The Anaconda Co.

National Labor Relations Board - Board Decisions

Aug 18, 1976

225 N.L.R.B. 953 (N.L.R.B. 1976)

THE ANACONDA COMPANY 953
The Anaconda Company and United Steelworkers of
America and International Union of Operating En-
gineers and Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 222 , Party to the
Contract . Case 27-CA-4530
August 18, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
ty to the Contract or Teamsters Local 222) before there
existed a representative complement of job classifications
and/or employees at Respondent's Carr Fork project be-
cause of the expanding nature of Respondent's operations
at this project.
All parties have been accorded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based upon the entire record,
including the very helpful briefs filed on behalf of the Gen-
eral Counsel, the Respondent, and Teamsters Local 222,
and upon my observations of the demeanor of the witness-
es, I make the following findings of fact and conclusions of
law.
On April 13, 1976, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent and Party to the Contract filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge- This mat-
ter was heard by me at Salt Lake City, Utah, on December
16, 1975,1 The complaint dated October 16 and the amend-
ment to complaint dated November 20 were based on an
original charge filed on May 27 and served on the Anacon-
da Company (herein Respondent) by registered mail on the
same day. The charge was jointly filed by the United Steel-
workers of America and the International Union of Oper-
ating Engineers (herein Charging Parties) alleging that Re-
spondent violated Section 8(a)(1) and (2) of the Act by
recognizing, bargaining with, and signing a collective-bar-
gaining agreement with Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 222 (herein Par-
1 Unless otherwise indicated , all dates appearing hereinafter will be in the
year 1975
1. JURISDICTION
The Respondent is now, and at all times material herein
has been, a corporation duly organized under and existing
by virtue of the laws of the State of Montana. Respondent
maintains an office and place of business at Carr Fork
project, Toole, Utah, where it is engaged in the business of
copper mining. In the course and conduct of its business
operations in the State of Utah, Respondent annually pur-
chases and receives goods and materials valued in excess of
$50,000 directly from points and places outside the State of
Utah. In the course and conduct of its business operations
Respondent annually sells products valued in excess of
$50,000 to customers in States other than the State of Utah.
On the basis of these admitted facts I find Respondent to
be, and at all times material herein to have been, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
11. THE LABOR OGRANIZATIONS INVOLVED
The Charging Party Unions herein, United Steelworkers
of America and International Union of Operating Engi-
neers, as well as the Intervenor and Party to the Contract,
Local 222 of the Teamsters, Chauffeurs, Warehousemen
and Helpers of America, are now, and at all material times
herein have been, labor organizations within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The facts in this case are not in dispute and raise the
following interesting issue: Are there ever circumstances
under which a Respondent Company may accede to a
union's recognitional demands and negotiate an arm's-
length contract covering all production and maintenance
employees in an admittedly expanding and growing bar-
gaining unit at a time when it is only a fraction of its pro-
jected employee complement, without being in violation of
Section 8(a)(1) and (2) of the Act?
B. The Evidence
Respondent began the development of its Carr Fork
project on September 6, 1974. Most of the work now being
225 NLRB No. 95
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performed at the Carr Fork project is the work of employ-
ees of contractors and subcontractors who are involved in
building the facilities that will be utilized by the Respon-
dent in its development and production of the copper
mine. However, there have been a few employees hired
directly by the Respondent.
By letter dated January 10, Teamsters Local 222 request-
ed recognition from Respondent as the exclusive bargain-
ing representative of Respondent's employees then em-
ployed at the Carr Fork project (see G.C. Exh. 2). This
demand for recognition was based on Teamsters Local 222
having obtained authorization cards from a majority of
Respondent's employees
By letter dated February 21 the accounting firm of Cat-
ten, Stagg, Pacheco, and Rock informed Respondent that
its examination of the signatures on the union authoriza-
tion cards revealed that, of 11 eligible employees, 9 had
signed valid authorization cards and 1 authorization card
had a signature not comparable to any signature appearing
on the employees W-4 forms furnished by the Respondent
to the accounting firm (see G.C. Exh. 3).
