Cactus Mines Co.

National Labor Relations Board - Board Decisions

Mar 16, 1940

21 N.L.R.B. 677 (N.L.R.B. 1940)

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.
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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).