Phelps Dodge Copper Products Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1945

63 N.L.R.B. 686 (N.L.R.B. 1945)

In the Matter Of PHELPS DODGE COPPER PRODUCTS CORPORATION,.
IIAIIIRSIIAW CABLE AND WIRE DIVISION and UNITED ELECTRICAL,
RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
In the Matter Of PHELPS DODGE COPPER PRODUCTS CORPORATION,
IIABIRSIIAW CABLE AND WIRE DIVISION and WILLIAM SCULLION
In the Matter of PHELPS DODGE COPPER PRODUCTS CORPORATION,
IIAI;IRSIIAW CABLE AND WIRE DIVISION and UNITED ELECTRICAL,,
RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Cases Nos. 2-C-5602, 9-C .128, and 2-R-46931', respectively.-Decided'
August 31,1945
DECISION
ORDER
AND
CERTIFICATION OF REPRESENTATIVES
On February 19, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled consolidated proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices and that it had not engaged in certain other unfair labor
practices. He recommended that it cease and desist from the unfair
labor practices found and take certain affirmative action, as set out in
the copy of the Intermediate Report attached hereto, and that the
complaint be dismissed as to the remaining allegations.
Thereafter, the respondent, the C. I. 0., and counsel for the Board
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to notice, a hearing was held before the Board at Washing-
ton, D. C., on May 31, 1945, for the purpose of oral argument; the re-
spondent , the C. I. 0., and the A. F. of L. were represented by counsel
and participated in the argument.'
The Board has reviewed the rulings of the Trial Examiner at the,
hearing and finds no prejudicial error. The rulings are hereby af-
firmecl . The full Board has considered the Intermediate Report, the
exceptions and briefs, the contentions advanced by the parties at oral
argument , and the entire record in the case, and hereby adopts the
1 A further hearing for oral argument was scheduled for July 27, 1945 , but due to the
inability of all parties to attend on that date , the hearing was cancelled and no further
oral argument was had However , Chairman Herzog and Mr. Reilly have read the full
official transcript thereof.
63 N. L. R B, No. 104.
686
PHELPS DODGE COPPER PRODUCTS CORPORATION 687
findings, conclusions, and recommendations of the Trial Examiner,
with the additions noted below;
1. The Trial Examiner has found, in effect, and we agree, that dur-
ing the preelection campaign at the plant the respondent (lid not render
unlawful assistance to the A. F. of L. by the activities of the A. F. of L.
stewards, or the roving stewards, or by disparity of treatment accorded
the two competing unions. Nor do we find that any unfair labor prac-
tices may be predicated on the interim arrangement made between the
respondent and the A. F. of L., to cover the period from May 31, 1944,
the stated expiration date of their last exclusive bargaining contract,
to such time as the Board resolved the existing question concerning
representation.
The record shows that upon the. expiration of the above-mentioned
A. F. of L. agreement, its substantive provisions, as well as the griev-
ance machinery provided for therein, were tacitly continued in effect,
pending disposition of the representation proceeding. However, it
does not appear that the A. F. of L's prior exclusive representative
status was thereby preserved or recognized, or that the maintenance
of membership provision of the expired contract was actually extended
after May 31. Although the A. F. of L. continued to deal with the
respondent under the established grievance procedure, no showing
was made that such dealings were to the exclusion of the C. I. 0., or
that the C. I. O. was denied an equal opportunity to take up grievances
with management or otherwise to support its adherents. Indeed, the
C. I. O. made no such request nor did it ever protest to the respondent
with respect to its relationship with the A. F. of L.
Consistent with our views expressed above, we find, as did the Trial
Examiner, that the discharge of employees Campbell, Johns, and Turek
on June 1, 1944, the day after the stated terminal date of the A. F. of L.
contract, for failing to remain members of the A. F. of L., cannot be
defended on the basis of the union security provision of the contract.
The respondent vigorously contends, contrary to our finding, that
these discharges actually took place during tne stated term of the
agreement, but nevertheless also argues that it "had a legal right"
to extend the union security clause of the expired contract. This argu-
ment is unsound as a matter of law. We are of the opinion that if,
during the pendency of an election directed by the Board to resolve a
question concerning representation, an employer extends or renews
an existing contract with a labor organization, or makes a new one, he
violates the Act insofar as that organization is accorded recognition
as exclusive bargaining representative or employees are required to
become or remain members thereof as a condition of employment.2
2 See Matter of Elastic Stop Nut Corporation , 51 N. L. R. B. 694 , enf'd 1¢2 F . ( 2d) 371
(C. V. A. 8) ; Matter of Keystone Steel and Wire Company , 62 N. L. R . B. 683 ; Matter
of John Engelhom & Sons, 42 N. L . R. B. 866.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner recommended that the C. I. O.'s Objections,
to the Election be dismissed and that the election be not set aside,
finding that the proof adduced with respect to the three specific objec-
tions upon which a hearing was ordered in the representation pro-
ceedings failed to establish sufficient interference. In making this
recommendation, he did not allude to other evidence set forth in the
Intermediate Report in support of his findings of unfair labor prac-
tices, encompassed as they were in the allegations of the complaint but
not within the scope of the objections upon which hearing was ordered.
However, we have examined, for the purpose of this decision, all the
evidence adduced at the consolidated hearing. We are satisfied and
find that the record as a whole does not establish such interference
with the conduct of the election of June 1944, or the exercise of a
free choice of representatives by the respondent's employees partici-
pating therein, as would warrant setting it aside at this time. Accord-
ingly, on the basis of the election results,3 we shall certify the A. F. of L.
as the exclusive bargaining representative of the employees within
the unit found appropriate in the representation proceeding.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Phelps Dodge Copper Products Corporation,
Habirshaw Cable and Wire Division, Yonkers, New York, and its
officers, agents, successors and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Electrical, Radio & Ma-
chine Workers of America, or encouraging membership in Local No. 3
of the International Brotherhood of Electrical Workers, or any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees or by discriminating in any other manner
in regard to their hire and tenure of employment or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Electrical, Radio & Ma-.
chine Workers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
3 1,820 votes were cast for the A F. of L, and 1,215 for the C I. O.
PHELPS DODGE COPPER PRODUCTS CORPORATION 689
(a) Offer to Margaret Walag, Vincent Campbell, Ruth Johns,
Katherine Turek, and William Scullion immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges;
(b) Make whole Margaret Walag, Vincent Campbell, Ruth Johns,
Katherine Turek, and William Scullion, for any loss of pay they have
suffered by reason of the respondent's discrimination against then,
by payment to each of them of a sum of money equal to that he
normally would have earned as wages during the period from the date
his discharge to the date of the respondent's offer of reinstatement,
is his net earnings during said period;
(c) Post at its plant at Yonkers, New York, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A." 4
Copies of said notice, to be furnished by the Regional Director of the
Second Region, shall after being duly signed by the respondent's rep-
resentative be posted by the respondent immediately upon receipt
therof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent discriminated against Armando Casella, Elmer
Van Sickle, and Edith Dankovitz, within the meaning of Section 8 (3)
of the Act, be, and it hereby is, dismissed.
CERTIFICATION OF REPRESENTATIVES
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, Sections 9 and 10, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended,
IT IS HEREBY CERTIFIED that Local No. 3, International Brotherhood
of Electrical Workers, A. F. of L., has been designated and selected
by a majority of all hourly rated maintenance and production em-
ployees of Phelps Dodge Copper Products Corporation, Habirshaw
Cable and Wire Division at Yonkers and Nepperham, New York, in-
cluding mill or production clerks and inspectors, but excluding fore-
4 Said notice , however , sh,il] be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order."
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men, assistant foremen, technical and engineering employees, time-
keepers, watchmen, guards, office and clerical employees, other than
mill or production clerks, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such ac-
tion, as their representative for the purposes of collective bargaining,
and that, pursuant to Section 9 (a) of the Act, the said organization
is the exclusive representative of all such employees for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employees, and other conditions of employment.
INTERMEDIATE REPORT
Mi James C Paradise, for the Board.
Debevoise, Stevenson. Plimpton & Page, by Messrs William D+ Stevenson. Dan-
let F McGlincheij and Chailes F Bailey, of New York. N Y, for the respondent
Messrs. Harold Stern and Saul Pearce, of New York, N Y, for the A F of L
Mr Fi ank Scheinei. by Mildred Roth, of New York, N Y, for the C I 0
STATEMENT OF THE CASE
On April 4, 1943, William Scullion, an individual, filed a charge,' and on August
18. 1943, an amended charge, alleging that Phelps Dodge Copper Products Corpo-
ration, I3abirshaw Cable and Wire Division, herein called the respondent, refused
to continue him as an employee because he was not a member in good standing of
Local Union No 3, of the International Brotherhood of Electrical Workers, affili-
ated with the American Federation of Labor, herein called the A F of L
On March 9, 1944, United Electrical, Radio & Machine Workers of America,
C I 1, herein called the C I. 0, filed with the Regional Director for the Second
Region (New York City), a petition' alleging that a question affecting commerce
had arisen with respect to the representation of the respondent, and requesting
an investigation and certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Slat 449, herein called the Act. On May 18,
1944, the National Labor Relations Board, herein called the Board, issued its
Decision and Direction of Election, in which it directed that an election by secret
ballot be held to determine whether certain of the respondent's employees desired
to be represented for the purpose of collective bargaining by the C I 0 , or b3
the A F of L, or by neither On June 14, 1944, pursuant to the aforesaid Direc-
tion of Election, an election by secret ballot was conducted by the Regional Direc-
tor among the hourly-rated maintenance and production employees employed at
the respondent's }Iabushaw Cable and Wire Division at Yonkers, and Nepperham,
New York, including mill or production clerks and inspectors, but excluding fore-
men, assistant foremen, technical and engineering employees, timekeepers. watch-
men, guards, office and clerical employees other than mill or production clerks,
and all supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or effectively
recommend such action On June 15, 1944, the Regional Director issued an elec-
tion report setting forth that a majority of these employees had voted for the
I Case No 2-C-5128.
2 Case No. 2-R-4621.
PHELPS DODGE COPPER PRODUCTS CORPORATION 691
A F of L as their representative for the purpose of collective bargaining 3 On
June 27, the C. I. 0 filed objections to the election, and on August 3, the Regional
Director issued a report on the objections The Regional Director's report stated
that certain of the objections raised substantial and material issues with respect
to the election, and recommended that the Board direct a hearing on such
objections
The C I. 0, on August 26, 1944, filed a charge,' and on September 13, 1944, filed
an amended charge that the respondent, by the conduct referred to in the objec-
tions, and by other acts, had violated Section 8 (1) and (3) of the Act.
On August 25, 1944, the Board, finding that certain of the objections raised
substantial and material issues with regard to the election, ordered that a hear-
ing be held on the objections insofar as they alleged (a) that certain privileges
were granted the A. F. of L. in connection with its pre-election activity, while
concurrently C. I. 0. advocates were restricted and watched; (b) that employees
on the staff of the respondent's personnel department actively assisted the
A. F. of L. and attempted to coerce C I. 0. advocates; and (c) that the re-
spondent discharged certain employees ° during the pendency of the petition
because of their membership in or activity on behalf of the C. I. 0.
On September 12, 1944, the Board, acting in conformity with Article III,
Section 13 (c) 2, and Article IT, Section 36 (b) of the Board's Rules and Regu-
lations-Series 3, as amended, ordered that the representation proceedings and the
two unfair labor practice proceedings be consolidated for the purpose of hearing.
