Phelps Dodge Corp.

In the Matter of PHELPS DODGE CORPORATION, UNITED VERDE BRANCH and AMERICAN FEDERATION OF LABOR ; INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL 223; INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIP BUILDERS AND HELPERS , LOCAL 406; INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL B-657; AND UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 1061 Case No. C-1-193.-Decided September 27, 1939 Mining and Smelting Industry-Interference, Restraint, and' Coercion: com- pany formed, dominated , dealt with, and made contracts with two unaffiliated Representation Plans at two separate plants, and refused to bargain collectively with four certified craft unions-Comnpaii.y-Dominated Unions: company in 1937 participated in formation of constitutions empowering it to control the employee representatives of each Plan , although there was no evidence that such power was exercised ; formal separation in 1938 of one Plan into a bargaining medium and a labor organization , sponsored by the old representatives, at company's suggestion, but with no substantial change over former Plan ; adopted by em- ployees after wage increase credited to representatives of former Plan ; both Plans _ disestablished as agencies for collective bargaining ; contracts with, abro- gated-Units Appropriate for Collective Bargaining : prior determination in representation case not altered , because no material change since that time- Representatives: ascertained by elections and certified in prior representation case-Collective Bargaining : refusal to bargain with certified craft unions in order to obtain review of units previously found to be appropriate in representa- tion case, held no defense ; company ordered to bargain. Mr. William R. Walsh, for the Board. Ellinwood cfi Ross, Mr. William A. Evans, and Mr. Denison Kitehel, all of Phoenix, Ariz., for the respondent. Mr. A. H. Peterson, of Los Angeles, Calif., and Mr. A. S. Holohan and Mr. F. H. Sizemore, both of Phoenix, Ariz., for the Craft Unions. Mr. Paul R. Hutchings, of Washington, D. C., for the Machinists. Mr. T. H. Latham,, of Washington, D. C., for the Electricians. Mr. Perr/ M. Ling, of Jerome, Ariz., for the Smelter Plan. Mr. Milton E. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by the American Federation of Labor, herein called the A. F. of L., the National Labor Relations Board, 15 N. L. R. B., No. 76. 732 PHELPS DODGE CORPORATION -733 herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint, dated No- vember 29, 1938, against the Phelps Dodge Corporation, herein called the respondent, alleging that the respondent, at its United Verde Branch, Clarkdale and Jerome, Arizona, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (5) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. The complaint, which contained a notice of hearing, and an amended notice of hearing, were duly served on the 'respondent; on the A. F. of L.; on the International Association of Machinists, Local 223, herein called the Machinists; 1 on the International. Brotherhood of Boilermakers, Iron Ship Builders, Welders and .Helpers of America, Local 406, herein called the Boilermakers; 2 on the International Brotherhood of Electrical Workers, Local B-657, herein called the Electricians; on the United Brotherhood of Carpenters and Joiners of America, Local 1061, herein called the Carpenters; on the Inter- national President of Grand Lodge, International Association of Machinists; on the Central Labor Council; on the Los Angeles Indus- trial Union Council; on the Employees' Representation. Plan, Mines Division, United Verde Branch, Phelps Dodge Corporation, herein called the Mines Plan ; 3 and on the Employees' Representation Plan, Smelter Division, United Verde Branch, Phelps Dodge Corporation, herein called the Smelter P1an.4 The Machinists, the Boilermakers, the Electricians, and the Carpenters are herein collectively called the Craft Unions. The complaint alleges in substance that the respondent owns and operates a mine at Jerome, Arizona, and a smelter at Clarkdale, Ari- zona, the mine and--.Smelter being designated as the respondent's United Verde Branch; that four described units at the said Branch are appropriate for the purposes of collective bargaining; that each of the Craft Unions, having been designated by a majority of the re- spondent's employees in each of :the said units, respectively, pursuant to a-Decision and Direction of Elections of the Board, is the exclusive representative of all the respondent's employees therein; that the respondent thereafter refused to bargain collectively. with any of the 1 Service was directed to, and the Machinists was designated throughout the complaint as, the International Association of Machinists , Local 233, but this designation was cor- rected by amendment at the hearing. 2 Service was directed to, and the Boilermakers was designated throughout the com- plaint as, the International Brotherhood of Boilermakers , Iron Ship Builders and Helpers, Local 406. 3 Service was directed to the Employees' Committee, Employees' Representation Plan, Phelps Dodge Corporation , United Verde Branch , Mine Division. * Service was directed to, and the Smelter Plan was designated throughout the complaint as. the Employees' Committee, Employees ' Representation Plan, Phelps Dodge Corporation, United Verde Branch , Smelter Division. 734 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD 'Craft Unions as such representative ; that the respondent, since July 5, 1935; dominated and interfered with the formation and administration of, and contributed support to , the Mines*Plan and the .Smelter Plan; and that the respondent's aforesaid acts are unfair labor practices, .affecting commerce , within the meaning of Section 8 (1), (2), and (6) and Section 2 (6) and (7) of the Act. Thereafter, the respondent duly filed its answer to the complaint, in substance admitting some of the allegations thereof, but the re- spondent denied having committed any unfair labor practices, inas- much as it denied ( 1) the appropriateness of the four units alleged in the complaint to be appropriate for the purposes of collective bar- gainiug, and (2) that it had since July 5, 1935, dominated or inter- fered with the formation or administration of, or contributed support to, the Mines Plan or the Smelter Plan. Pursuant to notice, a hearing was duly held on December 8 and 9, 1938, at Clarkdale , Arizona, before Charles E. Persons , the Trial Examiner duly designated by the Board. The motion of the Smelter Plan to intervene wtis granted , but such intervention was limited to the issue of the respondent's domination of the Smelter Plan. The Board, the respondent, the Craft Unions, and the Smelter Plan were represented at, and participated in, the bearing.' Full oppor- tunity to be heard, to examine and cross -examine witnesses, to intro- duce evidence bearing on the issues , and to present oral argument before and file briefs with the Trial Examiner at the close of the hearing, was afforded to all parties to the hearing. On February 8, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served on each of the parties to the. hearing. In the Intermediate Report, the Trial Examiner found that the respondent had . engaged in and was engaging in -the unfair labor practices alleged in the complaint , and he recommended that the respondent cease and desist from such unfair labor practices and take certain affirmative action in order to effectuate the policies.of the Act. At the close of the Intermediate Report, notice was given to all parties that' they might file a request with the Board for the privilege of filing briefs or of presenting oral argument. Thereafter, the respondent and the Smelter Plan each duly filed exceptions to the Intermediate Report and to other parts of the .record. Pursuant to notice to all parties, a hearing for the purpose of oral argument was duly held on April 13 , 1939, before the Board, at Washington, D. C., in which the respondent , the Machinists, and the Electricians participated . Briefs were also duly filed with the Board by the respondent and by the Smelter Plan .. 