Phelps Dodge Refining Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1942

41 N.L.R.B. 1016 (N.L.R.B. 1942)

In the Matter of PHELPS DODGE REFINING CORPORATION and LOCAL 501,
INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS
Case No. B-3804.-Decided June 16, 1942
Jurisdiction : copper refining industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives and refusal of Company to bargain
without proof of majority ; contract with union previously found to be company-
dominated, held no bar ; election necessary ; employees discriminatorily dis-
charged and ordered by the Board to be reinstated, but not yet reinstated by
the Company, held eligible to vote unless they had refused reinstatement.
Unit Appropriate for Collective Bargaining : all hourly-paid production and
maintenance employees at one of the Company's plants, including working
leaders, a weigher, an "operator", the oxygen-control man, and a bricklayer, but
excluding the purchase-department service man, an inspection department
employee being trained as foreman, all employees in the purchasing; account-
ing, labor and police, engineering and laboratory departments, clerical em-
ployees, shift bosses and other supervisory employees, watchmen, janitors,
gardeners, and temporary construction employees.
Mr. Elmer P. Davis, for the Board.
Mr. J. F. Hulse, of El Paso, Tex., for the Company.
Mr. Harry Ha freer, Mr. A. R. Hardesty, Mr. H. Silex, and Mr.
Antonio Salcido, of El Paso, Tex., and Mr. Howard Goddard, of
Denver, Colo., for the C. 1. 0.
Mr. A. F. Cadena, of San Antonio, Tex., for the A. F. of L.
Mrs. Augustus Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Local 501, International Union of Mine,
Mill & ' Smelter Workers, affiliated with the Congress of Industrial
Organizations , herein called the C. 1. 0., alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Phelps Dodge Refining Corporation , El Paso, Texas, herein called
the Company , the National Labor Relations Board provided for an
appropriate hearing upon due notice before Earl S. Bellman, Trial
Examiner . Said hearing was held at El Paso, Texas, on May 4 and 5,
41 N. L . R. B., No. 185.
1016
PHELPS DODGE REFINING CORPORATION 1017
1942. The Board, the Company, the C. I. 0., and Copper Refinery
Workers, Local 23109, affiliated with the American Federation of
Labor, herein called the A. F. of L., appeared, participated, 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.
Permission to file briefs on or before May 21, 1942, was granted to
all parties. No briefs have been filed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Phelps Dodge Refining Corporation operates a copper refinery and
copper sulphate plant at El Paso, Texas, the only plant involved in
this proceeding. The principal raw material used at the plant is
crude copper. The refinery has a production capacity of 132,000
tons of copper per annum, and the copper sulphate plant a capacity
of 4,000 tons per annum. Substantially all raw materials used at the
plant are received from points outside Texas. Practically all such
materials are the property of others and are processed at the plant
on a toll basis. Practically all copper processed at the plant is shipped
outside Texas and about 90 percent of the copper sulphate processed
at the plant is sold outside Texas. The Company admits that it is
engaged in commerce within the meaning of the National Labor
Relations Act.
IT. THE ORGANIZATIONS INVOLVED
Local 501, International Union of Mine, Mill & Smelter Workers is
a labor organization affiliated with the Congress of Industrial Organi-
zations, admitting to membership employees of the Company.
Copper Refinery Workers, Local 23109, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On December 31, 1941, the Board issued its Decision and Order
against the Company, finding that Copper Refinery Employees Inde-
pendent Union No. 1 of El Paso, Texas, herein called the Independent,
was a company-dominated organization and ordering its disestab-
lishment.l The Company has not had any dealings with the Inde-
i See Matter of Phelps Dodge Retntnig Corporation and Local 501, International Union
of Mine, Mill & Smelter Workers, 37 N. L. R. B. 1059.
1018 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
pendent- in 1942, but has preserved the grievance machinery
established under its contract with the Independent.
On .August 30, 1941, and again on January 17, 1942, the. C. I.' O.
claimed to represent a majority of the hourly paid employees at the
plant .and asked the Company to recognize it as .their bargaining
agent. - The Company did not reply to either of these letters on the
alleged ground that the Company was bound under a contract with
the Independent, entered into on May 19, 1941, for 1 year and there-
after renewable from year to year, subject to termination-by 60,days'
notice. For the same reason, in April 1942 the Company refused to
meet with the C. I. O. with respect to grievances of its members,
alleging that the grievance machinery established by the contract was
mandatory. The Company does not contend that this contract is a
bar to this proceeding. Since we have found that the Independent
is a company-dominated organization and have ordered the Company
to give no effect to its contract with the Independent, the contract is
no bar to a determination of representatives.
