United States Smelting, Refining & Mining CompanyDownload PDFNational Labor Relations Board - Board DecisionsJan 6, 193910 N.L.R.B. 1015 (N.L.R.B. 1939) Copy Citation In the Matter of UNITED STATES SMELTING, REFINING & MINING COM- PANY and BINGHAM UNDERGROUND MINERS' UNION No. 2 OF THE INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS Case No. C-780.Decided January 6, 1939 Non-ferrous Metal Mining Industry-Interference, Restraint, and Coercion- Disertminatton : lay-off : charges of, not sustained ; complaint dismissed. Mr. Newell N. Foicler, for the Board. Cheney, Jensen, Harr c6 Wilkins, of Salt Lake City, Utah, by Mr. John Jensen and Mr. C. W. Wilkins, and Ropes, Gray, Boyden c Perkins of Boston, Mass., by Mr. Charles E. Wyzan eki, Jr., for the respondent. Mr. William Stix, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge and an amended charge duly filed by Bingham Un- derground Miners' Union No. 2 of the International Union of Mine, Mill and Smelter Workers, District No. 2, herein called the Union, the National Labor Relations Board, herein called the Board, by Aaron W. Warner, Regional Director for the Twenty-second Region (Denver, Colorado) issued its complaint and notice of hearing thereon, dated February 26, 1938, against United States Smelting, Refining & Min- ing Company, Salt Lake City, Utah, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1) and ( 3) and Section 2 ( 6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and notice of hearing thereon were duly served on the respondent and on the Union. The complaint alleged in substance that on or about November 6 and 13, 1937, the respondent discharged 20 named employees 1 and has 'Peter Asmaolea, Merrill Conklin, Pedro Leyba, C C. Higginbotham,. George 'Wynn, * George Groves, Glenn Houtz, Arthur Bohlen, George Liddell, Aaron Wilson, Abel Basquez,* Mick I{ulkuss ,* Merele Gleaves, * Matt Davis ,* James Steeley , Joe Conway , Tom Steeley, Russell E Johnson , Albert N Davis , and Max Romero . The names marked with asterisks appear in the record with slight variations in spelling. 10 N. L. R. B, No. 91. 1015 1016 NATIONAL LABOR RELATIONS BOARD since refused to reinstate them because of their membership and ac- tivities in the Union. On March 5, 1938, the respondent filed an answer to the complaint denying that it had engaged in or was engag- ing in the unfair labor practices as alleged and denying that its alleged activities had an, intimate or substantial relation to commerce among the several States. Pursuant to notice, a hearing was held in Salt Lake City, Utah, on March 10, 11, 12, and-14, 1938, before Madison Hill, the Trial Ex- aminer duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. The district secretary of the Union was present and participated in the examination of witnesses. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. In the course of the hearing the com- plaint was dismissed as to 10 of the persons named therein who had not appeared.2 During the/hearing the Trial Examiner made various rulings on motions and on, objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 14, 1938, the Trial Examiner filed his Intermediate Report, in which he found that the respondent had engaged in and was en- gaging in the unfair labor practices alleged in the complaint, and recommended that the respondent cease 'and desist from its unfair labor practices and reinstate the 10 employees who had testified at the hearing. On July 29, 1938, the respondent filed exceptions to the Intermediate Report and requested the privilege of making oral argu- ment before the Board. Pursuant to notice, argument was had before the Board on August 9, 1938, at Washington, D. C. The respondent appeared and, participated. The Board has considered the exceptions to the Intermediate Re- port. As indicated by our findings, conclusions of law, and order set forth below, we sustain the exceptions to the findings of the Trial Examiner that the respondent engaged in unfair labor practices. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a Maine corporation with its principal executive offices at Boston, Massachusetts, produces gold, silver, lead, zinc, and small amounts of copper, coal, arsenic, antimony, cadmium, bismuth and other byproducts. The respondent and its 42 subsidiaries,3 like- 2 Peter Asmaolea, C. C. Higginbotham, Aaron Wilson, Mick Kulkuss, Matt Davis, Tom Steeley, James Steeley, Russell E Johnson, Albert N. Davis, and Max Romero. Kulkuss had been taken back to work before the hearing began. There was only one employee named Steeley Johnson, Albert N Davis, and Romero were not identified as union men. . 