Kennecott Copper Corp.

National Labor Relations Board - Board Decisions

Oct 13, 1964

148 N.L.R.B. 1653 (N.L.R.B. 1964)

KENNECOTT COPPER CORP. (CHINO MINES DIVISION) 1653
en Plumbing Company, S. C. Sachs Co., Inc., and Harold Grau,
or any other person engaged in commerce, or in an industry
affecting commerce, to engage in a strike, or a refusal in the
course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, materials, arti-
cles, or commodities, or to perform any services, nor will we
threaten, coerce, and restrain the above-named Employers, or
any other person, where an object thereof is to force or require
Rosenbloom, or any other person, to cease doing business with
Cupples Products Corporation.
GLAZIERS' LOCAL No. 513, AFFILIATED WITH BROTH-
ERHOOD OF PAINTERS, DECORATORS AND PAPER-
HANGERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board Regional
Office, 4459 Federal Building, 1520 Market Street, St. Louis 3,
Missouri , Telephone No. Main 2-4158, if they have any question con-
cerning this notice or compliance with its provisions.
Kennecott Copper Corporation ( Chino Mines Division) and
International Association of Machinists, AFL-CIO
Kennecott Copper Corporation ( Chino Mines Division) and
International Brotherhood of Boilermakers , Iron Ship Build-
ers, Blacksmiths , Forgers & Helpers, Local 632, AFL-CIO.
Cases Nos. 28-CA-958 and 28-CA-961. October 13, 1964
DECISION AND ORDER
On January 6, 1964, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled case, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as set forth in
his attached Decision. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's Decision and
supporting briefs.
148 NLRB No. 169.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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-member panel [Members Fanning, Brown, and
Jenkins]. '
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
Decision and the entire record in this case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified below.'
[The Board dismissed the complaint.]
i Our agreement with the Trial Examiner 's ultimate conclusion is based on the particu-
lar circumstances of this case, including the fact that the Respondent ' s allegedly unlawful
unilateral action resulted in no significant detriment to the employees in the appropriate
unit, and the further fact that the Respondent agreed to and did bargain about its action
as soon as the Union protested.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Trial Examiner Martin S. Bennett at Silver City,
New Mexico , on October 1, 1963. The complaint 1 alleges that Respondent, Ken-
necott Copper Corporation (Chino Mines Division ), had engaged in unfair labor
practices within the meaning of Section 8(a) (5) and ( 1) of the Act by unilaterally
subcontracting , without prior notice, to Machinists and Boilermakers certain unit
work customarily performed by employees in the units represented by those organi-
zations . Briefs have been received from the General Counsel and Respondent.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Kennecott Copper Corporation (Chino Mines Division ) is a New York corporation
which maintains a Chino Mines Division at Santa Rita and Hurley , New Mexico,
where it is engaged in the mining and reduction of copper ores and related products.
Said division ships products valued in excess of $50,000 per annum directly to points
outside the State of New Mexico . I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of the Act.
U. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists , AFL-CIO, and International Brotherhood
of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers and Helpers , Local 632,
AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
At its Hurley milling operations , Respondent utilizes a piece of equipment known
as a Garfield roll base . Four are in operation at all times and a fifth is held in re-
1 Issued July 30, 1963, and based upon charges filed on May 22 and 27, 1963 , respee-
tively, by International Association of Machinists, AFL-CIO, and International Brother-
hood of Boilermakers, Iron ship Builders, Blacksmiths , Forgers and Helpers, Local 632,
AFL-CIO, herein called Machinists and Boilermakers.
KENNECOTT COPPER CORP. (CHINO MINES DIVISION) 1655
serve. Approximately once a year it becomes necessary to rebuild a Garfield roll base
and this repair work had previously been performed at the mill by employees in the
two bargaining units represented by the charging unions. Specifically, in addition to
their normal duties, members of the bargaining unit represented by Boilermakers did
a portion of the work falling within their competence for the past 15 years and
members of the unit represented by Machinists performed the portion falling within
their skills for the past 3 years and, to to a lesser extent for the past 11.
On May 13, 1963, without any notice to either labor organization, Respondent
unilaterally subcontracted the rebuilding of a Garfield roll base to Darbyshire Steel
Company, El Paso, Texas, and on that date a Darbyshire truck hauled the Garfield
roll base to its El Paso plant where the work was to be performed. The General
Counsel attacks this subcontract as constituting a refusal to bargain in good faith and
relies upon the principles enunciated by the Board in Town & Country Manufactur-
ing Company, Inc., et al., 136 NLRB 1022 and Fibreboard Paper Products Corpo-
ration, 138 NLRB 550. This actually would involve an extension of the doctrine,
because, unlike those cases, it is undisputed that no jobs were lost as the result of this
business decision. All invoved had previously worked a 5-day 40-hour workweek
and continued to do so thereafter, although there is dispute as to the amount of over-
time, if any, that would have been worked had Respondent done this work itself.
B. Appropriate units and majority representation therein
All boilermakers, boilermaker layout men, boilermaker helpers, boilermaker ap-
prentices , welders, and car repairmen at the Hurley, New Mexico, boilershop, includ-
ing the Santa Rita car repairmen and the triple valve man, but excluding cleanup men,
clerical employees, supervisors, assistant supervisors and the foreman, constitute a
unit appropriate for the purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