On September 15, 1944, the Board, by its Regional Director, issued a complaint
against the respondent alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the meaning of,
Section 8 (1) and (3), and Section 2 (6) and (7) of the Act. Copies of the
complaint, accompanied by notices of hearing thereon, and copies of the C. I. O.'s
objections to the elections, were duly served upon the respondent, the A. F. of L.,
the C. I. 0, and William Scullion.
With respect to the unfair practices, the complaint alleged in substance that
the respondent (1) from on or about January 1, 1943, vilified and disparaged
the C I. 0 ; interrogated employees concerning their union affiliations, warned
them against assisting or becoming members of the C. I. 0. and against voting
for the C. I. 0. in the election and urged them to join, assist and vote for the
A. F. of L ; informed its employees that they must join and remain members
of the A. F of L in order to obtain wage increases; granted adherents of the
A. F. of L. the use of the respondent's time and property to hold meetings of
and to electioneer for the A. F. of L, while denying similar privileges to the
C. I 0, and conducted contract negotiations with the A F. of L. between May
18, 1944, the date of the Board's Direction of Election, and June 14, 1944, the
date of the election; (2) discharged Margaret Walag on April 24, Vincent
° As to the balloting and its results, the Regional Director reported as follows :
Approximate number of eligible vkers--------------------------- 3, 426
Valid votes counted------------------------------------------- 3,058
Votes cast for A F. of L--------------------------------------- 1,820
Votes cast for C I. 0------------------------------------------ 1,215
Votes cast for neither union------------------------------------ ' 23
Challenger ballots--------------------------------------------- 138
Void ballots--------------------------------------------------- 25
Case No. 2-C-5622.
° The Board named, in this connection, Armando Casella, Margaret Walag, Edith Danke-
vitz, and Elmer Van Sickle - The following employees , whose names appear in the com-
plaint , were not included in the Board ' s order directing a hearing on the objections to the
election : Vincent Campbell, Ruth Johns, Katherine Turek, and Ed Gillen.
662514-46-vol. 63-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Campbell, Ruth Johns, Katherine Turek and Ed Gillen on June 1, Armando
Casella and Elmer Van Sickle on June 6, and Edith Dankovitz on June 7, all
in 1944, for the reason that they joined and assisted the C. I. O. and engaged
in concerted activities with other employees of the respondent for the purposes
of collective bargaining and other mutual aid or protection, and (3) on or about
April 2, 1943, discharged William Scullion for the reason that he refused to
join or remain a member of the A. F. of L.
On September 29, 1944, the respondent filed an answer admitting certain of
the allegations of the complaint but denying that it had engaged in any unfair
labor practices. As an affirmative defense the respondent's answer contended
that the complaint as to William Scullion should be dismissed for laches in
that the charge in that case was filed more than 4 months after the termination
of his employment and the complaint more than one year after the filing of the
charge. On October 4, 1944, the respondent filed a motion for a bill of partic-
ulars. On October 6, 1944, Samuel H. Jaffee a Trial Examiner duly appointed
by the Chief Trial Examiner issued an order denying this motion
Pursuant to notice a hearing was held from October 12 to November 1, 1944,
at New York, New York, before Horace A. Ruckel, the undersigned Trial Exam-
iner, duly appointed by the Chief Trial Examiner in place and stead of said Sam-
uel H. Jaffee. The Board, the respondent, the C. I. 0 and the A F of L. were rep-
resented by counsel. The Board, the respondent and the A. F. of L participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues, was afforded all
parties. Upon the opening of the bearing the respondent and the A. F. of L.
.moved to sever Case No. 2-R-4621, the representation case, from Cases Nos.
2-C-5622 and 2-0-5128, the unfair labor practice cases, and to conduct separate
hearings e The Trial Examiner denied this motion.
At the conclusion of the Board's case, the Board moved to amend the com-
plaint as to paragraph 12 thereof, to allege that the respondent failed to disavow
statements by the A F. of L. to the effect that a new contract had been agreed
upon by the A. F. of L. and the respondent during the period between the Board's
Direction of Election and the election. The Trial Examiner granted this motion
without objection, and, without objection granted a motion by the respondent
to amend its answer to meet the amendment to the complaint. At the close of
the hearing, the Board moved to dismiss the complaint insofar as it alleged that
the respondent discriminatorily discharged Ed Gillen, and moved to conform
the pleadings to the proof in formal matters. The Trial Examiner granted these
motions, and reserved ruling upon a motion by the respondent to dismiss the
complaint. This motion is hereby denied.
The undersigned advised the parties that they might argue orally before the
undersigned and might file briefs with the undersigned by November 15, 1944.
Counsel for the Board presented oral argument. On November 15, 1944, the
Trial Examiner extended the time within which briefs might be filed to Novem-
ber 22, 1944. On November 22, 1944, the respondent filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
9 Among the reasons urged for a severance of the cases was the fact that the Board, in
its order directing a hearing on certain objections filed by the C. I. 0., directed that the
bearing be confined to the objections set forth above, thus, it was argued, in effect dismissing
the objection that the A. F. L entered into negotiations with the respondent during the
period between the Board's Direction of Election and the election . Such negotiations,
however, are alleged in the complaint as constituting an unfair labor practice.
PHELPS DODGE COPPER PRODUCTS CORPORATION 693
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Phelps Dodge Copper Products Corporation is a Delaware corporation, having
its principal office and place of business at New York, New York. The re-
spondent operates plants at Bayway, New Jersey, Los Angeles, California,
and Yonkers, New York, The plant at Yonkers, with which this case is con-
cerned, is known as Ilabirshaw Cable and Wire Division. The respondent, at
its Yonkers plant, is engaged in the manufacture and sale of copper and brass
wire, cables, cords, and allied products. During the year ending June 30, 1944,
the respondent caused to be purchased transferred, and delivered to its Yonkers.
plant copper, bronze, rubber, steel wire, and other materials valued in excess
of $500,000, of which more than 80 percent was transported to the Yonkers plant
from points outside the State of New York and from foreign countries During
the same period the respondent caused to be manufactured at its Yonkers plant
products valued in excess of $500,000, of which more than 75 percent was trans-
ported from the Yonkers plant to points outside the State of New York and to-
foreign countries.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America is a labor organization.-
admitting to membership employees of the respondent. It is afliliated with the-
Congress of Industrial Organizations Local Union No 3 of the Internationah
Brotherhood of Electrical Workers is a labor organization admitting to member-
ship employees of the respondent. It is affiliated with the American Federation
of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion,
1. Background
The respondent's Habirshaw Cable and Wire Division consists of the Glenwood;
McLean Avenue, and Bare Wire plants, and a warehouse, employing a total of
approximately 4,000 employees The A. F of L has had contracts with the,
respondent ever since its advent into the plant in 1937. On February 4, 1941, ,
pursuant to an election which followed a petition filed by the C. I. 0., the Board'
certified the A. F. of L. as the collective bargaining representative of the re-
spondent's employees within the appropriate unit. On December 16, 1942, the
respondent entered into another contract with the A. F. of L., which was made
retroactive as of May 31, 1942. This contract expired on May 31, 1943, and was
renewed on June 25, 1943, to cover the period from May 31, 1943 to May 31;.
1944, and from year to year thereafter subject to termination by either party
upon 60 days' notice. The last two contracts contained a maintenance of mem-
bership provision ,' as well as a union label clause.'
The maintenance of membership provision was as follows :
All employees who on the 5th day of January, 1943, are members of the Local Union,
No. 3 of the International Brotherhood of Electrical Workers, in good standing in
accordance with the Constitution and by-laws of this local , and those employees who-
thereafter become members shall as a condition of employment remain members of,
the Union in good standing during the life of the agreement The Union shall
promptly furnish a notarized list of its members in good standing on January 5, 1943.
If any employee named on that list asserts that be withdrew from membership in the-
Union prior to January 5, 1943 , or if after January 5 , 1943, the Union oertifies-to.the+•
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 1944 the A. F of L gave the respondent 60 clays' notice of its intention to
terminate the contract , and in March of that year , began negotiations for a new
contract C I. O. organization began in February 1944, and on March 9, the
C. I. 0 filed its petition The subject matter of the hearing was principally con-
cerned with events which occurred between May 18, 1944 , the date of the Board's
Direction of Election , and June 14 , 1944, the date of the election
2 Alleged negotiations after May 18, 1944
The negotiations, begun in March, 1944, between the respondent and the
A. F. of L, were concerned largely with vacations for employees of less than
,6 months employment, and more liberal vacations for employees of longer service.
As its sole evidence that the respondent continued these negotiations after May
18, 1944, the Board introduced in evidence copies of circulars drawn up by Armand
D'Angelo, business representative of the A F of L., and circulated during the
period between the Board's Direction of Election and the election. These cir-
culars imply that negotiations were continued during the period in question, and
that an agreement was reached on certain vacation provisions. For example,
.a circular, admittedly distributed after May 26, contained the following language:
Your Committee has been able to get the Company to agree on a 48-hour
week vacation for 1 year service and 96 hours for 5 years service, plus the
retroactive pay between 40 and 48 and 86 to 96 hours of last year's vacation.
Your committee however has not accepted this proposal because no considera-
tion was given to employees working for the Company less than 1 year
Your negotiating committee will not accept this vacation plan unless it
can get at least 3 days vacation for the employees working less than 1 year.
Another circular of later date stated that :
Under the terms of the contract which the A. F. L. now has with the
Company you will get a 48 hour week vacation for one year's service, 96
hours for five years service, plus the retroactive pay between 40 and 48
hours, and 80 to 96 of last year's vacation, even it you have only been eiu-
ployed between 6 months and a year, you'll still get a 3 day vacation.
[Italics supplied.]
The above claims were repeated in various additional pamphlet releases all
within the period from May 18 to June 14. If true,, they compel the conclusion
that during this interval negotiations were conducted and an agreement reached
on some of the terms of a new contract, inasmuch as the expired contract made
no provision for vacations for employees of less than 1 year's employment. The
evidence indicates, however, and the undersigned finds, that these claims con-
stituted campaign propaganda by the A. F. of L., and were without foundation
in fact. D'Angelo, who was present at all bargaining negotiations, testified that
although the negotiating committee met with the respondent's officials on several
occasions between March and May 18, only one meeting took place thereafter.
Employer that a member then in good standing is no longer in good standing , and any
dispute arises, that dispute shall be referred to the grievance machinery provided in
Article 8 of this Agreement.
This clause provided as follows :
The Union grants to the Employer the right to use an insignia stating that the
materials manufactured by the Employer in its Habirshaw Division under this Agree-
ment have been manufactured by members of the Union . The Employer agrees that
it will use only members of the Union in the manufacture of materials in its
Habirshaw Division upon which the Union label is placed. . . .
9 Walag's discharge , however, took place on April 24, 1944.
PHELPS DODGE COPPER PRODUCTS CORPORATION 695
This was on June 6, when the A F of L. unsuccessfully sought to enter into a
discussion of the question of vacations Lynch testified that although D'Angelo
raised the question at this meeting, Earle Mitchell, the respondent's works-
manager, informed him that the respondent would not resume negotiations until
after the election The testimony of D'Angelo and Lynch was corroborated by
that of Mitchell, who testified that his refusal was based upon his belief that this
was the prudent course to follow while a question of representative was pending.