9 Ten of the subsidiaries are inactive companies. . DECISIONS AND ORDERS 1017 wise engaged in mining and related production processes, own and operate in connection with their business extensive properties, the principal ones being in`Mexico, Alaska, Utah, Colorado, and Indiana. Total production of the respondent and its subsidiaries amounted in 19344 to 321,385 ounces of gold, 20,152,290 ounces of silver, 73,358,092 pounds of lead, 32,027,394 pounds of zinc, 2,343,275 pounds of copper, and 292,750 tons of coal. The present controversy arose at the respondent's United States Mine, located near Bingham Canyon, Utah. The ores mined there contain gold, silver, lead, zinc, and copper. In 1937 the mine produced approximately 185,500 wet tons of ore which had the following gross metal content : Gold, 20,918 ounces ; silver, 896,459 ounces; copper, 1,175,000 pounds; lead, 36,278,000 pounds; and zinc, 30,200,000 pounds. During 1937 the respondent purchased for use in operation of the United -States Mine tools, equipment, and supplies worth approxi- mately $195,000. Of these articles about 46 per cent in value were obtained from Oregon, Illinois, California, and other places outside Utah. A large portion. of the ore produced at the United States Mine is smelted by the respondent at Midvale, Utah, and substan- tially all the metals produced are shipped by the respondent to points outside Utah. On November 1, 1937, there were at the mines 427 employees eligible for union membership. - H. TILE ORGANIZATION INVOLVED' Bingham Underground Miners' Union No. 2 of the International Union of Mine, Mill and ' Smelter Workers is a labor organization admitting to membership employees of the respondent engaged in the extraction of ore from underground workings. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background of the lay-offs The Union was organized at the United States Mine in August 1933, and in the next 3 years secured la substantial membership, al- though the record does not disclose what its activities were during that period. In October 1936, representatives of the Union presented to the respondent certain economic demands uniform with demands made on other underground mines by locals of the International Union throughout Utah. On October 5 the respondent refused all of the demands and a strike was called at the United States Mine 5 days later. Employees of other companies struck at the same time. All of the complaining employees who testified - at the hearing (except Conway, who was not hired until September 1937) went on 4 The record does not contain later data. 1018 NATIONAL LABOR-RELATIONS BOARD strike. The strike ended about December 17, 1936. There was sub- stantial evidence that it was impossible for the respondent, after the 3 months' strike, to put the mine in full operation at once. The men involved in this case were all reemployed by the middle of January. On March 10, 1937, a wage agreement which had been partially nego- tiated during the strike was reached between the Union and nine mining companies, including the respondent, which provided that wages should follow those paid at Butte, Montana, subject to revision in accordance with fluctuations in metal prices. The expiration date of this agreement was December 31, 1937. Metal prices fell rapidly at the end of September, more gradually during October, and again rapidly at the beginning of November 1937.5 In October L. A. Walker, the respondent's assistant manager of mines, suggested to Frank Hoine, superintendent of the United States Mine, that men should be laid off, but Hoine asked for a chance to improve productivity and to achieve economy by other means. By November the desired efficiency had not been attained and Hoine de- cided to lay off 20 men. Instructions were given to the mine foreman to lay off 13 men from the night shift and to the assistant mine fore- man to lay off 7 from the day shift. The shift bosses in turn were told how many men to lay off and the ultimate selection of individuals was theirs. B. The lay-offs On November 6, 1937, the respondent laid off 20 men,e of whom at least 15 were members' of the Union.7 , Of the employees at the United States Mine on November 1, 1937, eligible for the Union, 43.56 per The following table shows , in approximate figures , the fluctuation of metal prices : Late Middle Early September October November Copper, per lb_______________________ $0. 1375 $0 118 $0. 