Phelps Dodge Copper Products Corp.

In the Matter of PHELPS DODGE COPPER PRODUCTS CORPORATION, HABIRSHAW CABLE AND WIRE DIVISION and UNITED ELECTRICAL, RADIO & MACHINE WORKEES OF AMERICA, C. I. O. Case No. R-2048-Decided October 9, 1940 Jurisdiction : wire manufacturing industry. Investigation and Certification of Representatives : existence of question : con- flicting claims of rival representatives ; contract which expired 3 months after filing of petition, no bar to ; election necessary. Where petitioning union shows it has a membership of 194 out of approxi- mately 620 employees and contends it has 150 additional authorizations which have not been reduced to writing because of the existence of an agreement between a rival union and an employer which is in effect a closed- shop agreement, held, that the contention of the rival organization, that the petitioner has not made substantial showing of membership is without merit. Employees whose employment was terminated because of citizenship requirements for government work, or discharged under a valid collective bargaining contract held not eligible to vote. Unit Appropriate for Collective Bargaining : all hourly-rated employees, exclu- sive of executives, supervisory and clerical employees. Mr. Millard M. Midonick, for the Board. Debevoise, Stevenson, Plimpton d Page, by Mr. Charles F. Bailey, of New York City, and Mr. Wylie Brown, of New York City, for the Company. Mr. Frank Scheiner, of New York City, for the United. Mr. Edward J. McAlinn, Mr. Gerald Duffy, and Mr. Hugh Morgan, of New York City, for the Brotherhood. Miss Charlotte Anschuetz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 24, 1940, United Electrical, Radio & Machine Workers of America, C. I. 0., herein called the United, filed with the Regional Director for the Second Region (New York City), a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Phelps Dodge Copper Products Corpo- 27 N. L. R. B., No. 135. 729 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ration, Habirshaw Cable and Wire Division, Yonkers, New York, herein called the Company, and requesting an investigation and certi- fication of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 14, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On August 22, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the United, and Local No. 3, International Brotherhood of Electrical Workers, A. F. of L., herein called the Brotherhood, a labor organization claim- ing to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on September 9, 1940, at New York City, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board, the Company, and the United were represented by counsel, and the Brotherhood by repre- sentatives; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and-to introduce evi- dence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the request of the United and pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on September -24, 1940. The Company and the United were represented by counsel and the Brotherhood by a representative; all participated in the argument. Briefs were filed by the Company, the United, and the Brotherhood, and were con- sidered by the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Phelps Dodge Copper Products Corporation is a corporation en- gaged in the manufacture and sale of copper and brass wire, cable, tubing, and similar products in New Jersey, Indiana, California, and New York. Its two plants at Yonkers, New York, with which this proceeding is concerned, are known as Phelps Dodge Copper Products Corporation, Habirshaw Cable and Wire Division. The products PHELPS DODGE COPPER PRODUCTS CORPORATION 731 manufactured at the Yonkers plants are paper insulated power cables, varnished cambric insulated wires and cables, asbestos insulated wires, cables and cords, rubber insulated building wires and cables, rubber power cables, flexible cords and cables, and other rubber insulated wires and cables. The raw materials used consist of copper, bronze, copper and steel tape, crude and reclaimed rubber, compounding in- gredients, cotton, paper, varnished cambric, tape, jute, oils and rosin, asphalt, saturating and finishing materials, lead, armor-wire, and steel wire; over 80 per cent of these were obtained from sources out- side New York State in the years 1937, 1938, and 1939. During the same period the Yonkers plants made shipments of finished products valued at $500,000 to $1,000,000 per month, the amount varying with general business conditions. Over 75 per cent of these shipments were made to points outside New York State. II. THE LABOR ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, C. I. O., is a labor organization admitting to membership employees of the Company. Local No. 3, International Brotherhood of Electrical Workers, A. F. of L., is a labor organization admitting to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about June 7,1940, and at subsequent dates, the United, claim- ing to represent a majority of the employees of the Company, requested the Company to bargain collectively with it. The Company admitted receipt of-these requests at the hearing, but stated that it refused them on the ground that since August 1937 the recognized bargaining rep- resentative for its employees had been the Brotherhood, with which it had had three successive contracts. The first contract, dated August 2, 1937, covered members only; the subsequent contracts designated the Brotherhood as exclusive bargaining agent for all employees, and took effect August 9, 1938, and September 15, 1939, respectively. The 1939 contract provided that it should remain in effect until Sep- tember 15, 1940, and from year to year thereafter until terminated after the end of the first year on 60 days' notice. Since its expiration date was September 15, 1940, the contract is no bar to the direction of an election by the Board at this time.' The Company contends that the contract was renewed on July 15 , 1940, with the consent of the Brotherhood and itself. It is unnecessary to pass on the validity of this contention, since the renewal, if consummated , was made with full notice by the Company and the Brotherhood of the United 's claim and the institution of this proceeding. