Kennecott Copper Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1952

99 N.L.R.B. 748 (N.L.R.B. 1952)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of employment concerning the three plants are
determined in the Winston-Salem office. The three plants have the
same job classifications, hiring rates, wage schedules, working hours,
pension plans, holidays, vacations, grievances procedure, personnel
policies, and plant rules.
The Winston-Salem and Burlington plants began operations in
1946. Following Board-conducted elections in an agreed single unit
of the production and maintenance employees of both these plants,
the Intervenor or its predecessor was certified on March 28, 1947,5
and on December 12, 1949,6 as bargaining representative, and con-
tracts were executed covering the employees of the Winston-Salem
and Burlington plants on a multiplant basis. On December 5, 1951,
the Greensboro plant, which was established in November 1950, was
included in the contract covering the Winston-Salem and Burling-
ton plants'
In view of the foregoing history of collective bargaining on a multi-
plant basis and the functional and administrative integration of the
radio shops at Winston-Salem, Burlington, and Greensboro, North
Carolina, we believe that a unit limited to the employees of the 3 Bur-
lington plant, as requested by the Petitioner, is not appropriate.'
We shall therefore dismiss the instant petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
'Cases Nos . 5-R-2607 and 5-R-2737 . The certified union was the Southern Radio
Equipment Workers, predecessor of the Intervenor.
8 Case No. 34-RC-164. The Petitioner was a party to the consent election agreements
in this case and the cases mentioned in footnote 5, above.
7 This contract was not pleaded as a bar to this proceeding.
8 See e. g. Lever Brothers Company, 97 NLRB 1240, and International Paper
Company, Tonawanda Mill, 97 NLRB 764, and cases cited therein.
KENNECOTT COPPER CORPORATION and INTERNATIONAL UNION OF MINE,
MILL & SMELTER WORKERS, AND ITS LOCAL 890, PETITIONER. Case
No. 33-RC-386. June 16, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Alan Bruce, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
Upon the entire record in this case, the Board finds :
99 NLRB No. 110.
KENNECOTT COPPER. CORPORATION 749
1. The Employer is a New York corporation with its principal
office in New York City. The Employer is engaged in operations con-
sisting of an open pit copper mine at Santa Rita, New Mexico, and a
mill, smelter, and refinery at Hurley, New Mexico, which operations
are known as its Chino Mines division. In connection with the above
operations, the Employer maintains a hospital at Santa Rita and a
branch dispensary at Hurley., This proceeding involves only the
employees employed in the Employer's hospital operation. Copper
processed by the Chino Mines division during the past year valued in
excess-of one million dollars was shipped to points outside the State
of New Mexico. While the Employer concedes that it is engaged in
interstate commerce with respect to its mining activities, it denies that
the Board has jurisdiction over its hospital operation. In the event
that the Board should find that it has jurisdiction over the hospital,
the Employer requests the Board, in the exercise of its discretion, not
to assert its jurisdiction in this proceeding.
The record shows that the hospital is owned and operated solely
by the Employer. It was testified by representatives of the Em-
ployer that a primary reason for the existence of the hospital is to
provide security to the Employer against on-the-job injuries and
that the hospital would not be maintained by the Employer were
it not for its mining operations in the area. Thus, employees with
on-the-job injuries are accorded preferential treatment at the hospital.
The use of the hospital facilities by production employees is clearly
tied to their status and earnings as employees of the Employer. An
unmarried employee has $1.50 and a married employee $2 deducted
from his monthly salary which entitles the employee and the members
of his family to treatment of all ordinary ills and injuries without
additional charge. For obstetrics and surgery, a charge at one-half
the prevailing rate in the area is made. The hospital payroll de-
duction is made whether or not an employee chooses to avail himself
of the Employer's hospital facilities.2 Admission of patients not
connected with the Employer is discretionary and all are required
to pay for treatment. It was testified, however, that for 5 percent
or loss- of the total number of patients treated, little or nothing in
payment is received. The record shows that during the past 4 years,
an average of about 86 percent of the patients treated have been
employees or members of their families while the remainder was
outside patients.
