Shenandoah-Dives Mining Co.

National Labor Relations Board - Board Decisions

Mar 2, 1939

11 N.L.R.B. 885 (N.L.R.B. 1939)

In the Matter of SHENANDOAH -DIVES MINING COMPANY and INTERNA-
TIONAL UNION OF MINE , MILL & SMELTER WORKERS , LOCAL No. 26
Case No. C-617.-Decided March 2, 1939
Silver and Gold Mining Industry-Alleged Compromise Agreement : between
Regional Director and respondent ; corroboration by a union member included
in terms of alleged agreement ; given effect in order to effectuate the policies
of the Act-Complaint : dismissed.
Mr. Charles A. Graham, for the Board.
Reise McCloskey and Charles Beise, by Mr. Charles Beise, of
Durango, Colo., for the respondent.
Mr. William Strong, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges 1 duly filed by the International Union
of Mine, Mill & Smelter Workers, Local No. 26, herein called the
Union, the National Labor Relations Board, herein called the Board,
by Aaron W. Warner, Regional Director for the Twenty-second
Region (Denver, Colorado), issued its complaint dated February 3,
1938,2 against Shenandoah-Dives Mining Company, 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. In substance, the complaint alleged that the respondent dis-
charged Alfred Giecek from its employ because he had joined and
assisted the Union, and that by such discharge, and by other acts,
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
'Original charges were filed by Alfred Giecek, on March 8, 1937, with the Regional
Director for the Seventeenth Region and named the respondent as "Charles A. Chase,
Gen Mgr., Mayflower Mine " On November 16, 1937, the Board issued an order trans-
ferring the proceeding to the Twenty-second Region. Thereafter the Union filed the
amended charges.
2 A typographical error in the date of the complaint was corrected by amendment at
the hearing.
11 N. L. R. B., No. 67.
164275-39-vol. xi-57 885
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint and accompanying notice of hearing were duly
served upon the respondent and the Union. Thereafter the respond-
ent filed an answer contesting the Board's jurisdiction and denying
the unfair labor practices charged.
Pursuant to the notice of hearing and several postponements, a
hearing was held at Silverton, Colorado, on April 7, 8, and 9, 1938,
before Gustaf B. Erickson, the Trial Examiner duly designated by
the Board. The Board and the respondent were represented by coun-
sel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties. Numerous motions
and objections to the admission of evidence were made and ruled
upon at the hearing. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On April 21, 1938, the respondent filed a brief, which the Board
has considered. On May 7, 1938, the Trial Examiner issued his
Intermediate Report, wherein he found that the Board had jurisdic-
tion of the subject matter of the case, and that the respondent, by dis-
charging and refusing to employ Giecek, had engaged in and was
engaging in unfair labor practices within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended
that the respondent cease and desist from such unfair labor practices
and reinstate Giecek with back pay. The respondent thereafter filed
exceptions to the Intermediate Report, which the Board has con-
sidered. Those of the respondent's exceptions which relate to the
Board's jurisdiction of the subject matter are hereby overruled. By
its exception numbered "29" the respondent contends :
The Trial Examiner erred in his Intermediate Report in this
respect, to wit: That no mention was made of the compromise
offer presented to the respondent by Mr. Warner, Regional Direc-
tor of the N. L. R. B., as the same is testified to on p. 181 et fol.,
wherein it appears that a compromise offer was made by an au-
thorized agent of the National Labor Relations Board and said
offer was unqualifiedly accepted by the respondent by the re-
instatement of one Carl Larson. Wherefore, said report is in
error and in truth and in fact the N. L. R. B. should be estopped
to prosecute this case as will more fully appear from the brief
of the respondent heretofore filed herein.
Our conclusion regarding the foregoing contention 3 renders un-
necessary the disposition of the respondent's remaining exceptions.
'Discussed in Section III, infra.
SHENANDOAH-DIVES MINING COMPANY ET AL. 887
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Shenandoah-Dives Mining Company is a Colorado corporation
