Shattuck Denn Mining Corp.

-In the Matter of SHATTUCK DENN MINING CORPORATION and BISBEE MINERS' UNION, LOCAL NUMBER 30; I. U. M. M. S. W., C. I. O. Case No. R-1664.-Decided January 00, 1940 Mining Industry-Investigation of Representatives : controversy concerning 'representation of employees : refusal of Company to recognize petitioning union as exclusive agency of employees ; rival organizations-Unit Appropriate for Collective Bargaining: surface and subsurface employees in production and maintenance, excluding supervisory, technical, and clerical employees ; dispute as to -clerical and five employees-Representatives : eligibility to participate in choice : pay roll immediately preceding Decision and Direction of Election to, determine-Election Ordered Mr. Frank A. Mouritsen, for the Board. Sutter, Gentry do Sutter, by Mr. Burr Sutter and Mr. James T. Gentry, of Bisbee, Ariz., for the Company., Mr. Verne Curtis, of Lowell, Ariz., and Mr. C. C. Crandall, of Warren, Ariz., for Local 30. Mr. W. F. Caley and Mr. Alvin Browning, of Bisbee, Ariz., for the Association. Mr. Ralph H. Rasmussen, of Douglas, Ariz., for the International Union. Mr. Frederick W. Killian, of counsel to the Board. DECISION AND . DIRECTION OF ELECTION STATEMENT OF THE CASE On July 25, 1939, Ralph H. Rasmussen, representative of Interna- tional Union of Mine, Mill and Smelter Workers, affiliated with the C. I. O., filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affect- ing commerce had, arisen concerning the representation of employees of Shattuck Denn Mining Corporation, Bisbee, Arizona, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela= ti9ns Act, 49'Stat.449, herein called the Act. - ' - - 19 - N. L. R. B.; iVo. 76. 703 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 20, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 30, 1939, the Regional Di- rector issued a notice of hearing, copies of which were duly served upon the Company, Bisbee Miners' Union, Local Number 30, I. U. M. M. S. W., C. I. 0., herein called Local 30, The Employees' Welfare Association,' herein called the Association, the last two organizations claiming to represent employees directly affected by the investigation, and upon Central Labor Council, Los Angeles, . and Los Angeles Industrial Union Council. On December 5, 1939, the Company moved for continuance of the hearing from December 12, 1939, the date specified in the notice of hearing, until December 19, 1939, on the ground that all the officers and directors of the Company were absent from the State of Arizona and that it was therefore impossible to prepare an answer and defense to the petition and on the further grounds that the petition 2 was not served on the Company until December 2, 1939, such service not afford- ing the Company sufficient time in which to prepare its answer and defense.3 On December 8, 1939, the Regional Director issued and duly served an order denying the motion for continuance. The order of the Regional Director is hereby affirmed. On December 9, 1939, the Company filed with the Regional Director a motion to dismiss the petition alleging, inter alia, its defective ex- ecution. On the same day the Company filed with the Regional Director a verified answer which contained a prayer that the petition be dismissed. Pursuant to the notice, a hearing was held December 12, 1939, at Bisbee, Arizona, before Albert L. Lohm, the Trial Examiner duly designated by the Board. At the opening of the hearing the Trial Examiner granted a motion by the Association for leave to intervene. This ruling is hereby affirmed. The Board and the Company were represented by counsel and participated in the hearing. Local 30, the Association, and the International Union were represented by officers or agents and also participated in the hearing. Full opportunity to I Appearance was entered as "Employees' Welfare Association." Service was made on "Shattuck-Denn Employees Welfare Association" The correct name as used by the organization is the one stated in the text above. I A copy of the petition was served with the notice of hearing issued and served by the Regional Director. 8 This proceeding is an investigation of questions concerning the representation of employees of the Company. Since no charges are made against the Company, it is not a defendant. The Board's Rules and Regulations do not provide for the filing of an answer to the petition in a representation proceeding. SHATTUCK DENN MINING, CORPORATION 705 be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the opening of the hearing, the Trial Examiner reserved decision on the motion made by the Company on December 9, 1939, to dismiss the petition. This motion and the prayer to dismiss in the Company's verified answer are hereby denied. At the opening of the hearing the Trial Examiner also granted a motion by counsel for the Board re- questing that the pleadings be amended to correct the names of the, Company and of Local 30. These rulings are hereby affirmed. Dur- ing the course of the hearing, the Trial Examiner made rulings on several motions and objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following': FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Shattuck Denn Mining Corporation is a Delaware corporation with, its principal offices in New York City and its mining office in Bisbee, Arizona. It is engaged in mining