The testimony of D'Angelo, Lynch, and Mitchell is corroborated by the minutes
of the meeting of June 6, which are in evidence.10
Mitchell admitted while testifying, however, that various campaign circulars
both of the A. F of L and the C I. 0. came to his attention, including the circu-
lars quoted above, but that he did not examine them carefully and did not recall
when it was that he saw them The undersigned believes it to be a fair in-
ference, and finds, that the respondent was cognizant of the A. F. of L.'s claims
which, as previously found, were unwarranted by the facts. The Board con-
tends that, this being the case, the respondent should have called the mislead-
ing nature of these claims to the attention of the employees, and was guilty of
an unfair labor practice in not doing so. It cites an occasion in 1940 when, pend-
ing an election on a former petition, filed by the C I. 0., the respondent posted a
notice denying that it had signed a contract with the A F. of L, as was cur-
rently claimed by that organization, and stating that it would not do so until
after a bargaining representative had been chosen. The Board contends that this
demonstrates the respondent's realization of what was, in fact, its obligation
under such circumstances The undersigned is not persuaded that, because the
respondent in 1940 voluntarily adopted a certain course of action, it was bound to
adopt the same course in 1944. Nor does he believe that, by remaining silent, the
respondent thereby affirmed the truth of the A. F. of L.'s claims While it
is arguable that the A F. of L's campaign literature went beyond the bounds
of mere sales talk, it was not so clearly misrepresentative of the existing state
of the negotiations between the A. F of L. and the respondent as to require
the respondent to speak, or so compromising of the respondent's interests that a
desire to assist the A F. of L may fairly be inferred from its silence.11
1° The material paragraphs of the minutes, which are otherwise concerned with certain
grievances, are as follows
Committee asked for a reclassification on inspectors and testers This had been
discussed by the Committee with Mr Lynch at other meetings and the Committee
felt this should be done
Business Representative inquired from Mr Mitchell as to whether anything con-
clusive had been done about the extended vacation plan. Mr Mitchell replied that
we should wait before further discussing this to see who should be the Bargaining
Agent before re-classifying yobs or talking about the extended vacation plan at this
time Business representative stated that he felt certain Local 3 would continue to
be the Bargaining Agent and asked that meetings be scheduled with Mr Lynch for
the purpose of reclassification as provided for even in the previous contract. Mr.
Mitchell agreed to this [Italics supplied.]
It will be observed that the respondent distinguished between discussing the matter of
reclassifying inspectors and testers, provided for in the former contract, and which,
theiefore, constituted a grievance, and discussing the natter of extending its vacation
period beyond that provided for in the former contract, which, if any agreement were
reached, would constitute an entirely new contract provision In fact, no further dis-
cussion of the reclassifying of inspectors and testers appears to have taken place during
the period in question.
11 It will be noted that the A F of L 's statement in 1942, which the respondent sought
to correct by posting a notice, was to the effect that the respondent had signed a contract
when in fact it had not done so This statement was compromising to the respondent, in-
asmuch as, if true, it would have warranted the conclusion that the respondent was
determined not to recognize the C. I. O. even if it were certified as the result of the then
pending election.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the contrary, any interposition by the respondent during the course of the
election campaign to correct these statements by the A. F of L might well have
been construed by some employees as evidence of a desire to encourage the
C.I.0.
The undersigned accordingly finds that the respondent did not, by negotiating
with the A. F. of L. after the date of the Board's Direction of Election, or by
failing to correct statements or inferences that it had done so, interfere with,
restrain, or coerce its employees.
3. Other alleged acts of encouragement of the A. F. of L. and discouragement
of the C. I. 0.
Shortly after the beginning of the contractual relationship between the A. F.
of L. and the respondent, in 1937, a system of shop stewards was established and
thereafter maintained. The duties, of the shop stewards were to handle the
grievances of employees and to take them up with management at periodic meet-
ings. In practice, the stewards also collected union dues. Mitchell testified
that during the first several years of the respondent's relationship with the
A. F. of L. that organization had difficulty in obtaining satisfactory shop stewards,
and that on various occasions he discussed the matter with Howard McSpedon,
then business representative of Local No 3 As a result, McSpedon suggested
to Mitchell that George Frey, at that time working in the A. F. of L.'s office, be
employed by the respondent to act as a roving steward to assist and supervise the
shop stewards in their duties, and to endeavor to reduce the number of employee
complaints before they came to be formal grievances. Mitchell accepted Mc-
Spedon's suggestion and the respondent employed Frey shortly after December 7,
1941. By arrangement with McSpedon, Frey was given charge of the 8 or 9
stewards then in the Glenwood plant, to which the respondent's production at
that time was principally confined. Frey's work for the respondent, as distin-
guished from his work in connection with the shop stewards, consisted of checking
lockers and safety conditions. He was paid by the respondent on an hourly
basis's and , for pay roll purposes, was attached to the respondent's personnel
office. In the performance of his work in checking lockers and safety conditions
,he was responsible to Daniel Lynch, the respondent's personnel manager. In
the handling of grievances he was responsible to the A F. of L.
With the increase of the respondent's volume of war production after Pearl
Harbor, the Bare Wire and McLean Avenue plants were put into production, and
the number of employees rapidly rose. Upon the suggestion of the A. F. of L.,
the respondent, in 1943, agreed that Virginia Thompson, and Mary Mullins, be
named by the A. F. of L. as roving stewards in the Bare Wire and McLean Avenue
plants respectively. Harold Otis was later chosen by Mitchell from among
several employees whose names were submitted him by the A. F of L, as roving
steward in the warehouse. Thompson, Mullins, and Otis, all three of whom
had for sometime previously functioned as shop stewards in their respective
departments , though doing production work, upon their appointment as roving
stewards ceased doing any production work and, like Frey, were put on the
personnel department pay roll at hourly wages. As roving stewards they handled
the complaints of employees, collected union dues, and assisted the shop stew-
ards. They were given crown badges which permitted them to go from one
plant to another. In the adjustment of complaints they were responsible to
Frey, who was relieved of his duties in connection with the respondent's safety
U 'Later Frey came to be paid on a salary basis.
PHELPS DODGE COPPER PRODUCTS CORPORATION 697
work, although he continued to check lockers . In practice , Frey, along with the
roving and shop stewards , endeavored to resolve complaints on a departmental
level with the department foreman. Failing in this, Frey and the shop steward
would present the complaints to Lynch. If the complaints remained unadjusted,
they became eligible for presentation to management as formal grievances.
The above summary of the origin and functioning of stewards in the respond-
ent's plants and warehouse 13 is derived from the testimony of Mitchell, McSpedon,
Frey, and other witnesses , whose testimony was not substantially in conflict 1'
It is apparent that under the A F. of L.' s arrangement with the respondent,
neither Frey , Thompson , Mullins, or Otis, though paid by the respondent, was in
any ordinary sense an employee of the respondent . It is also clear from the
record that they were regarded by the employees generally as representatives of
the A. F. of L.
(b) Activities of supervisory employees
The respondent admits that following May 31, 1943, the expiration date of the
contract, it continued in effect its wage and hour provisions, as well as the system
of stewards and the method of handling complaints and grievances previously
described. The roving stewards continued to be permitted to go from department
to department and from plant to plant to investigate complaints, and both they
and the shop stewards continued to collect union dues 16 There is nothing in the
record to show, and it is not contended, that the C. I. O. raised any objections to
the continued functioning of this grievance procedure or to the activities of the
A. F. of L. stewards.
Although it has been found that Frey, Thompson, Mullins, and Otis were not
in the usual sense employees of the respondent, it remains to be considered whether
certain activities undertaken by them as well as by certain shop stewards, on some
occasions acting alone and on other occasions in conjunction with admittedly
supervisory employees both before and after the appearance of the CIO, as well
as prior to and following the Board's Direction of Election, constituted interfer-
ence, restraint and coercion by the respondent.
^(1) Statements that A. F. of L membership was necessary in order to obtain
wage increases
Gloria Garra testified that when she was employed in February 1944, in the
braiding department at the McLean Avenue plant, she was told by Stahl, an
interviewer in the personnel department that although she would automatically
receive the raise in wages which was customarily given employees after 3 months
11 D'Angelo testified that In the greater New York area Local No. 3 has stewards in the
following plants who receive one dollar a day in addition to hourly production wages, and
do no work other than the handling of grievances for that organization : Circle Wire and
Cable Company , Acorn Insulated Wire Company , Eastern Tube & Tool, and Columbia Circle
Company
11 The only evidence In possible contradiction consists In signed statements given to a
Field Examiner of the Board , during his investigation of the case , by Frey, Otis and
Thompson . For example , Frey, in his statement states that lie is , " in effect , an assistant
to Mr. Lynch ." Otis refers to himself as a "personnel -labor relations" man, and also
refers to Lynch as his superior . Thompson describes herself as "an assistant to Mr Frey
of the personnel department " While these references , coupled with the failure of either
Frey, Otis , or Thompson to mention their connection with the A . F. of L., creates the
suspicion that they are actually supervisory employees of the respondent in the personnel
department , they are not sufficient to overcome the substantial credible evidence to the
contrary.
16 Lynch testified • "I suppose they do sometimes collect dues . We try to discourage it
during working hours."
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment, she would have to join the A. F. of L. to obtain further increases.
Stahl was not called as a witness. During the following May, after she had
joined the 0 I. 0 , Garra, according to her testimony, complained to Anne Azzaro,
A. F. of L. steward in her department, that she had not received her 3 months
raise and Azzaro told her that there was a "new ruling" under which employees
employed after January 1944 had to join the A. F. of L. to receive such a raise.
Azzaro summoned Mary Mullins and Mullins confirmed what Azzaro had said.
Eva Dwaretsky, department forelady, joined the discussion and stated that she
had received her own periodic increases and had not heard of the new rule
referred to by Azzaro and Mullins. Azzaro, while testifying, denied that she told
Garra that her raise was contingent upon joining the A. F. of L.,'but stated that
she could not recall whether Mullins had so stated to Garra. Mullins, though
called as a witness for the'Board, was not recalled by the respondent. Azzaro was
an evasive and contradictory witness, and the undersigned credits Garra's testi-
mony. Garra was not asked if she subsequently received her raise, and the under-
signed concludes and finds that she did.1e
Margaret Walag testified similarly that in January, 1944, after she had been
working for more than 3 months, she asked Alex Annis, general foreman of the
McLean Avenue plant, why she had not received her raise, and Annis sent her to
Azzaro who referred her to Mullins Mullins told her, according to Walag's
testimony which the undersigned finds credible, that under a new rule effective
January 1, it was necessary to join the A F of L. to receive a raise Walag
apparently received her 3 months raise. But in March, 1944, at the end of 6
months of employment and after she had joined the C. I 0., Walag again
approached Annis and asked him why she had not received her 6 months raise.
Annis, according to Walag, asked her how she was "fixed in the union." When
Walag replied that she did not belong to the A. F. of L, Annis asked her "where
we would be" if it were not for the A. F. of L, and why she did not join that
organization. He further stated, according to Walag, that if she joined the
A. F. of L. she would receive her raise within 2 weeks On the following day
Walag was stopped in the plant lobby by Annis, who ushered her over to Frey
and told him that Walag was "the girl I was talking about,-she wants to sign
up." When Walag remarked that she did not want to join the A. F. of L, Frey,
out of the presence of Annis, again urged her to sign up.
Walag's testimony as to her conversation with Annis was denied by the latter
while testifying Frey, originally called by the Board as a witness, was not
recalled by respondent The undersigned has previously found Walag to be a
credible witness, and he was not impressed by Annis's denial He finds that
Annis, on the occasions mentioned above, made substantially the statements
attributed to him by Walag.
