Shattuck Denn Mining Corp.

National Labor Relations Board - Board Decisions

Jan 20, 1940

19 N.L.R.B. 703 (N.L.R.B. 1940)

-In the Matter of SHATTUCK DENN MINING CORPORATION and BISBEE
MINERS' UNION, LOCAL NUMBER 30; I. U. M. M. S. W., C. I. O.
Case No. R-1664.-Decided January 00, 1940
Mining Industry-Investigation of Representatives : controversy concerning
'representation of employees : refusal of Company to recognize petitioning union
as exclusive agency of employees ; rival organizations-Unit Appropriate for
Collective Bargaining: surface and subsurface employees in production and
maintenance , excluding supervisory, technical, and clerical employees ; dispute
as to - clerical and five employees-Representatives : eligibility to participate in
choice : pay roll immediately preceding Decision and Direction of Election to,
determine-Election Ordered
Mr. Frank A. Mouritsen, for the Board.
Sutter, Gentry do Sutter, by Mr. Burr Sutter and Mr. James T.
Gentry, of Bisbee, Ariz., for the Company.,
Mr. Verne Curtis, of Lowell, Ariz., and Mr. C. C. Crandall, of
Warren, Ariz., for Local 30.
Mr. W. F. Caley and Mr. Alvin Browning, of Bisbee, Ariz., for the
Association.
Mr. Ralph H. Rasmussen, of Douglas, Ariz., for the International
Union.
Mr. Frederick W. Killian, of counsel to the Board.
DECISION
AND
. DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 25, 1939, Ralph H. Rasmussen, representative of Interna-
tional Union of Mine, Mill and Smelter Workers, affiliated with the
C. I. O., filed with the Regional Director for the Twenty-first Region
(Los Angeles, California) a petition alleging that a question affect-
ing commerce had, arisen concerning the representation of employees
of Shattuck Denn Mining Corporation, Bisbee, Arizona, herein called
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela=
ti9ns Act, 49'Stat.449, herein called the Act. - ' - -
19 - N. L. R. B.; iVo. 76.
703
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 20, 1939, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 2, ordered an investigation and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice. On November 30, 1939, the Regional Di-
rector issued a notice of hearing, copies of which were duly served
upon the Company, Bisbee Miners' Union, Local Number 30, I. U. M.
M. S. W., C. I. 0., herein called Local 30, The Employees' Welfare
Association,' herein called the Association, the last two organizations
claiming to represent employees directly affected by the investigation,
and upon Central Labor Council, Los Angeles, . and Los Angeles
Industrial Union Council.
On December 5, 1939, the Company moved for continuance of the
hearing from December 12, 1939, the date specified in the notice of
hearing, until December 19, 1939, on the ground that all the officers and
directors of the Company were absent from the State of Arizona and
that it was therefore impossible to prepare an answer and defense
to the petition and on the further grounds that the petition 2 was not
served on the Company until December 2, 1939, such service not afford-
ing the Company sufficient time in which to prepare its answer and
defense.3 On December 8, 1939, the Regional Director issued and duly
served an order denying the motion for continuance. The order of the
Regional Director is hereby affirmed.
On December 9, 1939, the Company filed with the Regional Director
a motion to dismiss the petition alleging, inter alia, its defective ex-
ecution. On the same day the Company filed with the Regional
Director a verified answer which contained a prayer that the petition
be dismissed.
Pursuant to the notice, a hearing was held December 12, 1939, at
Bisbee, Arizona, before Albert L. Lohm, the Trial Examiner duly
designated by the Board. At the opening of the hearing the Trial
Examiner granted a motion by the Association for leave to intervene.
This ruling is hereby affirmed. The Board and the Company were
represented by counsel and participated in the hearing. Local 30, the
Association, and the International Union were represented by officers
or agents and also participated in the hearing. Full opportunity to
I Appearance was entered as "Employees ' Welfare Association." Service was made on
"Shattuck-Denn Employees Welfare Association" The correct name as used by the
organization is the one stated in the text above.
I A copy of the petition was served with the notice of hearing issued and served by the
Regional Director.
8 This proceeding is an investigation of questions concerning the representation of
employees of the Company. Since no charges are made against the Company , it is not
a defendant . The Board ' s Rules and Regulations do not provide for the filing of an
answer to the petition in a representation proceeding.
SHATTUCK DENN MINING, CORPORATION 705
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties.