copper and owns and operates the Shattuck and the Denn mines at Bisbee, Arizona. At the time of the hearing the Shattuck mine was closed for repairs. The Company operates under contracts with various smelter plants to which it ships the mined ore. These plants purchased the gold and silver extracted from the ore and the refined copper is returned to the Company. During 1938 the Company shipped to smelters outside Arizona approximately.55 per cent of the gold, 51 per cent of the silver, and 100 per cent of the copper mined by the Company. During the first half of 1939 all the gold, silver, and copper were shipped to smelter plants outside Arizona. During 1938 the Company produced 8,091,050 pounds of copper valued at $807,319.90 and during the first half of 193* it produced 6,630,280 pounds of copper valued at $504,577.41. During the year 1938 the value of the products and equipment pur chased by the Company, from all sources, for its mining operations totaled approximately $150,912.75. The value of the products and equipment purchased or shipped from sources outside Arizona was, $54,832.63. During the first half of 1939, the value of the products and equipment purchased by the Company for its mining operations totaled approximately $142,558.64. The value of the products and equipment purchased or shipped from sources outside Arizona was $53,082.73. The chief items purchased by the Company are explosives, lumber, and timber, and machinery. The Company also purchases oils, greases, iron and steel, tools, and pipes and fittings. The explosives are . 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchased in Arizona. Caps and fuses, representing a small percentage of the cost of the explosives, originate in California. The lumber and timber is purchased in California and originates in the Pacific North. west. Fuel oil is purchased in California and shipped to the Company :from Texas. The other items are purchased mainly in Arizona and are shipped to the Company from various places in the United States. At the time of the hearing, the Company employed approximately 269 employees. II. THE ORGANIZATIONS INVOLVED Bisbee Miners' Union, Local Number 30, is a labor organization affiliated with International Union of Miiie,.Mill and Smelter Workers which, in turn, is affiliated with the Congress of Industrial Organiza- tions. It admits to membership production and maintenance em- ployees of the Company at Bisbee, Arizona, excluding supervisory, technical, and clerical employees. The Employees' Welfare Association is an unaffiliated labor organi- zation admitting to its membership any employee of the Company at Bisbee except supervisory and technical employees. III. THE QUESTION CONCERNING REPRESENTATION At a meeting with representatives of the Company which took place. early in June 1939, Local 30, claiming to represent a majority of the Company's employees, presented a proposed contract' to the Com- pany, at the same time requesting the Company to recognize it as the exclusive agent of its employees for purposes of collective bargaining. Local 30 requested the Company to consider the contract and to make counter proposals. Thereafter, meetings were held on June 12, June 24, and June ` 26, between representatives of the Company and of Local 30 at which certain terms of the proposed contract were dis- ,cussed. The minutes of the last two meetings record that the Com- pany was opposed, throughout, to the provision contained in the pro- posed contract providing for recognition of Local 30 as the "exclusive" bargaining agent of its employees for purposes of collective bargaining. At the June 24 meeting, after much discussion, the Company's vice president, S. S. Shattuck, requested the representatives of Local. 30 to submit a new contract wherein the Company's right to bargain with any individual employee or group of employees other than members of Local 30 should be reserved. At this meeting, Shattuck stated that if this revision were made, the Company would be willing seriously to consider the other provisions of the proposed contract; he did not, however, commit the Company to any action thereon, saying that the 4 The proposed contract was not introduced into evidence. SHATTUCK DENN MINING CORPORATION 707 Company would certainly give Local 30 its answer within 6 months and perhaps within 3 months. At this meeting and during subsequent negotiations, the only provision of the proposed contract under dis- cussion was that with respect to recognition of Local 30 as the "exclu- sive" representative of the Company's employees. At the meeting of June 26 the representatives of Local 30, in accord- ance with Shattuck's suggestion, submitted a revised contract to the Company eliminating the word "exclusive." Wilcox, the Company's mine superintendent , possessing no authority to bind the Company, offered to send the proposed contract, as revised, to the Company's officers, promising an answer within a reasonable length of time. Thereafter, on September 27, 1939, a meeting was held at the mine office at Bisbee, with representatives of the Company, of Local 30, and of the International Union present. These representatives of the Company had no authority to bind the Company. The purpose of this meeting was to reopen negotiations with the Company and, if possible, to avoid the necessity of a hearing on the petition filed in this