Phelps Dodge Specialty Copper Products, Co.

National Labor Relations Board - Board Decisions

Apr 22, 2002

337 N.L.R.B. 455 (N.L.R.B. 2002)

PHELPS DODGE SPECIALTY COPPER PRODUCTS 455
Phelps Dodge Specialty Copper Products Co. and
International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, Lo­
cal 441, AFL–CIO. Case 22–CA–24104
April 22, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On July 10, 2001, Administrative Law Judge Raymond
P. Green issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed a brief in opposition.
The Board has delegated its authority in this proceed­
ing to a three-member panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
has decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.1
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.
Robert Gonzalez, Esq., for the General Counsel.

Nathan R. Niemuth, Esq., and Frederick C. Miner, Esq., for the

Respondent.
Ed Pryor, for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark, New Jersey, on May 22 and 23, 2001. The
charge and amended charges were filed on July 17, August 11,
and 31, 2000. The complaint was issued on January 31, 2001.
As amended after the parties had settled most of the allegations,
the remainder of the complaint alleged that since July 19, 2000,
the Respondent has refused to bargain in good faith about the
subjects of union-security and dues-checkoff provisions.
It should be noted that the General Counsel does not allege
that the Company engaged in overall bad-faith bargaining or
that it violated its duty to bargain in any other manner.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed, I
make the following
1 In support of his finding that the Respondent had not engaged in
bad-faith bargaining with regard to union security and checkoff, the
judge noted that the Respondent made numerous concessions during
negotiations on wages and other matters; that the Respondent explained
its position regarding union-security and dues-checkoff provisions; and
that some bargaining unit members informed management that they
objected to joining the Union. We note, as further evidence that the
Respondent bargained in good faith, that on July 13, 2000, the Respon­
dent proposed that the parties adopt the expired contract , which con­
tained the union-security clause. The Union rejected this proposal.
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Phelps Dodge Specialty Copper Products Co., is a subsidiary
of Phelps Dodge Corp. It operates a facility in Elizabeth, New
Jersey, on Bayway Street (the Bayway plant). For at least 50
years, the Union has been recognized by the Company as the
collective-bargaining representative in a unit consisting of all
hourly-rated production and maintenance employees of the
Employer at its Elizabeth facility including mill or production
clerks and inspectors. The most recent collective-bargaining
agreement ran for a term of August 1, 1997, to July 31, 2000.
The collective-bargaining agreement covered about 60 em­
ployees including a small group of about 6 employees who
were transferred from another plant to the Bayway plant in
early 2000. The contract, among other things, contained a un­
ion-security clause requiring union membership after 90 days
of employment or the effective date of the contract, whichever
comes last. Additionally, that contract contained a dues-
checkoff provision pursuant to which the Employer agreed to
deduct and remit union dues upon receipt of an executed dues-
checkoff authorization form from an employee.
Notice having been given to terminate the old contract, bar-
gaining for a new agreement began on July 11, 2000. On that
date, the Employer tendered a complete contract proposal. This
proposed contract, among other things, eliminated the old un­
ion-security clause and the dues-checkoff provision and pro­
vided that any check-off authorization signed by an employee
would be revocable at will.
Following meetings held on July 12 and 13, the Union, at a
negotiation session held on July 18, tendered its contract pro­
posal to the Company. This proposal contained a 90-day union
security clause and a dues-checkoff provision. As part of the
union-security clause, the Union’s proposed language made it
clear that employees would not have to become union members
as such; that membership in good standing simply meant pay­
ment of a percentage of union dues permitted by Federal law.
The dues-checkoff provision continued the prior contract’s
requirement that such authorization be irrevocable until a date 1
year from its effective date or until the date that any new con-
tact expires, whichever is earlier.
On the morning of July 19, 2000, the parties discussed at
length their respective positions on the dues-checkoff provi­
sion. The Company’s spokesman, Webster, stated that the
Company believed that employees should have the right to
choose to be members or nonmembers. He also stated that the
Company did not want to be in a position where it would be
forced to discharge any employee who either chose to, or for
some reason, could not afford to pay union dues. There was
some talk about the definition of the union membership re­
quirement. This was clarified, in accordance with the proposal
made by the Union on the preceding day, to the effect that no
337 NLRB No. 64
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
person would be required to be a member. The Union’s posi­
tion was that the membership requirement would be satisfied if
such person paid 85 percent of the normal dues required of
members. It appears that the parties spent about 2 to 3 hours on
this subject without reaching any agreement. At the end, Web­
ster stated that they had a philosophical disagreement.
