Utah Copper Co.

National Labor Relations Board - Board Decisions

Jun 16, 1938

7 N.L.R.B. 928 (N.L.R.B. 1938)

In the Matter Of UTAH COPPER COMPANY, A CORPORATION, and KENNE-
COTT COPPER CORPORATION, A CORPORATION and INTERNATIONAL
UNION OF MINE, MILL, AND SMELTER WORKERS, LOCAL No. 392.
Cases Nos. C-399 and R-273-Decided June 16, 1938
Copper Mining and Milling Industry-Envployer: corporation and wholly
owned and controlled subsidiary-Interference, Restraint, and Coercion: state-
ments designed to discourage labor organization; discriminatory transfers;
open assistance in withdrawals from union-Company-Dominated Union: con-
tinuance of company-sponsored employee representation plan ; domination of and
interference with administration ; financial and other support ; disestablished,
as agency for collective bargaining-Investigation of Representatives: contro-
versy concerning representation of employees: controversy concerning appro-
priate unit; employer's refusal to grant recognition of union ; majority status
disputed by employer-Unit Appropriate for Collective Bargaining: production
workers employed at two mills, excluding clerical employees and employees of
the rank of foremen and above ; mine and transportation department employees
excluded ; geographical differences ; history of collective bargaining relations
with employer and in industry ; occupational differences-Election Ordered:
time to be set in future when effects of unfair labor practices have been
dissipated.
Mr. John P. Jennings, for the Board.
Mr. C. C. Parsons and Mr. William M. McCrea, of Salt Lake City,
Utah, for the respondents.
Mr. Bernard W. Freund, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges duly filed on July 24, 1937, and amended on August
20, 1937, by the International Union of Mine, Mill and Smelter
Workers, Local No. 392,1 herein called the Union, the National
'This appears to be the correct title of the Union, although it is variously designated
in the record.
928
DECISIONS AND ORDERS 929
Labor Relations Board, herein called the Board, by Alice M. Rosseter,
Regional Director for the Twentieth Region (San Francisco, Cali-
fornia), issued and duly served its complaint dated August 14, 1937,
against Utah Copper Company, Salt Lake City, Utah, herein called
Utah Copper, and on August 20, 1937, issued and duly served an
amended complaint against Utah Copper and Kennecott Copper Cor-
poration, Salt Lake City, Utah, herein called Kennecott, alleging
that Utah Copper and Kennecott, herein collectively called the re-
spondents, had engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and
(2) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. The respondents jointly filed an
answer on August 30, 1937, admitting in part and denying in part
the allegations of the complaint concerning their business,2 but deny-
ing that the alleged unfair labor practices affect commerce, and
further denying that they had engaged in or were engaging in the
alleged unfair labor practices. '
On July 2, 1937, the Union filed a petition with the Regional Di-
rector, alleging that a question affecting commerce had arisen con-
cerning 'the representation of employees of Utah Copper at the
Arthur and Magna mills operated by it in Salt Lake County, Utah,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On July 20, 1937, the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section
3, of National Labor Relations Board Rules and Regulations-Series
1, as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On August 20, 1937, the Union filed an amended petition alleging
that the question affecting commerce theretofore alleged to have
arisen concerned the representation of employees of Utah Copper
and/or Kennecott. Thereafter, on May 25, 1938, the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
said Rules and Regulations, amended its order of July 20, 1937, to
include Kennecott as a party to the investigation. This 'order was
made nunc pro tunc,as of August 20, 1937; the date of the filing of
the Union's amended petition.
On August 20, 1937, the Board, acting pursuant to Article II,
Section 10 (c) (2), and Article IT, Section 37 (b), of said Rules and
Regulations, issued an order consolidating the complaint and repre-
sentation cases for the purposes of hearing.
2 See section I, infra.
930 NATIONAL LABOR RELATIONS BOARD
On August 14, 1937, the Regional Director issued a notice of
hearing, and on August 20, 1937, an amended notice of hearing,
copies of which were duly served upon the parties and upon the
Employees' General Committee, Department of Mills, herein called
the, Committee.
Pursuant to notice, a hearing on the consolidated cases was held in
Salt Lake City, Utah, from August 30 through September 4, 1937,
before P. H. McNally, the Trial Examiner duly designated by the
Board. The Board and the respondents appeared by counsel and
participated in the hearing. Officials of both the Union and the
Committee were present and'testified, but neither of these organiza-
tions otherwise participated in the hearing. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the com-
mencement of the hearing, the Trial Examiner denied motions pre-
viously filed by each of the respondents to dismiss the two cases on
various grounds.3 His rulings are- hereby affirmed. During the
course of the hearing, the Trial Examiner made other rulings on
motions and on objections to the admission of evidence. Pursuant
to leave granted by the Trial Examiner at the conclusion of the
hearing, an amended complaint to conform to proof, and the re-
'spondents' joint answer thereto, were subsequently filed by the
Board and the respondents respectively.
On February 7, 1938, the Trial Examiner filed his Intermediate
Report upon the complaint case, finding that the respondents had
engaged in and were engaging in unfair,labor practices affecting
commerce within the meaning of Section 8 (1) and (2) and Section
2 (6) and (7) of the Act. Thereafter, exceptions to the Inter-
mediate Report and to various rulings of the Trial Examiner were
filed by the respondents.
On May 6, 1938, the Board advised the Union, the Committee,
and counsel for the respondents that the several parties were granted
the right to apply for oral argument or permission to file briefs
within ten (10) days from the receipt of the notification. There-
after a brief was filed by the respondents, which the Board has fully
considered. No word was received from either the Union or the
Committee in response to the notification.