In December 1941 the A. F. of L. began to organize the Company's
employees-and on April 30, 1942, asked the Company to recognize the
A. F. of L. as their sole bargaining agent. The Company refused
to bargain with the A. F. of L. without proof of majority.
A statement prepared by the Field Examiner and introduced into
evidence and statements read into the'record by the Trial Examiner
and by the Board's attorney at the hearing indicate that the C. I. O. and
the A. F. of L. each represents a substantial number of the employees
in the appropriate unit.'
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 C. I. O. and the A. F., of L. 'agree, and we find, that hourly
paid production and maintenance employees, including working lead-
2 The C I. 0. submitted to the Field Examiner 321 authorization cards, 1 dated in 1940,
94 dated in 1941, and the remaining dated in 1942 , 241 of which bear apparently genuine
signatures of 'employees on the pay roll of April 1 , 1942. At the hearing the C. I. 0.
submitted to the Trial Examiner 45 additional cards which bear apparently genuine signa-
tures of employees on the April 1, 1942, pay roll Of these cards, 43 are dated in 1942, 2 in
1941.
The A. F. of L. submitted to the Field Examiner a letter containing a list of 167 names,
which the organizer of the A. F. of L stated were members of the A. F. of L Upon this
list, 140 names are names of employees on the Company's pay roll of April 1, 1942. All
such employees were stated to have joined the A . F. of L in 1942.
- At the hearing, the A F of L. submitted to the Board's attorney 234 cards, of which 206
bear apparently genuine signatures of employees on the May 1, 1942, pay roll Of these
cards, 2 are dated in 1941 , 2 undated , and the remaining dated in 1942.
There are about 420 employees in the appropriate unit.
PHELPS-DODGE -REFINING -'CORPORATION 1019
,er"s, should be included -in the bargaining unit. They further agree,
-and we find, that employees in the purchasing, accounting, labor and
police, engineering, and laboratory departments, clerical employees,
shift bosses and other supervisory employees, and watchmen should be
excluded from the bargaining unit. The Company agrees that a plant
unit is appropriate. • It does not take any position with respect to em-
ployees whose exclusion from the unit is disputed. -
The C. I. 0. would exclude, and the A. F. of L. would include, four
janitors and two gardeners.
Three hourly paid janitors, the head janitor and two men who work
under -him, are under the direction of the foreman of the accounting
department, who lays out their work. They clean the office space, the
corridors, and 'the "change house," where the men change their clothes,
bathe, and dress. The head janitor spends more time in the office and
corridors and less time in the "change house," but otherwise the work of
the three men is the same and the men take turns at the work. These
janitors do not clean production space. A fourth janitor works in the
laboratory under the supervision of its foreman. Two gardeners care
for the grass and flowers in the extensive grounds around the Com-
pany's buildings. Since it appears that the work of the janitors and
gardeners differs materially from that of the production and mainte-
nance employees who the parties agree should be included in the unit,
and since the two labor organizations, disagree with respect to their
inclusion, we shall exclude janitors and gardeners from the bargaining
unit.
The C. I. 0. and the A. F. of L. disagree with respect to the following
employee's:,
S. Gonzales is the only hourly paid employee in the purchasing. de-
partment. The Company calls him the service man of the department.
He physically hands out materials on requisition. Salaried employees
in the department keep records, make out requisitions, and make con-
tracts. The A. F. of L. would include Gonzales because he is an
hourly paid employee. The C. I. 0. would exclude him with all other
members of the purchasing department. Since the parties agree to
exclude other members of this department, we shall exclude Gonzales
from the bargaining unit.
J. Evans is a weigher in the anode unloading division of the receiv-
ing department. The A. F. of L. and the C. I. 0. would include
weighers in the unit. Both organizations would exclude the foreman
of this department. Evans replaces the foreman 1 day each week.
The C. I. 0. would exclude Evans for this reason. The A. F. of L.
would include him as a weigher. Since it appears that Evans is pri-
marily an ordinary production employee, we shall include Evans with
other weighers in the unit.
;1020 DECISIONS s,OF NATIONAL, LABOR_ rRELATIONS BOARD
M. R. ,Osbpr e. is, an ;employee in the inspection department who is
lbeing trained for the job as foreman. The record is not-clear with
,respect to the positions of the, labor organizations as to Osborne's.
inclusion in the unit, but since it appears that Osborne is being trained
as foreman in the department, we shall exclude him with foremen-from
-the bargaining unit. - -
S. Brown is an hourly paid "operator," who -replaces the foreman of
,,the slimes department when the foreman is ill or on vacation. The
salaried foreman has 12 to 15 men under him. Brown is regularly in
:charge of 2 laborers on the afternoon shift: The organizations agree
to exclude foremen. The C. I. 0. would include Brown, and the A. F.