The Union’s witnesses testified that at the meeting on July
19, a company representative made a comment that likened a
union-security clause to living under socialism or communism.
Further negotiations were held on July 20 and 26, 2000. At
the meeting held on July 26, the Company made another con-
tract proposal which was rejected by the Union. Thereafter, on
July 27, 2000, the Company made a “final offer” which,
among other things, raised its previous wage offer to 3 percent
per year and offered other concessions. However, neither the
July 26 or July 27 company proposals contained a union-
security clause and the proffered dues-checkoff provision was
one which allowed employees to revoke their dues-checkoff
authorizations at any time.
On August 1, 2000, the Union commenced a strike. At a
meeting held on that date, the Company asked the Union to
define the strike issues and the Union listed about 20 items
including the issues of union security and dues checkoff. An-
other meeting was held on August 3, 2000.
On August 11, 2000, the Union made, on behalf of the em­
ployees, an unconditional offer to return to work. On August
14, the employees returned and the strike ended. Further nego­
tiations were held on August 28, October, 23, November 13,
14, 20, and March 20, 2001.
At the meeting held on November 13, 2000, there was more
discussion about the union-security and dues-checkoff provi­
sions. At this meeting, Webster referred to his experience at
another facility where he had to discharge a group of employ­
ees who had failed to pay union dues. He reiterated that the
Company did not want to be put in the position of having to
discharge employees who either refused or could not afford to
pay union dues.2 Webster also made reference to a situation at
another plant where despite the Union’s claim that an employee
had not paid dues, it later turned out that the employee had a
receipt for his dues and that this had led to an unfair labor prac­
tice charge. Webster stated that if the Company was required
to discharge such an employee, the Company would incur the
costs of recruiting and training a new employee, in addition to
having lost the skills of the person discharged.3
The final meeting was held on March 20, 2001, but this had
nothing to do with the union-security issue. The delay between
November 20, 2000, and March 20, 2001, was the result of the
2 At this time, the Union’s dues were $24 per month.
3 The Union’s proposed contract, offered back on July 18, 2000,
states, at article 1, sec. 4: “The Union shall hold the Company harmless
for any losses it may suffer by reason of its deduction of dues or initia­
tion fees in accordance with an authorization as provided in subpara­
graph 3.” The Union’s representatives testified that although this pro-
vision was intended to hold the Company harmless in the event of a
successful unfair labor practice brought by an employee, it was not
intended to cover such company expenses as recruitment or training of
any new employee hired to replace someone who was discharged for
failing to pay union dues.
Company and the Union agreeing that the Union would attempt
to find a better and/or less costly health insurance plan.
III. ANALYSIS
The Respondent concedes that the subjects of union-security
provisions and dues-checkoff provisions are mandatory sub­
jects of bargaining. This means that both sides have a legally
defined duty to bargain about these subjects in good faith. By
the same token, if these are mandatory subjects of bargaining
(as opposed to permissive subjects), neither side is required by
the Act to concede its position and either may insist, as a condi­
tion of reaching an agreement, that its position prevail. See
Section 8(d) of the Act, which states, inter alia, that the duty to
bargain, “does not compel either party to agree to a proposal or
require the making of a concession.” See also, H. K. Porter
Co., Inc. v. NLRB, 397 U.S. 99 (1970).
There have been a number of Board decisions where either
an administrative law judge or the Board has opined that a “phi­
losophical opposition” to dues-checkoff provisions may consti­
tute evidence of bad-faith bargaining. Langston Cos., 304
NLRB 1022, 1050 (1991), citing Tiffany & Co., 268 NLRB
647, 650 (1984).
Nevertheless, those cases typically involved other unlawful
conduct in which the opposition to a union-security or dues-
checkoff provision was a significantly smaller part of the
whole. For example, in Langston Cos., supra, the Board also
concluded that the Respondent refused to bargain by refusing to
negotiate at all until certain unfair labor practice allegations
were resolved; that it violated the Act by bypassing the Union
and dealing directly with employees; that it unlawfully imple­
mented changes to its insurance plan in the absence of an im­
passe; that it engaged in surface bargaining with no intent of
reaching an agreement; and that it discriminated against em­
ployees because of their union activities.
In CJC Holdings, 320 NBLRB 1041, 1046–1047 (1996), the
administrative law judge found that the company illegally im­
plemented its last offer in the absence of a valid impasse. He
also concluded that the company violated the Act by imple­
menting unilateral changes during contract negotiations. Fi­
nally, the judge concluded that the company engaged in surface
bargaining by, among other things, asserting that it had “phi­
losophical” objections to a dues-checkoff provision and ob­
jected to being in the dues collection business. The judge
opined that these were not legitimate reasons for refusing to
agree to such a provision and constituted evidence of bad faith.4
At footnote 2 of the Board decision, Member Cohen, although
