Basic Magnesium, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1943

48 N.L.R.B. 1310 (N.L.R.B. 1943)

In the Matter of BASIC MAGNESIUM, INC. and INTERNATIONAL UNION OF
MINE, MILL AND SMELTER WORKERS, LOCAL 629, C. I. O.
Case No. R-4973.-Decided April 16, 1943
Jurisdiction : magnesium and magnesium alloys manufacturing industry.'
Investigation and Certification of Representatives : existence of question : refusal
to accord petitioner recognition because of contract with • rival union ; con-
tract which was never signed by the company and relied on as a bar, held no
bar; amendment to that contract which was executed and signed subsequent to
petitioner's exclusive representation claims and at,a time when a substantial
number of the employees had designated the petitioner, held no bar; election
necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees with specified exclusions.
Mr. Gerald P. Leicht, for the Board.
Mr. C. Jay Parkinson, of Boulder City, Nev., and Mr. W. H. Hoover,
of Butte, Mont., for the,Company.
Mr. Abraham J. Isserman, of Newark, N. J., and -Mr. Lee Pressman,
of Washington, D. C., for the C. 1. 0.
Mr. Henry Kaiser, of Washington, D.-C., Mr. John C. Stevenson, of
Los Angeles, Calif., and Mr. David Sokol, of Los Angeles, Calif., for
the A. F. of L.
Miss Viola James, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by International' Union of
Mine, Mill and- Smelter Workers, Local 629, affiliated with the Con-
gress of Industrial Organizations, herein called the C. I. 0., alleg-
ing that a question affecting commerce ^ had arisen concerning the
representation of employees of Basic Magnesium, Inc., Las Vegas,
Nevada, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
James C. Batten, Trial Examiner. Said hearing was held at Las
Vegas, Nevada, on March 1, 2, and 3, 1943. The American Federa-
tion of Labor intervened on behalf of the following affiliated labor
48 N. L. R. B, No. 166.
1310
-BASIC MAGNESIUM , INC. 1311
organizations :' Metal Trades Council of the American- Federation of
Labor, of Las Vegas, Nevada; Building and Construction Trades.
Council of the American- Federation of Labor, of Las Vegas, Ne-
vada; 'International Association of Heat and Frost Insulators and
Asbestos Workers; International Brotherhood of Boilermakers, Iron
Ship Builders and Helpers ; Bricklayers , Masons and Plasterers' In-
ternational Union; United Brotherhood of Carpenters and Joiners
of America ; International Brotherhood of Electrical Workers; Inter-
national Union of Operating Engineers ; International Association of
Bridge, . Structural , and Ornamental Iron Workers; International
Hodcarriers, Building and Common Laborers Union; Wood, Wire
and Metal Lathers' International Union; Brotherhood of Painters,
Decorators and. Paperhangers; Operative Plasterers and Cement Fin-
ishers International Association ; United Association of Journeymen,
Plumbers and Steamfitters ; United Slate , Tile and Composition
Roofers, Damp and Waterproof Workers Association ; Sheet Metal
Workers' International Association ; International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers ; International
Association of Machinists ; and International Brotherhood of Black-
smiths, Drop Forgers and Helpers. The Board, the Company, the
C. I. 0., and the American Federation of Labor on behalf of the
above-named affiliated organizations , herein collectively called the
A. F. of L., appeared at the hearing and participated . All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues.
The Trial Examiner reserved ruling for the Board on two notions :
(1) the motion of the A. F., of L . to strike Exhibit No. 4, intro-
duced by the C. I. 0.; and (2) the motion of the C. I. O. to amend
its description of the alleged appropriate unit. The first motion is
hereby denied, and the second is hereby granted. ^ The Trial Exam-'
iner's rulings are free from prejudicial error and are hereby affirmed.
On March 17 and 18, 1943, the A. F. of L. and ,the C. I. 0.,
respectively , filed briefs which the Boai•d has considered . In its brief
the A . F. of L . moved ' that the petition be dismissed on the ground
that no question concerning representation had arisen . For the
reasons appearing below, the motion is hereby denied.
