Utah Copper Co.

In the Matter of UTAH CoPrER COMPANY and NON -FERnaus . CLERICAL AND TECHNICAL WORKERS LOCAL UNZI )N No. 692, AFFILIATED WITH THE INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, C.I.O. In the Matter of UTAH COPPER COMPANY and INTERNATIONAL BROTH- ERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 1081, A. F. of L. Cases 'Nos. 20-R-1055 and 120-R-1060, respectively.-Decided July 14, 1!)44 Mr. C. C. Parsons, of Salt Lake City, Utah, for the Company. Mr. T. A. Marsh, of Magna, Utah, for the Clerical Workers. Mr. A. L. Smith, of Denver, Colo., for the I: B. El W. Mr. Albert C. Jensen., of Salt Lake City, Utah,- for the Smelter Workers. Mr. A. Sumner Lawrence, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE - Upon separate petitions duly filed by Non-Ferrous Clerical and Technical Workers Local Union No. 692, affiliated with the Interna- tional Union of Mine, Mill & Smelter Workers, C. I. 0., herein called the Clerical Workers,' and International Brotherhood of Electrical Workers,. Local Union 1081, A. F. of L., herein called the I. B. E. W., alleging that questions affecting commerce had arisen concerning the representation of employees of Utah Copper Company, Salt Lake City, Utah, herein called the Company, the National Labor Relations Board provided for an appropriate consolidated hearing upon due notice before John Paul Jennings, Trial Examiner. Said hearing was held at Salt Lake City, Utah, on April 27 and 28,1944. The Com- pany, the Clerical Workers, the I. B. E. W., and International Union of Mine, Mill & Smelter Workers, Local No. 392, C. I. 0., herein 1 The name of the Clerical Workers appears in the petition and other formal papers as "Non Ferrous Clerical and Technical Workers" and was corrected by motion at the hearing. 17 N. L. It. B., No. 58. 308 UTAH COPPER COMPANY 309 called the Smelter Workers, appeared, participated, and were af- forded 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. The motion of the Smelter Workers to dismiss is hereby denied for 'reasons hereinafter stated. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Utah Copper Company, a Delaware corporation, is a wholly owned and controlled subsidiary of Kennecott Copper Corporation, a New York corporation. Utah Copper Company, as agent for Kennecott Copper Corporation, operates a large open-pit copper mine, as well as precipitation plants and other properties located at Bingham Canyon, Utah. Utah Copper Company also operates the two mills and adjacent power station involved in the present proceeding; the, mills, known as the Arthur and Magna jnills, are located approximately 17 miles from the mine. Ore is shipped from the mine to the Arthur and Magna mills; where the ores are reduced to copper concentrates. These concentrates and a small amount of concentrates produced at the mine, are in turn smelted at Garfield, Utah, in a smelter adjacent, to the Company's property, operated by American Smelting and Refining Company. Blister copper, the resultant of the smelting operation, is shipped to three refineries operated by American Smelting and Refining Com- pany in the States of Maryland, New Jersey, and Washington. There, the blister copper is refined and the copper and precious metals, of which the blister copper is composed, are separated, purified, and prepared for sale. The finished products are sold by Kennecott Copper Corporation through its wholly owned subsidiary, Kennecott Sales Corporation. During the period from September 1, 1942, to August 31, 1943, approximately 319,540 tons of blister copper smelted from concentrates produced at the Arthur and Magna mills were shipped to refineries outside the State of Utah. During the same period, 10,872 tons of molybdenite concentrates produced as a byproduct at the mills, were shipped outside the State of Utah. The Company employs approxi- mately 1,320 non-supervisory employees at its Arthur and Magna mills. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Non-Ferrous Clerical and Technical Workers Local Union No. 692, is a labor organization affiliated with International Union of Mine, Mill & Smelter Workers, C. 1. 0., admitting to membership employees ,of the Company. International Brotherhood of Electrical Workers, Local Union 'O81, is a labor organization affiliated with the American Federation ,of Labor, admitting to membership employees of the Company. International Union of Mine, Mill & Smelter Workers, Local No. 292, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the C1ompany. III. THE QUESTIONS CONCERNING REPRESENTATION On March 7, 1944, and on March 21, 1944, the Clerical Workers and the I. B. E. W., respectively, requested recognition from the Company as the exclusive bargaining representatives for the employees in the several units claimed by each to be appropriate. The Company de- eclined to recognize either union upon the ground that the unit pro- posed by each was inappropriate&for collective bargaining. A statement of a Field Examiner for the Board, introduced in evidence at the hearing, together with a statement by the Trial Exam- iner, indicates that the Clerical Workers, the I. B. E. W., and the 'Smelter Workers, each represents a substantial number of employees in the unit claimed by each to be appropriate.2 We find that questions have arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. IV. THE APPROPRIATE UNITS THE DETERMINATION OF REPRESENTATIVES The Clerical Workers seeks a unit composed of all office, clerical, and