The Canyon Corp., 885 (1941)

Docket Number:00-C-01825
 
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In the Matter of THE CANYON CORPORATION and BLACK HILLS MINE & Mn,L WORKERS UNION, No. 22417, (A. F. OF L.) Case No. C-1826.-Decided July 30,1941

Jurisdiction : gold mining industry.

Sale and shipment of entire product of gold bullion across state line to U. S. Government mint, under licensing arrangement which limits sale to Government alone, constitutes commerce.

Unfair Labor Practices Interference, Restraint, and Coercion: surveillance ; disparagement of union ;

efforts to persuade employees that they should not have joined and should not remain members of the union ; instigation of formation of a non-union committee to compete with union ; threat of shut-down if union activity continued ;

threats of discharge for union activity.

Publicizing of wager against union's winning Board election in order to discourage employees from voting in favor of the union constitutes a violation of Section 8 (1) of the Act.

Discrimination: discharge of two employees because of their union membership and activity ; charges of negligence and insubordination without merit as justification for discharge.

Remedial Orders: reinstatement and back pay awarded.

Practice and Procedure Acts of interference, restraint, and coercion which occurred prior to a settlement agreement to which Board agent was a party, considered by Board and found to be in violation of the Act, where such acts continued after and in violation of agreement.

Mr. Lee Loevinger, for the Board.

Hayes d Rentto, by Mr. Robert C. Hayes and Mr. Alex Rentto, of Deadwood, S. Dak. ; and Goldwater & Flynn, by Mr. Monroe Goldwater, of New York City, for the respondent.

Mr. Paul M. Peterson, of Salt Lake City, Utah, for the Union.,

Miss Mary E. Perkins, of counsel to the Board.

DECISION

AND

ORDER

STATEMENT OF THE CASE

Upon charges and amended charges 1 duly filed by Black Hills Mine & Mill Workers Union, No. 22417, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations 1 The original charge was filed on July 17, 1940, and amended charges were filed om October 7 and November 23, 1940.

33 N. L. R. B., No. 163.

1 885

Board, herein called the Board, by the, Regional Director for the Eighteenth Region (Minneapolis, Minnesota) issued its complaint dated November 23, 1940, against The Canyon Corporation, Deadwood, South Dakota, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations 'Act, 49 Stat.

449, herein called the Act. Copies of the complaint, accompanied by notices of hearing, were duly served upon the respondent and upon the Union.

With respect to the unfair labor practices, the complaint alleged in substance: (1) that the respondent discharged Clarence Payne on or about September 17, 1940, and discharged Ernest Pierce on or about November 2, 1940, because they joined and assisted the Union, and has at all time since said dates failed and refused to employ them for the same reason; (2) that the respondent advised, urged, threatened, and warned its employees to refrain from becoming or remaining members of the Union, and from assisting the Union or any other labor organization; and (3) that the respondent, by these and other acts, has interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act.

On or about December 4, 1940, the respondent filed its answer denying the unfair labor practices and denying that it is engaged in interstate commerce within the meaning of the Act, and affirmatively alleging that it discharged Clarence Payne solely because of carelessness, inefficiency, and negligence; and that it discharged Ernest Pierce solely because of insubordination, evasion, and refusal to perform duties regularly assigned to him. On the same date, the respondent filed a motion to make more specific the paragraphs of the complaint which alleged that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) of the-Act.

Pursuant to notice, a hearing on the complaint was held at Deadwood, South Dakota, from December 9 to 14, 1940, before Peter F.

Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by a union official. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and crossexamine witnesses, and to introduce evidence bearing on the issues.

At the hearing the Trial Examiner denied the respondent's motion to make the complaint more specific, reserving to the respondent, however, the privilege of making a motion for adjournment upon a showing that it had been surprised by any material evidence. No such motion was thereafter made by the respondent. At the conclusion of the Board's case, and again at the close of the hearing, the respondent moved to dismiss the complaint on the grounds (1) that the Board was without jurisdiction over the matters involved; (2) that there had been a settlement of certain of the unfair labor practices alleged in the complaint; and (3) that the evidence was insufficient to support the allegations of the complaint with respect to the unfair labor practices.

The Trial Examiner reserved decision on the respondent's motion in so far as it rested on the ground that the Board was without jurisdiction, and denied it on the remaining grounds. The motion to dismiss for lack of jurisdiction was denied by the Trial Examiner in his Intermediate Report. At the conclusion of the hearing, counsel for the Board moved to amend the pleadings to conform to the proof, and the motion was granted without objection. During the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed.

The rulings are'hereby affirmed.

On February 12, 1941, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent and the Union, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended that the respondent cease and desist from the unfair labor practices found, reinstate Payne and Pierce with back pay, and take certain other action to remedy the situation brought about by its unfair labor practices.

On March 17,1941, the respondent filed its exceptions, and on April 12, 1941, its amended exceptions, to the Intermediate Report; and on April 12, 1941, a brief in support of its exceptions. On May 15, 1941, pursuant to notice duly served on the respondent and the Union, a hearing for the purpose of oral argument was held before the Board in Washington, D. C. The respondent was represented by counsel and partici_ pated in the hearing. - The Board has considered the respondent's exceptions to the Intermediate Report and the brief in support of its exceptions and, to the extent that the exceptions are inconsistent with the findings of fact, conclusions of law, and the order set forth below, finds them to be without merit.

Upon the entire record in the case, the Board makes the following:

FINDINGS OF FACT

  1. TIIE BUSINESS OF TIIE RESPONDENT 2

    The Canyon Corporation is a Delaware corporation having its principal office and place of business at Maitland (near Deadwood), South 2 Facts concerning the business of the respondent were stipulated by the parties.

    Dakota, and is engaged in mining, refining, and selling gold bullion.

    It has no parent or subsidiary corporation and it is not affiliated with any other corporation. In the operation of its mine and mill near Deadwood, South Dakota, the respondent uses electric power, natural gas, cyanide, dynamite, steel, machine-shop supplies, lime, and miscellaneous materials. The electric power is generated in Deadwood,

    South Dakota. The natural gas comes from the State of Montana by a pipe line, passes through a metering station in Deadwood, South Dakota, and is then transmitted through pipes to the respondent's mine. The dynamite, cyanide, and steel come largely from outside the State of South Dakota. The materials which are shipped to the company from outside the State of South Dakota are shipped to Deadwood, South Dakota, by railroad and then transported to the respondent's mine, near Deadwood, by trucks owned and operated by independent contractors hired by the respondent.

    The gold bullion refined and sold by the respondent contains 90 per cent gold, about 7 per cent silver and about 3 per cent lead, copper, zinc, and other impurities. During the period from November 1, 1939, to October 30, 1940, the respondent sold $419,943.25 worth of such bullion, all of which was shipped by the respondent by railway express from Deadwood, South Dakota, to the United States Government mint at Denver, Colorado, and there sold to the United States.

    The respondent challenges the Board's jurisdiction, contending that it is not and was not at the time of the alleged unfair labor practices engaged in a business substantially affecting commerce, since its business is that of mining and refining gold bullion, which must be sold and shipped to the United States Government, and consequently is not an article of trade and commerce; and that the supplies and material shipped to it from outside the State are purchased by the respondent at its plant and are used and consumed by it there, and consequently, while the shippers of such supplies may be, the respondent is not, engaged in interstate commerce.

    In support of its contention that the sale and shipment of gold is _ not a commercial transaction, but an administrative act of the United States...

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