Phelps Dodge Copper Products Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1951

96 N.L.R.B. 982 (N.L.R.B. 1951)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PHELPS DODGE COPPER PRODUCTS CORPORATION and WESTERN ME-
OHANICS LOCAL 700, INTERNATIONAL UNION OF MINE , MILL AND
SMELTER WORKERS . Case No. 21-CA-1058. October 19, 1951
Decision and Order
On July 13,1951, Trial Examiner Martin S. Bennett issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, as amended, and recommending that the amended com-
plaint be dismissed in its entirety, as set forth in the copy of the Inter-
mediate Report attached' hereto. Thereafter, the General Counsel
filed exceptions, supported by a brief, only to that portion of the
Immediate Report recommending dismissal of the allegation that
the Respondent refused to bargain with respect to "a provision requir-
ing membership in Local 700 as a condition of employment." 1 The
Respondent also filed a brief in support of the Intermediate Report.
The Board 2 has reviewed the rulings of the Trial Examiner made
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 case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as hereinafter stated.
In finding, in agreement with the Trial Examiner, that the Re-
spondent did not refuse to bargain collectively within the meaning
of Section 8 (a) (5) of the Act with respect to a demand for a union
shop arrangement, we rely solely on the express written waiver pro-
visions in the existing contract which operated to release the Re-
spondent from the obligation to bargain as to union-security demands
during the term of the contract. We find it unnecessary to pass upon
the additional ground, also relied on by the Trial Examiner, that the
parties discussed the Union's demand for a union-shop clause before
executing the contract of April 2, 1950, without incorporating it
therein.3
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
1 The Trial Examiner also found that the evidence did not sustain the remaining allega-
tion that the Respondent refused to bargain by dealing directly with the employees and
thus bypassing the Union. As no exception has been filed to this finding, we adopt it.-
2Pursuant to'the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Reynolds and Styles].
3 Member Reynolds concurs in the result reached herein, but does so for the reason
set forth in his dissenting opinion in The Jacobs Manufacturing Co., 94 NLRB 1214.
96 NLRB No. 142.
PHELPS DODGE' COPPER PRODUCTS CORPORATION 983
Relations Board hereby orders that the amended complaint herein
against the Respondent, Phelps Dodge Copper Products Corporation,
be, and it hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
The General Counsel of the National Labor Relations Board issued a com-
plaint, dated May 3 and amended May 23, 1951, based upon a charge duly filed
on March 7, 1951, by Western Mechanics Local 700, International Union of Mine,
Mill and Smelter Workers, herein called the Union, against Phelps Dodge Copper
Products Corporation, Los Angeles, California, herein called Respondent. The
amended complaint alleged that Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of
the National Labor Relations Act, as amended 61 Stat. 136, herein called the Act:
Copies of the charge, complaint, amended complaint, and notice of hearing
thereon were duly served upon Respondent and the Union.
Specifically, the amended complaint alleged that Respondent on or about
December 1, 1950, and thereafter (1) had refused to bargain with the Union
relative to a provision requiring membership therein as a condition of employ-
ment; and (2) had bypassed the Union and negotiated directly with employees
relative to a wage increase. In its amended answer, Respondent denied the
commission of any unfair labor practices and pleaded affirmatively that the
Union had waived the right to bargain with respect to a union-security provi-
sion. Respondent also filed a motion for a bill of particulars ; this was referred
to the undersigned for ruling, prior to the hearing, and was granted in part and
denied in part.
Pursuant to notice, a hearing was held at Los Angeles, California, on June 12,
1951, before the undersigned Trial Examiner, Martin S. Bennett. All parties
were represented by counsel who participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. During the hearing, the undersigned
denied a motion by Respondent to (1) dismiss the complaint insofar as it alleged
unfair labor practices prior to the date of the charge and accompanying docu-
ments ;' and ( 2) dismiss the allegations of bypassing the union representatives
on the ground that such alleged conduct was not specified in the charge. Kansas
Milling Co. v. N. L. R. B., 185 F. 2d 413 (C A. 10) ; U. S. Gypsum Co., 94 NLRB
112; McKesson & Robbins, Inc., 92 NLRB 1432; and American Shuffleboard Co.,
92 NLRB 1272. Respondent also moved to dismiss the complaint on the ground
that the Union was not in compliance with the provisions of Section 9 (f), (g),
and (h ) of the Act. The General Counsel announced he had administratively
determined that the Union had effected such compliance and Respondent offered
no evidence of failure to comply or of defects in said compliance. N. L. R. B. v.
