American Smelting and Refining Co.

In the Matter of AMERICAN SMELTING AND REFINING Co. and INTERNA- TIONAL FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS & TECH- NICIANS, C. I. O. Case 'No. R-4848.-Decided February 2., 1943 Jurisdiction : smelting and refining industry. Investigation and Certification of Representatives : existence of question : recog- nition refused until majority status of petitioner in an appropriate unit was determined by-Board; election necessary. Unit Appropriate for Collective Bargaining : all office and laboratory employees at one plant of company, including the telephone operator and Chemist and Metallurgical Trainees, but with specified exclusions. Mr. J. D. MacKenzie, of San Francisco, Calif., for the Company. Gladstein, Grossman, Margolis and Sawyer, by Mr. Bertram Edises, of Oakland, Calif., for the Union. Mr. Robert Silagi, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition and an amended petition duly filed by the Inter- national Federation of Architects, Engineers, Chemists & Technicians, C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of American Smelting and Refining Co., Selby, California, herein called the Company, the National Labor Relations Board provided for an ap- propriate hearing upon due notice before Gerald P. Leicht, Trial Examiner. Said hearing was held at San Francisco, California, on February 2, 1943. The Company and the Union appeared, partici- pated, and were afforded full opportunity'to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 47 N. L. R B., No. 109. 871 872 DECISION'S OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Smelting and Refining Co. is a New Jersey corporation, having its principal place of business in New York City. The Com- pany owns and operates, directly and through subsidiaries, about 30 smelting and refining plants and about 18 mines in the United States, Mexico, and South America. At its plant in Selby, California, which is the only plant involved in this proceeding, the Company engages in the business of smelting-and refining lead. The ores and concentrates treated at the Selby plant are of both domestic and foreign origin, and the products produced, such as refined lead, sheet lead, and sulphuric acid, are shipped in interstate commerce. Practically all of the Com- pany's output goes into the war effort. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED International Federation of Architects, Engineers, Chemists & Tech- nicians, affiliated with the Congress of Industrial Organizations, is a labor organization, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On December 17, 1942, the Union wrote a letter to the Company stating that it represented a majority of the employees in the unit herein found appropriate at the Selby plant and requesting a meeting to negotiate a collective bargaining agreement. This request was re- newed in writing on December 23, and again by telephone shortly thereafter. The Company did not reply to either letter, but stated in answer to the request by telephone that it could not meet with the Union at that time. At the hearing, the Company stated that It would Ilot recognize the Union until its majority status in an appropriate unit has been determined by the Board. I - A statement of a Field Examiner of the Board, introduced into evidence at the hearing, indicates that the Union represents a sub stantial number of employees in the unit. hereinafter .found appro- priate., 1 The Field Examiner reported that the Union submitted 17 cards, all of which bore apparently genuine original signatures ; that they were dated as follows : 13 in November 1942, 3 in December 1942, and 1 undated ; that the names of 16 persons whose names ap- peared on the cards were listed on the Company's pay roll of December 15, 1942, which contained 39 persons in the unit alleged to be appropriate. It was stipulated by the parties that the names of 2 persons appearing on the pay roll were not within the appropriate unit, thereby making the Union showing of representation 16 out of 37. AMERICAN SMELTING AND REFINING CO. 87,3 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The parties agree that the unit shall be composed of all office and laboratory workers at the Selby plant, excluding the chief clerk, metal- lurgical bookkeeper and cashier , metallurgical bookkeeper and pay- master, assistant chief clerk, supply agent, superintendent's secretary, mechanical superintendent and plant engineer , chief chemist, chief ore assayer, chief bullion assayer, and the assistant chief chemist. The Union seeks to include and the Company to exclude each of the following classifications: Telephone operator. The telephone operator divides her time al- most",equally between operating a switchboard and routine typing. She also operates a private line that runs between the Selby plant and the general office in San Francisco . The Company contends that because she has access to private and confidential conversations car- ried on over this line she should be treated as a confidential employee and excluded from the unit. The record discloses that her instruc- tions are not tolisten in on any private calls, and should she do so, she would be subject to discipline . Since her access to any confi- dential information is extremely limited, we