American Smelting and Refining Co.

In the Matter of AMERICAN SMELTING AND REFINING COMPANY and EL PASO METAL TRADES COUNCIL, 'AFFILIATED WITH THE METAL TRADES DEPARTMENT OF THE AMERICAN FEDERATION OF LABOR and INTERNA- TIONAL UNION OF MINE, MILL AND SMELTER WORKERS, FOR ITSELF AND FOR ITS LOCAL 509 and OFFICE EMPLOYEES LOCAL UNION #23256 Cases Nos. R-4735 and R-4736.-Decided February 15, 1943 -Jurisdiction : mining and smelting industry. Investigation and Certification of Representatives : existence of question : in,, consolidated proceeding, company refused recognition as to one appropriate unit because of alleged existing contract, and refused recognition as to second unit until Board certified union ; contract for one year and of indefinite duration thereafter in absence of 30 day notice of termination, held no bar, when con- tracting union gave notice-to amend 30 days before expiration of original term; election necessary. Units Appropriate for Collective Bargaining : in consolidated proceeding, fol- lowing units held appropriate : (1) all production and maintenance employees at El Paso plant, with specified exclusions ; stipulation as to ; (2) all clerical, stenographic, and office employees at the El Paso plant, with specified inclusions and exclusions. Kemp, Smith, Goggin c White, by Messrs. J. M. Goggin, T. J. Woodside; R. D. Bradford, and N. A. Ferguson, all of El Paso, Tex., for the Company. Messrs: Silverio Alva, of Smelterton, Tex., L. H. Hendricks, and W. H. Anderson, both of El Paso, Tex., for the Metal Trades. Messrs. Jess Nichols, Caferino Anchondo, and Humberto Silex, all of El Paso, Tex., and George F., Knott, of Safford, Ariz., for the Mine Workers. Mr. William J. Moran, of El Paso, Tex., for the Bricklayers. Mr. H. T. Fisk, of El Paso, Tex., for Local #23256. Mr. Glenn L. Moller, of counsel to the Board. DECISION AND DIRECTION OF-ELECTIONS STATEMENT OF THE CASE Upon petitions duly filed by the International Union of Mine, Mill and-Smelter Workers, Local-509; herein called the Mine Workers, and 47 N. L. R.,B., No. 85. 631 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Office Employees Local Union #23256, herein called Local #23256, alleging that questions affecting commerce had arisen con- cerning the representation of employees of American Smelting and Refining Company , El, Paso, ,Texas; herein called the Company, the National Labor Relations Board thereafter consolidated the two cases and provided for an appropriate hearing upon due notice before Bliss Daffan, Trial Examiner. . Said hearing was held at El Paso, Texas, - on January 7, 1943. The Company, the Mine Workers, the El Paso Metal Trades Council, affiliated with the Metal Trades Department of the American Federation of Labor, herein called the Metal Trades, and Local #23256, appeared , participated , and were afforded full opportunity to be heard , to examine and cross -examine witnesses, and to introduce evidence bearing on the issues . Bricklayers, Masons & Plasterers International Union of America, herein called the Brick- layers also appeared at the hearing . ^ At the beginning of the hearing, all parties stipulated that the Bricklayers employed by" the Company should be excluded from any bargaining unit or units which the Board finds appropriate ,' for the reason that the bricklayers are covered by an existing agreement between the Bricklayers and the Company. The Bricklayers did not participate in the hearing thereafter. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Company and by the Mine Workers, which the Board has duly considered. Upon the entire record in the case, the Board makes the following: I FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY' - American Smelting and Refining Company is a New Jersey corpora- tion with its principal office in New York City, and is authorized, to do business in the State of Texas. The Company owns and operates, directly or through subsidiaries, about 30 smelting and refining plants and about 18 mines in the United States, Mexico, and South America. One of the smelting plants owned and operated by the Company is 'located in the county of El Paso, Texas. This plant herein called the El Paso plant , which is the only operation involved herein, employs approximately 600 employees and is engaged in smelting copper and lead ores and concentrates . Approximately 95 percent of the raw materials used by the El Paso plant is-shipped to said plant from points outside the State of Texas , and approximately 100 percent of the copper and lead bullion produced there is shipped from said .plant to States other than the State of Texas. During 1942 1 23,029 tons of copper, valued at approximately $5,376,549, and 52,189 tons of lead AMERICAN SMELTING 'AND REFINING COMPANY 633 bullion valued at approximately $6,738,660, were produced at the El Paso plant. ' We find that the Company is en ;aged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED El Paso Metal Trades Council, affiliated with the Metal Trades Department of the American Federation of Labor, is a labor organiza- tion, admitting to membership employees of the Company. International Union of Mine, Mill and Smelter Workers, Local 509, affiliated with the Congress of Industrial Organizations, is a labor organization, admitting to membership employees of the Company. Office Employees Local Union #23256, affiliated with the American Federation of Labor, is a labor organization, admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION A. Production and maintenance unit On about November 5, 1942, the Mine Workers advised the Company that it represented a majority of the production and maintenance employees at the El Paso plant and requested the'\Company to recog- nize it'as their bargaining agent. The Company refused to grant such recognition upon the ground that it had an existing contract with the Metal Trades covering the same employees. The contract was executed on December 1, 1941. By its terms, it was to remain-in effect until December 1, 1942, and indefinitely there- after,. subject to termination by either, party on 30 days' notice. Shortly