The rulings of the Trial Examiner on motions and on objections
to the admission of evidence have been reviewed and the Board
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Board has considered the exceptions to the
3 See section I, infra.
DECISIONS AND ORDERS 931
Intermediate Report and finds them without merit, save as consistent
with the findings, conclusions, and order hereinafter set forth.
Upon the entire record in both cases, the Board makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Kennecott, a New York corporation, with its principal office in
New York City, is engaged witli its subsidiaries in the copper mining
industry in the United States, Alaska, and Chile; in the copper
fabricating industry in the United States ; and in incidental trans-
portation operations. With its subsidiaries it ranks as the second
largest copper mining enterprise in'the world and the largest in the..
United States.4
Among the properties owned by Kennecott are a large open-pit
copper mine, together with bleaching and precipitating plants and
other properties, located in Bingham Canyon, Salt Lake County,
Utah, and two mills, known as the Arthur and Magna mills, also
located in Salt Lake County, approximately 17 miles from the mine.
At the two mills, with which the present proceedings are concerned,
over 99 per cent of the ores from the mine are reduced to copper
concentrates preparatory to smelting and refining. Substantial
quantities of molybdenite concentrates, all of which are shipped and
used outside the State of Utah, are also produced at the mills as a
byproduct.
Operation and maintenance of the Arthur and Magna mills, and
the mine and other properties in Bingham Canyon, have been dele,-
gated by Kennecott to its wholly owned and wholly controlled sub-
sidiary, Utah Copper, a Delaware corporation with its principal
4 The annual report of Kennecott to the Securities and Exchange Commission for the
fiscal year ended December 31, 1936 , lists the following subsidiaiies , with peicentages of
voting control • Kennecott Sales Corporation , 100 per cent ; Copper Houses , Inc, 100 per
cent; Chase Brass & Copper Company, Inc, 100 per cent ; The Upson Water Company, 100
per cent, American Brass & Copper Company, 100 per cent ; The Waterville Corpora-
tion , 100 per cent ; The A. J. Patton Company, 100 per cent ; The Great Brook Manu-
facturing Co , 66 %3 per cent ; The Superior Wire Cloth Company, 662/3 per cent ; Hallen-
beck-Hungerford Realty Company, 50 per cent; Alaska Development & Mineial Company,
100 per cent ; Dikdik Exploration Company , Ltd , 58.83 per cent ; Ray & Gila Valley Rail-
i oad Company, 100 per cent ; Nevada Northern Railway Company, 100 per cent ; Copper
River & Northwestern Railway Co., 100 per cent ; Ketchikan Wharf Company, 100 per
cent ; Alaska Steamship Company, 100 per cent ; Givson Stores Company, 100 per cent ;
Gallup American Coal Company , 662/3 per cent , Santa Rita Stores Company, 100 per
cent ; Ray Electric & Telephone Co, 100 per cent ; Kennecott Wire & Cable Company,
100 per cent ; Garfield Chemical & Manufacturing Company, 50 per cent ; Garfield Water
Company, 662/3 per cent ; Garfield Improvement Company, 70 per cent ; Bingham & Garfield
Railway Company, 100 per cent ; Utah Copper Company, 100 per cent ; Nevada Consoli-
dated Copper Corp, 100 per cent; Braden Copper Company , 100 per cent ; Mines Prod-
ucts Corporation , 100 per cent ; and three foreign subsidiaries , 100 per cent.
932 NATIONAL LABOR RELATIONS BOARD
place of business in Salt Lake City, Utah. Utah Copper owns no
assets of any kind, and serves no function other than acting as Ken-
necott's agent in operating and maintaining the described properties,
which it does without profit to itself. All expenses of Utah Copper,
including wages and salaries of the approximately 1,900 employees
at the Bingham Canyon mine and the 1,400 to 1,800 employees at
the Arthur and Magna mills, are paid with funds advanced by
Kennecott.
In its motion to dismiss the representation proceeding herein,
Kennecott contended that no question affecting commerce has arisen
concerning the representation of employees of Kennecott. Both
respondents contended, in their joint answers filed in the complaint
proceeding, that Kennecott is not engaged in mining and milling
operations at its Bingham Canyon mine and its Arthur and Magna
mills, on the ground that these operations are conducted by Utah
Copper. We find no merit in these contentions, in so far as they are
directed to the proposition that Kennecott is not an employer within
the meaning of Section 2 (2) of the Act.5
All copper concentrates produced at the mills, and the small
amounts of copper precipitates produced at the mine, are delivered
by Utah Copper to a smelter at Garfield, Utah, 3 or 4 miles from the
mills, which is operated by American Smelting and Refining Com-
pany. These concentrates and precipitates lose their separate identi-
ties during the ensuing smelting operation, through commingling
with concentrates and precipitates from other sources.
Blister copper, the resultant of the smelting operation, is shipped
from the smelter in the name of Kennecott, in an amount equivalent
to the metal content of all concentrates and precipitates delivered to
the smelter by Utah Copper, to three refineries operated by the
American Smelting and Refining Company in the States of Mary-
land, New Jersey, and Washington. There are no copper refineries
in the State of Utah. At the refineries the copper and precious
metals of which the blister copper is composed are separated, purified,
and prepared for the consumer. During this refining process the
identity of the blister copper shipped from the Garfield smelter in
the name of Kennecott is lost through commingling with blister
copper from other sources.