The hospital has no separate legal identity. The Employer pays
all hospital expenses including salaries out of the same funds availa-
ble to it to pay its other obligations. The hospital revenues have not
in the past equaled its expenses and it was testified that under cur-
' Hereinafter , the term hospital will be used to refer to both the hospital and dispensary.
2 The record discloses that there are two public hospitals and one Government hospital
within 15 miles of Santa Rita , which the employees sometimes use
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rent policy, a profit in the operation of the hospital was impossible.
In computing its income tax, all losses or expenses incurred in op-
erating the hospital are offset by the Employer against any profits
resulting from its mining operations.
The Employer directs the over-all policy of the hospital, including
its labor relations policy. Although grievances raised by patients
are rare, on those occasions when such grievances are raised, they
are referred to the Employer for adjustment. The Employer's gen-
eral manager approves all purchases and additions of new equipment
including the expansion or curtailment of services. However, as far
as professional decisions and the details of running the hospital are
concerned, these are left to the chief surgeon who is also chief ad-
ministrative officer of the hospital. The chief surgeon testified that
he looks to the Employer's general manager as his immediate super-
visor.
Although there is little or no interchange of employees between the
hospital and the mining operations, the Employer uses its regular
maintenance employees for the maintenance of the hospital buildings
and equipment. Deliveries of supplies and materials to the hospital
are normally made by trucks and drivers attached to the Employer's
mining operations. Hospital ambulances are serviced and maintained
by the Employer's regular truck department. The ambulance drivers
are also attached to the mining operations. No special pay arrange-
ments are made when regular mining employees do work connected
with .the hospital, but they are paid on their regular time tickets
through their regular departments.
At the end of the hearing, the Employer made a motion, further
supported in its brief, to dismiss the petition on the grounds that,
(1) with respect to its hospital operation, it is exempted from the
jurisdiction of the Board under Section 2 (2) of the Act,3 and (2)
the operation of the hospital is not involved in interstate commerce
nor does such operation affect interstate commerce. The Petitioner
contends, in essence, that the hospital is an integral part of the
Employer's operations at its Chino Mines divsion, and thus comes
within the jurisdiction of the Board.
We find no merit to the Employer's first contention because the
Board has held that a hospital is exempted by Section 2 (2) of the
Act only if the corporation operating the hospital is, itself, operated
on a nonprofit basis.4
Sec. 2 ( 2) reads: "The term 'employer ' . . . shall not include . . any corporation
or association operating a hospital , if no part of the net earnings inures to the benefit of
any private shareholder or individual. . . .
4 General Electric Company, Sadler Hospital, 89 NLRB 1247 (Chairman Herzog dis-
senting). In that case , the employer also operated a hospital at an annual loss in
connection with its other activities which were in interstate commerce . After full con-
sideration , the majority of the Board held- that the employer was not exempted as to its
hospital operation under Section 2 (2) of the Act.
KENNECOctT ' COPPER CORPORATION 751
We reject the Employer's second contention and, in accord with
the Petitioner, find, on 'the basis of the foregoing facts, that the
hospital is clearly an integral part of the Employer's operations at
its Chino Mines division; and thus, in the operation of such hos-
pital, the Employer is engaged in interstate commerce within the
meaning of the Act.' Accordingly, the Employer's motion to dismiss
on the ground that the Board has no jurisdiction is hereby denied.6
A record motion was also made by the Employer requesting that
the Board, in the exercise of its discretion, not assert its jurisdiction
in this proceeding. The main arguments advanced by the Employer
at the hearing and in its brief in support of this motion relate to
matters already considered by the Board in its disposition of the
question of jurisdiction. As the hospital herein is intimately con-
nected with the Employer's mining operations, concededly in inter-
estate commerce,' and therefore, a labor dispute at the hospital could
materially affect such mining operations, we find that it will effectuate
the policies of the Act for the Board to assert its jurisdiction in this
cases Accordingly, the Employer's second motion is hereby denied.