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director reported in his statement concerning claims of authorization for the purpose of representation that the United submitted to him 260 authorization cards, of which 229 were dated between October 1939 and July 1940 and appeared to be genuine origi- nal signatures; that the Company refused to submit a pay roll; and that the Brotherhood refused to offer proof of its right to represent the Company's employees. Since no pay roll was introduced in evi- dence at the hearing, the Trial Examiner visited the Company's plants during the course of the hearing and made a comparison of the cards of the United originally presented to the Regional Director with the pay-roll checks of the Company of August 24 with corrections to the date of hearing. The Trial Examiner found that 194 of these 260 cards checked with this pay roll, which consisted of approximately 620 employees.2 He then visited the office of the Brotherhood and, comparing its fiscal records with the same records of the Company, found 366 dues-paying members who were in good standing with the Brotherhood and 50 new members who were paying initiation fees, totaling 416. The Brotherhood contends that a designation of collective bar- gaining agent by 194 employees out of approximately 620 is not a substantial showing of membership and does not justify the holding of an election. The United, however, maintains that its small showing is due first, to the provision for a closed shop in the 1939 contract with the Brotherhood, and second, to the discharge of members of the United pursuant to the contract, and alleges that it has at least 150 oral designations in addition to the written ones. The 1939 contract provided for use of the union label by the Company only on goods manufactured by members of the Brotherhood and further that "The Employer agrees to employ members of the Union in good standing." Since the Company has used union labels on all of its products for approximately a year prior to the hearing, and since it admits that employees have been discharged for failure to remain members in good standing of the Brotherhood, we find that the effect of the con- tract was that of a closed-shop agreement. We find that a question has arisen concerning representation of employees of the Company. Iv. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described ' Subsequent to the hearing an affidavit was executed by one of the United's field organizers on September 13, 1940, stating that he had made an investigation among the Company's employees which shoe ed that at least 25 of the signers of the cards rejected by the Trial Examiner were currently employed by the Company. PHELPS DODGE COPPER PRODUCTS CORPORATION 733 in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT It was stipulated by all the parties that the appropriate unit con- sists of "all the hourly-rated employees, exclusive of executives, super- visory and clerical employees" in both Yonkers plants. We see no reason to alter the unit agreed upon. We find that all hourly rated employees of the Company in its Yonkers plants, excluding executives, supervisory employees, and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES It is apparent from what has been stated previously that the ques- tion concerning representation which has arisen can only be resolved by an election. We shall accordingly direct an election to be held. The United desires that eligibility to participate in an election should be determined as of the week of June 21, 1940 (the week pre- ceding the filing of the petition in this proceeding), on the ground of subsequent discharges pursuant to the contract, and of lay-offs of employees due to citizenship requirements on government work. The Brotherhood desires a current pay roll. Since discharges under the contract were not alleged by the United to be illegal, and the persons whose employment was terminated for lack of citizenship requirements should not participate in the election unless they have since been re- employed, we believe that the use of a current pay roll will best effectu- ate the policies of the Act. We shall, accordingly, direct that all employees within the appropriate unit who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to participate in the election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Phelps Dodge Copper Products Corpora- 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, Habirshaw Cable and Wire Division, Yonkers, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All hourly rated employees of the Company in its Yonkers plants, excluding executives, supervisory employees, and clerical employees, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Phelps Dodge Copper Products Corporation, Habirshaw Cable and Wire Division, Yonkers, New York, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Second Region, acting in the matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all hourly rated employees of the Company employed during the pay- roll period immediately preceding the date of this Direction of Elec- tion, including those employees who did not work during such pay- roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding execu- tives, supervisory employees, clerical employees, and any employees who have since quit or been discharged for cause, to determine whether they desire to be represented by United Electrical, Radio & Machine Workers of America, C. I. 0., or by Local No. 3, International Brother- hood of Electrical Workers, A. - F. of L., for the purposes of collec- tive bargaining, or by neither.