Utah Copper Co.

National Labor Relations Board - Board DecisionsMay 24, 1940

23 N.L.R.B. 1160 (N.L.R.B. 1940)

In the Matter of UTAH COPPER COMPANY AND KENNECOTT COPPER CORPORATION and BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN Case No. R-1791.-Decided May 24, 1940 Copper Mining and Dialling Industry-Investigation of Representatives: con- troversy concerning representation of employees : controversy concerning ap- propriate unit: employer's refusal to grant recognition of union; majority status disputed by employer-Cnit Appropriate for Collective Bargaining: motormen , brakemen or motormen 's helpers, hostlers , and hostler helpers- Electzon Oideied: eligibility to vote determined as of pay roll last preceding date of Direction of Election Mr. Paul S. Kuelthau, for the Board. Dickson, Ellis, Parsons ct; McCrea, by Mr. C. C. Parsons and Mr. W. M. McCrea, of Salt Lake City, Utah, for the Company. Mr. A. J. Chipman, of Denver, Colo., and Mulholland, Robie cfe McEwen, by Mr. C. M. !Mulholland, of Toledo, Ohio, for the Broth- erhood. Mr. John K. Odisho, of counsel to the Board. DECISION AN D DIRECTION OF ELECTION STATEMENT OF THE CASE On January 25, 1940, Brotherhood of Locomotive Firemen and Enginemen, herein called the Brotherhood, filed with the Regional Director for the Twenty-second Region (Denver, Colorado) a peti- tion alleging that a question affecting commerce had arisen concern- ing the representation of employees of Utah Copper Company and Kennecott Copper Corporation, herein respectively called Utah Cop- per and Kennecott, and collectively called the Company, at the Bing- ham Canyon Mine in Salt Lake County, Utah, and requesting an in- vestigation and certification of representatives pursuant to Section 9. (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 29, 1940, the National Labor Relations Board, herein calledÂ° the Board, acting pursuant to Section 9 -(c) of the-Act and Article III, Section 3, of National Labor- Relations Board Rules. 23 N. L. R. B., No. 121. 1160 UTAH COPPER COMPANY 1161 and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On March 11, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the Broth- erhood, and General Employees Committee, a labor organization claiming to represent employees directly affected by the investiga- tion. Pursuant to the notice, a hearing was held on April 8, 1940, at Salt Lake City, Utah, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel and the Brotherhood by its representative; all participated in the hearing. General Employees Committee, however, did not appear. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hear- ing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the close of the hearing the Company and the Brotherhood filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kenuecott Copper Corporation, a New York Corporation with its principal office in New York City, is engaged with its subsidiaries in the copper-mining industry in the United States, Alaska, and Chile; in the copper-fabricating industry in the United States; and in inci- dental transportation operations. With its subsidiaries it ranks as the second largest copper-mining enterprise in the world and the largest in the United States. Among the properties owned by Kennecott are a large open-pit copper mine, together with bleaching and precipitating plants and other properties, located in Bingham Canyon, Salt Lake County, Utah, and two mills, known as Arthur and Magna mills, also located in Salt Lake County, approximately 18 miles from the mine. This proceeding is concerned wholly with certain employees at the Bingham Canyon mine. At the two mills over 99 per cent of the ores from the mine are reduced to copper concentrates preparatory to smelting and refining. Substantial quantities of molybdenite concentrates, all of which are shipped and used outside the State of Utah, are also produced at the mills as a byproduct. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operation and maintenance of the Arthur and Magna mills, and the mine and other properties in Bingham County, have been dele- gated by Kennecott to its wholly owned and wholly controlled sub- sidiary, Utah Copper Company, a Delaware corporation with its principal place of business in Salt Lake City, Utah. Utah Copper owns no assets of any kind, and serves no function other than acting as Kennecott's agent in operating and maintaining the described properties, which it does without profit to itself. All copper concentrates produced at the mills, and the small amounts of copper concentrates produced at the mine, are delivered by Utah Copper to a smelter at Garfield, Utah, about 2 miles from the mills, which is operated by American Smelting and Refining Company. These concentrates and precipitates lose their separate identities during the ensuing smelting operation, through commin- gling with concentrates and precipitates from other sources. Blister copper, the resultant of the smelting operation, is shipped from the smelter in the name of Kennecott, in an amount equivalent to the metal content of all concentrates and precipitates delivered' to the smelter by Utah Copper, to three refineries operated by the American Smelting and Refining Company in the States of Maryland, New Jersey, and Washington. At the refineries the copper and pre- cious metals of which the blister copper is composed are separated, purified, and prepared for the consumer. During this refining proc- ess the identity of the blister copper shipped from the Garfield smelter in the name of Kennecott is lost through commingling with blister copper from other sources. Kennecott retains title to the ores-from the Bingham Canyon. mine, to the concentrates and precipitates of the ores, to the blister copper produced from the concentrates and precipitates, and to the copper, gold, silver, and other metals refined from the blister copper, at all times during their mining, concentrating or precipitating, smelting, and refining, and during their transportation between these opera- tions. The refined products owned by Kennecott, equivalent in kind and quantity to the metal content of the concentrates and precipi- tates delivered to the Garfield smelter from the Arthur and Magna mills and the Bingham Canyon mine, are sold by Kennecott through its wholly owned subsidiary, Kennecott Sales Corporation. During the year 1939 approximately 511,487 tons of copper con- centrates produced at the Arthur and Magna mills were delivered to the Garfield smelter. In the same period 5,118 tons of copper precipitates were delivered to the Garfield smelter from the Bingham Canyon mine. During 1939 167,716 tons of blister copper, attribut- able to the Bingham Canyon mine, were shipped from the smelter to refineries outside Utah. During 1939 production of molybdenite UTAH COPPER COMPANY 1163 concentrates at the Arthur and Magna mills amounted to about 5,157 tons, all of which was sold and shipped out of the State of Utah. Utah Copper employs approximately 1,930 persons at the Bingham Canyon mine and about 2,000 persons at the Arthur