United Steelworkers of America, Local No. 937

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 40 (N.L.R.B. 1972)

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America , Local No. 937,
AFL-CIO-CLC (Magma Copper Company) and
George Glass. Case 28-CB-641
November 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On February 28, 1972, Administrative Law Judge 1
Leo F. Lightner issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
We agree with the finding that Respondent Union
violated Section 8(b)(1)(A) of the Act by refusing to
process grievances for George Glass and Ray
Stephenson because they were not members of the
Union. But the Administrative Law Judge recom-
mended two remedial provisions which we do not
adopt. First, he recommended that Respondent make
the above-named employees whole for the loss of a
bonus they "might otherwise have obtained." Sec-
ond, he rejected as patently frivolous Respondent's
defenses, and recommended that Respondent be
ordered to reimburse the Board for its expenses in
connection with this case. In support of this
recommendation, the Administrative Law Judge
cited Titdee Products, Inc., 194 NLRB No. 198.
Respondent excepts to these recommendations. For
reasons set forth below, we find merit in the
exceptions.
As for the first recommendation, that the employ-
ees be made whole for a bonus, we note that there is
no proof that they actually would have obtained a
bonus if Respondent had processed the grievances.
As for the second recommendation, that Respon-
dent be ordered to reimburse the Board for its
expenses, we note that under the contract the
Employer arguably had absolute discretion to fill
temporary vacancies of 2 days or less from any
source. Accordingly, we find that Respondent's
defenses under the contract are not so insubstantial
as to be considered patently frivolous.
However, in view of the nature of Respondent's
unlawful conduct, we shall require as a remedy that
Respondent mail the attached notice to all employees
in the bargaining unit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
United Steelworkers of America, Local No. 937,
AFL-CIO-CLC, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order, as so modified:
1. Delete paragraphs 2(b) and (c).
2. Add the following as paragraph 2(b) and
reletter paragraphs 2(d), (e), and (f) as paragraphs
2(c), (d), and (e), respectively:
"2(b) Mail a signed copy of the attached notice
marked Appendix to all employees in the bargaining
unit."
3. Substitute the attached notice marked "Appen-
dix" for the Administrative Law Judge's notice.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all employees of Magma Copper Company
To all members of United Steelworkers of America,
Local No. 937, AFL-CIO-CLC:
WE WILL NOT fail or refuse to process griev-
ances against Magma Copper Company on behalf
of George Glass, Ray Stephenson, or any other
employee, with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment, because of nonmem-
bership in the Union.
WE WILL NOT in any like or related manner
restrain or coerce employees of Magma Copper
Company in the exercise of their rights guaran-
teed in Section 7 of the Act.
WE WILL, upon request, investigate and handle
grievances filed by George Glass or Ray Stephen-
son, or any other member of the bargaining unit,
without regard to union membership of the
grievant.
200 NLRB No. 8
UNITED STEELWORKERS OF AMERICA, LOCAL NO. 937 41
UNITED STEELWORKERS
OF AMERICA , LOCAL No.
937, AFL-CIO-CLC
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Camelback Building, Room 207, 110
West Camelback Road, Phoenix, Arizona 85013,
Telephone 602-261-3717.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Tucson, Arizona, on January 18, 1972,
upon the complaint of General Counsel, and the answer of
United Steelworkers of America, Local No. 937,
AFL-CIO-CLC, herein referred to as Respondent.' The
complaint alleges violations of Sections 8(b)(1)(A) and 2(6)
and (7) of the Labor Management Relations Act, 1947, as
amended, (61 Stat. 136; 65 Stat. 601; 73 Stat. 519; 29
U.S.C. Sec. 151, et seq.), herein called the Act. The parties
waived oral arguments and briefs filed by the General
Counsel and Respondent have been carefully considered.
Upon the entire record,2 and from my observation of the
witnesses ,3 I make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE EMPLOYER
Magma Copper Company is a Delaware corporation
maintaining a place of business at San Manuel, Arizona,
where it is engaged in the operation of a copper mine and
smelter. During the 12-month period preceding the
issuance of the complaint, a representative period, the
Employer, in the course and conduct of its business
operation, mined, sold, and distributed at said place of
business, products valued in excess of $50,000, which were
shipped from said place of business directly to states of the
United States other than the State of Arizona. During the
same period, the Employer purchased and received
equipment, supplies, and other goods and materials
directly from outside the State of Arizona of a value in
excess of $50,000.
