U. S. Vanadium Corp.

National Labor Relations Board - Board Decisions

Aug 20, 1942

43 N.L.R.B. 418 (N.L.R.B. 1942)

In the Matter of U. S . VANADIUM CORPORATION and I . U. No. 210 of
I. W. W. °
In the Matter of U. S. VANADIUM CORPORATION and INTERNATIONAL
UNION OF OPERATING ENGINEERS, LOCAL 12, AFL
Cases Nos. R-3639 and R-3919, respectively.Decided August 0011942
Jurisdiction : mining and milling industry.
Investigation and Certification of Representatives : existence of question : refusal
to accord either of petitioning organizations recognition until certified by the
Board ; elections necessary.. ,
Unit Appropriate for Collective Bargaining : single or separate units compris-
ing (1) operators in upper and lower mills and at lower crusher, operators,
welders, helpers, repairmen, and oilers on tram ; welders, mechanics, machin-
ists, - pipefitters, and oilers at mill; heavy duty operators and mechanics,
repairmen; and oilers on heavy duty equipment; and (2) remaining employees,
excluding executives, technical workers, clerical, workers, foremen and shift
bosses, guards, caretakers, truck drivers - and helpers-determination of,
dependent upon results of separate elections. -
Mr. Clarence M. Oddie, of San Francisco, Calif., and Mr. Charles
D. Peet, of New York City, for the Company.
• Mr. R. W. Henderson, of Bakersfield, Calif., for the I. W. W.
-Mr.Mr. Lester O. Wilson and Mr. Clues. A. Evans, of Los Angeles,
Calif., and Mr. Theodore Lawson, of Bishop, Calif., for the A. F.
of L. '
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
_ STATEMENT OF THE CASE
Upon petition duly filed by Industrial Union No. 210 of
I: W. W.,' herein called the I. W. W., alleging that a question affect-
ing commerce had arisen concerning the-representation of employees
of U. S. Vanadium Corporation, Pine Creek Unit, Inyo County-,
Laws, California, herein called the Company, the National Labor
I Also referred to in the record as Metal Mine Workers Industrial Union No. 210 of
the Industrial Workers of the World.
43 N. L. R. B., No. 72.
418
U. S. VANADIUM CORPORATION
. 0
419
Relations Board, herein called the Board, provided for an appropriate
hearing upon due notice before LeRoy Marceau, Trial Examiner.
Said hearing was held at Bishop, California, on March 12, 1942.
The Company and the I. W. W. appeared, participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. On March
30, 1942, after'the close of the hearing, the Company filed with the
Board a motion to remand the proceeding for further hearing or
to dismiss the petition.
On April 14, 1942, International Union of Operating Engineers,
Local 12, AFL, herein called the A. F. of L., filed a petition alleging
that a question 'affecting commerce had arisen concerning the
representation of employees of the Company.
On May 12, 1942, the Board remanded Case No. R-3639 for further
hearing, provided for an appropriate hearing upon due notice in
Case R-3919, and consolidated the two cases for hearing.
- A consolidated hearing was held from May 27 to 29, 1942, in-
elusive, at Bishop, California, before,LeRoy Marceau, Trial Exam-
iner. The Company, the I. W. W., and the A. F. of L. appeared,
participated, and, were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Trial Examiner's rulings, made at both
hearings, are free from prejudicial error and are hereby affirmed.
On June 17,• 1942, l the Company and-the I. W. W. filed briefs; on
June 25; 1942, the A. F. of L. filed a brief ; and on July 3, 1942, the
Company filed a supplemental brief. All the briefs have been duly
considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
U. S. Vanadium Corporation, a wholly owned subsidiary of Union
Carbide and Carbon Corporation, is a Delaware corporatioi having
its principal place of business in New York City. It is engaged in
the development of natural resources and the production of strategic
materials, including vanadium, tungsten, chromium, molybdenum,
manganese, and cobalt, and the preparation of these metals for use
in industry.
At its Pine Creek plant, located in Inyo County, California, the
only plant involved in this proceeding, the Company produces tung-
sten, molybdenum, and copper, which are there mined, milled, and
reduced to the form of concentrates. During 1941 equipment and
supplies worth more than $50,000 were purchased by the Company
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in ' States other than California for use at the Pine Creek plant.
