Steelworkers Local 392 (Bp Minerals)

National Labor Relations Board - Board Decisions

Apr 28, 1989

293 N.L.R.B. 913 (N.L.R.B. 1989)

STEELWORKERS LOCAL 392 (BP MINERALS)
United Steelworkers of America , Local 392 and
Kennecott, Utah Copper Division , a Division of
BP Minerals of America
Kennecott-Utah Copper and Local 485 , United Steel-
workers of America , District 38, Subdistrict 5,
Petitioner Cases 27-CD-225 and 27-UC- 112
April 28, 1989
DECISION, ORDER, AND
DETERMINATION OF DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
The petition in Case 27-UC-112 was filed on
March 3, 1988, by USWA Local 485 (Local 485)
It sought, by way of a unit clarification petition, to
represent employees performing work on the Em-
ployer's in pit crusher facility located at the
Bingham Canyon minesite in Utah On March 31,
1988, the Acting Regional Director dismissed the
petition finding clarification of the bargaining unit
was not warranted, as the changed work and cir
cumstances made the Employer' s assignment to
USWA Local 392 (Local 392) appropriate On
June 17, 1988, the Board remanded the case to the
Regional Director for a determination on the
merits
The charge in Case 27-CD-225 was filed July
13, 1988, by the Employer, alleging that the Re-
spondent, Local 392, violated Section 8(b)(4)(D) of
the National Labor Relations Act by threatening a
work stoppage with an object of forcing the Em
ployer to continue to assign certain work to em
ployees it represents rather than to employees rep-
resented by Local 485 As the issues in the two
cases were closely related, they were consolidated
on July 26, 1988 The hearing was opened before
Hearing Officer Donald E Chavez on August 9,
1988, and closed on November 14, 1988
The National Relations Board has delegated its
authority in this proceeding to a three-member
panel
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error On the
entire record," the Board makes the following find-
ings
i After the close of the hearing the Board received from Local 485 a
supplemental affidavit of David James The Board also received a Janu
ary 12 1989 motion from the Employer to strike the affidavit and a re
quest to admonish Local 485 s counsel for alleged posthearing miscon
duct regarding the submission of the affidavit Local 485 submitted a Jan
uary 27 1989 motion to reopen the record to consider the affidavit and a
motion to admonish the Employer for alleged misconduct during the
hearing The parties have filed various memoranda and opposition state
ments regarding these motions
Insofar as the affidavit of David James reflects new or previously un
available evidence regarding common supervision of employees repre
sented by Local 485 and the employees assigned the work in dispute we
913
I JURISDICTION
The Company conducts mining operations at its
facility just outside of Salt Lake City, Utah It an-
nually purchases and receives goods, materials, and
services in excess of $50,000 from places outside of
the State of Utah The parties stipulate, and we
find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that Local 392 and Local 485 are labor or-
ganizations within the meaning of Section 2(5) of
the Act
II THE DISPUTE
A Background and Facts of Dispute
The Employer operates an open-pit copper mine
in Bingham Canyon, Utah The Employer has had
a lengthy collective bargaining relationship with
both Locals Local 485 has historically represented
certain employees working within the confines of
the mine pit Local 392 has for more than 35 years
represented certain employees performing work
outside the mine pit , including those working in
crusher/concentrator facilities outside the pit Be
tween late 1987 and early 1988 the Employer es-
tablished a modern crusher facility in the pit The
Employer assigned the operation of the crusher to
employees from the crusher/concentrator operation
represented by Local 392 Local 485 then filed a
unit clarification petition, and Local 392 threatened
a strike if the work was taken from the employees
it represented The Employer then filed a charge
against Local 392 alleging a violation of Section
8(b)(4)(D) At the hearing, Local 485's president
testified that he demanded the work in dispute be
assigned to his members He also testified that if
the employees currently operating the crusher re-
mained but were represented by Local 485, he
would not object Neither Local 485 nor Local 392
has relinquished its claim to the work, nor has
Local 485 retreated from its stated willingness to
represent the employees originally assigned the
work
B Work in Dispute
The disputed work involves filling three classifi-
cations (crusher operator, crusher attendant, and
grant the January 27 1989 motion of Local 485 to reopen the record for
the limited purpose of admitting the affidavit of David James dated Janu
ary 6 1989 and deny the Employer s January 12 1989 motion to strike
the affidavit See the Board s Rules and Regulations Secs 102 90 and
102 65 (e)(1) However in view of our disposition of this case adverse to
the contentions of Local 485 we find it unnecessary to conduct a further
hearing on this matter in order to give the other parties an opportunity to
present evidence relating to James duties
We deny the requests of the Employer to admonish Local 485 s coun
sel and of Local 485 to admonish the Employers counsel
293 NLRB No 111
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crusher utilityman) that staff the crusher operation
at the Employer's copper mine in Bingham
Canyon, Utah 2
C Contentions of the Parties
The Employer contends that this matter is a dis-
pute over which Local's members should perform
the new work rather than a dispute over which
Union should represent the employees doing the
new work It also contends that its assignment was
proper, based on all factors, but it especially con-
tends that the experience of employees represented
by Local 392 in this type of work is extensive, cru-
cial for efficiency of operations, and without paral-
lel among the employees represented by Local 485