The complaint alleges, the answer admits, and I find that
the Employer is an employer engaged in commerce and in
i A charge was filed on October 6 A complaint was issued on October
29 All dates herein are 1971, except where otherwise indicated
2 The record was corrected in certain particulars.
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE RESPONDENT IS A LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find,
that Respondent, at all times material, is and has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICE
A. The Issue
The principal issue raised by the pleadings and litigated
at the hearing is whether the Respondent engaged in
conduct in contravention of the provisions of Section
8(b)(1)(A) by, on August 16, pursuant to a request by
George Glass and Ray Stephenson, restraining and
coercing said employees in the exercise of rights guaran-
teed in Section 7 of the Act, by refusing to process
grievances against the Employer on behalf of George Glass
and Ray Stephenson with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, because of their nonmembership in Respon-
dent.
Respondent denies the commission of any unfair labor
practice.
1. Agency
The complaint alleges, the answer admits, and I find that
Dudley Killinsworth, Sub-District Director, Rudy Garcia,
business agent, and Tom Hubbard, grievanceman, are, and
at all times material herein were, agents of Respondent
within the meamng of Section 2(13) of the Act.
2. Agency and supervisors
The complaint alleges, the answer admits, and I find that
Paul Hernandez, foreman, Larry Chavez, foreman, Hank
Scany, foreman, and Tom Clemens, development foreman,
were and are, at all times material, agents of the Employer,
acting on its behalf and supervisors within the meamng of
Section 2(11) of the Act.
B. Background
It is undisputed that the Union and the Employer were
parties to a collective-bargaining agreement which by its
terms became effective on July 28, 1971, and remains in
full force and effect until July 1, 1974, and thereafter from
year to year unless modified or terminated as therein
provided.
Among other provisions of the contract, article 6, relates
to Grievances. Included thereunder is subsection 6-3,
Grievance Procedure Step 1, Verbal presentation of
grievance to supervisors: Any employee having a grievance
shall, by himself or with the aid of his grievanceman, first
take the grievance up with his Immediate Supervisor who
In addition , General Counsel's motion to correct the record, without
opposition, is granted
3 Respondent presented no witnesses
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will attempt to adjust it. The grievance shall be presented
verbally as promptly as possible, and in no case in excess
of five (5) calendar days from date of occurrence of the
incident which led to the grievance.
The Events of August 16
George Glass, charging party herein, credibly related
that he has been employed by the Employer for approxi-
mately 17 years. Prior to August 16, Glass had been doing
work as a transfer raiser miner at the 2075 foot level. This
work was acquired by reason of Glass' seniority. The work
involved driving a vertical raise from one level to another
level, which Glass described as a part of stope preparation.
Glass was assigned to what is identified as the Mine
Division. The particular job he was performing is under an
incentive bonus system. Glass asserted his basic daily wage
was $34.17 and that he was earning $45.00 a day bonus.
The base pay was a guarantee predicated on a specified
amount of footage. Bonus was computed on the footage
performed in excess of the basic footage.
When Glass reported for work, at approximately 4 p.m.
on August 16, he was advised by the mine foreman, whom
he identified as J. D. Crawford, that they did not have
supplies at Glass' regular working level. Crawford advised
Glass that he had turned his timecard over to foreman Paul
Hernandez, who was performing work at the 2015 foot
level, and instructed Glass to report to Hernandez.
Glass asserted that he reported at the 2015 foot level,
where the job involved a bonus, which might have resulted
in earnings of $10.00 to $15.00 a day less.
Glass had been engaged at the 2015 foot level only a few
minutes, inferentially approximately 15 minutes, when
Hernandez advised that he was going to put Glass and Ray
Stephenson on a job of mucking track.4 Glass described
the job of mucking track as cleaning between rails down to
the ties, a general cleanup job and not a bonus job. Glass
inquired of Hernandez who was to replace Stephenson and
Glass. Hernandez responded they would be replaced by
two miner's pool hands. Miner's pool hands are described
as temporary employees, inferentially without seniority,
who are brought into the mine as needed. Glass inquired of
Hernandez why he was being replaced with a miner's pool
hand when Glass was assigned to stope preparation, which
was his department. Glass advised Hernandez that Her-
nandez was "messing up." Hernandez acknowledged that
it was wrong but asserted he had been advised to make the
assignment by his boss, identified as Larry Chavez.
