United States Smelting, Refining and Mining Co.

National Labor Relations Board - Board Decisions

Apr 9, 1951

93 N.L.R.B. 1280 (N.L.R.B. 1951)

1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, including the geographical separation between the two
plants, the lack of interchange of personnel between the plants, and'
the fact that there is no history of bargaining on a multiplant basis,4
the proposed bargaining unit of employees at the Bradley Field plant
may also be appropriate' depending upon the results of the election
hereinafter directed. Accordingly, we shall direct an election in the
following voting group:
All persons employed in repairing, servicing, and maintaining:
equipment at the Employer's Bradley Field, Windsor Locks, Con-
necticut, plant, excluding executives, office and clerical employees,
guards, professional employees, and supervisor's as defined in the Act.
If a majority of the employees select the Petitioner as their repre-
sentative, they will be taken to have indicated their desire to be repre-
sented in a separate unit; if a majority select the Intervenor, they will
be taken to have indicated their desire to be included with the eni
ployees at the West Springfield plant in a two-plant unit.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER STYLES took no part in the consideration of the above
Decision and Direction of Election.
4 After the petition herein was filed , the Employer and Intervenor executed a collective
bargaining agreement purporting to cover the employees at both the West Springfield
and Bradley Field plants . However, a contract executed under such circumstances does
not, in our view, establish an effective history of collective bargaining.
5 Sinclair Refinery Company, 92 NLRB 643; Perfection Garment Company, 91 NLRB
1421 ; Magnet Cove Barium Corporation, 90 NLRB No . 54; General Electric Company,
85 NLRB 150.
UNITED STATES SMELTING, REFINING AND MINING COMPANY' and
GRANT COUNTY MINERS' ASSOCIATION, PETITIONER and INTERNA-
TIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCAL No. 890,
INTERVENOR. Case No. 33-RC-2926. April 9, 1951
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before Byron S. Guse,
hearing officer.2 The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
1 The Employer' s name appears as corrected at the hearing.
s The hearing officer referred to the Board for ruling the Intervenor's motion to dismiss
the petition on the grounds (1) that the unit is inappropriate; (2) that it has no
limitation in its constitution or bylaws as to whom it will admit to membership, and is
therefore not a bona fide labor organization within the meaning of the Act; ( 3) that
there is now pending before the Board certain unfair labor practice charges in Case
No. 33-CA-117 ; and (4 ) that certain of the constitutional officers of the Petitioner are
not in compliance with the filing requirements of the Act.
As regards the first ground this motion is denied for reasons hereinafter stated in
paragraph numbered 5, infra.
93 NLRB No. 219.
UNITED STATES SMELTING, REFINING & MINING COMPANY 1281
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 labor organizations involved claim to represent certain"em-
ployees of the Employer.
` 3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. W find that all production and maintenance employees at the
Employer's Bayard, New Mexico, plant, but excluding office clerical
and technical employees, guards and watchmen, professional em=
ployees, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining with the meaning of
Section 9 (b) of the Act.
5. As one ground for its motion to dismiss the Intervenor contended
that no election should be held because the Employer's operation is
only exploratory at the present time and is not in operation with a
full complement of its employees.
The Employer is engaged in the mining, milling, and smelting of
nonferrous metals at its various plants throughout the United States,
including the mining operations involved herein. In 1949, the Em-
ployer shut down its operations. At the time of the shutdown, it
employed approximately 450 employees. At the present time there
are approximately 120 employees at its Bayard, New Mexico, facility
engaged in exploratory operations. The Employer estimates that it
might expand operations about June 30, 1951, if it should find ore to
Footnote 2-Continued
With respect to the second ground , the Board has repeatedly held that the willingness
of a union to represent the employees involved and the selection of that union by such
employees is controlling under the Act, and not the eligibility of employees to membership.
Northern Redwood Lumber Company , 88 NLRB 272
Concerning its third contention , the alleged unfair labor practice charges are grounded
on the same charges previously filed in Cases Nos 33-CA-90 (dismissed, appealed, and
dismissal sustained ) ; 33-CA-98 and 33-CA-114 (withdrawn).
In addition, we have administratively advised that on February 27, 1951, the Regional
Director dismissed for lack of merit the charges filed in 33 -CA-117. In view of the
foregoing , we are of the opinion that it will best effectuate the policies of the Act, and
promote the orderly processes of collective bargaining to direct an immediate election
herein , even though an appeal from the dismissal of the charges is pending before the
General Counsel . See Columbia Pictures Corporation , et at , 81 NLRB 1313.
1 With regard to the last ground advanced by the Intervenor , the Board has frequently
held that compliance is a matter for administrative determination and is not a litigable
issue iluntz Television, Inc, 92 NLRB 29; Lion Oil Company, 76 NLRB 565. We
are, moreover , administratively satisfied that the Petitioner is in compliance.
In view of the foregoing , the Intervenor ' s motion to dismiss is denied in toto.
943732-51-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.justify the expansion. However,,_the Employer admits that even if
it should find ore, the classifications of the employees would not change
because of the expansion but that merely the number of employees in
each of its categories would be enlarged. We find no merit in the
Intervenor's contention for the reason that there is at present a repre-
sentative group of employees in the plant.3 In view of the forego-
ing, we shall direct an immediate election among the employees in
the unit heretofore found appropriate.
[Text of Direction of Election omitted from publication in this
volume.]
3 Westinghouse Electric Corporation , supra.
THE DISPATCH PRINTING COMPANY, INCORPORATED, OHIO STATE
JOURNAL DIVISION and COLUMBUS NEWSPAPER GIIILD, AFFILIATED
WITH AMERICAN NEWSPAPER GuiLD, CIO, PETITIONER. Case No.
9-RC-868. April 9,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Seymour Goldstein,
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 Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and
Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all employees in the
circulation department of the Employer's Ohio State Journal Divi-
sion , excluding mailing room employees, truck drivers, city green
home delivery men-part-time, carriers, and supervisors. The Em-
ployer generally agrees with the Petitioner's unit contention, except
that it would exclude also the employees discussed hereinafter, whom
the Petitioner would include.
93 NLRB No. 215.