113 F.2d 202 (2nd Cir. 1940), 350, Phelps Dodge Corp. v. N.L.R.B.

Docket Nº:350.
Citation:113 F.2d 202
Case Date:July 11, 1940
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 202

113 F.2d 202 (2nd Cir. 1940)




No. 350.

United States Court of Appeals, Second Circuit.

July 11, 1940

Page 203

Ellinwood & Ross, of Phoenix, Ariz., and Debevoise, Stevenson, Plimpton & Page, of New York City (Denison Kitchel, of Phoenix, Ariz., and William E. Stevenson, of New York, City, of counsel), for petitioner.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Alvin J. Rockwell, Mortimer B. Wolf, and Morris P. Glushien, Attys., all of Washington, D.C., for respondent.

Before L. HAND, CHASE, and PATTERSON, Circuit Judges.

CHASE, Circuit Judge.

This case is before us on the petition of the Phelps Dodge Corporation, a New York corporation doing business in the Southern District of New York, with its principal office in the City of New York, for the review of an order of the National Labor Relations Board requiring the reinstatement of striking employees and two others with back pay. It involves questions as to the scope of the term 'employee' within the meaning of the National Labor

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Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., of which some have already been considered by this court in National Labor Relations Board v. National Casket Co., 2 Cir., 107 F.2d 992.

The Board answered the petition and requested the enforcement of the order with the sole modification that the language of the notice to be posted by the petitioner to the effect that it will cease and desist from conduct prohibited be in accord with the more recent practice of the Board in that respect following the decision Art Metals Construction Co. v. National Labor Relations Board, 2 Cir., 110 F.2d 148. The proposed modification is that the notices state that petitioner 'will not engage in conduct from which it is ordered to cease and desist in paragraph (a) and (b) of this Order * * * '. This modification is now ordered as requested.

Both our jurisdiction which is based upon Sec. 10(e) of the above Act and the interstate character of the business of the petitioner are clearly established and unquestioned.

The unfair labor practices found by the Board were based on charges filed by the International Union of Mine, Mill and Smelter Workers, Local No. 30 and were proved to have occurred at a copper mine owned and operated by the petitioner at Bisbee, Arizona, in the summer of 1935. They consisted of refusals, because of their union affiliations or activities, to hire applicants for employment and to reinstate employees who had engaged in a strike. The Board found that the petitioner had violated Sec. 8(1) and (3) of the Act in one or the other of these respects by discriminating against forty named men; dismissed the allegations as to five men; and ordered the petitioner to offer employment with back pay to thirty-nine of the forty together with back pay to the remaining one up to a time when he became unemployable. As the trial examiner had recommended dismissal of the complaint as to three of the men the Board ordered reinstated, no back pay was allowed them between the date of the intermediate report of the examiner and the date of the order of the Board.

The findings that are supported by substantial evidence show the petitioner's mine at Bisbee, known as the Copper Queen Mine, was an 'open-shop camp' until the Union began its attempt at organization there in September, 1933. This attempt was resisted by the petitioner but the union by June 10, 1935, had a membership sufficiently large to be reckoned with, though still a small minority of the approximately 950 employees the petitioner had at work at the...

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