Glass related that he later talked to Chavez, at Glass'
worksite and inquired why Chavez was "goofing me
around." Chavez, according to Glass, responded that he
had been told to make the assignment by Davis, who was
identified as the shift foreman. Glass advised Chavez that
he intended to file a grievance.
4 Glass' assertion that he was changed from the first to the second
assignment while still "on top" appears to relate to the assignment to the
2015 foot level, not the subsequent assignment to "mucking track."
5 Glass had joined the Umon in 1957, and discontinued his membership
when he was promoted to supervisor, in June 1968 He did not renew his
membership after he ceased being a supervisor about six months later
Stephenson discontinued his membership in June 1968, for an unspecified
reason
8 While Stephenson's version was at vanance, I find the difference of no
Ray Stephenson has been employed by the Employer for
approximately 16 years. His classification was the same as
that of Glass, a miner, and he was also assigned to the
mining operation division which was charged with stope
preparation, on August 16, as a transfer raise miner.
Normally, his partner was George Glass.
On August 16, Stephenson went directly to the 2075 foot
level, where he encountered Crawford, his immediate
supervisor. Crawford advised Stephenson that he was
supposed to have reported at the 2015 foot level, and that
Crawford so advised Glass earlier. Pursuant to Crawford's
instructions, Stephenson then went to the 2015 foot level
and reported to Paul Hernandez. By reason of the
necessary delay involved arriving at this level-a distance
in excess of one mile-when Stephenson arrived, he was
advised by Hernandez to go back and work with Glass and
another employee identified as Don Nelson, who were at
that time mucking track.
Stephenson corroborated the recitation of Glass, that the
normal work of both Stephenson and Glass provided a
daily minimum guarantee , with a bonus for extra footage.
The work at the 2015 foot level, as described by Glass,
involved the use of machinery while mucking the track
involved the use of a pick and shovel.
Lunchtime on the 4 p.m. to 12 p.m. swing shift is from
8:00 p.m. to 8:30 p.m. Glass related that he went to lunch
with Stephenson and Nelson, and that some 30 other
employees were present in the lunch room. During lunch,
Glass and Stephenson met Thomas Hubbard, the Union
grievanceman. Stephenson credibly related that Glass
advised Hubbard that Stephenson and Glass should have
filled the two openings in stope preparation at the 2015
foot level, but had been assigned to a job completely out of
their department, mucking track, while two relief miners,
from the miner's pool, were doing the work to which
Stephenson and Glass should have been assigned . Stephen-
son quoted Hubbard as responding, "Well, hell we got a
good case here, we'll get them." Glass asserted that
Hubbard advised he would "get on" Hernandez right after
lunch, explaining that it was necessary for him to present it
to Hernandez first. Toward the end of the lunch period,
Glass related, Hubbard inquired if Glass was a member in
good standing and Glass responded in the negative, that he
did not belong to the Union. Hubbard then inquired if
Stephenson was a member of the Union and Stephenson
likewise advised that he was not a member.5 Glass quoted
Hubbard as saying, "Boy, I sure liked to have goofed. They
would have laughed me clear out of the union hall if I'd
filed a grievance for you two scabs."6 Glass asserted that
he responded that the Union had signed an agreement with
the Company, that the employees were bound by it, and
the Umon had to file a grievance for them.7 Glass related
that Hubbard then asserted, "It's not only against my
importance . Stephenson quoted Hubbard as saying, "Jesus Christ, man, I
about goofed up." Hubbard then said they would laugh him out of the
office, without specifying to whom he was referring.
7 Stephenson related that he advised Hubbard that he and Glass were
covered by the union agreement with the Employer, and that, when the
Union called a strike , they could not draw unemployment benefits
Stephenson asserted Hubbard responded this did not make any difference
to him
UNITED STEELWORKERS OF AMERICA, LOCAL NO. 937 43
principles, the big boys upstairs don't go for this kind of
stuff." Glass asserted that Hubbard advised both Glass
and Stephenson that they had 24 hours to present their
grievance verbally and if each would write a check or give
him $10 for union initiation fees, the time element would
still be available to file a grievance. At this point the
whistle blew, signifying the end of the lunch period.
According to Glass, Hubbard then proceeded to talk to
Hernandez and Glass overheard the conversation. Glass
was uncertain that he had heard what Hubbard said to
Hernandez correctly and requested that Hernandez repeat
what had been said by Hubbard. Hernandez advised Glass
that Hubbard had said that he had an airtight grievance
against Hernandez, "but since it was two scabs that he
wasn't going to file it", that Hernandez could forget it.
