American Zinc Co.

In the Matter of AMERICAN ZINC COMPANY OF ILLINOIS, EMPLOYER and INTERNATIONAL UNION OF MINE , MILL AND SMELTER WORKERS, CIO, PETITIONER Case No. 14-R-1496.-Decided February 12, 1947 Messrs. Henry Driemeyer, N. L. Allen and Milford Riggs, Jr., all of East St. Louis, Ill., for the Company. Mr. Joseph Verdu, of East St. Louis, Ill., for the International. Mr. Elmer Adams, of Collinsville, Ill., for Local 860. Mr. Florentino Fernandez, of East St. Louis, Ill., for Local 82. Mrs. Platonia P. Kaldes, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at St. Louis, Missouri, on August 21, 1946, before Keith W. Blinn, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. During the course of the hearing the Employer moved to dismiss the proceeding on the ground that under the principles enunciated in the Briggs-Indiana case,' the contract to which the International Union is a party estops the Peti- tioner from seeking to represent salaried employees. The motion was referred to the Board. For the reasons hereinafter set forth, the motion is hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYE': American Zinc Company of Illinois, a Maine corporation licensed to do business in the State of Illinois, has its principal office at St. Louis, Missouri, and a plant located at Fairmont City, Illinois. It is a susbidiary of American Zinc, Lead and Smelting Company. At the Fairmont City plant; which is the only plant involved in this pro- ceeding, the Employer is engaged in smelting zinc concentrates. 1 Matter of Briggs-Indiana Corporation, 63 N. L R. B. 1270. 72 N. L. R. B., No. 102. 540 AMERICAN ZINC COMPANY OF ILLINOIS 541 During the year 1945, the Employer purchased raw materials and supplies valued in excess of $500,000, of which approximately 50 per- cent was purchased and shipped from points outside the State of Illinois to its plant in the State of Illinois. During the same period, the Employer sold finished products valued in excess of $500,000, of which in excess of 50 percent was sold and shipped from its plant in Illinois to points outside the State of Illinois. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED International Union of Mine, Mill and Smelter Workers, herein called the International, is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION On July 27, 1942, the Employer and the International entered into a collective bargaining agreement covering the Employer's produc- tion and maintenance employees. The contract was signed by both the International and 'its Local 82,2 and provided that it would con- tinue in effect until May 31, 1943, and thereafter from year to year unless the parties thereto began negotiations for a new agreement 60 days prior to the expiration date, and that the contract would continue in effect during the period of negotiations if such period ex- tended beyond the expiration date. It provided, further, that neither the International nor its Local 82 would accept salaried employees or foremen as members. The contract was renewed for 3 successive years, and prior to May 31, 1946, the parties commenced negotiations for a new agreement. On or about May 15, 1946, the International initiated efforts to or- ganize the Employer's salaried employees into a local union with the intent of issuing a separate charter to such local once it was formed. On June 16, 1946, the International wrote to the Employer requesting recognition as the exclusive representative of a group of the Employ- er's salaried employees. On June 26, 1946, the Employer replied, stating that it would refuse to accord recognition to the International for the reason that the then existing contract covering production and maintenance workers, expressly provided that the International would not accept salaried employees as members. 0 2 The full name of this Local, referred to herein as Local 82, is Fairmont Smelter Workers, Local No 82 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 20, 1946, the International filed the petition herein and on August 6, 1946, it issued a charter to Fairmont Technical Workers, Local No. 860, herein referred to as Local 860, as the organization which would represent the group of salaried employees theretofore organized if successful in these proceedings. At the hearing, the International officials testified that Local 860 would be the contract- ing party in any collective bargaining agreement covering salaried employees which might hereafter materialize. As appears from a stipulation of the parties executed subsequent to the hearing, the Employer and the International and its Local 82 signed a new agreement on September 12, 1946, effective as of June 1, 1946, which provided, inter alia, that the contracting unions would not accept for membership in Local 82 8 any salaried employees of the Emplpyer. The Employer urges that, under the principles enunciated in the Briggs-Indiana case,4 the contract existing at the time the petition was filed estopped the International from seeking to represent the salaried employees. As we have noted, however, that contract has now been terminated and has been replaced by a new agreement. Pursuant to the latter agreement the International has contracted only that it will not accept salaried employees as members of Local 82. As we have noted, the International chartered Local 860 to represent the em- ployees here involved. Under these circumstances, we find that the existing contract is not a bar to a present determination of representa- tives,-', and that it consequently is unnecessary for us to determine the applicability of the principles enunciated in the Briggs-India'ta case. 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. lv. TIIE APPROPRIATE UNIT The Petitioner seeks a unit comprised of all employees of the analytical laboratory and the sample room of the Employer at its Fairmont City plant, excluding office and clerical employees and super- visors. The Employer took no position with respect to the appropri- ateness of the unit as a whole; it claimed, however, contrary to the Petitioner's contention, that one Elmer Adams, an employee in the sample department, is a supervisor and should be excluded from the unit. 3 The prior agreement provided only that the signatory unions would not accept salaried employees and foremen*as members In contrast to that general pledge, the new agreement provides that the signatory unions would not accept salaried employees and foremen as members in Local 82 - Matter of Briggs-Indiana Corporation, 63 N L. R. B 1270. Cf Matter of Inland Steel Company, 67 N. L R. B. 1053. AMERICAN ZINC COMPANY OF ILLINOIS 543 Elmer Adams supervises the work of the three or four sample room employees . While Adams performs manual work along with the other employees and has no authority to hire or discharge , he is the only supervisor present in the sample room and his recommendations as to the discharge, discipline , or efficiency of the employees in that department are accorded serious consideration by the Employer's per- sonnel officials. Upon these facts , we find that Adams possesses super- visory status within the Board's customary definition thereof. Accord- ingly, we shall exclude him from the unit. We find that all employees of the Employer 's analytical laboratory and sample room at its Fairmont City, Illinois, plant, excluding office and clerical employees , the supervisor of the sample room,e the Head Chemist, the Chief Chemist' and all or any other supervisory em- ployees 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 American Zinc Company of Illinois, Fairmont City, Illinois, 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 Fourteenth 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 in the unit found appro- priate 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 employ- ees 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 rein- stated prior to the date of the election, to determine whether or not they desire to be represented by Fairmont Technical Workers, Local No. 860, of International Union of Mine, Mill and Smelter Workers, CIO,s for the purposes of collective bargaining. I Elmer Adams. 7 The parties agree that the Chief Chemist and the Head Chemist are supervisory em- ployees and should be excluded from the unit $The request of the Petitioner that it appear on the ballot as designated above is hereby granted. 731242-47-vol 72 36