108 Zinc , per lb _________________________ 0.073 0.059 0 05 Lead, per lb________________________ 0 065 0.055 0.05 The men laid off were : Abel Basquez, Arthur Bohlin, Max L Carson, Merrill Conklin, Joe Conway, Matt Davis, Merele Gleaves, George Groves, C C. Higginbotham, Glenn Houtz, Mick Kulkuss, Pedro Leyba, George Lidell, Ladrue S Rawlins, Max Romero, Thomas L. Spratt, James Steeley, Aaron Wilson , George Wynn , and another person who is not Identi- fied in the record , Of the 19 who are identified all except Carson, Rawlins, and Spratt are named in the complaint . The complaint listed four other persons : Albert E Davis and Russell E Johnson , who were not identified in the testimony ; Tom Steeley, whose name was a duplication of that of James Steeley ; and Peter Asmaolea , who was laid off on October 30, 1937. An employee named Camp , who did not belong to the Union, was laid off on November 13, 1937. 7 Carson, Rawlins, and Spratt were not union members ; the testimony as to Romero did not indicate clearly whether he was a member of the Union or not, and there was no evidence as to whether the unidentified employee was a member of the Union. Of the employees laid off during a longer period, from October 30 to November 30, 1937, 18 were union members and 6 were non-union. After the lay-offs on November 6, the Union complained to the respondent of discrimina- tion against its members and when further lay-offs became necessary in the early part of December 1937, the respondent gave consideration to seniority and laid off more non- union than union men DECISIONS AND ORDERS 1019 cent (186) were on the check-off list' and 56.44 per cent (241) were not, while other employees, not more than 12 in number, who were not on the check-off, also were members of the Union.s It is not disputed that the proportion of union members was con- siderably higher among the employees laid off than among all the employees of the United States Mine. Whether this disproportion was fortuitous or deliberate is of primary importance in determining the issue of discrimination. The mere fact of the disproportion is entitled to considerable weight but it is not conclusive upon the issue, which must be decided on the basis of all the relevant facts in the case. Before examining the facts involved in the individual lay-offs we shall discuss the general circumstances affecting all of them. The Union has existed at the Mine since 1933. There is no evidence as to the nature and extent of its activity from 1933 to October 1936, but the record is equally barren of any evidence of interference, re- straint, or coercion by the respondent of employees engaged in union activities during that period. The Union contended that the respondent discriminated against union members in the time and manner of reinstating them after the strike. Our analysis of the jobs they had before and after the strike and of the dates of reemployment indicates that within a reasonable time after their reemployment two men had been given better jobs and five men were doing work comparable to their pre-strike occupa- tions, while only two men had less desirable jobs. We cannot conclude that the respondent discriminated against the complainants in the time or manner of reinstating them after the 1936 strike. The respondent has on several occasions negotiated and bargained with the Union. At the time the hearing took place negotiations were in progress between several mining companies, including the re- spondent, and the Union for a new agreement to replace the one which had expired on December 31, 1937. The respondent asserts that the decision to lay off 20 men on Novem- ber 6 was based solely upon reasons of economy and efficiency of pro- duction. This claim was virtually conceded by the Union. Metal prices had fallen, costs had risen, and efficiency had declined. The record amply supports the contention that the reduction in force was dictated by business considerations and not by an anti-union animus. It reveals, moreover, that efficiency in production was materially in- creased by the curtailment. We now turn to the facts of the individual lay-offs. 8 A Utah statute requires an employer to honor an employee 's assignment of wages to a labor organization. 1020 NATIONAL LABOR RELATIONS BOARD Abel Basquez. Basquez had been employed by the respondent for 10 or 11 years, performing virtually every task in the mine. Before the strike in 1936 he was a motorman. Returning to work on January 12, 1937, he spent 3 months as a mucker and thereafter worked as a timberman and leynerman.