Cactus Mines Co.

In the Matter of CACTUS MINES COMPANY and INTERNATIONAL UNION OF MINE, MILL, AND SMELTER WORKERS, LOCAL No. 272 Case No. C-1185.Decided March 16, 1940 Mining Industry-Complaint: dismissed upon finding that operations of the respondent do not affect commerce within the meaning of the Act. Mr. Charles M. Brooks and Mr. William B. Walsh, for the Board. Gibson, Dunn,& Crutcher, by Mr. Herbert F. Sturdy, and Hobson ct Garrett, by Mr. C. W. Hobson, both of Los Angeles, Calif., for the respondent. Mr. John Pengilley, of Mojave, Calif., for the Union. Mr..Frederick P. Mett, of counsel to the Board DECISION AND ORDER STATEMENT OF THE CASE Upon charges, amended charges, and second amended charges, duly filed by International Union of Mine, Mill and Smelter Workers, Local No. 272, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated October 29, 1938, against Cactus Mines Company, Willow Springs, California, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the re- spondent and upon the Union. Concerning the unfair labor practices the complaint alleged in substance: (1) that on ox+ about June 1, 1937, and thereafter, although a majority of the respondent's employees within' an appropriate unit had designated the Union as its representative for the purposes of collective bargaining, the respondent refused to bargain collectively 21 N. L. R. B., No. 68. 677 283032-41-vol. 21-44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union as the exclusive representative of such employees; (2) that on or about June 10, 1937, in consequence of the refusal to bargain collectively and because of other enumerated unfair labor practices, the respondent's employees went on strike; (3) that on or about July 23, 1937, upon the abandonment of the said strike, and thereafter, the respondent refused to reinstate some 40 named em- ployees, for the reason that they were members of and assisted the Union, and because they had engaged in concerted activities for their mutual aid and protection, and that by such refusal the respondent discouraged membership in the Union; and (4) that by the above and by various other acts and conduct, the respondent interfered with, restrained, and coerced its employees in the exercise, of the rights guaranteed in Section 7 of the Act. • On November 15, 1938, the respondent filed an answer to the com- plaint with the Regional Director; therein it contested the Board's jurisdiction in the premises, denied that it had engaged in the alleged unfair labor practices, alleged, among separate defenses, that the Act is violative of several provisions of the Constitution of the United States, and prayed for a dismissal of the complaint for lack of juris- diction of the Board in the premises and because it had not violated any provisions of the Act. Pursuant to notice, a hearing was held at Mojave, California, on November 17, 18, and 19, 1938, and at Los Angeles, California, on November 21, 22, 23, 25, 28, and 29; 1938, before Thomas H. ,Kennedy, the Trial Examiner duly designated by the Board. The Board, and the respondent were represented by counsel, the Union by its duly authorized agent; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing the parties were afforded an oppor- tunity to argue orally before the Trial Examiner. The respondent and the Board participated in the oral argument before the Trial Examiner. On February 3, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and the Union, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, with-- in the meaning of Section 8 (1), (3), and (5) and, Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist, from engaging in the activities constituting the unfair labor CACTUS MINES COMPANY 679 practices and take certain affirmative action to remedy the effects thereof. On February 17, 1939, the respondent filed exceptions to the Intermediate Report and requested leave to file a brief. There- after, leave to file a brief was granted to all parties . On April 4, 1939, the respondent filed a brief in support of its exceptions. Pursuant to notice duly served upon the respondent and upon the Union, a hearing for the purpose of oral argument was held on January 18, 1940, before the Board in Washington , D. C. The re- spondent was represented by counsel and participated in the argti- ment. The Board has considered the respondent's exceptions to the Intermediate Report, and, to the extent indicated below, hereby sustains them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT The respondent, a California corporation organized in 1935, owns and operates a mining property near Willow Springs, California, consisting of a tract of land 160 acres in area, and a mine, mill, and other buildings situated thereon. It extracts gold and silver bearing ore from its mine, mills the ore to -secure gold and silver concentrates and precipitates, and sells its entire output of concen- trates and precipitates to the American Smelting and Refining Com- pany, herein called American, at Selby, California. During the period between October 24, 1937, and September 30, 1938, the respondent sold and delivered to American at Selby, Cali- fornia, 146 20 (plus) dry tons of concentrates and precipitates, for which it was paid $862,560.26. American smelted the respondent's concentrates and precipitates and sold, or will sell, the gold and silver recovered therefrom to the United States Government at its mint in San Francisco, California. The respondent made no other sales during this period. Between December 1936 and June 1938, the respondent made purchases, of, approximately $100,500. worth of permanent machinery and equipment for use in its mine'and mill. Although all of these purchases were made within the State of California, approximately one-half, in value, involved items that were manufactured in other States., Also, between August 1, 1937, and August 1, 1938, the re- spondent made purchases of approximately $74,721.02 worth of ma- terials and supplies for use in its mine and mill. Approximately .6 1 At the hearing it was testified that the mine would live only through the year 1940, and that the machinery and equipment in use in the mine and mill at the time of the hearing was of such a character and durability as not to require replacement during the life of the mine 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD per cent of these purchases, in value, were made outside of the State of California. For a short time, during the period when the mine was being de- veloped, the respondent, in order to defray the expense involved in the erection of its mill and appurtenances, sold some of the crude ore which it mined. Between January 18 and September 14, 1937, the respondent sold and delivered 1,311.09 (plus) dry tons of crude ore,. or a,)proximately 11 per cent of its production, to American at Selby,, California, for which it received $96,081. American smelted 5.27 per cent of this ore at Selby and 94.73 per cent at its plant in Tacoma, Washington. All of the gold and silver recovered was sold by American to the United States Government at its mint in San Francisco. From the foregoing facts and on the basis of the entire recorct before us, we find that the operations of the respondent do not affect commerce, within the meaning of the Act." We shall, therefore, dismiss the complaint in its entirety. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW The operations of the respondent, Cactus Mines Company, do not affect commerce, within the meaning of Section 2 (6) and (7) of the Act. 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 complaint issued against Cactus Mines Company, Willow Springs, California, be, and it hereby is, dismissed. - Cf. Matter of Idaho-Maryland Mines Corporation and International Union of Mine, mill,. and Smelter Workers of America, Local 283, 4 N. L. It. B. 784, set aside, N. L. R. B. v. Idaho-Maryland Mines Corporation, 98 F. (2d) 129 (C. C. A. 9).