American Smelting and Refining Co.

National Labor Relations Board - Board Decisions

May 28, 1970

182 N.L.R.B. 893 (N.L.R.B. 1970)

AMERICAN SMELTING AND REFINING CO
American Smelting and Refining Company and Interna.
tional Union of District 50, Allied and Technical Work-
ers of the United States and Canada ' Case 28-CA-1945
May 28, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On January 30, 1970, Trial Examiner Herman Marx
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision Thereafter, the Charging
Party filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the Respondent filed cross-
exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated it powers in connec-
tion with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions,2 and recommen-
dations of the Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, and hereby orders that the
Respondent, American Smelting and Refining Company,
Silver Bell, Arizona, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order
I We have been administratively advised that since the issuance
of the Trial Examiner s Decision herein District 50 United Mine Work
ers of America has amended its constitution to change its name to
that as listed in the caption
2 Although we agree with the Trial Examiners conclusion that the
filing of the grievance involved herein was not shown to have been
delayed because the employees were intimidated by Edmonson s
remarks we do not find it necessary and we do not pass upon his
conclusions with respect to the power of the Board to issue an order
directing the processing of such a grievance
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner The complaint alleg-
es that an employer, American Smelting and Refining
Company (herein the Respondent or Company), has
violated Section 8(a)(1) of the National Labor Relations
893
Act' (herein the Act) by threatening employees with
reprisals if they filed grievances against the Company 2
The Respondent has filed an answer denying the com-
mission of the unfair labor practices imputed to it in
the complaint
Pursuant to notice duly served upon the Respondent
and Charging Party by the General Counsel of the Nation-
al Labor Relations Board (herein the Board), a hearing
on the issues was held before me in Tucson, Arizona,
on December 16, 1969
The General Counsel and the Respondent appeared
through respective counsel, and all parties were afforded
a full opportunity to adduce evidence, examine and
cross-examine witnesses, and submit oral argument and
briefs The evidence in the case is undisputed
Upon the entire record, and my observation of the
witnesses, I make the following findings of fact
FINDINGS OF FACT
I NATURE OF THE RESPONDENT 'S BUSINESS,
JURISDICTION OF THE BOARD
The Company is a New Jersey corporation , maintains
a place of business at Silver Bell, Arizona, where it
is engaged in operating a copper mine and related facili
ties, employs personnel in such operations , and is, and
has been at all material times, an employer within the
meaning of Section 2(2) of the Act
During the year immediately preceding the issuance
of the complaint, the Company, in the course and con-
duct of its business in Arizona, mined , sold, and distribut
ed products valued in excess of $50,000, shipped prod-
ucts valued in excess of that sum from its said place
of business in Arizona to locations in other states,
and received within the said State, from sources located
outside thereof, goods, equipment, and other materials
worth in excess of $50,000 By reason of such interstate
transactions, the Company is, and has been at all times
material to the issues, engaged in interstate commerce
and operations affecting such commerce, within the
meaning of Sections 2(6) and (7) of the Act Accordingly,
the Board has jurisdiction over the subject matter of
this proceeding
II THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine Work-
ers of America (Ind ), the Charging Party in this proceed-
ing (herein called the Union), is, and has been at all
material times, a labor organization within the meaning
of Section 2(5) of the Act
29 U S C 151 et seq
s The complaint was issued on October 9 1969 and is based upon
a charge filed by International Union of District 50 United Mine Workers
of America (Ind ) on September 5 1969 and an amendment of the
charge filed on October 6 1969 Copies of the charge the amendment
thereof and the complaint have been duly served upon the Respondent
182 NLRB No 125
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Union has been the bargaining representative
of a unit consisting of all the Company's Silver Bell
production and maintenance employees (with some
exceptions not pertinent here) for some 15 years, and,
in that capacity, has a written contract with the Compa-
ny, in effect at all times material here, prescribing terms
and conditions of employment for the represented
employees.
