American Smelting and Refining Co.

National Labor Relations Board - Board Decisions

Mar 8, 1946

66 N.L.R.B. 477 (N.L.R.B. 1946)

In the Matter of AMERICAN SMELTING AND REFINING COMPANY and
A. S. & R. FOREMEN'S ASSOCIATION
Case No. 4-P-1787.-Decided March 8, 1946
Mr. R. Worth Vaughan, of New York City, and Mr. K. Harms, of
Perth Amboy, N. J., for the Company.
Mr. Samuel Sladkus, of Perth Amboy, N. J., for the Union.
Mr. Seymour Cohen, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by A. S. & R. Foremen's Association,
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of American
Smelting and Refining Company, Perth Amboy, New Jersey, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Eugene M. Purver,
Trial Examiner. The hearing was held at Perth Amboy, New Jersey,
on August 9, 1945. The Company and the Union 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. At the hearing, the Company moved to dis-
miss the petition on the following grounds : (1) the foremen sought
to be included in the alleged appropriate unit are not "employees"
within the meaning of the National Labor Relations Act, and (2) the
unit sought is not appropriate because the foremen are a part of
management and the establishment of such a collective bargaining
unit would not effectuate the policies of the Act. The Trial Examiner
referred this motion to the Board. For reasons stated hereinafter,
the motion is hereby denied. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Inasmuch as all parties have taken advantage of the opportunity
66 N. L. R. B., No. 59.
477
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afforded them to file briefs, and these briefs fully discuss the issues,
the Company's request for oral argument is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANY
American Smelting and Refining Company, a New Jersey corpora-
tion, is engaged in the mining, smelting, and refining of non- ferrous
metals , particularly lead, copper, and zinc. It operates about 30
smelting and refining plants and about 18 mines in the United States,
Mexico, and South America, including the refinery at Perth Amboy,
New Jersey, with which we are here solely concerned.' The annual
gross value of the raw materials used at the Perth Amboy, New
Jersey, plant exceeds $40,000,000, of which 95 percent is shipped from
points outside the State of New Jersey. The gross annual business of
the Company at this plant exceeds $40,000,000. It was stipulated at
the hearing that substantially all the Company's products went either
directly or indirectly into the war effort.
'The Company concedes that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The A. S. & R. Foremen's Association is an independent labor
organization, admitting to membership supervisory employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
Tile Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its foremen and non-working
assistant foremen until the Union has been certified by the Board in
an appropriate unit.
In support of its motion to dismiss the petition, the Company
contends that the foremen sought to be included in the alleged appro-
priate unit are not "employees" within the meaning of the Act. In
the Young case,2 we recently had occasion to reaffirm our holding in
the Packard 3 and Soss 4 cases that foremen, in relation to their em-
i The Perth Amboy, New Jersey, plant includes a division known as the Federated
Metals Division , which is also involved in this proceeding.
2 See Matter of L. A. Young Spring & Ware Corpoiation , G5 N. L. It. B. 298, and
eases cited therein.
3Matter of Packand Motor Car Company, 61 N. L. It. B. 4, and 64 N. L. R. B. 1212
Matter of Sass Manufacturing Company , et al, 56 N. L. R B. 348.
AMERICAN SMELTING AND REFINING COMPANY 479
ployer, are "employees" within the meaning of the Act. In accord
with these prior determinations, we find that the foremen involved in
the present proceeding are "employees" within the meaning of the
Act.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.6
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 Union's petition, as amended at the hearing, seeks a unit includ-
ing all foremen, assistant general foremen, and non-working assistant
foremen who are on a salary basis, but excluding general foremen.
The Company makes no contention as to the composition of the unit,
but takes the position that a unit of foremen is inappropriate, both
because foremen are a part of management and because the establish-
ment of such a unit would not effectuate the policies of the Act.
The Company attempts to distinguish this case from the Packard
case, wherein we rejected contentions similar to those made by the
Company, on the grounds that the authority and responsibilities of
the foremen here concerned are much broader than those of the fore-
men in that case, so that we are not dealing here with mere "traffic
cops" of industry; that there are here no highly integrated production
units such as are found in mass production industries; and that there
is no need here for collective bargaining by supervisory employees as
was alleged in that case. But we held in the Young case, as we do
here, that the application of the Act to foremen does not depend upon
the variation in the duties and responsibilities of foremen from com-
pany to company or upon the type of industry involved, whether mass
production or non-mass production; and that, as "employees," fore-
men are entitled to be placed in some appropriate unit under Sec-
tion 9 (b).
The Company insists that the Union is not sufficiently independent
of the International Union of Mine, Mill & Smelter Workers, CIO,6
which represents the Company's production and maintenance em-
ployees-, to be eligible to represent the foremen here involved. The
evidence is undisputed that it was originally the intention of the
employees who formed the Union to affiliate with the Smelter
5 The Field Examiner reported that the Union submitted 66 authorization cards dated
May 1945 . There are approximately 89 employees in the appropriate unit,
0 $erein called the Smelter workers.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers, and that several of the Smelter Workers' representatives
attended several meetings held by such employees. Upon being in-
formed, however, that the Smelter Workers did not admit foremen
to membership, the employees went on to create the Union as an inde-
pendent and unaffiliated labor organization, with eligibility for mem-
bership limited to all salaried foremen of the Company below the
rank of general foremen. There is no showing that the Union is not
free to formulate its own policies, to decide its own course of action,
and to make its own collective bargaining contracts. Accordingly, we
find that the Union is an independent and unaffiliated labor organiza-
tion, admitting to membership exclusively all salaried foremen below
the rank of general foremen, at the Company's Perth Amboy, New
Jersey, plant.
We find, therefore, that all salaried foremen, assistant general fore-
men, and non-working assistant foremen employed by the Company
in its Perth Amboy, New Jersey, plant, excluding general foremen,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. TILE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were 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 Rela-
tions 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 representa-
tives for the purposes of collective bargaining with American Smelt-
ing and Refining Company, Perth Amboy, New Jersey, 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 Fourth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
AMERICAN SMELTING AND REFINING COMPANY 481
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 armed forces of the United States who present them-
selves 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 or
not they desire to be represented by A. S. & R. Foremen's Associa-
tion, for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.
686572-46-32