proceed- ing. It was developed during this meeting that Local 30, having received no reply from the Company as promised by Wilcox at the June 26 meeting and interpreting the Company's silence as terminating negotiations, filed its petition on July 25 and that the Company inter- preted the filing of the petition by Local 30 as an intention, on its part, to break off negotiations . The Regional Director, upon the re- quest of the International Union's representative, postponed further action in the proceeding, pending the outcome of this meeting. At the meeting of September 27 the representatives of Local 30, after much discussion and after a serious attempt to clarify the issues involved, expressed their willingness to resume negotiations , to discuss any proposals which arose during prior negotiation , to. consider any counter proposals to be made by the Company, and to find some basis of agreement ' concerning the issue of "exclusive" representation for Local 30. It further appears from the minutes of this meeting that the board of directors of the Company was scheduled to meet in Chicago on September 28, 1939 , and that Wilcox, the Company's mine superintendent, agreed to report to the directors by wire the outcome of the meeting between the representatives of the Company and of Local 30 and to ask for an answer within 2 days, stating that he did not know how long the directors would be in session. - Doubt was ex- pressed whether the directors would receive his report in Chicago during- •their meeting. The representatives -of- Local 30 expressed, a desire that someone permanently established at the mine office be given authority to -act for the Company during negotiations in view of the long absences of the Company's officers from Bisbee. The record does not disclose'what action, if any, was. taken by the Company's directors 708 DECISIONS . OF NATIONAL,-LABOR RELATIONS BOARD with reference to the proposals that Wilcox agreed to transmit to them on September 27, and this proceeding reached hearing on Decem- ber 12. No further negotiations, were held between the Company and Local 30. In its "answer" filed with the Regional Director, the Company alleged that it was never furnished with any evidence establishing Local 30's contention that a majority of the Company's employees designated or selected it to represent them. The record discloses nothing to the contrary. The Association was organized on June 12, 1939. About June 23 its representatives met with Wilcox, the Company's mine superintendent. They presented to Wilcox a written protest, addressed to him and signed by the president, the secretary, and three other members of the Association, in which the Association formally protested any recog- nition of Local 30 by the Company without an election by secret ballot. No other conversation except that involving the presentation of the protest took place at this time between the representatives of the Asso- ciation and Wilcox and, thereafter, no meetings took place between the Association or its representatives and the Company. At the time of the hearing the Association claimed that it had a membership among the Company's employees of 39. We find that a question has. arisen concerning the representation of the employees of the Company. IV. THE EFFECT OF, THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection', with the operations of the Company described in Section I above,,has a close, intimate, and substantial relation to trade, traffic, and,commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT Local 30 contends that the surface and subsurface workers of the Company engaged in production and maintenance at Bisbee, exclud- ing supervisory, technical, and .clerical employees, constitute an ap- propriate bargaining unit.5 This unit is acceptable to the Association The record shows that at the time of the hearing the Company employed nine super- visory, three technical, and six clerical employees. The supervisory employees consist of the plant superintendent , the master mechanic, foremen, and shift bosses. The tech- nical employees include the assayer, the chemist, and the engineer . The clerical employees consist of those employees who work' in the supply department and in the mine office. The technical and clerical employees are paid a monthly salary ; the production and maintenance employees are paid on an hourly basis. ` . SHATTUCK DENN MINING CORPORATION 709 except that it admits to membership the Company's clerical employees. The Company did not comment on this issue. Under the circum- stances we find that the clerical employees should be excluded from the unit.6 We find that surface and subsurface workers of the Company en- gaged in production and maintenance at Bisbee, Arizona, excluding supervisory, clerical, and technical employees, constitute a unit ap- propriate for the purposes of collective bargaining, and that said unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and other- wise effectuate the policies of the Act. There is a dispute as to whether five particular employees are in the appropriate unit. Alvin Browning is a machinist who on occasion acts as a foreman or jigger. The Company does not classify him as a supervisory employee. He would not be eligible for mem- bership in Local 30 if he performs supervisory duties frequently. There is nothing in the record to show that he