Kaiser Co., Inc.

National Labor Relations Board - Board Decisions

May 12, 1947

73 N.L.R.B. 931 (N.L.R.B. 1947)

In the Matter of KAISER COMPANY , INC. (IRON AND STEEL DIVISION),
EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, PETI-
TIONER
Case No. 21-R-3510.-Decided May 10, 1947
Messrs. Walter R. Farrell and Jack W. Walling, of Fontana, Calif.,
for the Employer.
Mr. E. R. White, of Los Angeles, Calif., for the Petitioner.
Mr. Elmer J. Doran , of San Bernardino , Calif., for the Intervenor.
Entenea and Gramer, by Mrs. S. E. Gramer, of Beverly Hills, Calif.,
for the Operating Engineers.
Miss Illuriel J. Levor, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at San
Bernardino , California , on November 12, 13, and 14 , 1946, before
Charles N. Ryan, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Kaiser Company, Inc. (Iron and Steel Division ), a Nevada cor-
poration, is engaged in the operation of a steel.mill at Fontana, Cali-
fornia, a coal mine in the State of Utah, and an iron mine, herein
called the Vulcan Mine, located at Kelso, California , with which this
proceeding is alone concerned.
The Vulcan Mine each day produces iron ore valued at from 2
to 3 thousand dollars, all of which is transported %o the Employer's
Fontana steel mill, where it is processed into iron and various steel
products. The iron ore derived from the Vulcan mine amounts to
approximately 60 percent of the tonnage used by the Employer in its
manufacturing processes . About 33 percent of the products of the
73 N L . R 13, No . 181 931
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fontana steel mill, which amount annually to over several million
dollars in value, is sold in either interstate or foreign commerce.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization, claiming to
represent employees of the Employer.
Building & Construction Trades Council of San Bernardino, Cali-
fornia, herein called the Intervenor, is a labor organization composed
of locals of various craft unions affiliated with the American Federa-
tion of Labor, claiming to represent employees of the Employer.
International Union of Operating Engineers, Local 12, herein
called the Operating Engineers, one of the constituent locals of the
Intervenor, is a labor organization, claiming to represent employees
V
of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The Employer and the Intervenor claim that their contract, dated
July 21, 1946, constitutes a bar to these proceedings. The Operating
Engineers further claims that a contract executed by the Employer
and San Bernardino Metal Trades Council, of which the Operating
Engineers was a constituent, precludes a present direction of election.
Under these circumstances, it is necessary for us to examine in some
detail the bargaining relationship between the Employer and the
representatives of its Vulcan mine employees.
In 1943 San Bernardino Metal Trades Council, herein called the
Metal Trades Council, was a labor organization composed of locals
of various craft unions affiliated with the American Federation of
Labor, among which was the Petitioner's local. On July 29, 1943,
the Employer, the Metal Trades Council, and its constituent locals
executed for the employees working at the Vulcan mine,' a collective
bargaining agreement for 1 year, subject to automatic renewal there-
after in the absence of 60 days' notice. The constitutent craft local
members of the Metal Trades Council, including the Petitioner's local,
were also parties to the negotiations and signatories to the contract.
1 The Metal Trades Council had won an election among production and m tintenance
employees , directed in Matter of Kaiser Company , Inc. (Iron and Steel Division), 47
N. L It. B. 1099.
KAISER COMPANY, INC. 933
This contract was renewed on the anniversary date of each year there-
after, including July 1945.
