Kennecott Copper Corp.

National Labor Relations Board - Board DecisionsDec 12, 1945

64 N.L.R.B. 1377 (N.L.R.B. 1945)

In the Matter Of KENNECOTT COPPER CORPORATION, CHINO MINES DIVI- SION and INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 1563, A. F. OF L. Case No. 16-R-939.-Decided December 12, 1945 Mr. J. F. Woodbury, of Silver City, N. Mex., for the Company. Mr. Kenneth Roberts, of Phoenix, Ariz., Mr. T. H. Schroeter, of Bayard, N. Mex., and Mr. Charles E. Martin, of Central, N. Mex., for the A. F. L. Mr. Orville Larson, of Globe, Ariz., and Mr. Verne Curtis, of Silver City, N. Mex., for the C. I. O. Mr. John E. Lawyer, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by International Association of Machinists, Lodge 1563, A. F. of L., herein called the A. F. of L., alleging that a question affecting commerce had arisen concerning the representation of employees of Kennecott Copper Corporation, Chino Mines Divi- sion, Santa Rita and Hurley, New Mexico, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Earl Saunders, Trial Examiner. The Bearing was held at Silver City, New -Mexico, on July 20, 1915. At the commencement of the hearing, the Trial Examiner granted a motion of International Union of Mines, Mill & Smelter Workers, C. I. 0., Locals Nos. 63 and 69, herein called the C. I. 0., to intervene. The Company, the A. F. of L., and the C. I. O. appeared at and partici- pated in the hearing, and all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing the Trial Examiner reserved ruling on the C. I. O.'s motion to dismiss the petition. For reasons hereinafter stated the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. 64 N. L. R. B., No. 227. 1377 670417-46-vol 64-88 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS or FACT 1. TILE BUSINESS OF THE COMPANY Kennecott Copper Corporation is a New York corporation operating an open pit copper mine at Santa Rita, New Mexico, and a concentrat ing mill and smelter at Hurley, New Mexico, both of which are in- volved in this proceeding. During the 6-month period immediately preceding the hearing the Company purchased supplies for use in its operations at Santa Rita and Hurley valued in excess of $200,000, approximately 90 percent of which was received from points outside the State of New Mexico. During the same period the products of the Santa Rita and Hurley operations amounted in value to more than $200,000, all of which were shipped to points outside the State. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. TILE ORGANIZATIONS INVOLVED International Association of Machinists, Lodge 1563, affiliated with the American Federation of Labor, and International Union of Mine, Mill & Smelter Workers, Locals Nos. 63 and 69, affiliated with the Congress of Industrial Organizations, are labor organizations admit- ting to membership employees of the Company. III. TILE QUESTION CONCERNING REPRESENTATION On April 28, 1944, the Company refused to recognize the A. F. of L. as the exclusive collective bargaining representative of the employees involved herein in view of the fact that the C. I. O. had been certified in a prior proceeding before the Board.' On May 8, 1944, the A. F. of L. filed the petition herein. The C. I. O. was certified by the Board on November 5, 1943, as the exclusive bargaining representative of substantially the same unit of employees here involved. On November 22, 1943, the Company and the C. I. O. entered into an "Interim Agreement," effective as of June 12, 1943, and to remain in operation until June 12, 1944. How- ever, 11 disputed issues between the parties were subsequently presented to the Nonferrous Metals Commission of the War Labor Board for adjudication.2 Thereafter, all the unresolved issues listed in the Matter of Kennecott Copper Corporation, 50 N L R R 842 2 These items are listed in the Interim Agreement as (1) Union security , ( 2) Making the right to hire subject to the seniority provisions of the agreement , ( 3) Additional clause requiring negotiations upon reduction of shifts and hours worked , ( 4) Time of employment before giving new employees a regular seniority rating, (5) Promotions , ( 6) Vacations, i7) Wages, ( 8) Rotation of shifts , ( 9) Sick leave , ( 10) Establishment of rates of pay for new jobs, and ( 11) Payment for travel time. KENNECOTT COPPER CORPORATION 1379 Iliteriln Agreement, with the exception of 3, were resolved by a direc- tive of the Nonferrous Metals Commission issued on April 13, 1944,3 and subsequently modified and affirmed by a directive of the War Labor Board issued on July 27, 1944. Following the issuance of the above directives the Company and the C. I. O. entered into a "Second Interim Agreement" on September 21, 1944, covering wages and working conditions for the period com- mencing June 12, 1943, the effective date of the Interim Agreement, and apparently embracing the matters resolved by the directives. 