International Smelting and Refining Co.

National Labor Relations Board - Board Decisions

Jul 20, 1953

106 N.L.R.B. 223 (N.L.R.B. 1953)

INTERNATIONAL SMELTING AND REFINING COMPANY 223
The record discloses that the machinists and powerhouse
employees have been represented as part of the production
and maintenance unit since 1936. Because of the long bargaining
history of their inclusion in an overall unit and because other
factors warranting their severance are lacking, 14 I would also
dismiss the petitions in Cases Nos . 14-RC-2203 and 14-RC-
2213.
iSee my dissenting opinion in W. C. Hamilton and Sons, 104 NLRB 627.
INTERNATIONAL SMELTING AND REFINING COMPANY,
RARITAN COPPER WORKS and UNITED STEELWORKERS
OF AMERICA, CIO, Petitioner. Case No. 4-RC-1981. July
20, 1953
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 W. Draper
Lewis , Jr., 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 [Members Houston , Styles, and
Peterson].
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 organizations involved claim to representcer-
tain employees of the Employer.'
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act.
4. The employees involved in the instant case are employed
at the Employer ' s Perth Amboy, New Jersey , plant , where the
Employer is engaged in the smelting and refining of copper and
other nonferrous metals . The Petitioner seeks to represent a
unit of all hourly paid production and maintenance employees at
the Employer ' s plant, excluding all salaried employees and all
employees and their successors on an exempt list compiled by
the Employer . Smelter Workers agrees that this constitutes an
appropriate unit but would include in it salaried plant clericals,
if any . MESA contends that the appropriate unit should include
all salaried employees who are covered by its present contract
with the Employer, in addition to the hourly paid production and
maintenance employees , but agrees to the exclusion of employ-
1Local 17, Mechanics Educational Society of America, hereinafter referred to as MESA,
intervened on the basis of a current contractual interest International Union of Mine,
Mill, and Smelter Workers, hereinafter referred to as Smelter Workers, intervened on
the basis of a showing of interest.
106 NLRB No 45.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees on the exempt list . The Employer takes no position as to the
appropriate unit.
The employees in the disputed salaried group include clerical
employees working in various offices throughout the plant,
chemists working in the control laboratory , draftsmen, and 3
drivers . Since 1938 all these employees have been bargained
for in the same unit with the production and maintenance em-
ployees by MESA and its predecessors . There have been 2
consent elections held in the contract unit during this period.
There is no bargaining history prior to 1938 for any of the
employees in the plant. MESA contends that the 15-year
bargaining history for the contract unit should preclude the
establishment of any other unit at this time. Although the Board
frequently considers bargaining history as a factor in its unit
determinations , it is not conclusive when other considerations
are also present.'
Clerical employees: There are several clerical classifica-
tions employed throughout the plant , including general clerk,
metallurgical clerk , senior clerks, intermediate clerks, clerk-
stenographers , and clerk - typists.3 All clericals are under the
ultimate supervigion of the chief clerk , who assigns them to the
various offices , promotes, transfers , discharges , and disci-
plines them , and is generally responsible for their work. In
addition , clericals are directly supervised by an intermediate
supervisor , who directs their day - to-day activity. The clericals
and other salaried employees are paid a monthly rate and
receive their pay every other week in contrast to the production
and maintenance employees who are paid an hourly rate and
receive their pay weekly . All salaried employees receive more
holidays than do the hourly paid employees and have a different
vacation system and different disability benefits . All salaried
employees receive paid sick leave while production and main-
tenance employees do not . Seniority in the plant is determined
on a departmental basis , and for this purpose all clericals are
considered tobe in the same department . Vacancies in any office
are posted in all offices and may be bid for by clericals in any
office.
Variations in the duties and working conditions of the clericals
are more dependent upon the office in which they are located
than they are upon their individual classifications . Accordingly,
we shall consider separately the clericals in each office.
The main office is located in the main office building outside
the plant gates. Clericals employed in this office compile and
maintain the Employer ' s production and accounting records and
materials sent in from other offices throughout the plant. They
are directly supervised by the chief accountant , whc is respon-
sible to the chief clerk and supervises no other employees.
These clericals have no contact with production and mainte-
2 National Cash Register Company, 95 NLRB 27; Kohler Company, 93 NLRB 398
3 MESA's contract indicates that there is also a messenger classification . However, the
record is silent as to the duties , location, and supervision of this classification, nor does
it indicate that messengers are in fact employed Accordingly, we will make no deter-
mination as to the unit placement of messengers.
