American Smelting and Refining Co.

National Labor Relations Board - Board Decisions

Feb 22, 1943

47 N.L.R.B. 871 (N.L.R.B. 1943)

In the Matter of AMERICAN SMELTING AND REFINING Co. and INTERNA-
TIONAL FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS & TECH-
NICIANS, C. I. O.
Case 'No. R-4848.-Decided February 2., 1943
Jurisdiction : smelting and refining industry.
Investigation and Certification of Representatives : existence of question : recog-
nition refused until majority status of petitioner in an appropriate unit was
determined by-Board; election necessary.
Unit Appropriate for Collective Bargaining : all office and laboratory employees
at one plant of company, including the telephone operator and Chemist and
Metallurgical Trainees, but with specified exclusions.
Mr. J. D. MacKenzie, of San Francisco, Calif., for the Company.
Gladstein, Grossman, Margolis and Sawyer, by Mr. Bertram Edises,
of Oakland, Calif., for the Union.
Mr. Robert Silagi, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition and an amended petition duly filed by the Inter-
national Federation of Architects, Engineers, Chemists & Technicians,
C. I. 0., herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
American Smelting and Refining Co., Selby, California, herein called
the Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Gerald P. Leicht, Trial
Examiner. Said hearing was held at San Francisco, California, on
February 2, 1943. The Company and the Union appeared, partici-
pated, and were afforded full opportunity'to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
47 N. L. R B., No. 109.
871
872 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American Smelting and Refining Co. is a New Jersey corporation,
having its principal place of business in New York City. The Com-
pany owns and operates, directly and through subsidiaries, about 30
smelting and refining plants and about 18 mines in the United States,
Mexico, and South America. At its plant in Selby, California, which
is the only plant involved in this proceeding, the Company engages in
the business of smelting-and refining lead. The ores and concentrates
treated at the Selby plant are of both domestic and foreign origin, and
the products produced, such as refined lead, sheet lead, and sulphuric
acid, are shipped in interstate commerce. Practically all of the Com-
pany's output goes into the war effort.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Federation of Architects, Engineers, Chemists & Tech-
nicians, affiliated with the Congress of Industrial Organizations, is a
labor organization, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On December 17, 1942, the Union wrote a letter to the Company
stating that it represented a majority of the employees in the unit
herein found appropriate at the Selby plant and requesting a meeting
to negotiate a collective bargaining agreement. This request was re-
newed in writing on December 23, and again by telephone shortly
thereafter. The Company did not reply to either letter, but stated in
answer to the request by telephone that it could not meet with the
Union at that time. At the hearing, the Company stated that It would
Ilot recognize the Union until its majority status in an appropriate
unit has been determined by the Board. I -
A statement of a Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the Union represents a sub
stantial number of employees in the unit. hereinafter .found appro-
priate.,
1 The Field Examiner reported that the Union submitted 17 cards, all of which bore
apparently genuine original signatures ; that they were dated as follows : 13 in November
1942, 3 in December 1942, and 1 undated ; that the names of 16 persons whose names ap-
peared on the cards were listed on the Company's pay roll of December 15, 1942, which
contained 39 persons in the unit alleged to be appropriate.
It was stipulated by the parties that the names of 2 persons appearing on the pay roll
were not within the appropriate unit, thereby making the Union showing of representation
16 out of 37.
AMERICAN SMELTING AND REFINING CO. 87,3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties agree that the unit shall be composed of all office and
laboratory workers at the Selby plant , excluding the chief clerk, metal-
lurgical bookkeeper and cashier , metallurgical bookkeeper and pay-
master , assistant chief clerk, supply agent , superintendent 's secretary,
mechanical superintendent and plant engineer , chief chemist, chief
ore assayer , chief bullion assayer, and the assistant chief chemist.
The Union seeks to include and the Company to exclude each of the
following classifications:
Telephone operator. The telephone operator divides her time al-
most",equally between operating a switchboard and routine typing.
She also operates a private line that runs between the Selby plant
and the general office in San Francisco . The Company contends that
because she has access to private and confidential conversations car-
ried on over this line she should be treated as a confidential employee
and excluded from the unit . The record discloses that her instruc-
tions are not tolisten in on any private calls, and should she do so,