Red Rock Co., 187 F. 2d 76 (C. A. 5) ; cf. Sunbeam Corp., 93 NLRB 1205.
The undersigned also denied a motion to dismiss the complaint on the ground
that the charge had been served by the Regional Director for the Twenty-first
Region rather than by the charging union. Section 10 (b) of the Act does not
provide that the charge must be served solely by the charging party. More-
over, although Section 102.14 of the Rules and Regulations of the Board places
the responsibility for service on the charging party, it also envisages that service
i The charge was filed on March .7, 1951, and bore an attachment consisting of two
letters dated February 12 and 14, 1951 , respectively.
984 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
may be effected by the Regional Director. This the undersigned finds to be
adequate, since the primary purpose of service of the charge is to put a respond-
ent on notice that it is being charged with the commission of unfair labor prac-
tices in the preceding 6-month period, and Respondent herein concedes that it
was so put on notice. The undersigned fails to see how Respondent was preju-
diced, under the circumstances, by the use of one medium rather than the other.
At the conclusion of the hearing, the parties were afforded an opportunity to
argue orally before the undersigned and Respondent presented its argument.
The parties were afforded at the same time an opportunity to submit briefs
and/or proposed findings of fact and conclusions of law. Briefs have been re-
ceived from all parties as well as proposed findings and conclusions from
Respondent.'
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Phelps Dodge Copper Products Corporation is a Delaware corporation whose
principal offices are in New York City. It maintains a plant at Los Angeles,
California, which is the sole plant involved in this proceeding, where it is en-
gaged in the manufacture and sale of copper tubing. In the course of its busi-
ness , Respondent purchases and causes to be shipped to its Los Angeles plant
large quantities of raw materials. It annually produces and ships from its Los
Angeles plant to States of the United States other than the State of California
manufactured products valued in excess of one million dollars. The undersigned
finds that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Western Mechanics Local 700, International Union of Mine, Mill and Smelter
Workers is a labor organization admitting to membership employees of
Respondent. -
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The issues
The complaint alleges that Respondent has refused to bargain with its em-
ployees in two respects, (1) that Respondent has refused to discuss a union-
security agreement, which it admits; and (2) that Respondent by-passed the
Union and negotiated directly with the employees relative to a wage increase.
.To the first, Respondent replies that the Union had expressly waived the right
to bargain on all bargainable issues for the life of the contract then in effect,
and furthermore that the request of the Union to discuss this topic constituted
a request for a modification of the contract and was therefore violative of Sec-
tion 8 (d) of the Act. As will appear, this issue is resolved in favor of Respondent
based upon its defense of a waiver and it consequently becomes unnecessary to
2 Proposed findings 1 through 20 are accepted save for that designated 8 on which, in
view of the findings hereinafter , it is unnecessary to pass. Proposed conclusions 2 through
4 are accepted ; proposed conclusion 1 Is not passed upon for the same reason as proposed
finding 8 . Conclusions 5 and 6 are rejected for they have already been passed upon in
the foregoing rulings.
PHELPS DODGE' COPPER PRODUCTS CORPORATION 985
take up the defense predicated upon Section 8 (d). To the second allegation,
Respondent replies that it was within its rights in meeting with certain employees
and informing them of its position relative to the wage increase.
2. Majority representation in an appropriate unit ; union-security authorization
The parties agree and the undersigned finds that all hourly rated production
and maintenance employees of Respondent's Los Angeles tube mill, including mill
or production clerks and inspectors, but excluding foremen, assistant foremen,
supervisors, technical and engineering employees, timekeepers, watchmen, guards,
and office and clerical employees other than mill or production clerks, constitute
a unit appropriate for the purposes of collective bargaining. Since on or about
March 14, 1946, Respondent has recognized and does currently recognize the
Union as the representative of the employees in the above-described unit.
On or about February 2, 1951, after the holding of a union-security election,
the Board certified that a majority of the employees of Respondent had voted
to authorize the Union to make an agreement with Respondent requiring mem-
bership in the Union as a condition of employment, in conformity with the
provisions of Section 8 (a) (3) of the Act.