The belief in the minds of some employees that it was necessary to join the
A F. of L, in order to qualify for periodic raises, existed for some time prior
to the C. I. O.'s organizational drive in February, 1944. Thomas Riciutti who,
although a member of an American Federation of Labor union at the time of his
employment in January, 1943, had not joined Local 3, testified that he received
his 3 months raise automatically But about June, just before or after his 6
months raise became due, he asked his foreman, Farrington, why he had not
received it. Farrington replied that he had filled out Riciutti's application for
the raise Later, the raise not being forthcoming, Riciutti again spoke to Far-
rington who, in Riciutti's presence, telephoned the personnel office Farrington,
at the close of his telephone conversation turned to Riciutti and reported that
the personnel office had said that the 6 months"raise no longer was automatic, but
11 Other witnesses including Morgan and Campbell, members of the C I. O , testified that
they received their periodic raises.
PHELPS DODGE COPPER PRODUCTS CORPORATION 699
had to "come through the union." Riciutti then joined the A. F. of L., and
obtained his raise. Lynch denied while testifying, making the statements at-
tributed to the personnel office by Farrington, and testified that the respondent
made no requirement of membership in the A. F. of L. as a condition precedent
to obtaining either 3, 6 or 9 months raises. Farrington, though still in the
respondent's employ was not called as a witness. The undersigned finds that
Farrington made the statements attributed to him by Riciutti. His findings as
to Lynch's purported statement, and other alleged statements herein related are
hereinafter made.
Edith Dankovitz, Al Stewart, and Armando Casella testified that upon their
being employed, Luke Gillen, a clerk in the personnel office whose duty it was
to give instructions on company policy to new employees, told them that they
would have to join the A. F. of L. within 3 months in order to get a raise. Gillen,
when called as a witness, denied making this statement to Dankovitz, Stewart,
Casella, or anyone else, but stated that he told all new employees simply that the
respondent had a contract with the A. F. of L. in which the respondent agreed
to- supply union labor on all jobs where the union label was used, and that em-
ployees were exp6cted to maintain their membership in the A. F. of L. while
working on such jobs. He admitted that it was his custom not to make any
reference to the general maintenance of membership clause in the contract'?
Bernard Fada, who was employed in January, 1944, testified that during the
following March or April Mullins asked him to join the A F. of L., stating that it
was necessary for him to do so to receive his 3 months raise In May, according
to Fada, he spoke about a raise to Leverett Cross, superintendent of the McLean
plant, who told him that his and other raises had been approved, but that it was
necessary to join the A. F. of L. in order to receive them. Fada cited the other
operator on his machine who, Fada told Cross, was not a member of the A. F. of L.
but had nevertheless received a raise. Cross replied, still according to Fada,
that he, Cross, had not been superintendent when that raise was granted. Cross
went on to say that other employees belonged to the A. F. of L. and were paying
dues, and asked Fada why he should obtain a raise which had been negotiated by
the A F. of L. when he did not belong to that organization. Following his con-
versation with Cross, Fada, who had signed a membership application card in the
C I. 0, joined the A. F. of L. and shortly thereafter received his raise. Cross
when called as a witness, denied having any such conversation with Fada. The
undersigned found Cross to be a contradictory and unreliable witness, and credits
Fada's testimony as above related.
Walag whose conversation with Annis, general foreman of the McLean Avenue
plant, concerning joining the A. F. of L. in order to qualify for a raise, has been
related, and whose subsequent discharge upon orders of Cross is hereinafter set
forth, testified as to her conversation with Cross on that occasion. Walag, ac-
cording to her testimony, complained to Cross of the activities of Azzaro, steward
in her department, stating, among other things, that Azzaro was consistently try-
ing to persuade her to join the A F. of L. Cross replied, according to Walag, that
Azzaro was "just a shop steward" who was "trying to get the girls signed up", and
asked Walag: "What is the matter, don't you belong, or don't you like the Union,"
saying that "You take the raises the union offers you, don't you?" Cross, while
testifying denied making any such statements to or asking any such questions of
Walag. The undersigned has previously found Walag to be a credible witness,
and Cross contradictory and unreliable. He credits Walag's account of her con-
versation with Cross as above related.
"A copy of Factory Rules and Regulations is given each employee when hired. The
Factory Rules and Regulations make no reference to the A. F. of L. contract.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that A. F. of L. stewards on various occasions repre-
sented that membership in that organization was a prerequisite to obtaining wage
increases, and that on some occasions, as found above, they were joined in this
by responsible supervisory employees, including Superintendent Cross and Fore-
men Annis and Farrington. The record does not support the conclusion, however,
that membership in the A. F. of L. was, in fact, required of employees as a condi-
tion precedent to obtaining the 3, 6 and 9 months raises granted by the respondent,
and the undersigned finds that witnesses were in error who attributed contrary
statements to Lynch, Gillen, and Stahl in the personnel office. It is quite probable,
as the respondent's brief points out, that these witnesses misunderstood the re-
spondent's explanation of the contract clause pertaining to the use of the union
label. It is hereinafter found that the statements made by Cross, Annis, and
Farrington on this subject constituted unfair labor practices.
(2) Alleged assistance by the supervisors in soliciting for the A. F. of L.
There is some evidence that the respondent aided the activities of A. F. of L.
stewards in soliciting members during the period immediately prior to the elec-
tion. Much of this evidence, and that on which the Board laid most stress, had
to do with Fred Field and John Iaciafano stewards for the A. F. of L. in the ware-
house, and their facilitating the egress of John Zelinsky from the warehouse yard
for the purpose of soliciting members and distributing union literature. Zelinsky,18
who was first employed at the McLean Avenue plant where he joined the A. F. of L.,
later signing a membership application card in the C. I. 0., was transferred to the
warehouse about 2 weeks prior to the election as a laborer under Charles Petrizzo,
truck foreman. There he came in contact with Field, and Iaciafano. Iaciafano
persuaded Zelinsky to retain his membership in the A. F. of L., and, as evidence of
his good faith, Zelinsky offered to introduce Iaciafano to Anne Spinella, who
worked in the braiding department at the McLean Avenue plant, whom Zelinsky
described as active in the C. I. 0. A few days later, and about a week prior to
the election, Iaciafano and Field arranged to leave the warehouse yard during
working hours, taking Zelinsky with them, to visit the McLean Avenue plant.
About noon having made sure, according to Iaciafano's testimony, that Petrizzo
was in another part of the yard, laciafano distracted the attention of the guard
while Zelinsky, having changed into his street clothes, slipped out the yard gate.
laciafano and Field then went through the gate, joining Zelinsky outside." The
three men drove to A. F. of L. headquarters, and then to the McLean Avenue plant,
where they arrived as the 4 o'clock shift was coming in. Mullins, previously de-
scribed as A. F. of L. steward in the McLean Avenue plant, was outside and
laciafano asked her to call Anne Spinella. Mullins got in touch with Spinella in
the braiding department, told her that some employees wanted to speak with her,
and escorted her out of the plant 20 With reference to Spinella's ability to leave
the plant without a pass, Mullins told her that she had "arranged everything."
Mullins introduced Spinella to Field and Iaciafano, and Spinella conferred with
-18 The facts here set forth are taken from the testimony of Zelinsky, Field, Iaciafano,
and Anne Spinella, which is in substantial agreement in most material respects.
19 Field's duties for the respondent N% ?re those of a checker It was frequently necessary
for him to visit one of the production plants, which he did upon obtaining a pass from
Doty, warehouse superintendent. Inasmuch as Iaciafano had a car, he frequently took the
latter with him, first obtaining Doty's permission. On the occasion in question, Field had
obtained a pass for himself and Iaciafano, for the purpose of going to the McLean Avenue
plant to check on certain materials Zelinsky, of course, was not included in the pass.
20 As in the warehouse, it was ordinarily necessary to have a written pass in order to
leave the plant during working hours. Mullins, in her capacity of roving steward, had a
crown badge, which entitled her to leave the plant at will, and to go into any department
of the plant.
PHELPS DODGE COPPER PRODUCTS CORPORATION 701
them and Zelinsky . The men attempted to persuade her, without success, to
renounce the C. I. O. and to join the A. F. of L. The conversation lasted about 45
minutes,21 and when Spinella reminded Iaciafano that she was supposed to be at
work, the latter told her, as had Mullins, that "everything was fixed." Spinella
reentered the plant without being questioned by the guard. On her arrival in the
braiding department, Tony Fernandez, acting foreman, asked her where she had
been, and when Spinella told him that Mullins had escorted her from the plant,
Fernandez stated that Mullins had no right to do so without telling him before-
hand. Spinella , however, was not docked in her wages , or otherwise disciplined.
Zelinsky, Field and Iaciafano arrived back at the warehouse about 4: 30 o'clock.
Petrizzo and Doty testified that they were unaware of Zelinsky's absence from the
warehouse yard on this occasion.
On a second occasion, a few days prior to the election, the three men again left
the warehouse yard on A. F. of L. business, employing the same ruse as on( the
first occasion This time they were gone approximately 2 hours and employed
the time in passing out A F. of L. election campaign leaflets to employees coming
in on the 4 o'clock shift at the McLean Avenue plant. Petrizzo testified that on
this occasion, as on the previous one, he was unaware of Zelinsky' s absence from
the warehouse yard.
Helen Murray, who worked in the Bare Wire plant on the 4 o'clock to midnight
shift, testified without contradiction, and the undersigned finds, that about a
week prior to the election she left the plant about 20 minutes before her quitting
time in the company of Rooney, department steward for the A F. of L, and passed
out A. F. of L. leaflets at the plant gate to employees coming on shift. Murray
and Rooney did not have passes but they were not stopped by the guard.
(3) Declarations of supervisory employees hostile to the C. I. O.
During the period immediately prior to and following the Board's Direction
of Election, Mitchell, the respondent's works mahager, on several occasions called
together the six plant superintendents and instructed them to remain neutral as
between the A. F. of L and the C. I. 0, and to avoid "factional incidents." The
record fails to reveal any declarations of plant superintendents, other than Super-
intendent Cross in the McLean Avenue plant, hostile to the C. I. O. or favorable
to the A. F. of L. There is some evidence, however, that one or two foremen
indulged in such activity. For example, Edith Dankovitz testified that on one
occasion in April or May, Jerry Moreland, foreman of the taping department in
the McLean Avenue plant, remarked to a group of three employees that "anyone
who belongs to the C I. O. don't belong in the shop ;" and that Frank Giagrande,
the sub-foreman, stated to her, "We know you are not doing the work for the
C. I. O. for nothing." Both Moreland and Giagrande when called as witnesses,
denied making the statements attributed to them by Dankovitz. The undersigned
believes and finds that they made the statements in question Margaret Walag
testified that in March, while she, Viola Boyle, a forelady in Walag's department,
and others were in the women's rest room, Boyle was reading a newspaper account
of a contract which the CIO was said to have in another plant. Boyle, according
to Walag, declared that the newspaper account was "propaganda" and that the
C. I. O. did not have such a contract Boyle, on another occasion testified to by
Walag, stated, with reference to new employees and to the maintenance of member-
ship clause in the A. F. of L. contract, that new employees "know what they come
into, and if they don't like it, why don't they leave"? Boyle, while testifying,
21 Here, the testimony of Iaciafano and Spinella is in conflict The former testified that
the conversation lasted about 3 minutes The undersigned accepts Spinella's estimate of
the time to be nearer in accord with the facts.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that she did not remember the first incident related by Walag, and denied
the second . The undersigned found Walag to be a credible witness and finds that
Boyle made the statements attributed to her by Walag. Boyle's part in the
subsequent discharge of Walag is hereinafter related.
