American Smelting & Refining Co.

National Labor Relations Board - Board Decisions

Jul 27, 1945

62 N.L.R.B. 1470 (N.L.R.B. 1945)

In the Matter of AMERICAN SMELTING & REFINING COMPANY and COPPER
EMPLOYEES' ASSOCIATION, INC.
Case No. 5-R-1894.-Decided July 27, 1945
Mr. Paul M. Higinbothom, of Baltimore, Md., for the Company.
Mr. C. F. Sanderson, of Baltimore, Md., for the C. E. A.
Mr. William T. Moriarity, of Baltimore, Md., for the C. I. O.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Copper Employees' Association, Inc.,
herein called the C. E. A., alleging that a question affecting commerce had
arisen concrning the representation of employees of the American Smelting
& Refining Company, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon clue notice
before Earle K. Shawe, Trial Examiner. Said hearing was held at Balti-
more, Maryland, on May 15, 1945. The Company, the C. E. A., and Inter-
national Union of Mine, Mill and Smelter Workers, C. I. 0., herein called
the C. I. 0., 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 Examiner'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 inaks the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
American Smelting & Refining Company, a New Jersey corporation,
with its principal office in New York City, operates directly and through
its subsidiaries 30 smelting and refining plants and 18 mines located
throughout the United States, Mexico, and South America. Only the
62 N. L. R. B., No. 204.
1470
AMERICAN SMELTING & REFINING COMPANY 1471
Company's Baltimore, Maryland, smelting and refining plant is involved
in this proceeding. Substantially all the raw materials used at the Com-
pany's Baltimore plant are shipped from points outside the State of Mary-
land. The Company produces monthly, at its Baltimore plant, 16,000 tons
of refined copper, of which 95 percent is shipped to points outside the State
of Maryland.
The Company admits, and we find, that it is engaged in commerce within
the meaning of the National Labor Relations Act.
If. THE ORGANIZATIONS INVOLVED
Copper Employees' Association, Inc., unaffiliated, is a labor organiza-
tion admitting to membership employees of the Company.
International Union of Mine, Mill and Smelter Workers, affiliated with
the Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 28, 1945, the C. E. A. advised the Company that it repre-
sented a majority of certain of the Company's employees at its Baltimore
plant and wished to be recognized as their exclusive representative. On the
same date the Company replied that, since it was operating under a current
collective bargaining agreement with the C. I. 0., it could not recognize
the C. E. A.
In November 1943, as a result of a consent election held under the
auspices of the Board, the C. I. O. was certified as the sole collective bar-
gaining representative for the Company's employees in the unit hereinafter
found appropriate. Sometime in 1944, the C. I. O. entered into a contract
with the Company,' which provided, in part, as follows :
This Agreement is to be considered effective as of May 1, 1944,
and is to continue for a period of one year when it automatically
renews itself and continues in full force and effect for a further period
of one year, unless written notice is given by either party to the Agree-
ment not less than thirty days prior to the current expiration date
that changes are desired in any one or more provisions of the Agree-
ment ....
By letter dated March 29, 1945, the C. I. O. informed the Company
that it wished to make certain changes in the terms and conditions of the
contract prior to its renewal . On April 3, 1945, the Company replied, in
part , as follows :
The present contract in effect between the Union [C. I. 0.] and
the Company contains a provision that it automatically renews itself
1 The C 1 0 made the agreement "for itself and in behalf of its local #625."
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a further period of one year unless written notice is given by either
party to the agrement not less than thirty days prior to April 30, 1945.
Your notice of changes and additions was not received by either Mr.
Shepard or myself until April 2, 1945.
We, therefore, consider that the contract dated May 1, 1944, auto-
matically renewed itself because of lack of proper notice to the contrary,
and we now consider that the original contract is in full force and effect -
until April 30, 1946....
Neither the Company nor the C. I. O. claims that the contract precludes
a present determination of representatives.` However, the Company con-
tends that, if either union is selected by the employees as their exclusive
representative, it should be bound by the contract, which the Company
claims has been automatically renewed.
In connection with a similar issue raised in the comparatively recent
Wilson case,' which we reaffirm, the Board held as follows:
The Company, while not insisting that the contract is a bar to the
present representation proceeding, contends nevertheless, that the
Board should rule that, if the C. I. O. is designated as the bargaining
agent, its agency during the unexpired term of the contract (claimed
by the Company to be still in effect through operation of the automatic
renewal) should be limited to the administration of that contract. We
find no merit to this contention Our only function in a proceeding of
this character is to ascertain and certify to the parties the name of the
bargaining representative, if any, that has been designated by the
employees in the appropriate unit; it is not our function to direct,
instruct, or limit that representative as to the manner in which it is
to exercise its bargaining agency.'
A statement of a Field Examiner for the Board, introduced into evidence
at the hearing, indicates that the C. E. A. represents a substantial number
of employees in the unit hereinafter found appropriate
We find that a question affecting commerce has arisen concerning the,
representation of employees of the Company, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
2 The contract is obviously not a bar, since the C. E A. apprised the Company of its claim to
representation prior to the effective date of the automatic renewal clause See Matter of American
Fork and Hoe Company, 57 N L. R B. 1072
8 Matter of Wilson Packing and Rubber Company , 51 N L R . B. 910.
' See also Matter of Central Illinois Light Company, 60 N L R B 1217, and Matter of Chrysler
Corp, 13 N L R B 1303
5 The Field Examiner reported that the C . E. A. submitted 367 authorization cards , of which 348
were dated between January and April 1945 and 19 were undated He also reported that there were
approximately 830 emploees in the alleged appropriate unit
The C 1 0 relies on its 1944 contr,ct with the Company as evidence of its interest in this pro-
cecdmg
AMERICAN SMELTING & REFINING COMPANY 1473
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties, that all produc-
tion, maintenance , and cafeteria employees working at the Company's
Baltimore , Maryland, plant, excluding all guards and watchmen, laboratory
employees, boiler engineers and water tenders, office clericals and depart-
ment clerks, all supervisory employees of the rank of subforeman and above,
and all other supervisory employees with authority to ..hire, promote, dis-
charge, 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 employees in
the appropriate unit who were employed during the pay-roll period immedi-
ately 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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to,ascertain representatives
for the purposes of collective bargaining with American Smelting & Refin-
ing Company, Baltimore, Maryland, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) clays from
the date of this Direction under the direction and supervision of the
Regional Director for the Fifth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sections
10 and 11, 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, mchicl-
ing employees who did not work during the 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 any 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 or not they desire to be represented by
Copper Employees' Association, Inc., or by International Union of Mine,
Mill and Smelter Workers, C. I. 0., for the purposes of collective bargain-
ing, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above Deci-
sion and Direcfion of Election.