Phelps-Dodge Corp.

National Labor Relations Board - Board Decisions

Apr 3, 1946

66 N.L.R.B. 1466 (N.L.R.B. 1946)

In the Matter of PHELPS-DODGE CORPORATION, COPPER QUEEN BRANCH
and BISBEE MINERS ' UNION, LOCAL No. 22792, A. F. of L.
Case No. 21-B-3040.-Decided April 3,19446
Messrs. Ellinwood & Ross, by Mr. F. J. Ryley, of Phoenix, Ariz.,
and Mr. C. R. Kuzell, of Douglas, Ariz., for the Company.
Mr. John Pintek, of Lowell, Ariz., for the A. F. of L.
Mr. Orville Larson, of Globe, Ariz., for the C. I. O.
Mr. Harry R. Ehrlich, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by Bisbee Miners' Union, Local No.
22792, A. F. of L., herein called the A. F. of L., alleging that a
question affecting commerce had arisen concerning the representation
of employees of Phelps-Dodge Corporation, Copper Queen Branch,
Bisbee, Arizona, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due
notice before Maurice J. Nicoson, Trial Examiner. The hearing
was held at Bisbee, Arizona, on November 20, 1945. The Company,
the A. F. of L., and International Union of Mine, Mill & Smelter
Workers, Local No. 551, C. I. 0., herein called the C. I. 0., appeared
and participated.' All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner reserved ruling
for the Board on the C. I. O.'s motion to dismiss the petition because
of the lack of substantial representation showing by the A. F. of L.
In view of our finding in Section III, infra, the motion is hereby
denied. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
3 Mr. James Valenzano, also served with notice, did not enter a formal appearance,
but testified as a witness for the Company.
66 N. L. R. B., No. 181.
1466
PHELPS-DODGE CORPORATION
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
1467
The Phelps Dodge Corporation is a New York corporation engaged
in mine refining and the sale of copper. It owns numerous subsidiary
mining, copper refining, public utility, mercantile, railroad and other
companies in Mexico and in the States of New York, New Jersey,
Indiana, California, New Mexico, Texas, and Arizona. The only
operation of the Company here involved is the Company's mining
operations located at Bisbee, Arizona, and designated as the Copper
Queen Branch, Mines Division, where the Company is engaged in
the mining of copper and other metal bearing ores. During the
year 1944, the Company produced at its Copper Queen Branch,
Mines Division, in excess of 500,000 tons of ore, all of which was
shipped to smelters of the Company at Douglas and Clarkdale,
Arizona, and from these smelters shipped to points outside the State
of Arizona.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Bisbee Miners ' Union, Local No. 22792, is a labor organization,
affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
International Union of Mine , Mill and Smelter Workers, Local
No. 551, is a labor organization , affiliated with the Congress of In-
dustrial Organizations , admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On August 31,1945, the A. F. of L., by letter, requested recognition
by the Company as bargaining representative of certain of the Com-
pany's employees. On September 11, 1945, the Company, by letter,
denied the request, alleging as the reason therefor its current contract
with the C. I. 0.2
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the A. F. of L. and the C. I. O. each repre-
3 The C. I. O.'s contract is not urged as a bar to this proceeding.
1 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sents a substantial number of employees in the unit hereinafter found
appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
In 1942, the Board found appropriate, upon petitions filed by eight
craft unions, the A. F. L. Local herein involved and the C. I. 0.,
eight craft units and a residual production and maintenance unit .4
The A. F. L. won the election in the production and maintenance
unit and was duly certified.
In 1944, the Board, upon petition filed by the C. T. 0., directed
that an election be held.5 The C. I. 0. won this election and was
duly certified. The appropriate unit found by the Board consiste'
of "all remaining employees of the underground, mechanical, and
surface departments of the Company at its Copper Queen Branch,
Mines Division, Bisbee, Arizona, who are not included in the eight
craft units for which the Board previously certified exclusive , 4ar-
gaining representatives, including the precipitation plant, attendant,
the general office janitor, diamond driller, and diamond drill helpers,
but excluding the sample mill boss, drilling instructors, finlay ma-
chine instructors, all watchmen and change-room attendants, the
salaried gardener on the hospital grounds, the first aid instructor,
all salaried' foremen and bosses, hotel employees, medical-department
employees, salaried engineering and technical employees, salaried
accounting department employees, and the diamond drill foremen,
and any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or to effectively recommend such action." '
The parties are in substantial agreement as to the appropriateness
of the above unit, but disagree with regard to certain employee cate-
gories discussed below.
General Office Janitor:' The Company contends that the general
office janitor should be excluded because he is a confidential employee.
The C. I. O. and the A. F. L. would include him. This employee was
3 The Field Examiner reported that the , A. F. of L submitted 177 cards, bearing the
names of 145 employees listed on the Company's pay roll of September 16,, 1945, and
the C. I. O. submitted 241 check -off list and cards bearilig the names of 209 employees
listed on the Company's pay roll of September 16, 1945. At the hearing, the A. F. of L.
presented 22 additional cards to the Trial Examiner, bearing the names of 11 employees