technical employees of the Department of Mills,3 excluding man- 2 The Field Examiner reported that the Clerical workers had submitted 72 designations dated in February and March 1944, all of which bore the names of persons on the Company's pay roll of March 24, 1944, containing 119 names within the claimed appropriate unit. The Field Examiner also reported that the I. B. E. W. had submitted 33 designations dated in February and March 1944, of which 32 bore the names of persons on the Com- pany's pay roll of March 28, 1944, containing 46 names within the claimed appropriate unit, The Trial Examiner stated at the hearing that the SmAiter workers had presented 10 designations bearing names of persons on the -Company's pay roll of March 28, 1944, in the production and maintenance unit. The Smelter workers also relied, as evidence of its interest in the production and maintenance unit, on the fact that it is the current bargaining representative of the production and maintenance employees at the Arthur and Magna mills. 8 The Department of Mills includes not only the Arthur and Magna mills but also the power station used in connection therewith. 0 UTAH COPPER COMPANY 311 agerial and supervisory employees. The Company agrees with the general form of the proposed unit, but contends that certain individual employees claimed by the Clerical Workers should be excluded. there- from upon the ground that they have specific .supervisory duties or enjoy a confidential relationship to the Company by reason of their employment. The I. B. E. W. does not contest the unit proposed by the Clerical Workers, but claims an appropriate unit confined to the production and maintenance employees located at the Company's central power sta- tion, as distinguished from the remaining production and maintenance employees at the Magna and Arthur mills.' The Company and the Smelter Workers oppose the request of the I. B. E. W. upon the ground that the power station is essentially a part of the mills operations. In addition thereto, the parties are in disagreement as to the inclusion or exclusion of janitors from the proposed unit of power station em- ployees. With respect to the controversy regarding the specific inclusions sought by the Clerical Workers and opposed by the Company, the record reveals that the Clerical Workers would include some 38 em- ployees whom the Company contends should be excluded by reason of their alleged supervisory or confidential status. For purposes of this proceeding, these employees will be considered in three groups : (1) employees alleged to have definite supervisory status; (2) em- ployees who, while not occupying a definite supervisory status, are said to possess supervisory authority; and (3) a large group of employees alleged to have access to confidential information. (1) Employees alleged to have definite supervisory status The first group, consisting of assistant department heads, includes the assistant to the chief storekeeper, the assistant to the chief ac- countant, the assistant chief tabulator, and the assistant employment director in charge of men. Each of these individuals supervises a considerable number of employees and takes the place of his imme- diate supervisor during periods when the head of the department is absent from the office; moreover, all are on the senior salary pay roll.5 The department head in each instance consults with the assist- 4 The general production and maintenance employees in the Company's mills are pres- ently represented by the Smelter Workers as the result of an. election and certification of representatives . See 54 N. L. R. B. 1151; 56 N. L. it. B. 35. c The Company refers to its employees who work outside the provisions of the Fair Labor Standards Act as "senior salaried employees." Its employees who are hourly paid and who work under the overtime provisions of the Fair Labor Standards Act are referred to as "junior salaried employees." The Company considers as supervisory all the employees listed on the senior pay roll, by reason of their importance to supervision and the fact that the salary of each is far above the requirements set forth in the Fair Labor Standards Act. In addition thereto, the Company claims a supervisory status for a few employees although not listed on the senior pay roll. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ant in connection with laying out the work of the department and in considering the problems arising with regard to the other em- ployees. While apparently none of these assistants has ever recom- mended the discipline of employees in their respective departments, all possess the authority to make recommendations of this character. We find that the assistant department heads in question are clothed with substantial supervisory powers and duties, and we shall, accord- ingly, exclude them from the unit of technical and clerical employees hereinafter found appropriate." (2) Employees without supervisory title but alleged to possess supervisory authority The first designer is a senior salaried employee who, in the absence of the chief electrical engineer, is in charge of the electrical engineer- ing office. While there are at present but few employees in this office, the employee described as first designer in some instances directs other employees in the performance of their duties and has some employees who work for him in the field. In addition thereto, he will hereafter supervise the work of certain electricians and drafts- men now working