Barth Smelting and Refining Works, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1945

60 N.L.R.B. 1473 (N.L.R.B. 1945)

In the Matter of BARTH SMELTING AND REFINING WORKS, INC. and
INTERNATIONAL UNION OF MINE,. MILL AND SMELTER WORKERS,
C. I. O.
Case No. 2-R-5251.-Decided March 24,1945
Messrs. Otto N. Barth and Myron E. Whitehead, of Newark, N. J.,
for the Company.
Rothbard d Talisman, by Mr. Samuel L. Rothbard, of Newark,
N. J., and Mr. Edmund L. Rice, of Newark, N. J., for the C. I. O.
Mr. Frank P. Jennette, of New York City, for the A. F. L.
Mr. Joseph D. Handers, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed on December 14, 1944, by International
Union of Mine, Mill & Smelter Workers, affiliated with the Congress
of Industrial Organizations, herein called the C. I. 0., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Barth Smelting and Refining Works, Inc., herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before David H. Werther.
Trial Examiner. Said hearing was held at Newark, New Jersey, on
February 15, 1945. The Company, the C. I. 0., and International
Molders and Foundry Workers Union of North America, Local No. 40,1
affiliated with the American Federation of Labor, herein called the
A. F. L., appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were afforded an opportunity to file
briefs with the Board. -
Upon the entire record in the case, the Board makes the following :
1 The motion of the A F. L to intervene was granted by the Trial Examiner at the
commencement of the hearing.
60 N. L. R. B., No. 253. -
628563-45-vol. 60-94 1473
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. TIIA; BUSINESS OF TIIE COMPANY
Barth Smelting and Refining Works, Inc.i is a New Jersey corpora-
tion. The Company operates the plant involved in this proceeding at
Newark, New Jersey, where it is-engaged in the,production of copper
base ingots.- During the past 12 months, the Company used in its
manufacturing processes more than $1,000,000 worth of raw materials,
consisting principally of, copper, zinc, till, copper and brass scrap,
approximately 75 percent of which was shipped to its plant from
points outside the State of New Jersey. During the same period, the
Company shipped more than $1,000,000 worth of finished products,
.approximately 90 percent of which was slipped to points outside the
State of New Jersey.
The Company admits that its'operations affect commerce within
the meaning of the National Labor Relations Act, and we so find.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill & Smelter Workers,' affiliated
with the Congress of Industrial Organizations, is a labor. organization
admitting to membership employees of the Company.
International Moulders & Foundry Workers Union of North Amer-
ica, Local No. 40, affiliated with the American Federation of Labor,
is a labor organization admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 14, 1944, the Company and the A. F. L. entered into
a closed-shop collective bargaining agreement. Said agreement pro-
vided for continuance in effect until February 14, 1945, "and each
year thereafter unless thirty days (30) notice is given in writing by
either party . . . prior to any yearly expiration date." Neither of
the contracting parties gave notice of termination. On December 8,
1944, the C. I. O. wrote to the Company representing that a majority
of the employees in the 'Company's plant were now members of the
C. I. 0., and requesting a conference for the purpose of initiating col-
lective bargaining. By letter dated December 11, 1944, the Company
refused to recognize the C. I. O. as the exclusive bargaining repre-
sentative of its employees because of the existence of a contract, as
hereinabove noted, between it and the A. F. L. On December 14,
1944, the C. I. O. filed its petition herein.
The Company and the A. F. L. contend that their agreement, cou-
pled with the fact that neither party tendered notification of termina-
BARTH SMELTING AND REFINING WORKS, INC. . 1475
tion within the prescribed period of time, is a bar to a direction of
election at this time. In view of the timely communication to the
Company and the filing of the petition herein by the C. I. O. prior to
January 14, 1945, we find that the contract of February 14, 1944,
cannot operate as a bar to an immediate determination 'of repre-
sentatives?
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. O. represents a substantial number of
employees in the unit hereinafter found appropriate.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. TIIE APPROPRIATE UNIT
We find, in substantial agreement with the stipulation of the parties,
that all production and maintenance employees, including the ware-
house and sorting department employees and the gas truck operator,
but excluding office employees, watchmen, chemists, office cleaning
women, assistant superintendents, superintendent, and all or any other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, 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-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 Relations
2 See Hatter of Mill B, 7uc . 40 N L R I3 346
a
The Field Examiner reported that the C. I O. submitted 80 membership cards ; that
the names of 80 persons appearing on the cards were listed on the Company 's pay roil
of December 31, 1944 , which contained the names of 81 employees in the appropriate
unit; and that 77 of the cards were dated December 1944 and 3 of the cards were dated
January 1945.
The A . F L submitted no evidence of its representation , except the contract between
it and the Company.
"The unit herein is substantially the same as the unit established in the agreement
between the Company and the A F L , supra
1476 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Barth Smelting
and Refining Works, Inc., Newark, New Jersey, an election by secret
ballot shall be conducted as early as possible, but not later than sixty
(60) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Second Region, acting
in this matter as agefit for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately 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
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior
to the date ' of the election, to determine whether they desire to be
represented by International Union of Mine, Mill & Smelter Workers,
C. I. 0., or by International Moulders & Foundry Workers Union
of North America, Local 40, A. F. L., for the purposes of collective
bargaining , or by neither.