Only two areas of the contract, articles 4 and 9,
dealing respectively with vacation pay and the processing
of grievances, require special mention. Article 4 pro-
vides, in part, that employees who have been employed
for` prescribed minimum periods, and 'who have worked
at least a specified number of days in the preceding
year, are entitled to one or more weeks of paid vacation
time , varying with the length of the given employee's
tenure. The amount of a "week's vacation ' pay" is
computed by a method prescribed by article 4 (and
unnecessary to elaborate here)'on the basis of a minimum
workweek of 40 hours and a maximum one of 48.
Article 9 spells out successive procedural steps to be
taken in processing grievances providing, among other
things, that a grievance be initially submitted by the
complaining employee to his foreman within 48 hours
after the ground of complaint arose; that if not satisfacto-
rily adjusted at that level within 24 hours, as a second
step, the grievance "be reduced to writing and signed
by the employee . . . during the fourth twenty-four hour
. . . period, and . . . be submitted to the proper depart-
ment head . . . who shall give his decision within forty-
eight . . . hours"; that upon failure of adjustment at
the second level, as a third step, the Union's "Grievance
Committee" (established under the contract) shall, within
48 hours after receipt of the department head's decision,
"submit the written grievance to the superintendent
in charge of operations . . . who shall within five
.. . days render his written decision"; that any "unad-
justed grievance not carried -to the next highest, step
in the grievance procedure within the (specified) time
limits . . shall be considered as settled on the basis
of the last decision"; and that if a grievance remains
unadjusted under the prescribed procedure, either con-
tracting party may, within 10 days after the decision
of the superintendent, initiate arbitration procedures set
forth in the contract.
For -some years,, the Company has employed the
services of an independent contractor (herein Boyles)
for drilling operations on its Silver Bell property to
explore mineral deposits there. In 1968, and for a period
extending thereafter into the summer of 1969, the Compa-
ny detailed three of its hourly rated Silver Bell employ-
ees, J. B. Henley, Jimmy James, and Ed Holman, and
a "resident geologist" on its staff, Robert Edmondson,
to work with the contractor in processing mineral samples
for subsequent analysis. While so engaged , the four
men retained their employment status with the Company.
Henley, Holman, and James are still in its employ,
although no longer working with Boyles, and Edmondson
has left the Company since the material events involved
here to resume university studies. Throughout their
assignment to work with Boyles, Henley, Holman, and
James worked under the supervision of Edmondson
who was, at all times material here, an agent of the
Company, and by force of his supervision of the three
employees, a supervisor within the meaning of Section
2(11) of the Act.
While on the assignment with Boyles, Henley, Hol-
man, and James, like Boyles' employees, worked a
6-day week of 48 hours, although substantially the rest
of the Company's Silver Bell labor force worked a
5-day week of 40 hours.
In May 1969, Holman, who had recently received
his vacation pay, told James that he had been paid
on the basis of a 5-day week (of 40 hours, as I infer)
although working a 6-day week of 48 hours on the
Boyles assignment. James, who had been in the Compa-
ny's employ for about nine years, was entitled to a
paid vacation of 2 weeks, and both he and Holman,
believing that vacation pay for them should be computed
on the basis of their current 6-day, 48-hour workweek,
decided to talk to Edmondson about the matter. They
did so later that day, and Edmondson said that he
would look into the subject.
Shortly thereafter, he discussed the question with
Donald R. Jameson, superintendent of the Company's
Silver Bell operations, and the latter told Edmondson
that the Company's Silver Bell labor force generally
worked a 5-day week of 40 hours, and that it was
thus the Company's policy to compute vacation pay
for all employees on that basis.
Within a day or two thereafter, Edmondson told
James, in substance, that he had taken the matter up
with the superintendent, and that the latter had said
that the employees in question could probably secure
vacation pay computed on the basis of a 6-day (48-
hour) workweek if they filed a grievance, but if they
did that, their workweek would be reduced to 5 days
(40 hours). Later that day or the next, Edmondson,
again purporting to quote Superintendent Jameson, told
Henley and James much the same thing, adding in
substance, that the drilling program would last about
5 or 6 months more, and that a reduction to a 5-
day week would cost the employees more than the
additional vacation pay they were seeking.'
James took his vacation in June 1969, and Henley,
who, like James, was entitled to two weeks, did so
the following month, each receiving vacation pay for
two 5-day (40-hour) weeks.
