392 likewise lists Local 392 as the representative of employees in the crusher job classifications but lists them in the concentrator plant, whereas Local 485's collective-bargaining agreement lists it as the representative for employ- ees in job classifications in the mine, but not for this specific type of work In interpreting collec- tive-bargaining agreements, the specific is favored 4 Various groups of craft employees employed in the mine at that time i e machinists electricians and operating engineers chose representation by their respective craft unions instead of Local 485 STEELWORKERS LOCAL 392 (BP MINERALS) 915 over the general 5 Hence, consideration of the re- spective collective-bargaining agreements favors an award of the disputed work to employees repre sented by Local 392 2 Company preference and past practice The Company prefers employees represented by Local 392 to do the work and has assigned them the work Although the Company has had a gener al practice of assigning new work in the mine cre- ated by modernization to Local 485, it has a great- er than 35 year history of assigning crusher/concentrator work to Local 392 Hence company preference and past practice weigh in favor of assigning the disputed work to employees represented by Local 392 3 Area and industry practice Three examples were given concerning area and industry practice in staffing in-pit crushers In all cases, the particular employer involved staffed its in pit crusher with employees who had previously worked in concentrator plants However, in two of the three cases the concentrator and mine employ- ees were represented by the same local, and in the third case the employees were unrepresented This evidence does not reveal what the employers in the industry typically do when faced with competing claims for in-pit crusher work Thus, this factor favors neither Union's claim to the work 6 the rest of the operation Some of the employees currently assigned to the crusher have experience with the old crusher, and all, including those as signed to in pit crusher cleanup work, have con centrator plant experience Although a few em ployees represented by Local 485 have experience with a conveyor belt system, it is with respect to a relatively slow and short system The job of most employees represented by Local 485 is driving ore haulage trucks The experience that employees rep- resented by Local 485 have in breaking up rocks with explosives and jackhammers is not equivalent to the experience of employees represented by Local 392 in crusher/concentrator operations The evidence thus indicates that employees represented by Local 392 have more relevant experience than those represented by Local 485 Thus, relative skills and economy and efficiency of operations clearly weigh in favor of awarding the work in dis- pute to employees represented by Local 392 5 Safety The evidence presented on the issue of safety is not sufficient to favor the work jurisdiction claim of either Local 485 or 392 6 Job loss In light of the other factors involved, job loss is not determinative and we do not rely on it in reaching our conclusion 4 Relative skills and economy and efficiency of operations The record indicates that the premodernization crusher/concentrator plants involved a crusher, a grinder, a flotation area where the ore was mixed with refining chemicals, and a conveyor belt system of considerable length and speed Mistakes by the crusher operator in regulating the type, mix, and moisture of ore entering the system could have a major impact on every stage of the operation The modern system places the crusher in the mine, and transports ore to the concentrator by an even longer and faster conveyor belt system It is a larger and more automated version of the old crusher Employees who have been represented by Local 392 have experience with fast conveyor belts and with the relationship between the crusher and 5 See Operating Engineers Local 926 (Cannon Inc) 258 NLRB 1101 1103 (1981) a 10(k) proceeding involving air compressors Both collec tive bargaining agreements covered work that usually involved air corn pressors but only one specifically mentioned the type of work in dispute in which such compressors would be used 6 In Member Johansen s view the area and industry practice of staffing in pit crushers with employees who had previously worked in concentra tor plants favors the assignment of that work here to the similarly situat ed employees represented by Local 392 Conclusions After considering all the relevant factors, we conclude that employees represented by United Steelworkers of America, Local 392 are entitled to perform the work in dispute We reach this conclu- sion relying on the collective-bargaining agree- ments, employer preference, past practice, the rela tive skills of the employees, and efficiency and economy of operations In making this determination, we are awarding the work to employees represented by United Steelworkers of America, Local 392, not to that Union or its members The determination is limited to the controversy that gave rise to this proceed- ing The UC Petition The Employer has requested that the petition be dismissed on the ground that this is a work dispute and work disputes cannot be properly resolved in the context of unit clarification However, we find that even before there was a threat of a work stop- page, that gave rise to the jurisdictional dispute proceeding, Local 485 had filed the unit clarifica- 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion petition which raised the question of the place ment of the disputed classifications 7 A unit clarifi cation petition need not be dismissed merely be- cause the case contains elements of a work dis- pute 8 The Employer's request to dismiss the peti- tion on this ground is therefore denied However, because the employees represented by Local 485, as set forth above, have very different skills and duties from those of crusher employees, who have been represented by Local 392, there is an inadequate community of interest between the employees represented by Local 485 and the crusher employees to warrant their removal from being represented by Local 392 so that they may be included in the unit represented by Local 485 ' In Union Electric Co 217 NLRB 666 667 (1975) unit clarification was stated to be proper for the resolution of this question 8 Monsanto Research Corp 195 NLRB 336 337 (1972) Compare the case at hand with Machine Printers (Cranston Print) 269 NLRB 223 at fn 2 (1984) a 10(k) proceeding in which the Board dismissed unit clarifica tion petitions after examining the contracts and finding that they gave no support to the petitions The Board dismissed the petitions because it found the petitioning union desired nothing more than the assignment of work to its members In the case at hand however the petitioning union has a colorable contract claim (albeit not as strong as the one favoring an award of the disputed work to Local 392 represented employees) As noted above Local 485 s president testified that the work in dispute should be reassigned to his members However he also testified that he would not object if the employees currently operating the crusher re mained but were represented by Local 485 The factor of common supervision, as supported by the affidavit of David Jones, see footnote 1, above, is not enough to counterbalance prior practice and the disparity of skills and duties Thus, there is no basis to accrete the employees performing the dis- puted work to Local 485's unit or to grant Local 485 representational authority over these employ- ees without their first having exercised their Sec tion 7 rights in a Board-conducted election 9 Ac- cordingly we shall dismiss the UC petition DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute Employees represented by United Steelworkers of America, Local 392 are entitled to fill three clas sifications (crusher operator, crusher attendant, and crusher utilityman) that staff the crusher operation at the Employer's copper mine in Bingham, Utah ORDER The petition for unit clarification in Case 27- UC-112 is dismissed 9 In other words an election pursuant to a petition for representation or decertification would be required to determine 485 s representative status be the employees current representation by 392 is not subject to challenge in this unit clarification proceeding