On April 1 , 1943, all the parties appeared before the Board in
Washington , D. C., for oral argument and were heard.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CO MPANY
Basic Magnesium, Inc., is a Nevada corporation, acting as agent
,for Defense Plant Corporation , an instrumentality of the United
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States Government. The Company operates the Basic Magnesium
Plant near Las Vegas, Nevada, which is wholly owned by Defense
Plant Corporation, and is engaged in that plant in the production
and refining of magnesium and magnesium alloys. Its byproducts
include fluxes, chlorine, and, caustics. The principal raw materials
used are coal from Utah, salt from California, peat moss from Can-
ada, electric energy from Boulder Dam, and magnesite ore from
Gabbs, Nevada, which is shipped via Utah. The plant is now in
partial production and will expand to full production toward the
latter part of 1943. It is estimated that the value of the raw mate-
rials used in 1943 will exceed $10,000,000. The products are sold upon
governmental allocation and are used entirely in the prosecution of
the war, with the expectation that they will undoubtedly be shipped
in interstate and foreign commerce. It is estimated that the value
of ,the products during 1943 will also exceed $10,000,000. The Com-
pany admits that it is engaged in commerce within the meaning of
the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers, Local
629, affiliated with the Congress' of Industrial Organizations, and the
organizations affiliated with the American Federation of Labor and
in whose behalf the American Federation of Labor intervened, are
labor organizations admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
'The C. I. O. contends that, beginning in November 1942, it made
repeated requests for recognition, all of which the Company refused
.on the ground of a bargaining contract With the A. F. of L. The'
A: F. of L. relies on its contract of December 16, 1942, as a bar to an
election., contending that the C. I. 0., prior to the execution of said
contract, neither requested exclusive recognition nor_ represented a
majority of the employees. The Company took no definite position
at the hearing, but during the oral argument before the Board -its
counsel stated that the petition should be dismissed.
Facts in the .record which are germane to the principal contro-
versy may be briefly summarized as follows :
The Company began production in the summer of 1942, and on
August 27, 1942, 'allegedly entered into a bargaining agreement,,
recognizing the A. F. of L. as the bargaining agent for the Com-
I
1 The contract was not signed by the Company because by the time all the A. F of L
signatures had been affixed and the contract had been sent to Defense Plant Corporation in
Washington , D. C., for approval , the management of,the Company had changed bands.
i
BASIC MAGNESIUM , IN c. / 1313
pany's employees "who are now or shall hereafter become members"
of the A . F. of L. It was apparently broader than a "members
only" contract , however , for the text contained provisions in which
the Company agreed to hire all workmen from the A . F. of L . unions
and to continue in its employ all A. F. of L . members, and that all
employees who were not A. F. of L. members would have to apply
for membership within 90 days. Doubt as to the effect of the con-
tract was first evidenced by a meeting of certain employees with
management on September 24, 1942, at which , time numerous ques-
tions were raised with respect to the intent of the union membership
cl arses.
In October 1942 the C . I. O. local received its charter and began
its organizational activities . About November 13, 1942, a C. I. O.
committee met with a management committee . Present for, the
C. I. 0. were Bell, president of the C. I. O. local ; Phaneuf, the vice
president ; Schoenherr , the chief steward; and Carroll and Webb.
For the management were Sargent , director of personnel ; Harden,
superintendent of preparation ; Mulgannon , chief investigator in the
plant-protection department ; and Coulter . Both Bell and Phaneuf
testified that the meeting was requested for the purpose of discussing
hospitalization , vacations , the A. F. of L . contract, and bargaining
by the C. I. 0.; that when the question of the A. F. of L. contract
came -up, Phaneuf asked, in view of Sargent's admission that the
contract had never been signed by the Company , why the C. I. O.
could not have the right of bargaining , and that the C. I. O. felt
that it had a majority of the workers in the plant ; that Phaneuf
also offered to cross-check the C . I. O. membership cards against a
pay roll of the Company ; and that each request was refused on the
ground of the A. F. of L. contract. Mulgannon was the only member
of the management committee to testify. He admitted that a com-
mittee of employees requested the meeting for the purpose of dis-
cussing some employee problems - and the A. F. of L . contract, and
admitted that he knew every person on the employee committee was
a member of the C . , I. O. He denied , however, that the employees
identified themselves as a C. I. O. committee , denied that they re-
quested recognition for the purposes of bargaining , and-denied that
,they offered to cross-check their membership cards. A memorandum
from the Company 's files, prepared after the meeting and signed by
-Sargent, contained the following statement :, "Bell was particularly
legalistic in his approach , attempting to prove that the National
Labor Relations Act had'been infringed upon in negotiating a union-
shop agreement with the A: F. of L . in the absence of an election.
The group made no comment as to what union affiliation , if any,
t liey preferred , speaking only in generalities of `a company union,
1314 DECLSIONS OF NATIONAL LABOR RELATIONS BOARD
C. L O.; or any .other form of, organization which appealed, to the-
employees.'
