Phelps Dodge Refining Corp.

National Labor Relations Board - Board Decisions

May 4, 1942

40 N.L.R.B. 1159 (N.L.R.B. 1942)

In the Matter'of PHELPS DODGE REFINING CORPORATION and INTERNA-
TIONAL UNION OF MINE, MILL AND SMELTER WORKERS , C. I. O.
Case No. R-37.d1.Decided May 4,1942
Jurisdiction : copper refining industry
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition ; existing contract in effect for more
than one year and terminable on 60 days notice by either party, no bar;
election necessary.
Unit Appropriate for Collective Bargaining : all hourly paid production and
maintenance employees of one of the Company's plants, including factory
clerical employees and watchmen, but excluding executives, foremen, other
persons having the right to hire or discharge, and office clerical employees;
agreement as to.
Mr. Julian B. Beaty and Mr. John P. Dyer of New York City, for
the Company.-
Mr. Nathan Witt, of New York City, and Mr. R. W. Hanson, of
Newark, N. J., for the C. I. O.
Mr. William Collins, of New York City, and Mr. John Makowski,
of Long Island City, N. Y., for the A. F. of L.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION,
STATEMENT OF THE CASE
On February 12,1942, International Union of Mine , Mill and Smelter
Workers, C. 1. 0., herein called the C. 1. 0., filed with the Regional
Director for the Second Region ( New York City ) a. petition, and on
March 13, 1942, an amended petition , alleging that a question affecting
commerce had arisen concerning the representation of employees of
Phelps Dodge Refining Corporation , New York City , herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to section 9 (c) of the National Labor Relations
Act, 49 Stat . 449, herein called the Act . On March 31 , 1942, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of
40 N. L. R. B, No 197. `
1159
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board Rules and Regulations-Series 2, as
amended, ordered an investigation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice.
On April 3, 1942, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the C. I. 0.,
and upon Copper Workers Federal Union No. 21096, A. F. of L., herein
called the A. F. of L., a labor organization which is party to an exist-
ing contract with the Company. Pursuant to notice, a hearing was
held on April 9, 1942, at New York City, before William T. Little, the
Trial Examiner duly designated by the, Chief Trial Examiner. The
Company, the C. I. 0., and the A. F. of L. were represented and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing, the
Trial Examiner made rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. On April 21, 1942, the Company and
the A. F. of L. filed briefs, which the Board has considered.
Upon the entire record in the case,' the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Phelps Dodge Refining Corporation, incorporated in the State of
New York, is a wholly owned subsidiary of Phelps Dodge Corpora-
tion, and has its principal office in New York City. The Company
operates refineries and smelter and copper sulphate plants at El Paso,
Texas, and at Laurel Hill, Long Island, New York. Only the latter
plant is involved in this proceeding. At the Laurel Hill plant, the
Company is engaged in the business of refining crude copper. Annu-
ally this plant receives and refines copper valued in excess of $25,000,
000, approximately 90 percent of which is shipped to the plant from
points outside the State of New, York; annually it produces finished
products' (chiefly refined copper) valued in excess of $25,000,000,
approximately 75 percent of which is shipped to points outside the
State of New York.
The Company admits that in its operations at the Laurel Hill plant
it is engaged in commerce within the meaning of the Act.
I On April 20, 1942 , the pas ties filed a stipulation to the effect that the existing collective
bargaining contract between the Company and the A F of L had been modified on Novem-
bei 5 , 1941 This stipulation has been incorporated into the record
PHELPS DODGE REFINING CORPORATION
II. THE ORGANIZATIONS INVOLVED
1161
International Union of Mine, Mill and Smelter Workers is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership employees of the Company.
Copper Workers Federal Union No. 21096 is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated February 11, 1942, the C. I. 0., stating that it repre-
sented a majority of the Company's employees, requested the Company
to bargain collectively with it. The Company received this letter but.
did not reply. -
There is in evidence a collective bargaining contract between the
Company and the A. F. of L. which was executed on March 25, 1941.
The contract provides that it is to remain in effect "up to and including
the 28th day of February, 1942 and shall continue thereafter until sixty