According to the testimony of Mr. Miller, director of
personnel for the Anaconda Company at the Carr Fork
project, Respondent recognized Teamsters Local 222 as the
exclusive collective-bargaining representative of its em-
ployees and began to negotiate a collective-bargaining
agreement in March. Negotiations continued throughout
April and there is nothing in the evidence to indicate that
the negotiations and the resulting collective-bargaining
agreement which was signed on May 17th was anything
other than a bona fide arm's length agreement between Re-
spondent and Teamsters Local 222 (see G.C. Exh 4a and
4b).
At the time of the hearing there were 16 employees in the
bargaining unit (an increase of 5 over the number em-
ployed at time of demand and recognition), 12 of whom
were having their union dues deducted pursuant to the
terms of the collective-bargaining agreement.2 The negoti-
ated contract covers the period from March 1, 1975, thru
November 30, 1977. The contract indicates there are five
pay grades and within each pay grade there are multiple
job classifications. (The number of classifications within
the various pay grades varies from one to four. However,
within the various classifications there might be one or
more different types of jobs. For example, a Miner 2, in
pay grade 3, could be a production miner, a pipefitter, a
longhole loader, a diamond drill helper, a UG tool crib-
man, a UG crusherman, a shotcreter, or a bolter. (See G.C.
Exh. 4a at pp. 48-51.)
At the time Respondent recognized and bargained with
Teamsters Local 222 there were four employees classified
as utilitymen in pay grade 1 on the payroll. These four men
were all titled laborers (no drymen, janitors, or building
2 Art 11, p 32, reads as follows
The COMPANY agrees to deduct UNION membership dues upon receipt by it
of a written order from any employee in the bargaining unit in the form
acceptable to the COMPANY and according to the terms thereof
it should be noted Utah has a right-to-work statute and there are no clauses
in the contract requiring union membership or the involuntary payment of
union dues (agency shop)
maintenance employees). In pay grade 2 there was one em-
ployee and he was classified as repairman fourth class; in
pay grade 3 there were three employees classified as equip-
ment operator second class, in pay grade 4 none; and in
pay grade 5 there were three employees classified as repair-
man first class (no further designation as to type of work
performed). While these 11 employees occupied job classi-
fications that will survive and be utilized when there is
actual production of copper ore, as of the time of the hear-
ing there was no actual production of ore and none was
projected until mid-1979.
The testimony of Miller and General Counsel's Exhibit 5
reveal the month-to-month projected employment within
the bargaining unit. In March 1976 employment is project-
ed to jump from 16 to 32; by the end of December 1976 the
projected figure is 83 employees; by the end of the current
collective-bargaining contract (G.C. Exh. 4a) term the pro-
jected employment figure is 95; by the yearend of 1978-
183; yearend of 1979-340; yearend of 1980-380; yearend
of 1981-470; yearend of 1982-523; and midyear 1983 ap-
proximately 552, which is projected to be the full employ-
ment complement.
Analysis
The General Counsel argues effectively that an employer
violates Section 8(a)(1) and (2) of the Act when it grants
recognition to a union which represents only a minority of
the employer's employees.3 General Counsel then argues
that by recognizing and signing a contract with Teamsters
Local 222 at a time when a representative complement of
employees and job classifications did not exist, Respon-
dent was thus recognizing and rendering assistance and
support to a minority union thus foreclosing the employees
from a free and untrammled choice of a representative.
(See Scottex Corporation, 200 NLRB 446, 451-452 (1972);
and Donald Leasure Jr., Robert Leasure, Harold Leasure,
d/b/a Leasure Coal Company, 182 NLRB 1011 (1970).
However, in both the cited cases there were elements of
either employer coercion of the employees or assistance to
the union. While these cases are helpful in gleaning insight
to the principles by which the Board is guided in these
matters, neither is dispositive of the factual situation we
have here.
