The Golden Cycle Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1945

64 N.L.R.B. 817 (N.L.R.B. 1945)

In the Matter of PIKES PEAK FUEL DIVISION QF THE GOLDEN CYCLE
CORPORATION and UNITED MINE WORKERS OF AMERICA, DISTRICT 15,
LOCAL UNION No. 1662
Case No. 17-C-1200.-Decided November 14,1945
DECISION
AND
ORDER
On March 31, 1945, the Trial Examiner 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. Thereafter, the
Union and counsel for the Board filed exceptions to the Intermediate
Report and supporting briefs. No request for oral argument before
the Board at Washington, D. C., was made by any of the parties, and
none was held. The Board has reviewed the Trial Examiner's rulings
made at the hearing and finds that no prejudicial errors were com-
n utted. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs of the, Union and counsel for the Board, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein against Pikes Peak
Fuel Division of The Golden Cycle Corporation, Colorado Springs,
Colorado, be, and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr Elmer L . Hunt, for the Board
Messrs David P Sti icklei and Thoum .c M Burgess , Colorado Springs, Colo,
for the respondent.
Mr John Green, Denver , Colo. for the Union.
64N L R B, No 143
570417-46-vol 64 53 817
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge duly filed on January 31, 1945, by United Mine
Workers of America, District 15, Local Union No. 1662. herein called the Union,
the National Labor Relations Board, herein called the Board, by the Regional
Director for the Seventeenth Region (Kansas City, Missouri), issued its com-
plaint, dated February 5, 1945, against Pikes Peak Fuel Division of The Golden
Cycle Corporation, Colorado Springs, Colorado, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 ( 1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act Copies of the complaint accompanied by notice of hearing
thereon, were duly served upon the respondent and the Union.
With respect to unfair labor practices, the complaint alleged, in substance:
(1) that the respondent from on or about August 15, 1044, failed and refused
to employ Hilario Gonzoles, on August 31, 1944 failed and refused to employ Ora
Huffman, and from August 15, 1944 to August 28, 1944, failed and refused to
employ W illiam Kinnard, because of their activities on behalf of the Union ;
and that by the aforesaid acts the respondent interfered with, restrained, and
coerced , and is interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer admitting some of the allegations of the com-
plaint, but denying that it is engaged in commerce within the meaning of the
Act, and denying that it has committed any unfair labor practices
Pursuant to notice, a hearing was held at Colorado Springs, Colorado, on
February 23, 24, and 26, 1945, before the undersigned, Horace A Ruckel, the
Trial Examiner duly designated by the Chief Ti ial Examiner The Board and
the respondent were represented by counsel, and the Union by an organizer.
All parties participated in the hearing Full opportunity to be heard, to examine
and cross-examine the witnesses, and to introduce evidence bearing on the
issues, was afforded all parties.
At the close of the Board's case, the undersigned granted a motion by Board's
counsel to dismiss the complaint as to William Kinnard. Counsel for the
respondent moved to dismiss the complaint as a whole. and particularly with
respect to Hilario Gonzoles and Ora Huftman. The undersigned granted the
motion only as to Gonzoles. A motion of counsel for the Board to dismiss
certain allegations of the respondent's answer was granted without objection
At the conclusion of the hearing, Board's counsel moved to conform the
pleadings to the proof in respect to the spelling of names, dates, and other minor
inaccuracies. The motion was granted without objection. Opportunity to argue
orally before. and to file briefs with. the Trial Examiner, was waived by the
parties.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Golden Cycle Corporation is a West Virginia corporation with its principal
office and place of business in Colorado Springs, Colorado, where it is engaged in
the mining and milling of ore from which is extracted gold, silver, lead, and
zinc. In connection with its business it owns and operates a power plant and
mill. known as the Golden Cycle Mill, where gold is reduced to bullion and lead
PIKES PEAK FUEL DIVISION 819
and zinc ores are reduced to concentrates. The Golden Cycle Corporation owns
a majority of the stock in the Midland Terminal Railway Company. This rail-
way operates between Cripple Creek and Colorado Springs, and 97 percent of
its business is the transportation of gold ore from Cripple Creek to the Golden
Cycle Mill. The tracks of the railway are connected with those of the Denver
and Rio Grande Railway Company. The Golden Cycle Corporation owns the
majority of the capital stock of the Cripple Creek Stage Company which trans-
ports passengers for hire from Cripple Creek to Colorado Springs and inter-
mediate points. An agreement is in existence between the stage company and
the Denver-Colorado Springs and Pueblo Bus Company by the terms of which
tickets, sold by the stage company to points beyond the State of Colorado, are
honored by the Denver-Colorado Springs and Pueblo Bus Company, while the
stage company honors tickets sold for transportation to points on its route by
the Denver-Colorado Springs and Pueblo Bus Company. The stage company
likewise has a contract with the United States for the hauling of United States
mail, and accepts shipments of freight traveling in interstate commerce for
delivery along its route.