she would be subject to discipline . Since her access to any confi-
dential information is extremely limited, we shall include the tele-
phone operator in the-unit.
Chief Clerk's Stenographer. The testimony adduced at the hear-
ing indicates that this employee spends about half of her time doing
secretarial work for the Chief Clerk , in the course of which she has
access to and works upon the personnel records and ratings of all
salaried employees . The correspondence and files to which she has
access contain confidential information of various sorts including in-
formation ' on labor relations . In view of the confidential nature of
her work we shall exclude her from the unit.
Chief Timekeeper . The Company contends that this employee
should be excluded from the unit on the ground that he is a super-
visory employee . He is the immediate supervisor of two time-
keepers and a distribution clerk . On certain days in the month when
the pay roll is being made up, he also supervises several clerks who
are "loaned " to him in order to get the work out on time . While he
does not have power to hire and discharge , his recommendations-on
promotions, changes, and the placing of new men carry weight. He is
responsible for the accuracy of the pay roll, timekeeping , and dis-
tribution of costs. He also trains new employees in their duties in
his department. We find that he is a supervisory employee, and
shall exclude him from the unit.
874 DECIISIONS . OF NATIONAL LABOR RELATIONS BOARD
Personnel Stenographer to -the Safety & Welfare and Employment
Department . The duties of this employee are to interview visitors,
to the plant , issue passes to, them, , and act as secretary to the _Per-,
sonnel Manager. She has access to the personnel records of hourly
paid employees and the medical examination records of all employees.
She also makes up the reports pertaining to unemployment records
and industrial accidents . A great deal of her work deals ' with in-
formation - that is confidential and is directly related to tie subject of
labor relations . Accordingly , we shall exclude her from the unit. '
Chemist and Metallurgist Trainees. ' The Company contends that
these employees , of 'whom there are two, should be excluded from the
unit because they are part of the "management, family." The record
clearly shows that they do substantially the same work in analyzing
ores, byproducts, and shipping products as do the other chemists in
the laboratory. Their hours of work are the same and their salaries
are, comparable to those of the other chemists . The trainees have no
supervisory authority whatever. The Company alleges that they are
hand-picked by the Director of Technical Personnel with the inter=
tion of being trained to become supervisory employees . ' However,'it
admits that promotion is dependent upon ability and other em-
ployees not so selected' have equal chances of ' promotion .'' Also,
trainees who are found not to possess supervisory qualities are' simply
retained as chemists . One of the trainees 'testified that it was his
understanding that he was hired and carried on the pay roll as a
chemist, and that the classification "Chemist and Metallurgist
Trainee" was entirely new to him. We find that the duties of these
employees are substantially the same as the ordinary, chemists, who
are included in the unit by agreement . Accordingly, we shall include
them in the unit.
We find that all office and laboratory employees of`the Company
at the Selby , California , plant, including the telephone operator and
Chemist and Metallurgical Trainees , but excluding the chief clerk,
metallurgical bookkeeper and cashier , metallurgical bookkeeper and
paymaster , assistant chief clerk , supply agent , superintendent's sec-
retary, mechanical superintendent and' plant engineer, chief chemist,
chief ore assayer, chief bullion assayer, assistant chief chemist, chief
timekeeper , ' chief clerk 's stenographer and personnel , 'stenographer
to the Safety & Welfare and Employment Department ,.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 question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
AMERICAN SMELTING AND REFINING CO. 875
ployees in the appropriate -unit who mere employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein,-'subject to= the limitations , and 'additions-, set forth' in the
Direction.-
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 Re-
lations Act, and pursualt 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 Co., Selby, California, 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 Twentieth 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 unit found appropriate 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 employees in the'arriied
forces of the United States who present themse''fves'in,'per'son' at• the'
polls, but' excluding those employees who have since quit or been
discharged for cause, to determine whether or not they desire to be'.
represented by International Federation of Architects, Engineers,
Chemists & Technicians, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining.
MR: Wm; M. LEISERSON took no part in the consideration 'of the
abo' e Decision and Direction of Election.