Kennecott Copper Corp.

National Labor Relations Board - Board Decisions

Feb 23, 1949

81 N.L.R.B. 957 (N.L.R.B. 1949)

In the Matter of KENNECOTT COPPER CORPORATION , UTAH COPPER
DIVISION , EMPLOYER and BROTHERHOOD or LOCOMOTIVE FIREMEN
AND ENOINEMEN (INDEPENDENT ), PETrrIONER
Case No. 20-RC-364.-Decided February 93,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing offi-
cer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. Brotherhood of Locomotive Firemen and Enginemen (Inde-
pendent), herein called the Petitioner, is a labor organization claim-
ing to represent employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks by this proceeding to have signal operators
and yard foremen employed at the Employer's copper mine at
Bingham Canyon, Utah, added to the unit of motormen, brakemen or
motormen's helpers, hostlers, and hostler helpers at the mine for which
the Petitioner was certified on July 2, 1940, in 25 N. L. R. B. 14.1
•Houston, Reynolds, and Murdock.
In 25 N. L. R. B . 14, Brotherhood of Locomotive Firemen and Enginemen was certified
as exclusive bargaining representative on the basis of a stipulation entered into by the
parties and reciting that no election was desired and that the said union had been selected
by a majority of the employees of the unit found by the Board to be appropriate in the
Decision and Direction of Election in 23 N. L. R. B. 1160. In the latter case , the question
of inclusion or exclusion of the signal operators and yard foremen did not come up since
the Petitioner sought only motormen , brakemen or motormen 's helpers, hostlers , and hostler
helpers, and the Employer contended that the unit should include all employees in the said
mine, numbering approximately 1,930.
81 N. L. R. B., No. 146. 957
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer contends that the employc;es sought by the Petitioner
are supervisors, but took the position at the hearing that it would not
oppose their inclusion in the unit if the Board determined that they
were not supervisors.
The Bingham Canyon mine is an open pit mine with various ter-
races or levels. Standard gauge railroad tracks have been constructed
on each level, and these tracks, by means of switchbacks, extend from
one level to another and out of the mine to assembly yards and waste
dumps. Copper ore and waste is drilled and blasted from the mine
and removed by electric shovels to railroad cars which haul it to the
assembly yards and waste dumps, respectively, and return empty for
reloading. The "motormen, brakemen or motormen's helpers, hos-
tlers, and hostler helpers" employed in the rail haulage operation
(numbering 311 persons as of the last work period before the hearing) 2
comprise the previously certified unit to which the Petitioner would
now add the 12 regular signal operators and yard foremen and 1 addi-
tional man who is being trained to do their work.
Signal operators and yard foremen direct and keep records of the
movement of the trains over the network of tracks in the mine. Both
signal operators and yard foremen do substantially the same type of
work, the difference in designation arising from the signal stations to
which they are assigned and the method of transmitting signals at
such stations. The Employer's organizational chart lists the signal
operators and yard foremen as an independent group operating di-
rectly under the assistant mine superintendent and the general mine
foreman. It is clear from all the evidence, however, that they also
receive orders and information upon which to act from general hill
foremen in the train and shovel department. In the normal routine
of operation, each noon the general mine foreman lines up the work
for the entire mine for the next 24 hours and notifies a general hill
foreman as to what shovels will operate and how much ore is to be
moved. This general hill foreman conveys as much of this informa-
tion as is relevant to his shift to each signal operator and yard foreman,
who, during their shifts, also receive information from other signal
operators and yard foremen with respect to location, movement, and
availability of trains. It is then their job to so direct the movements
of trains available that the shovels are kept in continuous operation,
and traffic flows efficiently. They receive messages from train crews
as to when locomotives need sand or repairs and must determine ac-
cording to the over-all picture the routing of such locomotives to sand-
ing towers or repair shops. Train movements are not directed from
2 Production operations at the mine were suspended as of the time of the hearing by a
strike which began on October 24, 1948.
KENNECOTT COPPER CORPORATION 959
any prearranged schedule, but rather according to the changing needs
of each shift.
The Employer does not appear to consider the signal operators and
yard foremen supervisors since on the organizational chart they are
not shown as having any employees under them. Moreover, they are
paid a daily wage as are employees in the unit to which the Petitioner