Pikes Peak Fuel Division of The Golden Cycle Corporation, the division involved
in this case, produces at its Pikeview mine in an average year, approximately
175,000 tons of coal, of which 11.8 percent is consumed at the Golden Cycle Mill in
the treatment of ores, 17 percent at the power plant, one-tenth of 1 percent for the
heating of railroad station buildings of the railway company, and approximately
71.1 percent is sold to other customers. The Golden Cycle Mill receives approxi-
mately 84 percent of the total electrical energy produced at the power plant
situated at the Pikeview mine, the mine involved in this proceeding. Approxi-
mately 750 tons of lead, zinc, and gold ores are milled daily by the respondent in
this mill. Of the ore so milled, approximately 400 tons, or 83 percent, are lead-
zinc ores which are reduced by milling to approximately 50 tons of concentrates
which are then shipped by rail to the American Zinc, Lead, and Smelting Com-
pany at Dumas, Texas, and to a smelting Company near St. Louis, Missouri.
The gold bullion produced in the mill is sold to the United States Mint at Denver,
Colorado. During an average year, Pikes Peak Fuel Division of the Golden
Cycle Corporation purchases supplies and machinery valued at approximately
$17,000, of which approximately 13 percent is purchased and shipped from points
outside the State of Colorado.'
The Board has found in a previous case2 that the respondent's production of
((,,I] affects commerce within the meaning of the Act.
If THE ORGANIZATION INVOLVED
United Mine Workers of America, District 15, Local Union No. 1662 , is a labor
organization admitting to membership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On November 4, 1943, the Board certified the Union as representative of the
respondent's employees in an appropriate unit following an election in which
substantially all of those voting cast their ballots for the Union. Following the
Board's designation, the Union and the respondent entered upon negotiations for
2 The facts recited herein are based on a stipulation between the respondent and the
Board and upon evidence adduced at the hearing.
2 Matter of Pikes Peak Fuel Division of The Golden Cycle Corporation, 55 N. L . R. B. 270.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a contract. The negotiations were protracted, and on July 5, 1944, the employees
at the respondent's mine went on an economic strike. The strike resulted in a
complete stoppage of work at the mine, until August 14, when the strike ended.
The respondent, on August 15, began taking back its striking employees, and it
was not contended at the hearing that in so doing the respondent discriminated
against any employee other than Huffman and Gonzoles.
0
B. The failure to reinstate Huffman
Ora Huffman first came to work for the respondent in 1931, as a laborer. At
the time of the strike on July 5, 1944, he was employed as tippleman under the
supervision of M. Q. Waddell, top foreman: Huffman joined the Union on May 23,
1943, at a reorganizational meeting, and was elected financial secretary-treasurer
Upon the Union's certification by the Board, a negotiating committee was formed
consisting of four or five employees, of whom Huffman was one. This committee,
on behalf of the Union, met numerous times with representatives of the respond-
ent prior to and throughout the strike which began on July 5, 1944. The record
shows that Huffman was present at most of the meetings with the respondent's
officials, and took an active part in the contract negotiations, although John Green,
district representative of the United Mine Workers, was as a rule the Union s
principal spokesman. Green testified that at a meeting on August 3 between him
and Merrill Shoup, the respondent's president, the two men discussed the strike,
and that Shoup declared during the course of the conversation that Huffman was
the "brains of the Local." Shoup, while testifying, admitted meeting with Green
on this occasion, but denied making any reference to Huffman as the "brains of
the Local." The undersigned carefully observed the demeanor of both Green and
Shoup while testifying, and was impressed both with Green's honesty and his
accurate recollection of events and conversations. He believes and finds that
Shoup made the statement concerning Huffman which Green attributed to him.