On November 22, 1942, Hollowwa, a C., I. O.. international repre-
sentative and. the _organizer for the C. J. O. local, wrote Case, the
general manager of the Company, stating that he had been instructed
by the local to request a conference. On November 23, 1942, McNeil,
assistant to the president of the C.J. 0. International Union of Mine,
;Mill and Smelter Workers, wrote Case as follows : "For your informa-
tion, we ,have a very substantial membership at the present time at
Basic Magnesium, in Las Vegas . . . We are writing you because
there is a competitive situation at present at Las Vegas and we hope,
that the Company -will retain a complete neutrality until. the question
of, representation is resolved under the .law." 2 On November 24,'
1942, Robinson,, president of the International, stated in a telegram,
to Case: "Urge you comply with National Labor Relations Act which
calls for determination of bargaining agent by election." • In a letter
of November 30, 1942, to Case, Hollowwa said, " . . . I do.hereby
request recognition of the membership of said. union for the purpose
of presenting grievances, etc., ... If 'you, refuse to comply with
our, request,, and since there is no certified. bargaining agent, you will
compel ,us to proceed under law to obtain such recognition." Re-
ceiving no answer, Hollowwa wrote Case again on December. 13, 1942.
On December 21, 1942, Case wrote to Hollowwa enclosing a letter of
December 10, 1942, in answer 'to Hollowwa's letter of November
30, 1942. In the December 10 letter Case stated :
Please be advised that any individual employee of Basic Mag-
nesium, Incorporated, or group of our employees may at any rea-
sonable time present grievances ; these grievances will receive the
consideration of our Management. If your request for recogni-
tion, however, goes beyond the above, it is my present informa-
tion that your Union has not been designated by • a majority of
our employees as 'n appropriate representative of a unit for the,
purpose of collective bargaining.
On December 16, 1942, the Company and the A. F. of L. entered
into a collective bargaining agreement which states on its face that
it is an amendment to the August 27 contract.' Its terms are sub-
stantially the same. On December 31, 1942, Hollowwa'wrote' Case,
specifically asking for exclusive recognition. On January l,'1943,
the, C. I. O. filed the petition herein.
2 On the statement of counsel for the Company that the Company had no record of this
letter, a copy of which was introduced into evidence as C. I. O. Exhibit 4, counsel for the
A. F. of L. moved that the exhibit be rejected. As the C: I. O. in its brief submitted a photo
static copy of the Company's acknowledgment of the letter, we shall receive the exhibit.
s The August 27 contract is not relied on as a bar, and we find that it is not, as it was
never signed by the Company. See Matter of Eicor, Inc. and District No. 8, Internationat
Association of Machinists, A. F. of L., 46 N. L. R. B., No. 116.
BASIC MAGNESIUM, INC. 1315
In, the- oral argument before the Board, the controversy resolved
itself into three ,issues raised by counsel for the A. F. of L. In,
contending that the petition should be dismissed, he argued (1) that
the C. I. O. never asserted that it was entitled to exclusive recognition
as bargaining-agent until after the contract of December 16, was
signed,, (2)' that even if the C. I. O. had advanced such a claim, it
was made at a time, when it represented neither a majority nor a
substantial -number of the employees in the appropriate bargaining
unit, (3), that even in the absence of the two' foregoing factors, policy
would ,dictate.the dismissal of the petition for an,election in view
of.the fact that the petitioning union had not organized any,of the
employees until after the A. F. of L. had been on the scene and was,
accorded recognition by the Company.
In the light of well-settled principles enunciated by this Board and
approved by. the courts, it does not appear that the third of these
arguments,is tenable. While the Board in order to encourage sta-
bility in labor relations has deemed valid collective agreeinents to be
a bar to a petition for a new determination for representatives, it
has never gone so far as to place informal recognition of one union
upon. such 'a basis. Both branches of organized labor are well
acquainted with this rule of decision. Unless a union has been certi-
fied as a majority representative or a contract executed, it is well
settled that no collective agreement executed subsequent to and in the
face of another union's -bona fide claim of exclusive representation
can be a bar to determination of representatives. Very recently the
Board had occasion to reaffirm this principle in the following
situation : ' ' ' '
A union affiliated with the C. I. 0., which had a contract which was
about to,expire, entered into negotiations with a company fora new
contract. No one questioned that at the time of the negotiations this'
union was still the majority representative. The negotiations pro-
ceeded and the terms of the new contract were informally. agreed upon
and reduced to writing. Before the contract was signed, however, an
A. F. of L. union secured a substantial number' of cards from em-
ployees of the Company, designating it as their agent and thereupon
gave notice to the Company that it desired recognition as the collet-,
tive agent. The Board refused to regard the contract with the C. I. O.
union as a bar-to an election sought by the A. F. of L. union .4 A de-
parture from the doctrine of that decision in the instant case would
seem not only capricious, but open to the reproach of denying equal
protection of the law since the situation 'in which the contending labor
organizations find themselves here is precisely the reverse of the po-
sition taken by their co-affiliates in the cited case.
