Phelps Dodge Copper Products Corp.

National Labor Relations Board - Board Decisions

Oct 9, 1940

27 N.L.R.B. 729 (N.L.R.B. 1940)

In the Matter of PHELPS DODGE COPPER PRODUCTS CORPORATION,
HABIRSHAW CABLE AND WIRE DIVISION and UNITED ELECTRICAL,
RADIO & MACHINE WORKEES OF AMERICA, C. I. O.
Case No. R-2048-Decided October 9, 1940
Jurisdiction : wire manufacturing industry.
Investigation and Certification of Representatives : existence of question : con-
flicting claims of rival representatives ; contract which expired 3 months after
filing of petition, no bar to ; election necessary.
Where petitioning union shows it has a membership of 194 out of approxi-
mately 620 employees and contends it has 150 additional authorizations
which have not been reduced to writing because of the existence of an
agreement between a rival union and an employer which is in effect a closed-
shop agreement, held, that the contention of the rival organization, that the
petitioner has not made substantial showing of membership is without merit.
Employees whose employment was terminated because of citizenship
requirements for government work, or discharged under a valid collective
bargaining contract held not eligible to vote.
Unit Appropriate for Collective Bargaining : all hourly-rated employees, exclu-
sive of executives, supervisory and clerical employees.
Mr. Millard M. Midonick, for the Board.
Debevoise, Stevenson, Plimpton d Page, by Mr. Charles F. Bailey,
of New York City, and Mr. Wylie Brown, of New York City, for the
Company.
Mr. Frank Scheiner, of New York City, for the United.
Mr. Edward J. McAlinn, Mr. Gerald Duffy, and Mr. Hugh Morgan,
of New York City, for the Brotherhood.
Miss Charlotte Anschuetz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 24, 1940, United Electrical, Radio & Machine Workers of
America, C. I. 0., herein called the United, filed with the Regional
Director for the Second Region (New York City), a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Phelps Dodge Copper Products Corpo-
27 N. L. R. B., No. 135.
729
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ration, Habirshaw Cable and Wire Division, Yonkers, New York,
herein called the Company, and requesting an investigation and certi-
fication of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On August
14, 1940, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section
3, of National Labor Relations Board Rules and Regulations-Series
2, as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On August 22, 1940, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the United,
and Local No. 3, International Brotherhood of Electrical Workers,
A. F. of L., herein called the Brotherhood, a labor organization claim-
ing to represent employees directly affected by the investigation.
Pursuant to notice, a hearing was held on September 9, 1940,
at New York City, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Board. The Board, the Company, and the
United were represented by counsel, and the Brotherhood by repre-
sentatives; all participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and-to introduce evi-
dence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
At the request of the United and pursuant to notice, a hearing
for the purpose of oral argument was held before the Board at
Washington, D. C., on September -24, 1940. The Company and the
United were represented by counsel and the Brotherhood by a
representative; all participated in the argument. Briefs were filed
by the Company, the United, and the Brotherhood, and were con-
sidered by the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Phelps Dodge Copper Products Corporation is a corporation en-
gaged in the manufacture and sale of copper and brass wire, cable,
tubing, and similar products in New Jersey, Indiana, California, and
New York. Its two plants at Yonkers, New York, with which this
proceeding is concerned, are known as Phelps Dodge Copper Products
Corporation, Habirshaw Cable and Wire Division. The products
PHELPS DODGE COPPER PRODUCTS CORPORATION 731
manufactured at the Yonkers plants are paper insulated power cables,
varnished cambric insulated wires and cables, asbestos insulated wires,
cables and cords, rubber insulated building wires and cables, rubber
power cables, flexible cords and cables, and other rubber insulated
wires and cables. The raw materials used consist of copper, bronze,
copper and steel tape, crude and reclaimed rubber, compounding in-
gredients, cotton, paper, varnished cambric, tape, jute, oils and rosin,
asphalt, saturating and finishing materials, lead, armor-wire, and
steel wire; over 80 per cent of these were obtained from sources out-
side New York State in the years 1937, 1938, and 1939. During the
same period the Yonkers plants made shipments of finished products
valued at $500,000 to $1,000,000 per month, the amount varying with
general business conditions. Over 75 per cent of these shipments
were made to points outside New York State.
II. THE LABOR ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, C. I. O.,
is a labor organization admitting to membership employees of the
Company.
Local No. 3, International Brotherhood of Electrical Workers,
A. F. of L., is a labor organization admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about June 7,1940, and at subsequent dates, the United, claim-
ing to represent a majority of the employees of the Company, requested
the Company to bargain collectively with it. The Company admitted
receipt of-these requests at the hearing, but stated that it refused them
on the ground that since August 1937 the recognized bargaining rep-
resentative for its employees had been the Brotherhood, with which
it had had three successive contracts. The first contract, dated August
2, 1937, covered members only; the subsequent contracts designated
the Brotherhood as exclusive bargaining agent for all employees,
and took effect August 9, 1938, and September 15, 1939, respectively.
The 1939 contract provided that it should remain in effect until Sep-
tember 15, 1940, and from year to year thereafter until terminated
after the end of the first year on 60 days' notice. Since its expiration
date was September 15, 1940, the contract is no bar to the direction of
an election by the Board at this time.'
The Company contends that the contract was renewed on July 15 , 1940, with the consent
of the Brotherhood and itself . It is unnecessary to pass on the validity of this contention,
since the renewal, if consummated , was made with full notice by the Company and the