It is clear from the above findings that Huffman was one of the four or five of
the respondent's employees most active in the Union, and that this fact was well
known to the respondent.
As has been stated, the strike which began on July 5 terminated on August 14.
On August 7, Huffman left Colorado City and went to Norfolk, Virginia, on per-
sonal business. At the time of his departure he did not notify any supervisory
employee of the respondent that he was leaving, though it was the custom to do su.
The respondent was first intormed of his absence fioni the vicinity at a meeting
between representatives of the Union and the respondent on August 11, called
to discuss the terms upon which the striking employees would return to woik
Green explained Huffman's failure to attend this meeting in his customary role
as one of the Union's representatives, by stating that Huffman was "East on
business." During the meeting the respondent declared its intention, if the strike
were ended, of taking back all of the strikers without discrimination. On the
following day representatives of the Union and the respondent met to discuss the
order in which the strikers would be taken back. Although several Board wit-
nesses who were present at this meeting testified that Huf'frnan's absence was
again explained, and that it was stated that he would want his job back, this
testimony was denied by representatives of the respondent wi ho were also present.
The undersigned does not find it necessary to resolve this contradiction in the
evidence, for, on the evening of August 12, Huffman's wife telephoned Waddell,
8 Although it is not clear in the record , apparently some of the respondent 's employees
had for some time previously been members of this Union , which had become largely
inactive.
PIKES PEAK FUEL DIVISION 821
Huffman 's foreman. Mrs Huffman testified as follows concerning her husband's
absence and his prospective return :
I said, "Mr Waddell, I understand-I have been told the men are going
back to work Monday and I thought I had better call you and let you know
why Ory won't be there," and 1 told him why, that he had gone to Johnny's,
gone to Viiginia to get the clilldien back and the reason for him going. Mr.
Waddell's answer was, "That will be all tight, because the men won't all
go to work Monday anyway. The mine is in such bad condition that it will
take quite awhile to get it ready to put. the men all back," and he said,
"When Ory comes home, tell-have him call me and if there is any work at
that time we will see about putting him on " He didn 't, say, "We will put
lain on " He said "We will see about it."
Waddell's summary of the above conversation was as follows:
She stated that they thought they would he back the last of that week,
and asked how it would be, and I told her at that time the War Board would
only let us have seventy men to work and I didn't know what the setup
would be, ww hen he came back I would see him at that time
The only substantial difference between Mrs Huffman's testimony and that
of Waddell, was that, according to Waddell, Mrs Huffinan stated that Huffman
would be back "the last of the week," which was August 19. It is clear from
Mrs. Huffman's own testimony that Waddell did not categorically promise that
Huffman would be put to work upon his return.
On August 14, when most of the striking employees reported for work, Green,
who as present at the mine, asked Victor Adams, mine superintendent, about
taking back Huffman Adams, according to Green, replied that Huffman had
"quit," Adams testified that his requllectioi of the con;'eisation was that he
stated that he knew nothing about luffman.
The mine resumed opei ations on August 15 Huffman's job as tipple man was
filled by Solzman, who customarily took Huffman's place on the tipple when the
latter was ill or on vacation, but whose regular work was that of laborer on the
track gang Waddell, when he directed Solzman to work on the tipple, did not
mention Huffnian's absence, or tell Solziuan whether his assignment to the
tipple was temporary or permanent. Solzman's place on the track gang was
taken by Canella, previously a part time employee who, as the result of Solzman's
assignment to the tipple, obtained full time employment.
Solzman and Waddell both testified, and it is found, that some time after
Solzman had been placed on the tipple, lie asked to be returned to his old job on
the tracks , a request which Waddell refused. Neither was able to fix the time
of this request with any degree of certainty, and it is not clear whether it was
made before or after Hulfman's subsequent return Huffman's naive was not
mentioned in connection with the requested transfer, however, and after Waddell's
refusal to make the change the subject was not again mentioned by either him
or Solzman.
