Phelps Dodge Corp.

726, DECISIONS OF.'NATIONAL LABOR' RELATIONS BOARD appoint an adyisory committee, to whom he submits proposed contracts for approval. After the advisory committee has approved a. contract, it is submitted to other members of the group, who individually sigh. these contracts. With one exception, all contracts negotiated by Bur- rows and approved by the advisory committee have been signed by all members of the group. Under all the circumstances, we find that the Employer has demonstrated a desire to be bound by group rather than by individual action.2 We further find that the employees sought by the Petitioner, having become an integral part of the Employer's working force, are an unseverable part of a multiemployer unit. As the Petitioner has disclaimed any interest in a unit other than the one set forth in its petition, and as we have found such a unit to be inap- propriate, we shall dismiss the petition. Order IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed. 2 Bellingham Automobile Dealers Association, 90 NLRB 374. PHELPS DODGE CORPORATION, NEW CORNELIA BRANCH and UNITED STEELWORKERS OF AMERICA, CIO,' PETITIONER PHELPS DODGE CORPORATION, NEW CORNELIA BRANCH and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No. B-523, AFL,2 PETITIONER. Cases Nos. 21-RC-1144, 21-RC-2195, 21-RC- 2196, 21-RC-2197, 21-RC-2198, 21-RC-2199, and 21-RC-2160. March 18,1952 Decision, Order, and Direction of Elections Upon separate petitions duly filed, a consolidated hearing 3 was held before Ben Grodsky, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 4 Herein called the Steelworkers. s Herein called the Electrical Workers. $ The above-captioned cases were consolidated for purposes of hearing by an order of the Regional Director, dated November 7, 1951. 0 4 The hearing officer referred to the Board the Steelworkers ' request to withdraw its petition in Case No. 21-RC-2144 , because the same units therein requested are more specifically described in its Cases Nos. 21-RC-2195 through 2199. We shall grant the request of the Steelworkers and permit withdrawal of the petition in Case No . 21-RC-2144. Also referred to the Board for disposition were the motions of the Employer to dismiss the petitions in Cases Nos. 21-RC-2195, 21-RC-2196 , and 21-RC-2160, and the motions of the Intervenors to dismiss all of the petitions , herein. These motions are discussed in paragraphs numbered 3 and 4, below. - - At the hearing, a representative of the, painters employed at the New Cornelia branch stated that the painters signed the Steelworkers' authorizations at a time when they 98 NLRB No. 107. 1 PHELPS DODGE CORPORATION 727 Upon the entire record in these cases, the Board finds : 1. ' The Employer is engaged in commerce within the. meaning of' the Act. - . 2., The labor organizations involved claim to represent certain em- ployees of the Employer.5 - . ' , 3. -The Employer and the Intervenors move to dismiss the petition of the Electrical Workers upon the ground that it is barred by the existing contract between the Employer and the Intervenors to which the Electrical Workers is a signatory. The contract now in effect, is the continuing agreement whose expiration date of November 11, 1951, was extended to November 11, 1953, by the October 6, 1951, modification agreement signed, among others, by the Ajo Council.6 In view of our finding in paragraph numbered 4 with respect to the- unit requested by the Electrical Workers, we find it unnecessary to de- termine whether the current contract is a bar to the petition for the powerhouse unit. With respect to the other petitions herein, we find that a question- affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The Steelworkers' Petitions 4. The Steelworkers seeks the following units : In Case No. 21- RC-2195 , all production and maintenance employees in the smelter division ; in Case No. 21-RC-2196, all production and maintenance "were very much disorganized ," and that now the painters were satisfactorily represented by Local 1735 , AFL. As the Board has consistently held that the adequacy of a showing, of interest is an administrative matter not litigable at any stage of the proceedings, we shall not allow the validity of the authorizations to be challenged. Charles A . Krause Milling Co , 97 NLRB 536. , 5 Intervening in each of the above cases on the basis of a current contract with the Employer are the Ajo Metal Trades Council , affiliated with the Metal Trades Department, AFL, herein called the Ajo Council ; the International Association of Machinists, Lodge 1357, herein called the Machinists ; the International Brotherhood of Boilermakerq, Iron Ship Builders , and Helpers of America , Local