Picklands, Mather & Co.

In the Matter Of PICKANDS, MATHER & COMPANY, AND VERONA MINING COMPANY and LODGE 1624, AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA, S. W. O. C., C. I. O. Cases Nos. R-1885 and R-1886.-Decided July 30, 1940 Jurisdiction : mining industry. Investigation and Certification of Representatives : existence of question where Company refused recognition ; conflicting claims of rival unions ; dispute as to appropriate unit ; elections necessary. Unit Appropriate for Collective Bargaining : three separate mines as single unit, two of them as one unit with remaining mine as separate unit, or each of the three as separate units ; with other factors evenly balanced, determining factor is desire of employees ; determination of unit dependent upon elections. Definitions Persons employed in mines held employees of Company managing and op- erating said mines under contract. Mr. W. T. Kinder, of Cleveland, Ohio, and Mr. Donald D. Harries, of Duluth, Minn., for the Companies. Mr. John J. Brownlee, of Chicago, Ill., and Mr. Glen R. Burkluvm- m,er, of Iron River Mich., for Lodge 1624. Mr. L. P. Fisher, of Iron River, Mich., for the Independent. Mr. Ben Law, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On March 13, 1940, Lodge 1624, Amalgamated Association of Iron, Steel & Tin Workers of North America, through Steel Workers Or- ganizing Committee (CIO), herein called Lodge 1624, filed with the Regional Director for the Twelfth Region (Milwaukee, Wisconsin) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Pickands, Mather & Com- pany, and/or Verona Mining Company, herein called the Companies, at the mine known as the "Bengal" mine and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 14, 1940, Lodge 1624 filed with the Regional Director for the 25 N. L. R. B., No. 114. 1100 PICKANDS, MATHE'IR -& COMPANY 1101 Twelfth Region a petition alleging that a question affecting commerce had arisen-concerning the representation of employees of either or both of the Companies at the mine known as the "Buck" mine and request- ing an investigation and certification of representatives pursuant to 'Section 9 (c) of the Act. On May 11, 1940, the National Labor-Rela- tions Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Sections 3 and 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered that the cases raised by the above two petitions be consolidated and ordered an investigation and authorized the Regional Director to con- duct it and to provide for an appropriate hearing upon due notice. On May 22, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Companies and Lodge 1624. Pursuant to the notice, a hearing-was held on June 10, 1940, at Iron River, Michigan, before Jacob I. Karro, the Trial Examiner duly designated by the Board. Near the start of the hearing a written.. motion to intervene was filed with the Trial Examiner by Independent Mine Employees Union, herein called the Independent, an organiza- tion claiming to represent certain of the employees involved in the proceedings. This motion was granted by the Trial Examiner. The Companies, Lodge 1624, and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard 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, and on other matters. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Companies contended at the hearing that the Trial. Examiner was disqualified to act in such capacity by reason of being also the Acting Regional Attorney for the Board in the Twelfth Region and on this ground objected to any further proceeding in the case. The Companies also moved to dismiss the case, alleging as grounds that neither the petitions nor the notice of hearing state facts necessary to constitute a case or to invoke the jurisdiction of the Board to conduct a hearing or to make an investigation. The Trial Examiner reserved for the Board rulings on the objection and on the motion. On June 19, 1940, the Companies filed with the Board a reiteration of their objection and motion and, in addition, objected to various rulings of the Trial Examiner. The Board has considered the objections and the motion of the Companies and hereby overrules the objections and denies the motion. On June 25, 1940, the Independent filed a brief which has been considered by the Board. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES The Verona Mining Company is a Michigan corporation engaged in the production of iron ore . It owns or holds leases on the iron-ore properties known as the "Buck" and "Bengal" mines and operates them through the facilities of Pickands, Mather & Company as described below. In producing iron ore from these two properties in 1939, the Verona Mining Company used materials of the value of $249,315 ob- tained largely from sources outside of Michigan. In 1939 production of iron ore amounted to 300,691 tons from the Bengal mine and 82,507 tons from the Buck mine. All of this ore was, and present production now is, transported by railroad to Escanaba, Michigan , and from there shipped by boat to ports on Lake Erie and Lake Michigan . The value of iron ore produced at the Buck and Bengal mines in 1939 was be- tween $1,000,000 and $1,500,000. The James Mining ,Company is a Michigan corporation . Its, only mining property is the James mine which it operates through the facilities of Pickands , Mather,& Company as described below. Pickands , Mather & Company is a co-partnership composed of E. Hoyt, II, F. Armstrong, S. E. Boo], Seymour Wheeler, and D. S. Boynton. E. Hoyt, II, and S. E. Bool are also president and treasurer, respectively, of both