Kennecott Copper Corp.

National Labor Relations Board - Board Decisions

Sep 9, 1958

121 N.L.R.B. 801 (N.L.R.B. 1958)

KENNECOTT COPPER CORPORATION 801
1. International Typographical Union, AFL-CIO, Members of its
Executive Council, and International Typographical Union, AFL-
CIO, Local 1651 its Scale Committee, and their respective agents are
not and have not been lawfully entitled to force or require Worcester
Telegram Publishing Company, Inc, to assign the work in dispute to
members of said labor organizatons, ratherthan to that Company's
employees, of its choice,
2 Within ten (i,O) days from the date of this Decision and Deter-
mination of Dispute, the Respondents shall notify _the Regional Direc-
for the First Region of the National Labor Relations Board, in
writing, whether or' not it accepts this determination of the dispute
and whether or not it will refrain from forcing or requiring Worcester
Telegram Publishing Company, Inc, to assign the work in dispute to
members of the Respondents rather than to employees of the Com-
pany's choice by means proscribed by Section 8 (b) (4) (D) of
the Act
United Association of Journeymen ,& Apprentices of the Plumbing Industry (Frank Hake),
218 F 2d 476 ( C A 3) " The Respondents have not advanced reasons to support this
contention Moreover, this Board respectfully disagrees with the Court of Appeals'
opinion in the Hake case See Local 16, International Longshoremen's and Warehouse-
men's Union (Denali McCrory Construction Company), 118 NLRB 109 , footnote 4
Kennecott Copper Corporation , Ray Mines Division and Glen
Akers. Case No 21-CA-2597 September 9, 1958
DECISION AND ORDER
On October 8, 1957, Trial Examiner Martin S Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in-the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate'Report
attached hereto Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting'brief. The Respondent
also filed exceptions herein.
The Board has reviewed the rulings of the Trial Examiner made
at the -hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed - The Board has considered the Inter-
mnediate Report, the- exceptions and brief, and the `entire record-in
the case, and hereby adopts the findings, conclusionsi and recommenda-
tions of the Trial Examiner to the extent consistent with our decision
herein -
The Trial Examiner found, and we agree, that the Respondent's
discharge of Glen Akers, 0 0 Largent, John C Segraves, Floyd F
Frazier, and Arnold C McGuyer was not violative if the Act
121 NLRB No, 102
- 487926-59vol 121--52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the reasons detailed in the Intermediate Report, we agree with
the Trial Examiner that the record does not support the General
Counsel's position that the Respondent discharged the five com-
plainants because they were adherents of the Steelworkers, and not
of International Union of Mine, Mill and Smelter Workers, the in-
cumbent contractual representative of the employees. The alternative
position of the General Counsel is that the Respondent discharged the
complainants in the belief that they had engaged in a protected strike.
However, on the, contrary, we are persuaded by all the evidence, in-
cluding their discharge notices, that the Respondent discharged the
complainants in the honest belief that they had engaged in an unpro-
tected strike on October 11, 1956, for which they could have been
properly discharged. This prima facie honest belief having been
established by the Respondent, no finding of an unlawful discharge
herein would be warranted unless the General Counsel established by
a preponderance of the evidence that, contrary to the Respondent's
belief, the five complainants had in fact engaged in a strike, or other
type of concerted activity, on the occasion in question, and that such
activity was of a protected nature.' Indeed, on the basis of the evi-
dence, which is fully set forth in the Intermediate Report, we are
unable to find that the complainants were engaged in any conduct that
amounted to a strike, or in any other concerted activity, at that time.
Neither the complainants themselves, nor the General Counsel, contend
otherwise. Thus, in his brief, for example, the General Counsel states :
"There was no evidence to show that the five employees had acted in
concert, and it was only in the minds of the Company officials that
the complainants were acting in concert and in effect striking."
Accordingly, we conclude that the record fails to establish that the
Respondent discharged the complainants in violation of Section 8 (a)
(3) and (1) of the Act. We shall therefore dismiss the complaint?
[The Board dismissed the complaint.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
I See Kraft Foods Company, 108 NLRB 1164.
2 In view of the disposition herein, it is unnecessary to pass upon the other issues raised
by_ the Intermediate Report and the exceptions herein, specifically including the validity
of the Trial Examiner 's ruling denying Respondent access to complainant Aker's affidavit
submitted to the General Counsel before the hearing . See Ra-Rich Manufacturing Com-
pany, 121 NLRB 700.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board against Kennecott Copper Corporation , Ray Mines
Division. The complaint , dated June 19, 1957, alleged that Respondent had engaged
KENNECOTT COPPER CORPORATION 803
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
Copies of the complaint, the charges upon which it was based, and notice of hearing
were duly served upon Respondent.
The complaint alleged that on or about October 11, 1956, Respondent had dis-
charged five employees, Glen Akers, O. C. Largent, John C. Segraves,' Floyd F.
Frazier, and Arnold C. McGuyer because they had engaged in activities in behalf
of United Steelworkers of America, AFL-CIO, and had refrained from engaging
in activities in behalf of International' Union of Mine, Mill and Smelter Workers,
herein called Steelworkers and Mine Mill, respectively. The complaint alternatively
alleged that the five employees were discharged because they had engaged in con-
certed activities for their mutual aid or protection. Respondent's answer admitted
the discharge of the five men on the indicated date,2 but denied that it had terminated
the men for the reasons set forth in the complaint.
Prior to the commencement of the hearing, Respondent submitted a request for
particulars which was denied by Trial Examiner James R. Hemingway on July 2,
1957. A renewal of said request was denied by Trial Examiner Wallace E. Royster
on July 31, 1957.