before November 1, 1942, the Metal Trades notified the Com- pany that it wished to renegotiate and amend the contract. In view of these circumstances, we find that the contract is no bar to this proceeding. A statement of the Field Examiner, introduced in evidence at the hearing, indicates that the Mine Workers represents a substantial number of employees in the unit hereinafter found appropriate. B. Office unit In the latter part of November 1942, Local #23256 notified the Company that it represented 'a majority of the Company' s office em- i The Field Examiner reported that the Mine workers submitted 277 authorization cards, 238 of which bore the apparently genuine signatures of persons whose names appeared on the Company's pay roll for the last half of October 1942. This pay roll contained 579 names, approximately 540 being in the appropriate unit. The Metal Trades submitted its contract to support its claim to representation and also submitted 264 authorization cards, 188 of which bear apparently genuine signatures of persons whose names appeared on the Company 's pay roll. for the last half of October 1942. 634 D,E.CIatOfVS OF NATIONAL LABOR ' RELATLONS BOARD ployees and requested that the Company recognize, it as their bargain- ing agent. The Company refused to grant such recognition unless and until the local obtained certification by the Board. The statement of the Field Examiner indicates that Local #23256 represents a substantial number of employees in the unit hereinafter found appropriate.2 We find that a question affecting commerce has arisen concerning the representation of the production and maintenance employees and of the office employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT A. Production and maintenance unit In accordance with the stipulation of all parties, we find' that all production and maintenance employees of the Company at its El Paso plant, excluding bricklayers and those employed in,executive , admin- istrative, technical, or professional capacities," constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. B. Ogee unit With respect to the office employees, the Company and Local #23256 are agreed that a unit, consisting of all clerical, stenographic, and office employees, excluding supervisory employees with the right to hire and discharge, is appropriate.4 The parties disagree, however, as to whether or not the following, all of whom the Union would include and the Company would exclude, should be in the appropriate unit: Lyell V. Deaner, weighmaster. The Company contends that Deaner should be excluded because his duties are important and confidential in nature. His duties consist of weighing all incoming ores, flux, 2 Local #23256 submitted 17 authorization cards, 16 of which bore the apparently genuine signatures of persons whose names appeared on the Company ' s pay roll for the last half of October 1942. There were 26 persons on the Company's pay roll in the unit herein found appropriate. 3 The parties agreed at the hearing that the exclusions encompass the following classifica-' tions : foremen , assistant foremen , whose duties are entirely supervisory , professional en- gineers , metallurgists, chemists, assayers, secretaries , clerks, accountants, auditors, and watchmen: 4 The Company and Local # 23256 agreed at the hearing that the following should be excluded : superintendent ( T. J. Woodside ) ; assistant superintendents ( Morris V. Andre, Frank W. Archibald , Henry S. Bagley, Arthur A. Collins , Ernest Huse, R. L. Hennebach,, Ben D. Robert, and Roscoe Teals , Ji ) ; diaftsman ( William it. Cook ) ; manager (R. D. Bradford ) ; warehouseman and purchasing agent ( Frank A. Corbin ) ; safety and employ- ment director ( W. C. Cunningham) ; ! plant engineer ( Joseph W. English ) ; manager's secretary ( Emily G. Hargraves ) ; chief clerk (N. A. Ferguson ) ; assistant chief clerk (Walter L. Wulfjen ) ; secretary of agricultural research department (Marjorie Miles) ; chief settlement clerk and assistant ore buyer ( R. L. Regsly ) ; chief stenographer and secretary ( George R. Spencer ) ; power engineer ( S. N. Westerfield). I ' AMERICAN SMELTING AND ' REFINING COMPANY 635 acids, and'other raw materials. Payments are made to parties selling to the Company on the basis of his weight figures. He works in a scale house some distance from the-office. He keeps a freight record, tran- scribing it from his scale tickets. His salary is comparable to that of office employees who the Company agrees should be included. 'We find that his duties are not of such a confidential nature, particularly as to the Company's labor relations, as to warrant his exclusion: Accordingly, we shall include him in the unit. Thomas S. Duff, metallurgical bookkeeper. The Company contends that Duff's position is one of trust and confidence and that he should ' be excluded for that reason. He is in charge of the Company's records of metals purchased, produced, and shipped. He usually has an assistant, but at present has none. He has no power to hire or dis- charge. We find that his duties are not of such a confidential nature as to warrant his exclusion. We shall include him in the unit. Marguerite Ehart, file clerk and stenographer. The Company con- tends that her position is a confidential one. Her regular duties con- sist of sorting and filing all letter correspondence and acting as a receptionist to persons calling at the office of the Company. She has charge of the confidential files of the Company and is the only office employee other than the chief clerk, who is excluded by agreement; and the executives, who has access to these files. In addition, she often substitutes for the manager's private secretary, who is also excluded by agreement, taking dictation and performing the other duties of a private secretary. This employee is in a position to know 'much of the Company's confidential business pertaining to -labor relations. We find that her duties are sufficiently confidential to warrant her exclusion. We shall exclude her from the unit" Hiram T. Fisk, chief timekeeper. The Company contends that