6 See Matter of Art Crayon Company , Inc., and its affiliated, company , American Artists
Color Works, Inc and United Artists Supply Workers, 7 N L R B 102 : Matter of
Christian A. Lund, doing business as C. A. Lund Company and Northland Ski, Manufactur-
ing Company, a corporation and Woodenu,are Workers Union , Local 20181, Matter of
C. A Lund Company and Northland Ski Manufacturing Company and Woodenwoare Work-
ers Union, Local 20%81, 6 N L R B . 423; and Matter of Todd Shipyards Corporation,
Robins Dry Dock and Repair Co , and Ti,etjen and Lang Dry Dock Co . and Industrial
Union of Marine and Shipbuilding Workers of America, 5 N. L. R B 20
DECISIONS AND ORDERS 933
Kennecott retains title to the ores from the Bingham Canyon mine,
to the concentrates and precipitates of the ores , to the blister copper
produced from the concentrates and precipitates , and to the copper,
gold, silver , and other metals refined from the blister copper, at all
times during their mining , concentrating or precipitating , smelting,
and refining, and during their transportation between these opera-
tions. The refined products owned by Kennecott , equivalent in kind
and quantity to the metal content of the concentrates and precipitates
delivered to the Garfield smelter from the Arthur and Magna mills
and the Bingham Canyon mine, are sold by Kennecott through its
wholly owned subsidiary , Kennecott Sales Corporation.
During the year 1936 , approximately 389,000 tons of copper con-
centrates produced at the Arthur and Magna mills were delivered
to the Garfield smelter. In the same period, there were produced
at the three above -described refineries 105,000 tons of refined copper,
110.000 ounces of refined gold, and 883 ,000 ounces of refined silver
attributable to production from the Bingham Canyon mine. Cor-
responding figures for the first 6 months of 1937 are : 293 ,000 tons
of concentrates, '100,000 tons of refined copper, 93 ,000 ounces of
refined gold , and 797,000 ounces of refined silver . In the first 6
months of 1937, production of molybdenite concentrates at the
Arthur and Magna mills amounted to about 2,800 tons, of which
about 1,500 tons were sold and shipped out of the State of Utah.
In 1936, purchases of general supplies used in the operation and
maintenance of the Arthur and Magna mills and the Bingham
Canyon properties totaled $2,993,313.83, of which $1,185,528.87, or
40 per cent , came from sources outside the State of Utah . Usually,
however, there are purchased outside the State of Utah about 50
per cent of the materials and supplies so used.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers, Local
No. 392, is a labor organization affiliated with the Committee for
Industrial Organization . At the time of the hearing , Local No.
392 had not adopted rules determining eligibility to membership.
It appears from the record , however, that organizing activities of
Local No. 392 have been confined to employees at the respondents'
Arthur and Magna mills.
Employees' General Committee , Department of Mills, is a labor
organization composed of employee representatives selected by em-
ployees in the operation , repairs, shops , foundry, general and con-
struction , and office departments of the Arthur and Magna mills.
934 NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The background of the unfair labor practices
In 1933 or 1934, following the enactment of the National Indus-
trial Recovery Act, a local of the Union, then affiliated with the
American Federation of Labor, was established among employees
at the Arthur and Magna mills, with several hundred members.
The local was disbanded after 6 or 8 months because differences of
opinion among the men prevented the adoption of any definite
course of action, and internal dissatisfaction arose.
Organization work among mill employees was renewed by the
Union in the spring of 1937. The initial Union meeting at the
time of the renewal of activity was held on May 10, 1937, in the
nearby town of Magna, Utah, and had an estimated attendance, of
between 200 and 250. At this meeting several dozen men signified
their desire to become Union members by signing assignments of
their wages for the purpose of check-off of Union clues, pursuant
to a Utah statute. According to Eldred M. Royle, a Utah State
Senator, who became secretary of District No. 2 of the Union a on
April 6, 1937, the Union enrolled 100 to 150 employees at the Ar-
thur and Magna mills each week during the first 6 weeks following
the May 10 meeting. In the latter part of May, however, a sub-
stantial number of withdrawals was received.
Upon being advised that the withdrawals were due to open hos-
tility to the Union on the part of a department foreman at the mills,
Royle sent a letter dated June 2, 1937, to William M. Knerr, chair-
man of the Industrial Commission of the State of Utah, setting
forth the information which he had received. Knerr forwarded a
copy of this letter to D. D. Moffat, vice president and general man-
ager of Utah Copper, who on June 8 replied that he had thoroughly
investigated the charges made, had discovered no justification for
them, and that, "as always the men will form their own conclusions
upon issues confronting them and we will assume no responsibility
for differences of opinion among them nor for the expression given
such difference." Copies of this letter were circulated among the
men by the Union in the form of handbills, and during the ensuing
month the number of withdrawals from the Union was relatively
small.
On June 27, an article purporting to "clarify" the Act was pub-
lished in the Sunday issue of a Salt Lake City newspaper, under
e District No 2 of the International Union of Aline, Mill, and Smelter workers has.
intermediate jurisdiction over locals established in the State of Utah.
DECISIONS AND ORDERS 935
the name of an associate professor of economics at the University of
Utah. Taking the form of a catechism, the article read in part :
Q. May the workers carry on organization activities during
working hours?
A. No. Not any work aside from regular duties unless per-
mitted to do so by employer.
Q. Do outsiders have the right to carry on organization activi-
ties in any place of business?
A. No, not without the consent of the employer.
Q. May they not come into the plant at the lunch period for
labor organization purposes?
A. No, not then or at any other time, except by permission of
the employer.
Q. May the employer refuse to grant such a privilege to out-
siders ?
A. Yes.
At the request of the Committee, the respondents secured reprints
of this article and distributed them among the employees. - There-
after, the men were advised by supervisory officials that outside
organizers would not be permitted on company property and that
employees with union sympathies must not attempt to do any organ-
izing during working- hours. Non-employees who disregarded this
admonition were summarily ejected by agents of the respondents,
and employees were warned to stop.