engaged at its mine in Silverton, Colorado, in the business of mining,
transporting, and milling metalliferous ore, and selling the contained
gold, silver, copper, and lead as concentrates. During 1936 the re-
spondent milled 180,822 tons of ore, from which 7,332 tons of con-
centrate resulted, of a gross value of $997,597. That year the
respondent purchased materials and supplies costing approximately
$329,000, all of which were completely consumed in producing ore.
Of the materials and supplies purchased, about 40 per cent originated
at points outside of the State of Colorado.
Pursuant to a contract between it and the American Smelting and
Refining Company, the respondent ships all the concentrates pro-
duced by it to smelters of the latter company at Durango, Colorado,
and Leadville, Colorado.4 Title passes at the unloading bins of the
smelters. The concentrates are further processed at Durango and
Leadville, and lead bullion and copper matte, containing gold and
silver, emerge. Thereafter the American Smelting and Refining
Company ships the lead bullion to Omaha, Nebraska, and the copper
matte to Garfield, Utah, for further refining.5
At the time of the hearing the respondent employed about 200
persons.
II. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, Local
No. 26, is a labor organization affiliated with the Committee for
'Industrial Organization, admitting to membership employees of
the respondent.
III. THE AGREEMENT COMPROMISING THE ALLEGED UNFAIR LABOR PRACTICES
A. The, compromise
At the hearing Charles A. Chase, vice president and general man-
ager of the respondent, testified that he, Aaron W. Warner, the
Regional Director, and Frank Nelson, a member of the Union, met
at the respondent's office at Silverton on July 28, 1937, to discuss the
allegedly discriminatory discharge by the respondent of two em-
ployees, Carl V. Larson and Alfred Giecek. Chase testified further
4 The contract provides that the American Smelting and Refining Company may sell
or divert the concentrates produced by the respondent to any smelter.
Cf. Matter of Sunshine Minting Company and International Umon of Mane, Mill and
Smelter Workers, 7 N L. R B. 1252.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at that meeting a definite understanding was reached whereby
the respondent was to reinstate Larson and the case of Giecek was
to be dropped. Neither Warner nor Nelson testified at the hearing,
and the testimony of Chase is therefore uncontradicted. Larson,
moreover, testified that later in the day of the conference described
by Chase, Warner told Larson and Giecek that Warner and Chase
had agreed substantially as Chase testified. The two employees
were not satisfied with the compromise. On the same day, Warner
informed Chase to that effect and stated that Giecek's case would
therefore be continued. Although it is not clear exactly when the
respondent notified Larson to return to work pursuant to the al-
leged agreement, it appears that the latter resumed working for the
respondent the following day. Thereafter the Board issued its
complaint.
B. Conclusions regarding the compromise
Although we do not agree that the compromise agreement estops
the Board from proceeding herein, we believe that effective adminis-
tration of the Act requires that the Board's agents have the respect
and confidence of labor organizations and employers with whom their
work brings them in contact. Repudiation of agreements entered
into and relied on in good faith necessarily impairs such respect and
confidence. It may well be that the Regional Director intended the
instant agreement to be subject to acceptance by the complainant,
Giecek, or approval by the Board, or both. There is, however, no
evidence to that effect. The respondent apparently relied and acted
upon the agreement, reinstating an employee the legality of whose
discharge had not been adjudicated. We believe the policies of the
Act will best be effectuated by giving effect to the agreement and
refraining from consideration of the alleged unfair labor practices.
The complaint will be dismissed.
Upon the basis of the foregoing findings of fact and upon the
record in the case, the Board makes the following :
CONCLUSION OF LAW
The operations of the Shenandoah-Dives Mining Company have
a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States.
ORDER
Upon the basis of the above findings of fact and conclusion of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the com-
plaint be, and it hereby is, dismissed.