Meramec Mining Co.

National Labor Relations Board - Board Decisions

Dec 28, 1961

134 N.L.R.B. 1675 (N.L.R.B. 1961)

MERAMEC MINING COMPANY 1675
IV. THE REMEDY
Having found that the Union has engaged in and is engaging in certain unfair labor
practices affecting commerce , I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Union , by maintaining a practice which requires mem-
bership in or clearance by the Union as a condition of employment , and which gives
preference in employment to union members in good standing , restrained and
coerced employees and caused employees to discriminate in violation of Section
8(b)(1)(A ) and (2 ) of the Act. It has further been found that , by causing Kauf-
mann to terminate Gooden 's employment for 1 day because he did not have his
union card in his possession , the Union similary violated said sections of the Act.
I shall therefore recommend that the Union cease and desist therefrom . I shall
further recommend that the Union make Gooden whole for loss of 1 day's pay, less
the shapeup fee for that day.
The "generalized scheme" or practice indicated and the "proclivity for unlawful
conduct (which ) has been shown" warrant an order covering the Union 's practice
vis-a-vis any other employer.5
Upon the basis of the above findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. International Longshoremen 's Association , Local 1408 , is a labor organization
within the meaning of Section 2(5) of the Act.
2. By causing the Companies to discriminate in regard to hire and tenure of
employment and terms and conditions of employment in violation of Section 8(a)
(3) of the Act, the Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b) (2) of the Act.
3. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A ) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
a Communications Workers of America, AFL-CIO, et al. ( Ohio Consolidated Tel. Co.) v:
N.L.R.B., 362 U.S. 479. Cf. United Contractors Council, et al, d/b/a Bishop Plumbing and
Elect. Co., 126 NLRB 1142; N.L.R.B. v. Revere Metal Art Co., Inc., et al ., 280 F. 2d 96
(C.A. 2). See also McComb, Wage and Hour Administrator v. Jacksonville Paper Como.
pany, 336 U.S. 187, 192.
Meramec Mining Company and United Steelworkers of America,
AFL-CIO, Petitioner. Case No. 14-RC-3983. December 28, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed, a hearing was held before Thomas W.
Seeler, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hearby 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-member panel [Chairman McCulloch and Mem-
bers Rodgers and Brown].
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.'
' It was stipulated by the parties that the Employer has an Indirect inflow of goods,
purchased trom sources within the State, which goods originated outside the State, In excess
134 NLRB No. 167.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization z involved claims to represent certain
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) andSection2(6) and (7) of the Act.
4. The Petitioner seeks a single unit of office clerical and technical
employees. Alternatively, it is willing to accept separate units of
office clerical, plant clerical, and technical employees, or the addition
of the plant clericals to its existing unit of hourly rated employees
engaged in shaft-sinking operations, should the Board determine
that the plant clericals are entitled to a self-determination election.'
The Employer opposes the inclusion of office clerical and technical
employees in a single unit, and although it does not object to the addi-
tion of the plant clericals to the existing unit represented by the Peti-
tioner, it maintains that the plant clericals are entitled to a self-
determination election.
The Board has recently reexamined its treatment of unit placement
of technical employees. Pursuant to this reconsideration we have
decided to revise the rule enunciated in Litton Industries of Maryland,
Incorporated.4 In all future decisions technical employees ,will not
be automatically excluded from units of other employees whenever
their unit placement is in issue.5 Rather, we shall determine their
unit placement on the basis of an analysis of their community of in-
terest.' In so doing, we shall consider, among other factors, the skills
and duties of employees in the units under consideration, the presence
or absence of common supervision, the similarity or disparity of work-
ing conditions, the kind of industry, the contact or interchange with
other employees, and the organization of the plant. We shall also
consider whether any union seeks to represent any group of employees
separately.'
The parties agree that certain employees among those requested by
Petitioner are technical employees; i.e., surveyors, surveyor drafts-
of $50,000 per year and that, accordingly, the Employer was engaged in commerce within
the meaning of the Act.
2 t was stipulated by the parties that the Petitioner was a labor organization within
the Imeaning of the Act
3 The Petitioner was certified by the Board ( in St Joseph Lead Co , and its affiliate
Mcrameo Mining Company, 14-RC-3440, not published in NLRB volumes) as the repre-
sentative of all hourly paid employees at the Employer's Pea Ridge , Missouri , "shaft-
sinking" operations . The unit found appropriate in the Board' s Decision and Direction
of Election, dated January 6 , 1959, included working leadmen , shaftmen , drillers , hoistmen,
laborers , electricians , machinists , truckdrivers , crane operators, carpenters , and ground
crew men, but excluding office clerical employees , professional employees , watchmen,
guards, and supervisors as defined in the Act
4 125 NLRB 722, 725.