° He joined the Union in 1936. Four recently hired men were retained on his shift after he was laid off, but there was no evidence as to what type of work they were doing. Neil Fresh, Basquez's shift boss, asserted that he laid him off be- cause of the persistent rumor current among the men that Basquez was going to quit in the immediate future and go to Colorado. Basquez admitted that a month or two before the lay-off he had talked to his partner about leaving. Fresh said he had not known that Basquez was a union member. There was in Basquez's conversation with his partner a basis for the rumor of his desire to leave. Basquez, so far as the record dis- closes, was not conspicuously active in the Union. Arthur Bohlin. Bohlin,'first employed by the respondent in 1934, was a timberman. He held a strike card in 1936 and joined the Union after he went back to work. In August 1937, he was on a committee of the Union to protest the discharge of a fellow em- ployee. When he was laid off, two new men, one an inexperienced mucker, were retained. Joe Gobbis, the shift boss under whom Bohlin worked, testified that Bohlin was slow, that he was a great talker, that he was the worst timberman on the shift, that the place to which he was as- signed was almost worked out, and that Bohlin did not like him and did not cooperate. Gobbis said he had not known whether Bohlin belonged to the Union. Merrill Conklin. Conklin went to work for the respondent in the spring of 1936 as a mucker. Before the strike his time was di- vided between mucking, timbering, and running a machine. A month after its termination he was taken back as a mucker and subsequently part of his time was spent in timbering. He joined the Union in 1936 and was on a committee which presented to the re- spondent the demands which led to the strike. Four recently hired men were retained on Conklin's shift when he was laid off, but the kind of work they were doing does not appear in the record. S. E. Jofs, Conklin's shift boss, said Conklin was laid off because he was the least efficient man he had and because he was working in a drift which was about to close down. Conklin mucked only 6 to 8 cars a day as compared with a normal output of 10 or more. Jofs On November 1, 1937, the daily wage rates for various occupations were as follows : mucker, $4 . 90; machiner , $ 5 50; timberman , $5 50; leynerman , $5.80; motorman, $5.80. DECISIONS AND ORDERS 1021 said he did not know that Conklin belonged to the Union. Peter M. Christensen, who had formerly been Conklin's shift boss, said he had not been a good timberman, that he was a poor mucker, that he was slow and inefficient, and that he had been caught sitting down several times. Conklin testified that there had been no complaints about his work, but there was no evidence to controvert the facts asserted by Jofs and Christensen as to his skill and speed. Joseph Conway. Conway obtained employment as a mucker on September 30, 1937, on the recommendation of John Holmes, the mine foreman. In the 51/2 weeks that he worked for the respond- ent, Conway took from 6 to 9 days off, generally for acceptable reasons, but on two occasions he failed to report his absence. There was a notice on the bulletin board of the mine that the penalty for laying off without reporting to the foreman was dismissal. Knowing that Conway was acquainted with Holmes, Neil Fresh, his shift boss, consulted Holmes before laying him off and Holmes acquiesced in that action. Fresh said he was not aware that Conway was a union man. Merele Gleaves. Gleaves started to work for the respondent in June 1936. At first assigned to a machine, he became a timberman before the strike. At its conclusion, he was reinstated immediately and worked 2 weeks as a mucker, thereafter being employed as a timberman and leynerman. He joined the Union in October 1936, and picketed during the strike. He carried a pad of check-off assignments and around November 1, 1937, obtained three new appli- cations, each of which was witnessed by him and turned over to the respondent. However, this fact has no special significance since the respondent was continually receiving assignments for the check- off and such assignments were not handled through the shift boss. H. J. Roberts, the shift boss under whom Gleaves worked, testi- fied that Gleaves was the weakest leynerman on the shift, that Gleaves had said he was "looking for a lease," that the place he worked in was to be closed down, and that he did not know of Gleaves' union membership. There was no evidence to controvert the testimony of Roberts. George W. Groves. Groves had been employed by the respondent intermittently since 1922 and steadily since October 1935. He had worked as a mucker, timber helper, timberman, miner, motor helper, and drag mine operator, and at the time he was laid off he was a motorman. Before the strike he was working on a machine. Shortly after the strike, he was reemployed in the capacity of motorman. He joined the Union at the time it was organized in 1933, was a member of the executive board of the Union for the United States 1022 NATIONAL LABOR RELATIONS BOARD Mines in 1933 and 1934, picketed during the strike, and talked about the Union while in the mine. When Groves was laid off on November 6 there remained at work on his shift three men who had been hired within 60 days prior thereto. The type of work they were doing does not appear. On November 10, his job was given to Leo Lebato.'