Phelps-Dodge Corp.

National Labor Relations Board - Board Decisions

Mar 27, 1951

93 N.L.R.B. 990 (N.L.R.B. 1951)

990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PHELPS-DODGE CORPORATION , NEW CORNELIA BRANCH , SMELTER • DI-
VISION and UNITED STEELWORKERS OF AMERICA , CIO, PETITIONER.
Case No. 21-RU-1480. March V,1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Jerome Smith, hear-
ing officer. The hearing officer referred to the Board a motion made
by the Employer and concurred in by the Intervenors to dismiss the
petition. For the reasons stated in section numbered 3, below, the
motion is hereby granted. The hearing officer's other 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 Petitioner and Ajo Metal Trades Council; International
Association of Machinists, Local 1537; International Brotherhood of
Electrical Workers, Local 523; and Ajo Mine & Mill Workers Union,
Local 22866, the last four unions herein collectively called the Inter-
venors, are labor organizations claiming to represent certain em-
ployees of the Employer.
3. The alleged question concerning representation :
The Employer's operations at Ajo, Arizona, consist of four divi-
sions, namely, Mine, Concentrating, Mechanical, and Smelter. The
Mine, Concentrating, and Mechanical Divisions have been in operation
for some time, but the Smelter Division was newly established and
began operations in June 1950. By July 1950, its working force was
substantially complete. Since November 11, 1941, the Intervenors
in concert with other unions through a series of collective bargaining
agreements have jointly represented all production and maintenance
employees, except those engaged in train haulage, employed in the
Mine, Concentrating, and Mechanical Divisions. The last of these
agreements, hereinafter referred to as the 1949 contract, was executed
on or about December 1, 1949, and has as its earliest termination date
November 11, 1951.
Article II of the 1949 contract contains this 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 Com-
pany which may become a legally recognized or certified bargain-
ing agent of an appropriate unit, or a local union composed of
employees of the Company which may have its unit legally
93 NLRB No. 153.
PHELPS-DODGE CORPORATION 991
enlarged by certification or recognition, shall likewise be a party
hereto on date of certification or recognition.
In sum, the clause provides that upon either recognition or certifica-
tion of any of certain unions as collective bargaining representatives
of additional employees, the terms of the contract automatically cover
those employees. On July 20, 1950, the Employer entered into a
written and signed recognition agreement with the Intervenors
whereby the latter were recognized as the exclusive bargaining repre-
sentatives of production and maintenance employees of the Smelter
Division. The agreement recited that recognition was afforded on the
basis of a showing by the Intervenors that they were authorized by a
majority of the employees to act as bargaining representatives. On
the following day, July 21, the Petitioner notified the Employer of
its claim to represent the Smelter Division employees, and on July
28 filed its petition herein for a unit of the production and mainte-
nance employees in the Smelter Division.
The Employer and the Intervenors contend that the July 20 recog-
nition agreement taken in conjunction with the 1949 contract, consti-
tutes a bar to this proceeding. We agree.
With respect to this case, Article II of the 1949 contract requires
two things before the terms of the contract become applicable to
additional employees. First, it requires "an appropriate unit." Here,
the record discloses, the Petitioner concedes, and we find that the
Smelter Division employees constitute an appropriate collective bar-
gaining 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 em-
ployees 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. Hav-
ing satisfied the conditions of the 1949 contract, the action of the
Employer and the Intervenors in executing the recognition agreement
on July 20, 1950, constituted more than mere recognition of the Inter-
venors as bargaining representatives.' In addition, it effected on that
date the adoption of the terms of the written and signed 1949 contract
to the Smelter Division. Under these circumstances, as the Employer
did not receive notice of the Petitioner's claim until a day later, the
July 20 agreement together with the 1949 contract constitutes a bar to
a determination of representatives at this time.2
The fact that the Employer and Intervenors entered into a supple-
mental agreement on July 21, 1950, does not alter our conclusion. The
principal purpose of this agreement was to provide for negotiation
' Cf. Bell Cabinet Company , 73 NLRB 332, 335.
2 See Keystone Tanning and Glue Company , 92 NLRB 201 , and cases cited.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or modification of several specific terms and conditions of employment
of the Smelter Division employees. Article III, clause C of the 1949
contract, which we have found covered the Smelter Division employees
as of July 20, permitted, among other things, "interim, negotiations on
a specific proposal for modification." We have frequently held that
negotiations for modifications pursuant to such a clause do not remove
a contract as a bar to an immediate election, where the parties do not
attempt "to renew or extend the term of the contract.1,' 3 Here, nego-
tiation of a change in the termination date of the contract was not
proposed.
Upon the basis of the entire record in this case, we shall, therefore,
dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
3 S & W Fine Foods, Inc, 74 NLRB 1316, 1319, and cases cited.
F. W. WOOLWORTH Co. and RETAIL CLERKS' INTERNATIONAL Assooi -
TION, LOCAL UNION No. 324, PETITIONER. Case No. 21-UA-398.
111 arch 27, 1951.
Decision and Order
On November 30, 1950, pursuant to Section 9 (e) (1) of the Act,
an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Twenty-first Region to
determine whether the employees at the Employer's Compton, Cali-
fornia, store wished to authorize Retail Clerks' International Associa-
tion, Local Union No. 324, herein called the Petitioner, to enter into
an agreement with the Employer which requires membership in the
Union as a condition of continued employment. At the close of the
election a tally of ballots was furnished the parties. The tally shows
that there were 50 eligible voters, and that there were 15 votes cast.
Of these 15 votes, 13 were cast in favor of authorizing the Petitioner
and the Employer to enter into a. union-security agreement, and 2 votes
were cast against the proposition. Thus the Petitioner did not receive
a majority of the eligible votes, which is required for a 9 (e) election.
Thereafter, the Petitioner filed timely objections to conduct affecting
the results of the election. The Petitioner alleged, inter alia, that the
Employer's store manager called most of his employees into his office
on the day before the election, and informed them that the Employer
would never agree to a union-security provision in the contract.
93 NLRB No 173.