Magma Copper Co.

National Labor Relations Board - Board Decisions

Jan 10, 1974

208 N.L.R.B. 329 (N.L.R.B. 1974)

MAGMA COPPER CO. 329
Magma Copper Company, San Manuel Division and
United Steelworkers of America , Local No. 937,
AFL-CIO-CLC. Case 28-CA-2853
January 10, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 17, 1973, Administrative Law Judge
Thomas F. Maher issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order. However, for
reasons discussed below, we do not adopt the
rationale set forth in his Decision.
As more fully set forth in the attached Decision,
Respondent and the Union have maintained a
collective-bargaining relationship for approximately
14 years. During this period, the Union, as certified
representative of Respondent's production and main-
tenance employees, and Respondent have engaged in
contract negotiations which have resulted in at least
five successive contracts, including the current 3-year
contract executed on July 28, 1971. At each of these
negotiations, the Union has requested the names and
addresses of unit employees, the Respondent has
consistently refused to supply the Union with such
information, and the record shows that the Union
has continued to make similar requests periodically
throughout each such contract term for the past 10
years.
The existing contract between the parties is silent
on the subject of names and addresses but includes
the following language:
The parties specifically waive any rights which
either may have to bargain with the other during
the life of the continuing Agreement or any
matter pertaining to rates of pay, wages, hours of
employment or other conditions of employment.
This case arose when, after entering the current
contract, the Union again requested that Respondent
supply it with the names and addresses of employees
in the collective-bargaining unit and Respondent
refused to comply.
The Union now claims that it needs the unit
employees' names and addresses in order to perform
its duty properly as collective-bargaining agent of all
of Respondent's unit employees and to comply with
a Board order issued in a prior case 1 involving two of
Respondent's employees. Respondent does not con-
tend that in a proper case such information is not
relevant to a union's representation of employees,
but it argues that this is not such a case.
The Administrative Law Judge concluded that
Respondent, by refusing to furnish the Union with
the requested information, violated Section 8(a)(5)
and (1) of the Act. As indicated above, we agree with
his conclusions but not his reasons therefor.
The Respondent contends, primarily, that by the
terms of the current contract the Union has waived
its right to the names and addresses of unit
employees. Like the Administrative Law Judge, we
reject this argument. Although it is well recognized
that a labor organization may, for reasons of its own,
relinquish its right to such information, an alleged
waiver based on contract negotiations must be
supported by clear and unmistakable evidence.2 The
Board has also held that, although a subject has been
discussed in precontract negotiations and has not
been specifically covered in the resulting contracts,
the employer violates Section 8(a)(5) of the Act if
during the contract term he refuses to bargain with
respect to the particular subject, unless it can be said
from an evaluation of the prior negotiations that the
matter was fully discussed or consciously explored
and the union consciously yielded its interest in the
matter.3
The record here is devoid of any evidence which
would warrant finding such a waiver or conscious
yielding. A list of employees' names and addresses is
clearly not a matter pertaining to the negotiation of
new "rates of pay, wages, hours of employment or
other conditions of employment," to which the
disputed clause is directed, and the evidence before
us indicates that the Union's objective was not to
effect a change in the agreement, but rather to fulfill
its statutory obligation to administer the agreement
on behalf of all unit employees. Further, it is clear
that at all times the Union continued to request that
information, having repeatedly asked for it during
the term of each contract. Accordingly, we find that
i United Steelworkers ofAmerica, Local No 937 AFL-CIO-CLC(Magma insufficient to support Respondent 's claim that furnishing the Union with a
Copper Company), 200 NLRB No 8 We agree with the Administrative Law list of names and addresses of all unit employees would result in harassment
Judge that unlike the situation in Shell Oil Company v N L R B, 457 F .2d of and possible violence to those employees
615 (C A 9), denying enforcement of 190 NLRB 101, cited and relied on by 2 American Cyanamid Company, 185 NLRB 981
the Respondent, the unfair labor practice findings in this prior case are s Hilton Hotels Corporation d/b/a Stotler Hilton Hotel, 191 NLRB 283
208 NLRB No. 53
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither the express language of the current contract
clause itself nor the conduct of the Union constitutes
an unequivocal waiver.