in the electrical office upon new designs of electrical equipment. The evidence discloses that the recommendations of the first designer with respect to the status of employees would be seri ously considered by his immediate supervisor. We find that the employee within the classification of first designer has substantial supervisory powers within our usual definition of a supervisory 'em- ployee. He will, accordingly, be excluded from the unit of technical and clerical employees hereinafter found appropriate. The recreational adviser, who is carried on the junior salary pay roll, does not supervise the work of other employees and is engaged full time in working with the Company in connection with various employee welfare organizations which are supported by the Com- pany. He also advises the Company with respect to the efficiency of certain persons employed to maintain the properties used by such welfare organizations. Since it appears that the duties of the, recre- ational adviser involve the application 'of personnel policies of the Company, we find that he is a confidential employee and as such we shall exclude him from the unit of technical and clerical employees ,hereinafter found appropriate.7 The recording chemist is engaged for the most part in receiving and checking information obtained from other chemists and in entering it in the appropriate records. Although this employee does not regu- 6 The Company and the Clerical Workers are in agreement on the exclusion of the assistant employment director in charge of women. ' See Matter of ConsolidatedVultee Aircraft Corporation, 54 N. L. R. B. 103. UTAH COPPER COMPANY 313 larly supervise other employees, occasionally he has employees under his supervision and takes the place of the chief analytical chemist in the absence of the latter from the department. In addition thereto, the recording chemist regularly assigns analytical work to the chemists in the department under the supervision of the chief analytical chem- ist. Upon completion of a given piece of analytical work, the results are brought to the recording chemist who, before making a record thereof, determines whether the analysis has been properly made. In the event that it appears unsatisfactory to him, he may then return. the analysis to the chemist concerned for further checking. By com- parison with the ordinary assayer, the recording chemist is carried at a higher rate, is classified as a senior chemist, is a senior salaried employee, and is considered to be in training for the position of chief analytical chemist. His recommendations with respect to the efficiency of the other men in the department are given considerable weight by the management. We find that the recording chemist is a supervisory employee within our usual definition. We shall, accordingly, exclude him from the unit of technical and clerical employees hereinafter found appropriate. The assistant control engineer is a senior salaried employee engaged in the power station in supervising the handling of fuel and assisting the control engineer in the duties normally performed by employees in the latter classification. While it does not appear that he has at. present any regular personnel working directly under his supervision, his recommendations as to the hire and discharge of employees in the power station would be considered very seriously by the chief engineer in charge of power station operations. This employee was expressly excluded without-objection on the part of the Company, by the I. B. E.-W. from its proposed unit of power station employees hereinafter considered, apparently by reason of the acknowledged supervisory status of such employee. Under all the circumstances, we are of the. opinion that the assistant control engineer should be excluded from the unit of technical and clerical employees hereinafter found appro- priate; we shall, accordingly, exclude him therefrom. The janitor boss in the Magna mill, although bearing a title not in- dicative of a clerical status, is claimed by the Clerical Workers as an employee whose work is primarily of a clerical nature. The duties of the janitor boss include the assigning of work to two women. and one. man, all pf whom are engaged in cleaning the offices, hospital, and rest. rooms in the Magna mill. In addition thereto, M. L. Stewart, the present holder of this position, performs certain clerical and technical work at the plant hospital where he spends approximately 25 percent of his time and where he is at present training to take the place of a helper to the first-aid operator who is about to enter the armed services. 314 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD The record discloses that Stewart's duties are at the moment largely concerned with janitor work. His recommendations with respect to the janitors who work under him receive serious consideration by the management of the Company. Under all the circumstances, we find that the janitor boss is not primarily a technical or clerical employee; moreover, we are of the opinion that his authority over the other jani- tors is sufficient to give him the status of a supervisory employee with- in our usual definition. He will, accordingly, be excluded from the unit of technical and clerical employees hereinafter found appropriate. Our determination in this respect, however, will not preclude such em- ployee from hereafter qualifying as a member of the technical and clerical unit when and if it shall appear that his main duties