Peter Kiewit Sons' Co.

National Labor Relations Board - Board Decisions

May 15, 1946

67 N.L.R.B. 1439 (N.L.R.B. 1946)

In the Matter Of PETER KIEwIT SONS' COMPANY and UNITED STEEL-
WORKERS OF AMERICA, LOCAL UNION 2702, C. I. O.
Case No. 18-R-1420-Decided May 1a, 1946
Mr. E. B. Cro f oot, of Omaha, Nebr., for the Company.
Mr. Ramsey Wilson, of Ironwood, Mich., and Mr. George 8. Kuiawa,
of Wakefield, Mich., for the Union.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America,
Local Union 2-t02, C. I. 0., herein called the Union, alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of Peter Kiewit Sons' Company, Wakefield, Michi-
gan, herein called the Company, the National Labor Relations Board
on January 18, 1946, conducted a pre-hearing election pursuant to
Article III, Section 3,1 of the Board's Rules and Regulations, among
employees of the Company in the alleged appropriate unit, to deter-
mine whether or not they desired to be represented by the Union
for the purposes of collective bargaining.
At the close of the election a Tally of Ballots was furnished the
parties. The Tally shows that there were approximately 90 eligible
voters and that 86 of these eligible voters cast valid ballots, of which
73 were for the Union, and 13 were against.
Thereafter, pursuant to Article III, Section 10,2 of the Rules and
Regulations, the Board provided for an appropriate hearing upon due
notice before Clarence A. Meter, Trial Examiner. The hearing was
held at Ironwood, Michigan, on March 12, 1946. The Company and
1 By amendment of November 27, 1945, this Section of the Rules now permits the conduct
of a secret ballot of employees prior to hearing in cases which present no substantial issues.
' As amended November 27, 1945, this Section provides that in instances of pre -hearing
elections , all issues , including issues with respect to the conduct of the election or conduct
affecting the election results and issues raised by challenged ballots, shall be heard at the
subsequent hearing.
67 N. L . R. B., No. 196.
1439
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Peter Kiewit Sons' Company, a Nebraska corporation having its
principal office and place of business in Omaha, Nebraska, is an in-
dependent contractor engaged in building and general construction
work throughout the western part of the United States. This pro-
ceeding is concerned solely with the Company's stripping operations
at the Plymouth Mine, Wakefield, Michigan.
The Plymouth Mine is an open pit iron ore mine owned by the
Plymouth Mining Company, herein called the Mining Company.
From 1935 to 1944, the annual production of iron ore from this mine
approximated 400,000 tons, substantially all of which was shipped
out of the State of Michigan. In 1944, mining operations at the mine
were suspended because of the necessity of removing additional over-
burden from new land. On October 16, 1944, the Mining Company
contracted with the Company for the removal of this overburden, con-
sisting of rock, gravel and earth. The contract provided for the com-
pletion of all work by the Company on or before May 1, 1947, and
for the completion of a specified portion thereof by May 1, 1946. In
order to fulfill the contract, the Company moved a considerable amount
of heavy equipment to the site of its operations in Michigan from
points outside the State. During 1945, the Company purchased re-
pairs, tools and other supplies valued at approximately $120,000, of
which about 90 percent was obtained from sources outside the State.
In addition, during the same period, the Company locally purchased
fuel oil worth about $25,000.
The stripping or removal of overburden from an open pit iron ore
mine is a necessary preliminary to the actual mining of the ore. It
is analogous to the "make ready" state in an industrial or manufac-
turing operation. Some mining companies having the necessary
equipment remove the overburden themselves; the Mining Company
too has done similar work in the past. On the present occasion it
lacked the required heavy equipment. The operations of the Com-
pany therefore appear to be an integral part of mining rather than of
building and construction, as asserted by the Company.
PETER KIEWIT SONS' COMPANY 1441
Accordingly, we find, contrary to the contention of the Company,
that it is engaged in commerce within the meaning of the National
Labor Relations Act.3
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, Local Union 2702, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.
III. TIIE Q17ESTION CONCERNING REPRESENTATION
The Company has refused to recognize the Union as the collective
bargaining representative of its employees in the alleged appropriate
unit.
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
We find, in accord with the agreement of the parties, that all pro-
duction and maintenance employees of the Company in its stripping
operations at the Plymouth Mine, Wakefield, Michigan. excluding
clerical employees, policemen, watchmen, foremen, assistant fore-
men, and all other supervisory employees with authority to hire, pro-
mote, 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 mean-
ing of Section 9 (b) of the Act.4
V. THE DETERMINATION OF REPRESENTATIVES
The results of the election held previous to the hearing show that
the Union has secured a majority of the valid votes cast. Under these
circumstances, we shall certify the Union as the collective bargaining
representative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
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, Sections 9 and 10, of
3 See Matter of Isbell Construction Company, 27 N. L. R. B. 472; Matter of It. S.
McClintock Company, 53 N. L. R. B. 1382 ; Matter of Stone & Webster Engineering Corpo-
ration, 60 N. L. R. B . 124; and Matter of Whstehurst Construction Company, 65 N. L. R. B.
810
4 The election was held among emplo3 ees in this unit.
692148-46-vol. 67-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board Rules and Regulations-Series 3, as
amended,
IT IS HEREBY CERTIFIED that United Steelworkers of America, Local
Union 2702, C. I. 0., has been designated and selected by a majority of
all production and maintenance employees of Peter Kiewit Sons'
Company, in its stripping operations at the Plymouth Mine, Wake-
field, Michigan, excluding clerical employees, policemen, watchmen,
foremen, assistant 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, as their representative for the purposes of collective bargain-
ing and that pursuant to Section 9 (a) of the Act, the said organiza-
tion is the exclusive representative of all such employees for the pur-
poses of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.