Sometime during or after November 1945, the Petitioner's relation-
ship with the American Federation of Labor was suspended. In
January 1946, the Metal Trades Council, without the participation
of the Petitioner, or its local, passed a resolution "conveying" its
assets, including collective bargaining agreements, to Building & Con-
struction Trades Council of San Bernardino, California, herein called
the Intervenor, and so notified the Employer in a letter dated Feb-
ruary 2, 1946. From the record it appears that the Metal Trades
Council ceased to function as a representative of the employees herein
concerned. The Operating Engineers was a member of the Metal
Trades Council, and is also a member of the Intervenor. The Peti-
tioner is not, and has never been, a member of the Intervenor. The
Employer, satisfied that the Intervenor represented a majority of the
employees concerned, recognized the Intervenor as the collective bar-
gaining representative of all employees formerly represented by the
Metal Trades Council, of which the Petitioner has been a constituent,
including employees within the Petitioner's craft local.2 In July the
Employer and the Intervenor were engaged in negotiating a new
contract covering all these employees.
On July 22, 1946, the Petitioner filed the petition in the instant
proceeding. A few days thereafter the Employer and the Intervenor
executed a new contract, by.its terms retroactive to July 1, 1946, in-
cluding all employees covered by the original contract with the Metal
Trades Council. All craft locals, which as members of the Metal
Trades Council, had shared in the negotiations for the 1943 contract
and were now members of the Intervenor, took part in the negotiations
and signed the new contract. The Petitioner was excluded as a non-
member of the Intervenor.
Under these circumstances, it is clear that the contract between the
Employer and the Metal Trades Council, assumed by the Intervenor,
was not automatically renewed for the year beginning July 1946. For
this reason we find no merit in the contention of the Operating Engi-
neers that the aforesaid contract bars a present determination of
representatives. The Intervenor's contention that its new contract
with the Employer, dated July 21, 1946, is a bar, also has no merit,
because the instant petition was filed prior to its execution. We conse-
quently find, in accordance with our established policy, that the con-
2 At sometime thereafter, the Operating Engineers apparently assumed jurisdiction over
the craft employees whom the Petitioner had represented at the time when it was a mem-
ber of the Metal Trades Council.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractual relationship between the Intervenor and Employer does not
bar the holding of an election at this time.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a bargaining unit composed of machinists,
truck mechanics, heavy duty mechanics, welders, helpers and appren-
tices employed in the repair and machine shops of the Employer's
Vulcan mine. The Employer and the Intervenor both contend that
only a unit which includes production as well as maintenance employees
is appropriate and, in support of their position, rely on an earlier
decision involving the Vulcan mine wherein the Board found appropri-
ate a unit of the latter type.'
Employees of Vulcan mine, an open pit mine located in the Mohave
desert, are engaged in drilling, blasting, operating shovels, and driving
trucks which carry ore to the crusher, and in maintaining equipment.
The mine is isolated and, therefore, the maintenance and repair of its
equipment is of more than usual importance. Often, it is more ex-
pedient to make new parts in the machine shop on the premises than
to suffer the delay incident to sending for parts. Hence, the machine
and repair shops, situated several hundred feet from the mine proper,
where most of the machine maintenance work is done, contain elabo-
rate machine tools. Highly experienced and skilled mechanics are
required and employed, constituting a distinct, functionally coherent
group with traditional craft interests 5
Following an election directed by the Board in the decision referred
to above, the Board certified, on April 20, 1943, the Metal Trades
Council, which at that time included Petitioner's local, as bargaining
representative of production and maintenance employees at the mine.
Thereafter, a negotiating committee of the Metal Trades Council,
consisting of representatives of each craft local having jurisdiction
over employees working at the mine, of whom Petitioner's represent-
ative was one, met with the Employer. The craft representatives,
as a committee, jointly negotiated concerning working conditions
affecting all employees in the unit, and individually negotiated wage
rates for the classifications over which their respective locals had
jurisdiction. The resulting contract executed July 29,1943, was signed
3 Matter of Ste. Genevieve Lime & Quarry Company, 70 N. L. R. B. 1259.
4 See footnote 1, supra.
5 Matter of Weber Showcase & Fixture Co., Inc., 67 N. L R B 456; Matter of The
Crosley Corporation, 66 N. L. It. B. 349 ; and Matter of Johns-Manville Products Corpora-
tion, 60 N. L. It. B. 293.
