United States Vanadium Corp.

National Labor Relations Board - Board Decisions

May 28, 1946

68 N.L.R.B. 389 (N.L.R.B. 1946)

In the Matter Of UNITED STATES VANADIUM CORPORATION, PINE CREEK
UNIT and INTERNATIONAL UNION OF MINE, MILL & SMELTER
WORKERS, CIO
Case No. 20-R-1580.Decided May 28, 1946
Mr. Robert M. Mahoney, of Grand Junction, Colo., for the Company.
Messrs. Gladstein, Andersen, Resner, Sawyer, & Edises, by Mr. Ber-
tram Edises, of Oakland, Calif., and Mr. William Gately, of San Fran-
cisco, Calif., for the CIO.
Mr. J. R. Daniels, of Bishop, Calif., for the IWW.
Mr. Herbert J. Nester, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by International Union of Mine, Mill &
Smelter Workers, CIO, herein called the CIO, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of United States Vanadium Corporation, Pine Creek Unit,
Bishop, California, herein called the Company, the National Labor Re-
lations Board provided for an appropriate hearing upon due notice before
David Aaron, Trial Examiner. The hearing was held at Bishop, Cali-
fornia, on March 19, 1946. The Company, the CIO, and Metal Mine
Workers Industrial Union, No. 210, of the Industrial Workers of the
World, herein called the IWW, appeared and participated.' All parties
were afforded an opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. During the
course of the hearing, the IWW moved to dismiss the petition on the
grounds that existing bargaining agreements between the Company and
the IWW, covering certain employees at the Company's mine, and be-
' Although International Union of Operating Engineers , Local No . 12, A. F. of L., herein
called the AFL, was duly served with a copy of the Notice of Hearing, it did not enter
an appearance at the hearing and did not participate in the proceedings herein
68 N. L. R. B., No. 46.
389
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween the Company and the AFL covering certain employees at the
mill, constitute a bar to a determination of representatives. The Trial
Examiner referred the motion to the Board for ruling. Subsequent to
the hearing, the Company also moved to dismiss on similar grounds.
For the reasons hereinafter set forth the motions of both the IWW and
the Company are denied, The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded opportunity to file biefs with the Board.
Upon the entire record in the case , the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
United States Vanadium Corporation, a wholly owned subsidiary of
Union Carbide and Carbon Corporation, is a Delaware corporation, hav-
ing its principal office in New York City, and is engaged in the develop-
ment of natural resources and production of various types of metals for
industrial use. At its Pine Creek plant located at Bishop, California, the
only plant involved in this proceeding, the Company operates a mine and
smeltering and refining mill for the production of tungsten, molybdenum,
and copper concentrates. During the 6-month period immediately pre-
ceding the hearing, the Company received at its Pine Creek plant ma-
terials valued in excess of $100,000, more than 50 percent of which orig-
inated at points outside the State of California. During the same period,
the Company produced products valued in excess of $100,000, more
than 75 percent of which was shipped to points outside of the State of
California.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill & Smelter Workers is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
Metal Mine Workers Industrial Union No. 210, is a labor organiza-
tion affiliated with the Industrial Workers of the World, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Under date of October 23, 1945, the CIO requested recognition
from the Company as exclusive bargaining representative of certain
employees in both the. Company 's mine and the smeltering mill. The
UNITED STATES VANADIUM CORPORATION 391
Company refused to accord recognition to the CIO until it had been
certified by the Board in an appropriate unit. On October 24, 1945, the
CIO filed its petition herein.
On June 1, 1943, the Company and IWW entered into a collec-
tive bargaining contract covering certain employees in the mine, which
provided, in part , as follows :
This agreement shall become effective immediately upon the au-
thorized signing thereof by the parties and shall continue in effect
for six (6) months and shall automatically continue thereafter un-
less either party notifies the other in writing not less than sixty
(60) days prior to the expiration date that a discontinuance or
modification is desired.
The Company and IWW contend that this contract has renewed it-
self semi-annually, pursuant to the above automatic renewal clause, and
therefore constitutes a bar to the present proceedings. Assuming, as the
Company and the IWW contend, that the contract was automatically
renewed on December 1, 1945, for another 6-months' period,2 it will
again be subject to automatic renewal on June 1, 1946 ( in the absence
of proper notice given prior to April 1, 1946). Inasmuch as the peti-
tion herein was filed prior to the automatic renewal date of April 1,
1946, we find that the contract constitutes no bar to a present deter-
mination of representatives.
Under date of October 9, 1943, the Company and the AFL entered
into a collective bargaining contract covering certain employees of the
Company's mill. The contract was for a period of 1 year, and provided
that it would automatically continue thereafter for annual periods, un-
less notice was given in writing not less than sixty (60) days prior to
the annual expiration date that either party desired to terminate or
modify the contract. On October 22, 1945, after the contract had been
automatically renewed pursuant to its terms, and after it had been in
effect for approximately 2 weeks of its new term, the Company re-
quested the AFL to enter into negotiations concerning the modifi-
cation of certain wage rates established by the original contract. As has
been stated, the CIO filed its petition 2 days later. Pursuant to
