Phelps Dodge Brass Co.

PHELPS DODGE BRASS CO 361 Phelps Dodge Brass Company and Teamsters Local Union No. 612. Cases 10-CA-18168, 10-CA- 18315, and 10-CA-18404, 10-CA-18370 26 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 24 August 1983 Administrative Law Judge Thomas R Wilks issued the attached decision The Charging Party and the Respondent filed excep- tions and supporting briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 1 and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The Charging Party has excepted to some of the Judge's credibility findings The Board's established policy is not to overrule an administra tive law Judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products , 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for re- versing the findings DECISION STATEMENT OF THE CASE THOMAS R WILKs, Administrative Law Judge This case was tried at Anniston, Alabama, on February 2, 1983, pursuant to various complaints involving 8(a)(1), (3), and (5) violations, and which were consolidated in the complaint which issued October 7, 1982 The only issue is whether or not the Respondent, Phelps Dodge Brass Company, reached agreement on all the terms of a collective-bargaining contract on May 16, 1982, and has since refused to reduce such agreement to writing and execute it in violation of Section 8(a)(1) and (5) of the Act 1 On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of all the briefs filed, I make the following ' All other Issues were settled prior to the hearing, and I granted the General Counsel's motion to sever all but three allegations of the corn plaint and references to other settled portions Only those allegations rdl evant to the issue of whether the Company had committed an 8(a)(5) vio- lation remain to be resolved FINDINGS OF FACT I JURISDICTION The Respondent is a Delaware corporation engaged in the manufacture of brass and copper valves at its Annis- ton, Alabama plant From this facility, it sells and ships annually goods valued in excess of $50,000 directly to customers located outside the State of Alabama Re- spondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICE A Background The Union was certified as exclusive bargaining agent on August 25, 1978, pursuant to a Board-conducted elec- tion which was held on August 17, 1978 A collective- bargaining agreement was entered into on March 4, 1979 By its terms that agreement was to expire on March 4, 1982 In mid-February 2 the Union and the Company com- menced negotiations concerning the terms and conditions of a new collective-bargaining agreement The Respond- ent in these negotiations sought economic concessions which it claimed were necessary for its continued busi- ness viability The negotiations continued past the expira- tion date of the previous contract until the parties reached tentative agreement at the March 19 meeting Only two persons who were present at that meeting were called to testify The members of the Respondent's negotiating team present were the chief negotiator, Vice President of Operations Fred Maxwell, Labor Relations Manager James Collins, Manager of Industrial Relations Bill Caverly, and Steve Halmo, assistant to Collins The Union's negotiating team, which consisted of several em- ployee members, was also present The chief union nego- tiator was Albert Yarborough, union vice president and business agent Collins testified that the complete con- tract proposal offered by the Respondent at that meeting was reduced to writing and consisted of a document marked General Counsel's Exhibit 4 General Counsel's Exhibit 4 consists of a cover sheet headed "INDEX," which lists 28 individually titled articles, each of which is paginated, and which is followed by an enumeration of the provisions of articles V, X-XIX, XXI, and XXVII Collins testified that nothing not reduced to writing was to be assumed but he could not explain why some of the articles listed in the index were not contained in the body of General Counsel's Exhibit 4 which followed the index, and ultimately Collins admitted he was unsure where the missing terms were Somewhat more convinc- ing on this point was Yarborough who testified that General Counsel's Exhibit 4 consisted of proposed changes to the terms of the then expiring contract, and that index references to clauses not explicated in that document reflect the parties' agreement to incorporate extant clauses of the expired contract Furthermore, no 2 All dates are in 1982 unless otherwise specified 272 NLRB No 69 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other explicit evidence contrary to Yarborough's, albeit generalized, testimony was presented on this issue Wil- liam Neal, the General Manager and chief operating offi- cer, later testified in reference to the Respondent's offer of March 19, that "had the membership accepted our proposal we would have had an agreement" I, therefore, conclude that the Respondent's offer of March 19 con- sisted of all the provisions set forth in the body of Gen- eral Counsel's Exhibit 4 and the clauses of the old con- tract referred to by the index but not thereafter specifi- cally set forth in the body of the proposed changes Gen- eral Counsel's Exhibit 4 Not included therein, however, was a commencement and termination date 3 Yarbor- ough's version of the March 19 meeting differs signifi- cantly from Collins' in other respects Yarborough testi- fied that the Respondent's chief negotiator, Maxwell, upon presenting the proposal, strongly asserted that the