Phelps Dodge Refining Corporation And International Union Of Mine, Mill And Smelter Workers a Id Copper Refinery Employees Independent Union No. 1, a Party To The Contract, 1059 (1941)

In the Matter of PHELPS DODGE REFINING CORPORATION and INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS a id COPPER REFINERY EMPLOYEES INDEPENDENT UNION NO. 1, A PARTY TO THE CONTRACT Case No. C-1809.-Decided December 31, 1941 Jurisdiction: copper refining industry.

Unfair Labor Practices:

In General: employer held responsible for acts of minor supervisory employees when it reasonably appears to other employees that these men reflect the views and opinions of management; anti-union statements by non-supervisory employees chargeable to employer where by course of conduct other employees were intentionally permitted to believe that such statements were authorized by management.

Interference, Restraint, and Coercion: anti-union statements; surveillance of union meetings; employment of an individual with knowledge that he was also employed by the sheriff as an informer on union activity and continuing his employment without disavowing his informing activities after such activity became generally known to the employees.

Company-Dominated Union: formation of, by supervisory employees; approved by plant manager-support: supervisory employees encouraged attendance of meeting; representatives of management manifested hostility toward rival affiliated union by discriminatory discharges; by engaging in surveillance; by anti-union statements; and by other illegal acts-indicia: acceptance of typewritten list as proof of claim of majority representation.

Discrimination: discharges for union membership and activity; discriminatory selection of employees in reducing force; asserted discharge for cause rejected;

charges of, dismissed as to four employees.

Remedial Orders: disestablishment of company-dominated union; abrogation of contract; reinstatement and back pay; immigration laws held not to affect Board's plenary power to effectuate policies of the Act to order reinstatement with back pay for employees who are citizens of Mexico; offer of reinstatement made at hearing without including back pay and restoration of other rights, does not reduce the amount of back pay otherwise due.

Mr. V. Lee McMahon, for the Board.

Mr. William H. Burges, of El Paso, Tex., and Reeves, Todd, Ely &

Beaty, by Mr. Julian B. Beaty, of New York City, for the respondent.

Mr. James Robinson, of El Paso, Tex., for the Union.

Mr. W. H. Fryer and Mr. Coyne Milstead, of El Paso, Tex., for the Independent.

Mr. Gilbert V. Rosenberg, of counsel to the Board.

DECISION AND ORDER STATEMENT OF THE CASE Upon a second amended charge filed on October 3, 1940,1 by International Union of Mine, Mill and Smelter Workers, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth,

Texas) issued its complaint dated October 9, 1940, against Phelps Dodge Refining Corporation, El Paso, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the Union, the respondent, and Copper Refinery Employees Independent Union No. 1, herein called the Independent, a labor organization alleged in the complaint to be employer dominated.

With respect to the unfair labor practices the complaint alleged in substance that the respondent, at its El Paso, Texas, refinery, (1) from about October 1, 1938, dominated and interfered with the formation and administration of the Independent, and contributed support to it, entering into a collective bargaining agreement with it on or about April 22, 1939; (2) discouraged membership in the Union by discharging seven named employees 2 in February and March 1940, and thereafter refusing to employ them, because they had joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection; and (3) by the foregoing acts, and by (a) urging, persuading, and warning its employees to refrain from aiding the Union, or becoming or remaining members thereof, and threatening them with discharge and other reprisals if they failed so to refrain, (b) engaging employees in conversation for the purpose of learning of the Union's activities and promising to reward employees who would supply information regarding such activities, (c) circulating among employees literature derogatory of the Union, (d) engaging in surveillance of union members and meeting places, and (e) employing or causing to be employed one Gabe Escajeda for the purpose of spying on the 1 The original charge and the amended charge were filed, respectively, on April 1 and April 10, 1940.

2 Domingo Lopez, Nicholas Quintana, Genaro Franco, Ladislao Molina, Luis Mijares,

Carlos Sanchez, and Aurelio Zacharias (also spelled Zacarias).

1061 Union and its members, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.

Thereafter, the respondent filed its answer dated October 22, 1940, in which it admitted some of the specific allegations of the complaint, but denied that it had engaged in any unfair labor practices.

Pursuant to notice, a hearing was held at El Paso, Texas, on November 6, 7, 8, 9, 12, 13, 14, and 15, 1940, before Horace A. Ruckel, the Trial Examiner duly designated by the Chief Trial Examiner. At the commencement of the hearing the Independent filed a motion to intervene which was granted to the extent to which the proceedings involved the issue of employer-domination of the Independent. Thereupon, the Independent filed an answer in substance denying the allegations of the complaint that the Independent was employer-dominated. The Board, the respondent, and the Independent were represented by counsel and the Union by an organizer; all participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the beginning of the hearing the Trial Examiner denied the respondent's motion for a bill of particulars.3 At the conclusion of the hearing counsel for the Board moved to conform the pleadings to the proof in respect to formal matters. The motion was granted. At the end of the Board's case counsel for the respondent moved to dismiss the complaint. The Independent moved to dismiss the complaint insofar as it alleged that the Independent was employer-formed or -dominated.

The respondent joined in this motion. The motions were denied. At the close of the hearing the respondent and the Independent renewed their respective motions. The Trial Examiner reserved decision on these motions, and later denied them in his Intermediate Report. During the course of the hearing the Trial Examiner made a number of rulings on other 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.

On January 29, 1941, the Trial Examiner filed his Intermediate Report, copies of which were served upon all the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices;

reinstate Luis Mijares, Carlos Sanchez, and Aurelio Zacharias, with back pay; and disestablish and withdraw all recognition from the I The record indicates that prior to the hearing counsel for the Board had satisfied the respondent's request for additional information concerning the allegations of the complaint.

Independent. He found further that the respondent had not discriminated against Genaro Franco, Ladislao Molina, Domingo Lopez, or Nicholas Quintana, and recommended that the complaint be dismissed as to them. Thereafter, the respondent and the Independent filed exceptions to the Intermediate Report, together with briefs in support of their respective exceptions.

Pursuant to notice and at the request of the respondent, a hearing was held before the Board at Washington, D. C., on September 11, 1941, for the purpose of oral argument. The respondent was represented by counsel and presented argument. The Union and the Independent did not appear. The Board has considered the exceptions to the Intermediate Report, the briefs in support of the exceptions, and the arguments advanced before the Board, and, insofar as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit.

Upon the entire record in the case, the Board makes the following:

FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Phelps Dodge Refining Corporation, a New York corporation with its principal office in New York City, is engaged in copper smelting and refining and the production of copper sulphate at plants in Laurel Hill,

New York, and El Paso, Texas. The El Paso plant, with which this proceeding is concerned, employs between 300 and 400 persons, depending upon the extent of operations, and includes a refinery, a coppersulphate plant, and accessory buildings.

The principal raw material used by the respondent at the El Paso plant is crude copper, substantially all of which is obtained outside Texas. After the refining process, approximately 90 per cent of the finished products, copper and copper sulphate, are shipped by railroad to points outside Texas. During the first 4 months of 1940, the El Paso plant produced approximately 42,000 tons of copper cathodes.

The respondent admits for the purpose of this proceeding that it is engaged in commerce within the meaning of the Act.

2. THE...