3 Indicating some uncertainty, Henley expressed the belief that Hol-
man was also present when Edmondson made the relevant remarks
to him and James Apparently describing the same episode, James,
also evidencing some uncertainty , stated that another employee of
the Company , Jerry Martin , was present In any case , there is no
dispute that Edmondson made the relevant remarks on the first occasion
to Holman and James , and on the second at least to Henley and
James The end results here are the same whether or not Holman
or Martin was present on the second occasion
AMERICAN SMELTING AND REFINING CO.
On about August 19, 1969, the ' Union's grievance
committee chairman, Wayne Thomas,- submitted to the
Silver Bell management a written grievance, executed
by himself, Henley and,.James, alleging that Henley,
Holman, and James had not received,vacation pay due
them, but Superintendent, Jameson, who was present
at the time of submission, rejected the grievance as
untimely.
B. Discussion of the Issues; Concluding, Findings
The General Counsel sees am abridgement of the
employees's Section 7 guarantees 'in Edmondson's
remarks to them regarding grievances on the subject
of vacation pay. The Respondent, in its brief, views
the remarks as lawful,, to' that end reading into them
an intent by Edmondson merely to inform the three
employees involved that the Company, Idid not agree
with their interpretation of the contractual vacation, pay
provisions, but that if they were right the management
might "have to reschedule the workweek (from 6 to
5 days) as it would not make sense from an economic
point' of view to compute the vacation pay on a 6-
day week basis." '
But Edmondson's intent is. immaterial; what matters
is the content of his remarks, and the, interpretation
the employees could reasonably place upon them. What
he said, in material effect, was that the three' employees
in his'charge would suffer a reduction in-their workweek
if they filed a grievance. This ' was as much' as to tell
them that the Company would 'reduce' their earnings
if they exercised the 'grievance 'rights given them 'by
their collective-bargaining agreement. That such an exer-
cise is protected by Section 7 is'too plain' to'warrant
added discussion and, obviously, too, the relevant
remarks by Edmondson would have a natural tendency
to, interfere, with,., restraint and coerce employees in
the free exercise `of such Section 7 -rights. I find, in
sum, that by reason of such remarks, which were imputa-
ble to the Respondent because of Edmondson's agency
and supervisory status,- the Company violated Section
8(a)(l) of the Act..: , . . ,
The Respondent, visualizing in- its brief the possibility
of such a finding, maintains that notwithstanding it,
no remedial order is 'warranted because the 'violation
was "isolated and involved-'a very few employees in
a large bargaining- unit .'' The General' Counsel; on the
other hand, seeks not only 'the customary cease-and-
desist order, but a direction to the Respondent to process
the written grievance, which concededly,was submitted
to the management after the time specified in -the con-
tract. The basis for this request„ as expressed at the
hearing, is that Edmondson's remarks "intimidated"
the employees, thus leading them to delay submission
of the grievance beyond the time ' provided by -article
4 of the collective-bargaining contract. ,
The General Counsel, who has filed no brief, cites
no authority to support his` request, and that- shoud
occasion no surprise, for' the remedy sought is extraordi-
nary. Interpretation of contractual terms is, of course,
not beyond the Board's province, in a. proper case,
895
as the Supreme Court, made clear in N.L.R.B. v. C
& C Plywood Corporation, 385 U.S. 421, 427, but accept-
ance of the General Counsel's position would entail
much more. Whatever the terms used to describe the
process, what the,Board woud be doing, in substance,
would be to render an. adjudication that because of
the alleged "intimidation" the contractual time limitation
for filing the written grievance is not binding upon
the employees and the Union; that in such circumstances,
the Company is obligated, to process the grievance as
though it had been submitted in,time, and has violated
that obligation; and that, therefore, the Board may direct
such processing. Put another way, the Company's legal
obligation to process'grievances exists only in'the con-
tract, and what the General Counsel seeks, in effect,
is specific performance of the obligation upon the preen-7
ise, implied at, least, that the'rejection' of the grievance,
in the circumstances presented, constituted a breach
of the obligation.
