Helca Mining Co.

National Labor Relations Board - Board Decisions

Apr 22, 1980

248 N.L.R.B. 1341 (N.L.R.B. 1980)

HELCA MINING COMPANY 1341
Helca Mining Company and United Steelworkers of
America, Local Union No. 5114, AFL-CIO-
CLC. Case 19-CA-11414
April 22, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 14, 1980, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hecla Mining
Company, Mullan, Idaho, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge: This
case was heard before me in Spokane, Washington, on
October 9, 1979. It arose as follows: United Steel Work-
ers of America, Local Union No. 5114, AFL-CIO-CLC
(Union), filed unfair labor practice charges on May 24,
1979, against Helca Mining Company (Respondent). Fol-
lowing an investigation by the Regional Director for
Region 19 of the National Labor Relations Board
(Board), the Regional Director issued a complaint
against Respondent in July 5, 1979. The complaint al-
leged, in substance, that Respondent is engaged in a con-
tinuing violation of Section 8(a)(5) and (1) of the Nation-
al Labor Relations Act (Act), as amended, by failing and
refusing to furnish the Union with a list of names and ad-
dresses of employees in the bargaining unit represented
by the Union.
THE ISSUES
Respondent admits that the Union is the representative
of an appropriate unit of its production and maintenance
248 NLRB No. 182
employees and admits that it has refused to furnish the
mailing list sought by the Union. Respondent denies
wrongdoing and affirmatively defends on grounds that
the current labor agreement imposes no such obligation
on it; or, alternatively, if it does, that this matter should
be deferred to arbitration. In addition, Respondent main-
tains that the charge herein is barred by the 6-month
limitations rule in Section 10(b) of the Act; that over an
approximately 20-year bargaining relationship, the Union
has never before sought, nor been furnished, such a mail-
ing list, thereby waiving the right to such a list; and that
furnishing such a list would violate employees' rights and
privacy and would violate "applicable laws."
After careful consideration of the parties' timely post-
hearing briefs, the record as a whole, and upon my eval-
uation of the witnesses' demeanor and other factors bear-
ing on credibility, I make the following:
FINDINGS OF FACT
1. GENERAL BACKGROUND
Respondent, incorporated in the State of Washington,
with principal offices in Wallace, Idaho,' operates the fa-
cility involved herein, the Lucky Friday Mine, located 7
miles from Wallace, at Mullan, Idaho.
The Lucky Friday Mine produces lead-silver ore
which is extracted underground and then crushed and
processed into "concentrate" at the mill operation adja-
cent to the mine. That product is sold to refineries which
turn the concentrate into lead or silver ingots and also
extract zinc and copper byproducts. The mine is located
within the approximately 800 square mile area known as
the Coeur d' Alene mining district, itself located in the
Idaho "panhandle" region.
The mine is entered through a horizontal tunnel ex-
tending 200-300 feet. A vertical shaft descending 4,000
feet contains three elevators used for moving miners and
equipment to various levels located every 200 feet. At
each level there are one or more horizontal shafts lead-
ing to the "stopes" or areas where blasting and extrac-
tion from ore-bearing veins takes place.
The Union has been the bargaining representative for
the production and maintenance employees at the Lucky
Friday Mine for at least 20 years, pursuant to successive
labor agreements. The current contract covering that
unit is effective from March 25, 1978, through March 21,
1981.
Approximately 250 employees are in the unit covered
by that contract. About 200 of them work underground,
performing mining, maintenance, and repair in about six
of the "levels" currently producing ore. The balance of
the work is in the above-ground mill operations. There
are three daily work shifts, with the day and afternoon
shifts performing production work and the graveyard
shift normally performing maintenance and repair work.
Unit employees reside mostly in or near the Silver
Valley, an area roughly 20 miles in length surrounded by
I Respondent annually sells and ships goods and services valued in
excess of $50.000 from its Idaho facilities to customers outside Idaho, or
sells and ships goods or provides services of that value to customers
within Idaho which are themselves engaged in interstate commerce by
other than indirect means.