Katherine Turek, whose employment was terminated on June 1, because of
her failure to maintain her dues in the A. F of L., testified that she had a con-
versation with Frey, in Lynch's office, when Mike Spaun, Glenwood plant super-
intendent , was present, during wpich Turek asked Frey why the A. F. of L. did
not do things the same way that the C. I O. did them. Spann, according to
Turek , became excited and asked Turek where the C. I. O. had ever benefited
employees , and went on to declare to Turek, in Ukrainian, "only crazy Russians
stick out for C. I. O , and one crazy Russian tells another one, and they do not
know any better-but why don't you fully understand A. F. of L, what they are
doing for each worker?" Spaun testified that he was in Lynch's office when Frev
was talking to Turek, but that, though he was approximately 10 feet from them,
he did not hear or participate in their conversation, and denied making the re-
marks attributed to him by Turek. Frey was not called as a witness by the
respondent . The undersigned credits Turek's testimony and finds that Spann
made, in substance , the remarks attributed to him by Turek.
Conclusions
The complaint does not allege that the continued functioning of the A. F. of L.
'stewards during the period immediately prior to the election constituted an unfair
labor practice It does allege, however, that the respondent "granted adherents
of the (A. F. of L.) the privilege of using working time and respondent's property
for the purpose of attending meetings and propagandizing and electioneering in
connection with the-election-while denying similar privileges to the adherents
of the (C I 0 " There is no evidence in the record that the A F of L used
-working time and the respondent's property for the purpose of attending or
'holding meetings . The evidence as to "propagandizing and electioneering" is
confined to the occasion when Field, laciafano, and Zelinsky left the warehouse
yard and interviewed Spinella outside the McLean Avenue plant, to another occa-
sion when the same employees left their work to distribute A F of L. liter-
ature outside the McLean Avenue plant, and to the occasion when Murray left
the Bare Wire plant 20 minutes before quitting time in the company of an
A. F. of L. department steward and distributed leaflets outside that plant to
employees coming on shift.
Field and Iaciafano were privileged to leave the warehouse yard in connection
with their work Petrizzo, warehouse yard foreman, testified that he was not
aware of the absence of Zelinsky, who was not so privileged. In view of the extent
of the warehouse yard, the undersigned credits Petrizzo's testimony. Were the
undersigned not to credit Petrizzo, there is still no evidence that Petrizzo knew
the purpose of Zelinsky's leaving in the company of Field and Iaciafano, or that
he knew that Field and Iaciafano themselves left on A F. of L business rather
than in the business of the respondent. The same observations hold true as to the
guard at the gate to the warehouse grounds, whose attention Field and Iaciafano
diverted so that Zelinsky might step out. Assuming that the guard willingly co-
operated in passing Zelinsky there is still no evidence that he knew Zelinsky's
purpose in leaving. Further assuming such knowledge on his part, there is no
showing that the respondent thereby acquired such knowledge , and in the absence
of a showing of similar and widespread practices such knowledge may be fairly
inferred.
PHELPS DODGE COPPER PRODUCTS CORPORATION 703
Adverting to the language of the complaint, there is, moreover, no evidence
that the respondent denied to the C. I. O. privileges which the respondent granted
the A. F. of L either explicitly or inferentially There is no evidence that the
C. I O. on any occasion protested, or indeed had any knowledge of, the surrep-
titious leaving of work by the employees above mentioned. There is in this
record, moreover, no substantial evidence of solicitation of membership on the
respondent's time and property, with or without the respondent's knowledge,
either by A. F of L. stewards while adjusting grievances and collecting dues,
or by other A. F. of L. adherents, nor any evidence of the distribution of liter-
ature within any of the plants."
It is clear that such advantages as the A. F. of L. had here were those which
derived from the continued functioning of the stewards and their handling of
complaints and grievances. It may be assumed that those advantages were sub-
stantial, largely because of the prestige which thereby accrued to the A. F. of L.
The respondent contends that it was a practical necessity for it to continue to
maintain its established system of handling complaints and grievances, in order to
maintain production uninterrupted during the period when the representation of
the employees was in question, and that any advantages which may have accrued
to the A F. of L were coincidental and unavoidable. This contention is discussed
in connection with the objections to the election As has been stated, the com-
plaint does not allege that the continuance of the steward system, as an institution,,
consituted an unfair labor practice a
'The undersigned finds that the respondent did not, by granting adherents of the
A. F. of L the privilege of using working time and the respondent's property for
the purpose of attending meetings and propagandizing and electioneering in con-
nection with the election, engage in an unfair labor practice
The undersigned finds, however, that Superintendent Cross and other super-
visory employees, as related above, told employees that membership in the A. F.
of L was necessary in order to obtain wage raises. The undersigned finds that
by making these statements, and other statements antagonistic to the C. I. 0.,
as found above, the respondent interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharges
1. Vincent Campbell, Ruth Johns, and Katherine Turek
Campbell, Johns, and Turek, all employed in the respondent's Glenwood plant,
joined the A. F of L shortly after their employment. On January 5, 1943, the
escape date provided for in the contract between the respondent and the A. F. of
L, each of them, admittedly, was a member of the A F. of L in good standing.'
On various dates after the beginning of the C. I O.'s membership drive, and after
22 In the foregoing respects the situation revealed in this record differs substantially
from that described in the Joshua Hendy Iron Works case, 53 N. L. R. B. 1411, further
discussed in connection with the objections to the election in the section hereof entitled
"The remedy".
23 The reason for this, perhaps , was that the Board , previous to the hearing, was
admittedly unaware that Prey, Mullins, Otis and Thompson , the roving stewards , were in.
any way connected with the A F of L , and regarded them as representatives of the
respondent 's personnel department whose activities on behalf of the A. F. of L. would
bind the respondent.
24In the sense that their dues were paid up. No contention was made that they were
not otherwise in good standing . Campbell was employed on February 20, 1943, joined
the A. F. of L . at the end of 3 months , and made one dues payment ; Johns was employed
on September 21, 1942 , and paid dues until August or September , 1943 , Turek was,
employed on January 15, 1943, and paid dues until September 1943.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had ceased paying dues in the A. F. of L, they signed membership application
cards in the C 1 0 On May 27 and 29, 1944, the A F. of L. addressed letters to
Lynch, advising the respondent that Campbell, Johns, and Turek, among others,
had refused to pay dues to the A. F of L, and demanding the enforcement of the
maintenance of membership provision of the A. F. of L contract as to their 25
In accordance with this demand, all three employees, as well as others included in
the demand but not named in the complaint, were called to the personnel office,
and handed copies of a form letter by Frey. This letter advised them of the
receipt of the A F of L's demand, reminded them of the maintenance of mem-
bership provision of the contract, and suggested that, if the claim as to the non-
payment of dues was in error, the respondent be so advised.' Campbell and
Johns reported to the personnel office on May 29, and Turek on May 31. Frey
suggested to Campbell that he see Lynch, who was out of the office at the time,
on the following day, May 30, Campbell, however, according to his testimony, did
:not see Lynch until June 1 when Lynch told him that if he did not pay his dues
in the A. F. of L. he would be released from his employment, and advised Camp-
bell to "think it over " Campbell replied that he did not wish to think it over, and
Lynch gave him his release Johns testified that Frey told hex to see Lynch before
reporting to work on the following Wednesday, May 31, that she saw Lynch on
that day, and that he advised her to call at the office of the A. F. of L She did so
on the same day,' and returned to Lynch's office later that day, but was told that
he had gone. She saw Lynch again on June 1, and told him that she had failed
to reach an understanding with the A. F of L Lynch thereupon handed Johns
her release. Turek had a discussion with Frey concerning the relative merits of
the A F. of L and the C. I. O.,29 and Frey advised her to see Lynch on the following
25 The letter concerning Campbell and Johns , dated May 27, iihich was in substance
similar to that of May 29 pertaining to Turek , was as follows.
In accordance with Clause #3 of our Contract , we find that the employees listed
° below have violated this provision by their refusal to pay Union dues
The Clause referred to above states, "All employees who on the 5th day of
January, 1943, are members of the Local Union No 3 of the International Brother-
hood of Electrical Workers, in good standing in accordance with the Constitution
and By -Laws of this Local , and those employees who thereafter become members
shall as a condition of employment remain members of the Union in good standing
during the life of this Agreement "
These employees have been approached by their Shop Stewards and have failed
to cooperate in any way. The Union therefore insists that the terms of the contract
be enforced by the Company,
"The respondent's letter was in the following form.
Local No. 3 of the International Brotherhood of Electrical Workers has notified
us that you were a member in good standing of that Local on January 5, 1943, or that
you have since that time become a member. The union also advised us that you
have not paid your Union dues . Under our contract with the Union , if you were
a member in good standing on January 5, 1943 , or if you have voluntarily become
a member since that time, it will be necessary for you to pay your dues to maintain
your good standing in the Union.
If you claim that you were not a member of the Union in good standing on January
5, 1943, and that you have not since become a member , you may advise me and the
matter will be handled . as a grievance under the grievance procedure under the
Contract
27 Johns testified that she inquired of D'Angelo if she could pay her back dues in
installments , and that D 'Angelo insisted that the full amount be paid D 'Angelo denied,
while testifying , that Johns made any such offer , and testified that she told him simply
that she could not understand why she had to pay dues to the A F. of L . when she belonged
to the C. I. O. The undersigned credits D'Angelo's testimony on this point .
28 It was following this conversation that, as has been found , Spann, plant superin-
tendent, engaged Turek in conversation regarding the C. 1 O.
PHELPS DODGE COPPER PRODUCTS CORPORATION 705
day, June 1 Turek, according to her testimony, reported to Lynch on June 1,
before going to work, and told him that she would pay her back union dues only
if the respondent gave her the 9 months raise, which she claimed was due her.
Lynch replied, in effect, that the two matters were not related, and gave her her
release. Campbell and Johns last performed work for the respondent on May 30
and Turek on May 31
There is some conflict in the evidence-as to whether Campbell, Johns, and
Turek were formally handed their releases on May 31, or June 1. The Board
contends, and this is the sole issue, that it was on June 1, and that, inasmuch as
the contract between the A. F. of L. and the respondent expired, by its terms, on
May 31, the discharges of Campbell, Johns, and Turek in June were discrimina-
tory. The undersigned finds that the three employees, as they testified, and as
the respondent concedes may have been the fact as to Turek, were not given
their releases and told they were discharged until June 129 The respondent
urges in its brief, that, even if that were the fact as to all three employees, it
was justified in discharging them on June "even if routine procedures under the
contract, although commenced before May 31, may not have been finally com-
pleted until the day after that date."
The undersigned is not in accord with the respondent's contention. Admitting
that the respondent might properly have discharged the employees in question
upon receipt of the A. F. of L.'s letters of May 27 and 29, it did not do so, but
continued them in its employ and gave them an opportunity to come to terms with
the A. F. of L. When they reported to Lynch on June 1 that they had not done
so, or would not do so, the contract had expired and the maintenance of member-
Ship clause was no longer operative. It was only under such a contractual
provision that the respondent could properly make union membership a condition
of employment. By making it a condition of employment on June 1, 1944, the
respondent discriminated against Vincent Campbell, Ruth Johns, and Katherine
Turek because of their non-membership in a labor organization.