On an afternoon in the latter part of July, handbills violently
attacking the Union were placed in practically all the employees'
cars parked in a parking lot on company property, but there is no,
evidence to indicate who was responsible for this action.
. On July 1, 1937, Royle telephoned Moffat and asked recognitioni
of the Union as exclusive bargaining agency for the mill employees.
Moffat denied Royle's claim that the Union had a majority, and
refused the request for recognition. A letter sent by the Union to
Moffat on the same day, repeating the request, was never answered.
After the telephone conversation, the Union filed with the Board its
original petition for investigation and certification of representa-
tives in these proceedings. A field examiner for the Board arrived
in Salt Lake City on July 8 and conferred with Moffat in an at-
tempt to arrange an election upon the consent of the parties. Moffat,
would not agree to an election.
A report of Moffat's action appeared in the newspapers, and in
the following week a substantial number of the respondents' em-
ployees withdrew from the Union. Royle testified, however, that
'See section III-C, infra. if"
106791-38-vol. VII-60
'936 NATIONAL LABOR RELATIONS BOARD
between July 15, 1937, and the date of the hearing there were few
withdrawals.
B. Interference, restraint and coercion
Company official's admitted at the hearing that they were hostile
to the Union, but insisted that this hostility had had no effect upon
their relationship with employees of the respondents. Moffat testi-
fied that he would not be willing to post on the company bulletin
boards a statement that Utah Copper had no objection to its em-
ployees joining the Union, because the Union advocates a closed
shop. Roy Hatch, superintendent of the Arthur mill, referring to
the management's attitude toward the Union, said, "They are against
it,-dead against it." He added, however, "When we go out there
we have got to be absolutely impartial as between man and man,
and let the union stay on the outside of it." Joseph Hadley, em-
ployment director, expressed similar sentiments. The evidence intro-
duced indicates, however, that on occasion the respondents' antago-
nism to the Union was translated into action and brought home to
the employees.
Garfield Lewis, a common laborer, was given work in the yard
gang at the Arthur mill on March 30, 1937, at $4.30 per day. He
had worked at the mills on several previous occasions, and had also
been in the employ of the Bingham & Garfield Railway Company."
In the weeks following March 30, Lewis occasionally helped out
as an extra on the rigger gang, being paid $5.40 per day for this
work. Lewis joined the Union at the meeting on May 10. About
this time union literature began to appear on the company bulletin
boards. On May 20, Lewis was transferred to the dike gang, some
distance from the mill, and his pay was reduced to $4.20 per day.
Another member of the Union, John Lloyd, was also transferred to
the dike. Dike workers are the lowest paid in the company's em-
ploy, and the jobs are considered particularly undesirable because
the men are out of touch with activities at the mill, where oppor-
tunities for advancement may present themselves.
At the time of the transfer, Lewis' foreman told him that the
yard gang was going to be cut in half in a short time, and that Lewis
8 The Bingham & Garfield Railway Company, a wholly owned subsidiary of Kennecott,
operates a railroad cunning from Bingham Canyon, Utah, past the Aithur and Magna
mills, to Garfield, Utah. Utah Copper employees, under the direct control and supervi-
sion of Bingham & Garfield Railway Company officials , transport all ores from the Bing-
ham Canyon mine to the Arthur and Magna mills over this railroad, under trackage
rights granted to Kennecott by the railway company , and assist in maintaining the tracks
and roadbed of the railroad. The general manager of the Bingham & Garfield Railway
Company is in charge of the employment of enginemen and trainmen for Utah Copper's
transportation operations
i^
DECISIONS AND ORDERS 937
was being sent down to the dike so that he could keep his job. When
Lewis approached Hadley, the -employment director, Hadley gave
him the same explanation. In the course of the conversation Hadley
asked Lewis, "Did you ever post any newspaper clippings, or hand-
bills or any other bulletins on the plant bulletin boards?" Lewis re-
plied in the negative." Lewis testified that Hadley also remarked
that he "didn't see why the men wanted a union around there."
Hadley did not deny making this statement.
Both Hadley and Roy Hatch admitted that Lewis and Lloyd were
suspected of having been the ones who posted the union literature,
and for that reason were transferred to the dike, "where there
wouldn't be any bulletin boards to bother them." The respondents
sought to justify the transfers on the ground that there is a strict
company rule against posting material of any description on the bul-
letin boards without permission. The penalty for infraction of the
rule was stated to be immediate discharge. On cross-examination,
Hadley said that this rule had never been publicized, and that he
did not know how the men were expected to know about it. The
evidence clearly establishes that the management's concern over the
bulletin board incident arose from the fact that it was union litera-
ture which was involved, and that the transfers were made for the
purpose of punishing the men for their suspected union activity.
Two weeks after his talk with Hadley,,Lewis was still working on
the dike. He thereupon instituted a strenuous union 'organizing
-campaign among the dike workers, and, with the help of one or two
others, soon had all but a few employees signed up. News of this
development was not long in reaching the management. Frank
Haymond, general manager of the Bingham & Garfield Railway
Company, who, with Harvey Garrity, his assistant, maintains gen-
eral supervision over the work on the dike,10 approached Lewis the
day after he learned of Lewis' activities, and "jumped all over him,"
asking him if he had not had enough "trouble" with him when Lewis
was working for the railroad. When Lewis explained that his union
activity was prompted by a feeling that he was being unjustly dis-
criminated against, Haymond told him to speak to Hatch. Then,
speaking "as a father," Haymond told Lewis he did not think that the
men should get into the C. I. O. because of "certain things he figured
the C. I. O. meant."