Over 75 percent of the products of the Company, valued at more than
$100,000, i"s shipped out of the State each year. -
II. THE ORGANIZATIONS INVOLVED
Industrial Union No. 210 is a labor organization affiliated with the
Industrial Workers of the World, admitting to membership em-
ployees of the Company.2
- International Union of Operating Engineers, Local 12, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
Both the I. W. W. and- the A. F. of L. have requested the Company
to bargain with them as the representatives of employees in the
units they claim as appropriate. The Company has refused to bar-
gain with either organization without certification by the Board.
A statement of an agent of the Regional Director, introduced in
evidence at the hearing in Case No; R-3639, and a statement of the
Trial Examiner at the consolidated hearing indicate that both the
I. W. W. and the A. F. of L. represent substantial numbers of the
Company's employees in the units they claim as appropriate.8
We find that questions affecting commerce have arisen concern-
ing the representation of employees of the Company, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
2 By its motion to remand , the * Company raised the question of the capacity of the
I. W. W. to act as a bargaining agent. Although its authority to enter into agreements is
limited by the constitution and bylaws of the Industrial workers of the would, the exist-
ence of the provision forbidding agreements for any specific length of time is insufficient,
upon this record, to persuade us that the I. W. W. has instituted this proceeding without
the intention to bargaih collectively in the event it is certified we shall accordingly
afford it a place on the ballot in each of the elections hereinafter directed. ,
2 According to the statement of the Regional Director , submitted in evidence in Case
No. R-3639, the I. W. W. had theretofore submitted , in support of its claim , a petition
bearing the signatures of 171 of the Company 's 380 production and maintenance em-
ployees The agent of the Regional Director also reported that the International Union
of Mine, Mill and Smelter workers , affiliated with the C . I. 0 , which bad asserted an
interest in the matter , was unable to produce any evidence in support of its claim.
At the consolidated hearing the Trial Examiner reported that the A. F. of L. had sub-
mitted 49 cards, 41 of which were dated between February 10 and Apiil 2, 1942, and 8
were undated ; and that all the cards bore apparently genuine original signatures, of
which 30 were the names of persons on the Company's pay roll of May 23, 1942, within
the unit contended for by the A F. of L , which unit included 75 employees . He further
reported that the I. W. W., had submitted a petition signed between May 21 and 25,
1942, bearing apparently genuine oiiginal signatures of 286 persons; that he had.com-
paied 78 of these names with the pay roll of May 23, 1942; that 66 of the 78 names
appeared on the pay roll within the unit claimed as appropriate by the I W. W, consisting
of 431 employees ; and that 15 of the 66 w ere also within the unit contended for by the
A. F. of L. If the same ratio applied to all the signatures, 242 of the 286 names would
be on the pay roll within the unit claimed by the I. W. W. and 55 would also be in the
unit claimed by the A. F. of L.
U.' S. -VA\ADIUM CORPORATION _ -421
IV. THE APPROPRIATE UNIT; THE. DETERMINATION OF REPRESENTATIVES
The I. W. W. contends that the unit appropriate for bargaining
at-the Company's Pine Creek plant consists of all employees- except
executives, technical workers, clerical workers, foremen and shift
bosses, guards, caretakers, and truck drivers and helpers in inter-
state commerce. The A. F. of L. claims that employees within its
organizational jurisdiction constitute a craft unit appropriate -for
the purposes of bargaining, and in its petition describes this pro-
posed unit as "mill foreman, mill operators, welders, mechanics-
heavy duty repairman, fireman, Universal Machine operators, shovel,
dragline, crane, clamshell, apprentice engineers ( oilers, greasers),
pipefitters, millwrights, tractor operators-dozer, drag scraper, boom,
motor patrol operators, and machinists." 4 The Company- objects to
the segregation of any group or groups of its employees, craftsmen
or otherwise, in a separate bargaining -unit; and to the inclusion in
the unit of any supervisory employees. It agrees that the industrial
unit claimed by the I. W. W. is appropriate.
The Company's plant, which is located approximately 26 miles
from Bishop, Inyo County, California, consists of the Pine Creek
Mine at an altitude of 10,780 feet; the Pine Creek Mill, also called
the "upper mill," consisting of a concentrating plant and a chemical
plant, located about 2 miles from the mine and at a lower altitude;
and ore-carrying tramway connecting the mine and mill; and a
smaller mill, known as the Scheelite Plant or the " lower mill," some
distance below the Pine Creek Mill.' The Company plans to open
new portals to the mine near the Pine Creek Mill and to discontinue
the operation of the Scheelite Plant. When this is done, all opera-
tions-of the plant will be in close proximity to each other . Because
of the isolated locoation of the plant, most of the employees live in
bunk houses or family houses on the premises.
