International Smelting and Refining Co.

INTERNATIONAL SMELTING AND REFINING COMPANY 27 . . . the Employer will employ only union members in good standing, holding working cards issued by the union. If workers are engaged in the open market, who are not members of the Union, such workers shall obtain tempo- rary working cards from the Union at the end of the second working day after working not more than sixteen (16) hours of the first two working days, and shall, not later than the thirty-first day after the date of their em- ployment, become members of the Union and thereafter remain members of the Union as a condition of their em- ployment for the term of this agreement. The Employer . . . shall report to the Union at the end of the first and second days the names and addresses of all workers so employed. As these provisions clearly exceed the limited form of un- ion-security permitted by Section 8 (a) (c) of the Act, we find the contract cannot operate as a bar.2 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. We find, in accordance with the agreement of the parties, that all production and maintenance employees at the Employ- er's Brooklyn, New York, plant, including truckdrivers but ex- cluding salesmen, professional, confidential and office -clerical employees, guards, and supervisors, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Chairman Farmer took no part in the consideration of the above Decision and Direction of Election. ZSan Joaquin Compress and Warehouse Company, 95 NLRB 279; Seattle Wholesale Florist Association, 92 NLRB 1186. Cf McCoy Truck Tire Recap Company, 93 NLRB 667. INTERNATIONAL SMELTING AND REFINING COMPANY, RARITAN COPPER WORKS and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner . Case No. 4-RC-1981. No- vember 10, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election' an elec- tion by secret ballot was conducted on August 5, 1953, under 1106 NLRB No. 45. 107 NLRB No. 16. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the direction and supervision of the Acting Regional Director for the Fourth Region, among the employees in the unit found appropriate in the above -mentioned Decision . As neither the Petitioner nor either of the two Intervenors ' appearing on the ballot received a majority of the valid votes cast s a runoff election between the Petitioner and MESA was conducted on August 13 , 1953, among the employees in that unit . Thereafter a tally of ballots was furnished the parties , showing that out of 970 voters casting valid ballots, 514 voted for the Petitioner, 451 voted for MESA, and 5 cast challenged ballots . On August 20, 1953, MESA filed objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Acting Regional Director conducted an investigation of MESA's objections and, on September 4, 1953; issued and duly served upon the parties his report on objections , in which he found that the objections raised no substantial and material issues with respect to conduct affecting the results of the election and recommended that the objections be dismissed and that the Petitioner be certified as the sole collective -bargaining agent for the employees in the unit here involved . Thereafter, MESA filed timely exceptions to the report on objections. Upon the entire record in this case , the Board finds: In its objections MESA contended that the Petitioner , by cir- culating a document with the heading , "Mine-Mill Committee Supports C.I.O." intended the employees who had supported Smelter Workers at the first election to infer that Smelter Workers supported the Petitioner in the runoff and that it wished its adherents to do the same , which, in fact , was not true. This misrepresentation , MESA contends , prevented a free and untrammelled choice in the selection of a bargaining representative by the employees voting in the election. The Acting Regional Director found as a result of his_ inves- tigation that on the morning of the runoff election the Petitioner distributed leaflets in front of the plant outside of the elec- tioneering limits, one of which bore the caption , "Mine Mill Committee Supports CIO." The first paragraph of this leaflet stated: "As former members of Mine-Mill and as Raritan Cop- per Workers we urge all our friends to vote for the United Steelworkers of America , CIO." The leaflet was signed "Mine- Mill Committee for the United Steelworkers of America, CIO." At the same time CIO adherents carried placards bearing the legend, "Raritan Copper Mine-Mill Committee Supports CIO." Later in the day Smelter Workers distributed a leaflet in front of the plant repudiating the claims made in the Petitioner's leaflet. 2 Local 17, Mechanics Educational Society of America, hereinafter referred to as MESA and International Union of Mine, Mill, and Smelter Workers hereinafter referred to as Smelter Workers, both intervened in this proceeding. SThe results of this election showed that 946 valid ballots were cast : 363 for the Peti- tioner, 305 for MESA, 262 for Smelter Workers, 11 against participating labor organizations, and 5 challenged. INTERNATIONAL SMELTING AND REFINING COMPANY 29 Prior to the runoff election, both the Petitioner and MESA had various committees of employees supporting their organi- zations. One such committee supporting the Petitioner, known as "Mine-Mill Committee for the United Steelworkers of Ameri- ca, CIO," was composed of employees who had supported Smelter Workers at the first election . A few members of this committee had been members of a Smelter Workers committee which supported Smelter Workers prior to the first elec- tion. On these facts , the Acting Regional Director concluded that the leaflet and placard did not contain any misstatement of fact, were not misleading , and constituted permissable elec- tioneering appeals. In its exceptions to the Acting Regional Director ' s report, MESA contends that the conclusion of the Acting Regional Di- rector that the leaflet and placard were not misleading is not warranted by the facts set forth in his report, that "the taking of evidence " will reveal that employees were in fact misled by this material , and that the recommendations in the report are contrary to law. The Intervenor , accordingly , requests that a hearing be held on the matters covered in the re- port. There is no dispute here as to the relevant facts, but only as to the extent to which the Board should control campaign propa- ganda. The Board has traditionally declined to censor or police preelection propaganda by parties to elections , unless there is present forgery or other campaign trickery such as would tend to impair the ability of the employees to evaluate the propa- ganda and make impossible a free election .4 We find that the leaflet and placard did not exceed the bounds of permissible preelection propaganda .5 Accordingly , we will adopt the recom- mendation of the Acting Regional Director and will dismiss MESA's objections and certify the Petitioner as the exclusive bargaining representative for the appropriate unit. [The Board certified United Steelworkers of America, CIO, as the designated collective -bargaining representative of all employees of the International Smelting and Refining Company, Raritan Copper Works, including hourly,paid employees, sa- laried clerical employees in the storehouse, shipping depart- ment, machine shop, tank house, power department , and elec- tro-sheet department , salaried drivers and salaried employees in the drafting room, but excluding all other salaried clerical employees , chemists in the main laboratory , salaried truck- drivers, employees listed on the Employer ' s exempt list and their successors , guards, and supervisors as defined in the Act.] 4Merck & Co. Inc., 104 NLRB 891. 5 Merck & Co. Inc., supra. 337593 0 - 55 - 4