Huffman returned to Colorado Springs on August 31, more than two weeks
after the mine had resumed operations, telephoned Waddell, and asked to be
put to work on his former job on the tipple Waddell, who had just returned
from a vacation, told Huffman that he could not give him an answer at that time,
but would let him know the following day Waddell testified that he did not
then know whether Solzman's assignment to the tipple was permanent or only
temporary. When Waddell informed Adams that Huffman had applied for his
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former job, Adams instructed him to tell Huffman that his job had been filled
because it was believed he had quit. Waddell so informed Huffman.
Adams testified, and Huffman admitted, that during the previous June, Huffman
asked him if the respondent would give him a release and a letter of recommen-
dation if he were to request them, and that, during the strike, he had been
informed by the Rio Grande Railroad that Huffman had applied for a job.
Adams testified that these facts, together with Huffman's failure to show up for
work until a day more than two weeks after the mine had resumed operations,
caused him to conclude that Huffman had obtained work elsewhere.
Conclusions
The respondent defends its refusal to put Huffman back to work on the ground
that his job had been filled. It contends that it was under no obligation to rein-
state him when, on August 31, more than two weeks after the other employees had
returned to work, Huffman returned to the mine and requested employment.
The undersigned is in accord with the respondent's contention. It is undisputed
that the tipple job was essential to the operation of the mine, and it cannot be
contended that the respondent was not within its rights when, upon resuming
operations, it assigned Solzman to do the work previously done by Huffman.
Although the respondent had been advised that Huffman would return, possibly
by August 19, it had no means of knowing that he would do so. For the
respondent to have reinstated Huffman on August 31 would have necessitated
the demotion of both Solzman and Canella. While there is evidence that at
one time, either shortly before or shortly following Huffman's return, this
course would have been satisfactory to Solzman, there is no evidence, and it
may be presumed to the contrary, that it would have been satisfactory to
Canella, who would bQ returned to part time work. The respondent, moreover,
was under no necessity of consulting the wishes of its employees respecting their
work assignments. Its prerogative was to keep Solzman on the tipple job if it
so desired, provided only that the exercise of its prerogative was not motivated
by considerations of union membership and activity. In the absence of any
substantial evidence in the record of hostility on the part of the respondent
-toward the Union,' it must be presumed-that the respondent refused to reinstate
Huffman for legitimate business reasons, and the undersigned so finds.
CONCLUSIONS Or LAW
1. The operations of the respondent, Pikes Peak Fuel Division of The Golden
Cycle Corporation, constitute trade, traffic and commerce among the several
States, within the meaning of Section 2 (6) of the Act.
2. United Mine Workers of America, District 15, Local Union No. 1662, is a
labor organization within the meaning of Section 2 (5) of the Act.
3. By failing and refusing to employ Ora Huffman, the respondent has not
engaged in unfair labor practices within the meaning of Section 8 (5) of the Act.
* The only evidence in the record of any hostility toward the Union was the admitted
fact that on Sunday, May 23, 1943, on the day of the Union's reorganization meeting, the
mine whistle blew calling the men to work on the first Sunday for some time. This event,
which occurred more than a year previous to Huffman's discharge, was necessitated, accord-
ing to evidence adduced by the respondent, by an emergency order for coal by the Govern-
ment. The evidence is not sufficient to warrant a finding that the respondent worked
the mine on this occasion for the purpose of interfering with the meeting of the Union.
PIKES PEAK FUEL DIVISION
RECOMMENDATIONS
823
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint against Pikes Peak Fuel Division of
The Golden Cycle Corporation be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any
party or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations file with the Board, Rochambeau Building,
Washington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support thereof.
Immediately upon the filing of such statement of exceptions and/or brief, the
party or counsel for the Board hling the same shall serve a copy thereof upon each
of the other parties and shall file a copy with the Regional Director. As further
provided in said Section 33, should any party desire permission to argue orally
before the Board, request therefor must be made in writing within ten (10)
days from the date of the order transferring the case to the Board.
HORACE A. RUCKEL,
Trial Examiner.
Dated March 31, 1945.