Phelps Dodge Copper Products Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1962

135 N.L.R.B. 49 (N.L.R.B. 1962)

INCA MFG. DIV., PHELPS DODGE COPPER PRODUCTS CORP. 49
paid to Respondent for the period beginning 6 months prior to the filing of charges
in this matter . With respect to the employees hired directly by the Employer I find
they were not directly affected by the terms of the agreement giving Respondent an
exclusive hiring arrangement and that it would be inappropriate to recommend a
reimbursement of moneys to such employees . The Board has determined that its
reimbursement remedy need not be applied in every situation where employees have
been unlawfully encouraged to join a union . Here, although some psychological
effect may have resulted from the five exempt employees obtaining union clearance,
I find these employees were not obligated to pay any moneys to Respondent as a
condition of working for the Employer, and any clearance was dictated by the Em-
ployer and not Respondent , and Respondent had no control over their employment.e
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of the Act.
2. Laborers and Hod Carriers Union , Local 652, AFL-CIO, is a labor organization
within the meaning of the Act.
3. By causing the Employer to discriminate against Jimmie Davis in violation of
Section 8 ( a)(3), the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (b) (2) and (1) (A) of the Act.
4. The hiring arrangement entered into at the prejob conference between the
Employer and Respondent was a violation of Section 8(b)(1)(A) and (2) of the
Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of the
Act.
[Recommendations omitted from publication.]
° Chun King Sales Inc ., 126 NLRB 851 . Here there was an illegal union-security agree-
ment but the Broton - Olds reimbursement was not applied because the illegal contract did
not condition Intial employment on union member ship or in any way grant the Union
control over the hiring of employees
In the case at bar the same considerations would seem to be present with respect to the
five employees selected by the Employer.
Inca Manufacturing Division , Phelps Dodge Copper Products
Corporation and International Union of Electrical , Radio &
Machine Workers, AFL-CIO, Local 963. Case No. 13-CA-4055.
January 5, 1962
DECISION AND ORDER
On October 30, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief. The Respondent also filed limited
exceptions and a brief supporting the Trial Examiner's recommended
dismissal of the complaint.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
135 NLRB No. 13.
634449-62-vol. 135--r.
50 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge in the above-entitled case having been filed and served, a complaint
and notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board, and an answer having been filed by the above-
named Respondent, a hearing involving allegations of unfair labor practices in viola-
tion of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended,
was held in Fort Wayne, Indiana, on August 8, 1961, before the duly designated Trial
Examiner.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have
been received from the Respondent and General Counsel.
• Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Inca Manufacturing Division, Phelps Dodge Copper Products Corporation, is a
Delaware corporation, having its principal office in New York, New York. It main-
tains a plant in Fort Wayne, Indiana, where it is engaged in the manufacture and
sale of copper magnet wire.
The Respondent purchases, transfers, and delivers annually from points outside
the State of Indiana to its Fort Wayne plant goods and materials valued at more
than $100,000. It also produces and ships from this plant products valued at more
than $100,000 to points outside the State of Indiana.
The Respondent concedes and it is found that it is engaged in commerce within
the meaning of the Act.
H. THE CHARGING UNION
International Union of Electrical , Radio & Machine Workers, AFL-CIO, Local
963, is a labor organization admitting to membership employees at the Fort Wayne
plant of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and major issues
All events and actions which General Counsel alleges are violative of Section
8(a) (5) of the Act took place during the term of a 2-year i contract entered into
by the Respondent and the Charging Union in December 1959. The Respondent
concedes that throughout the material period the Union has been the exclusive
bargaining representative of all employees in an appropriate unit. Thus the repre-
sentation and unit factors are not in dispute.
In brief, the one issue raised by the complaint is whether are not the Respondent
has failed to fulfill its legal obligation to bargain collectively with the Charging
Union on and after October 20, 1960, by unilaterally changing certain working con-,
ditions: that is, by announcing and instituting such changes without "negotiating"
and "bargaining" concerning them with union representatives.
B. Relevant facts
At the outset it is noted that as to the material facts the record reveals small
dispute between evidence adduced by the opposing parties. The controversy has
arisen from differing interpretations of what was said and written, with resultant
dispute as to mutual obligations under provisions of the Act.
There is no question but that during the term of the contract the Respondent
did effectuate certain changes in working conditions on certain jobs without previ-
ouslyl-negotiating't`prbposed,changes'through'to•the`point of-agreement' with-
the-.£1 OK (131J;4 ZEI
Actually somewhat short of 2 years , from December 4 .,_ 194yitoiQt^b^rpg ^^61,
INCA MFG. DIV., PHELPS DODGE COPPER PRODUCTS CORP. 51,
Union. There is a question whether the Respondent, under terms of the contract and
the law, was obligated to "negotiate" such changes through either to agreement or
impasse.