But to impose such a requirement upon the Company
would be as much as to,grant a judicial remedy which
rests within the province of the.Federal courts under
Section 301(a) of the,Labor Management Relations Act,
1947 (Taft-Hartley Act; 29 U.S.C. §185).' The .very
grant of jurisdiction to.the courts over "suits for violation
of (collective-bargaining) contracts" argues , forcefully
against the existence of any right in the Board to make
the order in question, albeit couched in terms of repara-
tion of an unfair labor practice. And,. that view of the
matter is reinforced by the, legislative history of the
Taft-Hartley'Act, which as,the Supreme Court pointed
out in C & C Plywood (at 427); demonstrates a congres-
sional determination to withhold from the, Board "general
jurisdiction over all alleged violations of collective bar-
gaining agreements.",
.However, it would be an abstraction to use-this case
asi a vehicle -for, determination whether the Board has
the, power which the General Counsel would have it
exercise, and I pass -the matter without decision, for
it is enough for disposition of the General Counsel's
request that his threshold claim that the written grievance
was delayed because, the employees were "intimidated"
by Edmondson's remarks is not,borne out by the record.
It is one thing 1o , say - that the natural tendency of
the remarks would be to interfere with,, restrain,. and
coerce the employees in the exercise of their relevant
Section 7 rights, and - quite another to conclude that
there was a causal connection between Edmondson's
remarks and the failure by the employees and their
bargaining representative , to comply with the time
requirements prescribed by the contract. The' very fact
that the written grievance was filed, although about
three months late, operates in some measure against
the claim that the failure to comply,was due to Edmond-
Sec '301(a) provides "Suits for 'violation of contracts between
an employer and a labor organization representing employees in an
industry affecting commerce as defined in this Act, or, between any
such labor organizations, may be brought in, any district court of the
United States having jurisdiction of the parties, without respect to
the 'amount in controversy 'or without regard to the citizenship 'of
the parties - -
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son's remarks. But more to the point, Henley gave
testimony to the effect that he and James, at least,
mistakenly believed that they had 6 months within which
to submit the written grievance, and "thought that later
we could open this thing up if we decided to." And,
in addition, there is some intimation in Henley's testimo-
ny that Holman (who did not testify) shared that con-
ception.5
There is good reason to conclude that all three employ-
ees simply delayed in submitting the written grievance
because of a mistaken belief that they had 6 months
in which to do so, and it would be nothing but a
guess to say that the delay stemmed from "intimidation"
produced by Edmondson's remarks. Such a guess, obvi-
ously, is no basis for a direction that the Company
process the grievance, whatever view one may take
of the Board's jurisdiction to make such an order.
However, I do not agree with the Respondent's thesis
that no remedial order of any kind is warranted. To
be sure, Edmondson was a minor supervisor; his conduct
involved but two incidents, each consisting of remarks
of substantially similar purport, made to only a few
employees, who constitute but a small proportion of
the bargaining 'unit;' there is no evidence of a history
of prior unfair labor practices at the Silver Bell facilities;
and the Company and the Union have a long standing
collective-bargaining relationship; but these consider-
ations do not, in my judgment, outweigh the important
fact that Edmondson purportedly quoted and spoke for
Superintendent Jameson; and that so far as appears,
neither the superintendent nor any other representative
of the management has ever disavowed Edmondson's
remarks or given any other assurance to the employees
that their exercise of contract rights will not meet with
reprisal at the hands of the management.
As matters stand now, at least some of the employees
have good reason to believe that notwithstanding the
existence of the collective-bargaining relationship, the
top management echelon at the Silver Bell facilities
has such a punitive attitude, and there is no assurance
Henley testified-
Q. (By Mr. Cherry) Did you [Henley] talk with Mr Jimmy
James and Mr Holman about this subject" [Emphasis supplied ]
A Yes, sir. As I said before, we talked about it among ourselves.
Q Did you talk about filing a grievance over this"
A. Yes, we did.
Q And what was the discussion about" Tell us what was said
A We talked about this thing. Mostly, Mr James and myself
We decided that we would go along with the thing for a time
We thought that we had-we discussed whether or not we had
six months to appeal-I don ' t know how to say this-the wage-
Q Your vacation pay"
A The vacation pay, yes. We thought that later we could open
this thing up if we decided to.