2. Margaret Walag
Walag was employed by the respondent in September, 1943, at the Glenwood
.plant, where she worked as a braiding machine operator in the braiding and
winding department. Alex Annis was her shop foreman and Eva Dwaretsky,
in immediate charge of braiders, her forelady. Walag joined the C. I. O. in
February, 1944, shortly after the beginning of its membership drive. She became
very active in the affairs of that organization 30 On the evening of April 19,
Walag attended a meeting of the C. I. O. where she spoke, and where she was.
selected, among others, to assist in covering meetings of employees. Anne
.Azzaro, shop steward for the A F. of L. in the braiding and winding department,
2e The releases of Campbell and Johns are in evidence. Johns' is dated May 31, and
Campbell's is undated Johns' time card, also in evidence; was punched on the morning
of May 31, and the respondent contends that it was on this day that she saw Lynch be-
fore going to work and, upon her telling him that she would not pay her dues in the
A. F of L, was handed her release This contention overlooks John's testimony that
she saw Lynch twice, once on May 31 when, as found above, Lynch advised her to go
to the A. F. of L's office, and the second time on June 1 when she reported to Lynch
that she had not come to terms with the A F of L It also overlooks Johns' further
testimony , of impoitance in determining the date of Campbell's and Turek's discharges,
that when she saw Lynch on June 1, Campbell and Turek were waiting in his office.
SOAs a part of her activities, Walag appeared at a conference at the Board's Regional
Office in April as a representativee of the C I. 0 at a conference held in connection with
the C 1. O.'s petition. Representatives of the respondent and the A. F. of L. were pres-
ent. Walag also served on a dance committee of the C. I. 0, and obtained the member-
ship applications of various employees
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose activities on behalf of the A. F. of L. have been previously adverted to, was
present at the meeting on April 19. When Walag, who worked on the midnight
to 8 a. in. shift, came to work that night she and Azzaro exchanged acrimonious
remarks and Walag thumbed her nose at Azzaro. Walag testified that on the
following night, April 20, in the braiding and winding department, Mullins, roving
steward for the A. F. of L, called various operators to a desk where she sat.
Walag and other C I 0 adherents in the department believed that Mullins was
soliciting employees on behalf of the A. F. of L., and determined to take counter
measures. Accordingly, at the end of the shift on the morning of April 21,
Walag, Garra, and Spinella, previously mentioned in the above findings, dis-
tributed G. I. O. leaflets outside the plant to employees coming on the morning
shift. Mullins and other employees observed the distribution from the plant
windows. When Walag came to work that night Annis met her in the plant
lobby, told her that she was laying her off for 4 days, and directed her to report to
Cross, plant superintendent, upon his return from out of town. When Walag
asked if she could get her shoes from her locker, Annis said that she might, but
warned her not to talk to anyone or she would get in "trouble". Walag saw
Cross on April 26, and Cross told her that there had been complaints about her
conduct in the department. Cross, according to his testimony, had previously
been complained to concerning Walag, by both Annis and Mullins Walag, as
has previously been found, charged that Azzaro was soliciting for the A F of L.
in the braiding and winding department, and that conditions there were "un-
bearable." Cross replied that Azzaro was only a shop steward who was endeavor-
ing to sign up employees in the A F. of L., and remarked that Walag accepted
"the raises the union offers you." Walag asked that those who had complained
as to her conduct be called to Gross's office, and Cross summoned Mullins, Azzaro,
Boyle, forelady of the winders, Kurcharcyzk, a department clerk, Dorothy
Tompkins, and Sacco, *a spool girl Boyle, forelady of the binders, who had
no supervision over Walag, stated to Cross that Walag had called her[ a "big
dope," and Azzaro complained that Walag had thumbed her nose at her. Walag
admitted while testifying that she had thumbed her nose at Azzaro, but denied, as
she did to Cross, that she called Boyle a "big dope." Boyle testified that the
incident in question occurred on the night of April 20, the night when, as has
been found, Walag believed that Mullins was soliciting for the A. F. of L, and,
the night following the C. I O. meeting, attended by both Walag and Azzaro.
Boyle stated that while she was "standing next to a machine talking to Miss
Tompkins" she "happened to look up and glanced toward the braiders," when
Walag "shut off her machine and looked over to the side and called over to me
'you big dope' ". On cross examination Boyle further testified as follows :
Q Now, you testified, did you not, that Walag shut off her machine and
leaned over around her machine, and looked at you and hollered-"You big
dope!" Is that right?
A. Right.
Q. And is that all she said?
A. That is right.
Q And then she turned on her machine and she continued to work?
A. Right.
Q. Had she spoken to you previously during that evening?
A. No.
Q. Had you said anything to her the day before?
A. No, sir.
V
PHELPS DODGE COPPER PRODUCTS CORPORATION 707
Boyle, according to her further testimony, reported the matter to both Annis
and Mullins. The record also shows that Mullins, at least, spoke to Cross about
the matter before Walag was called in.
Sacco, a spool girl who, according to Boyle, "happened" to be picking up
spools from Tompkins' spool tray at the time of the alleged incident, when called
as a witness to Cross' office, corroborated Boyle's statement. She was not,
however, called as a witness, although available,` nor were other braiders and,
winders whose machines were located between Walag's machine and Tompkins'
machine next to which Boyle, according to her testimony, was standing Tomp-
kins testified that she did not hear any remark by Walag directed to Boyle, and
told Cross merely that Boyle said to her, "The nerve of some people calling other
people dopes"
The undersigned concludes that Boyle's complaint as to Walag was not founded
in fact. No reason appears for Walag's calling Boyle "a big dope", or any other
name. Azzaro, who testified as to Walag's thumbing her nose at her, was not
a witness to Walag's alleged name calling, the principal alleged reason' for
her discharge. Sacco was a member of the A. F. of L, and Boyle had been a
member prior to her promotion to forelady in October, 1943. But, even though
it were to be found that Walag was guilty of name calling, the undersigned is
convinced that it did not constitute the reason for her discharge. The reason
assigned impresses the undersigned as being trivial. Boyle was not Walag's
forelady and, assuming that Walag called her a "a big dope", the threat to
plant discipline could hardly have been so grave as to warrant the discharge of
an employee whose efficiency as a worker was not in controversy, and against
whom there is no showing in the record of previous acts of insubordination. The
failure of Cross to call Dwaretsky, Walag's own forelady, is significant, as is
the apparent failure to consult with her before discharging Walag 32
The undersigned believes and finds that A F. of L, stewards, Mullins and
Azzaro were determined to get rid of Walag, an active partisan of the C. I. 0.,
and that the respondent, acting through Annis, Boyle, and Cross, all of whom
had formerly belonged to the A. F. of L, 33 and all of whom it has been found
made statements hostile to the C 10. ; acquiesced in the A. F. of L.'s design.
3. EDITH DANKOVITZ
Dankovitz was employed in January 1944 as a taping machine operator in the
taping department in the McLean Avenue plant, whose foreman was Jerry More-
land. Frank Giagrande was a subforeman to whom Dankovitz was immediately
responsible. Dankovitz signed a membership application card in the C. I. 0. in
ai Sacco and Tompkins were in the best position , according to Boyle 's description of the
alleged incident, to bear and observe anything which Walag may have said to Boyle.
92 Cross' testimony was contradictory concerning the respondent's motivating reason in
discharging Walag
Q It would make a difference to you, would it not, in considering the case whether
Walag had thumbed her nose and backside at Annis or Miss Azzaro, wouldn't it?
A. It would not,have made a bit of difference. She would not have been discharged
if she had not lied, according to the testimony given me
Q. I see. You discharged her for lying?
A. That is right
Q. That is the reason for her discharge.
A. Plus the fact that here was the disturbance she had made , yes This
case never would have come to trial if she had taken her punishment for the four
days. That is why it came to me, otherwise it never would have come to me.
88 The names of Cross, Boyle , Annis, Farrington , Doty, Spain , and others of the respond.
ent's supervisory employees appear on the list of members of the A. F. of L. in good
standing which was furnished the respondent on January 5, 1943. It is not denied that
these supervisory employees were former members of the A. F. of L.
662514-46-vol 63-46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April, signed up two or three other employees , and served on a dance committee
of the C. I. O. Her union affiliation became known to the respondent. It has
been previously found that Giagrande on one occasion said to her "We know you
are not doing the work of the C. I. O. for nothing", and that on another occasion
Moreland declared to another employee in Dankovitz 's presence, "anyone who
belongs to the C. I. O. don't belong in the shop."
About June 3 Dankovitz was temporarily transferred by Moreland to the rubber
tubing department , where she carried rubber from the mill to the No. 5 tuber,
a machine which required the services , in addition to those of Dankovitz, of an
operator , helper, and a feeder. On June 6, the day prior to Dankovitz ' s discharge,
the No. 5 tuber , was closed down for cleaning for several hours, beginning at
10 a. m., the beginning of the usual ten minute rest periods for employes in the
department , and Dankovitz went to the women's rest room where , according to
her own testimony , she stayed for approximately 45 minutes . She testified that
the customary practice when her machine was down was for the operator to tell
the'erew to go to the rest room where they would wait until called. She also
testified , in contradiction to her other testimony , that the operator "would tell us
to go downstairs and come up in about an hour or an hour and a half." Peresape,
the operator of No. 5 tuber is in the armed services was unavailable as a witness.
Fischer, feeder on No. 5 tuber , testified that the machine was never down for more
than one hour , and that the crew was not supposed to be absent from the floor
for more than 30 minutes . Moreland testified that employees were not permitted
to be gone more than 10 minutes , and that operators did not have authority to
grant longer absences from the floor. He further testified , and the undersigned
finds, that during the period of her employment he had reprimanded Dankovitz on
numerous occasions for taking a rest period of more than 10 minutes . Giogrande
testified that he had warned her on other occasions , and the undersigned finds
that be did. Other witnesses testified that Dankovitz was frequently absent from
her machine when she should have been working. Moreland further testified
that upon Dankovitz's return from the rest room on June 6, after an absence of
approximately 30 minutes , he warned Dankovitz that if she continued to absent '
herself for such periods she would be discharged . Dankovitz denied receiving
such a warning , but the undersigned finds Moreland 's testimony on this point to
be in accord with the facts.
On June 7, at 10 a. m. Dankovitz again went to the rest room where , according
to her own admission while testifying, she again stayed for about 30 minutes.
She gave as her reason that her machine was again down. Moreland testified
that it was not down on that day, and the production record of the machine, which
is in evidence , supports his testimony. The testimony of Fischer on this point
is in contradiction , and that of Fada, the helper called as a witness by the
Board, is silent on the point . The undersigned finds that the No. 5 tuber was not
down on June 7.
Moreland observed Dankovitz going to the rest room at 10 o'clock , and after
waiting about 15 or 20 minutes for her return left word for her to see him upon
her return to the floor. Dankovitz returned at about 10: 40 And reported to More-
land, who discharged her.
While the record raises a suspicion that Moreland, a member of the A . F. of L.
before becoming a foreman, and who, it has been found , was hostile to the C. I. 0.,
may have desired to get rid of Dankovitz who was known to be affiliated with
the C. I. 0, the undersigned believes that the evidence is not sufficient to sustain
such a conclusion . He finds that Dankovitz was discharged because of frequent
absences from her machine when she should have been working.