Local 485 contends that this matter is a dispute
over whether the three new job classifications re
lating to the new in-pit crusher should be part of
its bargaining unit, in light of its prior production
and maintenance certification and all other relevant
factors including skills and training
Local 392 did not file a brief, but was represent-
ed at the hearing, where it remarked in its opening
statement that it generally agreed with the Em-
ployer's position
D Applicability of the Statute
Local 392's president, Ralph R Christensen, Jr,
testified that he threatened a strike if the crusher
work was reassigned to employees represented by
Local 485 Despite the absence of anything other
than a representational desire in Local 485 s posi-
tion statement as set forth in its brief, the testimony
of Local 485's president, as mentioned above,
shows Local 485 also desired to secure the disput-
ed work for Local 485's members 3 Neither Local
485 nor Local 392 has relinquished its competing
claim to the disputed work In these circumstances,
we find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred Further, there
exists no agreed method for voluntary adjustment
of the dispute within the meaning of Section 10(k)
of the Act Accordingly, we find that the dispute is
properly before the Board for determination
E Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors NLRB v Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U S 573
2 The description of the relevant job classifications appears as agreed
to by the parties at the hearing
3 Although we find this we disagree with the Employers statement in
its brief that the parties stipulated that both Unions were making claims
to the disputed work The record shows that Local 485 s counsel re
mewed silent when the stipulation was proposed
(1961) The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal
ancing the factors involved in a particular case
Machinists Lodge 1743 (J A Jones Construction),
135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of the dispute
1 Certifications and collective-bargaining
agreements
In 1943 Local 485 was certified to represent the
"remaining production and maintenance employ-
ees" in the mine 4 In 1951 Local 392 was certified
as the bargaining representative of all the employ-
ees at the then existing concentrator facilities "in
the classifications covered by the existing contract
between the Employer and the Intervenor " That
agreement assigned job classifications pertaining to
the operation of a coarse crusher to employees rep
resented by Local 392 The record shows that
these job classifications (tipple operator, coarse
crushing operator, helper, and utilityman) had job
descriptions very similar to those of the disputed
classifications (crusher operator, crusher attendant,
and crusher utilityman) pertaining to the modern
in-pit crusher However, these job classifications
came under the heading of mill operation, referring
to the concentrator plants outside the mine Thus,
although Local 392's certification identifies classifi-
cations similar to ones used to describe the jobs in-
volved in the work, it applies to a unit of employ
ees who are employed away from the mine Simi-
larly, although the new crusher operation is locat
ed in the mine, the same location in which the em-
ployees covered by Local 485's certification work,
the unit description in that certification does not
refer to the disputed work either by job classifica-
tion or by machine Because each of the certifica
tions has an element in support of the competing
claims that the other lacks, the certification factor
does not favor an award of the work to either
group of employees
The Employer's present collective-bargaining
agreement with Local 392 likewise lists Local 392
as the representative of employees in the crusher
job classifications but lists them in the concentrator
plant, whereas Local 485's collective-bargaining
agreement lists it as the representative for employ-
ees in job classifications in the mine, but not for
this specific type of work In interpreting collec-
tive-bargaining agreements, the specific is favored
4 Various groups of craft employees employed in the mine at that time
i e machinists electricians and operating engineers chose representation
by their respective craft unions instead of Local 485
STEELWORKERS LOCAL 392 (BP MINERALS) 915
over the general 5 Hence, consideration of the re-
spective collective-bargaining agreements favors an
award of the disputed work to employees repre
sented by Local 392
2 Company preference and past practice
The Company prefers employees represented by
Local 392 to do the work and has assigned them
the work Although the Company has had a gener
al practice of assigning new work in the mine cre-
ated by modernization to Local 485, it has a great-
er than 35 year history of assigning
crusher/concentrator work to Local 392 Hence
company preference and past practice weigh in
favor of assigning the disputed work to employees
represented by Local 392
3 Area and industry practice
Three examples were given concerning area and
industry practice in staffing in-pit crushers In all
cases, the particular employer involved staffed its
in pit crusher with employees who had previously
worked in concentrator plants However, in two of
the three cases the concentrator and mine employ-
ees were represented by the same local, and in the
third case the employees were unrepresented This
evidence does not reveal what the employers in the
industry typically do when faced with competing
claims for in-pit crusher work Thus, this factor
favors neither Union's claim to the work 6
the rest of the operation Some of the employees
currently assigned to the crusher have experience
with the old crusher, and all, including those as
signed to in pit crusher cleanup work, have con
centrator plant experience Although a few em
ployees represented by Local 485 have experience
with a conveyor belt system, it is with respect to a
relatively slow and short system The job of most
employees represented by Local 485 is driving ore
