Nevada Consol. Copper Corp. v. National Labor R. Board

• Citation: 122 F.2d 587
• Decision Date: 27 August 1941
• Docket Number: No. 2196.,2196.
• Parties: NEVADA CONSOL. COPPER CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

122 F.2d 587 (1941)

NEVADA CONSOL. COPPER CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 2196.

Circuit Court of Appeals, Tenth Circuit.

August 27, 1941.

C. C. Parsons, of Salt Lake City, Utah (J. F. Woodbury, of Silver City, N. M., and H. M. Fennemore, of Phœnix, Ariz., on the brief), for petitioner.

Morris P. Glushien, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Laurence

A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, and Hilda D. Shea, all of Washington, D. C., on the brief), for respondent.

Before PHILLIPS and BRATTON, Circuit Judges, and KENNAMER, District Judge.

PHILLIPS, Circuit Judge.

This is a petition to review an order of the National Labor Relations Board.¹

For approximately 15 years prior to 1924, the Chino Copper Company,² a corporation, owned and operated an open pit copper mine at Santa Rita and a reduction works at Hurley, in Grant County, New Mexico. In 1924, the physical assets of Chino were acquired by the Ray Consolidated Copper Company.³ It continued to operate the property until 1926. In the latter year, Nevada Consolidated Copper Company⁴ acquired the physical assets of Ray, including the Chino mine and the Ray mine in Arizona. In 1933, the physical assets of Nevada were acquired by the Kennecott Copper Corporation.⁵ In 1933, Kennecott caused the incorporation of the Nevada Consolidated Copper Corporation⁶ to serve as an operating company. Petitioner has operated the Chino properties since 1933.

In 1924, W. S. Boyd became general manager of the Chino and Ray properties. In 1926, he became managing director of Nevada and had operating charge of the Chino, Ray, and Nevada properties. In 1930, he became vice-president of Nevada and continued in operating charge of the three properties. In 1933, he became vice-president of the petitioner and had operating charge of the three properties from that time to and including December 7, 1939, the date of the last hearing herein.⁷

R. B. Tempest became assistant to the general manager of the Chino properties in 1923. He became acting general manager in 1933 and on January 1, 1934, was appointed general manager and continued in that capacity until the date of his death, May 7, 1938.

Harry A. Thorne was in the continuous employ of petitioner and its predecessors from 1909 to December 7, 1939. From 1920 to December 7, 1939, he was superintendent of the Chino mine.

In July, 1933, after the enactment of the National Industrial Recovery Act, 48 Stat. 195, an employees' representative plan was organized at Santa Rita and Hurley. It was sponsored by the petitioner. Certain of the employees at Santa Rita organized the Chino Mine Workers Union No. 63. A charter was granted to Local 63 on March 24, 1934. Certain of the employees at Hurley organized the Hurley Mill Workers Union No. 69. A charter was granted to Local 69 on September 27, 1934. The locals were affiliated with the International Union of Mine, Mill and Smelter Workers. Prior to September 15, 1934, Tempest refused a demand of Local 63 for recognition as exclusive bargaining agent at Santa Rita and Hurley. Tempest stated he would recognize Local 63 as the representative of the group, but not as the agent for the whole body of employees. Thereupon, Local 63 petitioned the old Board, created under Public Resolution No. 44 (73d Cong., 2d Sess.) to administer the provisions of § 7(a) of the National Industrial Recovery Act, 48 Stat. 198, for an election to determine the exclusive bargaining representative. The election was held September 15, 1934, and the vote at Hurley was 87 for and 129 against Local 63 and the vote at Santa Rita was 215 for and 92 against Local 63. The petitioner fully cooperated with the Regional Labor Board in the holding of the election. The Regional Labor Board certified Local 63 as the exclusive bargaining agent of the employees at Santa Rita and refused to certify it at Hurley.

On September 24, 1934, the petitioner ceased operations and closed down the property. It posted notices to that effect on October 9, 1934. It was then contemplated that the shut down would last from 5 to 10 years. For several years prior to September, 1934, the price of copper had been very low and the work period at Santa Rita and Hurley had been reduced by petitioner to about 13 days per month. Operations at Ray were closed down in 1932. From 1931 to September, 1934, petitioner lost two and a half million dollars through its operations at Santa Rita and Hurley. In the late summer of 1934, the copper market became further depressed and sales became negligible. The directors of Kennecott ordered a 20 per cent reduction at the Chino mine. It was impossible to operate the property on such a reduced basis and the mine was closed down.