HELCA MINING COMPANY
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hills and mountains and containing at least 10 small
towns or communities. According to current employer
records, as the parties stipulated, there are unit employ-
ees who have residence in or near at least nine of those
Silver Valley towns. In addition, there are at least 10
communities outside the Silver Valley in which unit em-
ployees reside including Spokane, Washington, and three
small towns in Montana, near the border of the Idaho
panhandle. The parties further stipulated that at least half
of the unit employees have star route, or rural route, or
post office box mailing addresses.
According to the Union's president, Mark Grubham,
there are currently only about 150 unit employees who
are members of the Union. 2 Grubham further testified 3
that regular meetings of the Union are sparsely attended,
with typical meetings frequently attended by fewer than
10 members.4
There are only three stewards, including the Union's
president, Grubham. At best, there is only one steward
per shift, and, sometimes, due to scheduling, there is no
steward on a particular shift. Stewards, like other unit
employees, work either alone or in small groups of one
to three persons in the various stopes located on the var-
ious working levels underground. Lunch and coffee-
breaks are taken in the working areas underground. The
only times when substantial groups of employees are to-
gether in a common location is before the start and at
the end of each shift, when employees congregate briefly
in the changing rooms (or drys) located aboveground, or
while they are waiting for elevators to take them in or
out of the main access shaft.
Employee turnover in the bargaining unit is substan-
tial. Grubham testified without contradiction that it
ranges from a high of as many as 25 employees per
month to a more typical range of 15-20 employees per
month. According to Grubham, many of the miners in
2 The current contract does not require employees to become members
of the Union to keep their jobs. Art. 4, sec. (b), of the current contract
(G.C. Exh. 2, pp. 4-5) has a maintenance of membership requirement
with escape provisions as follows:
b. All employees who on the effective date of this contract are mem-
bers of the Union in good standing and those employees who may
thereafter become members of the Union, shall as a condition of em-
ployment, maintain their membership in the Union .... [P]rovided,
however, that any employee who is a member of the Union on
March 25, 1978 may cancel his membership by giving notice of
intent to do so to the appropriate representative of management of
the Lucky Friday mine by individual written notice which shall be
postmarked and addressed to the appropriate representative of man-
agement within fifteen (15) days following the expiration of the first
anniversary date of his checkoff authorization card which occurs
after March 25, 1978; such notice of withdrawal shall become effec-
tive with respect to membership in the Union and dues payable for
the month following the month in which such written notice is
given, and a copy of the notice shall be given by the employee to
the financial secretary of the Local Union.
3 The facts are essentially disputed. Implicit in any unqualified refer-
ence herein to the testimony of any individual witness is the finding that
the testimony is true, as in the case of Grubham's testimony noted above.
I This pattern changes during contract negotiations periods when
membership attendance is substantially heavier. Attendance for more rou-
tine meetings has been so poor, however, that the Union has been re-
quired to obtain a waiver from the Steelworkers International body of
the normal quorum requirements set forth in the International constitu-
tion and bylaws.
This implies that annual turnover may involve upwards of 75-95 per-
cent of the typical unit complement of 250 employees.
miners" who work on a somewhat itinerant basis, living
in trailers or motels, and working briefly at one mine
before quitting and moving on to another mine in the
area.
1I. THE ALLEGED UNFAIR LABOR PRACTICES
The current labor agreement, like its predecessors, is
silent on the subject of furnishing unit employees' names
and addresses to the Union. The Union had never sought
to negotiate with Respondent on that subject during the
course of their 20-year relationship. On December 5,
1978, however, Grubham wrote to Respondent's person-
nel and public relations manager, Gus Voltolini, in perti-
nent part as follows:
Dear Sir:
Federal law states that wherever there is a
Union, the Union must represent all employees cov-
ered by the labor agreement, whether they are
Union members or not.