the Verona Mining Company and the James Mining Company. H. C. Jackson is secretary of both companies. Pickands, Mather & Company manages and operates the Buck and Bengal mines pursuant to a contract with the Verona Mining Com- pany. Pursuant to a separate, but similar , contract with the James Mining Company it manages and operates the James mine . The par- ties stipulated that under the contracts Pickands , Mather & Company hires, oversees , and discharges laborers of all classes at the Buck, Bengal, and James mines ; furnishes superintendents and supervisors having the necessary mining and engineering skill ; cares for and protects mining equipment during idle periods; effects proper work- men's compensation and other insurance ; purchases and procures for the accounts of the Verona Mining Company and the James Mining Company the necessary mining material , supplies, and equipment; looks after the sampling and analysis of the ore ; loads cars for ship- ment; and in general supervises and manages all operations and acts necessary for the operation of the mines. All salaries and wages of employees at the mines , and all bills for equipment, materials or sup- plies, all insurance premiums and other costs incurred in the course of the operation of the mines are paid by Pickands , Mather & Com- PICKANDS, MATRER & COMPANY 1103 pany 1 out- of monies provided by the Verona Mining Company' for such expenses at the Buck and Bengal mines and by the James Mining Company for such expenses at the James mine. For its services, as described- above, Pickands, Mather & Company receives an agreed compensation from the Verona Mining Company and the James Min- ing Company respectively. From the stipulated facts it is apparent that Pickands, Mather & Company hires and discharges employees at the three mines, sets the rates of their compensation, and otherwise determines the "terms and conditions of their employment. We find that all persons employed at the Buck, Bengal, and James mines whose work is of such nature as to bring them within any unit or units claimed to be appropriate by any of the parties, as set forth below, are employees of Pickands, Mather & Company. II. THE ORGANIZATIONS INVOLVED Lodge 1624, Amalgamated Association of Iron, Steel & Tin Work- ers of North America, is a labor organization affiliated through the Steel Workers Organizing Committee with the Congress of Industrial Organizations. It, admits to membership persons employed at the Buck, Bengal, and James mines. Independent Mine Employees Union is an unaffiliated labor organi- zation admitting to membership persons employed at the Buck, Bengal, and James mines. . - III. THE QUESTION CONCERNING REPRESENTATION In so far as -the record discloses, Lodge 1624 began to organize em- ployees at the Buck and Bengal mines about January 1939 and con- tinued its efforts thereafter. The Independent started to organize among employees at the Buck, Bengal, and James mines in late May or early June of 1940. All the parties stipulated at the hearing that both Lodge 1624 and , the Independent claim to have as members a majority of-employees at each of the above three mines. According to a separate stipulation entered into by Lodge 1624 and the Companies, the former has asked the latter for recognition as the exclusive bargaining agency for employees in the Buck and Bengal mines and the Companies have denied such recognition because of differences between the two parties over questions of procedure and methods of proof. We find that a question has arisen concerning the representation of employees at the Buck, Bengal, and James mines. 1 Employees at the Buck and Bengal mines are paid on the basis of a single pay roll prepared by Pickands , Mather & Company with checks drawn by and on the account of the Verona Mining Company. Employees at the James mine are paid on the basis of a dif- ferent pay roll prepared by Pickands , Mather & Company with checks drawn by and on the account of the James Mining Company. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Companies 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 Lodge 1624 and the Independent agreed at the hearing that the classification of employees to be included in any appropriate unit or units at the Buck, Bengal, and James mines should be "all production and maintenance employees, excluding foremen, assistant foremen, policemen, watchmen, and those in a clerical, or supervisory capacity." The Companies, without waiving their objections to the entire pro- ceedings, agreed to such a description of employees in the appropriate unit or units. We see no reason for any departures from the agree- ment of the parties in this respect. Lodge 1624 contends that employees within the above-described classification at the Buck and Bengal mines together constitute' a single appropriate unit. Lodge 1624 also takes the alternative position that, in the event the Board should find such a unit inappropriate, employees within such classification at the Buck mine should constitute one ap- propriate unit and those at the Bengal mine should constitute another. The Independent contends that the above-described classification of employees at the Buck, Bengal, and James mines combined constitute a single appropriate unit. The Companies take no position with re- spect to the question of the appropriate unit or units. We have found above that all persons employed at the Buck, Bengal, and James mines'whose work is of such nature as to bring'them within any unit or units claimed to be appropriate by any of the parties are employees of