3. Sequence of events
a. Introduction
As stated, Respondent and the Union have enjoyed contractual relations for
some years. Respondent originally entered into a contract in May 1945 with,
another local of International Union of Mine, Mill and Smelter Workers ; how-
ever, Local 700 replaced the other local and was party to a contract entered into
in March 1946. This was followed by a contract in September 1947 which, by
a later amendment, suspended, pending compliance with the provisions of the
Act, the application of a maintenance-of-membership clause found in the 1945
contract and incorporated in the 1946 contract. Another contract followed in
June 1948 with an expiration date of July 1950. However, on April 21, 1950,
and again on December 8, 1950, the parties entered into the agreements which are
pertinent to this proceeding.
b. Negotiations in March 1950; the April contract
The 1948 contract was not permitted to run until its scheduled expiration date
in July of 1950; in March of that year, the Union presented Respondent with a
list of 15 proposals for a new contract and on April 21, the parties entered into
a new contract. The sole testimony concerning these negotiations came from
Otto Klopsch, works manager for Respondent and also in charge of labor rela-
tions. He credibly testified that the union representatives presented him with
a list of 15 demands on or about March 10. This list was introduced in evidence
and item 14 thereof states :
We request subject to the laws applied in the National Labor Relations Act,
that the Company will agree to a Union Shop.3
8 The General Counsel in effect attacked the authenticity of this document, pointing
out that items 13 through 15 were typed, as is apparent on the face of the document,
with a different typewriter than the first 12 items. His further contention that the last
3 Items were added at a later date is unsupported, for no evidence was adduced con-
cerning the preparation of the document by the Union and Klopsch's testimony that
the document bore the 15 items when initially presented to him stands uncontroverted
and is credited. Significant too is the fact that item 15 is a request for a 5-cent per
hour wage increase, that there was discussion of this request at meetings , and that an
increase in precisely that amount was later granted in the April contract.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As was their custom, the parties at their initial meeting on March 10 went
over each of the 15 demands and Klopsch announced that he would consider them
between then and the next meeting. He specifically testified herein that item
14 was raised and discussed on March 10 , and that at a following meeting on
March 17 he rejected the request . Approximately five meetings in all were held
and shortly before April 20 the final word on the acceptance of contract terms
was apparently left in the hands of the Union , for on that date it notified Klopsch
that it was ready to sign the agreement . Klopsch replied that he would draw
up his understanding of what they had agreed upon and , on April 21 , 1950, the
parties met and signed a contract with an expiration date of November 1, 1951.
The several articles purported to make certain changes in the 1947 and 1948
agreements ; the holiday_ arrangement was adjusted ; Article 4 agreed to increase
wages by 5 cents an hour ; and Article 5, the last article in the agreement,
appeared in a separate paragraph directly over the signatures of the parties
thereto and stated :
5. The parties hereto specifically waive any rights which either may have
to bargain with the other during the life of the Agreement between the
parties, as heretofore and hereby modified and extended , on any matter
pertaining to rates of pay, wages, hours, or other terms and conditions of
employment whether or not covered by such Agreement . [Emphasis added.]
Klopsch was unable to recall whether the above item was discussed at this
meeting. To be discussed hereinafter is Respondent 's claim that this clause
constituted an absolute waiver by the Union , under the circumstances, of any
right to bargain on union security for the life of the contract.
- c. Negotiations in September and October 1950; the December 8 contract
Although the April 1950 agreement was not due to expire until November 1,
1951, it was followed by a later agreement in December 1950, under the cir-
cumstances set forth below. As will be apparent, there were actually two
parallel series of negotiations between the parties during the period prior to the
signing of the agreement , one pertaining to union security and the other to a wage
increase.
On September 1, 1950, the Union wrote to Respondent and announced that it
intended to file a petition with the Board for a union security election , pointing
out that in excess of 90 percent of the employees favored the negotiation of
union-security provisions. The letter also referred to the maintenance-of-
membership clause incorporated by reference from prior agreements but not
operative since the effective date of the Act, and stated that the Union preferred
to negotiate a union-shop provision in its place. It then asked (1) if Respondent
was agreeable to the holding of a union-security election ; (2) whether Respond-
ent agreed with the Union that a majority vote in favor of a union shop would
reinstate the maintenance -of-membership provisions ; and (3 ) whether in the
event of a favorable vote, Respondent would negotiate a union-security agree-
ment in place of the maintenance-of-membership clause contained in the existing
agreement.