2. The labor organization involved claims to represent employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
.(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of all hospital employees, excluding
doctors and registered nurses. The Employer agrees to the unit thus
defined, except that it would exclude the laboratory technician and the
X-ray technician as professional employees and the chief cook as a
supervisor.
The laboratory technician performs all the laboratory work of the
hospital such as urinalyses and blood tests. Although this employee
has no college degree, he has had a formal training in chemistry and
related subjects, which background is a necessary qualification for
the position in question. In addition, the laboratory technician has
had over 6 years on-the-job experience under the direct supervision of
the chief surgeon. Laboratory tests are performed only at the request
5 General Electric Company, Kadlec Hospital, supra, and cases cited therein ; Phillips
Petroleum Company, 97 NLRB 6T ; The Youngstown Mines Corporation, 72 NLRB 348.
Under these cases , it is well estab1 i hed that activities , which may be otherwise purely
local in character , affect interstate commerce where such activity is an integral part of
an employer 's operation which is in interstate commerce.
6 Chairman Herzog would dismiss this petition on the ground that the Santa Rita hos-
pital comes within the exemption granted certain hospitals by Section 2 (2) of the amended
Act. However , because the views expressed in his dissenting opinion in the General
Electric case, supra, were rejected by a majority of the full Board, he deems himself bound
by and follows the Board's decision in that case ' without further expression of dissent.
7 The Employer 's total annual out-of-State shipments much more than satisfy the mini-
mum jurisdictional requirements set by the Board for asserting its jurisdiction . Stanislaus
Implement-and Hardware Company, Limited, 91 NLRB' 618.
8 See footnote 5, supra.
752 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
of one of the doctors. -While, with the average tests, the laboratory
technician needs no assistance, one of the doctors is normally avail-
able for advice and counsel. The results of a test are submitted to the
doctor for his consideration. A doctor may discuss a particular slide
with the laboratory technician and seek his opinion with respect to it.
The X-ray technician has worked at her job for over 2 years and
prior to that time was a hospital aide who occasionally assisted in the
X-ray room. She has had no formal training except for a 10-day
course from a qualified radiologist. The X-ray technician, unlike the
other employees, works under the direct supervision of the doctors who
specify the exact pictures desired. She has no responsibility for read-
ing the X-ray pictures, nor is her opinion sought in any respect.
Without passing upon the question of whether the laboratory tech-
nician and X-ray technician are professional employees within the
meaning of the Act, upon the basis of the record we find that they are
clearly technical employees with working conditions different from
those of the other employees in the unit; accordingly, we shall exclude
them s
With respect to the chief cook, it was testified without contradiction
that she is responsible for the preparation and serving of meals, the,
maintenance of the kitchen, and the supervision of the kitchen help.
The record shows that the chief cook is, in turn, subject to the over-
all direction and supervision of the head nurse. Under the chief cook
are found an assistant chief cook and six helpers. It was testified that
if the chief cook should become dissatisfied with the work done by an
employee, the former would probably consult with the head nurse be-
fore discharging that person. Under all the circumstances including
the number of employees attached to the kitchen, we are satisfied that
the chief cook exercises responsible direction over the employees under
her.10 Accordingly, we find that the chief cook is a supervisor within
the meaning of the Act; we shall therefore exclude her from the unit.
We find that all employees at the Employer's Santa Rita, New
Mexico, hospital and Hurley, New Mexico, dispensary," including
nurses' aides, kitchen employees, laundry workers, janitors, and jani-
tresses, but excluding the tic oratory technician and X-ray technician,
all doctors, registered nurses, the chief cook, and all other supervisors
as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
[Text of Direction of Election omitted from publication in this
volume.]
9 See Standard Cott Company, 98 NLRB 1296 ; Lyntex Corporation,, 98 NLRB 1012;
Swift & Company, 98 NLRB 746.
10 See Nicholson Transit Company , 85 NLRB 955, and cases cited therein.
31 At the hearing , the Petitioner with the consent of the Employer , amended its petition
so as to specifically include the employees ' at the Hurley dispensary which is a branch of
the Santa Rita Hospital.