Phelps Dodge Refining Corp.

In the Matter Of PHELPS DODGE REFINING CORPORATION and INTERNA- TIONAL UNION OF MINE, MILL AND S IELTER WORKERS , EL PASO COPPER REFINERY WORKERS, LOCAL 501, CIO Case No. 16-R-1651.-Decided July 16, 1946 Messrs. J. F. Hulse and W. Knowles, both of El Paso, Tex., for the Company. Mr. Orville Larson, of Globe, Ariz., and Mr. J. B. Chavez, of El Paso, Tex., for the Union. Mr. Martin T. Camaeho, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by International Union of Mine, Mill and Smelter Workers, El Paso Copper Refinery Workers, Local 501, CIO, herein called the Union, alleging that a question affecting com- merce had arisen concerning the representation of employees of Phelps Dodge Refining Corporation, El Paso, Texas, herein called the Com- pany, the National Labor Relations Board provided for an appropriate hearing upon due notice before Louis R. Becker, Trial Examiner. The hearing was held at El Paso,. Texas, on May 17, 1946. The Company and the Union 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. After the hearing, the Company filed written motion with the Board to dismiss the peti- tion on the ground that no evidence was introduced at the hearing to show that the Union represents any employees in the unit it seeks in this proceeding. For the reasons stated in Matter of 0. D. Jennings & Company,' this 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. The Company filed a brief which has been considered. Upon the entire record in the case, the Board makes the following: 1 68 N. L. R. B. 516. 69 N. L. R. B., No. 67. 536 PHELPS DODGE REFINING CORPORATION FINDINCs OI' lip _\CT 1. TIIE BUSINESS OF THE COMPANY 5 '37 Phelps Dodge Refining Corporation operates a copper refinery and copper sulphate plant at El Paso, Texas, the only plant involved in this proceeding. The principal raw material used at the plant is crude copper. The refinery has a production capacity of 132,000 tons of copper per annum, and the copper sulphate plant a capacity of 4,000 tons per annum. Substantially all raw materials used at the plant are received from points outside Texas. Practically all such materials are the property of others and are processed at the plant on a toll basis. Practically all copper processed at the plant is shipped outside Texas and about 90 percent of the copper sulphate processed at the plant is sold outside of Texas. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Rela- tions Act. II. TIIE ORGANIZATION INVOLVED International Union of Mine, Mill and Smelter Workers, El Paso Copper Refinery Workers, Local 501, is a labor organization, affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. III. TIIE QUESTION CONCERNING REPRESENTATION The Company refused to grant recognition to the Union as the exclusive bargaining representative of its employees in the unit here- inafter found appropriate. 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 Union, by amended petition, seeks a unit consisting of all the Company's laboratory employees in its El Paso plant, but excluding the janitor, the chief chemist and all other employees of the Company. Presently employed in the laboratory are two chemists, two copper assayers, one assayer, a janitor, assistant chief chemist and chief chemist. These employees, with the exception of the janitor, are all technically skilled men in the field of chemistry and metallurgy and nearly all are college graduates. They work separate and apart from all the other employees of the Company, and their work chiefly con- sists in making chemical analyses of samples of all raw materials or elements used in the processing of copper by the Company, and analyses of the finished product. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties agree that the chief chemist is a supervisory employee, and as such, properly excluded from the unit. They likewise agree in excluding the janitor . As to the assistant chief chemist , the Union seeks his inclusion in the proposed unit. Although the Company at the hearing took no stand as to the inclusion or exclusion of the assistant chief chemist, it argued in its brief that he is "a part of the supervisory force." The assistant chef chemist spends the greater portion of his time assigning the work to be done , training each man in the detailed steps of the standard procedure . checks the results arrived at before they are finally reported , and in cases where dis- crepancies result from duplicate or triplicate runs be may make his own detailed analysis to check the results . However , this employee has no power to hire, discharge or otherwise effect changes in the status of the employees. Nor is there any persuasive evidence to indicate that his recommendations of such action , if any, are so effective as to bring him within our usual definition of a supervisory employee = We shall, accordingly, include the assistant chief chemist in the unit. Since 1942 the Union has represented the Company's production and maintenance employees at this plant in a Milt established by the Board 3 from which the laboratory employees , among others, are excluded ; and it has a present contract covering the employees in that unit 4 The Company contended at the hearing and argues in its brief, that the laboratory employees should not now be set up in a bargaining unit to be represented by the Union for the result would be, in practical effect, an enlargement of the existing unit by the addi- tion of the laboratory group; that this would be contrary to the Board's prior determination and the present contract . We find no merit in this contention for the same bargaining representative may be designated by the employees in more than one unit without effecting a merger of such units.° There is nothing in either our decision in- volving the production and maintenance employees, or in the present contract covering those employees which precludes the Union from representing the laboratory workers in a separate unit.' We find, therefore, that all laboratory employees of the Company at its El Paso plant , including the assistant chief chemist, but ex- 2 There was evidence that within 7 or 8-years, the assistant chief chemist had recoin- mended discharge of the janitor who worked in the laboratory. The janitor was trans- ferred to another department. However, in this connection, it is to be noted that the jani- tor, an unskilled laborer , who does cleaning work and performs manual tasks , is, in a sense , under the supervision of any or all of the laboratory staff. 3 See Matter of Phelps Dodge Refining Corporation , 41 N. L . R. B. 1016. 4 The present contract was entered into on July 1, 1945, for a term of 1 year , and auto- matically renews itself annually unless written notice to the contrary by either party is received 30 days prior to its expiration or anniversary date. Matter of Chris-Craft Corporation, 66 N. L . R. B. 230. and eases therein cited Cf. Matter of Briggs Indiana Corporation, 63 N. L . R. B. 1270 , but see Matter of Jones & Laughlin Steel Corporation, 66 N. L . R. B. 386. PHELPS DODGE REFINING CORPORATION 539 eluding the janitor, the chief chemist, and all or any other super- visory employees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees, or effec- tively recommend such action, constitute a unit appropriate 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 an election by secret ballot among 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 Re- lations 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 Refining Corporation, El Paso, Texas, 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 super- vision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Sections 10 and 11, of said Rules and Regulations, among 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 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 those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be repre- sented by International Union of Mine, Mill and Smelter Workers, El Paso Copper Refinery Workers , Local 501 , CIO, for the purposes of collective bargaining.