agreeing with the judge’s conclusion that the company’s “pri­
mary goal was to avoid agreement and reach impasse,” stated
that he “does not rely on the judge’s finding that a company’s
fundamental opposition to dues checkoff, on policy grounds, is
not a legitimate reason for opposing such a contract provision.”
In Preterm, Inc., 240 NLRN 654, 673 (1979), the Respon­
dent refused to consider any union-security provision, asserting
that it believed its employees should have the right to choose
whether or not to join the union. Finding that the Employer
4 He also relied on the company’s failure to comply with an earlier
refusal to bargain order in a previous case.
PHELPS DODGE SPECIALTY COPPER PRODUCTS 457
refused to consider any alternative proposal by the union, (such
as an agency shop clause), and concluding that the Respondent
went into negotiations with a fixed mind on this issue, the ad­
ministrative law judge concluded that the “Respondent’s refusal
to discuss union shop or any modified form thereof, based upon
its alleged ‘philosophical opposition’ thereto constitutes evi­
dence of a refusal to ‘confer in good faith’ within the meaning
of the Act.” Nevertheless, the administrative law judge con­
cluded, based on other conduct, including Respondent’s attempt
to exclude certain categories that were in the unit by virtue of
the certification of representative, that the Respondent engaged
in surface bargaining with a “mere pretense at engaging in ne­
gotiation.” He held and the Board affirmed, that the Respon­
dent’s ultimate goal was not to reach an agreement but to free
itself of the need to deal with the union. In addition to his con­
clusion that the company engaged in surface bargaining, the
judge also found that the Respondent violated the Act by ille­
gally threatening employees with job loss.4
On the other hand, the Board, in National Steel & Shipbuild­
ing Co., 324 NLRB 1031, 1044 (1997), rejected the contention
that the company refused to bargain in good faith by its rejec­
tion of a union-security provision. In this case, it was alleged
that the company bargained in bad faith by presenting and in­
sisting on regressive union-security proposals and that the
company bargained to impasse on a permissive subject of bar-
gaining, namely yard security. In relation to the union-security
allegation, the judge noted that absent other evidence of bad
faith, regressive contract proposals are not violative of the Act.
She also noted that there were changed circumstances because
there were many new employees hired at the plant, some of
whom questioned the “union shop” language and some who
raised objections to the payment of initiation fees to the union.
Additionally, she noted that the parties, in other respects, en-
gaged in good-faith bargaining which produced agreement on
other issues. She stated:
Based on a totality of the circumstances . . . I find that
NAACO’s actions . . . with regard to union security do not
support a finding of bad faith bargaining. In particular, the
changed circumstances of weathering the strike and job
actions as well as the new hires questioning traditional un­
ion-security requirements permitted modification of prior
union-security proposals.
In Hickinbotham Bros. Ltd., 254 NLRB 96, 102–103 (1981),
the administrative law judge, dealing with the issue of an em-
4 Although affirming the general conclusion that the Respondent en-
gaged in bad-faith bargaining by its overall conduct, the Board refused
to find that the Respondent’s insistence on a broad management-rights
clause was evidence of bad faith or that its representative’s somewhat
bellicose behavior at the negotiating table was evidence of bad faith.
ployer’s proposal to eliminate union security, stated in pertinent
part:
It is immaterial whether the Union, the General Counsel, or I
find these reasons totally persuasive. What is important, and I
so find, is that these reasons are not so illogical as to warrant
an inference that by reverting to these proposals Respondent
has evinced an intent not to reach agreement and to produce a
statement in order to frustrate bargaining.
This case presents the allegation that the Respondent refused
to bargain about union-security and dues-checkoff provisions in
the absence of any other bargaining misconduct. The General
Counsel wants the Board to conclude, not only that the Com­
pany’s negotiation positions on these two issues may constitute
evidence of bad-faith bargaining, but that such positions consti­
tute, by themselves, a violation of the Act. I do not agree.
The evidence here indicates that the Respondent engaged in
good-faith bargaining in all other respects and made conces­
sions during negotiations on wages and other matters. The
Respondent’s position with respect to union-security and dues-
checkoff clauses cannot, in my opinion, be considered irrational
and it took the time during negotiations to explain its positions.
Given the fact that these issues are mandatory subjects of bar-
gaining, neither side can be compelled to agree to the other’s
position or to even make concessions in its own position.
Moreover, there was evidence that some bargaining unit em­
ployees, such as those accreted to the unit during the preceding
contract term, raised some objections to joining this Union and
made their feelings known to management.
In my opinion, the conduct of the Respondent, in this case,
and the positions taken by it in relation to union-security and
dues-checkoff provisions do not, by themselves, amount to a
violation of the Act. Accordingly I shall recommend that the
complaint be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The complaint is dismissed.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur­
poses.