American Zinc Co.

National Labor Relations Board - Board Decisions

Feb 12, 1947

72 N.L.R.B. 540 (N.L.R.B. 1947)

In the Matter of AMERICAN ZINC COMPANY OF ILLINOIS, EMPLOYER
and INTERNATIONAL UNION OF MINE , MILL AND SMELTER WORKERS,
CIO, PETITIONER
Case No. 14-R-1496.-Decided February 12, 1947
Messrs. Henry Driemeyer, N. L. Allen and Milford Riggs, Jr., all of
East St. Louis, Ill., for the Company.
Mr. Joseph Verdu, of East St. Louis, Ill., for the International.
Mr. Elmer Adams, of Collinsville, Ill., for Local 860.
Mr. Florentino Fernandez, of East St. Louis, Ill., for Local 82.
Mrs. Platonia P. Kaldes, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at St.
Louis, Missouri, on August 21, 1946, before Keith W. Blinn, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. During the course of the
hearing the Employer moved to dismiss the proceeding on the ground
that under the principles enunciated in the Briggs-Indiana case,' the
contract to which the International Union is a party estops the Peti-
tioner from seeking to represent salaried employees. The motion was
referred to the Board. For the reasons hereinafter set forth, the
motion is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYE':
American Zinc Company of Illinois, a Maine corporation licensed
to do business in the State of Illinois, has its principal office at St.
Louis, Missouri, and a plant located at Fairmont City, Illinois. It is
a susbidiary of American Zinc, Lead and Smelting Company. At the
Fairmont City plant; which is the only plant involved in this pro-
ceeding, the Employer is engaged in smelting zinc concentrates.
1 Matter of Briggs -Indiana Corporation, 63 N. L R. B. 1270.
72 N. L. R. B., No. 102.
540
AMERICAN ZINC COMPANY OF ILLINOIS 541
During the year 1945, the Employer purchased raw materials and
supplies valued in excess of $500,000, of which approximately 50 per-
cent was purchased and shipped from points outside the State of
Illinois to its plant in the State of Illinois. During the same period,
the Employer sold finished products valued in excess of $500,000, of
which in excess of 50 percent was sold and shipped from its plant
in Illinois to points outside the State of Illinois.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, herein
called the International, is a labor organization affiliated with the
Congress of Industrial Organizations, claiming to represent employees
of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On July 27, 1942, the Employer and the International entered into
a collective bargaining agreement covering the Employer's produc-
tion and maintenance employees. The contract was signed by both
the International and 'its Local 82,2 and provided that it would con-
tinue in effect until May 31, 1943, and thereafter from year to year
unless the parties thereto began negotiations for a new agreement
60 days prior to the expiration date, and that the contract would
continue in effect during the period of negotiations if such period ex-
tended beyond the expiration date. It provided, further, that neither
the International nor its Local 82 would accept salaried employees
or foremen as members. The contract was renewed for 3 successive
years, and prior to May 31, 1946, the parties commenced negotiations
for a new agreement.
On or about May 15, 1946, the International initiated efforts to or-
ganize the Employer's salaried employees into a local union with the
intent of issuing a separate charter to such local once it was formed.
On June 16, 1946, the International wrote to the Employer requesting
recognition as the exclusive representative of a group of the Employ-
er's salaried employees. On June 26, 1946, the Employer replied,
stating that it would refuse to accord recognition to the International
for the reason that the then existing contract covering production
and maintenance workers, expressly provided that the International
would not accept salaried employees as members.
0
2 The full name of this Local, referred to herein as Local 82 , is Fairmont Smelter Workers,
Local No 82
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 20, 1946, the International filed the petition herein and
on August 6, 1946, it issued a charter to Fairmont Technical Workers,
Local No. 860, herein referred to as Local 860, as the organization
which would represent the group of salaried employees theretofore
organized if successful in these proceedings. At the hearing, the
International officials testified that Local 860 would be the contract-
ing party in any collective bargaining agreement covering salaried
employees which might hereafter materialize.
As appears from a stipulation of the parties executed subsequent
to the hearing, the Employer and the International and its Local 82
signed a new agreement on September 12, 1946, effective as of June 1,
1946, which provided, inter alia, that the contracting unions would not
accept for membership in Local 82 8 any salaried employees of the
Emplpyer.
The Employer urges that, under the principles enunciated in the
Briggs-Indiana case,4 the contract existing at the time the petition was
filed estopped the International from seeking to represent the salaried
employees. As we have noted, however, that contract has now been
terminated and has been replaced by a new agreement. Pursuant to
the latter agreement the International has contracted only that it will
not accept salaried employees as members of Local 82. As we have
noted, the International chartered Local 860 to represent the em-
ployees here involved. Under these circumstances, we find that the
existing contract is not a bar to a present determination of representa-
tives,-', and that it consequently is unnecessary for us to determine the
applicability of the principles enunciated in the Briggs-India'ta case.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
lv. TIIE APPROPRIATE UNIT
The Petitioner seeks a unit comprised of all employees of the
analytical laboratory and the sample room of the Employer at its
Fairmont City plant, excluding office and clerical employees and super-
visors. The Employer took no position with respect to the appropri-
ateness of the unit as a whole; it claimed, however, contrary to the
Petitioner's contention, that one Elmer Adams, an employee in the
sample department, is a supervisor and should be excluded from the
unit.
3 The prior agreement provided only that the signatory unions would not accept salaried
employees and foremen*as members In contrast to that general pledge, the new agreement
provides that the signatory unions would not accept salaried employees and foremen as
members in Local 82 -
Matter of Briggs-Indiana Corporation, 63 N L. R. B 1270.
Cf Matter of Inland Steel Company, 67 N. L R. B. 1053.
AMERICAN ZINC COMPANY OF ILLINOIS 543
Elmer Adams supervises the work of the three or four sample room
employees . While Adams performs manual work along with the
other employees and has no authority to hire or discharge , he is the
only supervisor present in the sample room and his recommendations
as to the discharge , discipline , or efficiency of the employees in that
department are accorded serious consideration by the Employer's per-
sonnel officials. Upon these facts , we find that Adams possesses super-
visory status within the Board's customary definition thereof. Accord-
ingly, we shall exclude him from the unit.
We find that all employees of the Employer 's analytical laboratory
and sample room at its Fairmont City, Illinois, plant, excluding office
and clerical employees , the supervisor of the sample room,e the Head
Chemist, the Chief Chemist' and all or any other supervisory em-
ployees 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.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with American Zinc Company of
Illinois, Fairmont City, Illinois, 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 Fourteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Sections
203.55 and 203.56, of National Labor Relations Board Rules and
Regulations-Series 4, among the employees in the unit found appro-
priate 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 employ-
ees 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 rein-
stated prior to the date of the election, to determine whether or not
they desire to be represented by Fairmont Technical Workers, Local
No. 860, of International Union of Mine, Mill and Smelter Workers,
CIO,s for the purposes of collective bargaining.
I Elmer Adams.
7 The parties agree that the Chief Chemist and the Head Chemist are supervisory em-
ployees and should be excluded from the unit
$The request of the Petitioner that it appear on the ballot as designated above is hereby
granted.
731242-47-vol 72 36