Thereafter, pursuant to notice, a hearing was held before the duly designated Trial
Examiner at, Globe, Arizona, on August 5, 6, and 7, and at Phoenix, Arizona, on
August 8, 1957. The parties were represented by counsel who were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
relevant evidence. Respondent's motion for particulars was renewed at the hearing
and denied. Respondent's motion that the General Counsel be required to produce
the affidavit of Complainant Akers, not utilized at the hearing, was also denied.
See The Great Atlantic & Pacific Tea Company, National Bakery Division, 118
NLRB 1280.
Respondent also offered to adduce evidence bearing on the issue of reinstatement
of Complainant Akers, in the event of an adverse finding on the merits. The offer
consisted of evidence involving the personal deportment of Akers falling into three
categories. This evidence, allegedly discovered subsequent to his termination would,
according to Respondent, render him unfit for further employment and would war-
rant the Board in withholding the customary reinstatement remedy. Ruling was
reserved on the offer and it is hereby rejected because in view of the recommenda-
tions hereinafter made, this testimony is deemed to be superfluous? At the close
of the hearing the parties were given an opportunity to argue orally and to file briefs.
The General Counsel presented oral argument and a brief has been received from
Respondent.
Respondent subsequently moved, on September 21, that the record be reopened for
the purpose of receiving additional testimony from Director of Industrial Relations
Peterson who previously testified herein for Respondent. This is additional testimony
which Respondent, it is alleged, neglected through oversight to adduce when Peterson
was on the witness stand, although its presentation was anticipated. The offer em-
braces testimony or a stipulation which would deny statements attributed to Peterson
by witnesses Segraves and Frazier for the General Counsel and is on a topic clearly
material to the issue. The General Counsel opposes the motion on the ground that.
it is not newly discovered evidence, which is obviously the case. However, upon a
consideration of the motion, and in view of the conclusions set forth below with
respect to the basic issue, the motion is denied.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following: -
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Kennecott Copper Corporation, Ray Mines Division, maintains its principal place
of business at Ray, Arizona, and is engaged in the mining and processing of copper
ore. During the 12-m6nth period preceding the issuance of the complaint herein,
Respondent sold and shipped products valued in excess of $50,000 to purchasers
3 Also appearing in the transcript as Seagraves.
2 As will appear, the employees were suspended on October 11 but not actually dis-
charged until October 15 While Respondent claims that its records disclose the earlier
date as the date of termination, I can only assume that the action was made retroactive.
3 In the event the basic issue herein is viewed differently by the Board, I believe that
this testimony is relevant and that Respondent is entitled to be heard on the remedy
question ,
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside the State of Arizona . I find that Respondent is engaged in commerce within;
the meaning of the Act and that it would effectuate the purposes of the Act to assertjurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
International Union of Mine , Mill, and Smelter Workers and United Steelworkersof America, AFL-CIO, are labor organizations admitting to membership the em-
ployees of Respondent.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The five complainants, it is conceded, absented themselves'from work around noon
on October 11, 1957, under circumstances set forth hereinafter in more detail, and
were suspended by Respondent at approximately 4 p. in. A hearing pursuant to
the labor contract applicable to these employees was held on October 12 and
attended by 4 of the 5. On October 15, the five men were notified of their discharge
for engaging in "a work stoppage in violation of the law, the contract and without
sanction of the Union [Mine Mill].
The issues presented are: (1) Were the five men discharged because they were
supporters of Steelworkers and opponents of Mine Hill, the latter their bargaining
representative; (2) by leaving work on October 11 separately, although within
minutes of each other, did these five men engage in a concerted activity within the
meaning of Section 7; and (3) assuming this was a concerted activity ostensibly-
within the meaning of Section 7, was it nevertheless unprotected because it was in.
derogation of the contract language covering the presentation of grievances.
B. Sequence of events
1. Bargaining history; introduction
Respondent and Mine Mill have been under contractual relations over an undis-
closed period of years for a unit including the boiler shop, the latter being the situs
of the present dispute.4 In June of 1955, Steelworkers filed a representation petition
in Case 21-RC-4037 covering the Mine Mill unit; Mine Mill duly intervened, won
the election held in September of that year and was duly certified. In June of 1956,
Steelworkers filed a representation petition to carve out the boilershop and one other
section, the rip track, from the existing Mine Mill unit. Hearings were duly held
and the petition was subsequently dismissed by the Board on the ground that it was
for an inappropriate unit. Mine Mill and Respondent are currently signatory to a
labor contract dated July 1, 1956, running through June 30, 1959, which is appli-
cable to the unit certified in 1955.
As the General Counsel, on one theory of the case, has bottomed his case, in
part, on the racial composition of the boilershop crew, it will be necessary to briefly
sketch the composition of the group. The boilershop, at the time material herein,
had 22 or 23 employees who were almost equally divided among men of Mexican
descent and men of other descent, the latter referred to in the record as "Anglos."
The chief but not sole support for Mine Mill did come from the employees of
Mexican descent in the boilershop as elsewhere, and the advocates of Steelworkers,
during the 1955 and 1956 campaigns, were found chiefly among the non-Mexicans.
There is evidence, as contended by the General Counsel, that some friction existed
between the groups, both at work as well as elsewhere. It appears that at least some
of the complainants had belonged to Mine Mill in the past and had dropped their
membership prior to the advent of Steelworkers. But, as will appear, this is a far
cry from evidence that Respondent favored its employees of Mexican descent who
were Mine Mill adherents and as a result was hostile to employees who were not of
Mexican descent and who were Steelworker adherents. Moreover, there is evi-
dence that this friction antedated the arrival of Steelworkers on the scene and this
racial friction may not in logic be equated with union partisanship.
