Phelps Dodge Corp.

In the Matter of PHELPS - DODGE CORPORATION and INTERNATIONAL UNION OF MINE, MILL & SMEIICER WORKERS, CIO Case No. R-4776.-Decided March 24, 1943 Jurisdiction : copper mining and milling industry. Investigation and Certification of Representatives : existence of question: year- to-year contract found no bar when notice of rival claim of representation was given prior to its automatic renewal date ; election necessary. Unit Appropriate for Collective Bargaining : industrial unit found appropriate and separate craft units found inappropriate when craft organizations had formerly bargained through a collective agreement. Mr. Willard Y. Morris, for the Board. Mr. Francis J. Ryley, of Phoenix, Ariz., for the' Company. Mr. Orville Larson, of Miami, Ariz., Mr. Verne Curtis, of Silver City, N. Mex., Mr. George Knott, of Safford, Ariz., for the Smelter Workers. Mr. Paul M. Peterson and Mr. E. C. DeBaca, of Miami, Ariz., and Mr. A. F. Cadena, of San Antonio, Tex., for the AFL Unions. Mr. William C. Carroll, of Los Angeles, Calif., for the Operating Engineers. Mr. Alfred Shackelford, of Tucson, Ariz., for the I. B. E. W. Mr. W. D. Taylor, of Tucson, Ariz., for the Boilermakers. Mr. Howard D. Grant, of Tucson, Ariz., for the Teamsters. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by International Union of Mine; Mill & Smelter Workers, CIO, herein called the Smelter Workers, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Phelps Dodge Corporation, Morenci, Arizona, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Frank A. Mouritsen, Trial Examiner. Said hearing was held at Morenci, Arizona, on January 18, 19, and 20, 1943. At the commence- 48 N. L. R. B., No. 58 - 489 490 DECISIONS OF. NAT,UONAL LABOR RELATIONS. BOARD ment of the hearing, the Trial Examiner granted motions of Interna- tional Brotherhood of Blacksmiths, Drop" Forgers & Helpers Local -Union 621, herein called the Blacksmith'; International Brotherhood of Boilermakers, Iron Shipbuilders, Welders & Helpers of America, Local, Union- 506, herein called the Boilermakers; United Brotherhood {of-Carpenters and Joiners of,America','LocalUniont221•,lherein called the Carpenters; International Brotherhood of Electrical Workers, Local Union B-1254, herein called the L-B. E. W.; International Union of Operating Engineers, Local Union 421, herein called the Operating Engineers; Brotherhood of Railway Carmen of America, Lodge 432, herein called the Carmen; International Association of Machinists, Lodge 1130, herein called the I. A. M.; United Association of Plumbers and Steam Fitters, Local Union 679, herein called the Plumbers; In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen: & Helpers, Local Union 310, herein called the Teamsters; Clifton-Morenci Mine, Mill & Smelter Workers Federal Labor Union 22852, herein called Local 22852; Clifton-Morenci Mill and Smelter Workers Federal Labor Union 22893, herein called Local 22893; and Clifton-Morenci --Metal' 'T'rades Council; -herein= called'the^ MTC, 'to ' intervene. ' The Board; the Company, the Smelter Workers, and the AFL Union 1 ap- peared at and participated in the hearing, and 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 Exam- iner's rulings made at the hearing are free from prejudicial err'or and are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF. FACT „ I. THE BUSINESS OF THE COMPANY Phelps Dodge Corporation is a New York corporation engaged in the mining, milling, and smelting of copper in Arizona, New Mexico, and Mexico. We are here concerned with its operation at Moreno. Arizona, where it is engaged in the business, of mining, milling, and smelting copper ores. During 1942, 7,713,896 tons of ore were mined at, the Morenci ,branch of the Company, all of which was shipped to points outside the State of Arizona,, after going through a -smelting -process. - The Company admits that_it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED International Union of Mine, Mill & Smelter Workers is a labor organization affiliated. with the Congress of Industrial Organizations, admitting to membership employees of the Company. 