The Company's business is a closely integrated -enterprise. To
a large extent the employees share common interests and working
conditions; men are frequently shifted from one job to another; and
practica]ly all the employees have been originally hired as laborers
and subsequently trained for other jobs as they have become avail-
able. Wage rates for similar work at the mine and mill are the same
except for the so-called "high altitude, differential" customary in the
industry.
'In its brief the A. F. of L. requests that the description of the unit in its petition be
amended to include "churn and diamond drillers above ground," omitted by inadvertence.
It appears, however, that the only men in these classifications working at the Company's
plant are on contractors ' pay rolls , and it is not contended that they are employees of
the Company.
5 There is also an open pit or "glory hole ," but it is now being operated by independent
contractors whose employees are not included in either of 'the claimed units.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On several occasions the Company has received petitions from
its'employees as a result of which it has conferred with committees
and- has granted wage increases and has adjusted grievances regard-
ing working Conditions . Such petitions were received by the Com-
pany ' in November - 1940, July 1941, and December 1941 . On these
occasions the committees represented all classifications of employees
and the demands covered practically all the men . However, in May
1942 the, Company received a petition from employees of the Pine
Creek Mill, Scheelite Plant, and tram only , the committee which
conferred with the superintendent stating that they understood that
the employees of the mine had already been recognized . Although
they were .told that their requests would be considered, apparently
no action has been taken on the matter.
The Company has no collective bargaining contracts ; but in Decem-
ber 1941 it, was told that the committee of employees with which it
was conferring represented the I . W. W. 'No other union has pre-
sented demands on behalf of 'a4 of the employees.
On the basis of the organization of the Company 's business and
the bargaining history , in the plant , an industrial unit ' appears to
be appropriate for the purposes of collective bargaining . However,
the, unit claimed by the A. F. of L . is composed largely of mill and
machine operators , employees whose work is more highly skilled
than that of,the majority of the other employees working with theme
and whose interests are distinguishable on that ground. The A. F.
of L. represents employees in the , classifications it is now claiming at
plants of other companies and, as `stated above, has been designated
as bargaining representative by a substantial number of such em-
ployees in its, proposed unit at the Company's plant. Upon the
record we' ' believe that such employees might properly, be considered
either as a separate unit or as part of a larger - nit of the Company's
employees . Under the circumstances we.hold that the desires of the
employees involved shall govern, and we shall therefore direct that
separate elections be held among the mill and machine operators,
with certain inclusions and exclusions discussed below, and among
other employees at the Company 's plant. Upon the results of these
elections will depend in part our determination of the appropriate
unit or units . If a majority of the mill and machine operators'
group select the A . F. of L . as their representative , that group will
constitute a separate and distinct bargaining unit; if a majority of
them choose the I . W. W. and a majority of the other group also
express their desire to be represented by the I. W. W., then the two
groups will together constitute a single unit.
e As noted below, the A. F., of L would exclude all mine employees, regardless of skill,
and all maintenance men at the mine, with the exception of one welder
'U. S. VANADIUM CORPORATION 423
As stated above, the I. W. W. and the Company would exclude
executives, technical workers, clerical workers, foremen and shift
bosses, guards, caretakers, and truck drivers and helpers in interstate
commerce. At the hearing the A. F. of L. agreed to the exclusion
from its proposed unit of such employees with the exception of the
mill foreman, mill shift bosses, and the foreman of the road de-
partment;' in its brief it stated that it claimed no foremen or shift
bosses. We shall exclude from both groups all employees in the
above classifications, including foremen and shift bosses.
The A. F. of L. would also exclude, but the I. W. W. would include,
all employees listed on the Company's pay roll under the classifica-
tions of mine," bullgang, construction, boarding house flunkies, and
bull cooks. Since- such employees perform duties not closely con-
nected with the work of the employees claimed by the A. F. of L.,
or are in 'classifications over which other unions in the A. F. of L.
organization have jurisdiction, we shall exclude them from the mill
and machine operators' group, but shall include them in the industrial
group.
- The employees whom the A. F. of L. would include fall within the
following pay-roll classifications and on the basis of such classifica-
tion we shall indicate the employees to be included in the mill and
machine operators' group :
Upper mill, lower mill, and lower crusher: The A. F. of L. would
include in its proposed unit all operators in these classifications, but
would exclude laborers. On the basis of the nature of the work
performed, we shall include the operators.