On September 23, the Union again wrote to Respondent , alluded to the existing
economic situation ( apparently the rising cost of living ), and asked Respondent
to meet and discuss "the scale of wages to be paid under our current agreement."
On October 9, Respondent replied to the Union's earlier communication of Sep-
tember 1 relative to union security and stated that it was not agreeable to the
holding of a union -security election . The letter further pointed out, as follows :
PHELPS' DODGE'- COPPER PRODUCTS CORPORATION 987
It will make no difference to us whether or not you obtain any such
election because our existing contract is not subject to further negotiations
on any matter during its life and the Company uill not reopen the contract to
negotiate any type of union shop provision . [Emphasis added.]
The maintenance of membership clause that you referred to is inoperative
and must remain so under existing law.'
Respondent again wrote to the Union on October 11 in reply to the Union's
letter of September 23 relative to a wage increase ; on this occasion Works
Manager Klopsch again pointed out that the existing agreement of April 1950
did not provide for reopening on any issue prior to its scheduled expiration on
November 1, 1951. He stated that Respondent was therefore unwilling to meet
and discuss wage scales, but that it was willing to meet and hear the Union's
argument "in favor of trying to convince us that we should voluntarily consider
a demand from you for a general across-the-board extra cents per hour wage
increase." This offer was accepted by the Union.
Several meetings were held between the parties in October at one of which
Respondent offered to grant a 10-cent per hour voluntary wage increase on the
condition that the existing contract be extended for 1 year to November 1952.
According to Executive Secretary Marcotti of the Union, he, at a meeting held
on or about October 18, or 19, protested the extension and limitation upon bar-
gaining because the union committee wanted to bargain on other issues during
the life of the contract ; he specifically named group insurance and hospitaliza-
tion as one of the matters he wanted to take up at a later date with Respondent.
This was in accord with the testimony of Klopsch who further testified, although
his testimony is not clear on the latter point, that the waiver clause was also
discussed on December 8. The union negotiating committee then rejected Res-
pondent's offer .5 On October 25, Marcotti wrote to Respondent and confirmed the
rejection by the Union of Respondent's proposal of a 10-cent per hour increase
coupled with a 1-year contract extension. The Union proceeded to file a peti-
tion for a UA election and on November 13 Respondent was notified of this by a
letter from a Board field examiner. Respondent on November 16 replied by a
letter to the field examiner stating that it was not agreeable to a union shop
"at any time."
Shortly before December 8, the Union contacted Respondent and stated that
it had changed its mind and was prepared to accept Respondent's offer. The
parties met on December 8 and inspected a proposed contract which had been
prepared in the interim by Klopsch. This document contained four articles which
the parties proceeded to read. Clause 1 was a substitution for Article 1 of the
April 1950 agreement and provided for the extension of that agreement to
November 1, 1952. Clause 2 in part set up a procedure for modification of the
agreement not more than 65 days prior to November 1, 1952. Clauses 3 and 4
provided as follows :
3. The Company agrees to pay an increase of ten (10c) cents as an extra
(sic) for each hour worked to each hourly rated employee within the bar-
gaining unit at the Los Angeles Tube Division, thus settling all negotiable
matters for the life of the existing Agreement as hereby modified and ex-
tended except as provided below in the following paragraph, such in-
4 For the purposes of this proceeding it is unnecessary to decide whether the inoperative
maintenance-of-membership clause provided for a greater degree of union security than
that permitted by the Act.
5 The allegation of the complaint relating to the bypassing of the Union refers to a
meeting by Klopsch with certain employees during this period and is treated in a later
section of this Report.
988 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
crease to go into effect upon the date of the signing and executing by the
parties' of .this Agreement. _ • -
4. The parties hereto specifically waive any rights which either may have
to bargain with the other during the life of the existing Agreement between
the parties , as heretofore and hereby modified and extended , on any mat-
ter pertaining to rates of pay, wages , hours or other terms and conditions
of employment , whether or not covered by such Agreement , except that on or
after the first day of November 1951 , and prior to the first day of Novem-
ber 1952 , the Union shall have the right only once to open negotiations and
then only with respect to a demand for a general across -the-board extra
cents per hour wage increase . [Emphasis added.]