See Matter of Eicor, Inc , supra.
521247-43-84 ^
1316 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
S
The other. two issues posed by the counsel, however, appear'to be
correctly framed, since the petitioning union's case must stand or fall
upon whether-or not the Company had notice of its position prior to
the execution of the contract with the rival union. It was earnestly
contended that all that the petitioner demanded'before-that date was
recognition as bargaining agent for its own members.' Upon exam-.
ination, the record fails to support this, view. While two of the
members of the C. I. 0. committee who conferred with the company
officials on November 13 testified that on that occasion the committee
backed up its claim for recognition as bargaining agent with the as-
sertion that it liad;a majority, it will be noted that the testimony
of the management witness and the memorandum produced from
the Company's files do not bear this out. Accordingly, we do not find
that any real question of representation was raised by the conference
of November 13. The correspondence of Robinson and Hollowwa to
Case, however, indicates that the C. I. 0. union subsequently did take
the position-that it was entitled to be recognized as the exclusive agent.
Although the language of the letter of November 30 with respect to
"recognition of the membership of said union" renders that com-
munication somewhat ambiguous, the fact that the letter went on to
indicate that in the event of a refusal, the Union proposed to proceed
under the law to secure recognition as bargaining agent seems to re-,
solve this ambiguity, since there is no legal right to recognition unless
the claimant organization represents,a majority'of the employees in
the appropriate bargaining unit. The Company in its reply adverted
to this possibility by saying that it would recognize, any individual
or any group for the purpose of presenting grievances, but that if the
C. I. 0. claim for recognition went beyond this, recognition was
thereby denied because the Company was of the opinion that the C. 1. 0.
had not been designated as bargaining agent by a majority of 'the
employees. This reply did not reach the C. I. 0. representatives un-
til after the contract with the A. F. of L. was signed. Since the Com-
pany -expressly considered the possibility that the C. I. 0. regarded
itself as exclusive bargaining agent, we are compelled to conclude
that i't signed the contract with the A. F. of L. with notice that a
rival claim of representation existed. So viewed, the contract is not
a bar. '
Counsel argued in the alternative that even though a claim for
exclusive recognition had been made,.it was not entitled to any weight
since the C. I. 0. did not have the cards to make a prima facie showing
of majority or even of substantial interest, on the date the contract
was signed. We have repeatedly held that petitioning unions need
not make a prima facie showing of majority since a showing of sub-
stantial representation by the petitioning union is sufficient to raise
BASIC MAGNESIUM, INC. '1317
the possibility that it ' may be selected by the majority .5 The record
does show that the C . I. O. made a substantial showing at the hearing s
The A. F. of L . counsel, however , made the point that this was im-
material unless it could be shown that a substantial number had given
designations to the C. I. O: prior to the date of the A. F. of L . agree-
ment. An analysis of the cards presented at the hearing shows that
only 252 of the total of 1,178 cards were dated prior to December 16,
1942, and also corresponded with the names of the persons on the
Company's pay roll as of January 6, 1943. Since the pay roll of De-
cember 13, 1942, indicates that there were approximately 1,374 in
the unit alleged to be appropriate , the showing was only 18 percent
on the crucial date. In oral argument , however, counsel for the C. 1. 0.
pointed out that these cards were not checked against the pay roll
nearest to December 16. and that the C. I. O. might have produced 200
additional designations , had it not discarded signatures of persons
no longer in the employ of the Company . This point , which might
have been decisive of the case , was never litigated at the hearing and
we think that the A. F. of 'L . was precluded from raising it before the
Bo rd by reason of the position taken by its counsel at the trial of
the case. During the hearing, counsel for-the C. 1.0. requested that
the remainder of the 1,178 cards be checked against the pay roll of
January 6, 1943. He also objected to the statements of the Field
Examiner and the Board's attorney on the ground that no analysis
was made of the cards received up to December 16, 1942, showing how
many of the persons who signed the cards were employed by the Com-
pany on December 16, 1942. He pointed out that such an analysis
was necessary in the event the A. F. of, L. argued the absence of a sub-
stantial interest by the C. I. O. on December 16, 1942. Thereupon,
counsel for the A. F. of L. sta ted, ". . no such argument will be
made." He further stated, " . . . assuming the absence of an
agreement , which we rely upon, the C I. O. has shown a substantial
interest , sufficient to warrant an investigation by the Board and suf-
ficient to put their on the ballot in the event of a direction of election."