• Lebato had worked for the respondent continuously since 1925 or earlier, had been a motorman since 1930 or earlier, and had remained at work during the 1936 strike. In July 1937, he- was given permission to lay off. On November 9 he told the assistant superintendent that he wanted to return to work and was referred to the assistant foreman who reinstated him. There was no showing that Groves was a more efficient workman than Lebato, who had the greater experience of the two. Henry Johnson, Groves' shift boss, asserted that -he selected him to be laid off because he left the top of the pockets dirty, because there had been complaints from H. J. Roberts, the "opposite" shift boss, that the trains were not straightened out when Groves left them, and because he had been "on the station" at the times other than the lunch period. Roberts testified that, he had found the trains in bad order, though George Lidell, who worked under Roberts, said they had always been in satisfactory order. Johnson testified that he had not known of Groves' membership in the Union. After the strike Groves was given a better job than that which he held prior to it. Although he denied that he had left the pockets dirty or that he had failed to put the trains in order at the end of his shift, and this was substantiated as to the trains by Lidell, we are inclined to accept the testimony of Johnson, corroborated by Roberts, and his disavowal of knowledge that Groves belonged to the Union. Glenn Houtz. Houtz, employed by the respondent since 1931, had worked as a mucker, timber helper, timberman, top man, motor swamper, miner, and hoist man. Before the strike he worked on the winze hoist, which he regarded as the best job in the mine, and after the strike he worked successively as a slusher, motor swamper, tim- -berman, and leynerman. Houtz joined the Union in 1933; went on strike in 1936, was on a committee that visited Trevorthen, the head timekeeper, to seek relief for strikers, picketed, and transported pick- ets and union committees in his car; and carried a pad of check-off assignments. He was replaced by a man named Drouby. Three recently hired men remained at work on his shift after November 6, but the nature of their work was not disclosed. Henry Johnson, Houtz's shift boss, said he picked Houtz to be laid off because he was working in a small bedding and was the weak- est and newest leynerman he had. There was no testimony that Houtz DECISIONS AND ORDERS 1023 was a better leynerman than Drouby. Johnson admittedly knew that Houtz was a union man, but said his choice was not affected by this knowledge. Pedro Leyba. Leyba, who had worked for the respondent inter- mittently from 1924 to 1932, returned in 1936 and worked as a tim- berman and leynerman until the strike, following which he mucked and worked as a leynerman. He was on the picket line during the strike. When he was laid off there remained on his shift two muckers hired within the preceding 60 days. He was given, at his request, a letter of recommendation stating that he had worked as a timberman, leynerman, and mucker and that his services had been satisfactory. Fred White, Leyba's shift boss, said he was the weakest leynerman on his shift, that he often "missed his round," and that the drift, he worked in was to be closed down. This testimony was not controverted except by the letter, which was given to Leyba by the mine superin- tendent without consulting White. White testified that he would not have recommended Leyba as a leynerman. George Lidell. George Lidell had worked for the respondent for 7 or 8 years as a mucker, timber helper, and motor helper. Prior to the strike he was a motor helper; he was reinstated as a mucker but later was put back to work on the trains. Lidell picketed during the strike, was active in the Union, and talked about the Union. Two or three recently hired men were retained on his shift after he was laid off but the record does not bring out what type of work they were doing. Roberts, Lidell's shift boss, said he chose him because he "laid down" on his partner, because he did not help his partner take steel from