S The record will not support a finding, as urged by the General-Counsel, that Respondent
is favorably disposed toward Mine Mill because of prior affiliation with that organization
by a company official Indeed, Respondent was hit with general strikes in 1954 and 1955
by Mine Mill for approximately 15 and 47 days, respectively
KENNECOTT COPPER CORPORATION 805
2. The October 11 hearing
On the morning of October 11, 1956, a disciplinary hearing was scheduled for 10
o'clock involving employee L. Wright, who had allegedly struck his foreman on a
previous day. Wright apparently was one of the so-called non-Mexican faction be-
cause 4 of the 5 complainants in this case, all apparently from that group, felt con-
strained to attend the hearing as spectators . Attendance by nonwitnesses is gener-
ally not allowed and is contrary to the practice in the plant, although there is no
express rule forbidding it .5
Present at the hearing for Respondent were Assistant Master Mechanic Hubbard,
Machine Shop Foreman Smith, Acting Shop Foreman Carrillo, and Supervisor of
Labor Relations Newcomb. President Becerre and three committeemen of Mine
Mill were present, as were several witnesses, one of whom was Complainant Largent.
Also among those present was one Pearce, an employee on sick leave who it appears
was a leader in the Anglo group. The attitude of the complainants was perhaps re-
flected by the testimony of Akers who testified that someone among those present
claimed that they were "crucifying Wright."
The testimony developed at the hearing rapidly disclosed, as both Foreman
Carrillo and Wright testified, that the latter had in fact struck Carrillo, although
there was some conflict as to which was the first to call the other a liar when some
words were being exchanged about Wright's alleged failure to perform his duties.
At the close of the hearing, Hubbard announced that Wright was guilty of a
major violation, viz, fighting on the job, and that the penalty was discharge because
there was a peaceful procedure established by the contract whereby an employee
could seek redress for any wrong. Wright accepted the decision and admitted that
he was in error for striking a foreman. ' The Mine Mill committee announced that
it did not quarrel with the decision, that it did not uphold fighting on the job, and
that Wright did have the right to appeal. Wright announced that he did not wish
to appeal and the meeting ended after an unsuccessful attempt by employee Pearce
to persuade Hubbard to shake hands with Wright and call off the entire matter.
The hearing ended at 11 or 11:30 a. m. and it was soon thereafter that the five
complainants engaged in the alleged concerted activity which is relied upon herein by
the General Counsel.
3. The walkout
After the close of the Wright hearing, the five complainants returned to work.
All apparently worked with the remainder of the boilershop crew without incident
until the noon lunch period which extends from noon to 12:30 p.m. Then, all left
within a 5- or 10-minute period, between 12 and 12:10 p. in. Approximately, under
the following circumstances: 6
Akers testified that earlier that morning he had received pills from Foreman
Carrillo to relieve a headache, that after the Wright hearing Carrillo was all out
of pills and that he, Akers, spoke to Carrillo at 12 or 12:05 p. in. On this occasion,
he asked Carrillo if he could go home because of his headache; Carrillo replied that
he could if he wished. Akers immediately departed, spent 1 to 1'/2 hours before he
was able to get his car started, and left for home. En route, he suffered a nosebleed,
changed direction, and proceeded to the company hospital which is but minutes from
the plant as is his home. However, the testimony of Nurse Hazel Waldo, which
I credit, discloses that she reported for tvork that day at the hospital at 3:30 p. in.
and that she treated Akers for his nosebleed when he appeared at approximately
4 p. in.
According to McGuyer, he and Akers compared notes on their respective ailments
at approximately 9 a in. on October 11 and both men agreed to stick it out until
noon . McGuyer's problem was a leg injury received during the previous month
which still caused him pain. McGuyer gave consideration to a departure at ap-
proximately 9:45 a. in., but decided to wait until after the Wright hearing. At
approximately 12:10 p. in., he asked Carrillo if he could leave because his leg was
hurting him. Carrillo said that he could do so, but asked McGuyer, as the latter
testified, if he was trying to "make it hard" on him. He also asked McGuyer if
E This finding is based upon the credited testimony of Director of Industrial Relations
Peterson , a clear and forthright witness, who cited an instance where employees were for-
bidden to attend. Complainant Frazier testified only that it was customary to attend such
hearings It is to be noted that Complainant Largent was a witness on this occasion
6 All of the five except Largent testified herein, as did Hubbard, Peterson , and General
Shop Foreman Smith ; Foreman Carrillo did not testify . Also in evidence are partial
minutes taken at the disciplinary hearing held on their cases on October 12, which reflect
the testimony of the complainants , excluding Akers and Carrillo.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was leaving because of the Wright decision . McGuyer testified here that he left
because his leg was bothering him. He arrived home at 12 : 20 p. in ., stopped for 10
minutes during which he took pills and drank beer , and then proceeded to Wright's
home. Later that afternoon , as will appear, he was found in his own home in an
unsteady condition, although he testified that he had no recollection of leaving
Wright 's home. However , the testimony of Segraves places McGuyer with a group
including Segraves , Frazier , and Largent that did some drinking in a park that
afternoon.
According to Frazier , he stopped work at noon , telling Carrillo that he was leaving
because he was ill. Carrillo expressed no objection but stated "Looks like you
people are letting me down ." Frazier did not tell Carrillo what his ailment was,
but testified herein that it was his back and that it bothered him all afternoon, even
while he was in the park.
According to Segraves , he spoke with Carrillo around noon while holding his
welder's mask in his hand , this apparently an indication that he was through working.