Pickands, Mather & Company. Any collective bargain- ing which may in the future be done by a representative or representa- tives of employees at the Buck, Bengal, and James mines would neces- sarily' take place between such representative or representatives and Pickands, Mather & Company. The three mines here involved are all in close proximity to Iron River, Michigan, the James mine being about 2 miles north of the town and the Bengal and Buck mines being, respectively, about 13/4 and 3 miles southeast of the town. There are approximately 173 maintenance and production employees at the Buck mine, 119 at the Bengal mine, and 71 at the James mine. PICKANDS, MATHER & COMPANY 1105 Apparently the type of work performed and conditions of em- ployment at all three mines are substantially the same.2 Employees have been transferred from one to another of the mines as needed.3 As previously stated, both Lodge 1624 and the Independent admit to membership and claim members among employees at all three of the mines. The record does not disclose any history of collective bargain- ing previous to the events herein discussed. From the foregoing it appears that the Buck, Bengal, and James mines might properly be considered as a single bargaining unit, or as three separate units, or, two of the mines might be combined in one unit leaving the third mine to constitute a separate unit. Under these circumstances, we will be guided by the desires of the employees themselves. Since the record does not disclose the employees' wishes 4 elections are necessary to make this determination. We shall there- fore direct that a separate election be held among employees at each of the three mines here involved to determine whether they desire to be represented for purposes of collective bargaining by Lodge 1624 5 or by the Independent. Wherever a ballot at one of the mines results in a majority for Lodge 1624 the employees at such mine will be combined with the employees,at , any other mine who similarly choose Lodge 1624 in a single collective bargaining unit. Wherever a ballot at one of the 2 The pay rolls introduced in evidence list the same general classifications of employees at each of the three mines here involved. 3In the event of transfers of employees between the James mine and either the Buck or Bengal mines a corresponding transfer on the pay rolls is necessary since Pickands, Mather & Company keeps a separate payroll for the James mine. 4,For the exclusive purpose of 'adding to 'the evidence relating to the question concerning representation , the Trial Examiner read into the record the results of a comparison made by him between current pay rolls of the Buck, Bengal, and James mines and membership cards and authorization petitions submitted to him by Lodge 1624 and the Independent The results of the Trial Examiner 's comparison follow : Of 186 employees whose names appear on the pay roll of the Buck mine for June 8 , 1940, 103 had joined Lodge 1624 and 37 had signed petitions for the Independent . Of 134 employees whose names appear on the pay roll of the Bengal mine for June 8, 1940 , 54 had joined Lodge 1624 and 77 had signed petitions for the Independent Of 71 employees whose names appear on the pay roll of the James mine for June 8, 1940, 44 had signed petitions for the Independent The Companies - objected to this procedure by the Trial Examiner on- the grounds-that they were denledraccess ,to,certain membership' cards examned 'by him. The'Trial Examiner overruled their objection and the Companies then moved to strike his statement of the results of his comparison between the cards and petitions and the pay rolls. The Trial Examiner, denied the Companies' motion we have found above that the Trial Examiner's rulings were not prejudicial 6 Although Lodge 1624 claims to have members among the employees at the James mine, it did not contend at the hearing that such employees constitute a separate unit, nor did it ask that they be combined with employees at any other mine in a larger unit The position of Lodge 1624 with respect to the employees at the James mine is, therefore, not entirely clear It possibly may not wish to participate in the election to be directed there. For that reason, the Board hereby grants to Lodge 1624 leave within 5 days from the date of issuance of this Decision and Direction of Elections to file with the Board a request that its name not bs placed on the ballot in the election to be conducted among employees at the James mine Upon'such filuig,,the'ljirector of Elections, will be'ainerided'to provide for participation only by the Independent in the election among employees at the James mine. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mines results in a majority for the Independent the employees at such mine will be combined with the employees at any other mine who similarly choose the Independent in a single collective bargain- ing unit. Thus, in the event one union should win in all three elec- tions, employees at the three mines will be combined in a single unit. In the event one of the unions should win in the election at two oe the mines and lose at the third, employees at the two mines will be combined in a single unit . In the event one of the unions should win in the election at one of the mines and lose at the other two :nines, employees at the one mine will constitute a unit. Those persons eligible to vote in the election at each mine shall be all production and maintenance employees, excluding foremen, assistant foremen, policemen , watchmen, and those in a clerical or supervisory capacity , who were employed at such mine during the pay-roll period next preceding this Direction , including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or shall have since been temporarily laid off, but excluding those who have since quit or been discharged for cause . In the event an employee has been employed at more than one of the mines during the pay-roll period next preceding this Direction , he shall be entitled to vote only in the election at the mine where he customarily works the greater portion of his time. 