5 See Matter of Smith h Caffrey Company and International Association Bridge Struc-
tural Ornamental Iron Workers Local Union # 612 , 38 N. L. R. B 90.
The Field Examiner reported that the C . I. O. submitted 579 applications for member-
ship , dated between November 15, 1942, and January 15 , 1943, all bearing , apparently
genuine original signatures , and that 484 of the 579 signatures appearing, on the cards
bore the names of,persons on the Company ' s pay roll of January 6, 1943.
The Board 's attorney at the hearing reported that the C. I. O. submitted a total of 1,178
cards, all dated after, October 12 , 1942. Of these , 482 cards were dated prior to January
6, 1943. the pay-roll date nearest the filing of the amended petition , of which 382 bearing
apparently genuine original signatures , contained the names of persons appearing on the
January 6, 1943 , pay roll. The .number of employees in the unit as of January 3, 1943,
was 1,476 The showing thus limited is 26 percent. The remainder of the cards, dated
after January 6, 1943, were not checked against the pay roll. A further analysis reveals
that 252 cards , bearing the names of persons on the Company 's pay roll of January 6, 1943,
w ere dated prior to December 16, 1942, the date of the contract -
1318, DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
On the basis of these statements, counsel for the G. I. O. stated he
would not press his request for any further analysis of the cards.
We find that a question, affecting commerce has arisen concerning
the representation of employees of the Company, within .the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The unit sought by the C. I. O. is substantially the same as the unit
of employees covered by both contracts.7 However, there are,several
groups in dispute. The C. I. O. would further define the unit by
excluding laboratory, technical, and hospital employees, and moved
to amend its petition to exclude them. The A. F. of L. objected to this
amendment on the ground that it- is unnecessary as none of these
employees are covered by the contracts. , Forpurposes of -clarification,
we shall exclude these employees since they have not been covered by
the contracts and are not closely related to the production and mainte-
. nance employees. The C. 1. 0. would also exclude all foremen, whereas
the A. F. of L. would include those foremen whom it admits to mem-
bership and who are covered by the contracts. .We shall follow our
usual practice and exclude the foremen. A question arose as to "con-
struction" employees. While such employees are covered by the con-
tracts, the record shows that this did not mean employees engaged in
building construction. We shall include employees in construction
trades engaged in production and maintenance.
We find that all production and maintenance employees of the Com-
pany, excluding foremen and higher ranking' supervisors; laboratory,
technical, and hospital employees; members of the plant protection'
division, including fire' fighters, watchmen, and guards; office em-
ployees; chemical, metallurgical, engineering, and other professional
employees and assistants ; timekeepers; time-checkers; material check-
ers; and clerks, messengers , and confidential employees, constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret`ballot among. the em-
7 The first contract provided : "This contract shall include all production , maintenance,'
and construction employees employed directly by the Company , but shall not apply to fore-
men (but shall apply to all foremen who, under present international craft regulations, are
required to be members in good standing of their apprdpriate craft u nions), and higher
ranking supervisors ; members'of the plant protection division including fire fighters , watch-
men and guards ; office employees , chemical , metallurgical , engineering and other profes-
sional employees and their assistants ; timekeepers , time - checkers ; material checkers ;
clerks, messengers and confidential employees ." The coverage clause of the second contract
is in all material respects the same.
BASIC MAGNESIUM, IN C. 1319
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the,date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction."
DIRECTION OF ELECTION
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 9, 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 Basic Magnesium,
Inc., Las Vegas, Nevada, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days froln 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
10, of said Rules and Regulations, among the 'employees in the unit
found appropriate in Section IV, above, who were employed during
the pay-roll period immediately preceding the date of this Direction,
including employees who, did not work during said pay-roll period
because they were ill or on,vacation or temporarily laid off, and includ-
ing employees in the armed forces of the United States who present
themselves in person at the polls, but excluding these employees who
have since quit or been discharged for cause, to determine whether they
desire to be represented by C. I. 0., International Union of Mine, Mill
& Smelter Workers, or by A. F. of L., for the purposes of collective
bargaining, or by neither.
8 The request of the A. F. of L. to appear on the ballot as "A. F. of L " is hereby granted
At the hearing the C. I. 0. requested that its name appear on the ballot as "C. I. 0 ," but
subsequent to the hearing advised the Board that it desired to appear as "C. I 0., Inter-
national Union of Mine, Mill & Smelter Workers " The latter request is granted.
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