1 Separate appearances were entered for the Operating Engineers , the I . B E W, 'the Boilermakers , and the Teamsters. PHELPS DODGE CORPORATION 491 International Brotherhood of Blacksmiths, Drop Forgers & Helpers Local Union 621; International Brotherhood of Boilermakers, Iron Shipbuilders, Welders & Helpers of America Local Union 506; United Brotherhood of Carpenters and Joiners of America, Local Union 221; International Brotherhood of Electrical Workers, Local Union B-1254; International Union of Operating Engineers, Local Union 421; Brotherhood of Railway Carmen of America, Lodge 432; International Association of Machinists, Lodge 1130; United Association of Plumb- ers and Steam Fitters, Local Union 679; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union 310; Clifton-Morenci Mine, Mill & Smelter Workers Federal Labor Union 22852; Clifton-Morenci Mill and Smelter Workers Federal Labor Union 22893; and Clifton-Morenci Metal Trades Council are labor organizations affiliated with the American Federation of Labor, ad- mitting to membership employees of the Company, and are sometimes collectively called herein the AFL Unions. III. THE QUESTION CONCERNING REPRESENTATION On November 11, 1941, the Company and the MTC and its affiliated organizations entered into an exclusive contract. The contract states that it is to continue in effect until November 11, 1942, and from year to year thereafter unless notice to terminate is given by either party thereto not less than 30 days prior to any annual expiration date. On August 31, 1942, the Smelter Workers requested the Company to recognize it as the exclusive representative of the Company's em- ployees. The Company refused this request. On November 9, 1942, the MTC and its affiliated organizations and the Company commenced bargaining negotiations for a new contract. No new agreement has been signed between' the MTC and the Company. We find -that the contract of November 11, 1941, is not a bar to a , determination of representatives at this time inasmuch as the Smelter Workers made its claim upon the Company more than 30 days prior to November 11, 1942. Statements of the Regional Attorney and the Regional Director, introduced, into evidence,. indicate .that the Smelter Workers. and. the. AFL Unions each represents a substantial number of employees in the unit hereinafter found to be appropriate.2 2 The Regional Attorney reported that the Smelter workers presented 624 membership application cards bearing apparently genuine signatures of persons whose names appear on the Company's pay roll of January 9, 1943. The Regional Director reported that the AFL Unions presented 762 dues payment records or membership application cards bearing the names of persons who appear on the Company 's pay roll of January 9 , 1943. There are approximately 2,043 employees in the appropriate unit. 492 DECISIONS OF- NATIONAL LABOR RELATIONS, BOARD 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. - , I IV. THE APPROPRIATE UNIT Each of "the- AFL Unions, with the exce'ption'of Local 22852 and Local 22893, seeks a bargaining unit composed of employees of the Company 'engaged in an occupation bringing them within the juris- diction of such unions. Local 22852 urges a unit of the remaining p'r'oduction and maintenance employees working in the Company's mining departments, and Local 22893 would represent the remaining, employees who are not included in the units sought by the other AFL Unions and who are employed in the milling and smelting depart- ments. The Smelter Workers insists that only an industrial unit is appropriate; embracing all employees claimed by the AFL' Unions. The Company took no position with respect to the appropriate unit' or units. As stated above, on November 11, 1941, the Company upon the request of, the. AFL Unions, entered, into a contract with the MTC and its comprising organizations. The AFL Unions involved herein are all; members of the MTC. The recognition clause in the contract is as follows : "This agreement entered into on the 11th day of Novem- ber 1941 between the Company and the Metal Trades Department of the American Federation of Labor and its comprising organizations 'hereinafter, referred to as the Union, representing individually and collectively, the craft organizations affiliated with the metal trades, de- partment.", The contract further provides "This agreement covers the entire operations ,of Phelps Dodge Corporation, Morenci Branch." The contract is signed by the general manager of the Company and the president and secretary of the MTC: None of the AFL Unions, with the exception of the MTC, are signatories to the contract. The contract provides that "The Company hereby agrees to recognize and, deal with the Union as the sole collective bargaining agent of all' of its employees." • The contract does not define the jurisdictional claims of the AFL Unions and,does not proVide for separate recognition of them: Prior.to the consummation of the agreement, the-Company demanded that the AFL Unions present. evidence ,of membership. The MTC presented membership application cards which, as one group, were checked against a total pay roll of the Company. No separate-check of, the' 'membership "of each of the AFL Unions among the groups' respectively claimed by each was made. A witness called by the.AFL Unions