6 The 'Mines Plan did not appear at this hearing. PHELPS DODGE . CORPORATION 735 During the hearing and in his Intermediate Report, the Trial Ex- aminer made rulings on motions and on objections to the admission of evidence . The Board has reviewed these rulings, and finds that no prejudicial errors were committed . The rulings are hereby affirmed. The Board has considered the exceptions filed by the respondent and the oral argument in support thereof, and also the exceptions filed by the Smelter Plan and the briefs submitted by these. parties. Save as the exceptions are consistent with the findings, conclusions, and'.order herein, the Board finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a corporation organized and existing by virtue of the laws of the State of New York, and is qualified to do business in the State of Arizona . The respondent and its subsidiaries are engaged in the business of mining, refining, and fabricating copper and other metals, and its wholly owned subsidiaries engage in other types of business. The respondent has a branch of its business known as its United Verde Branch, which is the name given to its mine at Jerome, Ari- zona, operated by its Mines Division, and its smelter at Clarkdale, Arizona, operated by its Smelter Division . The mine consists of a large deposit of copper-bearing ore , with traces of silver and gold. Ore produced at the mine is shipped to the smelter , approximately seven miles distant. The ore is there reduced to bullion, which is shipped by rail and steamship line to the respondent 's refinery at Laurel Hill , New York. The respondent, in the course and conduct of its aforesaid business, causes and continuously has caused to be shipped in interstate commerce from the State of Arizona to the State of New York large quantities of bullion, amounting in 1936 to more than 75 ,000,000 pounds of copper , or approximately 6 3 per cent of the total amount of copper produced in the United States in that year; and, in addition, the respondent causes and has caused to be shipped into the State of Arizona from and through other States of the United States and foreign countries large qu<untities of raw ma- terials used in its mining operations, but in what quantities the record does not disclose. 11. THE ORGANIZATIONS INVOLVED The A. F. of L. is a labor organization. The Machinists is a labor organization affiliated with the A. F. of L., and apparently admits to membership machinists, ma- 736 DECISIONS OF.NATIONAL LABOR RELATIONS BOARD chinist helpers, and apprentices, including tool makers, drill-press operators, and jigger-boss machinists. The Boilermakers is a labor organization affiliated with the A. F. of L., and apparently admits to membership boilermakers, helpers, apprentices, welders, boiler-shop -.punchmen, and boilermaker jigger bosses. The Electricians is .a labor organization affiliated with the A. F. of L., and apparently admits to membership electricians, electrician helpers and apprentices, electrician jigger bosses, armature winders, metermen, and meterman apprentices, but excludes radio men, re- 'frigerator men, crane workers, switchboard men, and generator attendants. The Carpenters is a labor organization affiliated with the A. F. of L., and apparently admits to membership carpenters and apprentices. The record reveals that, with the exception of the Machinists, the jurisdiction of the Craft Unions is not confined to persolis,employed by the respondent at its United Verde Branch. The Mines Plan is an unaffiliated labor organization, and admits to participation all the respondent's non-supervisory employees at its United Verde Branch, Mines Division. The Smelter Plan is an unaffiliated labor organization. Prior'. to September 23, 1938, the Smelter Plan admitted to participation all the respondent's non-supervisory employees at its United Verde Branch, Smelter Division; and since said date, the Smelter Plan .admits such employees to membership. III. THE UNFAIR LABOR PRACTICES A. Refusal to bargain with the Craft Unions On November 7, 1937, each of the four Craft Unions filed with the .Board a petition for investigation and certification, pursuant to Section 9 (c) of the Act, as the exclusive representative of all the respondent's employees in a certain unit claimed to be appropriate for the purposes of collective bargaining at its United Verde Branch. The Board ordered a consolidated hearing on these four petitions. At the consolidated hearing, participated in by the respondent and also by the Mines Plan and by the Smelter Plan, as labor organiza- tions claiming to represent employees directly affected by the investi- gation, as well as by the Craft Unions, the Mines Plan offered in evidence a. copy of a document, herein called the Mines Constitution, entitled "Employees' Representation Plan" and dated September 1, 1937, under which it operated; and the Smelter Plan offered in evi- dence a copy of a document, herein called the Smelter Constitution, PHELPS DODGE CORPORATION 737 similarly entitled and dated May 15, 1937, under which it operated; and both constitutions were admitted in evidence by the Board. . On April 15, 1938, the Board duly issued its Decision and Direction of Elections," in which it decided that the'_ Mines Plan and the, Smelter Plan, being subject to control by the respondent on the face-of their constitutions, were not entitled under the Act to represent. employees for the purposes of collective bargaining; and it further decided that, under the circumstances disclosed in the record, each of the four units claimed by the Craft Unions was appropriate for the purposes of collective bargaining, inasmuch as the units so claimed were' not opposed by any labor organization entitled under the Act to represent employees for the purposes of collective bargaining; and it ordered an election by secret ballot to be held in each of the said units to ascertain representatives. The four units thus decided by the Board to be appropriate for the, purposes of collective bargaining are as follows': .. . L .A unit; herein called the machinists' unit,' comprising all the persons employed by the 1 .respondent at its United Verde "Bi anc11 as machinists, jigger boss machinists, machinist appien- tices, machinist. helpers, tool makers, special machinists, drill press operators, mill * machinists, mine machinists, and smelter machinists. 2. A unit, herein called the boilermakers' unit, comprising all the persons employed by the respondent at its United Verde Branch as boilermakers, boilermaker apprentices, boilermaker helpers, special boilermakers, boilermaker jigger bosses, welders, boiler shop punchmen, mill boilermakers, and boiler shop laver-out. 3. A unit, herein called the ,electricians' unit, comprising all the persons employed by the respondent at its United Verde Branch as electricians, armature winders, electrician 'jigger bosses, electrician helpers, electrician apprentices, metermen, and meterman apprentices, but excluding radio men, refrigerator men, switchboard' operators, crane men, and generator attendants. 4. A unit, herein called the carpenters' unit, comprising. all the persons employed by the respondent at its United Verde Branch as carpenters and carpenter apprentices, but excluding carpenter helpers. On June 11, 1938, on the basis of elections duly held in each of the said units on May 13 and 14, 1938, the Board duly issued its Certifi- cation of Representatives,? certifying the Machinists as the exclusive representative of all the persons in the machinists' unit, the Boiler-. 0 6 N. L. R. B. 624. 7 N. L. R. B. 862. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD makers in the boilermakers' unit, the Electricians in the electricians" unit., and the Carpenters in the carpenters' unit. Under date of August 13, 1938, the Craft Unions, by Darrell Cole, secretary of the Verde District Metal Trades Council, an organization composed of the Craft Unions, wrote a letter to the respondent.re-- questing a bargaining conference. Under date of August 17, 1938, the respondent, by C. R. Kuzell, acting for the manager of the respondent's United Verde Branch, refused this request, stating that the respondent did not recognize any of the Craft Unions as bargaining agent for any of its employees. The respondent admits this refusal to recognize or bargain with the Craft Unions, but explains that this action was taken in order to secure a review of our determination of the emits appropriate' for the,,purposes of collective,bargainiiik. In tree irstailt proceeding tree respondent ' renews the arguments urged in the representation pro- ceeding in support of its contention that the Board should not find the craft units appropriate, but rather should find appropriate two separate bargaining units, one for the Mines Division and the other for the Smelter Division. In addition to the arguments heretofore advanced, the respondent now assigns a further reason for the al- teration of the bargaining units. Our original determination of the propriety of the separate craft units was in part predicated upon the fact that no bona fide labor organization- was .contending for a dif- ferent unit. The respondent asserts that the infirmities in the original Smelter Plan' were' aired" by'voluiutaiy action of t11e employees after the Board's decision in the representation case, and that now a bona fide labor organization, the present Smelter Plan, effectively represents a broader unit, similar to that sought by the respondent. For the reasons more fully -discussed in subdivision C, infra, we find that the alteration in the Smelter Plan was not of such a nature as to require a dif£erent.determination,of the appropriate bargaining emits. The respondent' further argues that, since there are many more crafts at its United Verde Branch, than the four represented by, the Craft Unions, the principle announced in our Decision and Direction of Elections of April 15, 1938, regarding the units appropriate for the purposes of collective bargaining might compel some of the respond- ent's supervisory employees to .spend a great deal of their time in bargaining conferences with the many different -crafts, rather than in the performance of their business duties. There is no showing in the record.to support the respondent's fears as to the undue amou'itt of time it will have, to .devote to collective bargaining in the futm'e.' But even assuming for the purposes of argument the validity of the' respondent's apprehensions, it is manifest that the requirements 'Of' an employer's business must yield to the paramount requirements of PHELPS DODGE CORPORATION 739 a national law such as the Act.s We would not' be justified in de= priving employees of their rights, as guaranteed in the Act, merely og the ground that the exercise of such rights might become onerous to the employer. In the absence of any effective claim by a bona fide labor organiza= tion for a different bargaining unit or units, we find that the four craft units which we heretofore found appropriate for the purposes of collective bargaining are still appropriate for such purposes.° We further find that each of the four Craft Unions was on August 17, 17938, and has been at all times thereafter, the exclusive representative of all the employees in each such unit, respectively. Section 8 (5) of the Act imposes an affirmative duty on an employer to bargain collectively upon appropriate request with the represen- tative designated by a majority of his employees in a unit appropriate for the purposes of collective bargaining. The four Craft Unions were such duly selected representatives in the respective- appropriate units and the Board so certified to, the respondent. The four' Craft Unions made appropriate requests of the respondent to bargain col- lectively',.which requests the respondent concededly denied on August 17, 1938. The respondent's doubts concerning the propriety of the bargaining units heretofore found by the Board to be appropriate, after proceedings duly held pursuant to the provisions of the At, affoi;d-no-defense'to its failure to satisfy its statutory duty to bargain collectively with the Unions certified by the Board as the exclusive representatives in such units. We therefore find that the respondent, on August 17, 1938, and at all times thereafter, refused to bargain collectively with each of the Craft Unions as the exclusive represen- tative" of its employees in certain units (hereinbefore described) appropriate for such purposes. We further find that the respondent; by its aforesaid acts, inter- fered with, restrained, and coerced employees at its United Verde Branch in the exercise of the rights guaranteed in Section 7 of the Act. B. Domination of the Mines Plan The Mines Plan was originally established in 1933 at tile' Miiie's Divisions. the propertie's thereof being at that time otivned by- the United Verde Copper Company. In February 1935, the respondent' purchased these properties from the United Verde Copper Company. After that purchase, the respondent continued to recognize and deal with the employees through' the' Mines Plan.. The record does not 8 See National Labor Relations Board v. Star Publishing Company, 97 -F._(2d) 465. '° See Matter of Wisconsin Telephone Company and Telephone Operators Union; Local, n5-.A, International Brotherhood of Electrical Workers, 12 N. L. R. B. 375. 740 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD disclose the form of the organization prior to September 1, 1937, but does contain the Mines Constitution of September 1, 1937, which now governs the Mines Plan. We find that the Mines Constitution of September 1, 1937, although unsigned, bears conclusive internal evidence that the respondent par- ticipated in its formation. The first article thereof reads as follows Article 1-Pun osE. The employees and the Management of the Phelps Dodge -Cor- poration, United Verde Branch, Mines Division, in order to form an organization for the purpose of promoting closer relations between the employees and the Management, to provide a method for the prompt settlement of any differences that may arise, and ,to provide a means whereby employees shall have representation in the consideration of questions. of policy relating. to working conditions, hours of labor, wages,.safety and other matters of mutual interest, do hereby establish, this Employees' Representa- tion Plan foi the United Verde Briiiich, Mines-Division. The,. stated purpose of the Mines Constitution leaves no alternative to the conclusion that the- respondent participated in its formation, and we.so find. ,.The Mines Constitution establishes a method of dealing.,hetween, the employees -and the management of the- Mines Division. - The Mines Division, is .divided into five electoral divisions, each of which annually elects anemployee to represent it. The .five employee repre- sentatives, known as the Employees' Committee,- and five management representatives together compose the Industrial Council, which meets at least once a month to carry into effect the Plan's purposes, which we have previously quoted. With respect to the internal organization of the employees,. the Mines Constitution provides in :part that all employees at the Mines Division (except foremen, bosses, and those with authority to employ and discharge) are entitled to vote; that only employees entitled to vote are eligible for nomination as the ,employee representative of the electoral division in which they are. employed, with the further condition that they must have been employed at the Mines Division for at least a year immediately prior to nomination; ° and that.an employee representative who leaves the respondent's service, or is permanently transferred to another electoral division at the Mines. Division, automatically terminates his membership "in the Industrial Council. The Mines Constitution further provides that amendments require the concurrence of two-thirds of the management -represent- 10 There are other eligibility requirements , but they do not need to be discussed In this connection. PHELPS DODGE CORPORATION 741 atives, and that the respondent can terminate the-Plan established by this Constitution at any time. With respect to the method of dealing between the employee repre- sentatives and the management, the Mines Constitution provides in part that the manager of the respondent's United Verde Branch is. ex officio the chairman of the Industrial Council, but shall designate another to act as temporary chairman in his absence; that a majority of the five nianagenient representatives is necessary to constitute a quorum; that- matters to which the management representatives do not agree are to be submitted to arbitration for final decision only in the event that, the management representatives agree to such a pro- cedure; and that the