Haymond denied discussing the C. I. O. with Lewis at this time,
and explained that he had approached him because he had heard
charges that Lewis and a young dike worker named Paul Blackwell
9 Lewis testified that his brother, who closely resembles him, bad placed the material
on the bulletin boards.
"The roadbed of the railroad runs along the top of the dike.
938 NATIONAL LABOR RELATIONS BOARD
had been threatening the men with violence if they did not join the
Union, and that he wanted to caution them against the use of such
tactics., No testimony was introduced to prove any threats of
violence, and Lewis expressly denied that he had made such threats.
- On July 11, Hadley called Lewis in and transferred him to the
utility gang at $4.30 per day, doing cement work on a new construc-
tion project at the mill. With regard to the conversation which took
place at that time, Hadley testified in part :
I said, "I know you have been soliciting membership in the
union since you have been out on the dyke. I understood, too, you
did it on the plant. Whether you did it on the plant, or not, I
know you did it on the dyke, because some of the boys you signed
up told me you did, and some you tried to sign up told me."
He said, "Well, what about it?"
I said, "It is all right with me. Sign them all up. Sign up
the foreman for this union, if you can."
After Lewis' transfer to the mill, Raymond spoke to him again,
and, according to Lewis' testimony, asked him if he was "still up to
his old tricks." When Lewis replied that he was still a union man,
Haymond said, "Well, I don't care whether you belong to the union.
But why don't you get in a good union, such as the Boiler Makers'
Union-something like that?" To Lewis' answer that he "thought
the C. I. O. was all right," Haymond responded that "they" [the
C. I. 0.] were "causing a lot of trouble back east." Haymond testi-
fied that Lewis volunteered the information that he was still in the
Union, and that his only response was, "That is fine and dandy, boy;
that is all right with me."
About the time that Lewis left the dike, the other dike workers be-
came uncertain as to the wisdom of their previous decision to join
the Union. Transfers from the dike were less frequent than they
had been before Lewis' organizing campaign, and the men felt
that the few transfers that were being made were usually of men
who were not wearing Union buttons. Jobs at the mill were being
filled with new men from the outside, rather than from the dike gang.
After discussing the matter among themselves, a number of the dike
workers determined to withdraw from the Union. A delegation of
two men, Perkins and another, was sent to Hadley to ask him what
steps they should take to accomplish their purpose.
When the men walked into Hadley's office, the latter said to
Perkins, "How is C. I. O.?' Perkins replied that that was what they
had come to see him about, and explained that the men wanted to
resign from the Union. Hadley told them that he had no objections.
When Perkins expressed ignorance of the proper procedure, Hadley
DECISIONS AND ORDERS 939
suggested that "the thing to do was to get a petition up and resign
through that petition."
The next night the men returned with a signed petition which
they gave to Hadley. Hadley looked at it, pointed out that it read
"wish to resign," rather than "hereby resign," and suggested that it
would look more presentable if typewritten. At Perkins' request,
Hadley proceeded to typewrite a new petition in duplicate, and
handed it to Perkins together with an envelope addressed to the
Union secretary. The old petition was left with Hadley. Hadley
testified that he threw it in the wastebasket without noticing the
names on it. On the following day the petition was signed by 32 men.
It cannot be doubted that the knowledge among the respondents'
employees that a company official had assisted in the preparation of
a petition for withdrawal from the Union had the effect of restrain-
ing them from joining the Union and impelling them to withdraw if
they had already joined.
Within a few days after the incident of the petition, numerous
transfers were made from the dike to the mills. Hatch testified that
the transfers were made on the basis of seniority "and any other
reason we can think of." He contended that the great number of
transfers from the dike immediately after the withdrawals from the
Union was due to an increase in the need for common laborers at the
mills. In the early part of July, work was started at the Arthur mill
on construction of a large tank for use in the milling operations.
Preparatory work was completed by the middle of July, and a great
many laborers were then needed for the cement work. After July 23,
Hatch said, "all the labor that was satisfactory" was transferred from,
the dike.
Hatch did not deny, however, that prior to July 23 outsiders had
been given work at the mill in preference to dike workers. He
would give no direct answer to a question by counsel for the respond-
ents as td whether he had allowed discrimination on account of labor
affiliation, saying that "if he were to do so" he would be "disregard-
ing orders," and that he has "tried to be absolutely fair." Hadley,
who appears to have been in direct charge of the transfers, testified
that there had been no discrimination on account of union affiliation.
The statements of both of these men must be considered in the light
of their treatment of Lewis and Lloyd.
Legrand Alonzo Dykman, a high-school teacher, secured work in
the dike gang on June 9, 1937, shortly after the close of the spring
school term. On the same day he joined the Union. Two or three
weeks later, while working, Dykman saw and spoke to Garrity, Hay-
mond's assistant, with whom he had attended college. Dykman asked
940 NATIONAL LABOR RELATIONS BOARD
Garrity to help him get a better job. Garrity told him that he would.
see what he could do for him, and then added, according to Dyk-
man, "If you want to get ahead with the company, you will be better-
off if you are not affiliated with the C. I. 0." In his testimony
Dykman stated that Garrity's remark was made in the capacity of a
friend, and not that of a company official. Garrity, however, denied
that he and Dykman were friends or that he had ever made the
statement attributed to him.
Dykman later signed the withdrawal petition prepared by Hadley,
"because," he testified, "I knew my time was short out there, and I
wanted a better job, with more money in it, as anybody naturally
does." He was transferred to the utility gang within a week. While
he was working there, on about July 20, Garrity and Raymond
approached, and Garrity introduced the other two men to each other.