Having found no waiver, the Administrative Law
Judge was of the view that the Supreme Court's
holding in Wyman-Gordon 4 is dispositive of this case
and that in light of the decision (that a union is
entitled to the names and addresses of unit employ-
ees prior to the holding of a scheduled Board
election ), a fortiori an exclusive bargaining repre-
sentative is entitled to such a list without explora-
tions of relevancy and necessity for that information.
The General Counsel requests that the Board
consider also the cases cited and relied on by him in
support of his contention that the Respondent's
refusal was unlawful,5 while the Respondent argues
that Wyman-Gordon is inapplicable and that the
criteria established by the cases relied on by the
General Counsel have not been met here.
We agree with the General Counsel that under the
holdings of the cases cited by him it has been
established that the Union herein was entitled to the
information it sought and that the Respondent
therefore violated the Act in refusing to supply it .6
In the Standard Oil and United Aircraft cases supra,
among others , both the Board and the courts found
violations of Section 8(a)(5) in the failure of the
respondents to satisfy the unions' requests for such
information when it had established that the infor-
mation was relevant to the unions' performance of its
role as bargaining representative. The determination
as to whether an employer is required to supply a list
of names and addresses of unit employees was based
on consideration of such factors as the size of the
unit ; the rate of turnover; the nature of the
contractual union-security clause , if any; the union's
ability to reach member and nonmember employees,
both at the plant and at their homes, including the
effectiveness of any steward system, and the use of
bulletin boards; and the availability of the informa-
tion to the employer. In Standard Oil and United
Aircraft, the employers were required to furnish the
list in view of such facts as the relatively low union
membership in the unit, the absence of a union-
security clause in the collective-bargaining agree-
ment , the residential dispersion of the unit employees
over a wide geographic area , the apparent ineffec-
tiveness of the steward system, the lack of adequate
exposure of unit employees to union bulletin boards,
the inefficiency of handbilling efforts, and the ability
of the company to compile the list with relative ease.
4 N L R B v Wyman-Gordon Co, 394 U S 759
5 Standard Oil Company of California, Western Operations, Inc, 166
NLRB 343, 344-345, enfd 399 F 2d 639 (C A 9), Prudential Insurance
Company of America, 173 NLRB 792, 793, enfd. 412 F.2d 77 (C A 2); United
Aircraft Corporation, 181 NLRB 892, 903, enfd 434 F.2d 1198 (C A 2),
The parallel between the facts of Standard Oil and
United Aircraft and this case is readily apparent.
Thus, here, as in Standard Oil and United Aircraft,
the Union had a relatively low membership in the
unit, having as members approximately 60 percent of
the employees in the bargaining unit, thereby leaving
a very substantial minority of nonmembers to whom
the Union owed the duty of fair representation. In
this case also the contract did not contain a union-
security clause, Arizona being a right-to-work State.
Further, as in Standard Oil and United Aircraft, here
the employees' residences were dispersed over several
counties, rendering personal contacts with employees
at their homes practically impossible; the record
shows that some employees lived as far away as 90
miles from Respondent's facilities. Here, too, the
alternative means of communicating with employees
available to the Union were inadequate. There is
undisputed testimony in the record that the Union
did attempt to distribute its literature on the public
highway and roads leading to and from Respon-
dent's facilities but that this practice was "hazard-
ous" since many on-coming cars did not stop and the
distributor was forced to dodge them to avoid
personal injury. Further, since there were usually
employees from seven different units emerging from
Respondent's gates, it was extremely difficult for the
distributor to determine who were members of the
bargaining unit. Also, as in those cases, bulletin
boards were an inadequate means of communicating
with unit employees. Here, the record discloses, the
Union was assigned four bulletin boards at Respon-
dent's facilities for a total of 2,250 employees.