The four articles in the contract proposed by Respondent were read and the
contract signed on December 8. There was no discussion of union security or
of the union-security election sought by the Union. As is apparent, clauses 3
and 4 incorporate and amplify the waiver language of the April 1950 agreement.
It may also be noted that the Union did not dispute that this wage increase
was a purely voluntary act on the part of Respondent.
Respondent again communicated with the Board Field Examiner on Decem-
ber 26, after being contacted by him on November 25, in relation to the holding
of the union-security election. Klopsch referred to his letter of November 16
and again stated that he was not agreeable to a "Union Shop at any time"
and hence would not consent to sign the election agreement . Klopsch uncon-
trovertedly testified that he spoke by telephone to the Field Examiner at or
about the times he sent the November 16 and December 26 letter and pointed
out that Respondent's position , as expressed in the letters, was predicated on
its view that the contracts were not open for bargaining until a much later
date and that as a result it was not interested in an election which would have
no weight. The Regional Director proceeded with the election, which the
Union won ; it was duly certified by the Regional Director on February 2, 1951,
as eligible to enter into a union-security agreement. On February 12 the Union
wrote to Klopsch and asked that he meet with it for the purpose of negotiating
a union-shop clause. Klopsch replied as follows on February 14:
Answering your letter of February 12, 1951 we have heretofore advised
you that our Company is not agreeable to a Union Shop at any time and
that it would make no difference to us whether or not you went through
with a Union Shop election.
You are well aware that our existing collective bargaining agreement is
not subject to any negotiations , on any matter, during its life ( except
with respect to a demand on or after the first day of November 1951 and
then only for a general across -the-board extra cents per hour wage in-
crease), and we again repeat what we have told you before that our
Company will not reopen the contract to negotiate any type of Union
Shop provision.
Therefore , no useful purpose could be served by any meeting with your
Union Shop Committee as you request in your letter of February 12, 1951.
Thereafter the charge on which this proceeding was predicated was filed on
March 7, 1951.
4. Concluding findings concerning the alleged refusal to bargain on union security
The foregoing sequence of events establishes that the Union, prior to enter-
ing into the April 1950 agreement, presented 15 demands to Respondent, in-
cluding 1 for a union shop ; that this request was discussed on March 10; and
PHELPS DODGE' COPPER PRODUCTS CORPORATION - 989
that it was rejected by Respondent on March 17. The ultimate agreement on
April 21 contained no provisions for union security and, in addition, clearly
and specifically on its face waived any and all rights to bargain during its
term "on any matter pertaining to rates of pay, wages, hours,-or other terms
and conditions of employment whether or not covered" by the Agreement.
. The topic of a union shop remained dormant until September 1, 1950, when
it was again raised by the Union. Respondent again manifested its opposition
to the union shop, pointing out on October 9, as it did thereafter, that the
exising contract was not subject to further negotiations on any matter during
its term and that the term would not expire until November 1951. The parties
did meet thereafter, pursuant to the Union's request for a voluntary wage
increase , and Respondent in the December 1950 contract voluntarily granted
this increase. The new contract term was until November 1952; the contract
stated that all negotiable matters were settled for the life of the agreement,
and that any rights to bargain with each other for the life of the agreement
were specifically waived "on any matter pertaining to rates of pay, wages,
hours, or other terms and conditions of employment whether or not covered
by such Agreement," save for the right to negotiate for a wage increase on or
after November 1951.
