American Smelting and Refining Co.

National Labor Relations Board - Board Decisions

Feb 15, 1943

47 N.L.R.B. 631 (N.L.R.B. 1943)

In the Matter of AMERICAN SMELTING AND REFINING COMPANY and EL
PASO METAL TRADES COUNCIL, 'AFFILIATED WITH THE METAL TRADES
DEPARTMENT OF THE AMERICAN FEDERATION OF LABOR and INTERNA-
TIONAL UNION OF MINE, MILL AND SMELTER WORKERS, FOR ITSELF AND
FOR ITS LOCAL 509 and OFFICE EMPLOYEES LOCAL UNION #23256
Cases Nos. R-4735 and R-4736.-Decided February 15, 1943
-Jurisdiction : mining and smelting industry.
Investigation and Certification of Representatives : existence of question : in,,
consolidated proceeding, company refused recognition as to one appropriate
unit because of alleged existing contract, and refused recognition as to second
unit until Board certified union ; contract for one year and of indefinite duration
thereafter in absence of 30 day notice of termination, held no bar, when con-
tracting union gave notice-to amend 30 days before expiration of original term;
election necessary.
Units Appropriate for Collective Bargaining : in consolidated proceeding, fol-
lowing units held appropriate : (1) all production and maintenance employees
at El Paso plant, with specified exclusions ; stipulation as to ; (2) all clerical,
stenographic, and office employees at the El Paso plant, with specified inclusions
and exclusions.
Kemp, Smith, Goggin c White, by Messrs. J. M. Goggin, T. J.
Woodside; R. D. Bradford, and N. A. Ferguson, all of El Paso, Tex.,
for the Company.
Messrs: Silverio Alva, of Smelterton, Tex., L. H. Hendricks, and
W. H. Anderson, both of El Paso, Tex., for the Metal Trades.
Messrs. Jess Nichols, Caferino Anchondo, and Humberto Silex, all
of El Paso, Tex., and George F., Knott, of Safford, Ariz., for the Mine
Workers.
Mr. William J. Moran, of El Paso, Tex., for the Bricklayers.
Mr. H. T. Fisk, of El Paso, Tex., for Local #23256.
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND
DIRECTION OF-ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by the International Union of Mine, Mill
and-Smelter Workers, Local-509; herein called the Mine Workers, and
47 N. L. R.,B., No. 85.
631
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Office Employees Local Union #23256, herein called Local
#23256, alleging that questions affecting commerce had arisen con-
cerning the representation of employees of American Smelting and
Refining Company , El, Paso, ,Texas; herein called the Company, the
National Labor Relations Board thereafter consolidated the two cases
and provided for an appropriate hearing upon due notice before Bliss
Daffan, Trial Examiner. . Said hearing was held at El Paso, Texas,
- on January 7, 1943. The Company, the Mine Workers, the El Paso
Metal Trades Council, affiliated with the Metal Trades Department of
the American Federation of Labor, herein called the Metal Trades,
and Local #23256, appeared , participated , and were afforded full
opportunity to be heard , to examine and cross -examine witnesses, and
to introduce evidence bearing on the issues . Bricklayers , Masons &
Plasterers International Union of America, herein called the Brick-
layers also appeared at the hearing . ^ At the beginning of the hearing,
all parties stipulated that the Bricklayers employed by" the Company
should be excluded from any bargaining unit or units which the Board
finds appropriate ,' for the reason that the bricklayers are covered by an
existing agreement between the Bricklayers and the Company. The
Bricklayers did not participate in the hearing thereafter . The Trial
Examiner 's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. Briefs were filed by the Company and by the
Mine Workers, which the Board has duly considered.
Upon the entire record in the case, the Board makes the following:
I
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY' -
American Smelting and Refining Company is a New Jersey corpora-
tion with its principal office in New York City , and is authorized, to
do business in the State of Texas. The Company owns and operates,
directly or through subsidiaries , about 30 smelting and refining plants
and about 18 mines in the United States, Mexico, and South America.