Although the Union requested that it be permitted to
augment this means of communication by distribut-
ing leaflets on Respondent's premises, Respondent
refused to grant such permission. In addition, the
Union was unable to communicate effectively with
unit members via the grievance machinery, it
appearing from the record that Respondent refused
to permit the Union to use its own grievance forms
which contained a space for the grievant's address;
instead, Respondent insisted upon use of Respon-
dent's forms which do not contain the home address
of the grievant. Thus, unless a grievant initiated
communication with the Union, the Union had no
way of communicating with him with respect to his
grievance. Finally, the Administrative Law Judge
found that Respondent had an annual turnover rate
of between 1,560 and 2,080 employees, 80 percent of
whom are estimated to be union members and that
Shell Oil Company, 190 NLRB 101 , and Food Employer Council, Inc, 197
NLRB 651
5 Therefore , we do not adopt or pass upon the Administrative Law
Judge's rationale based either on the principle of Wyman -Gordon or his
evaluation of inherent inequities of this situation
MAGMA COPPER CO.
Respondent did not notify the Union of new hires or
furnish it with their addresses. Consequently, the
Union could not maintain a current list of unit
employees, unless they became union members. But,
as mentioned before, a substantial number of hires
never joined tFe Union. Finally, the Respondent here
possessed the information, and there is no indication
that its compilation would be unduly onerous.
In view of these circumstances, we find that the
General Counsel has demonstrated that the informa-
tion requested was both relevant and necessary to the
Union in the performance of its statutory obligations
and that adequate alternative means of communica-
tion with unit employees were not available. As we
have already rejected the contentions that the Union
waived its right thereto or is likely to engage in
harassment of the employees, we find that Respon-
dent's refusal to furnish such information constitutes
a violation of Section 8(a)(5) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Magma Copper
Company, San Manuel Division, San Manuel,
Arizona, its officers, agents , successors , and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon a
charge filed on March 16, 1973. by United Steelworkers of
America, Local No. 937. AFL-CIO-CLC, herein called the
Union, against Magma Copper Company, San Manuel
Division, Respondent herein, the Regional Director for
Region 28 of the National Labor Relations Board, herein
called the Board, issued a complaint on behalf of the
General Counsel of the Board on April 19, 1973, against
the Respondent E lleging violations of Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended (29
U.S.C., 151, et seq. ), herein called the Act. In its duly filed
answer the Respondent, while admitting certain allegations
of the complaint denied the commission of any unfair
labor practice.
Pursuant to notice a trial was held before me in Tuscon,
Arizona, whereat all parties were present, represented and
i See Bishop and Mateo, Inc, d/h/a Walker's, 159 NLRB 1159, 1161
Y 200 NLRB No 8
3 The following is the unit of employees found to be appropriate for the
purposes of collective bargaining:
All production and maintenance employees at the Employer's San
Manuel, Arizona, operations , including all heavy equipment operators,
mobil crane operators, crane car operators, universal equipment
operators, shovel operators, drag line operators, turner dozer operators,
331
provided full opportunity to call and cross-examine
witnesses, to present oral argument, and to file beefs.
Briefs were filed by Respondent and counsel for the
General Counsel on June 18 and 25, 1973, respectively.
Upon consideration of the entire record, including the
briefs filed with me, and upon my observation of the
witnesses appearing before me,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF THE RESPONDENT'S BUSINESS
It has been found by the Board, based upon data
supplied to it identical to that supplied in this record, that
this Respondent, as it admits in its answer, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. I accordingly conclude and find such to
be the status of the Respondent in this case.
11. THE LABOR ORGANIZATION INVOLVED
It is submitted by all parties, as has previously been
found by the Board (supra ), that the Union is a labor
organization within the meaning of the Act. I accordingly
conclude and find such to be the Union's status here.
III. THE UNFAIR LABOR PRACTICE
A. The Facts
The Union, as the certified representative of the
Respondent's production and maintenance employees and
numerous categories of equipment operators3 at the San
Manuel Division, has engaged in contract negotiations
with Respondent for at least the past 14 years and in this
period has entered into at least five successive collective
agreements including the current one executed on July 28,
1971, and presently in force until July 1, 1974. In the
course of each of the negotiations that resulted in these
contracts, including the most recent negotiations, the
representatives of the Union have requested that Respon-
dent supply it with the names and addresses of the current
members of the bargaining unit, but on each occasion the
request has been refused .4 Respondent does supply it with
a seniority list on a semiannual basis, but it will not
provide a periodic list of new hires.
Of the estimated 2,250 employees in the bargaining unit,
1,385 are members of the Union and have authorized that
their dues be checked off pursuant to the terms of the
contract. It is estimated that the rate of employee turnover
at Respondent's plant, and mine, is from 30 to 40
employees per week, or between 1,560 and 2,080, annually.
