Eagle-Picher Mining and Smelting Co.

National Labor Relations Board - Board Decisions

Sep 2, 1938

8 N.L.R.B. 1008 (N.L.R.B. 1938)

In the Matter of EAGLE-MCI-TER MINING AND SMELTING COMPANY and
INTERNATIONAL UNION OF MINE,. MILL AND SMELTER WORKERS,
LOCAL 429
Case No. R-836.-Decided September 2,1938
Lead and Zinc I1I,nivg and Smelting lndnstry-Inestigation of Representa-
tives: controversy concerning representation of employees: majority status dis-
puted by employer on ground that union did not represent members delinquent
in payment of dues, where constitution of union provides for automatic drop-
ping of such delinquent members-Unit Appropriate for Collective Bargaining:
production employees, excluding clerical, monthly paid, laboratory, and super-
visory employees and full-time watchmen ; controversy only as to classification
of four employees-Election Ordered
Mr. Harry C. Duncan, Jr., for the Board.
Mr. A. C. Wallace and Mr. John R. Wallace, of Miami, Okla., and
Mr. John Campbell, of Joplin, Mo., for the Company.
Mr. Tony McTeir, of Joplin, Mo., and Mr. Gobel F. Cravens, of
Henryetta, Okla., for the Union.
Mr. Allan Lind, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 20, 1938, International Union of Mine, Mill and
Smelter Workers, Local 429, herein called the Union, filed with the
Regional Director for the Sixteenth Region (Fort Worth, Texas) a
petition alleging that a question affecting commerce had arisen con- -
cerning the representation of employees of Eagle-Picker Mining and
Smelting Company, Henryetta, Oklahoma, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On February 28 and April 23,
1938, the Union filed amended petitions with the Regional Director.
On May 24, 1938, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of,the Act and Article
SN L. R. B., No 124. -
1008
DECISIONS AND ORDERS 1009
III, Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended , ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appro-
priate hearing upon due notice.
On May 26, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the Union.
Pursuant to the notice, a hearing was held on June 2 and 3, 1938, at
Henryetta, Oklahoma, before I. Richard Insirilo, the Trial Examiner
duly designated by the Board. The Board, the Company, and the
Union were represented by counsel and participated in, the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded to all
parties. During the course of the hearing the Trial Examiner made
several rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed these rulings and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Eagle-Picher Mining and Smelting Company is a Delaware cor-
poration and a wholly owned subsidiary of the Eagle Picher Lead
Company. The former company is engaged in the business°of produc-
ing, milling, smelting, and distributing lead, zinc, and its byproducts.
It owns and operates lead and zinc mines in Oklahoma, Kansas, and
Missouri . It is engaged in the mining and concentration of ores,
including gold, silver, lead , and zinc at Ruby, Arizona . It owns and
administers coal lands at Spadra, Arkansas . It operates an ore mill
at Picher, Oklahoma, in which it mills ores received from its own
and independent mines in Oklahoma, Kansas, and Missouri. It op-
erates a lead smelter plant at Galena , Kansas , where it manufactures
pig lead, and sublimated white and blue lead. It also operates a zinc
smelter plant at Henryetta, Oklahoma.
During the year 1937, the Company produced at its mill in Okla-
homa approximately 22,000 tons of lead concentrates and 128,000 tons
of zinc concentrates, of which not less than 90 per cent of both lead
and zinc concentrates were shipped to or routed through States of the
United States other than the State of Oklahoma. During the year
1937, the Company shipped to its smelter at Henryetta , Oklahoma,
from or through States of the United States other than the State of
Oklahoma, approximately 75,000 tons of zinc concentrates, and sec-
ondary zinc bearing materials. Also during the same year the Com-
pany produced at its smelter at Henryetta , Oklahoma, approximately
1010 NATIONAL LABOR RELATIONS BOARD
35,000 tons of marketable commodities, of which not less than 90 per
cent were shipped to points outside the State of Oklahoma.
The present proceeding involves only the Henryetta, Oklahoma,
smelter plant. The Company employs from 380 to 400 production
employees at this smelter plant.
II. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, Local 429,
is a labor organization affiliated with the Committee for Industrial
Organization; admitting to membership all production employees of
the Company, excluding clerical, monthly paid, laboratory, and
supervisory employees.
III. THE QUESTION CONCERNING REPRESENTATION
Claiming to represent a majority of the production employees of
the Company at its smelter plant at Henryetta, Oklahoma, the Union,
since November 4, 1937, has continually sought recognition from the
Company as the exclusive bargaining representative of such em-
ployees. The Company, however, has refused to grant such recog-
nition, maintaining that the Union does not represent a majority of
its production employees.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union claims that all production employees of the Company,
exclusive of clerical, monthly paid, laboratory, and supervisory em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining. The Company makes no objection to the unit claimed
by the Union. We see no reason for departing from that unit.
At the hearing the Union named four employees who, it contended,
should be excluded from the unit. The Union claimed that one of
these employees was a part-time foreman and should be excluded
DECISIONS AND ORDERS 1011
from the unit as a supervisory employee. The evidence does not sup-
port this contention. This employee is an ordinary production
worker who acted as foreman for a short period in the summer of
1937 when the regular foreman was away on his vacation. We shall
include him in the unit.
The Union claimed that the other three employees were watchmen
and should be excluded, apparently on the ground that they were
supervisory employees or, in any event, not production employees.
The record shows that they are not supervisory employees. The
record further shows that two of the men are production employees
who spend a small portion of their time performing duties of watch-
men. We shall include them in the unit. The third employee is a
full-time watchman and spends no"time in production work. We
shall exclude him from the unit.
We find that the production employees of the Company, exclud-
ing clerical, monthly paid, laboratory, and supervisory employees,
and full-time watchmen, constitute a unit appropriate for the pur-