Hernandez also related to Glass that Hubbard had stated
that "mucking that track back there was too good for two
scabs, they ought to have us pumping [toilets]".8
It is undisputed that at all times material herein, Glass
and Stephenson were within the unit represented by
Respondent.
On August 17, Glass explained what had happened to
Tom Clemens, development foreman, who is in charge of
stope preparation. Glass quoted Clemens as saying it
should never have happened and that they would get it
straightened out.
It is undisputed that Glass and Stephenson were
returned to their normal duties on August 17. They were
subsequently paid an amount equal to their normal base
pay for August 16, but without any bonus.
The duties of a bargaining agent selected under the
terms of the Act extend beyond the mere representa-
tion of the interests of its own group members. By its
selection as bargaining representative it has become the
agent of all the employees, charged with responsibility
of representing their interests fairly and impartially.
Otherwise, employees who are not members of a
selected union at the time it is chosen by the majority
would be left without adequate representation... .
In the Local Union No. 12 case 13 the Court held:
Neither does the mere fact that the act provides that an
individual employee may present his claim directly to
the Employer diminish the union's duty of fair
representation, for admittedly the grievance of a single
employee can have little force in the absence of support
of his bargaining representative. [Citation omitted.]
Undoubtedly, the duty of fair representation can be
breached by discriminatory inaction by refusing to
process grievances as well as by active conduct on the
part of the union. [Citations omitted.] ... .
Accordingly, for the reasons stated, I find that Respon-
dent, by failing and refusing to process the grievances of
Glass and Stephenson, has restrained and coerced said
employees of the Employer in the exercise of rights
guaranteed in Section 7 of the Act and that said conduct
constitutes unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.
D. Respondent's Purported Defenses
C. Concluding Findings
It appears undisputed, and I have found, that Hubbard
refused to process the grievances of Glass and Stephenson
solely because they were not members of the Union. It is
also undisputed that Hubbard, initially, expressed an
opinion that the grievance was mentonous 9
It is well established that an exclusive bargaining
representative is under a statutory duty to bargain on
behalf of all the employees within the bargaining unit, and
to represent them fairly and without discriminating among
them because of their union membership or lack thereof.10
In the Hughes Tool case" the Court held:
When the Steelworkers Union accepted certification as
the bargaining representative for the group, it accepted
a trust. It became bound to represent equally and in
good faith the interests of the whole group. [Citation
omitted.] It ought not to discriminate in the execution
of its duties between its own members and employees
who belong to another union or to no union. The
handling of grievances, as has been pointed out, is part
of the business it has assumed, and must be done with
impartiality.
In the Wallace case 12 the Supreme Court held:
8 Stephenson related that Hubbard, shortly thereafter , made the same
observation to him , relative to [toilets]
9 Respondent 's contentions to the contrary , in its brief , are explicated
infra
10 Steele v Louisville & Nashville R Co, 323 U S 192, 202, Syres v Oil
Workers, 350 U S 892, reversing 223 F 2d 739 (C A 5), Vaca v Sipes, 386
U S 17 1, 181, Miranda Fuel Company, Inc, 140 NLRB 181 , 184-185,
At the outset of the hearing, Respondent asserted that it
was placing reliance on a Management Rights clause,
article 4. In its brief, Respondent asserts that article 4 gives
the "Company the sole right to assign an employee to the
job, and to relieve him of his duties." Thus, says
Respondent, "No violations of this agreement occurred
with Mr. Glass." The Management Rights clause in toto,
provides:
4. The Company retains and shall maintain all
managerial authority and prerogatives, subject only to
the express terms and provisions of this Agreement.
4-2. Nothing in this Agreement shall be interpreted
as interfering in any way with the Company's right to
alter, rearrange or change, extend, limit or curtail its
operations or any part thereof, or to shut down
completely, whatever may be the effect upon employ-
ment, when in its sole discretion it may determine it
advisable to do all or any of said things when such
action is not in conflict with the provisions of this
Agreement. Nothing in this Agreement shall be
construed so as to deprive the Union of any rights
under existing laws.