'of L. would exclude him. Since it appears that Brown is primarily
,in a position similar to that of a working leader whom the parties agree
to include, we shall include Brown in the bargaining unit.
Jose Chavez is the oxygen control man in the furnace refinery. He
stakes samples of refined copper and-cuts and polishes them to determine
,the amount of oxygen contained by use of a microscope. Chavez has
been trained for, this work in, the Company's plant. He- does some
-clerical work. The record is not entirely -clear with respect to. the
,desires of the C.' I. 0. and the A. F. of L. with regard to Chavez, but
-since it appears that Chavez is primarily a non-supervisory production
employee, we shall include Chavez in the bargaining unit.
T. Thorpe -is a bricklayer with a regular helper. He works under
.,the direction of the foreman of the construction and repair department.
When the Company needs additional bricklayers, Thorpe supervises
,heir work: (,Thorpe, is a salaried employee. For this reason the
C. I. 0. would exclude him from the unit composed of hourly paid
workers. The A. F.' of L. -would -include Thorpe because he is a work-
ing bricklayer. Since it appears.that Thorpe is a working bricklayer,
-we shall include him with other production and maintenance employees
-in the bargaining unit. -
Temporary Construction ,Employees: At the time of the hearing
,.the Companyremployed three temporary construction employees .for
(certain construction work. This work was.shortly to be completed.
.The Company is expecting to enlarge its plant and will let such con-
struction work on contract. The Company does not expect to hire
-any additional employees at the plant. The C. I. 0. would include,
-and the A-. F..of L. exclude, these temporary construction workers.
rSince it does riot appear that these employees at this time have reason-
able expectation of future employment, we shall exclude them from
the bargaining unit. - -
We find that all hourly paid production and maintenance employees
'of the Company at its El-Paso plant, including working leaders, J.
Evans, S. Brown, Jose Chavez, and T. Thorpe, but excluding S. Gon-
PHELPS DODGE REFINING CORPORATION 1021-
•
M. R: Osborne, all employees in the purchasing, accounting, labor-
and police, engineering, and laboratory departments, clerical em
ployees, shift bosses and other supervisory employees, watchmen, j ani-
tors, gardeners, and temporary construction employees, 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
The C. I. O. desires certification on the record or, if'the Board will'
not certify it upon the record, the C. I. O. wishes an election in which
the A. F. of L. does not participate. The C. I. O. contends that the
A. F. of L. is a successor to the Independent, the company-dominated
organization ordered disestablished by the Board. For the purposes
of an election, however, the C. I. O. has waived the Company's non-
compliance with the Board's orders in the two pending complaint
proceedings,3 and has filed no new charge against the Company alleging-
any violation of the Act. Under these circumstances, and in view of
the substantial showing made by the A. F. of L. to represent employees
in the appropriate unit, we must deny the request of the C. I. O. for
certification upon-the record and permit the A. F. of L. to participate
in the election by secret ballot which we shall direct.
The C. I. O. uiges that five employees of the Company, ordered
reinstated by the Board on January 27, 1942, in Case No. C-1954,4 and
not yet reinstated by the Company, should be eligible to vote in the
election. Such employees appear to be members of the C. I. O. The
A. F. of L. contends that these employees are not eligible to vote in
the election because their names do not appear upon a current pay roll.
We find no merit in this contention. We further find that such em-
ployees are eligible to vote in the election, excluding however, any
such employee, who, having been offered reinstatement by the Com-
pany, has refused it.
Those eligible to vote in the election shall be all employees of the
Company within the appropriate unit who were employed during the
pay-roll period immediately preceding the date of this Direction of
Election, including employees ordered by the Board to be, but not yet,
reinstated by the Company, but excluding any such employee who,
having been offered reinstatement by the Company, has refused it,
subject to the limitations and additions set forth in the 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 Relations Act,
3 See footnote 1 above and footnote 4 below
4Matter of Phelps Dodge Refining Corporation and Local 501, International Union of
Mine, Mill & Smelter Workers, affiliated with the C. 1 0, 38 N. L. R. B. 555.
1022 DECISIONS OF NATIONAL` LABOR, RELATIONS BOARD
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 to ascertain representa-
tives for the purposes of collective bargaining with Phelps Dodge
Refining Corporation, El Paso, Texas, 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 super-
vision of the Regional Director for the Sixteenth 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
all employees of the Company within the unit found appropriate
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 such 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, and employees ordered by the
Board to be, but not yet, reinstated by the Company, but excluding
any such employee who, offered reinstatement by the Company, has
refused it and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Local
501, International Union of Mine, Mill & Smelter Workers, or by
Copper Refinery Workers, Local 23109, A. F. of L., for the purposes
of collective bargaining, or by neither.