respondent can terminate this phase of the Plan at any time. It is. also provided that copies of the minutes of all meetings of the Industrial. Council shall be posted on. the bulletin boards-of the Mines Division. The Mines Constitution does not provide for dues or any other form of financial support for the employees' organization, nor-does.it. provide for any formality for becoming a participant. therein. .There is-no provision for any meetings of the employees; their participation is limited to. casting two ballots a year, one to nominate and the other to elect a fellow. employee to represent their electoral division, with a special election in case.of an earlier vacancy. . - . The-respondent thus controls the. Mines Plan in several respects, which were not specifically mentioned in our previous decision in the representation proceeding. It controls the right of an. employee to vote for representatives, since only those employed in the Mines Divi- sion in a non-supervisory capacity are entitled to vote. Under this provision, the respondent may deprive an employee of his right to participate in the Mines Plan by discharging or transferring him. The respondent controls the right of employees to be represented by representatives of their own choosing, since only those persons who ere employed at the Mines Division for at-least the preceding year are eligible for nomination as the employee representative of the elec- toral division in which they are employed. Under this provision, the respondent may deprive employees of their right to be represented by a certain otherwise eligible fellow employee, by discharging that employee or by merely transferring him from the Mines Division at any time during the year. The respondent controls the right of a duly elected employee representative to continue to act as such, since termination of employment in a non-supervisory capacity at the Mines Division, or a permanent transfer to another electoral division within the Mines Division, automatically terminates the right of the indivi- dual to continue to act as such representative. . Under this provision, the respondent may eliminate a duly elected employee representative 199549-39-vol. 15-48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by discharging him or by merely transferring him to another elec- toral division within the Mines Division. The respondent also con- trols the right to amend the Constitution of the Mines Plan, since amendments require the concurrence of two-thirds of the manage- ment representatives. Finally and of paramount importance, as we stated in our decision in the representation proceeding, the respondent controls the very existence of the Mines Plan, since its board of directors can terminate the Mines Plan at any time. The respondent also controls the functioning of the Industrial Council at the Mines Division. The Council cannot proceed unless a management representative is present to act as chairman addition;unless a majority 'of the five management 'representatives are present to constitute a quorum. Matters to which the manage- ment representatives do not agree are to be submitted to arbitration for final decision, but only if these same management representatives agree to such submission; and even then the arbitration cannot proceed unless the respondent agrees to the selection'of all arbitrator. Each of the provisions mentioned in the preceding paragraphs' subjects the functioning of the Mines Plan to the respondent's control. Matters which the management is unwilling to accept voluntarily can be effectively quashed in several ways; and the employees and their representatives, both of whom are subject to the respondenit's-control=in their.riglnt.to continiie.to participate-i•n^the Mines Plan, and. with no collective economic resources at their dis- posal, are in-no position to do anything other than to accept the -management's pleasure regarding such matters. Thus the respondl- eut can paralyze the entire functioning of the Mines Plan, by inaction as well as,by affirmative action; and if the-Mines Plan ever -becomes untractable despite such controls, the respondent can put an outright end to the labor organization. Since, as we have found, the respondent participated in the formation of the organization, it in effect bestowed upon itself the power to control the Mines Plan. The respondent contends that the failure of the record to disclose any acts whereby it has exercised control of the Mines Plan requires a dismissal of the complaint in so far as it alleges that the respond=' cut- dominated-the Mines Plan. We are unable-to accept this argu= meat. In determining whether an employer controls both sides of- -the. bargaining table because of his power to control the organiza- tion of his employees, it is immaterial whether the - record reveals any situations showing that he exercised his power of control. The more effective his control is, because of possessing this power, the less occasion there will be for him to exercise it in order to bend the organization to his will. In fact the mere existence of such control, ,over a labor organization necessarily precludes the possibility of the' PHELPS DODGE CORPORATION 743 controlled- organization acting as a free: and independent agency 11 for the representation of employees for the purposes of collective bargaining such as is contemplated by the Act.12 Furthermore, the respondent's complete identification with and participation in the functioning of the Mines Plan under the provisions of the Mines Constitution necessarily conveyed to its employees the knowledge that the Plan was an agency which the respondent desired its em- ployees to use in all matters affecting their mutual relations, and thus secured employee acceptance for the Plan and thereby con- tributed support to it. We therefore find that the respondent, by participating in the formation of the Mines Constitution of September 1, 1937, dominated -interfered, with- tlie"forinatioli of the Mi ies Plan, and that it and-, dominated and interfered with the administration of, and con- tributed support to, the Mines Plan as thereby constituted is On June 7, 1938, an agreement entitled "Industrial Council Articles of Agreement for Bargaining Procedure" was adopted at a meeting of the Industrial Council of the Mines Plan by the management representatives and by the committee of the five employee representatives elected pursuant to the Mines Constitu- tion.14 This agreement did not purport to cover wages, hours, and W,orking conditions, but merely perpetuated in the form of a contract the' provisions governing the method of collective. dealing between the :respondent=and its' employees wliich'haid'forliierly`been included in the Mines Constitution. We find that the respondent insured, its continued control of the Mines Plan through the adoption of this contract by the Industrial Council which it dominated, and that the performance of such a contract would prevent the respondent's-P111,7_ _, . ployees from freely exercising the rights guaranteed in.Section; 7 . of the: Act.. 111e find that the respondent, by its aforesaid acts and by the terms of the said agreement, interfered with, restrained, and coerced employees in its Mines Division in the exercise of the rights guaran- teed in Section 7 of the Act. The usual indicia of a free and independent labor organization are not present here since, as we have . found, there were no-dues, no'formalities"for'joining' or designa`t'ing the organization for. the purposes of representation ; and , no- of'the ''eriijiloyees'for gen eral discussion'or for instructing their representatives. L See National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261, at 268 , where Mr . Justice Stone said : ". . . collective bargaining is a sham when an employer sits on both sides of the table." "See National Labor Relations Board v. Pennsylvania Greyhoand . Lines, Inc., et al., 303 U. S . 261. See also Matter of Western Felt Works , a corporation and Tevtile Workers Organizing Coomlttee, Western Felt Local, 10 N. L. R. B. 407, at p . 445; Matter of Beth- lehem Shipbuilding Corporation, Limited and Industrial Union of Marine and Shipbuilding lVorkers of America, Local No . 5. 11 N . L. R. B. 105 ; Matter of Servel. Inc. and United Elect rical , Radio and M achine Workers of America, Local No. 1002, 11 N. L. R. B. 1295. 