No. 479, herein called the Boilermakers ; the International Brotherhood of Blacksmiths , Drop Forgers and Helpers, Local No. 623, herein called the Blacksmiths ; the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local No. 310 , herein called the Teamsters ; Inter- national Union of Operating Engineers , Local No. 428, herein called the Engineers ; the United Brotherhood of Carpenters & Joiners, Local No. 238 , herein called the Carpenters ; the United Association of Journeymen Plumbers and Steamfitters of United States and Canada, At Large, herein called the Plumbers ; the Brotherhood of Painters, Decorators, etc., Local 1735, herein called the Painters ; the Brotherhood of Railway Carmen of America, At Large,'herein called the Carmen ; and the Ajo Mine and Mill Workers Union, Local No. 22866, herein called Local 22866 . The above group of labor organizations are referred to herein as the Intervenors . In addition, the Electrical Workers Intervened in the Steelworkers' cases upon the basis of Its current contract with the Employer , and the Steelworkers Intervened in the Electrical Workers' case. See paragraph numbered 4 for discussion of the bargaining history. 728 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD employees presently bargained for by Local 22866, except employees in the smelter division; in Case No. 21-RC-2197, all employees bargained for by the Painters; in Case No. 21-RC-,2198, all employees bargained. for by the Blacksmiths; and in Case No. 21-RC-2199, all employees bargained for by the Engineers? The Employer, while opposing the petitions in the Steelworkers' Cases Nos. 21-RC-2196 and 21-RC-2195, and the Electrical Workers' Case No. 21-RC-2160, agrees that the units requested in Cases Nos. 21-RC-2199, 21-RC-2198, and 21-RC-2197 are appropriate. The Intervenors, however, oppose all the petitions herein upon the ground that the units requested are inappropriate. The Employer's New Cornelia branch at Ajo, Arizona, is engaged in mining, milling, and smelting mineral-bearing ores. These opera- tions are carried on by the five functional divisions into which the operations at Ajo are divided, i. e., the open pit, ore dressing, mechani- cal, surface and miscellaneous, and smelter. The smelter division is newly established, having begun operations in June 1950. The other four divisions have been in operation at least since 1924. Beginning in November 1941, the Intervenors and the Electrical Workers, utilizing the Ajo Council as bargaining agent, have bar- gained with the Employer. The agreements reached between the parties have been embodied in documents known as continuing agree- ments, the latest of which had an expiration date of November 11, 1951., However, on October 6, 1951, the Ajo Council participated in "consolidated anniversary negotiations," 8 the result of which was a modification agreement which extended the continuing agreement to November 11, 1953, and changed certain of the wage provisions. This modification agreement was ratified by the Intervenors and the Electrical Workers prior to October 14, 1951. With the exception of the employees in the unit represented by Local 22866, the continuing agreement provides for the representation of the production and maintenance employees in bargaining units composed of skilled employees throughout the New Cornelia branch engaged in occupations bringing them within the craft jurisdiction of, the Intervenors and the Electrical Workers. Local 22866 represents a residual unit of production and maintenance employees not included 9 The unit request in Case No. 21-RC-2199 appears as amended at the bearing. 8 These negotiations were conducted on behalf of the Employer 's Copper Queen , Morenci, New Cornelia , and United Verde branches, and its Douglas Reduction Works. The labor unions participating were all the unions which were parties to the continuing agreement for each branch . Representing these local unions as bargaining agents were the Metal Trades Councils of Bisbee , Morenci-Clifton , Ajo, Verde District , and Douglas. A Grand Lodge representative of the Machinists also took part in the negotiations. PHELPS DODGE CORPORATION 729 in other units. These bargaining units cut across the divisional lines of all five divisions comprising the New Cornelia branch .9 The petitions of the Steelworkers request (1) an industrial unit of all smelter division employees and (2) four over-all multidivisional units of employees represented by the Engineers, the Blacksmiths, the Painters, and Local 22866, excluding smelter division employees. The Steelworkers asserts that the latter four units have been in existence from 1941 until July 1950, at which time the employees.of the