All machinists and helpers at the Santa Rita and Hurley, New Mexico, operations
and all machinists,. helpers, mechanics, burners, and apprentices employed at the
Hurley smelter, excluding supervisors, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
Boilermakers and Machinists at all times material herein have been and now are
the respective representatives of the employees in the above-described appropriate
units for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
C. Alleged refusal to bargain
The Boilermaker unit complement is 20 or 21 men. One to three men would
normally be assigned to the overhaul project which takes from 500 to 600 man-hours
to perform. The Machinists' unit personnel would customarily devote approximately
250 man hours to the task. The previous repair of a Garfield roll base lasted 13
months and was completed in 1962. This represents total elapsed time because the
personnel involved worked on the overhaul only when not otherwise engaged in their
normal assignments.
Respondent desired to have the 1963 project completed within 6 to 8 weeks and,
at the most , within 5 months, although, as of October 1, Darbyshire had not com-
pleted the job. Had Respondent's personnel worked full time on the overhaul, the
job would have taken approximately 90 days, this involving overtime work. It is
Respondent's policy to avoid such overtime work.
It is manifest that this issue raised by the General Counsel relates to normal unit
work and would fall within the scope of the cited cases upon which he relies. I find
therefore that this is a subject of mandatory bargaining. On the other hand, Re-
spondent has raised several defenses , and one of these, predicated upon the manage-
ment-rights clause of the contract, is deemed to be dispositive of the present issue.
The clause provides as follows:
Nothing in this agreement shall be construed to limit or impair the right of the
company to exercise its own discretion in determining whom to employ, and
nothing in this agreement shall be interpreted as interfering in any way with the
company's right to alter, rearrange or change, extend, limit or curtail its opera-
tions of any part thereof, to decide upon the number of employees that may be
assigned to work on any shift or the equipment to be employed in the per-
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance of such work, or to shut down completely, whatever may be the effect
upon employment, when in its sole discretion it may deem it advisable to do all
or any of said things.2
The most recent contract negotiations took place in 1956, 1959, 1961, and 1962.
The record discloses that during this entire period the clause was not a sleeper and that
the parties consciously realized its scope. Thus, in the 1956 and 1959 contract
negotiations, the Unions attempted to place a ban against subcontracting in the con-
tracts. This attempt was successfully resisted by Respondent. In the 1961 and 1962
negotiations, the Unions did not raise the topic and the General Counsel claims that
anything short of a clear and unmistakable waiver by them of their right to be heard
on the topic of subcontracting may not be recognized.
The record also demonstrates that in the very same 1956, 1959, and 1962 negotia-
tions, the Unions attempted to modify the management-rights clause. It is likewise
undisputed that Respondent successfully resisted this change and that the clause has
been unchanged since 1956. I find, therefore, that the clauses were operative and
consciously so on both sides.
An inspection of the clause readily demonstrates its breadth. It flatly gives Re-
spondent the right to exercise its sole discretion, which "Nothing in this agreement"
may "limit or impair." It further gives Respondent the right to alter, limit, or curtail
its operations or any part thereof as well as to decide on the number of personnel to
be used and the right to shut down completely "in its sole discretion." Obviously, this
clause permits Respondent to go much further than they did in the instant case.
It would logically follow that the sending out of the repair job is sanctioned by this
broad language. This is so even if the overhaul did affect personnel in the units,
which it did not in any real sense because all personnel continued to work their regu-
lar 40-hour workweek.3 While it is admitted that the time factor was the primary
reason for the subcontract, the cost factor in overtime pay because of personnel limi-
tations was also a factor. Thus, the position of the General Counsel reduces itself
to a claim that Respondent should have gone on an overtime basis at penalty pay to
keep this extra work in the unit.
Be that as it may, I find that this broad management prerogatives clause reserves to
Respondent the right to take precisely the action it took. Consequently, the labor
organizations involved herein have thereby waived any rights they otherwise enjoyed
to be heard on the issue of subcontracting. Indeed, the Supreme Court has recog-
nized a savings clause of a more ambiguous nature as constituting a valid disclaimer
of illegal strike objectives by a labor organization. N.L.R.B. v. News Syndicate
Company, Inc., et al., 365 U.S. 695. I shall, therefore, in view of the foregoing
considerations, recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The operations of Respondent, Kennecott Copper Corporation (Chino Mines
Division) affect commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists, AFL-CIO, and International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local
632, 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) (5) and (1) of the Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclusions of law, it is recommended
that the complaint be dismissed in its entirety.
2 These organizations have for some years conducted joint negotiations and have signed
similar agreements. This clause appears in both contracts, although in different locations,
in an article entitled "Scope of Agreement."
3 There were no Boilermakers' unit personnel in layoff status and none were available
for hire in May of 1963. Only one machinist, Twa, was then on layoff and he refused an
offer of work from Respondent in June. This date was prior to the time when Machinists'
unit personnel would have performed their portion of the overhaul, had Respondent done
it in the plant.