Thereafter, the Regional Director proceeded with the processing of the
Union's petition for a union-authorization election, and it is true that on two
occasions , in letters to a Board field examiner on November 16 and December
26, respectively, Respondent made reference to its opposition "to a union shop,
at any time"; it also made a similar 'statement on February 14 in a letter sent
to the Union in reply to a further demand for the union shop made on February
12. However, the evidence is uncontroverted that Klopsch in telephone
communications with the field examiner on or about the dates of the two
letters, explained that Respondent's opposition to union security was predi-
cated on the fact that the respective contracts were not open for bargaining
until much later dates, as was the fact. Furthermore, in a later paragraph
of the February 14 letter, Respondent emphasized the same point to the Union,
stating that the December 1950 contract was not subject to negotiations until
November 1952, its termination date, on any matter, save a wage increase and
that was negotiable only in November 1951. Respondent reiterated its opposi-
tion to reopening the contract for the purpose of negotiating a union-shop
provision. The undersigned accordingly finds that Respondent's position was
simply that union security was not a bargainable issue for the life of either
contract. This is particularly so because the two requests of the Union in
September of 1950 and again in February of 1951 were manifestly for union-
security provisions to be made effective during the terms expiring in November
1951 and November 1952, respectively, and were not directed to union security
for a future period after the expiration of the contracts and their waiver
clauses!
That union security is normally a subject for collective bargaining is too
well established to require discussion. N. L. R. B. v. Andrew Jergens Co.,
175 F. 2d 130 (C. A. 9) cert. denied 338 U. S. 827; Larrance Tank Corp.,,
94 NLRB 352; U. S. Gypsum Co., 94 NLRB 112; and Hudson Motor Car Co.,
82 NLRB 402. It is the position of Respondent, however, that union security
was bargained away in April 1950, and further that the express provisions
6 As is apparent, no claim of unfair labor practice has been made with respect to the
negotiations in March and April 1950 which culminated in the April 1950 contract. It
may be noted, however, that not only had there not been a union-security election, but,
in addition, that the topic was in fact raised by the Union, considered by Respondent,
and rejected by the latter at the time.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the April 1950 and December 1950 contracts constituted waivers on the
part of the Union of the right to bargain on all bargainable issues ' during
the contract terms, irrespective of whether they were treated in the respec-
tive contracts. In view of the treatment of the union-security issue in the
negotiations leading up to the April contract, the undersigned finds that it
was bargained away for the duration of that contract. The Jacobs Manufac-
turing Company, 94 NLRB 1214. A similar view would apply to the Decem-
ber contract in view of the issue having been raised shortly prior thereto.
However, as will appear, the waiver argument treated hereinafter is dia-
positive of the issue.
Turning to the waiver defense, the Board has recognized that the parties to a
collective bargaining agreement may waive for the contract term their rights
to bargain on an issue, the sole limitation being *that there must be "a clear and
unmistakable showing of a waiver of such right." Standard Oil Co., 92 NLRB
227; Tidewater Oil Ca., 85 NLRB 1096. In the very recent decision of The
Jacobs Manufacturing Company, supra, the Board has reaffirmed this principle,
stating :
And if the parties originally desire to avoid later discussion with respect
to matters not specifically covered in the terms of an executed contract, they
need only so specify in the terms of the contract itself.
Significantly, the Board cites in this decision, as an example of an effective
,waiver, a paragraph in a contract between General Motors Corporation and
United Automobile Workers of America, CIO, which is substantially similar to
the waiver clauses found herein. A similar reference to that waiver is found
in Regulation of Collective Bargaining by the National Labor Relations Board-
Another View, Findling and Colby, 51 Columbia Law Review 170, February 1951.
It is noteworthy that the Board has recognized waiver clauses where the
language is less clear and unmistakable than in the present case. In General
Controls Co., 88 NLRB 1341, a contract provision, following after bargaining on
the topic, gave the employer the right to determine in the first instance an em-
ployee's right to a periodic merit increase ; this was held to constitute a waiver by
the union of the duty on the part of the employer to bargain with respect to indi-
vidual merit wage increases during the life of the contract. And, of course, the
Jacobs case, in which, as in the General Controls decision, there was no express
waiver language, has reaffirmed this view.
In the instant case, not only was union security raised, discussed, and
rejected in the meetings prior to the April 1950 contract, but the contract con-
tained a clear and unmistakable waiver clause. This was inserted in even more
detail in the December 1950 contract which modified the earlier agreement;
there is therefore no merit to the contention that the foregoing decisions are
not controlling herein.
Moreover, any lingering doubt is removed by the fact that this waiver lan-
guage appeared in separate paragraphs at the end of each of these relatively
short contracts. The record shows that in discussions leading up to the Decem-
ber 1950 contract the union representatives expressed perturbation over this
waiver language and, in fact, had originally refused to sign because they realized
- that it would preclude them ,from raising during the contract term various
desired changes including one with respect to group insurance and hospitaliza-
tion. In addition, Marcotti admitted that there was no obligation to discuss
wages at the time.