performs such duties frequently. He is eligible for membership in the Association. Under the circumstances, we find that Browning is in the unit. W: F. Caley is a swamper who, nevertheless, assists in the warehouse with supplies, runs errands, and sometimes posts lists and carries time cards from the office to the warehouse. Local 30 contends that he is a clerical worker, and does not admit him to membership. The As- sociation admits him to membership. The record does not establish that he is a clerical worker. Under-the circumstances, we find that Caley is in the unit. Henry Gerdes is first machinist, who sometimes performs the duties of the master mechanic, a supervisory employee. Local 30 does not admit him to membership. The Company does not classify him as a supervisory employee and there is nothing in the record to show how frequently he performs such duties. He is eligible. for membership in the Association. Under the circumstances, we find that Gerdes is in the unit. P. A. Durret and P. J. Eads perform the duties of handyman in the assay department and of engineer's helper, respectively. They are ineligible for membership in Local 30 but are accepted by the Asso- ciation. These employees are not listed by the Company as technical employees, nor are they included in any classification of surface or underground workers. Their time is completely at the disposal of the technical employees whom they assist. We find that they are not in the unit. 6 See Matter of Southern California Gas Company and Utility Workers Organizing Committee, Local No. 132, 10 N. L. R. B. 1123, 1138. - 283030-41-vol. 19-46 710 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD VI. THE DETERMINATION OF REPRESENTATIVES The financial secretary of Local 30 testified that it represented, at the time of the hearing, 161 active members and had 184 authorization cards signed by the Company's employees.7 Neither these cards nor any other documentary evidence were offered into evidence at the hearing. The secretary and president of the Association testified that it represented 39 of the Company's employees. The Association desires that an election by secret ballot be held to determine the question con- cerning representation. We find that the question concerning repre- sentation which has arisen can best be resolved by the holding of an election by secret ballot. We shall accordingly direct that an election by secret ballot be held. Near the close of the hearing, reference was made to current items published in a newspaper stating that the Company intended shortly to hire a number of new employees. In light of these items, Local 30 expressed its preference for the Company's pay roll of June or July 1939, when negotiations with the Company were still in progress, as a basis for determining eligibility of employees to vote, but was willing to accept the pay roll of December 2, 1939, which was stipulated by all parties to be accurate, if the election "is ordered within a reasonable length of time, approximately six weeks." The Association was satis- fied with the pay roll of December 2; and the Company stated its preference for the pay roll as near as possible to the election date. We shall make provision for determining eligibility to participate, in the election which will most closely reflect the employment situa- tion existing among the Company's employees at the time of the election. Accordingly, we shall direct that those eligible to vote in the election will be those persons in the appropriate unit who were employed during the pay-roll period immediately preceding the date of this Decision and Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been tem- porarily laid off, but excluding those who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Shattuck Denn Mining Corporation, Bisbee, 7 The difference of 23 members arises because some of the 23 were new employees who signed authorization cards but had not paid their dues and because some of the 23 left the Company's employ. On the 15th of every month , Local 30 makes a new list of its members and their status. SHATTUCK DENN MINING CORPORATION 711 Arizona, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The surface and subsurface workers of the Company engaged in production and maintenance at Bisbee, Arizona, excluding super- visory, technical, and clerical employees, constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION 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, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Shattuck Denn Mining Corporation, Bisbee, Arizona, an elec- tion by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty- first 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 the surface and subsurface workers of the Company engaged in production and maintenance at Bisbee, Arizona, who were employed during the pay-roll period immediately preceding the date of this Decision and Direction of Election, including em- ployees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off but excluding supervisory employees, tech- nical employees, and clerical employees, and employees who have since quit or'been discharged for cause, to determine whether they desire to be represented by Bisbee Miners' Union, Local Number 30, I. U. M. M. S. W., C. I. 0., or by The Employees' Welfare Association, for purposes of collective bargaining, or by neither.