Phelps Dodge Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 531 (N.L.R.B. 1969)

PHELPS DODGE CORPORATION 531
Phelps Dodge Corporation and International Union,
United Plant Guard Workers of America,
Petitioner. Case 28-RC-1864
June 30, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND BROWN AND
ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election approved November 25, 1968,' an
election by secret ballot was conducted December
11, under the direction and supervision of the
Regional Director for Region 28 among the
employees in the agreed-upon unit. At the
conclusion of the election, the parties were furnished
a tally of ballots which showed that of
approximately 20 eligible voters, 20 cast ballots of
which 7 were for and 13 against Petitioner; none
was challenged or void. Thereafter, the Petitioner
filed timely objections to conduct affecting the
results of the election.
In accordance with National Labor Relations
Board Rules and Regulations, the Acting Regional
Director conducted an investigation and, on January
23, 1969, issued and duly served upon the parties his
Report on Objections in which he recommended
that Objections 1, 2, 4, and 5 be overruled and that
a full and complete hearing be held to resolve the
issues raised by Objection 3. No exceptions were
filed to the Acting Regional Director's report, and
on February 10, 1969, the National Labor Relations
Board adopted the recommendations of the Acting
Regional Director as set forth in his report and
ordered that a hearing be held on objection 3.
Pursuant to the Board 's Order, a hearing was held
February 18, 1969, before Hearing Officer L. L.
Porterfield. All parties participated and were given
full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the
issues. On March 7, 1969, the Hearing Officer
issued and duly served on the parties his report in
which he recommended that objection 3 be
overruled. The Petitioner filed timely exceptions to
the report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
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 organization involved claims to
represent certain 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 parties stipulated, and we find, that the
following employees constitute a unit appropriate
for collective bargaining within the meaning of
Section 9(b) of the Act:
All guards and special guards employed by the
Employer at its Morenci Branch, Morenci,
Arizona; excluding all other employees, office
clericals and supervisors as defined in the Act.
5. The Board has reviewed the rulings made by
the Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's report, the Petitioner's exceptions
thereto, the Acting Regional Director's Report on
Objections and the exceptions thereto, and the entire
record in the case, and hereby adopts the Hearing
Officer's findings and his conclusion only to the
extent consistent herewith.
Petitioner's Objection 3 alleged:
That on or about November 19, 1968, and
continuing to the date of the election, the
Employer, by its supervisors and agents,
interrogated individual employees at their work
stations concerning their union sympathies and
affiliations. During such interrogations,
representatives of the Employer made threats to
reduce the work week and to otherwise
unilaterally change terms and conditions of
employment.
The record fairly establishes that chief-watchman,
Wood, whose supervisory status was conceded, on
instructions of management, engaged in
interrogation of a number of employees as to
whether they or other employees, had been
approached by the Union and had signed union
cards. The Hearing Officer properly found that
Wood's interrogation of employees R. D. Carrell
and Hart and his conversation with employee Brown
had occurred before the petition herein was filed on
November 12, 1968, and therefore concluded that
such conduct could not be considered in determining
whether it interfered with the election.2 However, the
evidence establishes, and the Hearing Officer found,
that Wood had also interrogated employee Raley,
who had been identified by Brown as one who might
have signed a union card, and Wood asked Raley if
in fact Raley had signed such card. Raley denied
that he signed and Wood declined to disclose from
whom he had received such information. The
Hearing Officer found this incident too isolated in
character to justify setting aside the election.
We agree with the Hearing Officer's conclusion
that Wood's interrogation of Raley was improper
and coercive, but we do not agree that it was of an
isolated character. The record shows that after his
' A11 dates except as otherwise noted are 1968. '/deal Electric and Manufacturing Company, 134 NLRB 1275
177 NLRB No. 68
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogation of Raley on November 12, Wood
thereafter suspended his activities to complete his
vacation , but on his return on November 17, he was
again instructed by his superiors to speak to the
employees and present the Employer' s position on
union organization . It is not disputed that Wood
thereafter had conversations with nearly all of the
20 guards. Much of the testimony, undenied by
Wood, relates to conversations conducted by him
with employees, conversations that occurred either
in a truck Wood used in the performance of his
supervisory duties, or at the employees' work
stations or their homes.3 The Hearing Officer found
that Wood's conduct in initiating the conversations
and expounding on the Employer' s case in
opposition to union organization was not coercive
interrogation because Wood did not go beyond
asking if the particular employee had already bqen
approached by the Union, or telling the employee
that he assumed that the employee had already
heard the Union ' s case . However , Wood's own
testimony refutes such findings.
Wood admits that he had prior knowledge of the
employees' union interests before undertaking to
speak to them. He testified that he did not present
the Employer 's case to at least three employees,
Weatherholt, Mayo, and Leo Montgomery, because
he was fully informed of their "interest . in
regard to the Union." But, whether Wood had
obtained such knowledge through acts of
surveillance or by direct interrogation of other
employees , Wood in his conversations with some of
the employees certainly gave the impression that
there had been surveillance and interrogation. Thus,
Wood testified regarding a conversation with
employee Sid Garrett, a week or two before the
election, "And I did let it be known that I knew he
was involved in the union through different
sources," and added, "Sid, well I would feel a lot
better about it if you all would come out in the
open , if the union is what you want rather than
finding out the way I found it out ." As in the case
of Raley , Wood declined to tell Garrett who had
informed him of Garrett 's interest in the Union.
Furthermore , even if we agreed with the Hearing
Officer that Wood in initiating conversations with
the employees merely asserted that he assumed the
employee had already heard the Union ' s case, or did
not go beyond asking whether the employee had
already been approached by the Union, we do not
agree with the Hearing Officer that these remarks
were not coercive interrogation. If nothing more,
they elicited , or tended to elicit , from the employee
an admission , such as in the case of employee
Tinney, that he did or did not support the Union, or
'The evidence shows that Wood engaged at least two employees in
conversations about the Union at their homes . Such conduct, the Board
has found tends to restrain and coerce employees in their union activities.
