Sullivan Mining Co.

..In the Matter of SULLIVAN MINING COMPANY and KELLOGG M. & S: UNION, LOCAL No. 18, INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. B-0954.-Decided October 13, 1941 Jurisdiction : mining; milling, ore reduction, and metal production industry. Investigation and-Certification of Representatives : existence-of question: re- fusal to accord recognition on ground employer was already dealing with legally designated representative of its employees ; election necessary. Unit Appropriate for Collective Bargaining : all employees of the Company's electrolytic zinc plant, including those classified as production and main- tenance men, watchmen, gatemen, samplemen, boilerhouse men, generator- room men, and -working shift bosses, but excluding employees classified as clerical men,. technicians, foremen, and all other executives.. Employees of zinc plant of subsidiary company held to constitute an appropriate bargaining unit in spite of employer's contention thaf because -of cominon management of plants involved, their. physical proximity, the interdependence of their operations, the similarity of work and' working conditions,. and the bargaining history, such employees should be included in the same unit with employees of one of two parent companies, where no request has been made on behalf of any of the employees for the larger unit, the basis on which the larger unit was established for an election in 1934 is not shown, no subsequent elections have been held, zinc plant employees have had separate representation on the Committee which pur- ports to represent employees in the larger unit, and the petitioning union in addition to its general meetings holds separate meetings for employees of each plant. Mr. Carl E. Croson, of Seattle, Wash., for the 'Company. Mr. C. J. Powers and Mr. Ray Arnold,. of Kellogg, Idaho, for the Union. Miss Grace MeEldowney, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE • On July 9, 1941,,Kellogg M. & S. Union, 'Local No. 18, Inter- national Union of Mine,-Mill & Smelter Workers, affiliated with the 36 N. L. R. B., No. 15. 107 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress of Industrial Organizations, herein called the Union, filed with the Regional Director for the Nineteenth Region (Seattle, Wash- ington) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Sullivan Mining Company, Kellogg, Idaho, herein called the Company, and request- ing an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 8, 1941, the National Labor Rela- tions Board, herein called the Board, acting pursuant to Section 9. (c) of the Act, and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On August 20, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on August 28 and 29, 1941, at Kellogg, Idaho, before William A. Babcock, Jr., the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were. represented and participated in the hearing. Full opportunity to be heard, to examine and cross-exam- ine witness, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made rulings on motions and on objections to the admis- sion 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. On September 2, 1941, the Company filed a request for oral argu- ment before the Board at Washington, D. C. On September 3, 1941, the Board denied this request, and in lieu thereof granted per- mission to all parties to file briefs with the Board in support of their respective contentions. On September 17, 1941, the Company filed a brief which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Sullivan Mining Company, an Idaho corporation having its prin- cipal office at Wallace, Idaho, is engaged in the mining, milling, and reduction of ores and the production of metals. Its stock is entirely owned by Bunker Hill and Sullivan Mining and Concentrating Com- pany and Hecla Mining Company. - It operates an electrolytic zinc plant, located about three miles south of Kellogg, Idaho, and the Star Mine and Mill, located near Burke, Idaho, about 20 miles east SULLIVAN MINING' COMPANY 109 of Kellogg. At the zinc plant, the only plant of the Company which. is involved in the present proceeding, approximately 350 persons are employed. The operation at the zinc plant consists mainly of the reduction and treatment of zinc concentrates for the production of electrolytic zinc. During 1940 the Company produced and sold over 37,000 tons of zinc, 90 per cent of which was shipped out of the State. Electro- lytic cadmium is also produced and sold to customers throughout the country, and a small amount of byproduct cement copper is sold to the Tacoma Smelter at Tacoma, Washington. The zinc concentrate used in the process comes chiefly from mines located in the State of Idaho ; none had been received from outside the State during the 12 ' months preceding the hearing. In 1940 chemicals, supplies, and equipment, including fuel oil, coal, main- tenance supplies, lead sheets and pipes, copper pipes and sheets, and various alloys of copper, amounting. to more than $200,000 in value, were purchased outside the State for use in the plant. II. THE ORGANIZATION INVOLVED Kellogg M. & S. Union, Local No. 18, International Union of Mine, Mill & Smelter Workers, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of various mines, mills, smelters, and other types of mining plants in the vicinity of Kellogg, Idaho, including the Company's zinc plant. III. THE QUESTION CONCERNING REPRESENTATION On June 30, 1941, the Union wrote a letter to the superintendent of the zinc plant, claiming to represent a majority of the employees of the plant and requesting a bargaining conference. The request was referred to the general manager, who informed the representa- tive of the Union that the Company was already dealing with the legally designated representative of its employees and would continue to do so until instructed to do otherwise. From a statement made by the Trial Examiner at the hearing it appears, that the Union represents a substantial number of employees of the Company in the unit hereinafter found to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company. 