at the hearing testified that any representative • of 'the AFL Unions who negotiates or takes up any matter with the Company does ' PH LPS DOD09 CORPORATION 493 not do so as a representative. of one of the AFL Unions but as a representative of the MTC. - In ; our opinion, the recent history' of labor organization and collec- tive bargaining has been on. the -basis of an industrial unit. As stated above, the AFL Unions, that is the .MTC and the intervening unions affiliated with it, have bargained with.the Company on the basis of an industrial unit. The contract dated November 11, 1941, which con- cluded a period of negotiation between the MTC and' the Company, recognizes the AFL Unions, collectively and jointly, as the sole col- lective bargaining agent of all employees. In the agreement effected between the AFL Unions and, the Company in November 1941, the AFL Unions recognized and accepted the appropriateness of an in- dustrial unit. It was not until the hearing in this case that the AFL Unions changed their positions and asked for separate units. There is no evidence in the record of any separate bargaining history by the craft groups prior to the advent of the MTC and the securing by the MTC of an agreement covering all employees, and as stated above, the bargaining under the contract was on an industrial rather than a craft basis. We conclude that the industrial unit is the appropriate one in this case.$ The Smelter Workers and the AFL Unions agree, and we find, that technical, supervisory, clerical, confidential, and railroad employees and watchmen should be excluded from the appropriate unit. The Smelter Workers urges that: carpenters, laborers, janitors, and painters who spend the majority of their time taking care of company- owned dwellings and office buildings in the town of Morepci be ex- cluded from the unit. The AFL Unions request that they be included. In view of the fact that such persons clearly perform maintenance functions and were apparently covered by the contract between the MTC and the Company, we shall include them in the unit. The Company has two employees who are engaged in driving trucks, used to collect garbage from company-owned dwellings in the town of Morenci. The Smelter Workers urges that they be excluded from the unit and the AFL Unions that they be included. Since the Smelter Workers desires to represent- truck drivers of other depart- ments, and since it appears that these` employees have been covered by the contract, we shall include the garbage truck drivers in the unit. We find that all production and maintenance employees in the min- ing, milling, and smelting operations at the Morenci branch of the 3See Matter of Arkwright Corporation and Textile Workers Union of America, (C. 1. 0.), 36 N. L. R. B. 6S7; Matter of American Radiatbr & Standard Sanitary Corporation and United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, 35 N. L. R. B. 172; Matter of Todd-Johnson Dry Docks Inc. and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 29, 18 N. L. R. B. 973. 494 DECISIONS Q.V11NAT,LONAL'-I'uA:BOR 'RELATPONS BOARD Company, including carpenters, laborers, janitors,, and painters work- ing on company-owned dwellings and office buildings, and garbage truck drivers,. but excluding technical, supervisory, clerical, confiden- tial, and railroad-employees and,,watchmen, constitute a unit appro- priate for the purposes of collective bargaining, within the. meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question-concerning representation which has arisen be resolved by means of an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject-to the limitations and additions set forth in the Direction. DIRECTION OF.ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, ;of National Labor Relations Board Rules and Regulations-Series 2, 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, Morenci, Arizona, 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, under the direction and supervision of the Regional Director for the Twenty-second Region, acting in this, matter as agent for the National Labor Relations Board, and subject to Article III, Section ' 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who, were employed during the pay-roll period immediately preceding the, date of this Direction, including any such employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at -the polls, but excluding'any,who. have since quit. or-been;discharged.for cause, to' determine whether they desire to be represented by International Union of Mine, Mill &- Smelter Workers, affiliated with the Congress of Industrial Organizations, or by the American Federation of Labor, for,the purposes of collective bargaining, or by 'neither.