It is patent that Respondent's contention is frivolous,
otherwise the seniority and other provisions of the contract
enforcement denied 326 F 2d 172 (C A 2), Independent Metal Workers
Union, Local No I (Hughes Tool Company), 147 NLRB 1573, 1575
11 Hughes Tool Company v N L R B, 147 F 2d 69, 74 (C A. 5)
i2 The Wallace Corp v N L R B, 323 U S 248 , 255-256.
13 Local Union No 12, United Rubber, Cork, Linoleum & Plastic Workers
of America, AFL-CIO v N L R B, 368 F.2d 12, 18 (C A 5)
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be meaningless. It is ludicrous for the Union to
assert this clause precludes assertion of seniority rights.
Respondent, at the outset of the case, asserted, by way of
defense, that the contract was not valid, that the Company
does not allow a grievance to be held on Company time,
that the lunch period is Company time and that the
employees did not present the grievance properly, inferen-
tially because it was presented on Company time. Respon-
dent, in its brief, appears to have abandoned these asserted
defenses. General Counsel, in his brief, refers to these
defenses as "frivolous nonsense" since nowhere in article 6
does such a provision appear. I find no merit in these
asserted defenses.
Respondent, in its brief, urges that the provisions of
article 16-7, Administration [of the contract on incentive
bonus plan ] and the provisions of subsection 8-3,
Temporary Vacancies(b) Development and Repair Depart-
ment, precludes the acceptance of the grievance of Mr.
Glass as a legitimate grievance, assertedly by reason of a
provision that temporary vacancies may be filled for two
days. We are not called upon, herein, to determine the
validity of the grievance, or to substitute our judgment for
that which the parties might have agreed upon, had the
grievance been pursued. The gravamen of the complaint is
the failure of the Union to process a grievance. It is
undisputed that Hubbard expressed the view that the
grievance was meritorious. Hindsight determination, at
variance with that expressed by Hubbard, is no defense to
the Union's failure to perform its statutory duty.
Finally, the Union asserts that Glass could have
exercised his right by filing an individual grievance, or by
finding another grievanceman to file it for him. The
Union's duty is explicated supra, in the decisions set forth.
While the Union makes no reference in its brief, to
Stephenson, it is assumed that its contentions relative to
Glass were intended also to apply to Stephenson.
I find all of Respondent's asserted defenses patently
frivolous.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the business opera-
tions of Magma Copper Company, set forth in section I,
above, have a close, intimate, and substantial relation to
trade, traffic and commerce among the several states, and
such of them as have been found to be unfair labor
practices tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I have found that Respondent, by failing and refusing to
14 Local No 4, United Slate, Tile, and Composition Roofers, Damp and
Waterproof Workers Association, AFL-CIO (Avon Sheet Metal Co), 140
NLRB 384
15 International Union of Electrical Radio and Machine Workers, A FL-
process the grievances of Glass and Stephenson, has
caused each of them to lose a bonus they might otherwise
have obtained for work performed on August 16, 1971.
Therefore, I shall recommend that Respondent make Glass
and Stephenson whole for the loss of pay each has suffered
by payment to each of a sum of money equal to the bonus
each would have earned on said date. N.L.R.B. v. Seven-Up
Bottling Co., Inc., 344 U.S. 344. Interest on backpay shall
be computed in the manner set forth in Isis Plumbing &
Heating Co., Inc., 138 NLRB 716.14
General Counsel, in his brief, urges as an additional
remedy, that Respondent be ordered to pay to the Board
the costs and expenses it has incurred in the investigation,
preparation, presentation and conduct of this litigation,
such amount to be ascertained at the compliance stage of
this proceeding. Tridee Products, Inc., 194 NLRB No. 198.
General Counsel asserts two reasons for his request: (1) to
imprint on the International that when there is no defense
it has no right, in good morality or good law, to impose on
the Board's processes and litigate a matter when the Union
is clearly in the wrong and has no defense; and (2) to teach
the Local that it cannot ignore the legal rights of
nonmembers with impunity or with nothing more than a
mild slap on the wrist.
I find nothing in this record relating to the conduct of
the International. However, I am constrained to find
Respondent's conduct was a clear and flagrant violation of
the law. In addition, the Court held in the Tudee case: 15
Simply put, the present posture of the Board encour-
ages frivolous litigation not only before the Board, but
in the reviewing courts. The case at hand is in point.
The position of the Company is palpably without merit
with respect to its refusal to bargain. Yet it profited
through the delay the review entails : all during this
litigation it has not had to bargain collectively over
wages or other financial aspects of employment.