In the instant situation there is not one scintilla of evi-
dence indicating restraint, favoritism, coercion, or interfer-
ence on the part of Respondent. The very heart and life
blood of the Act is Section 7.1 For what period of time
must these early hires be denied their Section 7 rights? The
Union had a majority at the time of demanding recogni-
tion and it still had a majority at the time of the hear-
t International Ladies Garment Workers Union [Bernhard-Altmann Texas
Corp] v NLRB, 366 U S 731 (1961)
This section provides
Sec 7 Employees shall have the right to self-organization, to form.
join, or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8(a)(3)
THE ANACONDA COMPANY
ing-12 months later. There is no way of predicting wheth-
er the projected 97 employees which may be on the payroll
at the end of 1977 will be representative of 50 percent of
the job classifications in the contract, but it is a certainty
that the 97 employees will only represent less than one-fifth
of the projected total complement. Are the employees to be
denied their rights to be represented by a collective-bar-
gaining representative thru 1977? Thru 1978 because the
projected employee complement will be only one-third of
the total projected employee complement? At just what
point the staffing reaches a representative level sufficient for
the protection of a majority of the employees' rights is
something the Board in exercising its infinite wisdom will
ultimately decide.
But the U.S. Supreme Court recognized at an early date 5
that the Board has the responsibility of "applying the Act's
general prohibitory language in the light of the infinite
combinations of events which might be charged as viola-
tive of its terms." The instant case has the additional factor
of the Board's responsibility in protecting a positive right
as spelled out in the Act. In seeking to strike a balance in
the equitable rights of all parties under the particular facts
of this case as of the time the case was heard, I am com-
pelled to the conclusion that Respondent has not violated
Section 8(a)(1) and (2) of the Act and I will recommend
dismissal of the complaint.
In reaching my conclusion that Respondent has not vio-
lated the Act, I have tried to consider foremost the rights
and desires of the employees. While there is a voluntary
dues-deduction authorization clause in the union contract,
there is no other language even remotely suggesting com-
pulsory union membership. Moreover Utah is a right-to-
work state and there is nothing in the contract requiring
dues payments (agency shop). Under the Board's case law 6
if and when there is a substantial increase in personnel
either Charging Party herein, or any other union, may as-
sert its right to represent the employees via a Board-con-
ducted election and the present contract (or any succeed-
ing one) would not act to bar the election, because the
Board has said. "When the question of a substantial in-
crease in personnel is in issue, a contract will bar an elec-
tion only if at least 30 percent of the complement em-
ployed at the time of the hearing had been employed at the
time the contract was executed, and 50 percent of the job
classifications in existence at the time of the hearing were
in existence at the time the contract was executed." I
In an early unfair labor practice case 8 which, inter aka,
involved a consideration of the appropriate unit, the Board
set forth these words of wisdom which provide a threshold
approach in our efforts to arrive at an equitable solution to
the problem herein presented.
There is nothing in the statute which requires that the
unit for bargaining be the only appropriate unit, or the
ultimate unit, or the most appropriate unit; the Act
requires only that the unit be "appropriate." 13 It must
5 Republic Aviation Corporation v N L R B, 324 U S 793 (1945)
6 General Extrusion Company, Inc, General Bronze Alwintite Products
Corp, 121 NLRB 1165 (1958)
7 12l NLRB at 1167
8 Morand Brothers Beverage Co, et at, 91 NLRB 409, 418 (1950)
955
be appropriate to ensure to employees, in each case,
"the fullest freedom in exercising the rights guaran-
teed by this Act." 14
3 Appropriate is a word with a well-defined meaning Webster's
International Dictionary defines it as "Suitable for the purpose and
circumstances, befitting the place or occasion " It carries with it no
overtones of the exclusive or the ultimate or the superlative To con-
vey such thoughts, the words "only" or " ultimate" or "most" must be
conjoined with the word "appropriate" The statute does not conjoin
them See also Garden State Hosiery Co, 74 NLRB 318, 324
14 Section 9(b)
Surely the lesson to be learned from this language is that
the Board has for many years recognized that the bargain-
ing unit (and the bargaining representative) is subject to
change 9 and must be decided in a manner to give the full-
est freedom of choice to the employees in each case.