- Tram: The A. F. of L. requests the inclusion of a welder, two
welders' helpers,-and an oiler listed in this classification, but would
exclude operators, loaders, a millwright, and a repairman. Since
the A. F. of L. has asked for the inclusion of other operators and
repairmen on the machines they operate, we see no reason for ex-
cluding them in this instance. -Accordingly, we shall include in the
mill and inachine operators' group all operators,repairmen, welders,
welders' helpers, and oilers working on the tram.
Maintenance: The A. F. of L. would include welders, mechanics,
machinists, pipefitters, and oilers at the mill, and one of two welders
at the mine, but would exclude carpenters, electricians, helpers, and
laborers at the mill and all maintenance employees at the mine except
for the aforesaid welder. Since mine workers are excluded from the
mill and machine operators' group, as desired by the A. ' F.- of L.,
7 The non -supervisory employees on whose exclusion the parties agreed fall within the
following pay-roll classifications : warehouses , laboratory , engineers , technical men, care-
takers , watchmen , clerical , and interstate transportation.
8 All underground men are included in this classification . Although there are machine
operators included among the mine employees , the A. F. of L. claims no jurisdiction over
machines underground.
424 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
we shall also exclude maintenance 'men, including welders, working
at' the mine. As to the maintenance employees at the mill, we shall
include in the mill and machine operators' group only welders,
mechanics, machinists, pipefitters, and oilers.
Transportation and Heavy Duty: The A. F. of L. would include
heavy duty equipment operators and, niechanics, repairmen, and
oilers on heavy duty equipment, but would exclude truck drivers
and laborers. Although the record is not clear as to the' reason -for
excluding truck drivers, we assume that such employees are not within
the jurisdiction of the A. F. of L. We shall, accordingly, include in
the -mill and machine operators' group only heavy duty equipment
operators, mechanics, repairmen, and oilers.
- We shall, accordingly, direct that the questions concerning repre-
sentation which have arisen be resolved by elections by secret ballot
among the following groups of employees of the Company :
Group A : Operators in the upper and lower mills and at the
lower crusher; operators, welders, welders' helpers, repairmen,, and
oilers on the tram; welders, mechanics, machinists, pipefitters, and
oilers at the mill; and heavy duty operators and mechanics, repair-
men, and oilers on heavy duty equipment, to determine whether they
desire to be represented by Industrial Union No. 210 of the I. W. W.,
or by International Union of Operating Engineers, Local 12, AFL,
for the purposes of collective bargaining, or by neither; and
Group B : All employees except those in Group A, above, and
executives, technical workers, clerical workers, foremen and shift
bosses, guards, caretakers, and truck drivers and helpers in inter-
state commerce, to determine whether or not they desire to be repre-
sented by Industrial Union No. 210 of I. W. W. for the purposes of
collective bargaining.
Those eligible to vote in the election shall be the employees in the
respective groups who were employed during the pay-roll period
immediately preceding the date of the Direction of Elections, herein,
subject 'to the additions and limitations set forth in the Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations -Board Rules and Regulations=Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with U. S. Vanadium
Corporation, Inyo County, California, separate elections by secret
ballot shall be conducted as early as possible, but not later than
U. S. VANADIUM CORPORATION 425
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Twentieth Region,
acting in this matter as agent for the National Labor ' Relations
Board, and subject to Article III, Section 9, of said Rules and
Regulations, among those employees of the Company who fall within
the groups described below and who were employed during the pay-
roll period immediately preceding the date of this Direction, in-
cluding employees - who did not work, during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but excluding
employees who have since quit or been discharged for cause :
Group A : Operators in the upper and lower mills and at the lower
crusher; operators, welders, welders' helpers, repairmen, and oilers
on the tram ; welders, mechanics, machinists, pipefitters, and oilers at
the mill; and heavy duty operators and mechanics, repairmen, and
oilers on heavy duty equipment, to determine whether they desire to
be represented by Industrial Union No. 210 of I. W. W. or by Interna-
tional Union of Operating Engineers, Local 12, AFL, for the purposes
of collective bargaining, or by neither; and
Group B : All employees. except those in Group A, above, and
executives, technical workers, clerical workers, foremen and shift
bosses, guards, caretakers, and truck drivers and helpers in inter-
state commerce, to determine whether or not they desire to be repre-
sented by Industrial Union No. 210 of I. W. W. for the purposes of
collective bargaining.