pose of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and collective bargaining and otherwise effectuate the
policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
There were 380 employees in the appropriate unit as of April
30, 1938.1 In support of its claim to represent a majority of the
employees in the appropriate unit, the Union introduced in evidence
213 membership cards and 32 so-called authorization cards. Both
types of cards are identical, being designated "Official Application
For Membership," and bearing on the back the following statement :
I hereby accept membership in the International. Union of
Mine, Mill and Smelter Workers, and of my own free will hereby
authorize the International Union of Mine, Mill and Smelter
Workers, its agents or representatives to act for me as a collective
bargaining agency in all matters pertaining to rates of pay,
wages, hours of employment, or other conditions of employment.
Signed ------------------------------
Each membership card and each so-called authorization card con-
tains a signature to the above statement. The basis for the Union's
classification of the cards into two groups is that the signatories to
the 213 "membership" cards had paid their initiation fees, while the
signatories to the 32 "authorization" cards had not.
'This computation is based on the Company's pay roll for Apill 30. 1938. which was
introduced in evidence
117213-39-vol. 8-65
1012 NATIONAL LABOR RELATIONS BOARD -
Of the 245 names appearing on the cards, 215 were on the Com-
pany's pay roll of April 30, 1938. The Company conceded,,the
genuineness of the signatures appearing on the 215 cards, but
objected to the reception into evidence and the consideration of 113
of these cards, consisting of 81 "membership" cards and 32 "author-
ization" cards, on the ground that under the constitution of the
Union the 113 employees who- signed these cards were no longer
members of the Union because, according to the union, records, they
were 2 or more months delinquent in the payment of their dues.
The constitution provides that :
Any member being two or more months in arrears with his
dues, shall not be allowed a voice or vote in the afFairs of the
local, and shall be automatically dropped as a member of the
local, and be reinstated only upon payment of the reinstatement
fee and such other penalties as the local may impose.
The Company contended that by operation of this provision the 113
employees were no longer members of the Union and that, there-
fore, the Union did not represent them for the purposes of collective
bargaining.2 The Union, on the other hand, contended that, regard-
less of the constitutional provision, it continued to represent these 113
employees for the purposes of collective bargaining.
It is not a requisite to representation of employees by a union
that they be members of it; all that the Act requires is a designation
of the union as their representative. Nevertheless, under all the cir-
cumstances of this case, we are of the opinion that doubt as to the
employees' designation of a bargaining representative should be
resolved by the holding of an election by secret ballot, and we shall
so direct.
Neither the Union nor the Company suggested a specific pay-roll
date to serve as a basis for determining eligibility to vote in the event
that the Board directed an election. The Company's pay roll of
April 30, 1938, was introduced into evidence and served as a basis
for the computations made at the hearing. We see no reason why
it should not be used in determining eligibility to vote. Accordingly,
we find that those eligible to vote in the election shall be the per-
sons in the appropriate unit who were employed by the Company
during the pay-roll period ending April 30, 1938, excluding those
who have since quit or been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the proceeding, the Board makes the following:
2 The Company objected to the 32 "authorization" cards on the ground that the persons
signing these cards had accepted membership and by the non-payment of dues they became
subject to the above constitutional provision.
DECISIONS AND ORDERS
CONCLUSIONS OF LAW
1013
1. A question affecting commerce has arisen concerning.the repre-
sentation of employees of Eagle-Picher Mining and Smelting Com-
pany, at its Henryetta, Oklahoma, plant, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations
Act.
2. The production employees of the Company, at its Henryetta,
Oklahoma, plant, exclusive of clerical, monthly paid, laboratory, and
supervisory employees, and full-time watchmen, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
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,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, it is hereby
DIRECTED that, as a part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining with
Eagle-Picher Mining and Smelting Company, Henryetta, Oklahoma,
an election by secret ballot shall be conducted within fifteen (15) days
from the date of this Direction, under the direction and supervision of
the Regional Director for the Sixteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Arti-
cle III, Section 9, of said Rules and Regulations, among the produc-
tion employees of Eagle-Picher Mining and Smelting Company at its
Henryetta, Oklahoma, plant, who were employed by it during the pay-
roll period ending April 30, 1938, excluding clerical, montlily paid,
laboratory, and supervisory employees, and full-time watchmen, and
also excluding employees who have since quit or been discharged for
cause, to determine whether or not they desire to be represented by
International Union of Mine, Mill and Smelter Workers, Local 429,
affiliated with the Committee for Industrial Organization, for the
purposes of collective bargaining.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Direction of Election.
[SAME TITLE ]
AMENDMENT TO DIRECTION OF ELECTION
September 15, 1938
On September 2, 1938, the National Labor Relations Board, herein
called the Board, issued a Direction of Election in the above-entitled
1014 NATIONAL LABOR RELATIONS BOARD
proceeding, the election to be held within fifteen (15) days from the
date of the Direction, under the direction and supervision of the
Regional Director for the Sixteenth Region. The Board, having been
advised by the Regional Director that an extension of five days is
necessary to prepare for the election, hereby amends the Direction of
Election issued on September 2, 1938, by striking therefrom the words,
"within fifteen (15) days from the date of this Direction," and sub-
stituting therefor the words, "within twenty (20) days from-the date
of this Direction."
M.R. EDWIN S. SMITH took no part in the consideration of the above
Amendment to Direction of Election.
8 N L. R. B, No. 124a.