(60) days' prior notice is given by either party of its desire to cancel."
We find that the contract is no bar to a present determination of repre-
sentatives, since it has been in operation longer than its original period
of 1 year, and is now terminable, by either party upon notice.2
A statement of the Regional Director introduced in evidence at the
hearing, supplemented by a statement of a Trial Examiner introduced
into evidence after the hearing pursuant to an agreement by the parties,
indicates that the C. I. O. represents a substantial number of employ-
ees in the unit hereinafter found to be appropriate.3
We find that a question has arisen concerning the representation of
-employees of the Company.
IV. TILE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company de-
2 See Matter of La Plant-Choate Maaufactuiang Go, Inc and United -Earn Equipment
Workers Organizing Committee, Local 116, affiliated with the C 1 0, 29 N L R B 40;
Matter of William Senn, Flank Senn, Ida Senn and Lelia Senn, individually and as co-part-
ners, doing business as Brightman Nut it Mannfacturinq Company and International Union,
United Automobile Workers of America (C. 1. 0 ) 30 N L R B 063
3 The statements show that the C I 0 submitted 438 application- for-membership cards
and 1 authorization card; that 15 weie dated between Januaiy 1 and September 30, 1941,
291 were dated in October 1941, 31 between November 1 and December 31, 1941, and 102
between Jannaiy 1 and Apiit 4, 1942, that 438 cards bore apparently genuine signatures;
and that the Fobruary 9, 1942, pay roll of the Company, listing approximately 972 em-
ployees, contained names appearing on 325 of the cards which bole apparently genuine
signatures The A F of L submitted no cards but relies upon a series of contr,,cts with
the Company, commencing about 1936, to show its interest in the proceeding
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed in Section I above, has a close, intimate , and substantial relation
to trade, traffic , and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
The parties stipulated, and we find, that all hourly paid production
and maintenance employees of the Company at its Laurel Hill plant,
including factory clerical employees and watchmen , but excluding
executives , foremen, other persons having the right to hire or dis-
charge, and office clerical employees , constitute a unit appropriate for
the purposes of collective bargaining . We further find that said unit
will insure to employees of the Company the full benefit of their right
to self-organization and to collective bargaining and otherwise will
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by means of an election by secret ballot. Those eli-
gible to vote shall be the employees in the appropriate unit who were
employed during the pay-roll period immediately preceding the date
of our Direction of Election , subject to the limitations and additions
set forth therein.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Phelps Dodge Refining Corporation, New
York City, at its Laurel Hill plant, within the meaning of Section 9
( c) and Section 2 (6) and (7) of the Act.
,.. 2. All hourly paid production and maintenance employees of the
Company, at its ,Laurel Hill plant , including factory clerical em-
ployees and watchmen , but excluding executives , foremen, other per-
sons having the right to hire and discharge, and office clerical em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of National Labor Relations Board
Rules and Regulations-Series 2, as amended, it is hereby ,
PHELPS DODGE REFINING CORPORATION 1163
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining with
Phelps Dodge Refining Corporation, New York City, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction of Election, under the
direction and supervision of the Regional Director for the Second Re-
gion,-acting in this matter as agent for the National Labor Relations
Board, and subject to Article III. Section 9, of said Rules and Regula-
tions, among all hourly paid production and maintenance employees
of the Company at its Laurel Hill plant, who were employed during
the pay-roll period immediately preceding the date of this Direction
of Election, including factory clerical employees, watchmen, and em-
ployees who did not work during such pay-roll period because they
were ill or on vacation or in the active military service or training of
the United States, or temporarily laid off, but excluding executives,
foremen, other persons having the right to hire and discharge, office
clerical employees, and those employees who have since quit or been
discharged for cause, to determine whether they desire to be represent-
ed by International Union of Mine, Mill and Smelter Workers, C. I.
0., or by Copper Workers Federal Union No. 21096, A. F. of L., for
the purposes of collective bargaining, or by neither.