smelter division were added to the existing Machinists, Electrical Workers, and Local` 22866 units. Thus, contends the Steelworkers, until July 1950, of these four requested units three existed as craft jurisdictional units and the fourth was a residual unit of a type customarily estab- lished by the Board in the copper mining industry. With respect to the requested unit of smelter employees, the Steelworkers relies on the Board's earlier decision in which a unit of smelter division employees at the New Cornelia branch was found appropriate.10 The Intervenors argue, first, that, since 1941, bargaining between the Ajo Council and Employer has been on an industrial basis, the Ajo Council being the labor union representing the employees at the New Cornelia branch in a single appropriate unit, and second, that the Steelworkers has not presented the evidence necessary for finding of craft units. The Employer does not participate in the above argu- ments but contends that the units in Oases Nos. 21-RC-2196 and 21-RC-2195 are inappropriate because they do not include all the employees in the existing recognized contractual units. We do not believe that the record supports the Intervenors' con- tention that bargaining at the New Cornelia branch has been on an industrial basis. In the recognition article of the current contract, the Employer recognizes each of the Intervenors and the Electrical 9 The units at the plant and the locations of the employees in the units are as follows : DIVISIONS Unit and union smelter Open pit dresor^ sing Mechanical Surface and mis- cellaneous Machinists -------------------------- X X X X Electrical workers--- ---------------- X "X X x ----- Boilermakers ------------------------ ------------ X X X X Blacksmiths------------------------- ---------- X X X Teamsters--------------------------- ------------ X X X X Engineers --------------------------- ------------ X X X X Carpenters -------------------------- ------------ ------------ ------------ X ------------ Plumbers---------------------------- ------------ ------------ X X X Painters----------------------------- ------------ ------------ ------------ x Railway carmen--------------------- ------------ X ------------ x ----- Local 22866 ------------------------- X X X X X The "X" mark indicates the presence in a division of employees represented by the particular union. . Assigned to division but under supervision of chief electrician. 20 9S'NLRB'990. T30 DECISIONS' OF'-NATIONAL LABOR-RELATIONS BOARD `Workers' •"for the respective bargaining units set forth' iii Exhibit `C'. .. " Exhibit C of the continuing agreement contains the group- 'ings of occupational classifications represented by the various craft =locals and by Local 22866. Moreover, the further provision is made "that "the employees so represented shall be only those within the re- spective appropriate bargaining units. :. " -The Ajo Council does 'not appear among the labor organizations recognized as unit bar- gaining agents nor is it a signatory of the contract. The contract, (however, does recognize the Ajo Council as the bargaining agency for the local unions. Provision is also made in the contract for its exten- sion to new appropriate units or "legally enlarged" appropriate units. 'The separateness of the contract units is evident in the maintenance- of-membership clause which provides that an employee who "was a (member of the union recognized or certified as the exclusive bargain- ing agent of his respective bargaining unit" must maintain his mem- bership in that union for the duration of the agreement. ' - Permanent transfer -to a vacancy 'in a unit represented by another' union- obligates the employee to become a member of this second union. (Further evidence of the nonindustrial 'nature of the bargaining"at the New Cornelia branch is found in the provision covering the deter- mination of rates of pay for new occupational classifications which provides for the designation as bargaining representative of the union -into whose craft jurisdiction the new occupation falls, and in the provision dealing with the grievance procedure providing that each local union shall elect a committee to handle "all grievances of its re- spective unit. . . ." From the above facts, it appears that the bargaining at the New ,Cornelia branch, rather than being 'of an industrial nature, was de- signed to and did, in fact, maintain the respective interests of the various unions -involved. This preservation of craft interest is not vitiated by the fact that the Ajo Council acts as bargaining agent in negotiations with the Employer for, we note, such participation is authorized by the various craft locals and any resulting agreement is subject to ratification by the locals. Nor do we consider the fact that the AFL Unions enter into a single contract with the Employer, in itself, a derogation from bargaining along craft lines. - - It is apparent from the foregoing that the history of collective bargaining at the New Cornelia branch from 1941 until the present time has been on a craft unit basis, the present contractual units being similar in scope to those found appropriate by the Board in an earlier case involving the Morenci, Arizona, operations of the Employer."