PHELPS DODGE COPPER PRODUCTS CORPORATION
4. Elmer Van Sickle
709
Van Sickle was employed in October, 1942 in the Glenwood plant. At the time
•of his separation from his employment on June 6, 1944, he was working in the
nulls department in the Bare Wire plant. He joined the A. F. of L. shortly after
coming to work for the respondent, and joined the C. I. 0 in February 1944. He
had various conversations with A. F. of L shop stewards during which he
affirmed his affiliation with the C. I 0 The undersigned finds that his member-
ship in the C I 0 was known to the respondent34
On June 5, 1944, at about 3 p in., Van Sickle was excused from work for the
purpose of visiting the plant physician in the Glenwood plant. After he had
seen the doctor, Van Sickle went to the personnel office where he requested a pass
from Stahl, a clerk in the office, stating that he wished to visit some of his friends
in the mill department in the Glenwood plant, where he had formerly worked,
Stahl signed a pass and Van Sickle went to the mill department. Van Sickle
testified that he was there from 10 to 30 minutes talking to 10 or 12 employees in
a group, urging them to vote for the C. I. 0 at the election, on June 14. Harold
dtis, roving steward for the A. F L., approached Van Sickle and asked him what
he was doing Upon Van Sickle's replying that he was just "talking", Otis left
and came back with Henry Burntitus, the foreman, who asked to see Van Sickle's
pass. When Van Sickle showed it to him he walked away. Otis, however, re-
ported the matter to Lynch, who sent for Van Sickle. Lynch, in the presence of
Frey, asked Van Sickle what he was doing in the mill department, and Van Sickle
told him he was only making a "social call," and refused to answer further ques-
tions as to whom he talked and what he said Lynch then told Van Sickle that
Stahl had no authority to issue a pass, and moreover, accused Van Sickle of
having gone into the braiding room, although the pass was only for the mill.'
The conversation ended by Lynch's taking Van Sickle's employee badge from
him until he could investigate Van Sickle's activities. Van Sickle saw Lynch
again on the following day, June 6, and Lynch told him that he had not completed
his investigation. Van Sickle then, according, to Lynch, asked for his release
so that he could obtain employment elsewhere, and Lynch gave it to him. Van
Sickle denied that he asked for his release, and testified that on this -occasion
Lynch told him that he was discharged. Van Sickle, however, admitted saying
to Lynch that he could not afford to lose time from work while he was being
investigated, and further admitted that between his two visits to Lynch's office
he had visited the War Manpower Commission to ask if it was necessary for him
to lose one night's work.
The undersigned finds that Van Sickle voluntarily resigned his employment.
lIowever, were the undersigned to find that the respondent discharged Van Sickle,
the evidence would not be sufficient to find that it was because of his affiliations
with the C. I. O. It is clear that Van Sickle visited the mill department for the
purpose of electioneering for the C. I. O, and that the respondent would not
have issued him a pass had it been aware of this purpose.
"The relationship between the A F of L. stewards and the respondent 's supervisory
employees , most of whom are former A. F. of L. members was, as has previously been
found , so close, owing largely to the operations of the grievance procedure , that it is a
reasonable inference that the respondent knew of Van Sickle ' s membership , though positive
evidence to that effect is lacking.
as There is credible evidence to the effect that when Otis encountered Van Sickle he was
coming out of the braiding room. The undersigned does not find it necessary in view
of the finding hereinafter made, to pass on this point.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Armando Casella
Casella was employed in May 1943. At the time of his discharge on June 7,
1944, he was working as a machine helper on the 4 p. m. to midnight shift in the
Glenwood plant. Mancuso was the operator on Casella's machine, and his fore-
man was John Spaun, brother of Plant Superintendent Spaun. Casella joined
the A. F. of L., and in March 1944, signed a membership application card in the
C. I. 0 He served on the dance committee for that organization, and thereafter
on one or two occasions Spaun mentioned this fact in conversations with Casella.
On or about the night of May 30, Casella was laid off by John Spaun for 5 days
for leaving the plant floor before 12: 15 a. in., the usual punching out time, to
change into his street clothes. Casella admitted while testifying that the reason
assigned for his lay-off was true, stating in explanation that there was no more
work to be done on the machine that night, and that he wanted to catch an
earlier street car home. He testified further that when he told Mike Spaun this,
Spaun told him that he should be glad he was not being discharged Mike
Spawn's credible testimony is to the effect that Casella had been reprimanded
on numerous previous occasions for leaving the machine before punching out
time, and for being too familiar with female employees. The respondent intro-
duced in evidence five warning skips made out to Casella given him as the result °
of his being found in other departments talking to female employees and playing
dice.
On the night of June 6 Casella returned to work He testified that after he
had changed his clothes he went to the time clock, found that his time card was
gone from the rack, asked John Spaun about it, and that Spaun told him not to
start working until he had seen Mike Spaun. Casella, according to his testimony,
waited at the time clock for over an hour, and that when Mike Spaun arrived
he told Casella that he was discharged. Still according to Casella's testimony,
Spaun gave him no reason for his action as
Mike Spaun testified that shortly after Casella's arrival at the plant on the
night of June 6 he found Casella in department 09, about 250 feet from his own
department, distributing C. I O. cards to a group of girls, and that he took
Casella's badge away from him and discharged him. Casella denied while
testifying that he went into department 09 on the night of his discharge, or
that he distributed C I. O. cards. The undersigned found Casella to be unim-
pressive as a witness and does not credit his denial. The undersigned finds that
the respondent discharged Casella for distributing C. I. O. cards during working
hours, and as the result of frequent infractions of the respondent's rules.
6. William Scullion
Scullion was employed by the respondent in 1937, and at the time of his dis-
charge on April 2, 1943, was employed in the shipping department in the Glenwood
plant. He joined the A. F. of L. shortly after he started to work, and in 1941
acted as a shop steward. Thereafter he became dissatisfied with the A. F. of L,
and stopped paying dues. Scullion testified to the effect that his last dues pay-
ment, in the amount of $150, was made on May 4, 1942, and was in payment of
back dues for the month of October 1941. The receipt for these dues is in evi-
dence. At the hearing, on cross-examination, it developed that in November 1940,
the A. F. of L. reduced the initiation fee of new members in the respondent's
ae Board counsel asked the witness if , while waiting for Spaun , he had gone into another.
department to pass out C. I. 0. cards . Casella replied in the negative to all such questions.
PHELPS DODGE COPPER PRODUCTS CORPORATION 711
plant from $1250 to $2, and gave credit in dues of the difference, amounting to
$10.50, to employees who had paid the larger sum. It was the contention of the
A. F. of L. at the hearing that this credit paid Scullion's dues for a period of
7 months from October 1941. Scullion admitted that be was given such a credit,
but it is not clear from the record whether the credit was applied to dues after
October 1941, or previous to that time. Assuming the correctness of the A. F.
of L's contention, it is still clear that Scullion's dues were not paid up beyond
May 1942. It is not contended that he paid any clues since that time, and the
evidence shows that he did not. When the contract between the A. F. of L.
and the respondent containing the maintenance of membership and union label
provisions was adopted, the escape date provided therein was, as has been pre-
viously found, January 5, 1943. It is not in dispute that an employee not a
member in good standing on that date, and who did not subsequently become a
member of the A F. of L, was not obligated to maintain membership in the
A. F. of L under the maintenance of membership provision 37 Frey, at that time
employed in the A. F. of L's business office, repeatedly thereafter requested
Scullion to pay his dues and to resume his membership in good standing in the
A. F. of L., and Scullion consistently refused to do so.
On March 8, 1943, the A. F. of L wrote the respondent as follows :
In accordance with Clause 3 of our contract dealing with the Maintenance
of Membership, we find that in addition to the names already sent you,
William Scullion, William Fennell, Andrew Spann and Anthony Fernandez
also employees of the Habirshaw Wire and Cable Company have violated
this clause by their refusal to pay Union dues. Clause 3 states, "The Ena-
ployei and the Union will discipline without any discrimination any em-
ployee or member of the Union, as the case may be, who by his conduct in-
terferes Mfli the production of the plant or the efficient and harmonious
operation of this Agreement." [Italics in original.]
These people have been approached by their shop stewards but have failed
to cooperate in any way.
Shortly thereafter Scullion was called to Lynch's office where Lynch told him
he would either have to pay dues in the A. Fof L. or quit his employment, and
showed Scullion the respondent's contract with the A. F. of L. On April 2 Scullion
had a conference with Lynch, Mitchell, Qualters and Kelly, the last two repre-
sentatives of the A. F. of L. Lynch showed Scullion a notarized list of A. F.
of L. members said to be in good standing as of January 5, 1943. This list is in
evidence, and Scullion's name appears thereon. Scullion again denied that he
belonged to the A. F of L. and a discussion ensued concerning the amount of
Scullion's dues delinquency. Scullion and Mitchell again showed Section 3 of
the contract to Scullion. Scullion testified as follows with respect to the con-
versation at this point:
Q What did you say, if anything, after that, and what did he say?
A. I said that does not concern me, because I do not belong to the union.
He asked me how far back I would go on this contract.
Q. How far back with respect to what?
A. Paying dues.
a' The respondent's contention that he was obligated to maintain membership under the.
union label provision is hereinafter discussed.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Yes?
A. And I told him it would go back to when the contract was signed a°.
and he said the contract went back to May 90
Q. What did you say?
A. Well, I said. it was signed in December. That is as far back as I will go.
Q. Did Mr Mitchell say anything else?
A. That is all.
Q. Did anybody else say anything?
A. Mr Kelly jumped out of his seat and said he couldn't do business with:
me. He walked out, he and Qualters.
Q. Was that the end of the conversation?
A That was the end of the conversation.
Q. Were you then discharged.
A. I was discharged then.
Lynch testified that he did not recall any discussion as to the amount of delin-
quent dues Scullion should pay, although he admitted that Scullion stated that he
had not paid dues within the last year. Lynch was obviously unclear in his-
recollection of the conversation, and the undersigned credits Scullion's testimony
as quoted above. Mitchell did not testify concerning this conversation. It is-
clear that the respondent was endeavoring to persuade Scullion to pay dues delin-
quent prior to January 5, 1943. Scullion's offer was to pay them from December
1942, when the contract was executed, and the respondent's suggestion was that he-
pay from May 1942, the effective date of the contract, which was, coincidentally,
the month when Scullion actually made his last dues payment. Hence it follows,
and the undersigned finds, that the respondent knew that Scullion had ceased'
being a member of the A. F. of L. in good standing long before January 5, 1943,
the escape date provided for in the contract.
Lynch testified that he believed that the union label clause was also discussed
with Scullion, and that, in his opinion Scullion, as an employee in the shipping
department, necessarily handled, though he did not produce, some materials which
bore, or were in containers which bore, the union label. The undersigned was not
impressed with Lynch's testimony on this matter, and believes that the applicabil-
ity of the union label provision was an afterthought on the part of the respondent.
He is confirmed in his belief by the fact that the A. F. of L., in its letter of March
8, made no specific reference to that clause, as well as by a letter directed to the
Board dated April 18, 1943, written shortly after Scullion's discharge. This
letter, in reply to a letter from the Board dated April 5, 1943, asking for informa-
tion concerning Scullion's discharge, and specifically inquiring whether the ma-
terials handled by him bore the union label, was as follows:
We have a maintenance of membership clause in our contract with
Local #3, I. B. E. W., covering our Habirshaw plants at Yonkers, New York.
Mr. Scullion was named on the verified list of members in good standing which
was filed with us on January 5th. He was not a member in good standing
on last March 8th when the Union complained to us that he' was not entitled
to continue in our employ.
We feel that under our contract we were required to lay him off.
It will be observed that the respondent did not answer the Board's inquiry
respecting the union label, and based its defense to Scullion's discharge solely on
his failure to maintain his union membership.
"December 16, 1942.