13 Certain minor modifications of this agreement were thereafter made, but they are immaterial here. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Domination of the Smelter Plan The history of the Smelter Plan up to September 23, 1938, is sub- stantially similar to that of the Mines Plan, as set forth in the preceding subdivision. The Smelter Plan was originally established in 1933 at the Smelter Division, the properties thereof being at that time owned by the United Verde Copper Company., In February 1935, the respondent purchased these properties from the United Verde Copper Company. After that purchase, the respondent con- tinued to recognize and deal with the employees through the Smelter Plan. The record does not disclose. the form of the organization prior to May 15, 1937, but does contain the Smelter Constitution of May 15, 1937. The Smelter Constitution of May 15, 1937, is substantially similar to the Mines Constitution of September 1, 1937, which we have fully. discussed in the preceding subdivision. We shall, therefore, not repeat in connection with the Smelter Plan the analysis which we have heretofore made . of the provisions of the Mines Constitution. However,. we make the same findings with respect to the contents, and significance of the Smelter Constitution as heretofore made with respect to the Mines Constitution. Upon the basis of such findings, and for reasons similar to those heretofore set forth in the preceding subdivision, we find. that the respondent dominated and interfered with the formation and administration of, and contributed support to, the Smelter, Plan as thereby constituted. At a meeting of the Industrial. Council of the Smelter Plan on May 25, 1938, attended by the five employee representatives 15 as. well as by the management representatives, all of whom were supervisory employees, W. M. Saben, manager of the respondent's United Verde Branch and ex officio chairman of the Council, initiated a discussion of the effect on the Smelter Plan of the Board's Decision and Direc- tion of Elections of April 15, 1938.16 Sabers began by stating that "the language 1T of the articles [that is, the Smelter Constitution] as written regarding the plan was 'objectionable from the point of view of the Board for purposes of collective bargaining." 18 The Council then agreed that "it would be necessary to divorce those fea- tures-of the bylaws [that is, the Smelter Constitution] which pertain to the Council from the features which pertain to the Employees' 1 Jepresentatives," and the Council further agreed to adopt as an amendment those items in the Smelter Constitution which pertained to the procedure of bargaining, without further comment. on the 11 One of the employee representatives was Iste. l' 6 N. L. R. B. 624, 8i pra. 11 Italics ours. is Respondent Exhibit No. 1. PHELPS DODGE CORPORATION 745 remaining items thereof, which pertained to the internal organiza- tion of the employees. After a round-table discussion lasting more than 3 hours, the meet- ing was adjourned to the following morning, at which time a 4-page mimeographed draft of the features of the Smelter Constitution which pertained to the Council, entitled "Industrial Council Articles -of Agreement for Bargaining Procedure," herein called the Articles of Procedure, was submitted to the Council.- A special meeting of the Industrial Council was held on June 24, 1938. At this meeting Saben announced a reduction in wages effec- tive July 1, of approximately 10 per cent, to base rates as of August 1, 1936. The record discloses no reason offered by Saben for this wage reduction. At the next regular monthly meeting of the Industrial Council, on June 29, 1938, the draft of the Articles of Procedure was adopted without change by the management representatives and the employee representatives previously elected pursuant to the Smelter Consti- tution. The Articles of Procedure purport to be a contract similar to the one heretofore discussed, which was adopted by the Industrial Council of the Mines Plan. It did not purport to cover wages, hours, or working conditions, but was confined to the provisions governing the method of collective dealing between the respondent and it's employees which had formerly been included in the Smelter Constitution. As in the instance of the Mines Plan, we find that the respondent insured its continued control of the labor organization through the adoption of this contract by the Industrial Council which it dominated. The revision of the Smelter Plan did not end with the adoption of the Articles of Procedure. About the middle of July 1938, each of the 5 employee representatives appointed 2 more employees from his electoral division, and these 15 persons proceeded to incorporate the remaining features of the Smelter Constitution, which the Industrial Council had not included in its Articles of Procedure, in a new Con- stitution for the Smelter Plan. At a regular meeting of the Industrial Council on July 27, 1938, Kuzell, who acted as chairman of the Industrial Council in Saben's absence, announced an improvement in copper sales since the last regular meeting on Julie 29, 1938, whereupon the employee represen- tatives inquired as to the possibility of a wage increase. Kuzell re- plied that he would take the matter under advisement, and called a special meeting the following clay, July 28, to announce that, in an- swer to a request "presented by the Employees' Representatives," a wage increase ' (amounting to approximately 10 per cent) would be 21 The record does not disclose who prepared or submitted this draft to the Council. 746 DECISIONS -OF:';NATIONAL LABOR RELATIONS BOARD granted as of August 4..: Pursuant to the. respondent's usual practice, as provided for both in the Smelter Constitution and in the Articles of Procedure, copies of the minutes of this meeting, giving the em- ployee representatives full credit for obtaining the wage increase, were posted on the respondent's bulletin boards. A mass meeting of all employees, called by the employee represent- atives, was held in the Clark Memorial Auditorium 10 on August 2, 1938, for the purpose of considering the new Constitution drafted by the 15-man committee. Several members of the Craft Unions' at- tended this meeting, and objected to the proposed new Constitution; but their objections succeeded only in causing the meeting to be ad- journed to the following day, August 3, and in having all members of the Craft Unions thenceforth excluded from any consideration of the new Constitution. A second meeting was called by the employee representatives and was held on August 3, and a third meeting was held on August 5, both in the same Auditorium. The new Constitu- tion was discussed and informally approved at these last two meetings. Except for the addition of provisions relating to membership, its provisions are substantially identical with those in the Smelter Coll- stitution of May 15, 1937, which the Industrial Council had omitted in preparing its Articles of Procedure of June 29, 1938. Pursuant to notices prepared by the employee representatives and posted at various points outside the pla.tit, an election was held on August 8 and 9, 1938, in the Mexican Club House for the Mexican .