In an unfair labor practice case 1 where the Respondent
Company had refused to bargain after the Union had won
an election in an expanding unit, the Board in finding a
violation said:
In determining whether the employee complement
is "representative and substantial" so as to warrant
holding an immediate election, the Board has avoided
the use of hard and fast rules.4 The size of the employ-
ee complement at the time of the hearing; the nature
of the industry; the time expected to elapse before a
full, or substantially larger, complement of employees
is on hand; and other variables all militate against a
rigid formula and dictate the Board's approach. The
Board must often balance what are sometimes con-
flicting desiderata, the insurance of maximum employ-
ee participation in the selection of a bargaining agent,
and permitting employees who wish to be represented
as immediate representation as possible. Thus, it
would unduly frustrate existing employees' choice to
delay selection of a bargaining representative for
months or years until the very last employee is on
board.
4 By contrast, the Board has held that an employer-union contract
will bar an election if 30 percent of the complement employed at the
time of the hearing had been employed at the time the contract was
executed, and 50 percent of the job classifications had been in exis-
tence General Extrusion Company, Inc, 121 NLRB 1165 In the elec-
tion area, as noted, a case-by-case approach is utilized, rather than the
General Extrusion, or any other, formula Indeed, elections have been
directed where it is not certain that the formula would have been
satisfied See Endicott Johnson De Puerto Rico, Inc, 172 NLRB 194,
Genera! Cable Corporation, 173 NLRB 251
In a very recent case 11 in which the Board was con-
cerned with numerous alleged violations of Section 8(a)(1),
but which also required a determination of the type of
strike (economic or unfair labor practice) in a factual set-
ting where an election petition had been dismissed because of
an expanding unit problem 12 and the employees elected to
strike rather than remain unrepresented, the Board's lan-
guage is dispositive of this case.
9 The same philosophy is expressed in the "no contract bar" rule set forth
in General Extrusions, supra
l0 Clement-Blythe Companies, A Joint Venture, 182 NLRB 502 (1970)
11 Colonial Haven Nursing Home, Inc, 218 NLRB 1007, 1010 (1975)
12 Also true in the instant case
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the outset, we note that there is nothing unlawful
or contrary to the Act in attempting to obtain volun-
tary recognition from an employer at a time when the
Board under its expanding unit principles will not au-
thorize the use of its resources to conduct an election
because there is evidence that in the near future the
number of employees in the sought-after unit and
number of classifications filled will increase substan-
tially. Although the Board will not recognize such vol-
untary recognition, or any agreement entered into as a
result thereof, to be a bar against petitions filed after
the unit has been filled by a representative comple-
ment,8 that policy was designed to preserve the right of
participation in choosing a representative, or not to be
represented, to as many employees as possible so as
not to "lock in" for the term of contracts up to 3 years
in duration a group of nonconsenting employees dis-
proportionately larger than that which initially made
the choice between representation and no representa-
tion;9 it was never intended, however, to preclude an
employer and employees from entering into an agree-
ment providing for terms and conditions of employ-
ment until such time as a petition has been filed for
the expanded unit.
8 General Extrusion Company, Inc, General Bronze Alwintiie Prod-
ucts Corp, 121 NLRB 1165 (1958)
9See Clement-Blythe Companies, A Joint Venture, 182 NLRB 502
(1970), for a more extensive discussion of the policy considerations
underlying this Board policy
CONCLUSIONS OF LAW
1. Respondent, the Anaconda Company, is, and at all
times material herein has been, an employer within the
meaning of Section 2(2) of the Act and engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. United Steelworkers of America and International
Union of Operating Engineers and Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 222 are la-
bor organizations within the meaning of Section 2(5) of the
Act.
3. Respondent has not violated the Act as alleged in the
complaint.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER13
The complaint is hereby dismissed in its entirety for lack
of merit.
13 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,
conclusions, and recommended Order herein shall, as provided in 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