KAISER COMPANY, INC. 935
not only by a representative of the Metal Trades Council and the
Metal Trades Department of the American Federation of Labor, but
also by the respective representatives of the constituent local unions
and by representatives of their internationals. The contract con-
tained the following clause:
The foregoing agreement was negotiated by the Employer with
the San Bernardino Metal Trades Council and its affiliated Local
Unions and which said affiliated Local Unions and each of them,
together with their respective international Unions hereby ratify
and approve such agreement and agree to be bound by and observe
all of the terms and conditions therein set forth to be observed
by the Union. [Italics supplied]
During the period when the Employer and the Metal Trades Council
had contractual relations, there was a general shortage of labor and
the Employer continuously had outstanding requisitions with the
Metal Trades Council for additional employees. These requisitions
were referred by the Metal Trades Council to the particular constitu-
ent local which had jurisdiction over the categories of employees
required. The Employer, to hasten the filling of these requisitions,
communicated directly with the officials of the various locals, including
Petitioner's local. The record does not disclose the manner in which
the Employer secured replacements for employees in the classifications
sought herein, after the Intervenor replaced the Metal Trades Council
as recognized bargaining representative.
Sometime in June 1946, after the Metal Trades Council had "con-
veyed" its interest in the contract, discussed above, to the Intervenor,
employees of the machine and repair shops, whom the Petitioner pres-
ently seeks to represent, selected a "steward," who thereupon discussed
several krievances with representatives of the Employer on their
behalf. This "steward" was not one of the employees designated by the
Metal Trades Council or by the Intervenor to represent employee
interests pursuant to the terms of the contract.
There is no question but that employees in the machine and repair
shops constitute a traditional craft group. In the similar open-pit
mining in the copper industry, the evolution of collective bargaining
indicates the feasibility of craft units.6 The only question before its
is whether the Board's prior unit finding of a production and main-
tenance unit and the bargaining predicated thereon preclude a finding
that the proposed craft unit is appropriate. We believe that it does
not. Although the Metal Trades Council was certified as the exclusive
6 See Matter of Kennecott Copper Company ( Nevada Consolidated Mines ), 40 N. L. R. B.
986.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative of employees in a production and main-
tenance unit, the separate interests of its craft constituents were not
entirely merged in subsequent bargaining. The issue, moreover, as
to the appropriateness of a craft unit versus a production and main-
tenance unit for the employees herein concerned is now presented to
the Board for the first time. In the earlier proceeding involving these
employees the unit finding was made in accordance with the agreement
of the parties thereto, and no craft member of the Metal Trades
Council requested a separate craft unit at that time. In view of the
above circumstances, we are of the opinion that the employees whom
the Petitioner seeks to represent should now be given the opportunity
to demonstrate in a Board election whether or not they desire separate
representation.
Accordingly, we shall direct an election among machinists, truck
mechanics, heavy duty mechanics, welders, helpers and apprentices
working in the repair shop of the Employer's Vulcan mine at Kelso,
California, excluding electricians, carpenters, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action.
We shall make no determination of the appropriate unit at this
time. Such determination will depend, in part, upon the results of
the election. If the Employees in the voting group select the Peti-
tioner, they will be taken to have indicated a desire to constitute
a separate bargaining unit; if they choose the Intervenor, they will
be taken to have indicated a desire to remain part of the existing
production and maintenance unit.
DIRECTION OF ELECTION 7
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Kaiser Company, Inc. (Iron
and Steel Division), Kelso, California, 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, 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 Sections 203.55 and 203.56, of National Labor Relations Board Rules
and Regulations-Series 4, among the employees in the group described
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
7 Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot.
KAISER COMPANY, INC. 937
or on vacation or temporarily laid off, and 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 election, to determine whether they desire to be
represented by International Association of Machinists, or by Build-
ing & Construction Trades Council of San Bernardino, California,
for the purposes of collective bargaining, or by neither.