INTERNATIONAL SMELTING AND REFINING COMPANY 225
nance employees and only a limited amount of contact with other
clericals in the plant . It is clear that these employees are office
clericals and we will exclude them from the unit.4
The time office is located adjacent to the main office outside
the plant gates . The clericals in this office keep all time records
and make up the plant payrolls. They work from records sent in
from other plant offices . They are directly supervised by the
chief timekeeper , who is responsible to the chief clerk and
supervises no other employees . They have no contact with the
hourly rated employees and only occasional contact with the
clericals who keep time records in the plant offices . We find
that these employees are also office clericals and we will
exclude them.
There is 1 clerk-stenographer in the research laboratory,
and there are 3 clerical employees in the main laboratory.
These employees are responsible to the chief clerk but are
also immediately supervised by the heads of their departments,
who also supervise nonclerical employees. In each instance the
other employees in the department with whom they work are
salaried employees who are either on the exempt list, in the
case of the research laboratory, or who are excluded from the
production and maintenance unit by this Decision, in the case
of the main laboratory. These employees have no contact with
hourly paid production and maintenance employees. Accordingly
we find that they have no interests in common with the produc-
tion and maintenance employees and will exclude them from the
unit.
There remains for consideration the status of the clericals in
various production departments , located inside the plant gates,
including the storehouse , the shipping department, the machine
shop, the tankhouse, the power department, and the electro-
sheet department . All these clericals , while under the general
supervision of the chief clerk, are subject to the direction of the
supervisor in charge of the department to which they are as-
signed , who in each case also supervises the production and
maintenance employees attached to the department. These
employees keep production, inventory, and accounting records
both for departmental purposes and to be forwarded to the main
office . Some of the clericals in each office also keep time
records for cost accounting and for payroll purposes, which
they forward to the time office. In each case they work in an
enclosed office space separated from the area in which the
hourly paid employees in the department work. They have
occasion to go outside the offices and contact hourly paid
employees in compiling data and also contact clericals in the
main and time offices in the course of their duties. One or two
of the clericals in the storehouse work part of their time outside
the storehouse office together with hourly paid employees. All
these departments are located inside the plant gate . While all
the clericals who work in these departments are salaried
employees, they punch time clocks as do the hourly paid
4National Cash Register Company, supra
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees.s Clerks from these departments are sometimes
permanently transferred to positions in the main and time
offices, but clerks are not transferred from those offices to
offices inside the plant gates except, infrequently, on a
temporary basis.
While these employees receive the same benefits as do the
other salaried employees, have some contact with main and
time office employees, may be permanently transferred to
those offices, are ultimately supervised by the chief clerk, and
perform some functions similar to those of the clericals in the
main and time offices, we find, nonetheless, that, by virtue of
their immediate supervision by supervisors of hourly paid
employees, their location adjacent to production and mainte-
nance areas , their contact with hourly paid employees, and
their performance of duties normally performed by plant
clericals, they have a closer community of interest with the
hourly paid employees than with the employees we have ex-
cluded, above, as office clericals." Accordingly, we will include
them in the unit.
The chemists in disputed categories are all employed in the
Employer's main or control laboratory.? Petitioner would
exclude these employees as salaried employees, while Smelter
Workers would exclude them as professionals. MESA would
include them in the unit because of their past inclusion in it.
The categories involved are senior chemists, associate chem-
ists, junior chemists, technicians, and chemists' helpers. High
school graduates with a background of high school chemistry
may come into the plant as chemists' helpers and progress to
higher classifications as they acquire experience. There is no
established program of on-the-job training. Other employees
have come into the laboratory at higher classifications with
experience in similar jobs or further training in technical
schools. One senior chemist has a college degree in chemistry.
The control laboratory performs tests on every type of material
which enters the plant to determine their chemical composition,
moisture content, and the presence of impurities. While a
number of the tests performed are routine, it is clear from the
record that this laboratory handles a great variety of work
calling for a high degree of technical competence. We find that
these employees are technical employees within the meaning
usually accorded that term by the Board, 8 and we will exclude
them from the unit-9
6Clericals working in buildings outside the plant gates do not punch time clocks.
6United Screw and Bolt Corporation, 89 NLRB 953. Bendix Aviation Corporation, 88
NLRB 1281.
7An exhibit introduced by MESA indicates that there is also a salaried chemist classified
as an associate chemist in the Silver Refinery. However, as no other evidence was intro-
duced relating to this employee, we will make no unit determination as to him.
8 United States Metals Refining Company, 93 NLRB 795; American Smelting and Refining
Company, 80 NLRB 68.
