Phelps Dodge Refining Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1944

55 N.L.R.B. 761 (N.L.R.B. 1944)

In the Matter of PI-IELI's DODGE REFINING CORPORATION and INTERNA-
TIONAL UNION OF MINE, MILL AND SMELTER WORKERS, C. I. O.
Case No. R-3721
SUPPLEMENTAL DECISION
AND
AMENDMENT TO CERTIFICATION OF
REPRESENTATIVES
March 2 1, 1944
On May 4, 1942, the National Labor Relations Board issued a
Decision and Direction of Election in the above-entitled proceeding.'
On June 16, 1942, pursuant to the result of the ordered election,
International Union of Mine, Mill and Smelter Workers, C. I. 0.,
herein called the Union, was certified as the exclusive collective
bargaining representative of a unit comprising the production and
maintenance employees of Phelps Dodge Refining Corporation, New
York City, herein called the Company, at its Laurel Hill, Long
Island, New York, plant.2 On November 6, 1943, the Company
filed a petition with the Board to reopen the proceeding for the
purpose of amending the appropriate unit by the exclusion of
watchmen who had allegedly become militarized since the issuance
of the Board's decision. On November 27, 1943, the Board issued
a notice to show cause why the petition of the Company should not
be granted. Thereafter the Union filed Objections to the proposed
amendment. On December 28, 1943, the Board issued an order
reopening the record and remanding the proceeding to the Regional
Director for further hearing. A hearing was held at New York
City on February 10, 1944, before Jack Davis, Trial Examiner.
The Company and the Union appeared, participated and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The
Trial Examiner 's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
1 40 N L. R B 1159.
241 N. L. R . B 1038.
55 N. L. B. B, No 136
761
762 DECISIONS OF NATIONAL LABOR RELATIONS ]BOARD
The Board has considered the petition of the Company, the Union's
Objections thereto, and the record in the hearing of February 10,
1944, and hereby grants the petition of the Company for the reasons
set forth below.
On or about October 1, 1942, subsequent to the Board's certification
in the instant case, the watchmen employed by the Company, together
with approximately 20 supervisory and other employees, were sworn
into the Auxiliary Military Police. At the time of the February
10, 1944, hearing in this proceeding, 19 of the Company's watchmen
had taken the oath of allegiance, and 9 replacements had not. All
watchmen perform plant-protection duties, but none carries arms.
Although the record indicates that the functions of the Company's
watchmen were not changed in any substantial manner after they
were sworn in as Auxiliary Military Police, nevertheless, for reasons
stated in Matter of Dravo Corporation,3 those who have taken the
oath of allegiance must be regarded as militarized and be separated
from the production and maintenance employees, and from the plant-
protection employees who have not been militarized. We see no
reason to exclude plant-protection employees who have not been
militarized from the production and maintenance unit. Nor will we
exclude the non-supervisory production and maintenance employees
of the Company who also took the oath of allegiance but are not
employed in the capacity of plant-protection employees.
That the Board may amend or even revoke its certification by the
application retroactively of subsequently adopted principles has been
established.4 The amendment requested by the Company herein will
not impair any contractual relationship existing between the Com-
pany and the Union, inasmuch as the parties have omitted any
reference to watchmen in their current contract covering production
and maintenance employees, pending our determination.
We shall, therefore, amend our Certification of Representatives
issued in this proceeding to conform to our findings made in this
Supplemental Decision.
AMENDMENT TO CERTIFICATION
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby orders that the Certification of Representa-
tives in the above-entitled proceeding, dated June 16, 1942, be, and
it hereby is, amended• by striking therefrom the last paragraph
thereof, and substituting therefor the following::
IT IS HEREBY CERTIFIED that International Union of Mine, Mill
and Smelter Workers, C. I. 0., has been designated and selected
8 52 N. L. R. B. 322.
4 Matter of Cramp Shipbuilding Company, 52 N. L. R. B. 309 ; and Matter of Shell
Petroleum Company, 52 N. L. R. B. 313.
PHELPS DODGE REFINING CORPORATION 763
by a majority of all hourly paid production and maintenance
employees of Phelps Dodge Refining Corporation, New York
City, at its Laurel Hill, Long Island, New York, plant, including
factory clerical employees and non-militarized watchmen, but
excluding executives, foremen, other persons having the right
to hire and discharge, office clerical employees, and militarized
plant-protection employees, as their representative for the pur-
poses of collective bargaining, and that, pursuant to Section
9 (a) of the National Labor Relations Act, International Union
of Mine, Mill and Smelter Workers, C. I. 0., is the exclusive
representative of all such employees for the purposes of collective
bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.