Eagle-Picher Mining and Smelting Co.

In the Matter of EAGLE-PICIHER MINING AND SMELTING COMPANY, EMPLOYER and INTERNATIONAL UNION OF MINE, MILL & SMELTER W ORIIERS, C. 1. 0., PETITIONER Case No. 21-R-3./421.-Decided October 11, 1946 Mr. C. Leo Guynn, of Phoenix, Ariz., Mr. John R. Wallace, of Miami, Okla., and Mr. G. J. Duff, of Tucson, Ariz., for.the Employer. Mr. Arthur Ashby,-of Miami, Ariz., for the Petitioner. Mr. 0. A.'Dever, of Lowell, Ariz., and Mr. W. D. Taylor, of Tucson, Ariz., for the Intervenor. Mr. Sidney Grossman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Phoenix, Arizona, on August 5, 1946, before William T. Whitsett, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and- are hereby affirmed. The hearing officer reserved ruling upon the motion of the Intervenor and the Employer that the petition be dismissed on the ground that an existing contract operates as a bar to this proceeding. For the reasons set forth in Section III, infra, the motion is denied. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Eagle-Picher Mining and Smelting Company, a Delaware corpora- tion, is a wholly owned subsidiary of Eagle-Picher Company. It owns and operates lead and zinc mines in Oklahoma, Kansas, Missouri, and Arizona, where its operations include the mining and smelting of lead and zinc. This proceeding is concerned with the Employer's San Xavier mine and Saliuarita mill located near Tucson, Arizona, where it monthly produces approximately 433 tons of lead concentrates which are shipped to the American Smelting and Refining Company at El Paso, Texas, and approximately 727 tons of zinc concentrates which are shipped to the American Zinc Company of Illinois at 71 N. L R B, No 46. 333 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dumas, Texas. Its annual production at its San Xavier mine and Sahuarita mill exceeds $500,000 in value. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations claiming to represent employees of the Employer. San Xavier Miners Union No. 23806, herein called the Intervenor, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Peti- tioner has been certified by the Board in in appropriate unit. On June 18, 1945, following a consent election conducted under the auspicies of the Board, the Employer and the Intervenor executed a written contract which continued in effect until March 1, 1946. On February 1, 1946, pursuant to the terms of the 1945 contract and prior to its expiration, the Intervenor submitted proposals to the Employer for a new contract. On about February 26, 1946, the terms of a new contract were reduced to writing, but the formal execution of the written instrument and consideration of a wage provision were post- poned pending determination by the Wage Stabilization Board of a wage pattern for the industry. On May 23,1946, the Petitioner filed its petition. Thereafter, on May 28, 1946, following approval by the Wage Stabilization Board of a wage increase, a wage provision was incorporated in the new contract which was then signed by the Inter- venor and the Employer. In support of their motion to dismiss the petition, the Employer and the Intervenor urge the existence of their 1946 contract as a bar to this proceeding for the reason that the contract was entered into in February 1946, prior to the Petitioner's representation claim, at which time it was allegedly regarded as a binding agreeinent.1 This position is without merit in view of the Board's well-established rifle that a contract is not a bar unless it has been reduced to writing and signed prior to the filing of a petition or the giving of notice of a representa- tion claim.2 We therefore find that the 1946 contract does not preclude a present determination of representatives. 'The 1946 contract expiesely provided, however, that it . . shall become effective as soon as ratified and signed by both parties 2 See Matter of Corona Coi poration, 66 N L R B 583 , Matter of Plough, Inc, 64 N L. R B 850 iflattei of Standaed Oil Company of California, 58 N. L R B. 560; Matter of Eicor, Inc, 46 N L R B 1035. EAGLE-PICHER MINING AND SMELTING COMPANY 335 We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE ]UNIT We find, in substantial accord with the agreement of the parties, that all production and maintenance employees at the Employer's San Xavier mine and Sahuarita inill near Tucson, Arizona, excluding watchmen, technical employees, clerical employees, and confidential employees, and all supervisory employees with authority to 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. , DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Eagle-Picher Mining and Smelting Company, Tucson, Arizona, 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees inthe unit found ap- propriate 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 armed forces of the United States who present themselves in person at the polls, 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, to determine whether they desire to be represented by International Union of Mine, Mill and Smelter Workers, CIO, or by San Xavier Miners Union No. 23806, American Federation of Labor, for the purposes of collective bargaining, or by neither. 717734-47-voi. 71-23