At the opening of the hearing, the Trial Examiner reserved decision
on the motion made by the Company on December 9, 1939, to dismiss
the petition. This motion and the prayer to dismiss in the Company's
verified answer are hereby denied. At the opening of the hearing the
Trial Examiner also granted a motion by counsel for the Board re-
questing that the pleadings be amended to correct the names of the,
Company and of Local 30. These rulings are hereby affirmed. Dur-
ing the course of the hearing, the Trial Examiner made rulings on
several motions and objections to the admission of evidence. The
Board has reviewed these rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following':
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Shattuck Denn Mining Corporation is a Delaware corporation with,
its principal offices in New York City and its mining office in Bisbee,
Arizona. It is engaged in mining copper and owns and operates the
Shattuck and the Denn mines at Bisbee, Arizona. At the time of the
hearing the Shattuck mine was closed for repairs.
The Company operates under contracts with various smelter plants
to which it ships the mined ore. These plants purchased the gold and
silver extracted from the ore and the refined copper is returned to the
Company. During 1938 the Company shipped to smelters outside
Arizona approximately.55 per cent of the gold, 51 per cent of the silver,
and 100 per cent of the copper mined by the Company. During the
first half of 1939 all the gold, silver, and copper were shipped to smelter
plants outside Arizona. During 1938 the Company produced 8,091,050
pounds of copper valued at $807,319.90 and during the first half of 193*
it produced 6,630,280 pounds of copper valued at $504,577.41.
During the year 1938 the value of the products and equipment pur
chased by the Company, from all sources, for its mining operations
totaled approximately $150,912.75. The value of the products and
equipment purchased or shipped from sources outside Arizona was,
$54,832.63. During the first half of 1939, the value of the products
and equipment purchased by the Company for its mining operations
totaled approximately $142,558.64. The value of the products and
equipment purchased or shipped from sources outside Arizona was
$53,082.73. The chief items purchased by the Company are explosives,
lumber, and timber, and machinery. The Company also purchases oils,
greases, iron and steel, tools, and pipes and fittings. The explosives are
. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchased in Arizona. Caps and fuses, representing a small percentage
of the cost of the explosives, originate in California. The lumber and
timber is purchased in California and originates in the Pacific North.
west. Fuel oil is purchased in California and shipped to the Company
:from Texas. The other items are purchased mainly in Arizona and
are shipped to the Company from various places in the United States.
At the time of the hearing, the Company employed approximately
269 employees.
II. THE ORGANIZATIONS INVOLVED
Bisbee Miners' Union, Local Number 30, is a labor organization
affiliated with International Union of Miiie,.Mill and Smelter Workers
which, in turn, is affiliated with the Congress of Industrial Organiza-
tions. It admits to membership production and maintenance em-
ployees of the Company at Bisbee, Arizona, excluding supervisory,
technical, and clerical employees.
The Employees' Welfare Association is an unaffiliated labor organi-
zation admitting to its membership any employee of the Company at
Bisbee except supervisory and technical employees.
III. THE QUESTION CONCERNING REPRESENTATION
At a meeting with representatives of the Company which took place.
early in June 1939, Local 30, claiming to represent a majority of the
Company's employees, presented a proposed contract' to the Com-
pany, at the same time requesting the Company to recognize it as the
exclusive agent of its employees for purposes of collective bargaining.
Local 30 requested the Company to consider the contract and to make
counter proposals. Thereafter, meetings were held on June 12, June
24, and June ` 26, between representatives of the Company and of
Local 30 at which certain terms of the proposed contract were dis-
,cussed. The minutes of the last two meetings record that the Com-
pany was opposed, throughout, to the provision contained in the pro-
posed contract providing for recognition of Local 30 as the "exclusive"
bargaining agent of its employees for purposes of collective bargaining.
At the June 24 meeting, after much discussion, the Company's vice
president, S. S. Shattuck, requested the representatives of Local. 30
to submit a new contract wherein the Company's right to bargain with
any individual employee or group of employees other than members
of Local 30 should be reserved. At this meeting, Shattuck stated that
if this revision were made, the Company would be willing seriously to
consider the other provisions of the proposed contract; he did not,
however, commit the Company to any action thereon, saying that the
4 The proposed contract was not introduced into evidence.
SHATTUCK DENN MINING CORPORATION 707
Company would certainly give Local 30 its answer within 6 months
and perhaps within 3 months. At this meeting and during subsequent
negotiations , the only provision of the proposed contract under dis-
cussion was that with respect to recognition of Local 30 as the "exclu-
sive" representative of the Company's employees.
At the meeting of June 26 the representatives of Local 30, in accord-
ance with Shattuck's suggestion , submitted a revised contract to the
Company eliminating the word "exclusive." Wilcox, the Company's
mine superintendent , possessing no authority to bind the Company,
offered to send the proposed contract , as revised , to the Company's
officers, promising an answer within a reasonable length of time.