shall include the tele- phone operator in the-unit. Chief Clerk's Stenographer. The testimony adduced at the hear- ing indicates that this employee spends about half of her time doing secretarial work for the Chief Clerk , in the course of which she has access to and works upon the personnel records and ratings of all salaried employees . The correspondence and files to which she has access contain confidential information of various sorts including in- formation ' on labor relations . In view of the confidential nature of her work we shall exclude her from the unit. Chief Timekeeper. The Company contends that this employee should be excluded from the unit on the ground that he is a super- visory employee . He is the immediate supervisor of two time- keepers and a distribution clerk. On certain days in the month when the pay roll is being made up, he also supervises several clerks who are "loaned" to him in order to get the work out on time . While he does not have power to hire and discharge , his recommendations-on promotions, changes, and the placing of new men carry weight. He is responsible for the accuracy of the pay roll, timekeeping , and dis- tribution of costs. He also trains new employees in their duties in his department. We find that he is a supervisory employee, and shall exclude him from the unit. 874 DECIISIONS . OF NATIONAL LABOR RELATIONS BOARD Personnel Stenographer to -the Safety & Welfare and Employment Department . The duties of this employee are to interview visitors, to the plant, issue passes to, them, , and act as secretary to the _Per-, sonnel Manager. She has access to the personnel records of hourly paid employees and the medical examination records of all employees. She also makes up the reports pertaining to unemployment records and industrial accidents . A great deal of her work deals ' with in- formation - that is confidential and is directly related to tie subject of labor relations . Accordingly , we shall exclude her from the unit. ' Chemist and Metallurgist Trainees. ' The Company contends that these employees, of 'whom there are two, should be excluded from the unit because they are part of the "management, family." The record clearly shows that they do substantially the same work in analyzing ores, byproducts, and shipping products as do the other chemists in the laboratory. Their hours of work are the same and their salaries are, comparable to those of the other chemists . The trainees have no supervisory authority whatever. The Company alleges that they are hand-picked by the Director of Technical Personnel with the inter= tion of being trained to become supervisory employees . ' However,'it admits that promotion is dependent upon ability and other em- ployees not so selected' have equal chances of 'promotion.'' Also, trainees who are found not to possess supervisory qualities are' simply retained as chemists . One of the trainees 'testified that it was his understanding that he was hired and carried on the pay roll as a chemist, and that the classification "Chemist and Metallurgist Trainee" was entirely new to him. We find that the duties of these employees are substantially the same as the ordinary, chemists, who are included in the unit by agreement . Accordingly, we shall include them in the unit. We find that all office and laboratory employees of`the Company at the Selby, California, plant, including the telephone operator and Chemist and Metallurgical Trainees, but excluding the chief clerk, metallurgical bookkeeper and cashier , metallurgical bookkeeper and paymaster, assistant chief clerk , supply agent , superintendent's sec- retary, mechanical superintendent and' plant engineer, chief chemist, chief ore assayer, chief bullion assayer, assistant chief chemist, chief timekeeper, ' chief clerk's stenographer and personnel , 'stenographer to the Safety & Welfare and Employment Department,.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 question concerning representation which has arisen be resolved by an election by secret ballot among the em- AMERICAN SMELTING AND REFINING CO. 875 ployees in the appropriate -unit who mere employed during the pay-roll period immediately preceding the date of the Direction of Election herein,-'subject to= the limitations , and 'additions-, set forth' in the Direction.- DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9' (c) of the National Labor Re- lations Act, and pursualt 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 Co., Selby, California, an election 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 supervision of the Regional Director for the Twentieth 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 unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll, period because they were ill or on vacation or, temporarily laid off, and including employees in the'arriied forces of the United States who present themse''fves'in,'per'son' at• the' polls, but' excluding those employees who have since quit or been discharged for cause, to determine whether or not they desire to be'. represented by International Federation of Architects, Engineers, Chemists & Technicians, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. MR: Wm; M. LEISERSON took no part in the consideration 'of the abo' e Decision and Direction of Election.