9 National Cash Register Company, supra
INTERNATIONAL SMELTING AND REFINING COMPANi 227
There are 2 senior draftsmen, 1 intermediate draftsman,
1 clerk-typist, and 1 expediter,10 employed in the Employer's
drafting department, whose unit placement is in dispute.
Petitioner and Smelter Workers would exclude them, while
MESA would include them. These employees are all supervised
by the chief draftsman, who is on the exempt list. The drafting
department is a part of the engineering office, which is located
in the main office building. Apart from the fact that the em-
ployees in the drafting department are salaried, occasionally
go into the plant, and work in the engineering office, where
plans are completed for maintenance or installation of equip-
ment, there is no other evidence pertaining to them in the
record. Accordingly, we will not decide whether they should be
included in the unit at this time, but will permit them to vote
subject to challenge.ll
The three salaried drivers, as to whose unit placement the
parties disagree, are supervised by the chief clerk. One of
them is an over-the-road driver, who takes shipments of. silver
and other precious metals to New York and Philadelphia. A
second drives a small truck locally, delivering and picking up
packages at the post office and freight station. The third drives
a company car, chauffeuring company officials and performing
miscellaneous local errands. When not driving, these drivers
help out in the storehouse. In view of their past inclusion in the
unit, the fact that no labor organization seeks to represent them
separately, and the fact that the three salaried drivers work
part of their time in contact with hourly paid employees, we will
include them in the unit. 12
We find that all employees of the Employer at its Raritan
Copper Works, including hourly paid employees,13 salaried
clerical employees in the storehouse, shipping department,
machine shop, tankhouse, power department, andelectro-sheet
department," salaried drivers and salaried employees in the
10 The MESA contract indicates several other salaried classifications in the drafting depart-
ment. However, the record indicates that there are no employees in these classifications.
11 If it appears on challenge that these employees are technical employees, they will
be excluded from the unit.
12 Swift & Company, 101 NLRB 33 There are also hourly paid truckdrivers under dif-
ferent supervision, who drive entirely within the plant, except for occasional trips to the
Perth Amboy city dump.
13There are two hourly paid employees in the plant hospital whom Petitioner would ex-
clude from the unit, while MESA and Smelter Workers would include them. As it appears
that these employees perform principally maintenance duties in the hospital, we will in-
clude them in the unit.
14Every year the Employer employs several high school students, who work as clerical
employees about 3 hours a day from March until their graduation in June and have some
expectation of permanent employment The Petitioner and Smelter Workers would exclude
the students from the unit, while the Employer and MESA take no position. These employees
are assigned to various offices throughout the plant. It is clear that the students who are as-
signed to the same plant offices as the salaried clericals whom we have included in the unit
perform the same duties and have the sameworking conditions as do those salaried clericals.
Therefore, we will include those students in the unit However, as it cannot be determined upon
the present record whether they have sufficient expectancy of future employment, as a group,
to render them eligible to vote, we will permit them to vote subject to challenge.
We will not include in the unit those student-employees who work in the same offices
as the salaried clericals whom we have excluded from the unit.
322615 0 - 54 - 16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drafting room, 15 but excluding all other salaried clerical
employees , chemists in the main laboratory , salaried truck-
drivers , employees listed on the Employer ' s exempt list and
their successors , guards, and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.)
L5 As already stated, the unit placement of these employees is subject to redetermination
in case of challenges to their ballots.
SUPERIOR SLEEPRITE CORPORATION and DIE & TOOL
MAKERS LODGE NO. 113 , INTERNATIONAL ASSOCIATION
OF MACHINISTS , Petitioner . Case No . 13-RC-3364. July
21, 1953
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 Richard B.
Simon , 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 [ Members Houston , Murdock , and Styles].
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce, ithin the meaning
of the Act.
2. The labor organizations involved claim to represent
employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act.
The Employer and the Intervenor , Mattress , Spring & Bedding
Workers Union , Local No . 185, AFL, contend , without merit,
that no question concerning representation was raised by the
Petitioner because it did not effectively demand recognition of
the Employer before filing its petition. The filing of the petition
itself constitutes a sufficient demand . ' Moreover , the Employer
stipulated that it would decline the Petitioner ' s demand if it
were made at the hearing.
The Employer further contends that the contract is a bar
when tied up with other facts in this case ." The contract in
question was made effective for a period of about 1 year, until
May 31, 1953 , and for yearly periods thereafter , unless either
party gave notice 60 days before expiration of a desire to
amend , change , or terminate the contract . By letter dated
1See American Fruit Growers , Inc., 101 NLRB 740.
106 NLRB No. 57.