are of a technical or clerical nature and that he no longer exercises supervisory authority. The first-aid operator at the Magna mill, the pharmacist and first- aid operator at the Arthur plant hospital perform similar duties from a medical point of view and are under the general supervision of the doctor in charge of the hospital and related activities. While the Com- pany contends that all three 'ere supervisory employees, it also alleges that the first-aid operator at. the Arthur plant hospital is in a confi- dential relationship to management by reason of his duties as X-ray technician, from which he is permitted to ascertain the physical defects of job applicants. There is, however, no evidence that this employee has anything to do with labor relations or is in a position to acquire advance information with respect to to the Company's position in such matters.' The further allegation of supervisory status as affecting all three employees is based upon the fact that each of the employees in question occasionally assumes certain duties of the doctor in the latter's absence. The record, however, does not disclose. the frequency and regularity of the occasions upon which these individuals assume such duties. Under the circumstances, we find these employees have neither confidential relationship to management nor substantial supervisory duties. We shall, accordingly, include them within the unit of tech- nical and clerical employees hereinafter found appropriate? The experimental engineer in the research laboratory is engaged in conducting experimental tests in the plants on a commercial scale. While he has no regularly assigned personnel, he is in charge of all testing work in the plants and at times has from 8 to 12 men directly under his supervision. His duties include the outlining of work to be 8 In the absence of evidence that the duties of employees allow them to have advance kpowled_re of the Company's position with respect to labor relations, such employees are not. "confidential" employees of the type whose exclusion from the appropriate unit Is required by reason of their possession of or access to information of a confidential nature. See Matter ofGeneral Motors corporation, Chevrolet Motor Division, 53 N. L. R. B. 1096, and cases cited therein. 9 See Matter of Cramp Shipbuilding Co., 46 N. L. R. B. 115. UTAH COPPER COMPANY 315 conducted on test units. The men who operate the machines in con- nection with this work do so according to his instructions. His rec- ommendations with respect to the efficiency of such operators are given very serious consideration by higher management officials of the Com- pany. Under the circumstances, we find that this employee has sub- stantial supervisory powers. He will, accordingly, be excluded from the unit of technical and clerical employees hereinafter found appro- priate. (3) Employees alleged to have access to confidential information The balance of the employees whom the Company would exclude generally perform clerical and technical work, but are alleged to pos- sess or have access to confidential information. Of these, apparently some have supervisory duties in addition to the asserted confidential aspects of their employment. Among such are two assistants to. the metallurgical engineers, the pay-roll clerk in the tabulating depart- ment, and the sanitary engineer in the research laboratory. The two assistants to the metallurgical engineer have access to cost and production records which the Company considers confidential. There is, however, no evidence that these employees have anything co do with labor relations or are in a position to acquire advance infor- mation with respect to the Company's position in such matters. On the other hand, the record discloses that the assistants in question have two or three men principally under their supervision and are charged with the training of new employees in the department. With respect to the latter group of employees, the assistants make recommendations which are seriously considered by higher management officials. While the evidence does not sustain the claim of the Company that the partic- ular employees bear such a confidential relationship to the Company that they should by reason thereof be excluded from the bargaining unit, we find that they are supervisory employees within our usual definition.. We shall, accordingly, exclude them from the clerical and technical unit hereinafter found appropriate. The pay-roll clerk in the tabulating department at present operates various business machines but is alleged to be employed in a confiden- tial relationship by reason of his access to pay-roll information. There is, however, nothing in the record to indicate that he has anything to do with labor relations or is in possession of confidential information with respect to the Company's position in matters concerning labor relations. On the other hand, it appears that this employee is regu- larly in charge of the office on Sundays when both the chief tabulator and the assistant chief tabulator are customarily absent from the department, which is otherwise fully manned during Sunday opera- tions. In addition thereto, the pay-roll clerk is considered as in train 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing for the position of assistant chief tabulator. We find that, while the pay-roll clerk is not a confidential employee with respect to man- agement, he does; nevertheless, possess substantial supervisory duties 10 We