Bagdad Copper Co.

National Labor Relations Board - Board Decisions

Nov 12, 1963

144 N.L.R.B. 1496 (N.L.R.B. 1963)

1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
& Warehousemen's Union, shall notify the Regional Director for the
Twentieth Region, in writing, whether or not it will refrain from
forcing or requiring Puget Sound, Bay Cities, or Shipowners, by
means proscribed by Section 8(b) (4) (D) of the Act, to assign the
work in dispute to warehousemen who are its members, rather than
to tugboat deckhands who are represented by the Inlandboatmen's
Union of the Pacific.
Bagdad Copper Company and Construction, Building Material
& Miscellaneous Drivers Union , Local #83, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers, Petitioner . Case No. 28-RC-1115. No-
vember 12, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before J. W. Cherry, Jr., Hearing
Officer. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the iprovisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
Upon the entire record in this case, including the briefs filed by
both the Petitioner and the Employer, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. Construction, Building Material & Miscellaneous Drivers Union,
Local #83, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers (hereinafter referred to as the
Petitioner), requests that the Board find appropriate a unit of all pit
department employees at the copper mining and milling operations
of Bagdad Copper Company (hereinafter referred to as the Em-
ployer), excluding all clerical, managerial, and professional employees,
and all guards and supervisors as defined by the Act. The Employer
opposes the petition, contending that the only appropriate unit con-
sists of all employees.
The Employer operates an open-pit copper mine and concentrating
mill at Bagdad, Arizona.. These operations and the contiguous town-
144 NLRB No. 141.
BAGDAD COPPER COMPANY 1497
site, which is also owned by the Employer , are in an area with a radius
of approximately 10 miles. The operations are administered by a
number of departments . Each department is supervised by a separate
departmental superintendent . In general , the pit department does
the mining and transports the ore to the crushers ; the milling depart-
ment does the crushing and extracts the copper by a mechanical proc-
ess; the leach department extracts the copper from the ore by an
electrochemical process; the pilot plant performs experiments to de-
velop and apply new methods to extract the copper from this partic-
ular type of ore ; the general maintenance department services all
movable and some immovable mechanical equipment; the engineering
department does all construction 'and design work, camp maintenance,
and well drilling ; the electrical department takes care of all electrical
problems in the operations ; the store department operates grocery
and mercantile stores; the hospital furnishes medical services.
The Employer employs over 400 employees , of whom 130 work in
the pit department , the unit which the Petitioner requests.
The record shows that the employees in the pit department form a
homogeneous , identifiable , and distinct unit within the Employer's
organization. Thus, the pit department employees work different
shifts and days from all other employees . They are under a separate
departmental superintendent and foremen . No other department has
the same classifications . Transfers of employees to or from the pit
department are occasional and of a permanent nature; only seven
transfers into, and two out of , the pit department occurred in the last
19 months . Pit department employees perform u type of work that
is distinct from that performed by the other employees, whether they
work in or outside of the pit area , and employees from the other
'departments are not loaned to the pit department to perform such
work. The pit department superintendent takes an active part in
the selection of employees suitable for employment in this depart-
ment. These employees are subject to hazards different from those
faced by other employees . ' The pit department is also subject to
separate cost accounting . Separate timecards are kept for the de-
partment . While the record is not entirely clear, it appears that
seniority is on a departmental basis.
It is true that there are some factors which would justify the
larger unit contended for by the Employer. Thus , all employees
receive the same fringe benefits. Paydays are the same for all em-
ployees, and all payroll and employee records are kept at a central
office. A single person is responsible for companywide safety.
Company-owned houses are available to all employees on the same
1 For example , pit department employees are subject to the usual open-pit mining
hazards such as falling rock, vehicle collisions , and blasting. Employees of other depart-
ments are subject to different hazards, such as dust, fire , and electrical and mechanical
failures
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis, and, apparently, all employees rent these houses. Furthermore,