-employees, and in the. American Legion Hall for all the other em- ployees except members of the Craft Unions, to deters ine whether the employees desired to be represented by the Smelter Plan under the new Constitution which had been previously approved at the meet- ings of August 3 and 5. The voting was by secret ballot, and the polls were open from 7 a. in. to 6 p. in. No members of the election board served during their respective working hours. The result of this elec- tion was that 262 of the 295 ballots cast were in favor of representation by the Smelter Plan under its new Constitution. A membership drive followed this election. A meeting of the paid-up members was then held in the Auditorium on September 23, 1938, at which the new Constitution was formally adopted. At a regular meeting of the Industrial Council on September 28, 1938, the employee representatives elected under the old Constitution reported to Saben that their Constitution had been "revised" and that new representatives were shortly to be elected to replace them in the 20 The Auditorium , and also the American Legion Hall , the Mexican Club House, and practically all the other property in Clarkdale , are owned by the respondent . The Smelter Plan rented these properties for its 'meetings. The Smelter division was at that time oper- ating on three 8-hour shifts , and these and subsequent meetings were all held at sueh times as to enable the employees to attend without interfering with their working hours. PHELPS DODGE CQRPORATION 747 Council. New employee representatives were thereafter elected, on. September 30, 1938, pursuant to the .new , Constitution . The 1manage-- ment met with them in it special meeting of the Industrial Council at. 10. a. in. on October 12, 1938. At 3: 30 p. in. on the same day, a, letter was handed to Saben,-signed by B. D . Hites as secretary of the Smelter Plan. In this letter Hites,. who had not previously been an officer or representative of the Smelter Plan, enclosed a copy of the new Constitution , listed himself and four- others as the newly elected representative 's and officers of the Smelter' -Plan; and requested that the management continue to ,meet with, these new representatives pursuant. to the Articles of Procedure. Under clate of October 22, 1938, Saben replied that the management' would meet with the new representatives , as requested. At a regular sleeting of the Industrial Council held on October 26,. 1938, reference was made to this exchange of letters between Hites and Saben relative to the "Change in the personnel" of the represent- atives, and the management "accepted the newly elected personnel. ... as the accredited representatives" of the Smelter Plan. The new Smelter Constitution still subjects the Smelter Plan to the- respondent's control in many vital respects. It provides that all mat- ters should be presented to the management pursuant to the provi- sions of the Articles of Procedure of June 29 , 1938. By its power to; control and even terminate the Industrial Council as provided for in such Articles, the respondent can still control the functioning of the- Smelter Plan. The new Constitution also provides that any member- "leaving the service of the Smelter Division" thereby automatically- terminates his membership in the Smelter Plan. By discharging an employee or by merely transferring him from the Smelter Division,. the respondent can thus control the membership of the Smelter Plan. It provides that only members employed at the Smelter Division for at least 12 months immediately prior- to nomination are eligible for- nomination as the employee representative of the electoral division in which they are employed. By breaking an employee's continuity of employment at the Smelter Division in any manner within the period of a year prior to the established date of the annual nominating elec- tions the respondent can thus control his eligibility for nomination as an employee representative. Moreover, while tine new Constitu tion does not specifically provide that a duly elected representative- "leaving the service of the Smelter Division" thereby automatically terminates his right to continue to act as such representative, this. result is implied from the nature of the Smelter Plan as established by the 'new Constitution , inasmuch as the ' organization is designed to be represented only by those who are members thereof. A further- indication that this is the correct conclusion arises from the fact that,. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while formerly under the Constitution of May 15, 1937, an employee representative automatically terminated his right to continue in that ,capacity by "leaving the service" or by being "permanently trans- ferred from one electoral division to another," the new Constitution amends this rule by specifically-providing that a respresentative who is permanently transferred to another electoral division shall fill out his term as representative of the electoral division from which he was transferred. By discharging an employee representative, or by merely transferring him from the Smelter. Division, the respondent can thus control the representatives of the Smelter Plan. To summarize, the formal changes in the Smelter Plan under- taken in the form of the Articles of Procedure and the new Smelter Constitution produced no substantial changes in the company-ciom inated character of the Smelter Plan. At no point in the record is there any indication that either the respondent or its employees at the Smelter Division considered that a substantially different organi- zation resulted from the adoption of the Articles of Procedure and the new Constitution. Such changes as were made were.initiated under the respondent's guidance and at its suggestion. Thus, Saben's statement at the Industrial Council meeting of May 25, 1938, indi- cated to the employee representatives that, under the Board's decision in the representation case, the Smelter Plan was objectionable because the Constitution contained language incorporating the bargaining procedure in the same document with the provisions governing the internal organization of the employees. The unmistakable infer- ence from this advice was that, if the provisions regarding the bar- gaining procedure between the respondent and its employees were extracted from the Constitution, the remaining features would pro- vide for a bona fide labor organization. The company-dominated Council acted upon Saben's advice and, on June 29, 1938, adopted the Articles of Procedure. Within a few weeks, beginning about the middle of July 1938, the 5 employee representatives and their 10 appointees started to work out the transformation suggested by Saben, and virtually incorporated the remaining provisions .of the Smelter Constitution of May 1.5, 1937, into a new Constitution, which provided that the representatives elected thereunder should deal with the management in accordance with the Articles of Procedure of June 29, 1938. To induce the employees to accept the superficial changes sug- gested by Saben, the management, after having announced a 10-per cent .wage cut only a month before, granted a 10-per cent wage in- crease on July 28, shortly before the revision was first submitted to the employees; and the employee representatives were given the credit for obtaining the wage increase in the minutes of the Industrial PHELPS DODGE CORPORATION 749. Council meeting, copies of which were posted . on the respondent's bulletin boards at the Smelter Division . We find that the, respond- ent, by these acts, intended to and did influence its employees at the Smelter Division to accept a continuation in substance of the com- pany-dominated and controlled plan of collective dealing which was in effect under the Smelter Constitution of May 15, 1937 ,2 1 with cer- tain changes which the respondent had dictated. The respondent contends that the necessary effect of a finding that the "revised " Smelter Plan is employer dominated would be to disqualify all employee representatives under a dominated plan from taking part in a revision to purge the plan of domination , however desirable the revision may be. _ We are-of the opinion that ' such a deduction is entirely unwarranted -and erroneous, because of addi- tional material facts in this case . Here the employee representatives produced a revision in effect dictated by the employer , which did not. materially change the substance of the original plan or remove the employer's control. Moreover, we have heretofore held, and we now hold, that after an employer has dominated a labor organization for a considerable length of time and has thereby fostered among his. employees the idea that the organization is the "official" representa- tive favored by him, an effective revision of the dominated organi- zation requires that this impression be removed , and that the em- ployees be freed of the effects of the employer 's past interference,. restraint, and coercion in the exercise of the rights guaranteed in Section 7 of the Act.2L In the instant case , the respondent did nothing prior to the adoption of the new Constitution by the Smelter- Plan to remove the employees' impression , which had been fostered. since August 1933 by the respondent and its predecessor , that the Smelter Plan represented the form of bargaining which the respond-. ent desired its employees to use, but on the contrary, as we have. found, affirmatively acted to strengthen that impression. We find that the respondent dominated and interfered with the formation and administration of, and contributed support to, the Smelter Plan as constituted by the new Smelter Constitution of September 23, 1938, and thereby interfered with, restrained, and coerced employees at its Smelter Division in the exercise of the. rights guaranteed in Section 7 of the Act. Inasmuch as our finding regarding the respondent's domination, of the Smelter Plan as constituted by the new Constitution of Sep- tember.23, 1938, is based entirely on the evidence appearing in the 21 See Matter of American Potash & Chemical Corporation and Borax & Potash Workers' Union No. 20181, 3 N. L. R. B. 140, order enforced sub noon . National Labor Relations Board v. American Potash & Chemical Corporation , 98 F. (2d ) 488 (C. C. A. _ 9), cert. den.,. 