shall, accordingly, exclude him from the unit of technical and clerical employees hereinafter found appropriate. The sanitary engineer in. the researchlabQratory makes tests in the plant in order to'determine the dust content thereof. The Company contends that the information which lie. secures is confidential by-reason of its relation to possible claims against the Company based on an alleged health hazard to its employees. There is no evidence, however, that the sanitary engineer has anything to do with labor relations or has confidential information with respect thereto. While he may, on occasion, have two or three men working for him collecting samples of dust and may make recommendations as to the efficiency of these helpers on such occasions, the sanitary engineer exercises supervision in this respect no oftener than twice a year. Under all the circum- stances, we find that the sanitary engineer has neither confidential relationship to management .nor substantial supervisory duties. He will, accordingly, be included in the unit of technical and clerical em- ployees hereinafter found appropriate. The remaining employees in this group the Company would exclude primarily upon the basis of alleged access to confidential information. Secretaries. Included in this group are the secretary to the general superintendent and the secretaries to the superintendents of the Arthur and Magna mills. The evidence discloses that these employees take dictation with respect to matters involving labor relations, by reason whereof they are in a position to acquire knowledge of the Company's position in such matters prior to the revelation of such position to the employees concerned. Also included in the above-mentioned group are. the secretaries to the plant engineer and the master mechanic, respectively. Since the plant engineer and the master mechanic occupy supervisory positions, it would appear that such employees, and in turn their secretaries, have access to advance information concerning labor relations. We shall, accordingly, exclude all the secretaries aforesaid from the unit of technical and clerical employees hereinafter found appropriate." The clerk in the electrical engineering department has access to information regarding power contracts and has knowledge of the costs of power production which the Company desires be kept from the reach of the general public. While in addition thereto, the clerk may 10 The Board has excluded as supervisory employees those who regularly , and frequently, substitute in a supervisory capacity. See Matter of Bisbee Linseed Company, 34 N. L. R. B. 272. 11 See Matter of Chrysler Corporation, 36 N. L. R. B. 157 ; Matter of General Cable Corporation , 55 N. L. R. B. 1143. UTAH COPPER COMPANY 317 read correspondence which passes over the desk of the secretary of the electrical engineers ,12 including correspondence relating to labor relations from the general superintendent of mills, there is no showing that his access to such correspondence occurs regularly or is part of his normal duties. Of similar character, but with even less confidential aspects, are the stenographer and requisition clerk in the accounting department, the clerk in the power station, and the photographer in the mechanical engineering department . The first of these employees has access to the cost of production records in the accounting department . The sec- ond has access to information relating to power production . The third takes pictures of accidents for use in litigation affecting the Company. The latter also substitutes as X-ray technician in the absence of the first-aid operator regularly performing such duties. While all the aforesaid employees either possess or have access to information which the Company considers confidential from a business point of view, in each of the above instances, however, there is nothing in the record to indicate that the employee concerned has anything directly to do with labor relations or that his position affords h;m an opportunity for acquiring advance information with respect to the Company's position in matters relating thereto. Under the circum- stances, we find that the employees in the aforesaid group bear no confidential relationship to management .13 We shall, accordingly, in.- elude such employees within the unit of technical and clerical em- ployees hereinafter found appropriate. By contrast with the foregoing group of employees, the employees hereinafter considered appear to fall more clearly within the category of confidential employees within our usual definition. The stenographer in the general stores department handles cor- respondence relating to personnel in the warehouse department and is also present at conferences with respect to personnel matters between the chief storekeeper and the superintendent of mills. The cleric in the metallurgical engineer's office handles the- eorreL spondence of the chief metallurgical engineer , and maintains the lat- ter's confidential file covering communications from the general superintendent of mills regarding regulations of the Company and matters relating to collective bargaining. The stenographer in the research laboratory performs the duties, of secretary in the office of the chief chemist and handles all corre- spondence relating to labor relations. "s The parties are not at issue with respect to the ineiusion • of the secretary to the electrical engineer. We find that such employee bears a confidential relationship to management with respect to labor relations and should by reason thereof be excluded from the unit of technical and clerical employees hereinabove mentioned. 