It is estimated that 80 percent of these, between 1,250 and
1,664, are members of the Union.
Employees file an application for employment prior to
hire. This form requires the applicant's address and this is
bulldozer operators, cat operators, cat and carryall operators utilized at
quarry operations. hoistman ( large), hoist operators (large). mine
hoistmen and hoist operators , end load operators , compressor opera-
tors at the compressor house, equipment operators designated as blade
operators, tractor operators , and Haugh loader operators All assayers
in the Laboratory and Sample Preparation Department .
The testimony of Personnel Service Manager David C. Ridinger and
the Union President Frank Salas, Jr
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frequently his 'residence prior to moving into the area of
Respondent's facility. However, at the beginning of each
year another form is distributed to all employees requiring
information for so-called emergency purposes, and in-
cludes the employee's present address. All are required to
submit this information and as of the date of the trial of
this matter only 216 had not complied with the current
request.5 Included on this information form was the
statement:
THE ABOVE INFORMATION IS CONFIDENTIAL AND FOR
COMPANY AND EMERGENCY USE ONLY. it will not be used
for income tax deduction purposes or for change of status
pertaining to the group insurance plan.
Respondent's personnel manager was not familiar with
the procedure followed by the payroll department in the
filing of reports and the submission of payments to the
United States Bureau of Internal Revenue and to the
Social Security establishment. I do, however, take official
notice of the well-established fact that employers are
required to report the earnings of each of their employees
and to deposit with the respective agency any tax or
contribution withheld. In this regard I likewise take official
notice of the fact that the Bureau of Internal Revenue
Forms W-2 and W-4 and Social Security Form 914,
Employer's Quarterly Tax Return, each require the
individual's name and his present address. At no place in
the record does it appear that Respondent fails to comply
with these official requirements.
In Case 28-CB-648 it was found by the Board (200
NLRB No. 8) that the Union had violated Section
8(b)(1)(A) of the Act by the refusal of a steward to process
grievances for two employees, Ray Stephenson and George
Glass,6 because they were not members of the Union. By
these two refusals the Administrative Law Judge conclud-
ed and the Board affirmed that the Union had thereby
restrained and coerced the employees in the exercise of
their statutory rights. No other misconduct was involved.
As a consequence of the Union's violation of the Act the
Board ordered it to mail copies of a "Notice to Employees"
to each employee in the bargaining unit. In its effort to
comply with the Board's directive and for other stated
reasons the Union once more requested of Respondent
that it provide them the names and addresses of the unit
employees. The following letter was sent to Respondent:
February 9, 1973
Mr. D. C. Ridinger
Manager of Personnel Services
Magma Copper Company
San Manuel Division
P.O. Box "M"
San Manuel, Arizona
Dear Mr. Ridinger:
We hereby request that the Company furnish the
Union with a list of names and addresses of all
employees in the bargaining unit represented by the
United Steelworkers of America at the San Manuel,
S It was speculated at the trial that this group might include the 130 to
180 employees involved in the monthly turnover rate.
Arizona operations of the Company. The reasons for
this request are as follows:
First, the information sought is essential to the
proper performance of the Union's duty as collective
bargaining agent for all employees in the unit. There
are many court cases and NLRB decisions, including a
recent one involving this Local, which hold that the
Union has a statutory duty fairly to represent all unit
employees whether or not they are members of the
Union. It is now impossible for us to fulfill this
statutory obligation because we do not even know who
the non-members are, or even if we were aware of their
identity, how to contact them. Without the requested
list, the Union cannot advise all unit employees of the
benefits provided by the contract or their rights
thereunder. At the same time, the list would enable the
Union to communicate effectively with all employees
in the unit to obtain information, investigate employee
complaints, and secure the employee participation
necessary to proper administration of the contract and
grievance processing thereunder. In the future this
communications channel would make it possible for
the Union, in advance of negotiations, to solicit the
assistance and participation of all unit employees in
formulation of bargaining goals. Finally, our need for
the names and addresses underscored by the large
number (perhaps as many as 1000) of non-members,
the frequency of employee transfer between our
bargaining unit and units represented by other unions
at the San Manuel operations, and the wide geographic
area in which unit employees reside.
