The New Jersey Zinc Co.

In the Matter of EMPIRE ZINC DIVISION, THE NEW JERSEY ZINC COM- PANY,' EMPLOYER and SAM MONTOYA, PETITIONER and BATTLE MOUNTAIN MINERS LOCAL No. 581, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS, CIO, UNION Case No. SO-RD-13.-Decided October 2'1, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before H. G. Bor- chardt, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel [Herzog, Houston, and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner, an employee of the Employer, asserts that the Union is no longer the bargaining representative of the employees of the Employer, as defined in Section 9 (a) of the Act. The Union is the recognized bargaining representative of the. em- ployees involved in this proceeding. 3. Contrary to the contention of the Employer and the Union, we find that the contract of May 19, 1947, as supplemented and extended 2 on July 29, 1948, does not constitute a bar to this proceeding. The contract, which has been extended since the enactment of the amended Act, provides for maintenance of membership in the Union. The Union has not, however, been authorized to execute such an agree- ment pursuant to Section 9 (e) (1) of the Act 3 The Board has con- sistently held that the mere existence of an illegal union-security agreement will, irrespective of any other considerations, prevent a 1 As corrected at the hearing. The agreement of July 29, 1948, extended the term of the contract from May 15, 1949, to May 15, 1950. The petition herein was filed July 19, 1949. 8 We find it unnecessary to decide whether the union-security provisions of the contract otherwise conform to the requirements of the amended Act. 86 N. L. R. B., No. 99. 685 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract from operating as a bar to a determination of representatives.' Moreover, the posting by the Employer of a notice that the union- security provision of the contract is no longer effective, even though acquiesced in by the Union, either orally or by default, but not in writing, does not serve to remove from the contract the illegal union- security provision.5 Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All hourly paid production and maintenance employees at the Employer's Gilman, Colorado, mine and plant, excluding clerical and technical employees, guards,6 and supervisors as defined in the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit . or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Battle Mountain Miners Local No. 581, International Union of Mine, Mill and Smelter Workers, CIO.7 d Matter ' o f Newburg Machine Company, 84 N. L. R. B. 657; Matter of Hygrade Food Products Corporation, 82 N. L. R. B . 428; Matter of C. Hager i Sons Hinge Manufacturing Company, 80 N. L. It. B. 163. 6 Matter of Evans Milling Company, 85 N. L. It. B. 391 (Chairman Herzog dissenting). The watchmen, who spend approximately one-third of their time performing duties as watchmen , and the remaining two-thirds performing janitorial duties , are not guards within the meaning of the Act. Matter of Radio Corporation of America (R. C. A. Victor Division), 76 N. L. It . B. 826. 7As Local No. 581 . has not achieved compliance with Section 9 (f), (g), and (h), we shall certify the Union , if it wins the election , provided that at that time Local No. 581 Is in compliance . Absent such compliance, the Board will only certify the arithmetical results of the election.