Fisk is a supervisory employee and for that reason seeks to exclude him. Fisk works at a considerable distance from the main office and has three or four assistants working under him. He is considered by the Company as the head of a department and confers with the management, along with other admittedly supervisory employees, on management questions. While Fisk does not have the authority to hire or discharge, his recommendations, in this regard are' given weight by the Company. We find that Fisk is a supervisory employee. We shall, therefore, exclude him from the unit. Lemoyne M. Howard, financial bookkeeper. Howard is an account- ant and renders accounts as to costs and plant earnings. The Com- pany contends that he occupies a supervisory and confidential position. Ordinarily he has an assistant, though he does not have one at the present time. He has no power to hire or discharge but can make recommendations with reference to the employment of his assistant. 636' DECISIONS OF NATIONAL-LABOR RELATIONS BOARD i His duties are in the same category as Duff's, the metallurgical book- keeper, whom we have included in the unit. We find that his duties are not of such a supervisory or confidential nature as to warrant his exclusion. We shall include Howard in the unit. - Alfred S. Kaler, warehouse clerk and assistant -purchasing agent. The Company contends that Kaler occupies a supervisory position and should therefore be excluded. Iii the absence of the purchasing agent, Kaler performs his duties, which are exclusively supervisory. Since much of the purchasing agent's time is now spent in performing other duties, most of Kaler's time is spent substituting for him. In this capacity he supervises the work of the stockroom clerk and the storeroom clerk. Although he has no authority to hire or discharge, he may recommend with reference to the employment of the clerks who assist him. We believe that Kaler falls into the category of supervisory employees. We shall therefore exclude him. Andrew Leibert, assistant safety and, employment director. The, Company contends that Leibert, should be excluded on the ground that he is a supervisory employee. Leibert contacts applicants at the United States Employment Office and selects those whom the Company desires to employ. He is in charge of personnel and safety records. We find that this employee exercises supervisory and confidential functions which warrant his - exclusion. - We shall exclude him from the unit. C. M. Rogers, cashier. The Company contends that Rogers is a confidential employee and asks his exclusion on that ground. Rogers signs and distributes salary checks, signs checks for the entire pay roll and for any other- expenses of the plant. He keeps the wage, hour, and insurance records of all salaried employees'and is in charge of the petty cash on hand in the office. We find that Rogers' duties are sufficiently confidential to warrant his exclusion. We shall therefore, exclude him' from the unit. - Ani K. Storc/i, hospital clerk and stenographer. The Company contends that Storch should be excluded because she occupies a position of confidence and because, her work is divorced from that of the other office employees. Storch acts as secretary to the com- pany doctor. She contacts employees required to take physical examinations, and gathers and keeps health records on all employees so examined. Her hours are different from those of the office em- ployees and she is located in the hospital, apart from the office. She is carried on the regular office pay roll. - In obtaining infor- mation for, her records, she asks questions which are set out on forms furnished her by the Company. We find that her duties are of such a confidential nature as to warrant her exclusion. Con- sequently, we shall exclude her from the unit. AMERICAN SMELTING AND REFINING COMPANY' 637 We find that all clerical, stenographic, and office employees of the Company at its El Paso plant, including the weighmaster, metallurgical bookkeeper, and the financial bookkeeper, but exclud- ing the chief timekeeper, file clerk, and stenographer; warehouse clerk and 'assistant purchasing agent, assistant safety and employ- ment director, cashier, hospital clerk and stenographer, superin- tendent, assistant superintendents, draftsman, manager, warehouse- man and purchasing agent, safety and employment director, plant engineer, manager's secretary, chief clerk, assistant chief clerk, secretary of agricultural research department, chief settlement clerk and :assistant ore buyer, chief stenographer and secretary, power engineer, and all supervisory employees with the right to hire and discharge, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the questions concerning representation which have arisen be resolved by elections by secret ballot among the employ- ees in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and' additions 'set forth in the Direction. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with American Smelt- ing and Refining Company, El Paso plant, elections by secret ballot shall be conducted as early as,possible, but not later than thirty (30) days from the date of this Direction, under the direction and super- vision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the employees in the' units found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including any such employees who did not work during said pay-roll period because they were ill or Lon vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged ,638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for- cause, (1) to determine whether the employees in the production and maintenance unit desire to be represented by El Paso Metal Trades Council, affiliated with the Metal Trades Department of the American Federation of Labor, or by International Union of Mine, Mill and Smelter Workers, Local 509, , affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither; and (2) to determine whether or not the employees in the office unit , desire to be represented by Office Employees Local Union #23256 for the purposes of collective bargaining. 0