Thereafter, on September 27, 1939, a meeting was held at the mine
office at Bisbee, with representatives of the Company, of Local 30, and
of the International Union present. These representatives of the
Company had no authority to bind the Company. The purpose of this
meeting was to reopen negotiations with the Company and, if possible,
to avoid the necessity of a hearing on the petition filed in this proceed-
ing. It was developed during this meeting that Local 30, having
received no reply from the Company as promised by Wilcox at the
June 26 meeting and interpreting the Company 's silence as terminating
negotiations , filed its petition on July 25 and that the Company inter-
preted the filing of the petition by Local 30 as an intention, on its
part, to break off negotiations . The Regional Director, upon the re-
quest of the International Union's representative, postponed further
action in the proceeding, pending the outcome of this meeting.
At the meeting of September 27 the representatives of Local 30,
after much discussion and after a serious attempt to clarify the issues
involved , expressed their willingness to resume negotiations , to discuss
any proposals which arose during prior negotiation , to. consider any
counter proposals to be made by the Company, and to find some basis
of agreement ' concerning the issue of "exclusive" representation for
Local 30. It further appears from the minutes of this meeting that
the board of directors of the Company was scheduled to meet in
Chicago on September 28, 1939 , and that Wilcox, the Company's mine
superintendent, agreed to report to the directors by wire the outcome
of the meeting between the representatives of the Company and of
Local 30 and to ask for an answer within 2 days, stating that he did
not know how long the directors would be in session. - Doubt was ex-
pressed whether the directors would receive his report in Chicago
during- •their meeting. The representatives -of- Local 30 expressed, a
desire that someone permanently established at the mine office be given
authority to -act for the Company during negotiations in view of the
long absences of the Company's officers from Bisbee. The record does
not disclose'what action, if any, was. taken by the Company's directors
708 DECISIONS . OF NATIONAL,-LABOR RELATIONS BOARD
with reference to the proposals that Wilcox agreed to transmit to
them on September 27, and this proceeding reached hearing on Decem-
ber 12. No further negotiations, were held between the Company
and Local 30.
In its "answer" filed with the Regional Director, the Company
alleged that it was never furnished with any evidence establishing
Local 30's contention that a majority of the Company's employees
designated or selected it to represent them. The record discloses
nothing to the contrary.
The Association was organized on June 12, 1939. About June 23 its
representatives met with Wilcox, the Company's mine superintendent.
They presented to Wilcox a written protest, addressed to him and
signed by the president, the secretary, and three other members of the
Association, in which the Association formally protested any recog-
nition of Local 30 by the Company without an election by secret ballot.
No other conversation except that involving the presentation of the
protest took place at this time between the representatives of the Asso-
ciation and Wilcox and, thereafter, no meetings took place between
the Association or its representatives and the Company. At the time
of the hearing the Association claimed that it had a membership among
the Company's employees of 39.
We find that a question has. arisen concerning the representation
of the employees of the Company.
IV. THE EFFECT OF, THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection', with the operations of the Company
described in Section I above,,has a close, intimate, and substantial
relation to trade, traffic, and,commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
Local 30 contends that the surface and subsurface workers of the
Company engaged in production and maintenance at Bisbee, exclud-
ing supervisory, technical, and .clerical employees, constitute an ap-
propriate bargaining unit.5 This unit is acceptable to the Association
The record shows that at the time of the hearing the Company employed nine super-
visory, three technical , and six clerical employees. The supervisory employees consist
of the plant superintendent , the master mechanic , foremen, and shift bosses . The tech-
nical employees include the assayer, the chemist, and the engineer . The clerical employees
consist of those employees who work' in the supply department and in the mine office.
The technical and clerical employees are paid a monthly salary ; the production and
maintenance employees are paid on an hourly basis. `
.
SHATTUCK DENN MINING CORPORATION 709
except that it admits to membership the Company's clerical employees.
The Company did not comment on this issue. Under the circum-
stances we find that the clerical employees should be excluded from
the unit.6
We find that surface and subsurface workers of the Company en-
gaged in production and maintenance at Bisbee, Arizona, excluding
supervisory, clerical, and technical employees, constitute a unit ap-
propriate for the purposes of collective bargaining, and that said
unit will insure to the employees of the Company the full benefit of
their right to self-organization and to collective bargaining and other-
wise effectuate the policies of the Act.
There is a dispute as to whether five particular employees are
in the appropriate unit. Alvin Browning is a machinist who on
occasion acts as a foreman or jigger. The Company does not classify
him as a supervisory employee. He would not be eligible for mem-
bership in Local 30 if he performs supervisory duties frequently.