According to Dykman, Haymond turned the conversation to union-
ism, and in the course of his remarks said, "Do you realize if this
company was ever unionized that Mr. Jackling would close this
place down? Mr. Jackling would never stand for it a minute."
Jackling is president of Utah Copper. Both Raymond and Garrity
denied that this statement was made, or that the subject of unions
was even discussed.
Dykman testified that he joined the Union originally for the sole-
reason that he hoped, through the collective bargaining contemplated
by the Union, to increase his earnings. He withdrew because he be-
lieved his continued union membership would impair his chances for
promotion. At the time of the hearing, Dykman was still employed
by the respondents at the mills, and had not rejoined the Union.
It is difficult to believe that he should have jeopardized his relation-
ship with the respondents by willfully falsifying his testimony re-
garding his conversations with Haymond and Garrity.
Examination of the record makes it clear that the hostility of the
respondents toward Union organization was impressed upon their
employees by acts and statements of their agents and by actual dis-
crimination against members of the Union in regard to the terms
and conditions of their employment. We, therefore, find that the
respondents have interferred with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act.
C. Domination of and interference with the Committee
In September 1919, the predecessor of the respondents in the
ownership and operation of the Arthur and Magna mills and the
DECISIONS AND ORDERS 941
Bingham Canyon properties," invited its employees at the Arthur
mill to participate in a secret ballot under company supervision for
the purpose of choosing a committee of employee representatives to,
consult with the management on subjects of mutual interest, and at
the same time extended a similar invitation to employees at the Bing-
ham Canyon mine. The Magna mill was not then in operation.
Committees were formed as the result of the elections, and proceeded
to function, being reconstituted from time to time as further elections,
were held.
On July 28, 1922, written "rules governing the method of represen-
tation of employees to the management" were promulgated by the
company over the signature of Roy Hatch, then, as now,' superin-
tendent of the Arthur mill. The rules were revised on January 2,
1924, to provide representation for Magna employees ; the revision,,
issued in the name of the company, was approved by Hatch, by E. B.
Engelmann, superintendent of the Magna mill, and by the chairman
and the secretary of the Committee. A second revision of the rules,
which has been effective since May 23, 1934, was signed by Hatch,
by A. C. Ensign, assistant superintendent of the Magna mill, and by
the chairman and the secretary of the Committee.
The rules have been substantially adhered to in practice. The
revisions effected little change in the nature or method of operation
of the Committee. In all fundamental respects it functions today in
the same manner as when originally formed by the management in
1919.
Committee members, numbering about 22 at the time of the hear-
ing, are chosen by vote of employees in the various departments of
the mills in semiannual secret elections conducted by the management.
All nonsupervisory employees are entitled to vote, by virtue of their
employment. No formal nominations are provided for, and no cam-
paign promises are made. Ballots are counted at each mill by two
representatives of the management and two employees. Only work-
ers who have been continuously employed by the respondents for 6
months are eligib]e for election. No official of the respondents, fore-
man, boss, or any person having the right to employ, remove, or
discharge an employee may vote or be a candidate for election.
"From about the year 1904 until November 1936, the Arthur and Magna mills and the
Bingham Canyon properties were owned and operated by a New Jersey corporation, also,
named Utah Copper Company At all times after the year 1926, Kennecott owned more
than 95 per cent of the outstanding capital stock of this corporation In November 1936,
when Kennecott acquired actual title to the propel ties and turned operations over to the
Utah Copper Company of Delaware, the respondent herein, Kennecott owned over 99 per
cent of the New Jersey corporations outstanding capital stock Utah Copper, in its
management and operation of the properties including the formulation of labor policies,
has retained and continued the same operating personnel and organization as conducted
operations during the period of ownership by the New Jersey corporation.
942 NATIONAL LABOR RELATIONS BOARD
At the first regular meeting of the Committee following an elec-
tion, a chairman is chosen by the Committee. The chairman ap-
points a secretary, usually not an employee representative, subject to
ratification by the Committee. Regular meetings, of 3 to 4 hours'
duration, are held on the respondents' premises twice each month,
in rooms provided by the respondents. The respondents' officials are
present at the second regular meeting each month, at which time re-
quests and suggestions previously determined upon by the Com-
mittee are presented and discussed. The secretary prepares minutes
,of every meeting of the Committee, which are subsequently typed
and duplicated with the respondents' stationery and equipment.
Copies of all minutes are delivered to the management and posted
on the respondents' bulletin boards, and are also sent to the Em-
ployees' General Committee, Department of Mines, at the respond-
ents' Bingham Canyon mine.
All expenses of the Committee are borne by the respondents; there
are no dues. Committee members are not docked for the hours spent
at Committee meetings, and are paid $2.00 each by the respondents
for attending a meeting while off shift. The secretary receives a
small monthly salary from the respondents. At occasional intervals
subcommittees appointed by the Committee go to Salt Lake City for
the purpose of conferring with the respondents' superintendent of
welfare and securing information concerning living costs and other
economic data. The respondents allow these men time off with pay,
and take care of their transportation and meals. In their answers
the respondents allege that the total of expenditures by the manage-
ment in connection with the holding of committee meetings at the
mine and the mills over the period of 18 years commencing Septem-
ber 1919, and "for and on account of the operation activities, and
function of each said general committees, including the payment of
$2.00 per meeting to each man then off shift, but ignoring the failure
to deduct from the wages of men on shift sums to cover the time oc-
cupied by them in said meetings," is the sum of $24,347.26.