59 S. Ct. 582. 22 Compare Matter of Wisconsin Telephone Company " and Telephone Operators Union, Local 175-A, International Brotherhood of Electrical Workers, supra, 12 N. L. R. B. 375. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record of the present proceeding, it is unnecessary for us to rule on the contention of the Smelter Plan that it is not bound by the record of the earlier representation proceeding. IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICI'S UPON COMMA -ERCE The activities of the respondent set forth in Section III above, occurring in connection with its operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the respondent has dominated and interfered with the formation and administration of, and contributed support to, the Mines Plan, the Smelter Plan as constituted by the Smelter Constitution of May 15, 1937, and the Smelter Plan as constituted by the new Smelter Constitution of September 23, 1938, not only shall we order the respondent to cease and desist from engaging in such unfair labor practices, but also, in order to remedy the situation brought about by the respondent's having engaged in such unfair labor practices and thus to effectuate the policies of the Act, we shall order the respondent to withdraw recognition from and com- pletely disestablish these organizations as the representatives of any of its employees for the purposes of collective bargaining, and we shall further order the respondent to refrain from giving effect to the agreements relating to bargaining procedure and to any other agree- ments made with either of the said organizations regarding the terms and conditions of employment.23 Having found that the respondent refused to bargain collectively with each of the Craft Unions as the exclusive representative of its employees in units appropriate for the purposes of collective bar- gaining, nod only shall we order the respondent to cease and desist from engaging in such unfair' labor practices, but also, in order to remedy the situation brought about by the respondent's having en- gaged in such practices and thus to effectuate the policies of the Act, we shall order the respondent, upon request, to bargain collectively with each of the Craft Unions as such representative. Having found that the respondent has interfered with, restrained, and coerced employees at its United Verde Branch in the exercise '-'See National Labor Relations Board V. Pennsylvania Greyhound Lines, Inc., at al., 303 U. S . 261; National Labor Relations Board v . Pacific Greyhound Lines, Inc., 303 U. S. 272 ; National Labor Relations Board v. Oregon Worsted Company, 96 F. (2d ) 193 (C. C. A. 9) ; National Labor Relations Board V. American Potash & Chemical Corporation, 98 F. (2d) 488 (C. (I. A. 9), cert. den ., 59 S. Ct . 582; National Labor Relations Board v. Stack- ,pole Carbon Company, as amended June 2, 1939. 105 F. (2d) 167 (C. C. A. 3). PHELPS DODGE CORPORATION 751 of the rights guaranteed in Section 7 of the Act, not only shall we order the respondent to cease and desist from engaging in such unfair labor practices, but also, in order to remedy the situation brought about by the respondent's having engaged in such practices and thus to effectuate the policies of the Act, we shall order the respondent to notify the employees at its United Verde Branch in specific terms that it will no longer engage in any of the aforesaid practices and that it will take the affirmative action indicated in the Order. Upon the basis of the foregoing findings of fact and upon the -entire record in the case, the Board males the following: CONCLuS70NS OF LAW 1. The American Federation of Labor; the International Asso- ciation of Machinists, Local 223; the International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, Local 406; the International Brotherhood of Electrical Workers, Local B-657; the United Brotherhood of Carpenters and Joiners of America, Local 1061; the Employees' Representation Plan, Mines Iivision, United Verde Branch, Phelps Dodge Corporation; and the Employees' Representation Plan, Smelter Division, United Verde Branch. Phelps Dodge Corporation, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of, and contributing support to, the Employees' Representa- tion Plan, Mines Division, United Verde Branch, Phelps Dodge Corporation, and the Employees' Representation Plan, Smelter Di- vision, United Verde Branch, Phelps Dodge Corporation, as consti- tuted by the Smelter Constitution of May 15, 1937, and also as constituted by the new Smelter Constitution of September 23, 1938, the respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (2) of the Act. 3. All persons employed by the respondent at its United Verde Branch as machinists, jigger-boss machinists, machinist apprentices, machinist helpers, too] makers, special machinists, drill-press oper- ators, mill machinists, mine machinists, and smelter machinists, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. 4. The International Association of Machinists, Local 223, Was on August 17, 1938, and at all times thereafter has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. All persons employed by the respondent at its United Verde Branch as boilermakers, boilermaker helpers, boilermaker appren- 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trees, special boilermakers, boilermaker jigger bosses, welders, boiler- shop punchmen, Mill boilermakers, and boiler-shop layer-out, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of. Section 9 (b) of the Act. 6. The International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers, of America, Local 406, was on August 17, 1938, and at all times thereafter has been the exclusive repre= sentative of all employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 7. All persons employed by the respondent at its United Verde Branch as electricians, armature winders, electrician jigger bosses, electrician helpers, electrician apprentices, metermnn, and meterinan apprentices, but excluding radio men, refrigerator men, switchboard operators, crane men and generator attendants, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 8. The International Brotherhood of Electrical Workers, Local B-657, was on August 17, 1938, and at all times thereafter has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 9. All persons employed by the respondent at its United Verde Branch as carpenters and carpenter . apprentices, but excluding car- penter helpers, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of, the Act. 10. The United Brotherhood of Carpenters and Joiners of Amer- ica, Local 1061, was on August 17, 1938, and at all times thereafter has been the exclusive representative of all employees in the afore- said unit for the purposes of collective bargaining, within the mean- ing of Section 9 (a) of the Act. 11. By refusing to bargain collectively with the International Association of Machinists, Local 223; the International Brotherhood of Boilermakers, Iron.Ship Builders, Welders and Helpers of Anier- ica, Local 406; the International Brotherhood of Electrical Workers, Local B-657; and United Brotherhood of Carpenters and Joiners of America, Local 1061, as the exclusive representative of its eu1- ployees in the appropriate units as aforesaid, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 12. By interfering with, restraining, and coercing the employees at its