Carrillo asked if he was leaving and Segraves replied that he was; he did not state
why he was leaving, and Carrillo allegedly did not ask . Although Segraves testified
that he did not know that any of the others were leaving, he did give Frazier a ride
from the plant when they left together.
Largent did not testify herein , but did testify at the October 12 hearing that
he was nervous as a result of the Wright hearing and told Carrillo that he was
leaving; this was in accord with Carrillo's testimony at the same hearing.
As is apparent , the five men left within minutes of each other , three, Akers,
McGuyer, and Frazier, because they were allegedly ill , one, Segraves , for no given
reason , and one, Largent , because he was nervous.
Carrillo reported their departure around 1 p . in. to Assistant Manager Mechanic
Hubbard , repeating the reasons assigned by the men. He made a similar report to
Director of Industrial Relations Peterson who thought at the time that the men had
left in a group because of disgruntlement over the Wright decision , but had tried
to conceal their true motive. He testified herein that he learned at this hearing for
the first time that the men had not left in one group.
Sometime after 2 p. in. on October 11, and probably around 4 p. m., after some
investigation including a call to the hospital to see if any of the allegedly ill men
had reported there, management concluded that this was a case of insubordination
in willful disregard of the contract . This view was augmented by the fact that at
3:50 p . m. Hubbard discovered Largent dead drunk in his car which was parked
on the company railroad tracks , with a train due at 4 p . in. Hubbard moved the car
from the tracks and proceeded to park the car, together with its sole occupant, on
the street ; he then returned to the plant . Hubbard and Peterson recommended that
the men be suspended and individual suspension notices were prepared. They are
identical in their content save for the difference in names. That of McGuyer reads
as follows:
Mr. Arnold C. McGuyer , Payroll No. 6070
This is to advise you that you are hereby indefinitely suspended . The Com-
pany considers your concerted action in walking off the job in conjunction
with Osvil C. Largent , Boyd F . -Frazier, John Segraves , Glenn Akers as a strike
which is against the law, in violation of the contract under which you are
covered , and which is without the sanction of the Union which represents you.
A hearing to consider the facts of your actions will be held in Mr . Dickerson's
Office Friday, October 12th , at 3:00 P. M. You are hereby requested to attend
this hearing.
Hubbard , together with Employment Agent Rives, then started at approximately
4 p. in. to serve the suspension notices.? They proceeded to the location where
Hubbard had left Largent 's car with its occupant ; his condition was unchanged and
a suspension notice was placed in his pocket . At this point Segraves and Frazier
happened to pass by and stopped; it was evident that they also had been drinking.
Hubbard handed each . of them his suspension notice and one of the men agreed to
drive Largent's car and its occupant home.
At approximately 5 p. in. the two men proceeded to the home of McGuyer, found
him alone and unsteady on his feet , and gave him a suspension notice . Then at
approximately 5:40 p . m., according to Rives, they proceeded to the home of Akers
7 The record discloses that complainants Frazier and Segraves, after leaving the plant,
had visited the home of employee Pearce and that the three , with several others, engaged
in some drinking in a local park. The testimony of Frazier , discloses that Largent was one
of the group . This obviously was prior to Largent 's appearance on the, railroad tracks as
described above. As indicated , Segraves placed McGuyer in this group.
KENNECOTT COPPER CORPORATION 807
,and entered to discover Akers suffering from a heavy nosebleed . The deputy sheriff
having previously been summoned by Mrs. Akers, the two company representatives
assisted the deputy sheriff in getting Akers to the local hospital . Akers was hos-
pitalized , was discovered to require surgery on his nose, was later transferred to a
Phoenix hospital , and was not discharged until October 24. As a result, he was
the only 1 of the 5 men who did not attend the October 12 hearing.
4. The October 12 hearing; the discharges
The contract with Mine Mill provides that all 'employees of more than 30 days'
seniority may not be discharged outright'for cause, but shall first be suspended and
a hearing held before the penalty of discharge is imposed . Obviously , there was a
departure from the contract in the case of Akers to the extent that Akers was un-
avoidably absent from the October 12 hearing, and there is evidence that hearings
in other cases have been postponed in an effort to procure the presence of the
employee. However, it is true that Akers was first suspended pursuant to the con-
tract and that the hearing applied to him as well as the other four employees,
although of course he was not present.
Minutes prepared by management on October 16 covering the October 12 hearing
disclose that the otlier four complainants appeared and gave their versions of their
conduct on October ' 11; Akers' absence because of illness was noted . The four
employees and Carrillo testified concerning the circumstances surrounding the de-
parture of the men from the plant , as heretofore set forth . Segraves and Frazier it
may be noted, pointed out that they had visited a doctor on October 11. This was
the case, but the record discloses that they took this step only after receipt of the
suspension notices, and that Segraves did not assign illness as a reason when he left
on October 11. And although Frazier had visited this doctor previously, it does
not appear that he had an appointment on this occasion . He testified that he knew
at noon he would ' visit the doctor , but he took no steps to do so until after he
received his suspension notice.