companywide units are presumptively appropriate for purposes of
collective bargaining.2
However, Section 9 (b) of the Act, in empowering the Board to
decide in each case "the unit appropriate for the purposes of collective
bargaining," directs it to make an appropriate unit determination
which will "assure to employees the fullest freedom in exercising the
rights guaranteed by this Act"-i.e., the rights of self-organization
and collective bargaining. Recently, the Board, in order to effectuate
this mandate, reemphasized its view that the Act does not compel
labor organizations to seek representation in the most comprehensive
grouping of employees unless such grouping constitutes the only
appropriate unit 3 While a unit consisting of all employees of the
Employer might also be appropriate for the purposes of collective
bargaining, there is no bargaining history to support such Unit .4 In
these circumstances, the Board has consistently held that appropriate-
ness of companywide units does not establish that a smaller unit is
inappropriate .5 Thus, the issue here is simply whether a unit con-
sisting of only pit department employees is appropriate under the
circumstances of this case, and not whether another unit, consisting of
all employees, would also be appropriate, more appropriate, or most
appropriate.
It is our opinion that the pit department is sufficiently homogene-
ous, identifiable, and distinct from the other departments to warrant
a finding that the employees therein have a mutuality of interests not
shared by other employees which is sufficient to justify their estab-
lishment as a separate bargaining unit. Therefore, we find that
the employees in the pit department constitute an appropriate unit
which "will assure to employees the fullest freedom in exercising the
rights guaranteed by the Act." I Furthermore, in support of the
requested unit, we also note that no labor organization seeks to repre-
sent these employees in a broader unit. Accordingly, we find that
the following employees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion9(b) of the Act:
2 Western Electric Company, Incorporated, 98 NLRB 1018, 1032.
8 P. Ballantine & Sons, 141 NLRB 1103. See also F W. Woolworth Company, 144
NLRB 307; Dixie Belle Mills, Inc, 139 NLRB 629; Sav-On Drugs, Inc., 138 NLRB
1032 ; Quaker City Life Insurance Company, 134 NLRB 960.
4Five previous elections ( in 1944, 1945, 1952, 1956, and 1958 ) have been held in the
unit urged by the Employer here , but none resulted in the selection of a bargaining repre-
sentative and no collective bargaining ensued . In 1961 another petition for a representa-
tion election was filed and then withdrawn by the union.
S P. Ballantine A Sons, supra, footnote 3; Dixie Belle Mills, Inc, supra , footnote 3.
6 Bagdad Copper Corporation, Case No. 21-RC-2407 , etc. (May 14, 1952 ), not published
in NLRB volumes, relied upon by the Employer in its brief , is clearly distinguishable
from the instant case . In the instant case, unlike the earlier one, all employees within
the pit department are sought to be represented.
LITTLE LUMP COAL CO. 1499
All employees employed in the pit department of the Employer
at its Bagdad, Arizona, operations , but excluding all other employees,
office clerical employees , professional employees , guards, and super-
visors as defined by the Act.
[Text of Direction of Election omitted from publication.]
Frank B . Smith d/b/a Little Lump Coal Co. and Floyd and Lee
Dotson . Cases Nos. 9-CA-2812-1 and 9-CA-2812-2. November
13, 1963
DECISION AND ORDER
On August 13, 1963, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease 'and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of !the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in these cases,'
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following modifications :
The Trial Examiner found, and we 'agree, that the Respondent un-
lawfully solicited authorization cards from his employees on behalf
of SLU, thereby violating Section 8(a) (1) and (2). We also find
that since SLU did not represent an uncoerced majority of the Re-
spondent's employees on December 20, 1962, the Respondent further
violated Section 8(a) (2) and (1) by recognizing SLU as such rep-
1 The Trial Examiner found that the bargaining agreement between Respondent and the
Southern Labor Union, hereinafter referred to as SLU, was , except for a more liberal
vacation provision , the same as the one previously executed by United Mine workers and
the predecessor company, Frank and Frank B. Coal Company . The record shows that the
terms in the SLU agreement were, except for a more liberal vacation provision , the same
as those provided to employees by the Respondent prior to the negotiation of the SLU
agreement, and not the same as those provided in the Frank and Frank B. Coal Company
agreement . This error is corrected , but does not otherwise require modification of the
Trial Examiner's conclusions and recommendations.
144 NLRB No. 147.