United Verde Branch in the exercise of their rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (1) of the. Act. PHELPS DODGE CORPORATION 753 13. The aforesaid unfair labor practices are unfair labor prac- tices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that :the respondent, Phelps Dodge Corporation, and its officers, agents, successors , and assigns, shall: 1. Cease and desist from : - (a) Dominating or interfering with the :administration of; or-con- tributing support to, (1) the Employees' Re pr esentatiori`Plan; Mines Division, United Verde Branch, Phelps Dodge Corporation, or (2) the Employees' Representation Plan, Smelter Division , United Verde Branch, Phelps Dodge Corporation ; or (3) dominating or interfer- ing with the formation or administration of, or contributing support to, any other labor organization of its employees at its United Verde Branch ; (b) Recognizing (1) the Employees' Representation Plan, Mines Division , United Verde Branch, Phelps Dodge Corporation, or (2) the Employees' Representation Plan, Smelter Division, United Verde Branch, 'Phelps . Dodge - Corporation;' as- the representative of any of its employees for the purpose of dealing with the;,Phelps Dodge Corporation concerning grievances , labor disputes, wages, rites of pay, hours of employment, or other conditions of work; (c) Giving effect (1) to the agreement entitled "Industrial Coun- cil Articles of Agreement for Bargaining Procedure " which was made with the Employees '* Repiesentation Plan,' Mines Division, United Verde'. Branch, Phelps Dodge Corporation, in -differing -forms in JuneYand' 'Jiily 1938, or (2) to any other agreement regarding terms and conditions of employment at any time made with the said labor . organization ; or' (3) to the agreement entitled "Industrial Council Articles -of Agreement for Bargaining Procedure" which was made with the Employees' Representation Plan, Smelter Divi- sion, United Verde Branch, Phelps Dodge Corporation, .on .June .29, 1938, or at 'any time therei,fter, or (4) to any other agreement. re- gardi-ngterms and, conditions of 'employineilt at any time made with the said labor organization; (d) Refusing to bargain collectively with the International Asso- ciation of Machinists , Local 223, as the exclusive representative of all persons employed by, the Phelps Dodge Corporation at its United Verde Branch as machinists , jigger-boss machinists, machinist ap- prentice, machinist helpers, tool makers , special machinists, drill- 754 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD press operators, mill uanachinists, mine machinists, and smelter machinists; (e) Refusing to bargain collectively with the International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, Local 406, as the exclusive representative of all persons employed by the Phelps Dodge Corporation at its United Verde Branch as boilermakers, boilermaker helpers, boilermaker apprentices, special boilermakers, boilermaker jigger bosses, welders, boiler-shop punchmen, mill boilermakers, and boiler-shop laver-out; (f) Refusing to bargain collectively with the International Brotherhood of Electrical WTorkers, Local B-657, as the exclusive representative of all persons employed by the Phelps Dodge Corpora- tion at. its United Verde Branch as electricians, armature winders, electrician jigger bosses, electrician helpers, electrician apprentices, metermen,^ and meterman apprentices, but excluding radio men, •re- frigerator men, switchboard operators, crane. men, and generator attendants ; (g) Refusing to bargain collectively with the United Brotherhood of Carpenters and Joiners of America, Local 1061, as the exclusive ,representative of all the persons employed by the Phelps Dodge Corporation at its United Verde Branch as carpenters and carpenter apprentices, but excluding carpenter helpers; (h) In any other manner interfering with, restraining, or coercing its employees at its United Verde Branch in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board decides will effectuate the polices of the Act : (a) Withdraw all recognition from, and completely' disestablish, (1) the.Eiriployees'" Representation Plan,' Mines Division, United Verde Branch, Phelps Dodge Corporation, and (2) the, Employees' Representation Plan, Smelter Division, United Verde Branch, Phelps Dodge Corporation, as the representative of any. of its employees for the purpose of dealing with the Phelps Dodge Corporation concern- ing grievances, labor disputes, wages, rates of pay, hours of em- ployment, or conditions of work; (b) Upon request, bargain collectively with the Interi atioL ai Association of Machinists, Local 223, as the exclusive representative of all, the. persons employed by the Phelps Dodge Corporation ,at its United Verde Branch as machinists,, jigger-boss machinists, machinist apprentices, machinist helpers, tool makers, special machinists, drill= PHELPS DODGE CORPORATION 7.55 press operators, mill machinists, mine machinists and smelter ma- chinists, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Upon request, bargain collectively with the international Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, Local 406, as the exclusive representative of all .the persons employed by the Phelps Dodge Corporation at its United Verde Branch as boilermakers, boilermaker helpers, boilermaker ap- prentices, special boilermakers, boilermaker jigger bosses, welders, .boiler-shop punchmen, mill boilermakers, and boiler-shop layer-out, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (d) Upon request, bargain 'collectively with the International Brotherhood of Electrical Workers,' Local B-657, as the exclusive representative of all persons employed by the Phelps Dodge Corpora- tion at its United Verde Branch as electricians, armature winders, ,el:ectrician.jigger bosses, electrician helpers, electrician apprentices, metermen, and meterman apprentices, but excluding radio men, re- frigerator rnen, switchboard operators, crane men, and generator at- tendants, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (e) Upon request, bargain collectively with the United Brother- hood of Carpenters and Joiners of America, Local 1061, as the ex- clusive representative of all. the persons employed by the Phelps Dodge Corporation at its United Verde Branch as carpenters and carpenter apprentices, but excluding carpenter helpers, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (f) Post immediately in conspicuous places at its United Verde, Branch notices in substance stating (1) that the Phelps Dodge Corporation will cease and desist from the unfair labor practices listed in. subdivision 1 of this Order; (2) that the Phelps Dodge. Corporation will ' withdraw all recognition from, and completely disestablish, the Employees' Representation Plan, Mines Division, United Verde Branch, Phelps Dodge Corporation, and the Em- ployees' Representation Plan, Smelter Division, United Verde Branch, Phelps Dodge Corporation, as the representative of any of its employees for the purposes of collective. bargaining; (3) that the Phelps Dodge Corporation will refrain from giving any effect what- soever to the "Industrial Council Articles of Agreement for Bargain- ing: .Procedure" and to any other.. contract regarding terms and con- ditions of employment made with "the Employees' Representation Plan, Mines Division, United Verde Branch, Phelps Dodge Corpora- tion, or with the Employees' Representation Plan, Smelter Division, 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Verde Branch, Phelps Dodge Corporation; and (4) that the Phelps Dodge Corporation will, upon request, bargain collectively with the International Association of Machinists, Local 223, and with the International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, Local 406, and with the International Brotherhood of Electrical Workers, Local B-657, and with the United Brotherhood of Carpenters and Joiners of America, Local 1061, as the exclusive representative of all its employees in the aforesaid units; (g) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (h) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of service of this Order what steps the Phelps Dodge Corporation has taken to comply herewith. MR. WILLIAM M. LEIsERsoN took no part in the consideration of the above Decision and Order.