'Thereafter, on October 10, 1944, the Company and the C. I. O. entered into negotiations for a 1944-1945 agreement to supersede the Interim and Second Interim Agreements. On November 17, 1944, the parties entered into a "Third Interim Agreement" covering wages and work- ing conditions. But 11 disputed items, including the 3 unresolved issues mentioned in footnote 3 hereof, were referred to the Nonferrous Metals Commission 4 The Third Interim Agreement was for the period from June 12, 1944, to June 12, 1945.5 The C. I. O. states that this agreement is presently in effect since notice of termination or modifica- tion thereof was not given pursuant to its terms. On June 1, 1945, the Nonferrous Metals Commission issued its di- rective relating to the 11 disputed items arising out of the October 1944 negotiations. Thereafter, the Company appealed from the Com- mission's ruling on the general wage issue, and the Union appealed on the seniority and promotion issues, issues apparently unresolved by the first proceeding before the War Labor Board.6 The parties were then granted until July 30, 1945, to perfect their appeals before the War Labor Board so that at the time of the hearing 3 issues were pending before the War Labor Board. The C. I. O. urges in substance that the instant proceeding should be dismissed because (1) the A. F. of L.'s petition was not filed in timely fashion in respect, to the C. I. O.'s certification; (2) the hearing 8 The 3 unresolved issues were numbers ( 2), (5), and ( 11) as listed in footnote 2. 4These items are listed in the Third Interim Agreement as (1) Union security, (2) Making the right to hire subject to the seniority provisions of the agreement, (3) Union's demand for a paid lunch period of 30 minutes for all employees, (4) Modification of Com- mission Directive of April 13, 1944, (5) Promotions, (6) Wages (The Union's demand on this issue encompasses reclassification and adjustments , general wage increases , joint job study by the Union and the Company and the elimination of all rates below the present $6.15 rate ), ( 7) Duration of Agreement, (8) Sick leave , ( 9) Travel time , ( 10) Severance pay, and (11) Guaranteed annual wage 4 The agreement recites that it is to remain in effect until the issue identified as "Dura- tion of Agreement ," ( see item 7 , footnote 4), is resolved and from year to year after the expiration date fixed by the resolution of said issue , subject to a 30-day termination or modification clause However, the record reveals that the parties subsequently orally agreed prior to the war Labor Board hearings that the agreement should be for the period June 12, 1944 , to June 12, 1945 6 The third issue unresolved by the directives of April 13 and July 27, 1944, travel time, was decided by a war Labor Board directive issued on March 14, 1945, which ordered the payment of travel time in amounts to be determined by the parties. On June 30, 1945, the Company's petition for reconsideration of this issue was denied by the war Labor Board. 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not held in timely fashion considering the time which elapsed after the filing of the petition ; (3) the Third Interim Agreement is a bar to the proceeding; and (4) the issues before the National War Labor Board preclude a present determination of representatives un- der the doctrine of the Allis-Chalmers case.' The C. I. O. was certified by the Board as the representative of the machinists' group involved in this proceeding on November 5, 1943. The petition of the A. F. of L. was filed on May 8, 1944. At the time of such filing the duration of the Interim Agreement then in effect between the Company and the C. 1. 0. was tentatively established as from June 1, 1943, to June 1, 1944. This period became final under the directive of the War Labor Board issued on July 27, 1944. Shortly thereafter, on August 10, 1944, the C. I. O. filed a charge," alleging that the Company was engaging in unfair labor practices. Further pro- ceedings in the instant case were held in,abeyance until the matters contained in the charge were amicably settled and the charge with- drawn. This was on July 10, 1945. The hearing in this proceeding was then held on July 20, 1945, 10 days later. It thus appears that while the petition of the A. F. of L. was filed only 6 months after the Board's certification of the C. I. 0., it was also filed within next to the last month of the Interim Agreement, and prior to the 30-day notice provision of the agreement. Moreover, the Com- l any and the C. I. O. continued to bargain, despite the pendency of the petition, and the C. I. O. was in no way prejudiced. Consequently, we find no merit in the C. I. O.'s first contention. Nor do we think that the C. I. O.'s second contention has merit- Soon after the way was cleared for further proceedings in the instant case by the settlement of the complaint case, the hearing herein was held. Following the issuance of the War Labor Board Directive on July 27, 1944, referred to above, the Company and the C. I. O. entered into the Second Interim Agreement on September 21, 1944, and on Novem- ber 17, 1944, the Company and the C. I. O. entered into the Third In- terim Agreement, for the period June 12, 1944, to June 12, 1945, which superseded the Interim and Second Interim Agreements. Since notice of termination or modification thereof was not given by either party within the 30-day period the C. I. O. states that the agreement was automatically renewed and hence is a bar to the instant proceeding. Inasmuch as the Third Interim Agreement was made in the face of a pending representation proceeding initiated by the A. F. of L., it is clear that, standing alone, the agreement does not constitute a bar." 4 Matter of Allis-Chalmers Manuafcturing Company , 50 N. L. R. B. 306. Matter of Kennecott Copper Corporation, Case No. 16-C-1108. See Matter of Foster Grant Co., Inc., 54 N . L. It. B. 802. KENNECOTT COPPER CORPORATION 1381 And we do not agree that the doctrine of the Allis-Chalmers case is applicable to the facts herein. The first proceeding before the War Labor Board resulted in the resolution of all but three of the issues listed in