1 3 See footnote 7 ; see also Matter of The Hoover Comp.an4/,. 55. N.. L.. fl B.. l)321.. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The stenographer in the employment and industrial relations de- partment has access to information regarding individual job applica- tions and related personnel matters. The shop clerks '14 who act as clerks for the various °supervisors in charge of shops, have access to confidential information and cor- respondence between the superintendent of mills and the various department heads for whom they work, relating to labor relations matters. They also type detailed' reports concerning recommenda- tions for dismissal, which reports are subsequently forwarded to the :superintendent. With respect to the foregoing employees, we are of the opinion that, in view of the fact that the positions of such employees involve personnel matters or afford an opportunity for acquiring advance knowledge of the Company's position in matters concerning labor relations, the employees in question bear a confidential relationship to management 15 We shall, accordingly, exclude them from the unit of technical and clerical employees hereinafter found appro- priate. We find that all office, clerical, and technical employees of the Company in its Department of Mills, including the sanitary engineer in the research laboratory, the stenographer and requisition clerk in the accounting department, the clerk in the electrical engineering de- partment, the clerk in the central power station, the pharmacist, the first-aid operators at the Arthur and Magna mills, the photographer in the mechanical engineering department, but excluding executives, officials, assistant department heads,16 the secretary to the general superintendent, the secretaries to the superintendents of the Arthur and Magna mills, the secretary to the electrical engineer, the secretary to the plant engineer, the secretary to the master mechanic, the first designer in the electrical engineering department, the recording chemist in the research department, the assistant control engineer, the janitor boss at the Magna mill, the experimental engineer in the research laboratory, the two assistants to the metallurgical engineer, the pay-roll clerk in the tabulating department, the stenographer in the general stores department, the clerk in the metallurgical engineer's office, the stenographer in the employment and industrial relations department, the recreational adviser, the shop clerks, telephone oper- 14 Included within this category are the head clerk in the master mechanic's office, the head clerks in the electrical department of both mills, the head clerks in the carpenter shop of both mills, and the head clerk in the car shop. 16 See Matter of The Hoover Company, 55 N. L. R. B. 1321; Matter of West Penn Power Company, 55 N. L. R. B. 1356. 11 Included under the term assistant department heads are the assistant employment director in charge of women, the assistant employment director in charge of men, the assistant to the chief storekeeper, the assistant to the chief accountant, and the assistant chief tabulator. UTAH COPPER COMPANY _319 ntors,17 and all other supervisory, employees with authority t07 hire, promote, discharge, discipline, or otherwise effect changes in, the status of employees or effectively, recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of-the Act. There retrains for consideration the question of an-appropriate unit of production and maintenance employees at the Company's power sta- tion at the Magna.and Arthur mills."' The record reveals that while the power station is functionally related to and is under the same gen- eral supervision as the Magna'and Arthur mills, it is, nevertheless, sit- uated in a separate building and under the immediate separate super- vision of the chief electrical engineer. Moreover, although the man- jority of production and maintenance employees at the power station are not skilled employees and have to a large extent been recruited from among the general mill employees, it appears that these em- ployees are engaged in a common effort to produce electrical energy, and constitute a clearly identifiable and homogenous-group which can - function appropriately as a separate bargaining unit li or- as part of the larger production and maintenance unit already represented by the Smelter Workers. Under the circumstances, while a company- wide unit of production and maintenance employees would not, upon the facts, presented, be inappropriate, we are of the opinion that the considerations are sufficiently balanced to make the desires of the power station employees themselves a factor in our determination of the type ,of unifthrough which they shall bargain.20 Accordingly, we shall per- mit the preference of the power station production and maintenance employees to determine in part whether or not they shall constitute a separate unit or be added to the existing unit of production and main- tenance employees, and to that end shall order an election. If at such election these employees select the I. B. E. W. they shall constitute a separate appropriate unit; if they select the Smelter Workers they will. have thereby indicated, their desire to be included in a unit with the production and maintenance employees -and the Smelter Workers may accordingly bargain for them as a part of such uiiit.21 "The Clerical workers does not claim to represent the telephone' operators employed by the Company at the Depaitment of Mills and the Company lasses no objection to their exclusion. In view of the agreement of the parties and the difference between the work of the telephone operators and that of the other clerical employees, telephone operators are excluded from the unit of clerical employees. 