proposal would be a final offer and that the Respondent was not prepared to make any other reductions of con- cession demands Collins recalls that the meeting includ- ed discussions over a possible strike and that after the final proposal was reviewed and towards the end of the meeting, Maxwell outlined various steps the Respondent would take in the event of a strike These included the employment of additional guards and the recall of 178 laid-off employees Collins then went on to testify that Maxwell concluded these remarks by saying, "in the event of a strike the table is clean "4 The union representatives tentatively agreed to the March 19 offer and subsequently presented the proposal to the membership for ratification on March 26 The membership rejected the offer, and Yarborough later so informed Maxwell On April 2, the Union voted to go on strike Yarborough then informed Maxwell of their deci- sion and requested that Maxwell arrange for Neal to contact him Neal, upon returning from a corporate man- agerial meeting in New York at which he had been ex- plaining the losses the plant had incurred during the first quarter, called Yarborough from his office A conversa- tion on April 6 between Yarborough, Neal, and Maxwell transpired over a speaker phone Neal testified that Yar- borough wanted to know if the issues could be settled and a strike averted Neal responded to this inquiry by outlining the poor financial condition of the Respondent which had suffered losses of almost a million dollars the year before, and was continuing to lose money at that moment Neal testified that he told Yarborough a strike would probably be devastating to Respondent's business and that "if there was a strike and we incurred a lot of additional losses and so forth that when and ever we came back to discussions again we'd have to start all over again" Referring to the March 19 offer, Neal con- tinued, "That's the only proposal we had to offer at that time and if they couldn't take it we'd have to start all , From the record It is clear that only the modifications contained in G C Exh 4 were discussed at the bargaining table Thus there was no negotiation nor explicit agreement on the commencement and termination dates of the new contract 4 No union bargaining committee member was called to testify in cor roboration of Yarborough Maxwell and Caverly are no longer employed by Respondent Maxwell's whereabouts are unknown, and Caverly is somewhere in Virginia Thus, neither of them testified over again in the event of a strike" According to Neal, Yarborough then said he understood the situation and would get back to the Respondent after consulting with the union president, Donald West A meeting was held April 10 in a further effort to settle and avoid a strike This meeting was attended by Yarborough, West, Neal, and Maxwell The conversation which took place was essentially between West and Neal According to Neal, the following transpired West began by stating that the Respondent would have to re- instate holiday and vacation benefits to avoid a strike He said that he had informed Yarborough all along that the membership was not willing to give up these benefits Neal stated that the Company could not reduce conces- sion demands more than they already had, and that "as far as I was concerned we had bargained as far as we could go because of the financial condition of the com- pany, and that anything else, again would be devastating to us" West then responded that "if we didn't give back the benefits there would be a strike, and that he couldn't control what happened after that" Neal then replied that any strike could be devastating, that the Respondent had incurred a one-quarter-million-dollar loss during the first quarter in addition to last year's million-dollar-loss, and that if there was a strike "there was no way in the world [the Respondent] could offer the proposal that was on the table at that time" Neal further testified that he went on to say that "if, in fact, there was a strike, because of the financial implications, we would have to withdraw any offers, any negotiations, any proposal that we had had before because the whole game would have to start all over again Yarborough's recollection of the April 6 conversation and April 10 meeting is generalized and limited 5 He conceded that the Respondent's poor financial condition was repeatedly stressed during the negotiations, and that Neal emphasized the detrimental effect that a strike would have on the Respondent Yarborough testified that he did not "recall" any "profound statements" being made at that meeting and, in generalized testimony, denied that the Respondent ever indicated it was with- drawing its offer 6 On April 13 the employees engaged in a strike which lasted until May 16 The Union, admittedly, was anxious to settle the strike and to reach an agreement During the strike, employees began to cross the picket line and return to work Union officials had heard rumors about the filing of a decertification petition Similarly, the Re- spondent was concerned with its precarious financial condition and worried that a strike could precipitate its financial demise Yarborough testified on redirect examination that he and Maxwell alone had an "off-the-record," clandestine meeting to see if an accord could be reached 7 This meeting was held on May 5 According to Yarborough, Maxwell told him that the "offer" was still on the table 5 West did not testify 6 Yarborough was unsure of the date of the meeting, but