See The Hurley Company. 130 NLRB 282, FN. Calderwood. Inc, 124
NLRB 1211, Peoria Plastic Co., 117 NLRB 545, Mrs Baird's Bakeries.
Inc, I14NLRB 444
information as to the activities of other employees.
Thus, Wood testified that he spoke to employee
Tinney the latter part of November and "I told him
he probably had been contacted by some of the men
regarding the Union, and he [Tinney] said, `Yes,
Oliver Weatherhold contacted me . . . last night.'
Then he told me he had a card to sign." Tinney
apparently disclosed that he would not support the
Union, and the disclosure was not lost on Wood.
For the record shows that Wood urged, indeed
appeared to insist, that those employees who, he
believed, were not in favor of the Union be sure to
vote in the election. Thus, as to his conversation
with Tinney, Wood testified that "I stressed even
though he wasn 't interested in it, that when the
election came we would want him to vote. I mean it
was his choice . . . I contacted him later, as I did
the rest of them, and told him the time and place to
vote."
Nor do we agree with the Hearing Officer that
Wood's remarks about changing the workweek and
being less lenient than before if the Union came in
were noncoercive because the employees understood
that such changes would only occur through or as a
result of bargaining and not be unilaterally imposed
by the Employer. We cannot draw any such
conclusion from Wood's conversation with Garrett
or other employees. Garrett testified, testimony
which was not denied by Wood, that Wood told him
"he was disappointed at me going along and letting
Mr. Weatherholt sucker me into a deal like that ... '
the company' had, always tried to be lenient with us
... the company gave us special consideration .. .
but if we did get a union the company might cut our
schedule ... we might even go to a 5-day week and
that would off-set any raise that the union might
give us . And he told me that he had always been too
lenient with us."' While it is clear that Wood
testified that he told the employees that ". . . if the
Union comes in there would be a contract ... they
would have a contract to live up to and there would
be things for me to abide by," it is anything but
clear that this statement was understood by the
employees to mean that what they stood to lose
would depend entirely on the give and take of
collective bargaining . On the contrary, Garrett
testified "I thought that he was trying to say, that if
we did get in the union that we probably would be
cut." This is not the reaction of an employee who
understood that changes that might occur would
depend on negotiations .' In our opinion it is more
likely, and reasonable to infer, that the employees
took Wood' s statements simply as threats of loss of
'Garrett testified that apparently as an example of leniency , which Wood
thought called for some disciplinary action , Wood mentioned an incident
where Wood said he had seen Garrett's truck at the residence of the
carpenter foreman 's home when he, Garrett , should not have been there.
'We are not persuaded otherwise by the fact that Garrett answered,
"Yes," to leading questions put to him by Employer' s Counsel to wit, "I
PHELPS DODGE CORPORATION
benefits and privileges and of economic reprisals if
the Union was successful.6
The Hearing Officer found that employees who
were interviewed by Wood in his truck were not
coerced within the principle of Peoples Drug Stores,
nc.,' as the truck was not the locus of final
authority in the plant. While it appears that Wood
had an in-plant office, the nature of his supervisory
duties required him to spend most of his working
time in his truck. The truck was equipped with a
two-way radio through which he gave commands
and received messages , and the manner in which he
conducted his interviews with employees indicated
that he regarded his truck as much as a locus of his
final authority as the in-plant office. Wood testified
that many of his conversations with employees
about the Union occurred away from the employees'
stations and in the confidential confines of his
truck's cab. Where the guards patrolled in pairs,
Wood conceded that his practice was to call each
employee separately into his truck and speak to him
about the Union. In view of such circumstances, we
find that Wood's truck was as much a locus of final
authority as any in-plant office that may have been
his. Such conduct therefore in calling the men into
his truck's cab for the purpose of speaking out
against the Union was, in our opinion, a clear
violation of the principle of Peoples Drug.8
In view of the foregoing and on the record as a
assume he was referring to some raise which might be negotiated with the
company, is that right9 And that the cutting of the work schedule would
come then after the raise had been negotiated , is that right9" The questions
in our opinion are no more clearly suggestive of action not to be taken
unilaterally by the Employer than were Wood's statements
6Marsh Supermarkets , Inc v N L R B , 327 F 2d 109, 111 (C A 7),
enfg in material part 140 NLRB 899, cert denied 377 U S 944
'l19NLRB 634
" !bid
533
whole, we find contrary to the Hearing Officer, that
the Employer, by reason of Wood's coercive
interrogation of its employees as to their union
activities, his conveying the impression of
surveillance, his threats of depriving employees of
benefits which they then enjoyed, his ordering
employees into his truck for the purpose of
presenting the Employer's case in opposition to the
Union' s organizational efforts, interfered with the
employees' statutory rights to a free selection of a
bargaining representative. Accordingly, we shall set
aside the election and direct a second election.9
ORDER
It is hereby ordered that the election conducted
herein on December 11, 1968, be, and it hereby is,
set aside.
[Direction of Second Election10 omitted from
publication.]
'We find, contrary to the Hearing Officer, that Company Manager
O'Neil's letter of December 7, 1968, which made no reference whatsoever
to Wood's conduct, which in essence merely told employees that the
Employer was opposed to the Union and that he wanted them to vote
against the Union, could not, nor even was intended to, dissipate Wood's
improper conduct
1() In
order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote,
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc , 156 NLRB 1236, N L.R B v Wyman-Gordon Company,
394 F 2d 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 28 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are riled