While the above is itself sufficient justification for
our request, there is a second reason. It stems from the
recent NLRB case involving this Union, United
Steelworkers of America Local 937 (Magma Copper
Company, 200 NLRB No. 8. As you may know, the
National Labor Relations Board there found that our
Union committed an unfair labor practice by failing to
process the grievances of employees George Glass and
Ray Stephenson because they were not members of the
Union. By order of the NLRB in that case the Union is
required to ". . . Mail a signed copy of (a notice to
employees and members) to all employees in the
bargaining unit." Inasmuch as we do not know the
names and addresses of unit employees who are not
members of the Union, we cannot comply with the
NLRB order unless we are provided with the requested
information. This is another reason why we have come
to you.
For your information, we have notified the Albu-
querque Regional Office of the NLRB that the Board's
order directs us to send the designated notice to all
employees and that we intend to do everything in our
power to comply therewith. In truth there is now a
dispute over the question of mailing to non-members.
We wish to advise you however that the Union is not
prepared to ignore the clear mandate of the National
6 Glass appeared as a witness in Respondent 's behalf in the instant
proceeding
MAGMA COPPER CO. 333
Labor Relations Board even if it should turn out that
the Albuquerque Regional Office is willing to do so.
We would appreciate receiving the list of names and
addresses by March 12, 1973. If for any reason this
date imposes an impossible burden on the Company,
the Union will be more than happy to discuss an
extension.
Sincerely yours,
Frank Salas, Jr.
President
Local 937 UNITED STEELWORKERS OF AMERICA
In refusal Respondent sent the following response:
March 3, 1973
It is true , of course , that union representatives did
request the names and addresses at the negotiation session,
as frequently had been done before . But to constitute an
effective waiver clause which relieves a party of further
bargaining the Board requires that the negotiations which
give nse to the alleged waiver be examined to determine
whether there was a conscious exploration of the matter
waived and that the waiver be clear and unmistakably
shown.? Such a waiver can never be inferred lightly and, in
this instance I find nothing to support an inference of any
strength. I accordingly reject the Respondent's contention.
Respondent further claims that the reason for the
Union's request was to comply with the Board's Order in
Case 28-CB-64I and that official determination that the
requirements of the order had been satisfied has obviated
any need for the information for the purposes requested.
On the contrary, the record is replete with credited
United Steelworkers of America testimony that the names and addresses of the unit
AFL-CIO-CLC, Local No. 937 employees were being requested by the Union periodically
P. O. Box 336 for the past 10 years. Furthermore , and more specifically,
Oracle , Arizona 85623 the February 9 letter of request (supra ) states as its first
Attention: Frank Salas, Jr.
Gentlemen:
Your letter of February 9, addressed to Mr. D. C.
Ridinger, has been referred to this office.
This is to advise that Magma does not wish to
comply with your request for names and addresses of
all employees in the United Steelworkers of America
bargaining unit at San Manuel Division.
Yours truly,
John S. Wise
General Manager
B. Respondent's Defenses
Respondent claims that by the terms of the current
contract the Union has waived its right to the names and
addresses of unit employees. After the Union had
requested the information during the 1971 negotiations and
was refused, the following language appeared in the
executed contract:
The parties specifically waive any rights which either
may have to bargain with the other during the life of
the continuing Agreement or any matter pertaining to
rates of pay, wages, hours of employment or other
conditions of employment, except as provided in the
Slotting Clause.
Contrary to Respondent's assertion in its brief the
Company did not offer to give the negotiating history of
the above provision. What it did seek in the course of
counsel 's interrogation of Personnel Service Manager
Ridinger was a statement on the record of the provision
itself; and it was ruled that the document in evidence
would speak for itself. I reaffirm this ruling. Otherwise
nothing was said of the scope of the quoted waiver clause
or of negotiations leading to its adoption.
reason for requesting the information that "the informa-
tion sought is essential to the proper performance of the
Union 's duty as collective bargaining agent for all
employees in the unit ." Only after elaborating on this
reason does the Union cite the efforts at compliance with
the Board 's Order as a reason for the requested informa-
tion . I accordingly reject this contention of Respondent as
contrary to the documentary evidence in the record.