- 2160 NLRB 1431 , where the Board also found that an over -all industrial unit might be appropriate in view of its prior determination to that effect in 4$ NLRB 489, and because of a 1-year history of collective bargaining on an industrial basis. 'PHELPS DODGE CORPORATION .731 -Though the bargaining units at the New Cornelia branch have been established without benefit of prior Board certification, the existence of a 10-year history of collective bargaining on a craft basis for the New Cornelia branch,- exclusive- of the smelter division, in our opinion, .carries; an overwhelming weight which, is• not counterbalanced by any evidence in the record in favor of a plant-wide industrial. unit. Examining the requested -units conceded by the Employer to be ap- propriate, i. e., those employees represented by the Engineers; • the Blacksmithsand the Painters, respectively, we find `that their scope is - identical with the present contractual units which have -existed, more or less unchanged, from 1941 to the present., In these circum- stances, and because none of the contested smelter division employees are there included, we conclude that these three units are appropriate and shall direct elections in them. I The remaining petitions of the Steelworkers raise the issue of - whether there has been a determinative history among k the smelter - division employees of inclusion in the plant-wide craft units so as to preclude the appropriateness of the division-wide industrial unit requested in 21-RC-2195.'2 The smelter division was established .in June 1950. On July 20, 1950, the Employer executed a recogni- tion agreement which recognized the Electrical Workers, the Ma- 'chinists, and Local 22866 as representatives, respectively, of the cranemen, repairmen and helpers, and the residual production and maintenance employees of the smelter division. On March 27, 1951, the Board dismissed a petition of the Steelworkers for an industrial :unit of smelter division employees upon the ground that the July 20 recognition agreement was executed ,before the filing of the Steel- workers' petition and thus barred the petition 13 The Board, in its decision, found (a) that the smelter division employees constituted an appropriate unit, and (b) that the unit properly had been brought under the terms of the continuing agreement then in force. Thus, the effect of the recognition agreement was to add the employees of ss The Electrical Workers intervened in Case No . 21-RC-2195 on the basis of the current contract wherein it is recognized as the bargaining representative of, among other e:n- -ployees, • the smelter division cranemen . At the hearing, the Electrical Workers sought to show that most . of the cranemen at the New Cornelir branch had moved from the Clarkdale branch, that at the latter branch the Board had found that the cranemen con- stituted a separate appropriate unit, and that an election held among the cranemen was won by the Electrical Workers, 56 NLRB 1560. Apparently , the Electrical Workers desires 'that the Board, in the event an election is ordered among the employees of the smelter division, make the same appropriate unit finding with respect to the cranemen so as to give them an opportunity to sever themselves from any division -wide unit. In view of the fact that the cranemen are the only smelter division employees now represented by the Electrical Workers and because. the election among the smelter division employees affords the cranemen the choice of remaining in the existing craft unit or being represented by the Steelworkers in a division -wide unit, we do not deem it necessary to consider the appropriateness of a separate unit of cranemen. ' 93 NLRB 990. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the smelter division to two branch-wide craft units and to, the biLfic h- wide residual unit, then in existence. In support of its present petition for an industrial unit of smelter division employees, the Steelworkers relies on the Board's previous finding that the smelter division employees constituted an appropriate unit. When faced with similar situations involving the smelter and mine divisions at the Employer's Copper Queen branch, the Board permitted the scope of the bargaining unit or units (of a division) to be determined by the results of separate elections.