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. Pickands, Mather & Company is an employer within the mean- ing of Section 2 (2) of the National Labor Relations Act of all production and maintenance employees , excluding foremen, assistant foremen, policemen , watchmen , and 'those in a clerical or , super- visory capacity, at the Buck and Bengal mines of'the Verona Min- ing Company and at the James mine of the James Mining Company. 2. A question affecting commerce has arisen concerning the repre- sentation of employees of Pickands, Mather & Company at the Buck and Bengal mines of the Verona Mining Company and at the James mine of the James Mining Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS 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, and pursuant, to Article III, Section 8, of National PICKANDS, MATHER & COMPANY 1107 Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with Pickands, Mather & Company, elections 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 Twelfth Region, act- ing in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among employees within the three groups described below 6 who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, and em- ployees who were then or shall have since been temporarily laid off, but excluding those who have since quit or been discharged for cause; (a) All production and maintenance employees, excluding fore- men, assistant foremen, policemen, watchmen, and those in a clerical or supervisory capacity, at the Buck mine of the Verona Mining Company to determine whether they wish to be represented for the purposes of collective bargaining by Lodge 1624, Amalgamated Association of Iron, Steel & Tin Workers of North America, SWOC, CIO, or by Independent Mine Employees Union; or by neither; (b) All production and maintenance employees, excluding fore- men, assistant foremen, policemen, watchmen, and those in a clerical or supervisory capacity, at the Bengal mine of the Verona Mining Company to determine whether they wish to' be represented for the purposes of collective bargaining by Lodge 1624, Amalgamated Asso- ciation of Iron, Steel & Tin Workers of North America, SWOC, CIO, by Independent Mine Employees Union, or by neither; (c) All production and maintenance employees, excluding fore- men, assistant foremen, policemen, watchmen, and those in a clerical or supervisory capacity at the James mine of the James Mining Company to determine whether they wish to be represented for the purposes of collective bargaining by Lodge 1624, Amalgamated Asso- ciation of Iron, Steel & Tin Workers of North America, SWOC, CIO, by independent Mine Employees Union, or by neither. MR. EDWIN S. SMITH, dissenting : I dissent from the decision that each of the mines may appropri- ately constitute a separate unit. OAs noted above , in the event an employee has been emploNed in work at more than one of the mines during the pay-roll peuod next preceding this Direction , he shall be entitled to vote only in the election among employees at the mine where he customarily works the greater portion of his time 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Buck, Bengal, and James Mines are all of a similar nature and are all operated by Pickands, Mather & Company. They are all located within a few miles of each other and there is some inter- change of employees between them. Lodge 1624 admits to member- ship employees from all three mines and has secured members from at least two of them. The Independent admits employees from all three mines to membership, has secured signatures from employees at all three mines on petitions in its behalf, and has requested the- Board to establish a single appropriate unit. Under all of the circumstances, and, for the reasons given by me in previous dissenting statements,? I would find the employees at all three mines to constitute a single appropriate unit. 7 See Matter of Chrysler Corporation and United Automobile Workers of America, Local 371, affiliated with C I 0 , et al, 13 N L R B 1303; Matter of Briggs Manufacturing Company and Briggs Indiana Corporation and International Union, United Automobile Workers of America, affiliated with the C I 0 , and Locals No. 212 and No 205, International Union, United Automobile Worl^ers of America, affili ated with the C 1 0 , 13 N L R. B 1326; Matter of Allied Laboratories, Inc (Pitman-Moore Division) and Indianapolis Specialty Union #465, affiliated with the International Printing Pressmen and Assistants' Union affiliated with AFL. et at , 23 N L R B 184; Matter of Hood Rubber Company, Ino and Rubber Workers Federal Labor Union No 21914 (AFL) ; Matter of B F Goodrich Company and United Rubber Workers of America, 20 N L R B 485 ; Matter of United States Rubber Company (Providence Plant) and Rubber 1I7orkers Federal Labor Union, Local ($22014, affiliated with the American Federation of Labor, et at, 20 N L R B 473; Matter of Colorado Builders' Supply Company and International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local Union No 507, 18 N. L R B 29 I-