the cars, and because he failed to clean the ore out of pockets. He ad- mittedly knew that Lidell was a union member, but said this did not have any bearing on the lay-off. Alfred A. Nelson, another shift boss, testified that in 1934 he had discharged Lidell for sitting down and that he was a worker who liked "to let his partner shoulder the biggest part of the work." Lidell said that Roberts had never criticized him for failing to do his share of the work, but he admitted having been discharged in 1934. Credibility is given to Roberts' asserted reason for laying off Lidell by Nelson's testimony that the discharge in 1934 was for a similar cause. George Wynn. Wynn came to work for the respondent in 1933. Prior to the strike he worked as a mucker and machine man. He was among the earliest reinstated after the strike, working as a leynerman until, at his own request, he was.transferred to timbering. Wynn was a trustee of the Union. Reed D. Johnson, Wynn's shift boss, gave a number of reasons for laying him off., The place where he worked was always disorderly. 1024 NATIONAL LABOR RELATIONS BOARD Steel was thrown in the muck.pile. The hoses were not properly cared for with the result that they had been blasted two or three times. On one occasion when directed to what was obviously the wrong place and on another occasion when there was some muck in the way, Wynn sat down and waited for an hour or more without doing anything. Johnson felt that Wynn was "foxy" and that he was always trying to "pull something." When Wynn told Johnson that he had never been married to any job in his life, Johnson said he thought, "I will lay him off; that's fine and dandy; if he don't care about it, he won't mind it." Johnson admittedly knew that Wynn was a member of the Union, but contended that he was not thinking of this when he laid Wynn off. Wynn denied on cross-examination that he had failed to take proper care of the hoses, but did -not' take the stand to rebut the other criticisms of his work. C. Conclusions From our examination of the facts in each case we do not find sup- port for the contention that the reduction in force was used by the respondent as a means to weaken the Union among its employees. The complainants were members of the Union and all except one of them had been strikers in 1936 but, as far as the record discloses, none of them was especially conspicuous for his union activities. The respondent's shift bosses presented their reasons for selecting the men to be laid off. While these reasons do not uniformly persuade us of their validity, there is no cause, in the absence of a background of anti-union conduct by the respondent, to disbelieve them. In many of the cases the shift bosses disregarded seniority. Furthermore, no consideration was given to the possibility of transferring qualified men to other types of jobs held by employees with shorter service rec- ords. We do not herein find, however, an intention to discriminate against union members, because there is no showing that in the past the respondent had observed a lay-off policy embodying these principles. There is no evidence that the respondent made statements or took action to discourage membership in the Union. On the other hand, there is proof of a course of dealing between the respondent and the Union, even though, so far as is revealed by the record, the Union represented less than a majority of the employees at the United States Mine. Under all the circumstances of the case, we find that the evi- dence adduced by the Board is insufficient to support the allegations of the complaint. We find that the respondent has not interfered, with, restrained, or coerced its employees in the exercise of the right to self-organiza- DECISION'S AND ORDERS 1025 tion to form, join, or assist, labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective ' bargaining and other mutual aid and protection. We find that the respondent has not discriminated in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, United States Smelting, Re- fining & Mining Company, occur in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. Bingham Underground Miners' Union No. 2 of the International Union of Mine, Mill and Smelter Workers is a labor organization within the meaning of Section 2 (5) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section '10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the com- plaint against United States Smelting, Refining & Mining Company be, and it hereby is, dismissed. MR. DONALD WAHEFIELD SMITH took no part in the consideration of the above Decision and Order. Copy with citationCopy as parenthetical citation