While it appears that under this view of the case the action of the Regional
Director in conducting a union-security election was nugatory as bearing upon
a union security clause which might be effective prior to the expiration of the
PHELPS DODGE' COPPER PRODUCTS CORPORATION 991
contract -in November 1952, on the other hand contracts are frequently opened
up or terminated for various reasons, as has in fact been done by the parties
herein on various occasions. However, it is not within the province of the under-
signed to pass in this proceeding upon the effect of such an election. Suffice it to
say that the certification cannot serve to override the clear and unmistakable
waiver language found in both contracts. This language is controlling not only
with respect to the period prior to the union authorization election and the
certification of the Union on February 2, 1951, but in the following period as well.
Cf. M. T. Grant Co., 94 NLRB 1133.
The waivers were broad in scope, expressly applied to subjects not covered
by the contracts, as well as to those covered, and were limited to a definite, reason-
able, and logical term ; namely, the life of the respective contracts. They con-
cisely and clearly, contrary to the contention of the General Counsel, set forth
their intent. They were read by the parties prior to signing and their
effect, at least in December 1950, was outwardly acknowledged by the Union.
In essence, the contracts stabilized, as Respondent contends, all conditions of
employment for their respective durations. Timken Roller Bearing. Co. v.
N. L. R. B., 161 F. 2d 949 (C. A. 6).
The General Counsel in effect claims that the parties had the duty to confer
in order to establish whether, under the contracts, union security was a topic
foreclosed from collective bargaining. On the other hand, Respondent took the
position that the subject was foreclosed and chose to run the risk of an adverse
Board order. The undersigned believes and finds that inasmuch as this topic
was effectively foreclosed from collective bargaining, Respondent was under no
duty to discuss the pros and cons thereof in order to ascertain whether or not
it was a bargainable topic; moreover, Respondent did explain its position to the
Union concerning this subject. Cf. the unanimous decision by the Board with
respect to grievances in the Jacobs decision, supra. In view of the foregoing,
the undersigned will recommend that this allegation of the complaint be
dismissed.'
5. The alleged bypassing of the Union
The complaint alleges that Respondent bypassed the Union and negotiated
directly with employees relative to a wage increase. As discussed hereinabove,
Respondent gave consideration in the fall of 1950 to the Union's request that it
voluntarily grant a wage increase. At a meeting held in mid-October with the
union negotiating committee, Klopsch, who had cleared the matter with Respond-
ent's main office in New York City, offered a 10 cents per hour voluntary wage
increase if the Union would on its part agree to extend the April 1950 contract
for another year until November 1952, subject only to reopening once, after
November 1, 1951, on the issue of a wage increase. This was rejected by the
Union at the meeting and again in a letter sent to Respondent on October 25i 1950.
The refusal was predicated upon the opposition of the Union to-a 1-year exten-
sion of the contract. The matter then remained dormant for several weeks.
During the second week of November, 215 to 220 identical post cards were
received in New York City through the mail by Chairman Brown of Respondent's
Board of Directors. Each had been mailed from the Los' Angeles area, was
signed by an employee of the Los Angeles plant, and stated as follows :
In the interest of continued good labor relations and as one of your em-
ployees in the Los Angeles Tube Division I am requesting that you grant the
4 As stated, the undersigned deems it unnecessary, in view of these findings, to treat
with Respondent's further defense that the Union in these negotiations engaged in con-
duct violative of Section 8 (d) by attempting to obtain a union-security provision which
was different from the existing, although suspended, maintenance-of-membership provisions.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD °
10 cents per hour voluntary wage increase , without insisting that the Union
extend its Contract for a period of one year.
Klopsch uncontrovertedly testified that Brown telephoned him, after receipt
of the post cards, and asked him to call a meeting of the employees and explain
Respondent's position on the wage increase. Brown added that it would be too
time-consuming to reply to each of the post cards. Klopsch forthwith sum-
moned four employees, whom he deemed to be representative of the various
sections of the plant, in the expectation that they would relay his message to
the remaining employees. He purposely selected four men whom he knew to
be union members and included Edward Parker, president of the Union and
chairman of the negotiating committee, as well as a union steward. This meet-
ing took place in approximately mid-November and the sole testimony on the
meeting is that of Parker and Klopsch. This is the sale incident relied upon under
this allegation of the complaint.