Next Respondent claims that the background leading to
the request establishes a strong antiunion feeling through-
out the plant with resulting coercion and harassment, as
found by the Board in Case 28-CB-641. Thus, according
to Respondent, to furnish the names and addresses of all
unit employees would lead to further harassment and
possible violence.
A study of the record and a reading of the Board's and
Administrative Law Judge's findings and conclusions in
Case 28-CB-641 (200 NLRB No. 8) clearly persuades me
that Respondent hyperbolizes. In that case one union
steward was found to have unlawfully refused to process
the grievances of two employees, one being employee
George Glass. This, it was found, restrained and coerced
employees in the exercise of rights of self-organization and
representation guaranteed them by the Act. It would take a
most active imagination to translate this variety of
"coercion" into the horrendous sort described by Respon-
dent as "harassment ," or such that would lead to "possible
violence ." Certainly there is nothing in the overall context
of either or both cases to suggest such a likelihood.
There is, of course, the testimony of employee Glass
who admitted to hostility towards the Union; and certainly
on the basis of the earlier case , with some justification.
During an intermission at the instant trial Glass stated in a
conversation with counsel for the General Counsel that
"the Union would crucify you if they had the opportunity,
and they will," referring to himself and fellow employees. I
am not disposed to accept this statement of a disgruntled
former union member as the sole evidence of impending
harassment and possible violence should the Union secure
7 Tide Water Associated Oil Co, 85 N LRB 1096
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit employee addresses; and especially do I so
conclude when the statement was uttered by a man whose
address was admittedly always known, to the Union. When
reminded that the Union already had his address,
Glass testified, "Yes, but I feel that if the Union wants
something from George Glass, they come to George Glass
and get it and that's my prerogative to give it to them." It
would appear, then, that Glass, unlike Respondent, was
standing more on the principle involved than upon
"further harassment and possible violence."
Respondent also based its refusal to supply addresses
upon the assurance of confidential treatment it had given
its employees , the administrative burdens involved in
providing the information, and the availability to the
Union of other means of communication with the unit
employees. In view of the conclusions which follow I reject
these as well.
C. Analysis and Ultimate Conclusion
At the outset it is to be noted that this dispute concerns
not the organization of employees but rather the effective
administration of a collective agreement executed in their
behalf. In the area of organizing it has become established
law that a union is entitled to the names and addresses of
unit employees for the purpose of enlisting their vote in a
scheduled Board election being held to determine the
Union's representative status .8 Certainly, then, the Union's
interest in the identity and the whereabouts of these very
people cannot be said to have diminished or become less
significant after it has been selected by them and certified
by the Board as their exclusive bargaining representative.
To reject such an a fortiori conclusion would seem to defy
commonsense.
I have been referred to considerable authority on this
subject but, as noted above, I deem the Supreme Court's
decision in Wyman-Gordon to be dispositive. Therein the
Court considered the validity of the Board's requirement
that in a representation proceeding the employer furnish to
the unions involved in the Board-conducted election a list
of names and addresses of its employees who could vote in
the election, so that the .unions could use the list for
election purposes. In approving the application of this
requirement the Court commented upon the Board's wide
discretion to insure the fair and free choice of bargaining
representatives, stating (394 U.S. at 767):
The disclosure requirement furthers this objective by
encouraging an informed employee electorate and by
allowing unions the right of access to employees that
management already possesses. [Emphasis supplied.]
The cases cited to me in both support of and opposition
to the legitimacy of the Union's request either antedate or
fail to consider the Supreme Court's decision noted above.
The Court, to repeat, holds that the Board's obligation to
provide a free and fair election assumes the employer's
obligation to disclose employee names and addresses, and
for the stated reason that this provides the Union the same
access to the electorate as the employer already has'
Certainly this requirement has no less efficacy when the
8 NLRB v Wyman- Gordon Co, 394 U.S 759 ( 1969); Excelsior
Underwear Inc, 156 NLRB 1236
"electorate" has been transformed by majority vote and
Board certification into the Union 's constituency . In view
of the sheer logic thus flowing from the Court's decision I
find it unnecessary to rely for support of the Union's
request upon Standard Oil Company of California, Western
Operations, Inc., 166 NLRB 343, enfd. 399 F.2d 639 (C.A.