haulage trucks The experience that employees rep-
resented by Local 485 have in breaking up rocks
with explosives and jackhammers is not equivalent
to the experience of employees represented by
Local 392 in crusher/concentrator operations The
evidence thus indicates that employees represented
by Local 392 have more relevant experience than
those represented by Local 485 Thus, relative
skills and economy and efficiency of operations
clearly weigh in favor of awarding the work in dis-
pute to employees represented by Local 392
5 Safety
The evidence presented on the issue of safety is
not sufficient to favor the work jurisdiction claim
of either Local 485 or 392
6 Job loss
In light of the other factors involved, job loss is
not determinative and we do not rely on it in
reaching our conclusion
4 Relative skills and economy and efficiency
of operations
The record indicates that the premodernization
crusher/concentrator plants involved a crusher, a
grinder, a flotation area where the ore was mixed
with refining chemicals, and a conveyor belt
system of considerable length and speed Mistakes
by the crusher operator in regulating the type, mix,
and moisture of ore entering the system could have
a major impact on every stage of the operation
The modern system places the crusher in the
mine, and transports ore to the concentrator by an
even longer and faster conveyor belt system It is a
larger and more automated version of the old
crusher Employees who have been represented by
Local 392 have experience with fast conveyor belts
and with the relationship between the crusher and
5 See Operating Engineers Local 926 (Cannon Inc) 258 NLRB 1101
1103 (1981) a 10(k) proceeding involving air compressors Both collec
tive bargaining agreements covered work that usually involved air corn
pressors but only one specifically mentioned the type of work in dispute
in which such compressors would be used
6 In Member Johansen s view the area and industry practice of staffing
in pit crushers with employees who had previously worked in concentra
tor plants favors the assignment of that work here to the similarly situat
ed employees represented by Local 392
Conclusions
After considering all the relevant factors, we
conclude that employees represented by United
Steelworkers of America, Local 392 are entitled to
perform the work in dispute We reach this conclu-
sion relying on the collective-bargaining agree-
ments, employer preference, past practice, the rela
tive skills of the employees, and efficiency and
economy of operations
In making this determination, we are awarding
the work to employees represented by United
Steelworkers of America, Local 392, not to that
Union or its members The determination is limited
to the controversy that gave rise to this proceed-
ing
The UC Petition
The Employer has requested that the petition be
dismissed on the ground that this is a work dispute
and work disputes cannot be properly resolved in
the context of unit clarification However, we find
that even before there was a threat of a work stop-
page, that gave rise to the jurisdictional dispute
proceeding, Local 485 had filed the unit clarifica-
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion petition which raised the question of the place
ment of the disputed classifications 7 A unit clarifi
cation petition need not be dismissed merely be-
cause the case contains elements of a work dis-
pute 8 The Employer's request to dismiss the peti-
tion on this ground is therefore denied
However, because the employees represented by
Local 485, as set forth above, have very different
skills and duties from those of crusher employees,
who have been represented by Local 392, there is
an inadequate community of interest between the
employees represented by Local 485 and the
crusher employees to warrant their removal from
being represented by Local 392 so that they may
be included in the unit represented by Local 485
' In Union Electric Co 217 NLRB 666 667 (1975) unit clarification
was stated to be proper for the resolution of this question
8 Monsanto Research Corp 195 NLRB 336 337 (1972) Compare the
case at hand with Machine Printers (Cranston Print) 269 NLRB 223 at fn
2 (1984) a 10(k) proceeding in which the Board dismissed unit clarifica
tion petitions after examining the contracts and finding that they gave no
support to the petitions The Board dismissed the petitions because it
found the petitioning union desired nothing more than the assignment of
work to its members In the case at hand however the petitioning union
has a colorable contract claim (albeit not as strong as the one favoring an
award of the disputed work to Local 392 represented employees) As
noted above Local 485 s president testified that the work in dispute
should be reassigned to his members However he also testified that he
would not object if the employees currently operating the crusher re
mained but were represented by Local 485
The factor of common supervision, as supported by
the affidavit of David Jones, see footnote 1, above,
is not enough to counterbalance prior practice and
the disparity of skills and duties Thus, there is no
basis to accrete the employees performing the dis-
puted work to Local 485's unit or to grant Local
485 representational authority over these employ-
ees without their first having exercised their Sec
tion 7 rights in a Board-conducted election 9 Ac-
cordingly we shall dismiss the UC petition
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
Employees represented by United Steelworkers
of America, Local 392 are entitled to fill three clas
sifications (crusher operator, crusher attendant, and
crusher utilityman) that staff the crusher operation
at the Employer's copper mine in Bingham, Utah
ORDER
The petition for unit clarification in Case 27-
UC-112 is dismissed
9 In other words an election pursuant to a petition for representation
or decertification would be required to determine 485 s representative
status be the employees current representation by 392 is not subject to
challenge in this unit clarification proceeding