The president and four committeemen of Mine Mill attended the hearing and
offered to represent the four men. The offer was rejected , but the five union repre-
sentatives remained . Committeeman Mercado pointed out that it was their position
that Respondent should be consistent in handling cases of this nature, and drew
attention to the discharge of another employee some months earlier for leaving
the job.8
Respondent assured Mine Mill of its intent to be consistent as well as fair in
handling this case and the hearing ended. On October 14 or 15 a decision toi dis-
charge the five men was reached after discussion with Respondent 's headquarters in
Salt Lake City. The interoffice memorandum of October 16 prepared by then
Supervisor of Labor Relations Newcomb, but signed by Hubbard, stated as follows:
While discharge is a serious and final penalty applied for the misconduct of an,
employee and should be given serious consideration before a decision is made,
it is the writer's opinion that in this incident the employees were guilty of
arbitrarily walking off the job. It is evident that the group was disgruntled
over the discharge of the employee, L. Wright, and decided to show their dis-
favor by creating a minor work stoppage . After investigating the activities of
the employees involved after leaving work, to find that there was considerable
drinking and in the case of O. Largent's appearance in the No. 1 Yard in an
intoxicated condition that could have resulted in a serious accident to himself-
and other employees, it is the considered opinion of the writer that the action of
discharge should be taken.
Discharge notices were prepared on October - 15 and sent to the men, although
Akers did not receive his until he was discharged from the hospital later that month;
they are identical save for the names and read as follows:
At 'a disciplinary hearing held on the case of L. Wright, at which you were
present Thursday morning October 11, 1956, you indicated disapproval of the
decision of action taken by the Company.
Shortly after leaving this hearing you decided to quit work and go home.
Your action was taken without justifiable reason.
The fact that you later attempted to provide excuse is discounted on the•
basis of known facts.
8 Mercado admitted herein that he was partly in error , for the man he had in mind had
been suspended for his conduct and had then quit , apparently prior to hearing.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company can only conclude on the basis of all the evidence that your
action was in effect a work stoppage in violation of the law, the contract and
without sanction of the Union.
The Company cannot condone your action and after carefully weighing the
facts you are hereby notified of your discharge.
The testimony of Peterson is in substantial accord with the language contained in
the interoffice memorandum. Respondent was aware, it may be noted, of Akers'
absence from the hearing on October 12 despite the language in the discharge
notice. However, Respondent concluded that his illness was a happenstance, that
he was nevertheless guilty of insubordination, and that his conduct warranted
discharge.
Playing a part in the decision to discharge the five men was the alleged breach of
the contract, the language of which is set forth hereinafter, together with evidence
received by Respondent as to the deportment of the five men on October 11. The
latter included the previously related incident involving Largent, and the drinking
by Segraves, Frazier, and McGuyer. There was also testimony in the record by
Joseph McCrome, a clerk with the Respondent, that he observed Akers and Frazier
purchasing liquor in the only liquor store in the town of Ray at 12 15 p.m. on
-October 11, and that he promptly reported this fact to Hubbard because, unaware
of the previous departure of the two men from the plant, he felt that it might result
in drinking at the plant. This purchase, denied by Akers and Frazier herein, was
relied upon by Respondent in its decision. Also relied upon was a telephone call
to the hospital on October 12 and the information received from the attending
physician that Akers apparently had been drinking. -
There is in evidence a record of a number of complaints concerning Akers as an
employee and a prior disciplinary action with respect to Largent, both factors
allegedly taken into consideration when the decision of discharge was made.
C. Contentions and conclusions
1. The alleged discriminatory motivation
One of the two theories on which the General Counsel has proceeded herein is
that Respondent imposed the penalty of discharge upon the five complainants be-
cause they were Steelworkers supporters and not Mine Mill adherents. Presumably,
it is his position that but for their choice of a union, they would not have been
discharged on this occasion.
While 3 of the 5 complainants, Segraves, Akers, and McGuyer testified that they
were supporters of Steelworkers, the record does not disclose the affiliation of the
other 2. And in any event, the record will not support a finding that any of the
five were prominent in Steelworkers activities, with the barely possilile exception
of Akers. In his case, he was regarded as a leading force among the men, but
not because of union activities insofar as the record discloses.
Opposed to this is the uniform testimony by Respondent's representatives that
while in varying degrees they were aware of friction between the two racial groups,
on the other hand they were not aware of any union considerations playing a part
in the matter. In sum, Respondent's contention that it ran its business independ-
ently of union considerations is well warranted by the record. This is particularly
so where the complaint contains an allegation of favoritism toward Mine Mill;
inasmuch as Respondent had suffered two lengthy strikes at the hands of that
organization, any presumption of favoritism toward that organization is hardly
warranted.
There was testimony by Akers that on an undisclosed occasion, Assistant Mechan-
ical Superintendent Dickerson asked Manuel Carrillo whether he was a member
of Mine Mill. This was prior to Carrillo's promotion to foreman, because Akers'
testimony states that "Dickerson came by about making him foreman. It is not
clear.whether Dickerson actually used these words or whether they reflect Akers'
conclusion. On the other hand, the General Counsel has conceded herein that
Respondent did not fill the post of foreman in a discriminatory manner and that
it was done in an unbiased manner.
Evidence was adduced by the General Counsel tending to show that the penalty
inflicted herein was a severe one because in another disciplinary incident two em-
ployees merely received a 30-day suspension for drinking. The record discloses,
however, that 1 of the 2 had a particularly fine record, that Respondent had con-
sidered discharge for the other who had a poor record, and that in the interest
,of imposing uniform discipline they had decided merely to suspend both. More-
over, it was stipulated herein that Respondent had in the past discharged a number
,of employees for what it regarded to be breaches of discipline. _
KENNECOTT COPPER CORPORATION 809.
Much has been made of the claim that Akers did not get a hearing in this case.
A more accurate statement would perhaps be that his case was heard but that he
was not present .9 The simple answer is that Akers' case was deemed by Respondent
to be on a par with the other four, and that Respondent considered him to be a
ringleader of the group . Moreover , after Akers ' release from the hospital, he
was offered a hearing by then Supervisor of Labor Relations Newcomb, who told
him to contact his immediate supervisor and start the hearing procedure. And
President Becerre of Mine Mill also visited Newcomb and asked if Respondent would
give Akers a hearing . Becerre further asked if Mine Mill should represent Akers,
to which Newcomb replied that it was a matter for union decision.