- As in these prior cases, the record here contains evidence showing the integrated character of the smelter division operations., We note the existence of separate supervision, physical separation from other divisions, and the absence of any significant degree of interchange of employees. Unlike the Copper Queen cases, however, the smelter division here has had a short history of collective bargaining on a craft basis. At the time the Steelworkers filed its petitions herein the July 1950 recog- nition agreement for the smelter division employees had been in oper- ation approximately 14 months. In view of the Board's prior finding that the smelter division was an appropriate unit and because the record herein contains evidence supporting the appropriateness of an industrial unit, we do not believe that the 14-month history of bargaining on a craft basis has conclusively established a pattern of -bargaining for the smelter division. Accordingly, we shall make no unit determination at this time but shall direct sepatrate elections among the smelter division employees. As to Case No. 21-RC-2196, in which the Steelworkers requests a unit of all employees currently represented by Local 22866 with the exception of employees in the smelter division, the existing unit embraces all noncraft production and maintenance employees in the 'open pit, ore dressing, mechanical, smelter, and surface and miscel- laneous divisions at the New Cornelia branch. The requested unit covers this same group of employees, except those employed in the smelter. Prior to the, establishment of the.smelter division in June 1950 and the subsequent recognition agreement of July 20, 1950, this four-division unit constituted the branch-wide residual produc- tion and maintenance unit for which Local 22866 bargained from November 1941 to July 1950. In view of the bargaining history of this four-division unit and our above decision with respect to the employees of the smelter division, we are of the opinion,that either a four-division or a five-division residual unit may be appropriate depending on the results of the elections hereinafter directed. '14 34 NLRB 846;'41 NI:RB M. PHELPS DODGE CO$PORATION The Electrical Workers' Petition 733 The Electrical Workers' petition requests a unit of all-employees in the powerhouse of the New Cornelia branch, who come under the supervision of the chief engineer.15 The powerhouse is a ' part of the surface and miscellaneous division and has a work force of approx- ,imately 31' employees. These employees are-currently, and since 1941 have been, represented by the Engineers, the Machinists, the Boiler- makers, the Plumbers, and Local 22866, as part of each of said union's plant-wide unit. In effect, the Electrical Workers asks the Board to find appropriate a unit comprised of parts of four plant- wide craft units and part of the plant-wide residual unit. Under the circumstances of this case, particularly the bargaining history at the New Cornelia branch, we are of the opinion that it would be inappropriate to break up these historically established craft units by severing therefrom the powerhouse employees.16 Accordingly, we shall dismiss the petition of the Electrical Workers. We find that the following employees of the Employer's New Cornelia branch at Ajo, Arizona, constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: (a) All employees employed in occupational classifications listed in Appendix A for which the Brotherhood of Painters, Decorators, etc., Local 1735, is currently recognized as bargaining agent. (b) All employees employed in occupational classifications listed in Appendix B for which the Brotherhood of Blacksmiths, Drop Forgers and Helpers, Local No. 623, is currently, recognized as bargaining agent 17 (c) All employees employed in occupational classifications listed in Appendix C for which International Union of, Operating Engi- neers, Local No. 428, is currently recognized as bargaining agent. We shall direct separate elections among the employees at the Employer's New Cornelia branch in the voting groups set forth below excluding all other employees and supervisors as defined in the Act : (d) All employees employed in occupational classifications listed in Appendix D for which Ajo Mine and Mill Workers Union, Local No. 22866, is recognized as bargaining agent, excluding smelter divi- sion employees. 16 The unit requested appears as amended at the hearing. 19 The powerhouse unit found appropriate at the Employer's United Verde branch, 56 NLRB 1560, was carved from a residual unit of production and maintenance employees. 