Phelps Dodge Corp.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Phelps Dodge Corporation, Copper Queen Branch and Interna- tional Union of Mine, Mill and Smelter Workers, Independent, Petitioner. Cabe No. 21-RC-3708. April 14,1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Carl Abrams, hear- ing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit of production and maintenance employ- ees of the Employer's crushing and concentrating plant. The Em- ployer and the Intervenors, Bisbee Miners Union, Local No. 22972, AFL, herein called Bisbee Miners, and International Association of Machinists, AFL, for itself and in behalf of its Local Lodge 1121, herein called the Machinists, contend that their current contract, known as the Continuing Agreement, operates as a bar to a determina- tion of representatives at this time. On October 6, 1951, the Employer and nine other labor organiza- tions affiliated with the American Federation of Labor, including the Intervenors herein, executed a contract known as the Continuing Agreement, covering the production and maintenance employees at the Employer's Copper Queen Branch, in the vicinity of Bisbee, Ari- zona, in a production unit and in separate craft maintenance units. The crusher and concentrator plant, known as, and herein referred to I In view of our decision herein, we find it unnecessary to rule on the motions of the Employer and the Intervenors to dismiss the instant petition on other grounds. 112 NLRB No. 30. PHELPS DODGE CORPORATION 161 as, the mill, was not in operation at that time. Article II of the Con- tinuing Agreement contains the following clause: It is mutually agreed that in the period between anniversary dates of this Agreement, any local union affiliated with the Amer- ican Federation of Labor and composed of employees of the Company which may become a legally recognized or certified bar- gaining agent of an appropriate unit, or a local union composed of employees of the Company which may have its unit legally en- larged by certification or recognition, shall likewise be a party hereto on date of certification or recognition. In June 1954, the Employer commenced operations at its mill with a production group and a maintenance crew composed entirely of re- pairmen and their helpers. To the date of the hearing in this pro- ceeding, these maintenance classifications have remained unchanged. On July 15, 1954, an organizer for the American Federation of Labor wrote the Employer, advising it that a majority of the mill employees had designated Bisbee Miners as their exclusive bargain- ing representative, requesting that it recognize Bisbee Miners as their exclusive bargaining representative and that it meet with Bisbee Miners at an early date to negotiate a contract, and further stating that Bisbee Miners wished to exclude repairmen and their helpers' from the unit. On July 23, 1954, the parties to the Continuing Agreement ex- tended the same to September 1, 1956. On July 30, 1954, the Employer by letter advised the organizer that, in view of subsequent presentation of satisfactory proof of majority representation in an appropriate unit in the mill, the Employer thereby recognized Bisbee Miners as the exclusive bargaining repre- sentative in that unit and that by virtue of that recognition and by application of the above-quoted last paragraph of article II of the Continuing Agreement, both the Employer and Bisbee Miners became bound by all of its terms, and further stating that there only remained the matter of establishing the line of promotion and of amending the Continuing Agreement to include the occupational classifications and rates of pay then in effect in the newly recognized unit. These amendments were subsequently negotiated. On August 26, 1954, the Petitioner filed its instant petition. In Phelps Dodge Corporation, New Cornelia Branch, 93 NLRB 990, the Board was called upon to determine the effect, for contract- bar purposes, of a clause identical in wording with article II of the Continuing Agreement under circumstances similar to those present 2 Bisbee Miners also wished to exclude, in addition to the usual exclusions , several craft maintenance classifications As indicated above, no employees in any of these classifi- cations have been employed at the mill 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here. In our opinion, the Board's rationale with respect to that clause is dispositive of the contract-bar issue herein presented. The Board in that case stated : With respect to this case, Article II of the 1949 contract re- quires two things before the terms of the contract become applica- ble to additional employees. First, it requires "an appropriate unit." . . . Second, it requires a "legally recognized" bargaining agent in that unit. Here, the recognition accorded by the Employer to the Intervenors as the representatives of the Smelter Division employees was based upon a contemporaneous showing that a majority of these employees had so designated the Intervenors, and the record raises no doubts as to the validity of this majority designation. Having satisfied the conditions of the 1949 con- tract, the action of the Employer and the Intervenors in executing the recognition agreement on July 20, 1950, constituted more than mere recognition of the Intervenors as bargaining representatives. [Emphasis supplied.] Applying this rationale to the instant case, the first question is whether the production employees at the mill-the subject of the above exchange of letters-constituted an appropriate unit at the time the Employer granted Bisbee Miners recognition as exclusive bargaining representative. The record shows that the composition of the produc- tion group remained essentially unchanged to the hearing date. The record further shows that the approximately 90 production employees perform a different type of work from that performed by the repair- men and use substantially different kinds of tools. They are separately supervised and do not regularly interchange with repairmen. Under these circumstances, we conclude that the production employees consti- tuted an appropriate unit.' With regard to the second question, as to whether the production employees had a legally recognized bargaining agent in the unit, it is clear that recognition was accorded to the Bisbee Miners as the representative of the production employees in the mill and that it was based upon an undisputed showing of majority status. Accordingly, we perceive no valid basis for distinguishing the instant case from the New Cornelia case and in reliance on the Board's holding in that case we find that the Continuing Agreement, which contains an identical provision, constitutes a bar to a present determination of representatives for the production employees at the mill. Although the Continuing Agreement, for the reasons stated above, serves as a bar with respect to the production employees, it does not bar an election among the repairmen at the mill as no action pursuant to article II of the Continuing Agreement was taken with respect to them. However, despite the Petitioner's willingness to represent a unit small- 8 See Stauffer Chemical Company, 108 NLRB 1037. SYRACUSE RENDERING COMPANY 163 er than the unit sought in its petition, we are administratively advised that the Petitioner has failed to make an adequate showing of interest in the unit of repairmen. Under these circumstances, we will not direct an election in such unit.' Accordingly, we shall dismiss the instant petition. [The Board dismissed the petition.] MEMBER LEEDOM took no part in the consideration of the above Decision and Order. * See Koehring Southern Company, 108 NLRB 1131. footnote 12. Consolidated Rendering Company, d/b/a Syracuse Rendering Company 1 and United Packinghouse Workers of America, CIO, Petitioner Consolidated Rendering Company, d/b/a Syracuse Rendering Company and International Brotherhood of Teamsters, Local 317, Petitioner. Cases Nos. 3-RC-1497 and 3-RC-1501. April14, 1955 DECISION, ORDER, AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Hyman Dishner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. A question 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. 4. In disagreement with the Employer and the International Brotherhood of Teamsters, Local 317, herein referred to as the Teamsters, it is the contention of the United Packinghouse Workers of America, CIO, herein referred to as the Packinghouse Workers, that the appropriate unit should be limited to the production and maintenance workers at the Employer's Syracuse, New York, plant, where the Employer is engaged in the processing of hides, skins, and bones, collected by 12 branch stations located within the State of New I The Employer's name appears as amended at the hearing 112 NLRB No. 31. 369028-56-vol. 112-12