listed on the Aforesaid pay roll ; and the C. I. a presented 57 additional cards to the
Trial Examiner, bearing the names of 22 employees listed on the aforesaid pay roll
There are approximately 400 employees in the appropriate unit.
s 41 N. L. R. B. 140 and 42 N. L. R. B. 288.
5 54 N L. R. B. 1293.
PHELPS-DODGE CORPORATION 1469
included under our previous unit determinations and covered by the
prior contracts of both the C. I. 0. and A. F. L. Although he works
in the general administrative offices of the Company, there is no
showing that in the regular course of his duties the janitor acquires
confidential information relating to the Company's labor relations.
Accordingly,, we shall include him.
Diamond Driller and Diamond Helpers: The Company and the
A. F. of L. contend that these employees are employees of James
Valenzano, an independent contractor, and should, therefore, be
excluded. The C. 1. 0. disagrees. James Valenzano is an independent
contractor under contract to the Company and to several other com-
panies in Arizona and Mexico for the performance of certain types
of diamond drilling which require an extremely high degree of skill.
The employees engaged in such work are hired and discharged directly
by Valenzano; the Company exercises no control over their status
of work. Although these employees are paid by the Company on
company checks and deductions are made for certain hospital bene-
fits and social security taxes, it appears that this is an administra-
tive procedure for the convenience of the parties, and all the fore-
going disbursements are deducted by the Company from its indebted-
ness to Valenzano. These employees were not included in the contract
between the Company and the C. I. 0., nor has the C. I. 0. bar-
gained for them. Although these employees were included in the
unit in the • Board's prior decision, their inclusion was specifically
predicated on the fact that the record therein was not adequate to
permit a determination that they were not employees of the Company.
The present record, however, establishes, in our opinion, that these
employees are, in fact, employees of Valenzano and not of the
Company. We shall, therefore, exclude them from the unit.
Non-deputized Watchmen and Charge-Room Attendants: The
Company and the A. F. of L. would include these employees, and the
C.I.O. exclude them. All the watchmen and change-room attendants
were previously militarized, and consequently were excluded by the
Board in its prior decision issued February 12, 1944.6 All but five
or six deputized watchmen, who all parties agree should be ex-
cluded, are now either militarized or deputized. The record reveals
that these employees are interchangeable, that they exercise no super-
ttisory powers, and that they are not monitorial in their relation to
other employees. Accordingly, they properly may be included from
the unit under the Board's prior certification and under the bargain-
ing contract of the C. T. 0., we shall direct that a separate election
be held among the non-deputized watchmen and change-room at-
66ndants to determine their desires with respect to the matter.?
``r 54 N. L R B. 1293.
7 See In the Matter of Eastern Tool 4 Mfg. Co., Inc ., 61 N. L. R. B. 1315.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall make no finding as to the appropriate unit
pending the outcome of the elections.
We shall direct that separate elections be conducted among the
employees of the Company at its Copper Queen Branch, Mines Divi-
sion, Bisbee, Arizona, in the separate voting groups described below,
who were employed during the pay-roll period immediately preceding
the date of the Direction of Elections herein, subject to the limita-
tions and additions set forth in the Direction :
1. All nondeputized watchmen and change-room attendants, ex-
cluding supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees or effectively recommend such action.
2. All remaining employees of the underground, mechanical, and
surface departments not within the craft units for which the Board
previously certified exclusive bargaining representatives, including
the precipitation plant attendant, diamond drillers and diamond drill
helpers 8 and the general office janitor, but excluding deputized
guards, the sample-mill boss, drilling instructors, finlay machine
instructors, the salaried gardener on the hospital grounds, the first
aid instructor, all salaried foremen and bosses, hotel employees,
medical-department employees, salaried engineering and technical
employees, salaried accounting department employees, and the
diamond drill foreman, and any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Phelps-Dodge
Corporation, Copper Queen Branch, Bisbee, Arizona, elections by
secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction, under the
direction and supervision of the Regional Director for the Twenty-
first Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Sections 10 and 11, of
said Rules and Regulations, among employees in the separate voting
6 The diamond drillers and diamond drill helpers employed by James Valenzano are not
to be deemed included in the unit as falling within the category.
PHELPS-DODGE CORPORATION 1471
I
groups described in Section IV, above, who were employed during
the pay-roll period immediately preceding the date of this Direction,
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who
present themselves at the polls, but excluding those employees who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the elections, to determine whether
they desire to be represented by Bisbee Miners' Union, Local No.
22792, affiliated with the A. F. of L., or by International Union of
Mine, Mill & Smelter Workers, Local No. 551, affiliated with the
C. I. 0., for the purposes of collective bargaining, or by neither.