One of the smelting plants owned and operated by the Company is
'located in the county of El Paso, Texas. This plant herein called the
El Paso plant , which is the only operation involved herein, employs
approximately 600 employees and is engaged in smelting copper and
lead ores and concentrates . Approximately 95 percent of the raw
materials used by the El Paso plant is-shipped to said plant from
points outside the State of Texas , and approximately 100 percent of
the copper and lead bullion produced there is shipped from said .plant
to States other than the State of Texas. During 1942 1 23,029 tons of
copper, valued at approximately $5,376,549, and 52,189 tons of lead
AMERICAN SMELTING ' AND REFINING COMPANY 633
bullion valued at approximately $6,738,660, were produced at the El
Paso plant. '
We find that the Company is en ;aged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
El Paso Metal Trades Council, affiliated with the Metal Trades
Department of the American Federation of Labor, is a labor organiza-
tion, admitting to membership employees of the Company.
International Union of Mine, Mill and Smelter Workers, Local 509,
affiliated with the Congress of Industrial Organizations, is a labor
organization, admitting to membership employees of the Company.
Office Employees Local Union #23256, affiliated with the American
Federation of Labor, is a labor organization, admitting to membership
employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
A. Production and maintenance unit
On about November 5, 1942, the Mine Workers advised the Company
that it represented a majority of the production and maintenance
employees at the El Paso plant and requested the'\Company to recog-
nize it'as their bargaining agent. The Company refused to grant such
recognition upon the ground that it had an existing contract with the
Metal Trades covering the same employees.
The contract was executed on December 1, 1941. By its terms, it
was to remain-in effect until December 1, 1942, and indefinitely there-
after,. subject to termination by either, party on 30 days' notice.
Shortly before November 1, 1942, the Metal Trades notified the Com-
pany that it wished to renegotiate and amend the contract. In view
of these circumstances, we find that the contract is no bar to this
proceeding.
A statement of the Field Examiner, introduced in evidence at the
hearing, indicates that the Mine Workers represents a substantial
number of employees in the unit hereinafter found appropriate.
B. Office unit
In the latter part of November 1942, Local #23256 notified the
Company that it represented 'a majority of the Company' s office em-
i The Field Examiner reported that the Mine workers submitted 277 authorization cards,
238 of which bore the apparently genuine signatures of persons whose names appeared
on the Company 's pay roll for the last half of October 1942. This pay roll contained
579 names , approximately 540 being in the appropriate unit. The Metal Trades submitted
its contract to support its claim to representation and also submitted 264 authorization
cards, 188 of which bear apparently genuine signatures of persons whose names appeared
on the Company 's pay roll . for the last half of October 1942.
634 D,E.CIatOfVS OF NATIONAL LABOR ' RELATLONS BOARD
ployees and requested that the Company recognize, it as their bargain-
ing agent. The Company refused to grant such recognition unless and
until the local obtained certification by the Board.
The statement of the Field Examiner indicates that Local #23256
represents a substantial number of employees in the unit hereinafter
found appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of the production and maintenance employees and
of the office employees of the Company within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
A. Production and maintenance unit
In accordance with the stipulation of all parties, we find' that all
production and maintenance employees of the Company at its El Paso
plant, excluding bricklayers and those employed in,executive , admin-
istrative, technical, or professional capacities," constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
B. Ogee unit
With respect to the office employees, the Company and Local #23256
are agreed that a unit, consisting of all clerical, stenographic, and office
employees, excluding supervisory employees with the right to hire
and discharge, is appropriate.4 The parties disagree, however, as to
whether or not the following, all of whom the Union would include
and the Company would exclude, should be in the appropriate unit:
Lyell V. Deaner, weighmaster. The Company contends that Deaner
should be excluded because his duties are important and confidential
in nature. His duties consist of weighing all incoming ores, flux,
2 Local #23256 submitted 17 authorization cards, 16 of which bore the apparently
genuine signatures of persons whose names appeared on the Company ' s pay roll for the
last half of October 1942. There were 26 persons on the Company 's pay roll in the unit
herein found appropriate.