1' The files indicate that the Blacksmiths and the Boilermakers have merged to form a consolidated local. Our determination above is limited to those employees in Appendix B listed as represented by the Blacksmiths. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) All employees in the smelter division, employed in occupational classifications listed in Appendix E, for which International Brother- hood of Electrical Workers, Local No. B-523, is recognized as bargain- ing agent. (f) All employees in the smelter division employed in occupational classifications listed in Appendix F, for which International Asso- ciation of Machinists, Lodge No. 1357, is recognized as bargaining agent. (g) All employees in the smelter division for whom Ajo Mine and Mill Workers Union;. Local No. 22866, 'is recognized as, bargaining agent, excluding those employees in occupational classifications listed in Appendices E and F. The Regional Director conducting the elections directed herein is instructed to issue certifications of representatives to the union or unions receiving majority votes in units (a), (b), and (c). As in- dicated above, we shall make no final unit determinations with respect to the employees in voting groups (d), (e), (f), and (g), pending the outcome of the elections in these groups. Order IT IS HEREBY ORDERED that the petitions filed herein in Cases Nos. 21-RC-2144 and 21-RC-2160, be, and they hereby are, dismissed. [Text of Direction of Elections omitted from publication in this volume.] CHAIRMAN HERzoo took no part in the consideration of the above Decision, Order, and Direction of Elections. Appendix A Painter gang boss Painter helper, first class Painter Painter helper, second class Painter apprentice Appendix B Blacksmith subforeman Blacksmith Drill steel blacksmith C. D. bit sharpener Blacksmith repairman B Air drill bit temperman Hot miller operator Churn drill bit temperman Blacksmith helper, first class Blacksmith helper, s e c o n d class C. D. bit sharpener helper Blacksmith apprentices PHELPS DODGE CORPORATION 735 Appendix C Open Pit Division `Electric shovel operator Assistant shovel repair fore- man Prospect C. D. operator Bulldozer operator Churn drill operator Loco crane operator Track gang boss Shovel repairman A Track shifter operator Shovel repairman B Locomotive crane groundman Bit loco operator Gas car operator Shovel oiler Track gang subboss : - Shovel repairman helper, first class Prospect C. D. helper Churn drill helper .Gas car brakeman - Track shifter helper Shovel repairman h e l p e r, second class Motor crane operator Motor crane helper Open pit attendants Ore Dressing Division Dragline operator Inspector, grinding Inspector, flotation Foremaxi- coarse crusher .Dumpman crusher Distributor operator Cone crusher operator Screen operator Ball mill operator Flotation operator Reagent operator Regrind operator Filter operator Tailings dam - operator Thickener operator Concentrate pumpman Marcy Mill oiler Operator helper Oiler C. C., and cones Conveyorman. Tripperman Mechanical Division Motor crane operator Ditcher operator Ice plant'operator Motor crane helper Crane car operator Tractor loader operator Gravel plant operator Compressorman Surface and- Miscellaneous Division First engineer (power plant) Grader operator ell= hoistirian Second engineer (power plant) Fireman first class (power plant) Underground pumpman Fireman second class (power plant) Undergrounri,d pumpman - helper Tractor loader operator DECISIONS OF. NATIONAL, LABOR, RELATIONS BOARD Appendix D Head panel trackman, Primary, powder boss Waste• dumpman Machine' drillnian Mine pipeman Powderman Panel ,trackman Switch oiler Jackhammerman Dumpman helper Cap house keeper Churn drill sampler Powder supply helper Open Pit Division Churn drill sampler laborer Switch inspector Bank laborer Loco crane -laborer Electric shovel pitman- Bulldozer laborer Mine pipe laborer Trailmaker . Change room j anitor A Powderhouse helper Panel track laborer Track laborer Cleanup laborer Roadman Cableman General laborer Primary powderman helper Secondary powderman helper Machine drill helper Ore Dressing Division a Conveyor oiler Ball mill laborer Pan conveyor laborer- Cleanup laborer Conveyor laborer General laborer Sampler-mill Mechanical Division Change room janitor A Janitor B Cleanup laborer Surface and Miscellaneous Division' Sample bucker Janitor A Cleanup laborer Janitor B Gardener , Garden laborer Appendix E , Reverberatory craneman . Anode craneman Converter craneman Appendix 'F Smelter repairman A Smelter repairman helper, Smelter repairman B second class Smelter repairmaan helper, first class I