9, 1968), or upon Prudential Insurance Company, 173
NLRB 792, enforced 412 F.2d 77 (C.A. 2, 1969), both of
which antedate Wyman-Gordon. In both cases the Board
and the courts considered in detail the requirement of the
relevancy and necessity of the information requested by a
union , a well-established cnteria,9 and concluded that the
names and addresses had such relevancy and necessity.
Similarly, I find United Aircraft Corporation, 434 F.2d 1198
(C.A. 2, 1970) unnecessary as support, although it too
supported the Board's order. The United States Court of
Appeals for the Second Circuit, while citing the Wyman-
Gordon decision in support of its agreement with the
Board, did not discuss it in detail and proceeded to
extensive considerations of the relevancy and necessity of
the requested unit employee names and addresses . Finally
I have been referred to Shell Oil Company v. N.L.R.B., 457
F.2d 615 (1972), wherein the United States Court of
Appeals of the Ninth Circuit refused to enforce the Board's
order (190 NLRB 143) which required the employer to
honor the union 's request for unit employee names and
addresses . Here the court considered the impelling reasons
for requiring the production of the information requested,
including its relevancy and necessity , and relied heavily
upon the cases cited above, albeit I have found it
unnecessary to do so here . But there was a significant
distinction. The court in Shell Oil was fully justified in
exploring as it did all considerations of relevancy and
necessity concerned with the furnishing of employee names
and addresses. For there , unlike here , the certified
bargaining representative had recently engaged in a strike
against the employer where there had been considerable
mass picketing, individual employee harassment, and
attendant violence, not only during the strike but thereaft-
er. So aggravated was the situation that injunctive relief
was sought and obtained . Even against such a background
the employer did not refuse outright, as here (supra ), but
offered alternative suggestions and arrangements for the
production of addresses which would provide adequate
safeguards to nonunion employees and still satisfy the
union 's legitimate needs . The union there rejected, as a
matter of principal, alternatives to an outright production
of the information requested. In this context the court
stated its conclusion , thus (457 F .2d at 620):
To the extent that the Board's decision reflects a
determination that there was not a clear and present
danger of violence and harassment, it is not supported
by substantial evidence on the record as a whole. As
noted above , the stipulation of the parties and
Forrester's uncontradicted testimony established that
there was such a danger.
This case , heavily relied upon by Respondent, has no
9 N L R. B v Acme Industrial Co , 385 U.S 432 (1967)
MAGMA COPPER CO. 335
application here where there has never been shown to be a
clear and present danger of harassment and violence.
Respondent has sought to create that illusion by the
language of its brief, but the facts in the record offer no
support whatever. All the record does show is two former
union members being refused the union grievance process
by a union steward, and an intemperate remark uttered by
one of these at the time of the trial, followed by his
admission of hostility to the Union and his acknowledge-
ment that the Union always had the address which he so
vigorously would deny to it. This is not the clear and
present danger of harassment and violence contemplated
by the court in Shell Oil, and I accordingly reject its
relevance here.
Quite apart from the consideration of precedent consid-
ered heretofore, a review of the record herein and a studied
consideration of the context of Respondent's refusal to
supply the Union with unit employees' names and
addresses persuades me that it has not only failed in its
statutory bargaining obligation in that respect, but it has
manifest inherent bad faith in the process.
The State of Arizona is a right-to-work State where the
advantages of continual union security are not available to
a bargaining agent. Accordingly, the Union is continually
in the same posture as a labor organization in the midst of
an organizing campaign. This is best illustrated by the
proportion of members to total employees in the unit
(1,385 members to 2,250 total employees in the unit), and
by the high turnover factor of between 1,560 and 2,080 per
year, 80 percent of whom were estimated to be union
members. Under such circumstances the Union, if it is to
continue to bargain for the employees as their majority
representative without challenge to its majority status,
must continually engage in recruitment and further
organizational activities. For not only does its membership
continually deplete, but Respondent by refusing to notify it
of 'new hires, and by limiting the opportunities of
solicitation on company property, effectively threatens the
Union's survival as bargaining representative. Certainly,
then, if the Supreme Court's assessment of a union's
organizational rights has validity when no representative
status is yet in existence, it has equal force where, as here,
Respondent consciously deprives the representative of "the
right of access to employees that management already
possesses." I am disposed to find and conclude that
Respondent by the further strategem of refusing the
needed names and addresses manifested an attitude of bad
faith not consonant with its obligation.