30 The contract was made retroactive as of May 31, 1942.
PHELPS DODGE COPPER PRODUCTS CORPORATION 713
The respondent's defense, set forth in its brief, is that it accepted the A. F. of L.'s
sworn statement that Scullion, among others, was a member in good standing in
the A. F. of L on January 5, 1943, that it was entitled to do so, and that if the
A. F. of L. made a false representation as to Scullion's status in the A. F. of L.
Scullion's remedy was against the A. F. of L and not against the respondent.
The undersigned is not in agreement with this contention. It is clear that the
respondent did not, in fact, rely upon the A. F. of L.'s affidavit. As has been
found, it went beyond the affidavit and found that Scullion's dues had not been
paid for many months prior to January 5, 1943, and in fact endeavored to persuade
him to pay them from May 1942. The respondent, therefore, had in its possession
all the information it needed to determine Scullion's status, without inquiring
into the internal affairs of the A. F. of L. In spite of the information thus
acquired, and in full knowledge of the inapplicability of the maintenance of mem-
bership clause as to Scullion, the respondent on April 2, 1943, discharged him.
The undersigned finds that in doing so it made union membership a condition of
his employment, outside the proviso of the Act, and in violation of the Act.
The undersigned finds to be without merit the respondent's contention that
the complaint as to Scullion should be dismissed for lathes because he did not
file a charge until more than 4 months after his discharge. Scullion was dis-
charged on March 30, 1943, and filed a charge on April 4, 1943, and an amended
charge on August 18, 1943
In summary, the undersigned finds that the respondent on April 26, 1944, dis-
charged Margaret Walag because of her membership and activity on behalf of the
C I 0, and that in doing so the respondent discouraged membership in the
C. I. 0. and interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. He further finds that by dis-
charging William Scullion on April 2, 1943, and by discharging Vincent Campbell,
Ruth Johns, and Katherine Turek on June 1, 1944, the respondent discriminated
against them because of their nonmembership in a labor organization, in violation
of Section 8 (3) of the Act.
The undersigned finds that by discharging Edith Dankovitz, Elmer Van Sickle,
and Armando Casella, the respondent did not engage in any unfair labor' practices.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
Connection with its operations described in Section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and that it
take certain affirmative action which the undersigned finds will effectuate the
policies of the Act.
The undersigned has found that the respondent discriminated against Margaret.
Walag, Vincent Campbell, Ruth Johns, Katherine Turek, and William Scullion by
discharging them. He will therefore recommend that the respondent offer these
employees immediate and full reinstatement to their former or substantially
equivalent employment, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may have suffered by
reason of the respondent's discrimination against them, by payment to each
of them a .um of money equal to the amount which he normally would have earned
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as wages from the (late of his discharge to the date of the respondent's offer of
reinstatement, less his net earnings during said period.40
The undersigned has found that the respondent did not discriminate against
Armando Casella, Elmer Van Sickle, and Edith Dankovitz by discharging them.
He will therefore recommend that the complaint be dismissed as to these
employees.
The objections to the election
The Board's order directed a hearing on the following objections of the C. I O.
to the election :
(a) Certain privileges were granted to Local Union No. 3.of the Interna-
tional Brotherhood of Electrical Workers, A. F of L. advocates in connection
with their pre-election activity while concurrently United Eelectrical, Radio
and Machine Workers of America, C. I. O. advocates were restricted and
watched ;
(b) Employees on the staff of the Company's personnel department actively
assisted Local Union No. 3 of the International Brotherhood of Electrical
Workers, A. F of L and attempted to coerce United Electrical, Radio, and
Machine Workers of America, C. I. O. advocates;
(c) The Company discharged certain employees, i. e. Armanda (sic) Ca-
sella, Margaret Walag, Edith Dankovitz, and Elmer Van Sickle, during the
pendency of the petition because of their membership in or activity on be-
half of United Electrical, Radio & Machine Workers of America, C. I. 0
It has been found above that the respondent did not, in the language of the
complaint, grant "adherents of the (A. F. of L.) the privilege of using working
time and Respondent's property for the purpose of attending meetings and
propagandizing and electioneering in connection with the-election-while
denying similar privileges to adherents of the (C. I. 0.)." It has been found,
moreover, that the C. I. O. requested no privileges of any kind. Although the first
of the above objections uses the language "restricted and watched," rather than
"while denying similar privileges," there is still no substantial evidence in the
record that any C. I. O. adherent was restricted or watched 41 It has been found
that the continuance of the system of stewards as an institution was not alleged
as an unfair labor practice. The language of the first objection is perhaps broad
enough to permit finding that the continued functioning of the steward system, in
and of itself, prejudiced the election, irrespective of whether it constituted an un-
fair labor practice. Such a distinction the undersigned does not find it prac-
ticable to draw in this case. Were another election to be held the C. I. O.
would be subject to whatever disadvantages derive from the functioning of the
steward system as an institution, unless the respondent disestablished or modi-
fied it. This, under the state of the pleadings in the unfair labor practice case,
cannot be ordered
The situtation revealed by the record in this case is quite different from the fac-
tual situation in the Joshua Hendy Iron Works case, previously referred to.
40 By "net earnings" is' meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber and United Brotherhood of Carpenters and Joiners of America , Lumber
and Sawmill Workers Union , Local 2590 , 8 N. L. R. B. 440 Monies received for work
performed upon Federal , State, county , municipal or other work -relief projects shall be
considered as earnings . - See Republic ,Steel Corporation v. N. L. R. B., 311 U. S 7.
41 Aside from the testimony of Margaret Walag that Anne Azzaro, A. F. of L. steward,
watched her dui lug the course of one evening.
PHELPS DODGE COPPER PRODUCTS CORPORATION 715
There, after the filing of a petition, the employer entered into an extension agree-
ment, extending a previously expired closed-shop contract Between the date
of the Board's Order of Election and the election, the employer embarked upon
a course of conduct not required of it under the extension agreement, for the
purpose, as the Board found, of defeating the petitioning union. This activity
included permitting stewards of the established union to roam the plant "under
guise" of collecting dues, though actually for the purpose of conducting "extensive"
electioneering, which was on occasion accompanied by threats of discharge. The
established union was permitted to post campaign literature on the plant bulle-
tin board, but when similar literature of the petitioning union was posted it was
removed. Stewards of the established union were permitted to use the employ-
er's conference room for the purpose of campaign planning, although they had
never previously been accorded the use of the room for any purpose."
In the instant case no privileges were extended A. F. of L. stewards greater than
those which they had enjoyed for several years. The C. I. O. did not protest
the continuance of the previously existing method of handling grievances, until
after the results of the election were known, nor did it request any participation
in its operations either on behalf of the employees as a whole or for its own
members. The advantages which the A. F. of L. enjoyed were those of prestige
and a superior strategic position vis a vis the C. I. 0 These advantages were in-
separable from and incidental to the functioning of the grievance procedure. The
undersigned finds merit in the respondent's contention that the abolition of that
procedure during the pre-election period would seriously have threatened produc-
tion in the respondent's' plants.
The evidence also fails to support the second objection of the C. I. O , that
employees on the staff of the respondent's personnel department actively assisted
the A. F of L. and attempted to coerce the C. I. 0.4$
It has been found that Margaret Walag was discharged during the pendency
of the petition because of her membership in and activity on behalf of the C. I. 0.94
While it is not possible to determine to what extent Walag's discharge, which
occurred nearly 2 months prior to the election, may have influenced the respond-
ent's employees in their selection of a bargaining representative, the undersigned
does not believe that it was of sufficient effect, standing alone, to warrant a setting
aside of the results of an election in which the victorious union received a sub-
stantial majority in the votes cast9i
42 In setting aside the results of the election , the Board concluded :
The special privileges outside the contract allowed to the Independent and dented
the I. B E . W. and the company's unequal treatment in allowing Independent officials
in abuse of their contractual privileges to circulate unchecked through the plant on
company time and for campaign purposes , while rigidly policing the movements and
campaign activities of I. B E W. adherents , as above described , were calculated to
and did interfere with the exercise by the employees of their free choice of bargaining
representatives . In view of the closeness of the vote, we are of the opinion that the
company 's acts of commission and omission , noted above , constituted substantial
interference with the election . [ Italics supplied 1
43 It will be noted that the objections upon which a hearing was ordered did not include
allegations of interference by any su,)ervisory employee , or by any other employee aside
from "employees on the staff of the Company ' s personnel department." Hence, while the
undersigned hag found that Superintendent Cross and certain foremen made coercive state-
ments which constituted unfair labor practices , he has not considered such statements in
making these recommendations
44 The objections upon which a hearing was ordered did not include objections based
upon the discharges of Campbell , Johns, Turek , and Scullion.
95 The A. F of L. won the election by approximately 600 majority The total number of
employees at the McLean Avenue plant where Walag was employed , including both those
within and without the appropriate unit , was between 550 and 600.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned will recommend that the objections to the election be dismissed.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CONotusIoi,^s OF LAW
1. United Electrical , Radio, and Machine Workers of America , affiliated with
the Congress of Industrial Organizations , and Local Union No. 3 of the Interna-
tional Brotherhood of Electrical Workers, affiliated with the American Federation
of Labor, are labor organizations within the meaning of Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Margaret
Walag, thereby discouraging membership in United Electrical , Radio, and Machine
Workers of America, and by discriminating in "regard to the hire and tenure of
employment of Vincent Campbell , Ruth Johns, Katherine Turek, and William
Scullion , thereby encouraging membership in Local No . 3 of the International
Brotherhood of Electrical Workers, the respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 ( 3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
5. By discharging Armando Casella , Elmer Van Sickle , and Edith Dankovitz,
the respondent has not engaged in unfair labor practices.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Phelps Dodge Copper Products Corporation, Habir-
shaw Cable and Wire Division, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Electrical, Radio, and Machine
Workers of America, or encouraging membership in Local No 3 of the Interna-
tional Brotherhood of Electrical Workers, or any other labor organization of
its employees, by discharging or refusing to reinstate any of its employees or by
otherwise discriminating in regard to the hire and tenure of their employment;
(b) In any other manner interfering with, restraining, or coercing its'employ-
ees in the exercise of the right to self-organization, to form labor organizations,
to join or assist United Electrical, Radio, and Machine Workers of America or
any other labor organization, to bargain collectively through representatives of
.their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2 Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Margaret Walag, Vincent Campbell, Ruth Johns, Katherine Turek,
and William Scullion immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other rights
and privileges ;
(b) Make whole Margaret Walag, Vincent Campbell, Ruth Johns, Katherine
Turek, and William Scullion, for any loss of pay they may have suffered by reason
of the respondent's discrimination against them by payment to each of them of a
sum of money equal to that which he would normally have earned as wages dur-
PHELPS DODGE COPPER PRODUCTS CORPORATION 717
ing the period from the date of his discharge to the date of the respondent' s offer
of reinstatement, less his net earnings during said period; .
(c) Post at its plant in Yonkers, New York, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director of the Second Region, shall, after being duly signed by the
respondent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
.(d) Notify the Regional Director for the Second Region in writing within
twenty (20) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report the respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid
It is further recommended that the complaint as to Armando Casella, Elmer
Van Sickle, and Edith Dankovitz, be dismissed.
It is further recommended that the objections of the C. I. O. to the election
which was held on June 14, 1944, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any. party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon together with the original and four copies of a brief
in support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file a copy with the Regional
Director, As further provided in said Section 33, should any party desire permis-
sion to argue orally before the Board request therefor must be made in writing
to the Board within ten (10) days from the date of the order transferring the case
to the Board.
HORACE A. RUCKEL,
Trial Examiner.
Dated February 19, 1945.