The courts, then, are doubly concerned when Board
inadequacies drain and divert judicial resources from
the provision of justice to crowded calendars and to
meritorious litigants whose claims clamor for attention.
The same considerations are presumably applicable at
the administrative level.
Having found that Respondent's conduct was a clear
and flagrant violation of the Act, and that its defense is
frivolous and without substance, to discourage future
frivolous litigation, to effectuate the policies of the Act,
and to serve the public interest, I recommend the
Respondent be ordered to reimburse the Board 16 for its
expenses incurred in the investigation, preparation, presen-
tation, and conduct of this case , including the following
costs and expenses incurred by the Board: reasonable
counsel fees , salaries, witness fees, transcript and record
costs, printing costs, travel expenses and per diem, and
other reasonable costs and expenses. Tiidee Products, Inc.,
194 NLRB No. 198, (Rule 38, Federal Rules of Appellate
Procedure, and cases cited in fn. 17).
In view of the nature of the unfair labor practices
CIO v NLRB , 426 F.2d 1243, 1249-1250 (C A D C)
16 The term Board, in this context , is intended to encompass General
Counsel
UNITED STEELWORKERS OF AMERICA, LOCAL NO. 937 45
committed, the commission of similar and other unfair
labor practices reasonably may be anticipated. I will
therefore recommend that Respondent be ordered to cease
and desist from failing and refusing, upon the request of
any employee in the appropriate unit, to process grievances
against the Employer, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, thus restraining and coercing said employees
in the exercise of rights guaranteed under Section 7 of the
Act, solely by reason of nonmembership.
CONCLUSIONS OF LAW
1. Magma Copper Company is an employer , within the
meaning of Section 2(2), engaged in commerce and in
activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, at all times material herein, acted as
collective-bargaining representative of said employees of
the Employer, in an appropriate unit , including George
Glass and Ray Stephenson.
4. By refusing to process grievances against the
Employer on behalf of George Glass and Ray Stephenson,
with respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment, because of
their nonmembership in Respondent , to the extent found
herein , Respondent has restrained and coerced said
employees in the exercise of rights guaranteed in Section 7
of the Act, and said conduct is an unfair labor practice
within the meaning of Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
RECOMMENDED ORDER i7
United Steelworkers of America, Local No. 937,
AFL-CIO-CLC, its officers, agents and representatives,
shall:
1. Cease and desist from:
(a) Failing and refusing to process grievances against the
Employer on behalf of George Glass and Ray Stephenson,
or any other employee, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, because of their nonmembership in Respon-
dent.
(b) I,. any like or related manner restraining or coercing
employees of Magma Copper Company in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, investigate and handle grievances filed
by George Glass or Ray Stephenson, or any other member
of the bargaining unit, without regard to union member-
ship of the grievant.
(b) Make whole George Glass and Ray Stephenson for
any loss of pay they may have incurred by reason of
Respondent's refusal to process their grievances on August
16, 1971, in accordance with "The Remedy" herein.
(c) Pay to the Board the costs and expenses incurred by it
in the investigation, preparation, presentation and conduct
of this case before the National Labor Relations Board,
such costs to be determined at the compliance stage of
these proceedings.
(d) Post at its offices at Tucson, Arizona, and at all other
places where it customarily posts notices to its members,
copies of the notice attached hereto marked "Appendix".18
Copies of said notice, to be furnished by the Regional
Director for Region 28, shall, after being duly signed by
the Respondent's authorized representative, be posted by
the Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken to insure that such notices are not altered, defaced,
or covered by any other material.
(e) Sign and deliver sufficient copies of said notice to the
Regional Director for the Region 28 for posting by the
Magma Copper Company, at all locations where notices to
its employees are customarily posted, if said Employer is
willing to so post.
(f) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this Trial Examiner's
Decision what steps the Respondent has taken to comply
therewith. It is further recommended that, unless on or
before 20 days from the date of the receipt of this Trial
Examiner's Decision, the Respondent shall notify the said
Regional Director, in writing, that it will comply with the
recommended Order 19 the National Labor Relations
Board issue an Order requiring the Respondent to take the
aforesaid action.
14 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein, shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board", shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals, Enforcing an Order of
the National Labor Relations Board".
19 In the event that this recommended Order be adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 20 days from the date of this Order, what steps Respondent
has taken to comply therewith".