On October 12, 1934, Local 63 charged petitioner with having shut down the mine at Santa Rita in violation of § 7(a) of the National Industrial Recovery Act and the Code of Fair Competition for the Copper Industry. The charge was referred to the Mountain States Regional Labor Board. A hearing was had on February 13 and 14, 1935. The Regional Labor Board found that the petitioner, due to the low price of copper, had been operating at a loss for more than 12 months; that for many months the petitioner had been gradually reducing the work period and the number of employees; that the condition of the copper market was a major factor in arriving at the decision to close the mine; and that the proximate cause of the shut down was a purely economic one. It further found "that there was no interference, restraint or coercion exercised by respondents toward complainants or any member of their organization, nor was any attempt made by respondents to prevent the organization or other activities of complainants, and it appears further that any opinion expressed by the bosses or foremen or any of them to any of the members of complainants' union had no influence in the election. * * *"

During 1934, there existed no labor dispute or controversy of any character between petitioner and its employees.

In the fall of 1936, due to an improvement in general business conditions and a substantial increase in the demand for copper, Kennecott gave instructions to petitioner to renew operations January 1, 1937. A few men were employed in the fall of 1936. On January 1, 1937, operations were started in a small way and were gradually increased to about half capacity in February, 1937. The operations continued at half capacity for the balance of 1937. Toward the end of 1937, the demand slackened again and orders were issued petitioner to reduce production. Commencing early in 1938, the operations were reduced until they were back to a minimum rate of production and petitioner was again losing money.

At the time of the shut down, Local 63 had a membership of 331, and there were 315 day pay employees at Santa Rita, 139 of whom were not members of Local 63 and 176 of whom were members of Local 63.

In February, 1937, one month after resumption of operations, there were employed at Santa Rita 376 day pay employees, of whom 269, or 71 per cent, were not employed in September, 1934, and 107, or 29 per cent, were employed in September, 1934. Of the 107 employed in September, 1934, 32, or 30 per cent, were members of Local 63, and 75, or 70 per cent, were not members of Local 63. In addition, 15 employed in February, 1937, who were not on the September, 1934 payroll, were members of Local 63.

On April 1, 1938, there were employed at Santa Rita, 528 day pay employees, of whom 425, or 80 per cent, were not employed in September, 1934, and 102, or 20 per cent, were employed in September, 1934. Of the 102 employed in September, 1934, 37, or 36 per cent, were members of Local 63, and 65, or 64 per cent, were not members of Local 63. In addition, 13 employed in April, 1938, who were not on the September, 1934 payroll, were members of Local 63.

In December, 1939, there were employed at Santa Rita, 736 day pay employees, of whom 606, or 82 per cent, were not employed in September, 1934, and 130, or 18 per cent, were employed in September, 1934. Of the 130 employed in September, 1934, 57, or 44 per cent, were members of Local 63, and 73, or 56 per cent, were not members of Local 63. In addition, 29 employed in December, 1939, who were not on the September, 1934 payroll, were members of Local 63.

At the time of the shut down, there were 185 day pay employees at Hurley, of whom 59 were members of Local 69 and 126 were not members of Local 69. In February, 1937, there were employed at Hurley, 376 day pay employees, of whom 302, or 80 per cent, were not employed in September, 1934, and 74, or 20 per cent, were employed in September, 1934. Of the 74 employed in September, 1934, 18, or 24 per cent, were members of Local 69, and 56, or 76 per cent, were not members of Local 69. In addition, 12 employed in February, 1937, who were not on the September, 1934 payroll, were members of Local 69.

In April, 1938, there were 503 day pay employees at Hurley, of whom 435, or 86 per cent, were not employed in September, 1934, and 68, or 14 per cent, were employed in September, 1934. Of the 68 employed in September, 1934, 25, or 37 per cent, were members of Local 69, and 43, or 63 per cent, were not members of Local 69. In addition, 12 employed in April, 1938, who were not on the September, 1934 payroll, were members of Local 69.

In December, 1939, there were employed at Hurley 746 day pay employees, of whom 656, or 88 per cent, were not employed in September, 1934, and 90, or 12 per cent, were employed in September, 1934. Of the 90 employed in September, 1934, 39, or 43 per cent, were members of Local 69, and 51, or 57 per cent, were not members of Local 69. In addition, 12 employed in December, 1939, who were not on the September, 1934 payroll, were members of Local 69.

Upon an amended charge filed by the International Union of Mine, Mill and Smelter Workers, the Board, on ...