and Magna mills. II. THE LABOR ORGANIZATION INVOLVED Brotherhood of Locomotive Firemen and Enginemen is a labor organization admitting to membership motormen, brakemen, also known as motormen's helpers, hostlers, and hostler helpers employed by the Company in the haulage department of the Bingham Canyon mine. 111. THE QUESTION CONCERNING REPRESENTATION In March and April 1939 the Brotherhood requested Utah Copper to bargain with it as the representative of the motormen, brakemen or motormen's helpers, hostlers, and hostler helpers. Utah Copper took the position that the above employees did not constitute an appropriate bargaining unit and refused to bargain with the Broth- erhood on that ground. We find that a question has arisen concerning representation of 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 de- scribed 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 In its petition the Brotherhood alleges that the motormen, also known as locomotive engineers, brakemen, also known as motormen's helpers,, hostlers, and hostler helpers employed by Utah Copper on electric-train operation or on equipment used in such operation at the Bingham Canyon mine, numbering approximately 200 employees, constitute a unit appropriate for the purposes of collective bargain- ing. The Company contends that the unit should include all the em- ployees at said mine, numbering approximately 1,930, and that a separate unit of the motormen, brakemen, hostlers, and hostler help, ers is inappropriate. In substance, the argument of the Company in favor of the more comprehensive unit is that all the operations 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the Bingham Canyon mine are integrated and that, accordingly, it would be not practicable to segregate any one group or department of employees into a separate unit. The motormen, brakemen or motormen's helpers, hostlers, and hostler helpers were formerly represented as a separate department in the General Employees Committee, a representation plan for all the employees at the Bingham Canyon mine. In February 1939 said employees withdrew from participation in said representation plan. As we have stated, the General Employees Committee, although served with notice of hearing in the present proceeding, failed to enter an appearance. The Bingham Canyon mine is a surface or open-pit mine with various terraces or levels. Standard gauge railroad tracks have been constructed on each level, and these tracks by means of switch- backs extend from one level to another and out of the mine to as- sembly yards and waste dumps. The ore body is covered with waste or "overburden" which must be drilled and blasted and removed to provide access to the ore. The ore itself is subjected to a similar process. The ore and waste is picked up by electric shovels and loaded into railroad cars. Electric locomotives then haul the loaded ore and waste cars to the assembly yards 1 and waste dumps, respec- tively, and return with empty cars for reloading. The employees whom the Brotherhood claims to represent are en- gaged directly or indirectly in the haulage operations. They are classified by Utah Copper as "Haulage Department Men." The motormen operate the electric locomotives. The motormen's helpers or brakemen couple and uncouple cars, "spot" cars at the electric shovels, give signals to motormen, give signals for air testing, and ride on the end of the train. The hostlers operate electric locomo- tives in and around the main shop and yard in switching service, attend to the sanding of locomotives, drive locomotives in the shop for repairs, and perform other incidental duties. The hostler help- ers couple and uncouple cars, sand the locomotives, and in general assist the hostler. The record shows that the skill required in the performance of the work of the haulage employees differs in degree and kind from that required in the other operations of the mine. Likewise the rates of pay received by these employees differ from those paid employees in other departments. Upon the entire record we are of the opinion that the employees of the haulage department constitute an appropriate bargaining unit. I The loaded ore cars are taken from the assembly yards by the Bingham and Garfield Railroad , a wholly owned subsidiary of Kennecott , to the Bingham collection yard, where they are made up into trains of about 50 cars and then hauled to the mills, a distance of approximately 18 miles. UTAH COPPER COMPANY 1165 The Company contends that the Brotherhood is not authorized by its constitution to accept brakemen as members. The Company does not claim that this prevents the Brotherhood from representing the brakemen, but argues that the rules of the Brotherhood governing eligibility for membership bear on the appropriateness of the unit. The Brotherhood contends that the brakemen are actually motor- men's helpers, that they are eligible to membership in the Brother- hood, and that a majority are dues-paying members. It is undis- puted that a number of the brakemen or motormen's helpers have in fact designated the Brotherhood as their bargaining agent. We deem it unnecessary to interpret the constitution of the Brotherhood. We find that the motormen, brakemen or motormen's helpers, hos- tlers, and hostler helpers employed by the Company at the Bingham Canyon mine constitute a unit appropriate for the purposes of col- lective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the Brotherhood claimed to represent a majority of the employees within the unit we have found to be appropriate and introduced evidence in support of its claim. The Company, however, did not concede the Brotherhood's claim. We shall order an election by secret ballot to resolve the question concerning repre- sentation which has arisen. We shall direct that all employees in the appropriate unit who were on the Company's pay roll for the period last preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. 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 Utah Copper Company and Kennecott Copper Corporation, Salt Lake City, Utah, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The motormen, brakemen or motormen's helpers, hostlers, and hostler helpers of the Company at the Bingham Canyon mine con- 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8 of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Utah Copper Company and Kennecott Copper Corporation, Salt Lake City, Utah, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Twenty-second 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 motormen, brakemen or motormen's helpers, hostlers, and hostler helpers employed by the Company at the Bingham Canyon mine during the pay-roll period last preceding the date of this Direction of Election, including employees who did not work during such pay- roll period because they were ill or on vacation, or who were then or have since been temporarily laid off, but excluding employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Brotherhood of Locomotive Firemen and Enginemen, for the purposes of collective bargaining.