Therefore, in order to form better communica-
tions with all employees we must by law represent,
I am hereby formally requesting a complete mailing
list of all production and maintenance employees of
the Lucky Friday Mine at Mullan, Idaho [G.C.
Exh. 3.]
On December 14, 1978, Voltolini replied to Grubham
in pertinent part as follows:
Dear Mark:
In reply to your recent request of a complete
mailing list of all Lucky Friday employees, please
be advised that Helca Mining Company, for many
years, has had a long-standing policy which pro-
vides that we do not disclose to various solicitors
the number of employees, names and addresses on a
group basis.
We consider the subject a privilege [sic] matter
on the part of the employee and do not feel at liber-
ty to forward the information requested. [G.C. Exh.
4.]
Sometime thereafter, in late April or early May 1979,
Grubham and a staff representative for the Steelworkers
International body, William Thompson, met with Volto-
lini on pending grievance matters. During the course of
the meeting Grubham and Thompson again requested a
mailing list of unit employees. On may 9, 1979, Voltolini
wrote in reply to Thompson in pertinent part as follows:
Dear Mr. Thompson:
I regret to advise you in the negative relative to
your request for the names and addresses of em-
ployees of Helca Mining Company at its Lucky
Friday Mine, Mullan, Idaho.
Our decision on the matter is based upon the fact
that in so refusing we are not in violation of the ex-
isting labor-management agreement, specifically per-
taining to Article I-Purpose and Intent of the Par-
ties, which states that the purpose of the Company
^ - -
HELCA MINING COMPANY 1343
and the Union in entering into this labor Agreement
is set forth relative to rates of pay, hours of work,
and other conditions of employment. Other condi-
tions of employment would not appear to qualify a
mailing list of employees as such.
We believe that other adequate alternatives
should be pursued on your part as a means of com-
munication. As you know, Article XXV of the pre-
sent Labor-Management Agreement provides for
use of the bulletin-board principle.6
In addition, as verbally discussed with you, we
consider the subject a privileged matter on the part
of the employee, and do not feel at liberty to invade
the employee's right to privacy through an authori-
tative mailing list.
As you know, the employees being discussed are
rather small in number, are confined to a rather
small area in the valley 7; therefore, the problem of
communication certainly is not as great as if there
were several times the number scattered over a
widely populated area. [G.C. Exh. 5]
In addition to the need expressed in its original request
for the mailing list (i.e., its statutory duty to represent all
bargaining-unit members whether or not they were mem-
bers of the Union), the Union also cited at the hearing
more specific concerns, mainly relating to the Union's
need to fully acquaint unit employees with their rights
and obligations in the area of mine safety.s
Furnishing of the requested mailing list would place
no burden on Respondent. Respondent's computer data
base contains all names and addresses of unit employees
and a current list of such employees and their addresses
is available (as Voltolini admitted), at the "touch of a
s Art. XXV of the current contract states:
UNION BULLETIN BOARDS
The Company will provide two bulletin boards for the use of the
Union on which to post notices pertaining to Union affairs. Such
boards will be locked, with the Company and the Union each having
a key. All notices appearing on bulletin boards shall be approved and
signed by the President or Financial Secretary of the Local Union
before posting, and if other than routine notices, shall also be ap-
proved by the Company.
In fact, there are two such bulletin boards, but only one is covered and
locked. Grubham stated that notices posted on the unlocked board are
routinely removed by persons unknown shortly after being posted, but
that notices posted on the locked board remain unmolested.
While Voltolini testified that he would have no objection to the
Union's using the bulletin board, for example, to solicit unit employees to
sign their names and addresses thereon, Grubham testified without con-
tradiction that Respondent has, on one occasion, exercised its contractual
right to approve other than routine notices posted on the board On that
occasion, Respondent refused to allow the Union to post a circular con-
taining the widely known definition of a scab penned by author Jack
London and quoted in Old Dominion Branch Vo. 496. National Association
ofLetter Carriers AFL-CIO. et al. v. Austin, 418 U.S. 264, 268 (1974).