3 The Trial Examiner stated that the Union had submitted to him 208 application cards, all bearing apparently genuine original signatures . Of these cards , 174 bore names which also appeared on the pay roll of the zinc plant as of August 26, 1941 , and were dated between January 4 and August 4, 1941, except for two cards which were undated. The pay roll of August 26, 1941, " listed the names of 349 employees , of whom 309 were in the unit claimed by the Union. 110 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 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. W. THE APPROPRIATE UNIT The Union, contends that all employees of the Company's electro- lytic zinc plant, including those classified as production and main- tenance 'men, watchmen, gatemen, samplemen, boilerhouse men,, generator-room men, and working shift bosses, but excluding em- ployees. classified as clerical men, technicians, foremen, and all other executives, constitute 'an' 'appropriate bargaining unit. The Com- pany claims that zinc-plant employees should be, and now are, included in the same bargaining unit with employees of Bunker Hill and, Sullivan Mining and Concentrating Company, herein called Bunker Hill.. Its contention that such a unit is appropriate is based on the common-management of the plants involved, their physical proximity, •the interdependence of their operations, the similarity of the work and working conditions of the employees,' and the bargain- ing history of the plants. Although, as stated in Section I, above, the Company is jointly owned by Bunker Hill and Hecla Mining Company,z the zinc plant is, managed. in conjunction with Bunker Hill.3 The same man is general manager of. Bunker Hill and of the zinc plant; and the superintendent of the zinc. plant works in close cooperation with the. superintendents of the Bunker Hill Smelter and Mill and to some., extent with the superintendent of the Bunker Hill. Mine. He is considered part of the management of the Bunker Hill operations, and sits in conferences with Bunker Hill officials not only on matters relating to the zinc plant but on matters of policy, the purchase of supplies, and other matters of general concern. The zinc plant is located about a mile and a half from the Bunker Hill Smelter and between two and three miles from the Bunker Hill 2 In alternate years each of the parent companies chooses the president and three mem- bers of the board of directors of the Company, while two members of the Board are' chosen by the other organization . At the time of the hearing the president of Bunker Hill was also president of the Company. 3 The Bunker Hill operations include the Bunker Hill Smelter, Mine, and Mill and the Crescent Mine . Hecla operates the Heels, Mine. The Company 's Star Mine. and Mill are 'adjacent to the 'Hecla . Mine and. are operated under the supervision of Hecla officials. . SULLIVAN MINING COMPANY 111 Mine. Its site is entirely surrounded by Bunker Hill property;. it: is served by the same railroad spur; its water supply comes almost. entirely from wells on Bunker Hill land; and its telephone, with the. exception of a single emergency line,.goes through the Bunker Hill- office. . It shares in the benefits and expense of land and easements acquired by Bunker Hill for protection against claims for damage to vegetation. Its operations are interdependent with those of Bunker Hill in that a considerable amount of the concentrate. used at the zinc plant comes from the Bunker, Hill Mine,4 and the zinc plant residue, amounting to approximately 3,000 tons a month, is shipped to the Bunker Hill Smelter for further treatment. The zinc plant also sends to the smelter, for use in its process, 50 to 75 tons of zinc a month, and receives from it approximately the same amount of. copper sulphate. Maintenance work in both the zinc plant and. smelter. is sometimes performed by men from the other plant, and at times employees are transferred from one plant to the other, either at-their own request or because of the need of skilled men. In general, however, the zinc plant hires its-own employees, and the skill needed for any of the jobs can be acquired in a few days. Although there is some similarity between the processes and classifi- cations of work in the smelter and mill and those in the zinc, plant, the work in the mine. differs from all three. On the other hand, except in the mine the same wages are paid for the same classifica- tions of work;: wage increases are given to all employees alike; their. hours are the same; they have the same vacation privileges, the same doctor, the same hospital facilities, and the same 'death. benefits. Nevertheless, in spite of these similarities in working -conditions,- various employees testified to a lack of common interests among the plants.. In recognition of this fact, the Union, in addition to its general meetings, holds separate meetings for employees of each plant.5 Each of the, units has, its own departmental officers and committees and settles questions involving the interests of its own members. On the basis of the facts set forth above we believe that although the bargaining unit for which the Company contends might be appropriate for the purpose of collective bargaining if it repre- sented the desires of the employees, a unit of zinc-plant employees is also appropriate. At the present time no request has been made on behalf of any of the employees involved for the larger unit. The contention of the Company that bargaining is already being carried on with representatives of its employees in a duly designated unit is based on the fact that in 1934 an election was held under the 4 The Star Mine furnished 46 per cent of the concentrates used at the zinc plant; the Bunker Hill Mine, 27 per cent ; and the Hecla Mine , 15 per cent. c Meetings of members employed at the zinc plant are held twice a month. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .auspices of the Seattle Regional Labor Board, in which employees of Bunker Hill and the zinc plant participated, and as a result of which' five individual nominees were selected as bargaining representatives. 'These representatives organized as the Employee Representation: ,Committee,r herein called the Committee, elected a chairman and a. :secretary, and proceeded to take up with the management grievances .and questions concerning wages, hours, and conditions of employ- ment. Although the election ballot stated that the purpose' of the .election was "to elect a representative or representatives of the em- ployees for a period of six months from date of election," no other .election has been held, nor have the employees at any time since June 1934 expressly authorized the Committee to act as their repre- sentative. As vacancies have occurred, new members have been ,added, petitions nominating them being circulated in the particular plant involved'. The Committee has no general membership, has held no mass meetings of employees, and collects no dues; its bylaws were not submitted to the employees ; and since 1936 it has made no report. of its activities. It has, however, continued to hold regular meetings and to bargain with the management, but has never negotiated a formal bargaining agreement.7 The zinc plant'is represented on the Committee by Steve Hansen, one of the original members. Nevertheless, at the hearing various ,employees of the plant, called by the Union, testified that they did not feel that they had the benefits of collective bargaining, that they did not believe the general desires and wishes of the men had been presented, and in some cases that. they were not aware of being rep- resented by a bargaining agent. Although two petitions regarding. vacations with pay were submitted to the management by Hansen ,during the summer of 1941, some of the employees who had signed them testified that they had understood that the petitions were not -,to be transmitted through him or the Committee. The record does not indicate the basis on which the election unit was established in 1934, nor has the Committee intervened in the present proceeding to urge its bargaining relations with the Com- pany as determinative of the appropriate unit. Moreover, the zinc plant has at all times been accorded separate representation on the 'Committee. Under these circumstances we are of the opinion that the bargaining history fails to establish a pattern of collective bar- 0 Also referred' to in the record as Employee Representative Committee, Employees Representative Committee, and. Employees Representatives Committee. 7 Employees wishing to have matters taken up have usually presented them to the representative of their own plant, who has in turn presented them to the full. committee for consideration and submission to the management. . SULLIVAN MINING COMPANY 113 gaining that would render inappropriate the unit herein sought-.by the Union." The exclusions requested by the Union are not contested by the Company, and are such as we usually, grant. We see no reason for doing otherwise in this case. We'find'that all employees of the Company's electrolytic zinc plant, including those classified as production and maintenance men, watch- men, gatemen, samplemen, boilerhouse men, generator-room men, and working shift bosses, but excluding employees classified as clerical men, technicians, foremen, and all other executives, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation can- best be resolved by, and we shall accordingly direct, an election by secret ballot. Although the Union requests that the pay roll of July 28, 1941, be used to determine eligibility to vote, we see no reason to depart from our usual, practice in this regard. Accordingly, we shall direct that the employees of the Company eligible to vote in the election shall be .those in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction herein, subject to such limitations and additions as are set forth in the Direction.. 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 Sullivan Mining Company, Kellogg, Idaho, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company's electrolytic zinc plant,. includ- ing those classified as production and maintenance men, watchmen, gatemen, samplemen, boilerhouse men, generator-room men, and working shift bosses, but excluding employees classified as clerical men, technicians, foremen, and all other executives, constitute a unit "See Matter of Endicott Forging & Manufacturing Co. and National Die Sinkers 'Con- ference, 29 N. L. R. B., No. 39. 433118-42-vol. 36 9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate for the purposes 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 Rela- tions Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargain- ing with Sullivan Mining Company, Kellogg, Idaho, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Nineteenth 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' all employees of the Company's electrolytic zinc plant who were employed during the pay-roll period immediately preceding the date of this Direction of Election, includ- ing those classified as production and maintenance men, watchmen, gatemen, samplemen, boilerhouse men, generator-room men, and working shift bosses,- and employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding employees classified as clerical men, technicians, foremen, and all other executives, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Kellogg M. & S. Union, Local No. 18, Inter- national Union of Mine, Mill & Smelter Workers, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. . MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.