Brotherhood of the United 's claim and the institution of this proceeding.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director reported in his statement concerning claims
of authorization for the purpose of representation that the United
submitted to him 260 authorization cards, of which 229 were dated
between October 1939 and July 1940 and appeared to be genuine origi-
nal signatures; that the Company refused to submit a pay roll; and
that the Brotherhood refused to offer proof of its right to represent
the Company's employees. Since no pay roll was introduced in evi-
dence at the hearing, the Trial Examiner visited the Company's plants
during the course of the hearing and made a comparison of the cards
of the United originally presented to the Regional Director with the
pay-roll checks of the Company of August 24 with corrections to the
date of hearing. The Trial Examiner found that 194 of these 260
cards checked with this pay roll, which consisted of approximately
620 employees.2 He then visited the office of the Brotherhood and,
comparing its fiscal records with the same records of the Company,
found 366 dues-paying members who were in good standing with the
Brotherhood and 50 new members who were paying initiation fees,
totaling 416.
The Brotherhood contends that a designation of collective bar-
gaining agent by 194 employees out of approximately 620 is not a
substantial showing of membership and does not justify the holding
of an election. The United, however, maintains that its small showing
is due first, to the provision for a closed shop in the 1939 contract with
the Brotherhood, and second, to the discharge of members of the
United pursuant to the contract, and alleges that it has at least 150
oral designations in addition to the written ones. The 1939 contract
provided for use of the union label by the Company only on goods
manufactured by members of the Brotherhood and further that "The
Employer agrees to employ members of the Union in good standing."
Since the Company has used union labels on all of its products for
approximately a year prior to the hearing, and since it admits that
employees have been discharged for failure to remain members in
good standing of the Brotherhood, we find that the effect of the con-
tract was that of a closed-shop agreement.
We find that a question has arisen concerning representation of
employees of the Company.
Iv. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has arisen,
occurring in connection with the operations of the Company described
' Subsequent to the hearing an affidavit was executed by one of the United's field
organizers on September 13, 1940, stating that he had made an investigation among the
Company's employees which shoe ed that at least 25 of the signers of the cards rejected
by the Trial Examiner were currently employed by the Company.
PHELPS DODGE COPPER PRODUCTS CORPORATION 733
in Section I above, has a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE APPROPRIATE UNIT
It was stipulated by all the parties that the appropriate unit con-
sists of "all the hourly-rated employees, exclusive of executives, super-
visory and clerical employees" in both Yonkers plants. We see no
reason to alter the unit agreed upon.
We find that all hourly rated employees of the Company in its
Yonkers plants, excluding executives, supervisory employees, and
clerical employees, constitute a unit appropriate for the purposes of
collective bargaining and that said unit will insure to employees of
the Company the full benefit of their right to self-organization and
to collective bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
It is apparent from what has been stated previously that the ques-
tion concerning representation which has arisen can only be resolved
by an election. We shall accordingly direct an election to be held.
The United desires that eligibility to participate in an election
should be determined as of the week of June 21, 1940 (the week pre-
ceding the filing of the petition in this proceeding), on the ground
of subsequent discharges pursuant to the contract, and of lay-offs of
employees due to citizenship requirements on government work. The
Brotherhood desires a current pay roll. Since discharges under the
contract were not alleged by the United to be illegal, and the persons
whose employment was terminated for lack of citizenship requirements
should not participate in the election unless they have since been re-
employed, we believe that the use of a current pay roll will best effectu-
ate the policies of the Act. We shall, accordingly, direct that all
employees within the appropriate unit who were employed by the
Company during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during such pay-roll period because they were ill or on vacation, and
employees who were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause,
shall be eligible to participate in the election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Phelps Dodge Copper Products Corpora-
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, Habirshaw Cable and Wire Division, Yonkers, New York, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. All hourly rated employees of the Company in its Yonkers plants,
excluding executives, supervisory employees, and clerical employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the National Labor
Relations Act.
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, 49 Stat. 449, 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 authorized by the Board
to ascertain representatives for collective bargaining with Phelps
Dodge Copper Products Corporation, Habirshaw Cable and Wire
Division, Yonkers, New York, 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 of Election, under the direction and
supervision of the Regional Director for the Second Region, acting
in the matter as agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations, among
all hourly rated employees of the Company employed during the pay-
roll period immediately preceding the date of this Direction of Elec-
tion, including those employees who did not work during such pay-
roll period because they were ill or on vacation, and employees who
were then or have since been temporarily laid off, but excluding execu-
tives, supervisory employees, clerical employees, and any employees
who have since quit or been discharged for cause, to determine whether
they desire to be represented by United Electrical, Radio & Machine
Workers of America, C. I. 0., or by Local No. 3, International Brother-
hood of Electrical Workers, A. - F. of L., for the purposes of collec-
tive bargaining, or by neither.