The 1934 rules revision contains statements that the Committee
was organized "to provide a satisfactory method for settlement of
any misunderstandings that may arise" and "to supply a channel
thru which requests, complaints or suggestions may be presented
to the management for consideration," and that "it is believed that
the arrangements outlined will provide a satisfactory method for
the settlement of misunderstandings as they arise, and all complain-
ants are urged and expected to present their cases through proper
-channels in order that an early settlement may be reached." The
rules specify that if an employee is unable to secure satisfactory
adjustment of a complaint with the help of the Committee repre-
DECISIONS AND ORDERS 943
sentatives from his department , "the question shall be submitted at
a meeting of the general committee with representatives of the man-
agement at which time causes for complaint will be recited." No,
method of arbitration is provided. Nowhere in the record is there
any suggestion that the Committee has been granted power or author-
ity to determine the final disposition of a grievance either as a sep-
arate body or in conjunction with the management . Its function
is purely advisory.
No general meetings of the mill employees of the respondents are
provided for either by the rules governing the Committee or in
actual practice . Consequently the employees 'are not afforded an
opportunity to present a collective expression of opinion on matters
affecting their wages , hours, or other conditions of employment.
Committee members are expected to determine the desires of their
constituents through individual conversations with them. Frank
Beers, a Committee member, testified on cross-examination that gen-
eral meetings of the workers are not permitted . Other evidence
clearly establishes that such meetings have never been contemplated
or held in connection with the functioning of the Committee.
As might have been expected , and as , indeed, was inevitable from
the composition of the Committee , "collective bargaining," as the
respondents term it, between the Committee and the management
has been of an attenuated nature. There have never been any nego-
tiations attempted by the Committee looking toward a collective
agreement dealing with wages, hours , or other conditions of em-
ployment. Frequent requests for wage increases have been made
by the Committee , but the individual eloquence of its members has
alone been relied upon to secure them. In the words of William
Dameron, a Committee representative , the only recourse in the event
of refusal by a company official is to "go back , get a few more argu-
ments made up on it, and hit him again."
The evidence clearly establishes that the respondents have con-
tributed and are contributing financial and other support to the
Committee . We have seen that previous to the passage of the Act
revisions of the rules by virtue of which the Committee exists have
been effected only with the consent of the management . That this
domination of the Committee by the management has continued
since that time is revealed by the fact that as recently as March 26,
1937, a request by the Committee for a change in the rules was
denied by Moffat. An instance of direct interference by the re-
spondents with the Committee 's administration, and of domination
of its activities , is afforded by an occurrence at a joint meeting of
the Committee and the management on June 25 , 1937, when Moffat
refused to grant to the Committee the requested "privilege" of send-
'.944 NATIONAL LABOR RELATIONS BOARD
ing a representative to meetings of the employees' committee at the
Bingham Canyon mine, saying that it was "inadvisable to make this
concession."
At the hearing, several of the Committee members experienced
difficulty in answering the question whether they considered the
Committee to be a labor organization. Their confusion is under-
standable. The "organization" here was accomplished not by "labor"
but by the management itself, which conceived, controls, and
fosters it.
We find that the respondents have dominated and interfered with
the administration of the Committee, and have contributed to it
.financial and other support; and have thereby interfered with, re-
strained, and coerced their employees in the exercise of the rights
guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above,
'occurring in connection with the operations of the respondents de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
We have found that since the inception of the Committee in 1919
the management of the Arthur and Magna mills has completely
dominated and controlled its administration, and that this domina-
tion and control has been continued by the respondents since Novem-
ber 1936. Under these circumstances, the continued existence of the
Committee as an ostensible collective bargaining agency is destructive
of the employees' freedom in the exercise of their rights guaranteed
by Section 7 of the Act. In order to effectuate the policies of the
Act, we will order the disestablishment of the Committee as the rep-
resentative of any of the respondents' employees for the purposes of
dealing with the respondents in respect to grievances, wages, hours,
and 'other conditions of employment.
In conjunction with its employee-representation plan, the manage-
ment has from time to time used other methods in conducting its
personnel activities. For example, first-aid and safety-first courses
have been offered; savings in coal purchases by the employees have
been made possible; recreation associations have been encouraged,
and assisted; an employees' benefit association and a death-benefit
plan have been 'established, to which the respondents have contrib-
DECISIONS AND ORDERS 945
uted. Our order disestablishing the Committee as a collective bar-
gaining representative is not intended to interfere with any such
activities, provided that they are continued without discrimination
against or in favor of any labor organization.
We have found, also, that the respondents have interfered with
union organization by acts and statements hostile to the Union and
by discrimination against Union members. In our order we shall
provide for the cessation of these practices.
VI. THE QUESTION CONCERNING REPRESENTATION
In Section III-A above we have found that on July 1, 1937,
Moffat, vice president and general manager of Utah Copper, refused
a request for recognition of the Union as the representative of em-
ployees at the Arthur and Magna mills, on the ground that the
Union did not represent a majority. The Union claimed that a
majority of such employees desired to be represented by the Union
for the purposes of collective bargaining. We, therefore, find that
a question has arisen concerning representation of employees of the
respondents at their Arthur and Magna mills.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondents
described in Section I above, has a close, intimate, and substantial
`relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
In its amended petition the Union alleges that all production
workers in the employ of the respondents at their Arthur and Magna
mills, exclusive of clerical employees and executives of the rank
of foreman and above, constitute a unit appropriate for the purposes
of collective bargaining. The respondents contend that the unit
should include employees working at the Bingham Canyon mine and
in the transportation of ores from the mine to the mills, as well as
mill employees.
