Phelps Dodge Copper Products Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1942

41 N.L.R.B. 973 (N.L.R.B. 1942)

In the Matter of PHELPS DODGE COPPER PRODUCTS CORP. and UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 441,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-3777.-Decided June 15, 1942
Jurisdiction : copper and brass products manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal of Company to accord union recognition ; election necessary.
Unit Appropriate for Collective Bargaining : all guards at Company's Elizabeth,
New Jersey, plant, excluding the chief guard and the three head guards,
-despite Company's contention that they are representatives of management,
and its further contention that because petition represents production em-
ployees it cannot also represent guards because of an assisted conflict in
interest.
Definitions : guards held to be employees within the meaning of the Act.
Mr. Charles F. Bailey, o f New York City, for the Company.
Mr. Samuel L. Rothbard, of Newark, N. J., for the Union.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Local No. 441, United Electrical, Radio
& Machine Workers of America, affiliated with the Congress of Indus-
trial Organizations, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Phelps Dodge Copper Products Corp., Elizabeth, New
Jersey, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Richard J.
Hickey, Trial Examiner. Said hearing was held at Union, New Jer-
sey, on April 27, 1942.' The Company and the Union appeared, par-
ticipated, and 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. Thereafter, the
Company filed a brief, which the Board has considered. .
Upon the entire record in the case, the Board makes the following :
41 N. L. R. B., No. 175..
973
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Phelps Dodge Copper Products Corp. is a Delaware corporation
having a number of plants throughout the United States. The only
plant involved in this proceeding is located in Elizabeth, New Jersey,
and is known as the Bayway plant, where the Company is engaged in
the manufacture, sale, and distribution of copper and brass wire, cable,
tubing, and related products. The Company in the course of its busi-
ness annually purchases raw materials valued in excess of $100,000,
more than 80 percent of which is shipped from points outside the State
of New Jersey to the Bayway plant at Elizabeth, New Jersey. During
a typical yearly period, the Company manufactures and sells products
valued well in excess of $100,000, 75 percent in value of which is
shipped from the Bayway plant to points outside the State of New
Jersey.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Local No. 441, United Electrical, Radio, & Machine Workers of
America, is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
Shortly,before the filing of the petition herein, the Union requested
the Company to, recognize it as the sole collective bargaining agent on
behalf of the Company's guards at its Bayway plant. The Company
refused to accord the Union such recognition upon the ground that
the Union was the collective bargaining agent for the production
workers in the plant and that the guards should not have the same
representative as the production workers. Thereafter, the Union and
the Company attempted to arrive at an amicable `agreement ' which'
apparently contemplated setting up a separate local for the guards.
No agreement was reached, however, and the Union proceeded with
its petition.
A statement of the Regional Director introduced in evidence shows
that the Union-represents a substantial number of employees in the:
unit hereinafter found to be appropriate.-
i The Regional Director reported that the Union submitted 21 signed authorization cards
of which 14 were dated September 1941, 3 dated October 1941, 1 dated November 1941,
and 3 undated , and that of the 21 signatures, 17 appeared to be the names of persons
whose names axe on the Company ' s pay roll of November 13, 1941 In addition 38 appli-
PHELPS DODGE COPPER PRODUCTS CORP. 975
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 National Labor Rela-
tions Act. ,
IV. THE APPROPRIATE UNIT
The Union contends that the appropriate unit should consist of the
plant protection employees or guards, exclusive of the chief guard,
employed in the Company's plant at Elizabeth, New Jersey. The
Company contends that, because of the nature of the duties and re-
sponsibilities of the guards and because of their relation to the Com-
pany, they are a part of management, rather than employees' within
the meaning of the Act, and that therefore there can be no appropriate
unit for them. The Company also contends that inasmuch as the
Union is the certified representative of a unit consisting of the plant
production and maintenance employees, excluding guards,2 the Union
cannot also represent the guards because of an asserted conflict of in-
terests between the two groups. In support of this contention the
Company points to the history of bargaining between the parties as
showing that "guards should not join Local No. 441." With respect
to the composition of any unit, the Company argues that the three head
guards, as well as the chief guard, should be excluded as supervisory
employees.
The plant protection force is organized under the supervision of a
chief guard who is assisted by three head guards. Since the fall of
1940 the guards, have been equipped with uniforms provided by the
Company and are now furnished arms in the performance of their
work. Their duties are to protect the Company property and the
property of the United States Government, and to preserve law and
order in the plant and in the vicinity of the plant.
The guards,work on gate duty, inspecting passes of employees and,
others who are entering or leaving the Company property, and keep
a record of visitors and vehicles that enter the plant. They also per-
form guard duties at designated locations within the Company prop-
erty, supervise the parking of automobiles and all traffic attendant
thereto, check- safety devices, report on safety hazards and mainte-,
nance where needed, and see that employees do not violate safety rules.,
cation cards similar in form to those presented to the Regional Director were presented
to the Trial Examiner for comparison of the signatures thereon with the signatures on
cancelled checks submitted by the Company in lieu of a pay roll. The Trial Examiner
reported that 32 of the names on the cards checked with the names submitted by the
Company. There are approximately 37 employees in the unit, hereinafter found to be
appropriate.