seeks to add them, unlike the Employer's recognized supervisors who
receive monthly salaries and who also participate in sick leave and
other benefits not granted to the signal operators and yardmen.
The signal operators and yard foremen do not possess direct au-
thority to "hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees." 3 Nor do they have
the authority to make effective recommendations affecting the status
of the train crews whose movements they direct as described above.
Train crews are expected to comply with the signals transmitted to
them and the signal operators and yard foremen report any failure
to comply, but, so far as the record shows, they make no recommenda-
tion with respect to the disciplinary action taken against the non-
complying train crewmen. It appears, therefore, that they have none
of the powers customarily associated with supervisors.
As we have previously pointed out, the phrase "responsibly to di-
rect" may be sufficient to render an individual a "supervisor" under the
Act as amended but the legislative history indicates that a specific
qualified meaning was attached to this phrase rather than the broad
scope implied by a literal construction thereof.4 As we stated in the
Ohio Power decision, individuals having the authority "responsibly
to direct" contemplated in Section 2 (11) fall within a narrow area
lying between those "above the grade of straw bosses, lead men, set-up
men and other minor supervisory employees," and those who do not
possess any of the other specific authorities enumerated in the Act's
definition. On the basis of all the facts as set forth above, we do not
believe that the signal operators and yard foremen have the power
"responsibly to direct" as is intended in the Act's definition of "super-
visor." Rather, they, in effect, act as a conduit through which the
work orders issued by management representatives are relayed to the
train crews, and their use of independent judgment appears to be
Section 2 ( 11) of the Act provides :
The term "supervisor" means any individual having authority , in the interest of
the employer , to hire, transfer, suspend, lay off , recall, prom'te , discharge , assign,
reward or discipline other employees , or responsibly to direct them, or to adjust
their grievances , or effectively to recommend such action , if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature
but requires the use of independent judgment . [ Emphasis supplied.]
4 Matter of The Ohio Power Company, 80 N. L it. B 1334.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only of a routine and clerical nature necessary to the coordination
and efficient execution of these work orders.
The interests of the signal operators and yard foremen appear to
be more closely allied with motormen and brakemen than with other
employees. Eleven of the 13 signal operators and yard foremen are
former brakemen or motormen's helpers and retain their seniority
as such. They are paid a daily wage as are brakemen and motormen.
They have never been covered by any collective bargaining contract in
the past. Moreover, we customarily include employees doing this
type of work in a unit of motormen and brakemen.5
Therefore, we shall afford signal operators and yard foremen the
opportunity to determine through a separate election whether or not
they wish to be represented as part of the present unit of motormen,
brakemen, or motormen's helpers, hostlers, and hostler helpers. Ac-
cordingly, we shall direct an election among employees in the follow-
ing voting group : all signal operators and yard foremen at the Em-
ployer's Bingham Canyon, Utah, mine.
We shall therefore make no finding concerning the appropriate unit
for employees of the Employer pending the outcome of the election
hereinafter ordered.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Kennecott Copper Corpora-
tion, Utah Copper Division, a separate election by secret ballot shall
be conducted as early as possible, but not later than 30 days from the
date of this Direction, under the direction and supervision of the Re-
gional Director for the Twentieth Region, and subject to Sections
203.61 and 203.62 of National Labor Relations Board Rules and Regula-
tions-Series 5, as amended, among the employees in the voting group
described in paragraph numbered 4, above, who were employed during
the pay-roll period immediately preceding the date of this Direction
of Election, including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid
off, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, and also excluding employees on strike who are
not entitled to reinstatement, to determine whether or not they desire to
be represented, for purposes of collective bargaining, by Brotherhood
of Locomotive Firemen and Enginemen (Independent).
6 Matter of Sullivan Dry Dock & Repair Corp ., 58 N. L. R. B. 598; Matter of Oklahoma
Transportation Co , 56 N. L. R. B. 1717. Also ct. Matter of Automatic Electric Company,
81 N. L R B 218.