There is nothing in the record to show that he performs such duties
frequently. He is eligible for membership in the Association. Under
the circumstances, we find that Browning is in the unit.
W: F. Caley is a swamper who, nevertheless, assists in the warehouse
with supplies, runs errands, and sometimes posts lists and carries time
cards from the office to the warehouse. Local 30 contends that he is
a clerical worker, and does not admit him to membership. The As-
sociation admits him to membership. The record does not establish
that he is a clerical worker. Under-the circumstances, we find that
Caley is in the unit.
Henry Gerdes is first machinist, who sometimes performs the
duties of the master mechanic, a supervisory employee. Local 30
does not admit him to membership. The Company does not classify
him as a supervisory employee and there is nothing in the record to
show how frequently he performs such duties. He is eligible. for
membership in the Association. Under the circumstances, we find
that Gerdes is in the unit.
P. A. Durret and P. J. Eads perform the duties of handyman in
the assay department and of engineer's helper, respectively. They are
ineligible for membership in Local 30 but are accepted by the Asso-
ciation. These employees are not listed by the Company as technical
employees, nor are they included in any classification of surface or
underground workers. Their time is completely at the disposal of the
technical employees whom they assist. We find that they are not
in the unit.
6 See Matter of Southern California Gas Company and Utility Workers Organizing
Committee, Local No. 132, 10 N. L. R. B. 1123, 1138.
- 283030-41-vol. 19-46
710 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
The financial secretary of Local 30 testified that it represented, at
the time of the hearing, 161 active members and had 184 authorization
cards signed by the Company's employees.7 Neither these cards nor
any other documentary evidence were offered into evidence at the
hearing. The secretary and president of the Association testified that
it represented 39 of the Company's employees. The Association desires
that an election by secret ballot be held to determine the question con-
cerning representation. We find that the question concerning repre-
sentation which has arisen can best be resolved by the holding of an
election by secret ballot. We shall accordingly direct that an election
by secret ballot be held.
Near the close of the hearing, reference was made to current items
published in a newspaper stating that the Company intended shortly
to hire a number of new employees. In light of these items, Local 30
expressed its preference for the Company's pay roll of June or July
1939, when negotiations with the Company were still in progress, as
a basis for determining eligibility of employees to vote, but was willing
to accept the pay roll of December 2, 1939, which was stipulated by
all parties to be accurate, if the election "is ordered within a reasonable
length of time, approximately six weeks." The Association was satis-
fied with the pay roll of December 2; and the Company stated its
preference for the pay roll as near as possible to the election date.
We shall make provision for determining eligibility to participate,
in the election which will most closely reflect the employment situa-
tion existing among the Company's employees at the time of the
election. Accordingly, we shall direct that those eligible to vote in
the election will be those persons in the appropriate unit who were
employed during the pay-roll period immediately preceding the date
of this Decision and Direction of Election, including employees who
did not work during such pay-roll period because they were ill or
on vacation, and employees who were then or have since been tem-
porarily laid off, but excluding those who have since quit or been
discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Shattuck Denn Mining Corporation, Bisbee,
7 The difference of 23 members arises because some of the 23 were new employees who
signed authorization cards but had not paid their dues and because some of the 23 left
the Company 's employ. On the 15th of every month , Local 30 makes a new list of its
members and their status.
SHATTUCK DENN MINING CORPORATION 711
Arizona, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. The surface and subsurface workers of the Company engaged
in production and maintenance at Bisbee, Arizona, excluding super-
visory, technical, and clerical employees, constitute a unit appropriate
for the purpose of collective bargaining, within the meaning of Section
9 (b) of the National Labor Relations Act.
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, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Shattuck Denn Mining Corporation, Bisbee, Arizona, an elec-
tion by secret ballot shall be conducted as early as possible but not
later than thirty (30) days from the date of this Direction, under
the direction and supervision of the Regional Director for the Twenty-
first Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Section 9, 'of said Rules
and Regulations, among the surface and subsurface workers of the
Company engaged in production and maintenance at Bisbee, Arizona,
who were employed during the pay-roll period immediately preceding
the date of this Decision and Direction of Election, including em-
ployees who did not work during such pay-roll period because they
were ill or on vacation, and employees who were then or have since
been temporarily laid off but excluding supervisory employees, tech-
nical employees, and clerical employees, and employees who have since
quit or'been discharged for cause, to determine whether they desire
to be represented by Bisbee Miners' Union, Local Number 30,
I. U. M. M. S. W., C. I. 0., or by The Employees' Welfare Association,
for purposes of collective bargaining, or by neither.