Phelps Dodge Refining Corp.

National Labor Relations Board - Board Decisions

Jul 16, 1946

69 N.L.R.B. 536 (N.L.R.B. 1946)

In the Matter Of PHELPS DODGE REFINING CORPORATION and INTERNA-
TIONAL UNION OF MINE, MILL AND S IELTER WORKERS , EL PASO
COPPER REFINERY WORKERS, LOCAL 501, CIO
Case No. 16-R-1651.-Decided July 16, 1946
Messrs. J. F. Hulse and W. Knowles, both of El Paso, Tex., for the
Company.
Mr. Orville Larson, of Globe, Ariz., and Mr. J. B. Chavez, of El Paso,
Tex., for the Union.
Mr. Martin T. Camaeho, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Union of Mine, Mill
and Smelter Workers, El Paso Copper Refinery Workers, Local 501,
CIO, herein called the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Phelps
Dodge Refining Corporation, El Paso, Texas, herein called the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon due notice before Louis R. Becker, Trial Examiner. The
hearing was held at El Paso,. Texas, on May 17, 1946. 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. After the hearing,
the Company filed written motion with the Board to dismiss the peti-
tion on the ground that no evidence was introduced at the hearing to
show that the Union represents any employees in the unit it seeks in
this proceeding. For the reasons stated in Matter of 0. D. Jennings
& Company,' this motion is hereby denied. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded opportunity to file briefs
with the Board. The Company filed a brief which has been considered.
Upon the entire record in the case, the Board makes the following:
1 68 N. L. R. B. 516.
69 N. L. R. B., No. 67.
536
PHELPS DODGE REFINING CORPORATION
FINDINCs OI' lip _\CT
1. TIIE BUSINESS OF THE COMPANY
5 '37
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 of Texas. The Company admits, and we find, that it is
engaged in commerce within the meaning of the National Labor Rela-
tions Act.
II. TIIE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, El Paso
Copper Refinery Workers, Local 501, is a labor organization, affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company refused to grant recognition to the Union as the
exclusive bargaining representative of its employees in the unit here-
inafter found appropriate.
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, by amended petition, seeks a unit consisting of all the
Company's laboratory employees in its El Paso plant, but excluding
the janitor, the chief chemist and all other employees of the Company.
Presently employed in the laboratory are two chemists, two copper
assayers, one assayer, a janitor, assistant chief chemist and chief
chemist. These employees, with the exception of the janitor, are all
technically skilled men in the field of chemistry and metallurgy and
nearly all are college graduates. They work separate and apart from
all the other employees of the Company, and their work chiefly con-
sists in making chemical analyses of samples of all raw materials or
elements used in the processing of copper by the Company, and
analyses of the finished product.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties agree that the chief chemist is a supervisory employee,
and as such , properly excluded from the unit. They likewise agree in
excluding the janitor . As to the assistant chief chemist , the Union
seeks his inclusion in the proposed unit. Although the Company at
the hearing took no stand as to the inclusion or exclusion of the
assistant chief chemist, it argued in its brief that he is "a part of the
supervisory force." The assistant chef chemist spends the greater
portion of his time assigning the work to be done , training each man
in the detailed steps of the standard procedure . checks the results
arrived at before they are finally reported , and in cases where dis-
crepancies result from duplicate or triplicate runs be may make his
own detailed analysis to check the results . However , this employee
has no power to hire, discharge or otherwise effect changes in the status
of the employees . Nor is there any persuasive evidence to indicate that
his recommendations of such action , if any, are so effective as to bring
him within our usual definition of a supervisory employee = We shall,
accordingly , include the assistant chief chemist in the unit.
Since 1942 the Union has represented the Company 's production
and maintenance employees at this plant in a Milt established by the
Board 3 from which the laboratory employees , among others, are
excluded ; and it has a present contract covering the employees in
that unit 4 The Company contended at the hearing and argues in
its brief , that the laboratory employees should not now be set up in
a bargaining unit to be represented by the Union for the result would
be, in practical effect, an enlargement of the existing unit by the addi-
tion of the laboratory group; that this would be contrary to the
Board's prior determination and the present contract . We find no
merit in this contention for the same bargaining representative may
be designated by the employees in more than one unit without effecting
a merger of such units .° There is nothing in either our decision in-
volving the production and maintenance employees, or in the present
contract covering those employees which precludes the Union from
representing the laboratory workers in a separate unit.'
We find , therefore , that all laboratory employees of the Company
at its El Paso plant , including the assistant chief chemist, but ex-
2 There was evidence that within 7 or 8-years, the assistant chief chemist had recoin-
mended discharge of the janitor who worked in the laboratory. The janitor was trans-
ferred to another department. However, in this connection, it is to be noted that the jani-
tor, an unskilled laborer , who does cleaning work and performs manual tasks , is, in a
sense , under the supervision of any or all of the laboratory staff.
3 See Matter of Phelps Dodge Refining Corporation , 41 N. L . R. B. 1016.
4 The present contract was entered into on July 1, 1945, for a term of 1 year , and auto-
matically renews itself annually unless written notice to the contrary by either party is
received 30 days prior to its expiration or anniversary date.
Matter of Chris - Craft Corporation , 66 N. L . R. B. 230. and eases therein cited
Cf. Matter of Briggs Indiana Corporation , 63 N. L . R. B. 1270 , but see Matter of Jones &
Laughlin Steel Corporation , 66 N. L . R. B. 386.
PHELPS DODGE REFINING CORPORATION 539
eluding the janitor, the chief chemist, and all or any other super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, 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 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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Re-
lations 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 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 sub-
ject to Article III, Sections 10 and 11, of said Rules and Regulations,
among 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 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 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 reinstated prior to the date
of the election , to determine whether or not they desire to be repre-
sented by International Union of Mine, Mill and Smelter Workers,
El Paso Copper Refinery Workers , Local 501 , CIO, for the purposes
of collective bargaining.