It is the Respondent's contention that before the 1959-61 contract was executed
the parties came to both an oral and written understanding that while the Company
would both announce to and "discuss" with the Union certain changes which were
in the planning stage at the time, it would not be required to "negotiate" concerning
them to a point where agreement was necessary before they could be effectuated.
The document particularly pertinent to the chief issue is "Memorandum of Under-
standing `D,"' which was incorporated into and became an integral part of the
1959-61 contract at the time of its execution. It reads:
The parties hereto specifically waive any rights which either may have to bar-
gain collectively with the other during the life of this Agreement between the
parties, on any matter pertaining to rates of pay, wages, hours, or other terms
and conditions of employment whether or not covered by this Agreement, except
that this does not nullify or effect in any way the understanding of the parties
that before putting any material changes in working conditions into effect, the
Company will advise of and discuss with the Union any such changes; also
if at any time during the term of this collective bargaining agreement the
parties arrive at any agreement which adds to, deletes, or waives any of the
terms of the collective bargaining agreement, it will be reduced to writing and
signed by both parties.
Credible evidence (found chiefly in management 's copious minutes of precontract
negotiating meetings of December 10, 15, and 29, 1959, the accuracy of which Gen-
eral Counsel at the hearing said he did not "question") establishes that the above-
quoted language was adopted by the parties only after full and thorough
negotiations, exchange of opposing views, and a clear and unambiguous statement
by management as to its intent and meaning.
Thus, when at the December 10 meeting Union President Derickson suggested
that a clause be included providing that when certain "efficiency" changes were to be
effected by management the parties were to "meet and arrive at an understanding,"
Respondent's Vice President McGlinchey pointed out that "a provision in the con-
tract that any change that may develop over the period of the life of the agreement
must be negotiated-what you in effect are saying, in my opinion , is that you want
the Union to have a veto power over anything the Company wants to do." And at
the same point McGlinchey agreed, "if there is something the Company wants to do
or change, of course it makes some sense to tell the Union Committee-it makes
sense even if it is for no other reason than that they know what is going on and what
is going to happen."
Shortly after this exchange, the Union's chief spokesman, International Repre-
sentative Gould, proposed that the parties "meet and discuss the change and what
impact the change will have on the employees involved."
Thereafter McGlinchey summarized the difference in the two union proposals as
follows:
now this thing Mr. Gould is talking about- discussing beforehand as to
what you are going to do-that is one thing-a different thing is what I replied
to Mr. Derickson before-and that is the right of the Union to require not only
negotiation, but agreement, before any change can be made by the Company-
those are two different things. The latter, as I said, amounts to the giving
the Union a right of veto-a right of complete control as to whether they would
or would not agree to a change.
Review of the minutes reveals no point at which the Respondent receded from
its position that while its representatives would "meet and discuss" proposed changes
it would not "negotiate" in the sense of seeking or reaching "agreement."
Despite the "Memorandum of Understanding" on September 26, 1960, Derickson
wrote management the following letter:
During the negotiations which resulted in our current contract, the Company
presented to the Union two typewritten sheets (copy attached) which contained
the Company's proposals for modifications of the Agreement.
The Union Committee was informed by the Company at that time that these
two typewritten sheets contained all of the changes desired by the Company
and was, in fact, the Company's total position.
During negotiations, the Company, after hearing arguments from the Union
Committee, abandoned its position on each of the issues raised by the Company
in its modification proposal.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the current contract has been in effect the Company has, on several
occasions , tried to put into effect unilaterally the modifications it had proposed
during contract negotiations without prior agreement with the Union.
While the Union recognizes that changes in job complexion are necessary
because of the highly competitive nature of the industry, and while the Union
recognizes that to resist changes is to resist progress; nevertheless, the Union
must and does insist that any changes in job content which in any way reflect the
Company's abandoned bargaining position require agreement from the Union
before such changes can be put into effect.
It is not our intent or purpose to unreasonably refuse to come to an agree-
ment with the Company on any contemplated changes in job requirements. The
Union will not resist change as such, but the Union-will resist change without
agreement.
The Union must have an opportunity to analyze any proposed changes in
work assignments in order to determine the effect such changes might have on
our contractual relationship, particularly in regard to wages and incentive earn-
ings, and the Union must also have an opportunity to analyze and determine
what impact, if any, a change in one job will have on any other job.