The arguments of the respondents in favor of the more compre-
hensive unit are that the mine, transportation department, and mills
are all operated by a single company, and that, since the functions
performed in the three divisions are interrelated, a labor dispute at
any one of them would affect employees at the others.
946 NATIONAL LABOR RELATIONS BOARD
On the other hand, the employee=representation plans now in
existence have functioned separately at the mine and the mills ; the-
two localities are 17 miles apart; Utah Copper governs the wages,
hours, and working conditions of the trainmen, enginemen, and
yardmen in its employ in accordance with an agreement between the
Bingham & Garfield Railway Company and the latter's employees;
the type of work performed in the three divisions differs materially;
and actual organization by the Union has been effected separately
at the mine and the mills. Evidence introduced at the hearing indi-
cated that units similar to the one here requested by the Union have
been used as a basis for 'collective bargaining at other copper mills,
in the district in which the Arthur and Magna mills are located.
We find that the production workers employed by the respondents
at their Arthur and Magna mills , excluding clerical employees and
employees of the rank of foreman and above , constitute a unit appro-
priate for the purposes of collective bargaining and that said unit
will insure to employees the full benefit of their right of self-organ-
ization and to collective bargaining and otherwise effectuate the
policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
From the testimony of Royle, secretary of District No. 2 of the
Union, it appears that approximately 750 employees at the Arthur
and Magna mills have assigned their wages to the Union for the
purpose of check-off of Union dues. Of these assignments, about
160 have been revoked, and an additional 40 returned for re-signing.
Royle further testified that 200 other employees have orally expressed
the desire to be represented by the Union.
The Union has requested the holding of an election. We find that
by this method the question concerning representation can best be
resolved. We shall provide for an electioh, to be conducted upon
our further order after we are satisfied that the effects of the re-
spondents' unfair labor practices have been dissipated by compli-
ance with the order respecting those practices which we shall make
at this time. Since the election date is uncertain , we shall not deter-
mine at this time what pay-roll period will govern eligibility to.
participate in the election.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in both cases, the Board makes the following conclu-
sions of law :
1. Utah Copper Company and Kennecott Copper Corporation are
employers within the meaning of Section 2 (2) of the Act.
DECISIONS AND ORDERS 947
2. International Union of Mine, Mill, and Smelter Workers, Local
No. 392, affiliated with the Committee for, Industrial Organization,
and Employees' General Committee, Department of Mills, are labor
organizations within the meaning of Section 2 (5) of the Act.
3. By their domination and interference with the administration
of Employees' General Committee, Department of Mills, and by
contributing financial and other support thereto, the respondents
have engaged in and are engaging in unfair labor practices, within
the meaning of Section 8 (2) of the National Labor Relations Act.
4. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed by Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. A question affecting commerce has arisen concerning the rep-
resentation of employees of the respondents at their Arthur and
Magna mills, Salt Lake County, Utah, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
7. The production workers employed by the respondents at their
Arthur and Magna mills, Salt Lake County, Utah, excluding cleri-
cal employees and employees of the rank of foreman and above, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
ORDER
Upon the basis of the 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 respondents
Utah Copper Company and Kennecott Copper Corporation, and
their officers, agents, successors, and assigns, shall :
1. Cease and desist :
(a) From in any manner dominating or interfering with the
administration of Employees' General Committee, Department of
Mills, or any other labor organization of their employees, and from
contributing financial or other support to Employees' General Com-
mittee, Department of Mills, or any other labor organization of their
employees ;
(b) From recognizing Employees' General Committee, Depart-
ment of Mills, as the representative of any of-their employees for the
purpose of dealing with the respondents concerning grievances, labor
948 NATIONAL LABOR RELATIONS BOARD
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment;
(c) From in any other manner interfering with, restraining, or
coercing their employees in the exercise of their, rights to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing and other mutual aid or protection, as guaranteed in Section 7 of
the National Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Employees' General Com-
mittee, Department of Mills, as a representative of any of their
employees for the purpose of dealing with the respondents con-
cerning grievances, labor disputes, rates of pay, wages, hours of em-
ployment, or other conditions of employment, and completely dis-
establish Employees' General Committee, Department of Mills, as
such representative;
(b) Immediately post notices to their employees in conspicuous
places throughout their Arthur and Magna mills, and maintain
such notices for a period of at least thirty (30) consecutive days
from the date of posting, stating (1) that the respondents will
cease and desist as aforesaid; (2) that the respondents withdraw and
will refrain from all recognition of Employees' General Committee,
Department of Mills, as a representative of any of their employees
for the purpose of dealing with the respondents concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment; and (3) that the respondents completely
disestablish it as such representative;
(c) Notify the Regional Director for the Twenty-second Region
in writing within ten (10) days from the date of this order what
steps the respondents have taken to comply herewith.
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, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series
1, as amended, it is hereby
DIRECTED that, as part of the investigation directed by the Board
to ascertain representatives for the purposes of collective bargaining
with Utah Copper Company and Kennecott Copper Corporation,
an election by secret ballot shall be conducted at such time as the
DECISIONS AND ORDERS 949°
Board shall hereafter direct, under the direction and supervision
of the Regional Director for the Twenty-second Region (Denver,
Colorado), 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 all production workers employed by Utah
Copper Company and Kennecott Copper Corporation at their
Arthur and Magna mills, Salt Lake County, Utah, within a period,
to be determined by the Board in the future, excluding clerical em-
ployees and employees of the rank of foreman and above, to deter-
mine whether or not they desire to be represented by International
Union of Mine, Mill, and Smelter Workers, Local No. 392, affiliated
with the Committee for Industrial Organization, for the purpose of
collective bargaining.