2 See Matter of Phelps Dodge Copper Products Corp. and United Electrical, Radio & Ma-
chine Workers of America, C. I. 0., 29 N L. R. B . 988, 30 N. L. R. B. 621. , The guards
were then known as watchmen.
976 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
In addition, the guards have the authority to require compliance on
the part of employees and others with shop regulations. One of their
important duties is to prevent sabotage and espionage, and to observe
individuals for the purpose of preventing the commission of sub-
versive acts.
The guards are divided into three shifts of 8 hours each. . They are
paid an hourly rate of 83 cents for the first 40 hours, with time and one
half for overtime. Due to a present shortage of guards, the regular
guards have generally worked about 10 hours overtime per week. On
occasions, the Company assigns production workers to guard duty.
- The head guards, in addition to the usual duties described above,
check upon the work of other guards. They have the power to recom-
mend hiring and discharging as well as the right to discharge any
guard found to be seriously at fault in the performance of his duties.
The head guards have charge of the time records of the other guards,
and are the persons to whom the other guards must present their
excuses for absence from work. In addition, the head guards trans-
mit to the other guards any, written instructions received from the
chief guard. Both the chief guard and the head guards work upon a
salary basis. -
The Company's contention that guards as a class are not employees
within the meaning of the Act but are representatives of management
cannot be sustained. Clearly the relationship between the -Company
and 'the guards is that of employer and employee. We find nothing
in'the duties of the guards set forth above to warrant a finding that
they may be denied the rights to self-organization and collective bar-
gaining guaranteed employees under the Act: We find that the
guards are employees within the meaning of Section 2 (3) of the Act
and•are entitled to the benefits of the Act.3
r The Company contends, further, that the Union may not represent
both a unit of guards and a unit of production and maintenance em=
ployees. But if the guards are employees within the meaning of the
Act, then obviously it is not for the Company or for the Board to.'
say'that they may not join unions of production workers or designate
such, unions to represent them for purposes of collective bargaining.
The Act guarantees all employees freedom of self-organization, and
the designation of bargaining representatives is left to "their own
choosing." Production employees may well exercise their right of
self-organization by excluding guards from their bargaining unit;
and in appropriate circumstances the Board has deemed the differ-
ences in function and interest of the two groups sufficient to exclude
See Matter of) Frigidaire Ditiision, General Motors Corporation and United Electrical,
Radio & -Machine"Workers of America (0.` I. 0 ), 39 N. L. R. B. 1108, and cases therein'
cited.
PHELPS DODGE COPPER PRODUCTS CORP. 977
guards from a unit of production employees.4 But neither the produc-
tion employees, nor the employer, nor the Board can deny the right
of the guards as employees to bargain in a unit appropriate for them
and to designate any representative they choose for the purpose. We
are of the opinion and find that the Company's guards constitute
an appropriate unit.
With respect to the three head guards, the record shows that they
have not only the right to recommend hiring and discharge, but
also have authority to discharge other guards under certain circum-
stances. They are also paid upon a basis different from that of the
ordinary guards. We find that the three head guards are supervisory
employees, and accordingly we shall exclude them from the unit.
We find that the guards employed by the Company at its Elizabeth
New Jersey, plant, excluding the chief guard and the three head
guards, 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 find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. The Union
requests that eligibility to vote be determined by the pay roll of April
4,, 1942, but gives no reasons for this request. The Company has
expressed a preference for the pay roll of April 25, 1942. We see
no reason for departing from our usual practice, and we shall there-
fore' direct that the employees eligible to vote in the- election shall be
those 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 Direc-
tion.
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 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it
is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining
with Phelps Dodge Copper Products Corp., Elizabeth, 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
1
See Matter of Automatic Products Company and International Union, United Auto-
mobile Workers of America, Local 736 (AFL), 40 N L R B. 941; Matter of Cramp
Shipbuilding Company and American Federation of Labor, 37 N. L. R. B. 146.
463892-42-vol. 41-62
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of, Election, under the direction and supervision 'of the Regional
Director for the Second Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Section
9, 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,
including any such employees who did not work during said pay-roll
period because they were ill or on vacation or in the active military
service or-training of the United States, or temporarily laid off, but
excluding any who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by United
Electrical, Radio & Machine Workers of America, Local No. 441,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining.
MR. GERARD D. REILLY, concurring specially :
I think that the result reached by the Board is probably correct,
although the question raised by the Company with regard to the
inherent undesirability of the guards and production employees
having the, same representative is a troublesome one. In my opinion,
the position of the Company is not legally untenable since I think an
identity of representatives is a fact to be taken into consideration in
determining the appropriateness of a proposed bargaining unit. It
should be remembered, `however, that guards are not supervisory
officials and,'hence, this Board would not deem them to be employers
within the meaning of the Act if charges of violations of Section 8
were filed, predicated solely upon their conduct.