? To the extent that this observation conflicts with findings made here-
tofore regarding the dispersion of unit employees' residences, the obser-
vation is rejected as being inconsistent with the hearing record.
s Grubham testified that in the aftermath of the 1972 neighboring Sun-
shine mine fire disaster which killed 91 miners, the United Steelworkers
of America was named as one of the parties defendant in a lawsuit filed
by the miner's survivors. According to Grubham, the lawsuit was a spur
prompting the Union to take greater affirmative action to ensure that it
had full lines of communication with all unit employees, and not simply
with its membership.
button." Indeed, such a list, current as of the day before
the instant hearing, was in Respondent's possession at the
hearing, pursuant to subpena by the General Counsel 9
Ill. ANALYSIS AND CONCLUSIONS
The result herein is controlled by the Board's decisions
in Magma Copper Company, San Manuel Division, 208
NLRB 329 (1974) and Georgetown Associates d/b/a
Georgetown Holiday Inn, 235 NLRB 485 (1978), and cases
cited respectively therein. The Board has held with
Court approval, that ". . . the names and addresses of
unit employees . . . are presumptively relevant to the
Union's role as bargaining agent either during contract
negotiations or during the term of the agreement. Hence
no particularized showing of need [is] necessary."
Georgetown, supra, at 486, and cases cited. This disposes
of Respondent's contention that the Union has failed to
identify any compelling need for the mailing list herein.
Further, the factors relied on by the Board in George-
town, supra, and Magma Copper, supra requiring disclo-
sure by those employers of lists of unit employees' names
and addresses are substantially present here. o
While Respondent correctly points out that use of the
bulletin boards at the mine, coupled with use of public
media such as radio and newspapers, would permit the
Union to have some communication with unit employ-
ees, I do not regard the above-cited Board decisions as
requiring that those alternative channels be nonexistent
before a union's right to unit employees' names and ad-
dresses is triggered. Rather, I read those cases as suggest-
ing that the availability of such alternative channel is a
factor to be weighed against the potential burden to the
employer of compiling and furnishing such a list. Where
the burden to the employer in compiling such data
would be extraordinarily heavy, the availability to a
union of bulletin boards and other public print and elec-
tronic media as alternative channels might well be deci-
sive in defeating the union's demand. Where, as here,
however, Respondent can furnish the list with ease and
efficiency, this factor renders the availability of such al-
ternative channels relatively insignificant to the statutory
merits of the Union's demand.
9 I denied the General Counsel's request that the list be produced in its
entirety at the hearing, but it was used by the parties in preparing the
demographic stipulation cited earlier.
10 Specifically, the large size of the unit, the geographic dispersion of
unit employees' residences, the high rate of turnover, as well as other fac-
tors making it unusually difficult for the Union effectively to communi-
cate with all of the unit employees whom it is duty bound by statute to
represent, including the lack of union secunty, and the relative ineffec-
tiveness of the steward system.
I I There is substantial reason to believe that such "alternatives" are in-
herently inadequate means for effectively communicating with all em-
ployees in the unit, and that only home mailings will be a satisfactory
channel of communication. See, e g, the extensive discussion by the
Second Circuit of this issue in United Aircraft Corporation v .N.L.R.B.,
434 F.2d 1198 at 1205, 1206 (2d Cir. 1970).
Moreover, the very lack of confidentiality inherent in the use of bulle-
tin boards, newspapers, and radio or television announcements as an al-
ternative means to communicate with the employees it must fairly repre-
sent renders such media inadequate for many of the legitimate purposes
which a union will have. It is not difficult to envision many circum-
stances in which it will be important to its effective functioning as the
employees' representative for a union to speak to those employees, or
Continued
HELCA MINING COMPANY
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's other defenses are likewise without
merit. It is suggested that the failure of the Union over
the years to seek contractual language permitting it to
obtain such a list amounts to a waiver of any claim to it.