c The Sheffield Corporation, 134 NLRB 1101, wherein the Board included some tech-
nicals with production and maintenance employees even though placement of technical
employees was in issue
Ibid
"]bid
MERAMEC MINING COMPANY 1677
men, and a shop draftsman. Also in this group is an employee desig-
nated as a "sampler," and, although the parties disagree on whether
he is a technical employee, they agree that he should be included in
any unit found appropriate which includes technicals. The surveyors;
surveyor draftsmen, and shop draftsman appear to be employees whose
work requires training in specialized scientific knowledge and the
exercise of discretion in the application of such knowledge. More-
over, the parties agree that they are technical employees. Upon the
above considerations, we find that these employees are technicals.
The surveyors work in and about the mine measuring the mine shaft
and making surveys, and apparently also work in an office, plotting
geological maps and interpreting these maps and detail drawings.
Their work contacts are apparently mostly with the surveyor drafts-
men, with whom they are supervised in common by the mine engineer.
The surveyor draftsmen make maps of the mine and mine area from
field notes (apparently notes of the surveyors). The shop draftsman
works under the supervision of the mine's mechanical superintendent,
apparently in his office, making mechanical drawings and reading
blueprints for new construction, requisitioning parts and equipment,
doing typing, and answering the telephone. The "sampler". collects
rock samples from the mine shafts, prepares geological maps and cross
sections, and otherwise assists the surveyors. He is under the super-
vision of the mine geologist and apparently works in the mine and in
an adjacent office.
In the light of the standards we are adopting for determining unit
placement of technical employees we find that the surveyors, surveyor
draftsmen, shop draftsman, and "sampler" have a community of in-
terest only with one -another, rather than with the office clerical, plant
clerical, or mine shaft employees. They apparently have frequent
work contact with one another and perform functions which are
closely related to one another but not to the work of other employees.
As these employees have interests in common only with one another,
and not with the office or plant clericals, we shall order a separate
election among all technical employees, and shall include the "sampler"
in that unit.8
The office clerical employees work in the mine's main office under
the immediate supervision of the office manager. They do accounting
-and payroll work as well as, typing, filing, and answering- the tele-
phone. Three storehouse clerks work in the mine warehouse under the
immediate supervision of the head storekeeper. They are engaged in
keeping records of supplies, operating a forklift truck, receiving and
issuing materials; and checking inventory. We find that these store-
house clerks are plant clericals. There is no interchange between these
two groups or between these employees and others working at the
° Ci. The Sheffield Corporation , supra, at footnote 5
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mine site , and each group apparently has little work contact with other
employees. Accordingly, we find that the office clerical employees con-
stitute a separate' appropriate unit, and that the storehouse clerks, as
plant clericals, may, if they so desire, become part of the existing pro-
duction and maintenance unit.
` The parties disagree as to the inclusion of the assistant to the secre-
tary of the resident manager in the unit of office clerical employees.
The Employer contends that this employee should be excluded from
any appropriate unit because of his confidential status. The Petitioner
denies that such confidential status exists and argues for his inclusion
in the unit of office clericals. This employee substitutes for the regular
secretary to the resident manager in taking dictation and typing and
assists the secretary when his work load is too heavy. He also sub-
stitutes as a switchboard operator and does general filing and
stenographic-typing duties. Although the resident manager is en-
gaged in matters relating to labor relations policy for the Employer,
the assistant to the secretary of the resident manager spends only a
fraction of his time in substituting for the regular secretary in such
matters. Neither this circumstance nor the fact that this employee also
has access to files containing confidential material, establishes a con=
fidential status according to applicable Board precedents We shall,
therefore, include him in the unit of office clerical employees.
In accordance with the considerations set forth above, we find that
the following described units of employees are appropriate for the
purposes of collective bargaining within the meaning of Section 9(b)
of the Act :
A. All office clerical employees employed at the Employer's Pea
Ridge, Missouri, shaft-sinking operation, including the assistant to
the secretary of the resident manager, but excluding all other em-
ployees, watchmen, guards, and supervisors as defined in the Act.
B. All technical employees employed at the Employer's Pea Ridge,
Missouri, shaft-sinking operation, including surveyors, surveyor
draftsmen, samplers and sampler trainees, and shop draftsman, but
excluding all other employees, watchmen, guards, and supervisors
as defined in the Act.
We further find that the following plant clerical employees consti-
tute an appropriate voting group for purposes of choosing a collective-
bargaining representative. If a majority of employees in this voting
group vote for the Petitioner, they will be taken to have indicated
their desire to be included in the existing unit of employees of the
Employer's shaft-sinking operation at Pea Ridge,- Missouri , presently
represented by the Petitioner, and the Regional Director conducting
0 S u;ti/ t & Company, 129 NLRB 1391 , 1399; Huasmann Refrigerating Company, 125
NLRB 621, 623.