To summarize, then, I conclude and find that Respon-
dent, by refusing to provide the Union access to the unit
employees by the means of their names and addresses,
places the Union in the ridiculous position of not knowing
and not being able to locate those whom it is charged with
representing by the mandate of the Board's certificate. This
not only impedes the Union from fulfilling its legal
obligation to provide a fair and equal representation of its
constituents, be they members or not,10 but it places its
10 See N L R B v Mansion House Center Management Corp, 473 F 2d
471 (C A 8, 1973)
11 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,
continued representative status in jeopardy and could well
deprive the employees of the bargaining rights to which
they are all entitled. I accordingly conclude and find that
by all of the foregoing Respondent has refused to bargain
with the employees in the unit found appropriate by the
Board and has thereby violated Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent herein 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 violated Section
8(a)(5) and (1) of the Act by refusing to grant the Union
access to the names and addresses of the employees in the
bargaining unit, I shall recommend that it cease and desist
therefrom. Affirmatively I shall recommend that it make
this information available to the Union forthwith and that
it post appropriate notices of its compliance with the
Board's order.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
iORDER"
Magma Copper Company, San Manuel Division, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding the names and addresses of employees
in the bargaining unit from United Steelworkers of
America, Local No. 937, AFL-CIO-CLC, the certified
bargaining representative of its employees in the following
unit found appropriate by the Board for the purposes of
collective bargaining:
All production and maintenance employees at the
Employer's San Manuel, Arizona operations, including
all heavy equipment operators, mobil crane operators,
crane car operators, universal equipment operators,
shovel operators, drag line operators, turner dozer
operators, bulldozer operators, cat operators, cat and
carryall operators utilized at quarry operations, hoist-
man (large), hoist operators (large), mine hoistmen and
hoist operators, end load operators, compressor opera-
tors at the compressor house, equipment operators
designated as blade operators, tractor operators, and
Haugh loader operators. All assayers in the Laboratory
and Sample Preparation Department. . . .
conclusions , and recommended Order herein shall, as provided by 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
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of rights
guaranteed them by the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Supply forthwith the aforesaid Union the current
address of each employee in the bargaining unit set forth
above.
(b) Post at its San Manuel, Arizona, facilities and
townsite copies of the attached notice marked "Appen-
dix." 12 Copies of the notice on forms provided by the
Regional Director for Region 28, after being duly signed
by the Respondent, be posted immediately upon receipt
thereof in conspicuous places in the locations designated
above and be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps it has taken
to comply therewith.
12 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withhold the names and addresses of
employees in the bargaining unit from United Steel-
workers of America , Local No. 937, AFL-CIO-CLC,
the certified bargaining representative of our employees
in the following unit found appropriate for the
purposes of collective bargaining:
All production and maintenance employees at the
Employer's San Manuel , Arizona operations,
including all heavy equipment operators, mobil
crane operators, crane car operators, universal
equipment operators, shovel operators, drag line
operators, turner dozer operators, bulldozer
operators, cat operators, cat and carryall opera-
tors utilized at quarry operations, hoistman
(large), hoist operators (large), mine hoistmen and
hoist operators, end load operators, compressor
operators at the compressor house, equipment
operators designated as blade operators, tractor
operators, and Haugh loader operators. All
assayers in the Laboratory and Sample Prepara-
tion Department ... .
WE WILL supply the aforesaid Union with the
address of each employee forthwith.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by the National Labor
Relations Act.
All of you, our employees, are free to remain, withdraw,
become, or refrain from becoming members of United
Steelworkers of America, Local No. 937, AFL-CIO-CLC,
or any other labor organization.
Dated By
MAGMA COPPER COMPANY
(Employer)
(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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 7011 Federal Building, U.S.
Courthouse P. O. Box 2146, 500 Gold Avenue, S. W.,
Albuquerque, New Mexico 87101, Telephone
766-843-2582.