The record does not establish the number of employees in the
unit, but it is worth nothing that the Silver Bell facilities include
a copper mine , crusher, and concentrator ; that the contract (schedule
A) lists and provides wage scales for approximately 60 separate classifica-
tions of employees ; and that there appears to be a substantial managerial
hierarchy , including a superintendent and department heads subordinate
to him , at the facilities . Taking these factors into account , it is fairly
inferable that Henley, Holman , and James are but a small fraction
of the employees in the bargaining unit
that that belief, even though initially held only by the
few to whom Edmondson made his remarks, will not
spread from them to many others in the bargaining
unit. Thus to prevent or mitigate spread of the belief,
and to nullify it where it now exists, it appears to
me, on the particular facts of this case, that effectuation
of the policies of the Act requires the entry of an
order directing the Respondent to refrain in the future
from misconduct of the type found above, with
appropriate provisions for posting of copies on its Silver
Bell premises for the information of its employees.
Accordingly, I shall recommend such an order.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have
a close , intimate, and substantial relation to trade , traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) of
the Act , I shall recommend below that the Respondent
cease and desist from the unfair labor practices found,
and take certain affirmative actions designed to effectuate
the policies of the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact,
and upon the entire record in this proceeding, I make
the following conclusions of law:
1. The Company is, and has been at all material
times, an employer within the meaning of Section 2(2)
of the Act.
2. The Union is, and has been at all material times,
a labor organization within the meaning of Section 2(5)
of the Act.
3. By interfering with, restraining , and coercing
employees in the exercise of rights guaranteed them
by Section 7 of the Act, as found above , the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tions 2(6) and (7) of the Act.
° In reaching this result , I have given consideration to cases where
the Board has withheld a remedial order because the misconduct involved
was of a de mm,mis nature Suffice it to say that this case is distinguishable
on its particular facts
AMERICAN SMELTING AND REFINING CO. 897
RECOMMENDED ORDER what steps the Respondent has taken to comply there-
with.9
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that American Smelting and
Refining Company, its agents, successors, and assigns,
shall:
1. Cease and desist from: ,
l
(a) Warning, threatening, or otherwise informing any
employee in any manner, directly or indirectly, that
any term or condition of employment may or will be
withheld, denied, or altered in any manner if any employ-
ee files or submits any grievance involving any term
or condition of employment to the Company or any
representative thereof.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
any rights guaranteed them by Section 7 of the said
Act.
2. Take the following affirmative actions which, I
find, will effectuate the policies of the Act:
(a) Post in conspicuous places at its place of business
in Silver Bell, Arizona, including all places where notices
to employees are customarily posted, copies of, the
said notice attached hereto. Copies of the said notice,
to be furnished by the Regional Director of the Region
28 of the National Labor Relations Board, shall, after
being signed by the said Company or its duly authorized
representative, be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter in such conspicuous places. Reasonable steps
shall be taken by the said Company to insure that
said notices are not altered, defaced, or covered by
any other material."
(b) Notify the said Regional Director, in writing, with-
in 20 days from the receipt of a copy of this Decision,
" In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and recommended order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order and all objections thereto shall be deemed waived for all purposes
In the event that the Board's order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing and Order of the National Labor Relations
Board "
" In the event that this recommended order is adopted by the Board,
this provision shall be modified to read "Notify the said Regional
Director, in writing, within 10 days from the date of this order what
steps the Respondent has taken to comply therewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the National
Labor Relations Board has found that we have violated
the National Labor Relations Act, and has ordered us
to post this notice . The Act gives employees the following
rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
poses of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities
WE WILL NOT warn, threaten, or otherwise
inform any employee, in any manner, directly or
indirectly, that any term or condition of employment
will be withheld, denied, or changed in any way
if any employee files or submits to us any grievance
involving any term or condition of employment.
WE WILL NOT in any like or related manner
interfere with any employee's exercise of any of
his rights described above.
AMERICAN SMELTING
AND REFINING COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
Federal Building and US Court House, 500 Gold Avenue,
Room 7011, P.O. Box 2146, Albuquerque, New Mexico
87101, Telephone 505-843-2555.