In view of Mine Mill's previous offer to represent the other four complainants
at the October I1 hearing, and presumably Akers as well , which was rejected by
the four, this, it must be noted, is indicative of an effort by Mine Mill to represent
its entire membership rather than, as has been suggested herein, to give no repre-
sentation to those of non-Mexican descent.
There is testimony by Akers that late in 1955 he asked Carrillo to explain cer-
tain prints to him. To this Carrillo allegedly replied , "Get the CIO . You voted
for them." Not only is it uncertain whether Carrillo was an acting foreman on
this occasion , but, in addition , I do not deem this to be probative of Respondent's
motivation toward Steelworkers supporters in 1956.
One other matter remains for discussion on this facet of the case . This involves
statements attributed to Director of Industrial Relations Peterson . '° Complainants-
Segraves and Frazier visited the office of Peterson immediately after the hearing
on the afternoon of October 12 for the alleged purpose of finding out whether-
they were to be discharged ; as set forth above, the decision to fire the five men was-
not made until October 14'or 15. According to Segraves , he asked Peterson if he
was discharged , but Peterson replied that they would be duly advised . Petersoni
commented on the trouble that the five men had found themselves in by walking
off the job, and added that Akers . had covered himself by being hospitalized.
Segraves was asked on direct examination if any mention was made of Mine
-Mill or Steelworkers and replied , "I believe he did say something about Steelworkers,
to the effect that they had a lot of trouble since the Steelworkers had tried to-
come in there ." Segraves was asked to repeat the statement on cross-examination
and testified that Peterson said , "they had been having trouble between the Mexicans
and Americans , Anglo Saxons , ever since the Steelworkers had tried to come in
there."
According to Frazier , Segraves did all the talking and endeavored to find out
whether they were discharged . Peterson appeared to be angry and stated that they
were not as smart as Akers who had covered his tracks by being hospitalized; this
then ended the conversation according to Frazier . He was then asked if anything
was said about trouble in the boilershop and replied that Peterson had said , "Listen!°
We have not had nothing but trouble over there in that Boiler Shop since you boys
petitioned for the CIO, and we intend to put, a stop to it." He was then asked
whether Peterson explained his reference to the CIO , and further testified, "He
told me the Anglos and Mexicans . . That is what he was referring to, the trouble
over there ." He was then asked whether anything was said about the Steelworkers
and replied that he did not recall.
Even in the absence of Peterson 's testimony denying these statements , I find that
this testimony is far from convincing . Both men testified that Peterson was dis-
cussing trouble between the two racial groups. And while Segraves attributed a•
reference to Steelworkers to Peterson , Frazier, on the other hand, recalled no ref-
ference to that organization . In addition , the testimony of Segraves was originally
marked by uncertainty on the topic and became more positive only with repetition.
In sum , even if these statements were made , I deem them to be more indicative of a•
comment about conflict between the two racial groups on a racial basis, rather than
on the basis of union membership or support.
To this is coupled Peterson 's testimony , which I credit, that in making the decision
to terminate the five men he had no knowledge of their preference for either labor
organization . I deem his statement about putting a stop to trouble in the shop to
bear, not on Steelworkers activities , but rather on the problem of racial friction.
O Respondent has attempted to draw an analogy to the instant case where one of the-
complainants, Largent , was not present and did not testify.
10 As indicated , Respondent has moved to reopen the record to receive Peterson's
testimony controverting these statements which , through oversight , Respondent allegedly-
neglected to adduce at the hearing. This motion has been previously denied for the
considerations appearing below.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated, the record reflects that this friction antedated the Steelworkers organi-
zational activity. As a result, Peterson's alleged statements, even if made, are not
viewed as indicative of a preference for Mine Mill or of a bias against Steelworkers
supporters.
In view of the foregoing, I find, on a preponderance of the evidence, that the
record will not support the position of the General Counsel that Respondent dis-
criminated against these five complainants because they engaged in union activities
in support of Steelworkers, or refrained from engaging in activities in behalf of Mine
Mill. I find, on this theory of the case, that the men were fired for a cause not
protected by the Act.
2. The alleged concerted activity
The other theory proceeded on by the General Counsel is that the five complainants
engaged in a protected concerted activity within the meaning of Section 7 of the
Act on October 11 and that by discharging them for this reason, Respondent has
engaged in conduct within the meaning of Section 8 (a) (1) of the Act. As I view
it, to acquire the protection of Section 7 of the Act, employees must indeed engage
in a concerted activity within the meaning of that section. See, e. g, N. L. R B.
v. Cowles Publishing Company, 214 F. 2d 708 (C. A. 9) cert. denied 348 U. S. 876.
Since the instant activity was not one for the purposes of collective bargaining, if it is
to fall within the orbit of Section 7, it must then have been one for the mutual aid
or protection of these employees.
There is some difficulty in arriving at a conclusion that the five complainants
actually did engage in a concerted activity for their mutual aid or protection. The
4 who testified herein gave individual, unrelated reasons for leaving the job; of these,
3 assigned illness as the reason and it appears that at least 2 of them did suffer from
ailments at the time. While Frazier and Segraves did leave the plant together it
appears from their testimony that this was a happenstance. This then poses the
problem of just how this may be considered a concerted activity for their mutual aid
or protection. See Scott Lumber Company, Inc., 109 NLRB 1373, 1375.