Klopsch testified that he opened the meeting and announced that a large
number of individuals had sent cards to Brown. He stated that it would take
too much of Brown's time to reply to each of the post cards, and that he had
been asked by Brown to advise the employees of the current status of contract
negotiations, inasmuch as the employees had seen fit to contact the chairman
of the board on the subject. He repeated to the employees Respondent's offer
of a voluntary 10-cent per hour wage increase coupled with a contract extension
for 1 year. Parker substantially agreed with the above offer, but claimed that
Klopsch had added that Respondent would not go beyond its offer and that if it
were not accepted in the near future it would be withdrawn and the employees
would receive nothing. Parker stated that he would have to take the matter
back to the membership. Klopsch denied that he had in any way threatened to
withdraw the company offer.
Although the undersigned is of the belief that the actual content of the
speech lies between the two versions, he deems it unnecessary to resolve this
conflict for, even on the face of Parker's testimony, the facts, under the cir-
cumstances herein present, do not warrant a finding that the Act has been
violated. It is conceded that the Union had prevailed upon Respondent to offer
a voluntary wage increase after it had effectively, under the April contract,
bargained away the right to an increase before November 19518 Respondent,
apparently in the interests of contract stability during a period of rising costs,
desired, in exchange, to stabilize its labor situation for another year ; this the
Union opposed and rejected. Respondent was then deluged by in excess of 200
post cards from employees of the Los Angeles plant, acting in individual
capacities.
Klopsch summoned a representative group of employees, including the union
president and chairman of the negotiating committee, and in effect replied to
the post cards.' Inasmuch as the Union had at the time already rejected Re-
spondent's offer, the undersigned believes that Respondent was within its rights
in replying in such fashion to the post card campaign. In view of the long history
of collective bargaining between the parties ; the fact that Respondent had
previously, despite the waiver, voluntarily offered the wage increases ; the post
card campaign and Klopsch's instructions to reply to same ; and the fact that,
in any event, the group included the union president and chairman of the nego•
tiating committee ; this does not impress the undersigned as an attempt to under-
mine the fully recognized collective bargaining representative or as a rejection
I It will be recalled that the April 1950 agreement granted the employees an increase
of 5 cents an hour and contained a specific waiver , discussed previously , of the right
to bargain for the life of the agreement on the various conditions of employment.
DOW JONES & COMPANY, INC. 993
of the collective bargaining principle. Accordingly, the undersigned will recom-
mend that this allegation be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record
in. the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The operations of Respondent affect commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
2. Western Mechanics Local 700, International Union of Mine, Mill & Smelter
Workers, is a labor organization, within the meaning of Section 2 (5) of the
Act.
3. All hourly rated production and maintenance employees of Respondent's
Los Angeles Tube Mill, including mill or production clerks and inspectors, but
excluding foremen, assistant foremen, supervisors, technical and engineering.
employees, timekeepers, watchmen, guards, and office and clerical employees
other than mill or production clerks, constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
4. Since March 14, 1946, and at all times thereafter, Western Mechanics Local
700, International Union of Mine, Mill & Smelter Workers, has been and now is
the representative of a majority of the employees in the above-described appro-
priate unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
5. Respondent has not refused to bargain collectively with Western Mechanics
Local 700, International Union of Mine, Mill & Smelter Workers, and has not
engaged in unfair labor practices within the meaning of Section 8 (a) (5) and
(1) of the Act.
Recommendation
In view of the foregoing findings of fact and conclusions of law, the under-
signed will recommend that the instant complaint be dismissed in its entirety.
In the event no exceptions are filed, as provided by the Rules and Regulations
of the Board, Series 6, the findings, conclusions, and recommendations herein
contained shall, as provided in said Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and order, and all objections thereto
shall be waived for all purposes.
Dow JONES & COMPANY, INC. and Dow JONES EMPLOYEES ASSOCIATION
OF NEW YORK, INC., PETITIONER . Case No. 13-RC-2094. October
1911951
Decison and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Edward T. Maslanka, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Styles].
96 NLRB No. 147.