MERAMEC MINING COMPANY 1679
the election is instructed to issue a certification of the results of the
election-to that effect.io
C. All plant clerical employees, employed at the Employer's Pea
Ridge, Missouri, shaft-sinking operation, including all storehouse
clerks, but excluding all other employees, watchmen, guards, and
supervisors as defined in the Act.
5. Determination of representatives: The Employer herein con-
tends in effect that it does not now have a substantial and representa-
tive segment of office clerical, • technical, and/or plant clerical
employees presently employed at its Pea Ridge, Missouri, operations
and that consequently the petition herein is premature and should be
dismissed. The Employer is a'Missouri corporation presently engaged
in the operation of mine development, shaft sinking, and construction
in preparation for eventual mining and pelletizing of iron ore at
the mine site. It anticipates that its current shaft-sinking operations
will continue until the summer of 1963 when full-scale mining and
mill production operations should begin, including the pelletizing of
iron ore at the mill located at the mine. At that time the Employer
expects to employ about 800 production and maintenance employees
in mining and mill processing of iron ore. It admitted, however, that
there was no certainty that production operations would in fact begin
at the estimated time in the summer of 1963 as contemplated.
At the time of the hearing, the Employer employed about 110 to
115 hourly paid employees in its shaft-sinking operation at the mine
site in question. Its plans were to expand this complement to about
200 employees beginning in September or October 1961. It also em-
ployed about four "office clerical employees, an unspecified number of
technical employees, and about three storehouse clerks, whose func-
tions, like those of the shaft-sinking employees, were not principally
concerned with the preproduction phase of the Employer's activities.
Although the Employer testified that in connection with its produc-
tion plans it expected to increase-the number of office clericals to some
38 or 40 employees, the number of storehouse employees to about 7,
and the number of technical employees substantially, it indicated that
its immediate plans in this regard were more modest, and any clerical
or technical expansion that would take place in September or October-
1961, apparently would follow the pattern'of increase in proportion
to the increase of shaft-sinking employees engaged in its present
operations.
Apart from the speculative nature of the Employer's plans to ex-
pand its work force when -production nears in 1963, it is clear that
10 Vulcanized Rubber and Plastics Company, Inc , 129 NLRB 1256, 1262. Although it
appears that the storehouse clerks, the plant clericals involved , are salaried and that their
method of payment is , thereby, different from the hourly paid "shaft -sinking" employees,
this will not prevent their inclusion in the existing unit of "shaft -sinking" employees, cu-
rently represented by the Petitioner.
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before such time arrives, the Employer will continue to be engaged in
a relatively stable phase of its operations and for a substantial period
of time. It was the latter consideration which led the Board in an
earlier case involving this Employer,'1 and these operations, to enter-
tain a petition for a unit of all hourly paid employees employed at
the Employer's Pea Ridge, Missouri, shaft-sinking operation, and
find that, in view of the stability of the Employer's present operations,
it would be unjust to deprive the hourly rated employees of an im-
mediate election. We think such considerations are also applicable
in the present instance. The clerical and technical employees are also
primarily engaged in the same phase of operations, and it is apparent
that these operations will continue for a relatively substantial period
of time. While there may be an immediate increase in the number of
clerical and technical employees, the increase will not be of such pro-
portions as to make the present complement of these employees an
insubstantial number, or materially alter the representative character
of the employees now employed.
As to the storehouse clerks, the aforesaid considerations do not even
apply, since, as plant clericals, they may properly be included in the
existing unit of shaft-sinking employees, and it is apparent that the
addition of the storehouse clerks to this unit will not appreciably
affect the substantial and representative character thereof. We find,
therefore, that, apart from other considerations, the present comple-
ments of office clerical and technical employees constitute substantial
and representative segments of the contemplated complements for
its shaft-sinking operations, that the addition of the storehouse clerks
to the existing unit of hourly paid employees will not substantially
affect that unit, and that elections may properly be held at this time.
[Text of Direction of Elections omitted from publication.]
"St. Joseph Lead Co ., and its affi liate Meramec Mining Company, supra., at footnote 3.
Retail Clerks International Association , AFL-CIO, Local 219 and
National Food Stores, Inc. and Local 534, Amalgamated Meat
Cutters and Butcher Workmen of America, AFL-CIO. Case
No. 14-CP-14. December 29, 1961
DECISION AND ORDER
On May 18, 1961, Trial Examiner John H. Dorsey issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent 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 Intermediate Report attached hereto.
134 NLRB No. 166.