Indeed, Respondent argues that the only concerted activity engaged in by the
complainants was a drinking bout, consistent with their testimony." In sum, it
would appear that if the five complainants are found to have engaged in a protected
concerted activity, such a finding must be made in the face of their testimony to
the contrary.
Nevertheless, despite the foregoing and the lack of substance to the reasons
assigned by the complainants for leaving work, there is some basis for concluding, as
did Respondent at the time, that they left because of their displeasure over the dis-
charge of Wright. But in such an event, Respondent further contends that, even
if the complainants did engage in a concerted activity, this activity was unprotected
because it was undertaken in violation of the collective-bargaining representative
of these men, Mine Mill, which of course is binding upon the five men despite their
obvious disgruntlement with Mine 1Mill. Ford Motor Company v. Huffman, 345
U. S. 330.12
The collective-bargaining agreement then in effect between Respondent and Mine
Mill obviously does not contain an express no-strike clause. However, article II
of the contract dealing with grievances expressly provides as follows:
Should differences arise as to the meaning or interpretation of any provision
of this agreement or should there be any grievance or misunderstanding con-
cerning any ruling, practice, working condition, disciplinary- action, suspension
or, discharge, an earnest effort shall be made to settle the same immediately.
Section A follows immediately and provides that "The Union shall advise the
'Company of the names" of its shop stewards; that their "shall be" a Union Grievance
Committee; and that the Union "shall appoint and advise the Company of the
name of the Chairman of the Grievance Committee ." As is apparent , this article
"'This is not to say that those engaged in a concerted activity within the meaning of
Section 7 lose its protection because they have partaken of an alcoholic beverage during
such activity.
22 Inasmuch as I find merit in Respondent 's contention based upon the language of the
contract . I find it unnecessary to decide whether there was a concerted activity for
mutual aid'or protection.
KENNECOTT COPPER CORPORATION 811
requires the union to establish machinery for processing grievances , including those
involving the discharge of employees . [ Emphasis supplied.]
Section B of the same article then sets forth the steps of the grievance procedure.
Under the first step any employee or group of employees having a grievance "shall
alone, or with the aid of a Union representative, first take the grievance up with
the immediate foreman, who shall attempt to adjust it." The next step provides
that if the grievance is not adjusted by the foreman within 24 hours, "it shall be
reduced to writing in duplicate, and,signed by the employee or group involved. and
the copies shall be given to the same immediate foreman , who shall indicate his
disposition of the grievance in the proper place on the forms and sign them."
[Emphasis supplied.]
In the next step the article provides that if a satisfactory adjustment is not reached
under the previous steps, "the grievance committee may submit the matter to the
department head." It further provides "After hearing the grievance, the department
head shall indicate", his decision within two days. It further provides that if a
satisfactory adjustment is not reached under the previous step "the grievance com-
mittee may submit the matter to the Superintendent of Mines" within five days.
It then states "After hearing the grievance the Superintendent of Mines shall
indicate" his answer within 2 days.
The article further provides that in the event of an unsatisfactory answer the
matter may be submitted by the grievance committee to the general manager. In
that event provision is made for a hearing and the article states that the "General
Manager shall render decision in writing not later than the tenth day after hearing."
It then provides that if the grievance is not settled under the previous step it may
be referred to arbitration by the aggrieved party. The article provides that if arbi-
tration is not invoked within 30 days the case shall be considered closed.
As is apparent, this article provides that "an earnest effort shall be made" to
immediately settle "any ruling" or "disciplinary action , suspension or discharge." It
further provides that Mine Mill "shall advise" Respondent of the names of its shop
stewards, that there "shall be" a grievance committee, and that employees having
a grievance "shall" take up such grievances with the foreman and beyond.
It is by now well settled that a no-strike clause is not the only contractual pro-
vision which may be interpreted as constituting a covenant not to strike . Indeed,
in the leading. case on the matter, N. L. R. B. v. Sands Manufacturing Co., 306
U. S. 332, the contract did not contain a no-strike clause . There , the employees were
committed to undertake future strike action in an effort to compel the employer to
vary the terms of the collective-bargaining agreement. The court stated "The
Act does not prohibit an effective discharge for repudiation by the employee of his
agreement , any more than it prohibits such discharge for a tort committed against
the employer."
It is by now equally well settled that a contract clause requiring the submission
of a dispute to a grievance procedure may be equated with a covenant not to strike
when there has been a lack of compliance with such procedure. E. g., in N. L. R. B.
v. Dorsey Trailers, Inc. 179 F. 2d 589 (C. A. 5), the court pointed out that where
a labor contract contained no specific no-strike clause but did contain a procedure
for the presentation of grievances "and the union , without resorting to these proce-
dures, arbitrarily causes a strike , it ought not to be , we think it is not in law , an unfair
labor practice for the employer to impose a reasonable discipline for the breach
of the contract."
Other decisions have similarly recognized that even in the absence of an express
no-strike provision , a contractual provision requiring the submission of disputes
to a grievance procedure terminating in arbitration must be equated with a covenant
not to strike in derogation of the grievance and arbitration procedure . See e. g.