The Union Committee is ready at any time to meet with the Company to
discuss the conditions and circumstances under which changes in work assign-
ments might be made and the type of agreement required to put those changes
into effect.
We were told during the course of negotiations that -the Company wanted
Local Management and the Local Union Committee to meet and work out the
necessary agreements so that needed changes could be put into effect.
The Union feels that no further change in job content should be made during
the life of the current contract unless there is an agreement reached between the
Union and the Company relative to such change.
On October 7 management replied as follows:
This is in reply to your letter of September 26, 1960, addressed to Mr. Klopsch
and signed by Mr. Georgi and you on behalf of Local No. 963.
The basic point of your letter, as I read it, is a contention that the Company
in some way agreed, during negotiations leading to our existing Agreement dated
December 31, 1959, that the Company could not in the future make changes in
job content without obtaining the Union's agreement on those changes. This
contention is not correct. The Company has always maintained that it has the
fundamental Management right to make changes in job content without Union
agreement, and it in no way retreated from such position during the
negotiations.
In fact, the provisions of the existing Agreement reflect not only the Com-
pany's adherence to this position but also the Union's acceptance of it.
Memorandum of Understanding "D," which was made a part of the Agreement
on December 31, 1959, provides specifically that the Company's only obligation
before "putting any material changes in working conditions into effect" is to
"advise of and discuss with the Union any such changes." Pursuant to this con-
tract provision, the Company has advised the Union in advance ,,of material
working condition changes and has discussed them with the Union. The Com-
pany will continue to follow this procedure, which gives the Union the op-
portunity-which you say the Union would like to have-to "analyze any
proposed changes in work assignments" and to make any suggestions that it
deems desirable.
,On October 20, 1960, management orally advised union representatives of certain
proposed changes. Meetings were held on both December 8 and 9 at which the pro-
posed changes were "discussed." Management minutes reveal that company repre-
sentatives fully discussed the nature, need for, and application of the changes
previously announced, and that union representatives were given full opportunity to
present their point of view as to each of them. The Union even proposed certain
alternatives to certain proposed changes. When the union representatives indicated
that they wished to inform the membership of these matters, management appar-
ently agreed to delay effecting the changes until a meeting could be held.
Another meeting was held on December 30, 1960, at which time the Union urged
that because of certain conditions the changes not be made. Union representatives
RYDER TRUCK RENTAL, INC. 53
offered many suggestions ; their points were discussed and considered . As to some
suggestions company representatives agreed to investigate the possibilities they
offered.
Another meeting was held on January 4 and considerable discussion again took
place. At this meeting the company representatives in effect made it clear that
certain of the changes which had been discussed would be put into effect in mid-
January.
Management , however , apparently again delayed putting the changes into effect,
when a further meeting was arranged for January 17. At the January 17 meeting the
union representatives took the flat position that the Company had no "right to put
these changes into effect without first coming to an agreement with the Union."
Management insisted that, having followed the "discussions" procedure , set out in
the Memorandum of Understanding , it would proceed with the changes . It did so, and
the Union filed its charge , claiming that the Respondent had failed to bargain in good
faith with it.
C. Conclusions
Although opposing counsel , in their able and exhaustive briefs, have covered a
good deal of disputatious ground , the issue appears to the Trial Examiner to be some-
what more simple when lifted from the entanglement of prolonged argument.
At most, it seems, there are but two points to the issue : ( 1) Did the procedure
followed by the Respondent in making changes violate its collective-bargaining agree-
ment ; and (2 ) did this procedure violate the provisions of the Act-by not meeting
the legal requirements of collective bargaining?
In the opinion of the Trial Examiner management met fully , and in good faith, the
provisions both parties agreed to in "Memorandum of Understanding `D.- It not
only announced changes, but at many meetings both discussed them and permitted
union representatives to propose alternatives . Its willingness to go somewhat beyond
the rights defined in the memorandum in no way nullified the language of that
document or its right ultimately to effectuate the changes without "agreement."
As to point ( 2), it is equally clear that at no material time did the Respondent fail
or refuse to "meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment."
It will therefore be recommended that the complaint be dismissed in its entirety.
[Recommendations omitted from publication.]
Ryder Truck Rental, Inc. and Truckdrivers and Helpers, Local
515, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Ind. Case No. 10-CA-
4726. January 5, 1962
DECISION AND ORDER
On October 24, 1961, Trial Examiner Thomas N. Kessel issued his
Intermediate Report herein, finding that Respondent engaged in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal as to them. Thereafter, the Re-
spondent and the General Counsel each filed exceptions with a
supporting brief.
135 NLRB No. 8.