3 The parties agreed at the hearing that the exclusions encompass the following classifica-'
tions : foremen , assistant foremen , whose duties are entirely supervisory , professional en-
gineers , metallurgists , chemists, assayers, secretaries , clerks , accountants , auditors, and
watchmen:
4 The Company and Local # 23256 agreed at the hearing that the following should be
excluded : superintendent ( T. J. Woodside ) ; assistant superintendents ( Morris V. Andre,
Frank W. Archibald , Henry S. Bagley , Arthur A. Collins , Ernest Huse , R. L. Hennebach,,
Ben D. Robert, and Roscoe Teals , Ji ) ; diaftsman ( William it. Cook ) ; manager (R. D.
Bradford ) ; warehouseman and purchasing agent ( Frank A. Corbin ) ; safety and employ-
ment director ( W. C. Cunningham) ; ! plant engineer ( Joseph W . English ) ; manager's
secretary ( Emily G. Hargraves ) ; chief clerk ( N. A. Ferguson ) ; assistant chief clerk
(Walter L. Wulfjen ) ; secretary of agricultural research department (Marjorie Miles) ;
chief settlement clerk and assistant ore buyer ( R. L. Regsly ) ; chief stenographer and
secretary ( George R. Spencer ) ; power engineer ( S. N. Westerfield). I
' AMERICAN SMELTING AND ' REFINING COMPANY 635
acids, and'other raw materials. Payments are made to parties selling
to the Company on the basis of his weight figures. He works in a scale
house some distance from the-office. He keeps a freight record, tran-
scribing it from his scale tickets. His salary is comparable to that of
office employees who the Company agrees should be included. 'We
find that his duties are not of such a confidential nature, particularly
as to the Company's labor relations, as to warrant his exclusion:
Accordingly, we shall include him in the unit.
Thomas S. Duff, metallurgical bookkeeper. The Company contends
that Duff's position is one of trust and confidence and that he should '
be excluded for that reason. He is in charge of the Company's records
of metals purchased, produced, and shipped. He usually has an
assistant, but at present has none. He has no power to hire or dis-
charge. We find that his duties are not of such a confidential nature
as to warrant his exclusion. We shall include him in the unit.
Marguerite Ehart, file clerk and stenographer. The Company con-
tends that her position is a confidential one. Her regular duties con-
sist of sorting and filing all letter correspondence and acting as a
receptionist to persons calling at the office of the Company. She has
charge of the confidential files of the Company and is the only office
employee other than the chief clerk, who is excluded by agreement;
and the executives, who has access to these files. In addition, she often
substitutes for the manager's private secretary, who is also excluded
by agreement, taking dictation and performing the other duties of a
private secretary. This employee is in a position to know 'much of
the Company's confidential business pertaining to -labor relations.
We find that her duties are sufficiently confidential to warrant her
exclusion. We shall exclude her from the unit"
Hiram T. Fisk, chief timekeeper. The Company contends that
Fisk is a supervisory employee and for that reason seeks to exclude
him. Fisk works at a considerable distance from the main office
and has three or four assistants working under him. He is considered
by the Company as the head of a department and confers with the
management, along with other admittedly supervisory employees, on
management questions. While Fisk does not have the authority to
hire or discharge, his recommendations, in this regard are' given weight
by the Company. We find that Fisk is a supervisory employee. We
shall, therefore, exclude him from the unit.
Lemoyne M. Howard, financial bookkeeper. Howard is an account-
ant and renders accounts as to costs and plant earnings. The Com-
pany contends that he occupies a supervisory and confidential position.
Ordinarily he has an assistant, though he does not have one at the
present time. He has no power to hire or discharge but can make
recommendations with reference to the employment of his assistant.
636' DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
i
His duties are in the same category as Duff's, the metallurgical book-
keeper, whom we have included in the unit. We find that his duties
are not of such a supervisory or confidential nature as to warrant his
exclusion. We shall include Howard in the unit. -
Alfred S. Kaler, warehouse clerk and assistant -purchasing agent.
The Company contends that Kaler occupies a supervisory position
and should therefore be excluded. Iii the absence of the purchasing
agent, Kaler performs his duties, which are exclusively supervisory.
Since much of the purchasing agent's time is now spent in performing
other duties, most of Kaler's time is spent substituting for him. In
this capacity he supervises the work of the stockroom clerk and the
storeroom clerk. Although he has no authority to hire or discharge,
he may recommend with reference to the employment of the clerks
who assist him. We believe that Kaler falls into the category of
supervisory employees. We shall therefore exclude him.
Andrew Leibert, assistant safety and, employment director. The,
Company contends that Leibert, should be excluded on the ground
that he is a supervisory employee. Leibert contacts applicants at
the United States Employment Office and selects those whom the
Company desires to employ. He is in charge of personnel and
safety records. We find that this employee exercises supervisory
and confidential functions which warrant his - exclusion. - We shall
exclude him from the unit.
C. M. Rogers, cashier. The Company contends that Rogers is a
confidential employee and asks his exclusion on that ground. Rogers
signs and distributes salary checks, signs checks for the entire pay
roll and for any other- expenses of the plant. He keeps the wage,
hour, and insurance records of all salaried employees'and is in charge
of the petty cash on hand in the office. We find that Rogers' duties
are sufficiently confidential to warrant his exclusion. We shall
therefore, exclude him' from the unit. -
Ani K. Storc/i, hospital clerk and stenographer. The Company
contends that Storch should be excluded because she occupies a
position of confidence and because, her work is divorced from that
of the other office employees. Storch acts as secretary to the com-
pany doctor. She contacts employees required to take physical
examinations, and gathers and keeps health records on all employees
so examined. Her hours are different from those of the office em-
ployees and she is located in the hospital, apart from the office.
She is carried on the regular office pay roll. - In obtaining infor-
mation for, her records, she asks questions which are set out on
forms furnished her by the Company. We find that her duties are
of such a confidential nature as to warrant her exclusion. Con-
sequently, we shall exclude her from the unit.
AMERICAN SMELTING AND REFINING COMPANY' 637
We find that all clerical, stenographic, and office employees of
the Company at its El Paso plant, including the weighmaster,
metallurgical bookkeeper, and the financial bookkeeper, but exclud-
ing the chief timekeeper, file clerk, and stenographer; warehouse
clerk and 'assistant purchasing agent, assistant safety and employ-
ment director, cashier, hospital clerk and stenographer, superin-
tendent, assistant superintendents, draftsman, manager, warehouse-
man and purchasing agent, safety and employment director, plant
engineer, manager's secretary, chief clerk, assistant chief clerk,
secretary of agricultural research department, chief settlement clerk
and :assistant ore buyer, chief stenographer and secretary, power
engineer, and all supervisory employees with the right to hire and
discharge, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the employ-
ees in the appropriate units who were employed during the pay-roll
period immediately preceding the date of the Direction of Elections
herein, subject to the limitations and' additions 'set forth in the
Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with American Smelt-
ing and Refining Company, El Paso plant, elections 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 super-
vision of the Regional Director for the Sixteenth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, of said Rules and Regulations,
among the employees in the' units found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including any such employees
who did not work during said pay-roll period because they were ill or
Lon 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 any who have since quit or been discharged
,638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for- cause, (1) to determine whether the employees in the production
and maintenance unit desire to be represented by El Paso Metal
Trades Council, affiliated with the Metal Trades Department of the
American Federation of Labor, or by International Union of Mine,
Mill and Smelter Workers, Local 509, , affiliated with the Congress of
Industrial Organizations, for the purposes of collective bargaining,
or by neither; and (2) to determine whether or not the employees in
the office unit , desire to be represented by Office Employees Local
Union #23256 for the purposes of collective bargaining.
0