The Board has regularly held, however, that the right to
information relevant to the fulfillment of a union's statu-
tory duty of representation of unit employees will not be
deemed waived absent clear and unmistakable evidence
that the matter has been consciously explored and aban-
doned. See, e.g., Magma Copper, supra at 329, and cases
cited. Mere contractual silence on the subject never satis-
fies this test. For, the right to such information being a
matter of statutory entitlement' 2 there is ordinarily no
need to obtain an employer's agreement to do that which
he is already compelled by statute to do.
The other affirmative defenses raised by Respondent in
its answer to the complaint are not discussed by it in its
brief and, therefore, they appear to have been aban-
doned. In any case, there is no merit to the claim that
the charge is barred by the 10(b) 6-month limitations
rule. The Union's initial mailing list demand was made
on December 5, 1978, followed by Respondent's initial
refusal on December 14, 1978, and the filing of a charge
on May 24, 1979, less than 6 months from Respondent's
refusal. It is not clear exactly what Respondent relied on
in asserting in its answer that furnishing of a mailing list
would violate employees' "right to privacy"; but see
United Aircraft Corporation, 181 NLRB 892, 903 (1970),
enfd. 434 F.2d 1198 (2d Cir. 1970), in which a similar
contention was considered and rejected. As to the claim
in Respondent's answer that furnishing such a list would
"require" Respondent to "violate applicable laws," all
that may be said in the absence of citations to authority
is that no such laws are known to me.
Accordingly, I find and conclude that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing and re-
fusing, on and after December 14, 1978, to furnish the
Union with a current list of unit employees' names and
addresses and I shall recommend that Respondent be or-
dered to cease and desist therefrom and to remedy that
violation by forthwith furnishing such a list to the Union
and by posting an appropriate notice.
CONCL.USIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act, and is, and has been at all
times material herein, the exclusive collective-bargaining
representative in the appropriate unit set forth below:
All production and maintenance employees em-
ployed by Respondent at its Lucky Friday Mine lo-
groups of them, without the knowledge of others, particularly members
of management. Immediately leaping to mind are such things a investiga-
tory questionnaires relating to pending or potential grievances, union
meeting agenda announcements, and proposed "shopping lists" reflecting
a union's priorities for future bargaining with an employer. In such cases,
unless the union is able to make confidential use of the mails, it may well
refrain from taking communicative steps otherwise necessary to fully and
fairly represent the interests of members and nonmembers alike who
work in the bargaining unit.
1' Globe-Union, Inc., 233 NLRB 1458, 1460 (1977), and cases cited
cated at Mullan, Idaho, excluding professional em-
ployees, guards, and supervisors as defined in the
Act and all other employees.
3. By failing and refusing on and after December 14,
1978, to furnish the Union with a current list of all unit
employees' names and addresses, Respondent has en-
gaged in, and is engaging in, unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER' 3
The Respondent, Helca Mining Company, Mullan,
Idaho, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with the Union by refusing to furnish the Union
with a current list of the names and addresses of all em-
ployees who are part of the collective-bargaining unit set
forth above.
(b) In any like or related manner refusing to bargain
collectively in good faith with the Union, or interfering
with, restraining, and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Forthwith furnish to the Union a list of the names
and addresses of all employees who are currently em-
ployed in the collective-bargaining unit described above.
(b) Post at its Lucky Friday Mine at Mullan, Idaho,
copies of the attached notice marked "Appendix."' 4
Copies of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
"a In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
HELCA MINING COMPANY 1345
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT fail and refuse to furnish the
Union with a current list of the names and addresses
of employees in the unit represented by it.
WE WILL NOT in any like or related manner fail
or refuse to bargain collectively in good faith with
the Union or interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
WE WILL forthwith furnish the Union with a cur-
rent list of names and addresses of all employees of
the Lucky Friday Mine employed in the bargaining
unit represented by the Union.
HELCA MINING COMPANY