the Company's request, the Company and the AFL met in a series
of bargaining negotiations beginning October 29, 1945, and as a result
thereof, executed a collateral agreement dated November 16, 1945,
whereby wage rates for 10 job classifications were changed, and 4 new
job classifications and wage rates were established.3
2 Inasmuch as the petition of the C. I. O. was filed subsequent to October 1, 1945, the
automatic renewal date of the contract, it did not operate to remove as a bar, the renewed
contract of December 1, 1945 See Matter of Mill B, Inc., et al, 40 N L. R. B. 346.
3 The contract as originally executed provided for 40 job classifications and wage rates
therefor.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company and the IWW contend that the foregoing contract,
as automatically renewed, constitutes a bar to the instant proceeding.4
The CIO however, contends that the contract was opened by virtue
of the subsequent modification thereof, and therefore, cannot operate
as a bar.
The Board has held that where a contract provides for modifications
during its term, the negotiation or effectuation of such modification by
the parties, without attempting to renew or extend the term of the
contract, does not operate to open the contract so as to permit the rep-
resentation claim of a rival union to raise a question concerning rep-
resentation.5 Conversely, however, where the parties during the term of
the contract attempt to effect modifications which are not provided for
therein, or are beyond the scope of the modification clause contained
in the contract,e the Board will deem the contract to be opened, thus
making timely a rival representation claim otherwise prematurely pre-
sented in advance of the normal expiration date of the contract. In the
instant case, the contract makes no provision for modification during
its term ; in fact, it expressly provides that "the Company agrees to pay
and the Union agrees to accept the wages which shall remain in effect
during the life of the contract." We find, therefore, that the CIO's
claim of interest and the filing of the petition herein are timely, and
that the contract between the Company and the AFL constitutes no
bar to a present determination of representatives.
A statement of a Board agent, introduced into evidence at the hearing,
indicates that the CIO represents a substantial number of employees
in the units hereinafter found to be appropriate.7
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, the following
units to be appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
* As previously indicated, the A. F. L. did not participate in the proceedings and conse-
quently makes no claim respecting its contract with the Company as a bar to a determination
of representatives.
See Matter of Green Bay Drop Forge Company, 57 N. L. R. B. 1417; Matter of Story and
Clark Piano Company, 61 N. L. R. B. 614; also cf. Matter of Marvel-Schebler Division, Borg
Warner Corporation, 56 N. L. R. B. 105, Matter of The Ohio River Company (Illinois River
Division), 66 N. L. R B. 128.
See Matter of Olin Industries, Inc (Western Cartridge Division, East Alton, Illinois),
67 N. L. R. B. 1043.
7 The Field Examiner reported that the CIO submitted 115 application cards bearing the
names of 45 persons appearing on the Company pay roll of November 3, 1945. During the hear-
ing the CIO submitted 27 additional cards, all of which bore names of persons appearing on
the Company's pay roll.
There are approximately 115 employees in the appropriate units.
UNITED STATES VANADIUM CORPORATION 393
1. All employees of the Company at its Pine Creek plant in the upper
and lower mills and at the lower crusher ; including operators , welders,
welders' helpers, repairmen and oilers of the tram; welders, mechanics,
machinists, pipe fitters and oilers at the mill ; heavy duty operators and
mechanics , repairmen , and oilers on heavy duty equipment ; and except-
ing all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action.
2. All remaining employees of the Company at its Pine Creek plant,
excluding executives , technical workers, clerical workers , foremen and
shift bosses, guards, caretakers, and truck drivers and helpers in inter-
state commerce.8
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representatives which
has arisen be resolved by elections by secret ballot among the employees in
the units found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the Direction of Elec-
tions herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with United States Vanadium
Corporation, Pine Creek Unit, of Bishop, California, elections 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 su-
pervision of the Regional Director for the Twentieth Region, acting in
this matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Sections 10 and 11, of said Rules and Regulations,
among employees in the units found, appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
s The foregoing units are substantially the same as those found to be appropriate in Cases
Nos. R-3619 and R-3639, 43 N. L. R. B. 418.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elections, to determine whether or not the employees in Unit I, of Sec-
tion IV, above, desire to be represented by International Union of Mine,
Mill & Smelter Workers, CIO," for the purposes of collective bar-
gaining , and to determine whether or not the employees of Unit II,
of Section IV, above, desire to be represented by International Union of
Mine, Mill & Smelter Workers, CIO, or by Metal Mine Workers
Industrial Union No. 210, IWW, for the purposes of collective bar-
gaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.
We shall accord the International Union of Operating Engineers, Local No 12, AFL,
a place on the ballot in the election for Unit I, which comprises those employees covered by
its recent contract , provided that it notifies the Regional Director of the Twentieth Region
within five (5) days of the date of this Decision and Directors of Elections, indicating its
desire to participate in such election.