W. L. Mead Co., Inc., 113 NLRB 1040. And in United Construction Workers v.
Haislip Baking Company, 223 F. 2d 872 (C. A. 4), a case under Section 301 of
the Act, the court pointed out "It is argued that a strike could not constitute a
breach of a contract which did not contain a no-strike clause; but we think it clear
that the purpose of the contract was to require the settlement of disputes and griev-
ances by a procedure which would not cause the disruption of business that would
necessarily result from a strike and that a strike without following such procedure
was necessarily a breach. See Hazel-Atlas Glass Co. v. N. L. R. B. (C. A. 4) 127
F. 2d 109." See also United Mine Workers (Boone County Coal Corporation),
117 NLRB 1095.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing the General Counsel placed reliance on the language of article XV
of the contract entitled "Work Stoppages." 13 He contends apparently that the
presence of this clause in the contract discloses that the parties contemplated strike
action during the life of the contract . But it is obvious that this article , the next
to last article in the contract , anticipates strikes at the termination of the contract
when and if the parties are engaged in negotiations for a new contract , as contended
by Respondent. Moreover, the thrust of the article is that the signatories to the
contract will endeavor to "guard against loss of copper solutions in process, to
maintain the property and the necessary utilities of the property of the Company
and the health of the employees and their families." It is apparent therefore that
this article also anticipates health and safety measures to be undertaken in the event
of an unauthorized work stoppage.
Respondent points out that under the provisions of article XVI all provisions of
the contract not reopened for modification are automatically renewed. Thus article
II of the contract would prevent a strike even when the contract had ostensibly ex-
pired, but for the presence of article XV. Sustenance is given to this claim, not
inconsistent with the provisions of the contract, by both signatories thereto.
Both the representatives of Respondent and Mine Mill, Director of Industrial Rela-
tions Peterson and President Becerre, respectively , in their testimony interpret article
XV as granting the right to strike only during negotiations for a new contract. And
there is the further reason, as indicated above, that the thrust of article XV is also
to maintain property, utilities and health in the event of an unauthorized strike or
breakdown . Furthermore , the presence of language anticipating a strike situation
is not inconsistent with a contractual undertaking to refrain from a sti ike or to
proceed through other channels.
There is a close parallel between the contract in this case and that found in
N. L. R. B. v. Sunset Minerals, Inc., 211 F. 2d 224 (C. A. 9). In that case, the
contract provided a detailed grievance procedure starting with a complaint by the
employee to his immediate superior through company channels to the highest officer
of the company and then submission to arbitration; the contract did not contain a
no-strike clause. A number of employees, masking their displeasure over the em-
ployer's failure to improve working conditions, left work and on their return told
their supervisors that they had "gone fishing"; the day of the walkout, as the court
noted, coincided with the opening of the fishing season.
The court pointed out that "Upon their return the men did not claim that they
had walked out because of the grievances, but to the contrary stated that they had
gone fishing. In these circumstances we do not see how the employer can be
said to have discharged men for engaging in a protected concerted activity when
they had no knowledge that such an activity was occurring. . . . Even if the walk-
out in this case had been a strike, it was a strike in violation of the grievance and
safety procedures laid down in the contract between the Union and the respondent
and hence was not a protected activity. See N. L. R. B. v. American Manufacturing
Co. of Texas, 203 F. 2d 212 (C. A. 9)." 14
I am at a loss to see how the discharges in the present case may be found to be
violative of the Act, if those in the above-cited case were not. Stability of labor
relations and reduction of labor strife, a basic policy of the Act, dictate the require-
ment that a contractual commitment of a union is binding upon its members and
that a walkout in derogation thereof is unprotected. I find therefore that even if
the five complainants did engage in a concerted activity for their mutual aid or pro-
tection, they did so in derogation of the express language of the contract between
13 Article XV provides as follows :
During a period when the Ray operations are shut down for any reason, the Union
and the Company agree that sufficient employees will be allowed to man the jobs
necessary to guard against loss of copper solutions in process, to maintain the
property and the necessary utilities of the property of the Company and the health
of the employees and their families. In event of a strike this provision will operate
providing the Company does not attempt to continue operations except to the extent
herein provided.
Article XVI provides a 3-year duration for the agreement and thereafter from year to
year unless terminated or modified It further specifies how the parties thereto can termi-
nate or modify the agreement by a specified period of notice before the expiration of the
contract; it further provides "all clauses hereof not specifically so reopened or affected
by such proposed modifications shall be renewed automatically "
14 In the instant case, Director of Industrial Relations Peterson conceded that he
assumed at the time of the departure of the men they had left together and that he learned
otherwise at the instant hearing.
EATON MANUFACTURING COMPANY 813
Respondent and their bargaining representative and that as a result it was not a
protected activity . As a result , Respondent did not commit an unfair labor prac-
tice within the meaning of the Act by discharging them for their conduct . Accord-
ingly , and in view of the considerations previously expressed , I recommend that the
complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent affect commerce within the meaning of Section
2 (6) and (7) of the Act.
2. International Umon of Mine , Mill, and Smelter Workers and United Steel-
workers of America , AFL-CIO, are labor organizations within the meaning of
Section 2 (5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 ( a) (1) and (3) of the Act.
[Recommendations omitted from publication.]
Eaton Manufacturing Company and International Union, Inter-
national , Association of Tool Craftsmen , affiliated with
I. S. S. T. & N. I. U. C., Petitioner. Case No. 7-RC-8844. Sep-
tember 9, 1958
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before James H. Wehren-
berg, hearing officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Intervenor, International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America (UAW),
AFL-CIO, hereinafter also referred to as the UAW, and its Local
196, are labor organizations representing employees of the Employer.
The Employer and the Intervenor moved to dismiss the petition on
the ground that the Petitioner is not a labor organization qualified
for Board certification in a departmental or craft unit of tool and
die employees under the American Potash doctrine.' In view of the
decision herein dismissing the petition on unit grounds, no purpose
would be served in considering these motions. We shall therefore
make no determination in ,this proceeding concerning the qualifica-
tion of the Petitioner to sustain its petition. -
` 1107 NLRB 1418, where the Board held that only a traditional union may sustain a
craft or departmental severance petition.
121 NLRB No. 104.