the Interim Agreement. We do not believe that these issues are of such a substantial character in respect to the machinists group as to warrant a dismissal of the petition.10 With reference to the wage issue arising from the second proceeding before the War Labor Board, it is clear that the proceeding was initiated by the C. I. O. after it had obtained for the employees it represented substantial benefits of collec- tive bargaining , and at a time when it was not a newly recognized or newly certified bargaining agent." A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the A. F. of L. represents a substantial number of employees in the unit hereinafter found appropriate.12 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT With the exception of riggers, rigger helpers, and burners, the A. F. .of L. and the C. I. O. agree that the appropriate unit should be sub- stantially the same as that found by the Board in a prior proceeding 13 In the prior proceeding riggers, rigger helpers, and burners were included in the unit by stipulation of the parties. The A. F. of L. now contends that the employees in these classifications should be excluded because they are doing labor that does not require the skill of crafts- men. The C. I. O. contends that these groups of employees should re- main a part of the unit and points to the prior history of collective bargaining in support of its position. The Company takes no position in regard to the appropriate unit. It does, however, point out that some of the classifications in the unit previously found by the Board, have been abolished and others established, but states that there has been no substantial change in the duties of the employees. Thus the "The issues also related to other employees whom the C. I 0 represented pursuant to an earlier certification of the Board in Matter of Kenaecott Copper Corporation , et at., 42 N. L. R B 35. 11 See Matter of The Solvay Process Company, 64 N L R B 285; Matter of American Car R Foundry Co., 60 N. L R. B 735 12 The Board agent reported that the A P. of L submitted 41 authorization cards dated May 1944, of which 35 bore the names of persons who appear on the Company's pay roll for the period ending April 30, 1944 A second report submitted by the Board agent shows that of 30 authorization cards submitted in July 1945, 25 bore the names of persons who appear on the Company's pay roll foi the period ending July 15, 1945 There are appro .i- mately 95 employees in the unit hereinalier found to be appropriate In view of the C I O's maintenance of membership contract with the Company upon which it relies for its interest in the proceeding, there is no question of the substantiality of the A. P. of L's showing. 18 Matter of Kennecott Copper Corpot ation , 50 N L. R. B. 842. 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD riggers have been reclassified as repair mechanics and rigger helpers as repair mechanic helpers, and as such are within the classifications that the parties agree are appropriately a part of the unit. Consequently, there is no actual dispute between the two unions. Neither the duties nor the classification of the burners have changed since the unit was previously established by the Board. They have been a part of the unit since it was first established and have been in- cluded in contract negotiations. Accordingly, they will be included." We find that all the Company's machinist helpers, machinist ap- prentices, truck mechanics, and bulldozer mechanics at its Santa Rita Shop; all shovel repairmen and shovel repairmen helpers at its Santa Rita Shovel Repair Department; all drill repairmen in its Santa Rita Churn Drill Departments; all machinists, repair mechanics,. repair mechanic helpers, and the belt repairmen at its Hurley Mill Repair Department or Shop; all machinists, machinist apprentices, machinist helpers, repair mechanics, at its Hurley Machine Shop; all pump repair mechanics and pump repair helpers at its Hurley Pumping Depart- ment; all truck repair mechanics, truck repair helpers, and truck burners at its Hurley Truck Department; all machinists and repair mechanics at its Hurley Power Plant; and all repair mechanics, me- chanics, tripperman, and 'mechanic helpers at the Hurley Smelter, but excluding subforeman,15 foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATCVES We shall direct that the question concerning representation which has arisen be resolved by means of an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended; It is hereby 11 See Matter of C. J. Petersen and C. F. Lytle , d/b/a Petersen d Lytle, 60 N . L. It. B. 1070 11 The record is not clear that subforemen were among the agreed exclui Ions ; however, since the record clearly reveals that they are supervisory employees within he meaning of our usual definition , we shall exclude them. KENNECOTT COPPER CORPORATION 1383 DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Kennecott Copper Corporation, Chino Mines Division, Santa Rita and Hurley, New Mex- ico, an election by secret ballot shall be conducted as early as possible, but not later than sixty (60) days from the date of this Direction, under the direction and supervision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appro- priate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by International Association of Machinists, Local 1563, A. F. of L., or by International Union of Mine, Mill & Smelter Workers, C. I. 0., Locals Nos. 6'3 and 69, for the purposes of collec- tive bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.