11 In the prior case involving the bulk of the production and maintenance employees of the,Company at the Arthur and Magna mills (54 N. L- R. B. 1151) the Board found that because the power station was still in process"of construction, the employees of the power station would not be considered as within any of the appropriate units in such proceeding. 19 See Matter of Commonwealth Edison Company, 55 N L. R. B. 465. 20 See Matter of Goodyear Aircraft Corporation, 45 N. L. R. B. 298; Matter of Utah Copper Company, 54 N. L R. B, 1151. . 21 See Matter of Bendix Products Division, Bendix Aviation Corporation, 56 N. L. R. B. 602. G 320 DECISIONS' OF NATIONAL LABOR 'RELATIONS BOARD The only dispute with respect to the connposition of the power sta- tion, group concerns the question of the inclusion of four janitors, who 1%v ork -under the direction of the yard boss and whom the L B. E. -W. would exclude from the power station group in opposition to the other, parties to the proceeding. The record reveals that the,janitors in ques- tion hold permanent positions and perform their work iii the per station under the ultimate supervision of the chief engineer who also supervises the entire power station r operations. Under the circurn- stances and in view of the fact that no other labor organization is seeking to represent the janitors as a separate group, we shall include them within the voting group of power station employees. As previ- ously indicated, we',shall at this time make no final determination with respect to the unit of power station employees, pending the outcome of the election in the voti ng group,set forth below: All production and maintenance employees of the central power sta- tion of the Company including janitors, but cxclu ling office, clerical, and technical employees, officials, foremen, the yard boss, and all super- visory employees with authority to,hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees or effec- tively recommend suell actiori.2_ We shall direct separate elections i.n1ollg the employees in the appro- priatetimit and voting gronp set forth above, Who v, eye employed dur- ing 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.23 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 Relations Act, acid pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation to ascertain representa- 'tives,for the purposes of collective bargaining 'with Utah Copper Coln- pliny, Salt Lake City, Utah, elections by secret ballot shall be conducted = The assistant chief electrical engineer, the control engineer, the assistant control eneinelr, the turbine foieuren, construction foremen, power maintenance 'foremen, and ,repair foremen are excluded as either technical or supervisory employees within our usual' dehmt'on ' . .3 The Smelter Workers requests that it may appear on the ballot in the power station group as Mine, Mill & Smelter Workers, for itself and on behalf of Its Local Union 392, C I. 0 We shall designate the Smelter Workers on the ballot as its- name appears in the Direction of Election, since we are persuaded that, if the Smelter Workers is eventually, certified, its designation as Mine, Mill & Smelter Workers, for itself and on behalf of,its Local Union 392, C I. 0., night be ambiguous. Accordingly, the request of the Smelter Workers is hereby denied. See Matter of Bull Brothers Company, 54 N. L R. 'B.,1512 Matter of Blackwell Zsne Company, Inc., 56 N. L R. B. 921. UTAH COPPER COMPANY 321 V as early as possible but not later than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of the Regional 'Director for the Tv,-eiitieth Region, acting in this matter is agent for the National Labor Relations Board and subject „to 'Aiticle.,III; Sections 10 and, 11;,-of said-Rules and .Regulations,,. among the following groups of-employees of the Company 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 armed forces of the United States who present themselves in person at the polls, but exdluding any who have since quit or been'discharged'for cause'and have'not been rehired or reinstated prior to the date of the elections and exclud- ing also all supervisory employees with authority to hire, promote,', discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action: (1) 1111 office, clerical, mind teclith al employees of the Co'rnpany in' its Department of Mills, in the unit found appropriate in Section IV, above, to determine whether or not they desire to be represented by Non-Ferrous, Clerical and Technical Workers Local Union No. 692, affiliated with the International Union of Mine, Mill & Smelter Work- ers, C. I. 0, for the purposes of collective bargaining; (2) All production and maintenance employees of the Company at its central power station in the voting group described in Section IV, above, to determine whether they desire to be represented by Inter- national•Brotherhood of Electrical Workers, A. F. of L., Local Union 1081, or by Mine, Mill & Smelter Workers, Local Union 392, C. I. 0., for the purposes of collective, bargaining, or by neither. I 601248-45-vol. 57-, 22, / ,