testified at one point that it was between April 13 and May 6 I have credited Neal s version as to the date of that meeting 7 As already mentioned, Maxwell did not testify PHELPS DODGE BRASS CO 363 and that "the dialogue at that meeting was that the Union was to come back with some proposal to open the door for the Company to make a final offer, to change their final offer, so we could settle the strike" Yarbor- ough explained further that the two of them agreed to construct a scenario where the Union was to make in- creased demands at a subsequent formal meeting so that the Respondent could then respond with an increased offer The next day, on May 6, a formal bargaining meeting was held at the Union's request It was presided over by a Federal mediator According to Yarborough, the medi- ator called the meeting to order and asked the Union to excuse itself The Respondent then met briefly with the mediator, and the Union was called back to the room The Union was then asked what it had to say, and Yar- borough then said that if some changes in vacation and holiday benefits would be made, a settlement could be reached The Union then sought significant increases in these benefits from the March 19 offer The Respondent then caucused briefly Upon return, Maxwell forcefully reiterated the Respondent's poor financial condition and emotionally asserted that it was not in a position to offer anything more, and that it felt its offer had been liberal, and that if it made another offer it would be "less or nothing" Yarborough testified that "Maxwell raised [sic] to his feet and he was red in the face and in a loud voice he said, 'I'll tell you that the Union and the employees do not understand our problem, and you can tell them they can take the last offer, because the next one will be either less or nothing,' then the meeting ended "8 Collins' version of this meeting differed from Yarbor- ough's Collins testified that Yarborough spoke after the meeting commenced and that "he asked for additional movement on wages, holidays, and vacations—specifical- ly a freeze in 1982 and openers in 1983 and 1984 Then, the Mediator said, '0 K Mr Company, what do you say to that?" Allegedly, Maxwell then said, "What do I say to what? I've not heard any proposal yet" The Union then caucused, and returned with specific proposals as to wages, holiday, and vacation benefits After a Respond- ent caucus, Maxwell responded You've asked for all these things and there's been no mention of all the giving we've done in the rest of the contract Management has taken a salary cut Orders have continued to decline We are not in any better position to accept the propos- al I will take back your message to management, but as far as I'm concerned it is this contract with additional concessions or we have nothing else to say These statements were followed by a short discussion of union violence, and then the meeting adjourned This was the last negotiating session held At a meet- ing of the membership on May 16 the Union voted to accept the March 19 offer and return to work The vote was conducted by the Federal mediator who had presid- ed at the May 6 meeting Yarborough testified that he presented to the membership the same offer which had been proposed by the Company on March 19, and that it was done in the same manner as he had followed in pre- senting this offer for a vote on March 26 Yarborough conceded that he arranged the May 16 membership vote after he had heard of the decertification movement and for the purpose of protecting the employees and preserv- ing the collective-bargaining unit Yarborough informed the Respondent by telegram that day "This is to advise you that the collective bargaining agreement as last proposed by you has been accepted The employees will report to work on May 17" The Respondent sent a telegram to Yarborough within hours of receiving the notice of acceptance The Union received the telegram the next day It stated The offer referred to in your telegram of 5/16/82 was withdrawn both in communication between you and A C Maxwell and in the meeting of 5/6/82 Phelps Dodge Brass Company Employees will be permited to return to work only if job open- ings exist The Company has no contract with Teamsters Local 612 B Analysis I conclude that the parties had reached tentative agreement upon a contract offer placed on the table by the Respondent on March 19 The negotiations out of which this contract proposal arose dealt primarily with concession bargaining from the previous collective-bar- gaining agreement The Respondent suffered severe losses for some time and was struggling for its survival Therefore, the final offer largely reflected reductions from the benefits the employees had received under their old contract As I have previously found the entire offer consisted of a series of enumerated provisions plus those unchanged provisions of the prior contract 9 This offer was rejected by a vote of the membership who then voted to strike There is no question that the offer of March 19 was still on the table at the April 10 meeting between Neal, Maxwell, Yarborough, and West The Union, however, went on strike on April 13 It is Respondent's principal contention that the strike's occurrence had the effect of withdrawing the offer from the table Collins testified that on March 19, when pre- senting the offer, Maxwell stated that "in the event of a strike the table is clean " Neal testified, that in an April 6 telephone call with Yarborough, he said, "We'd have to start all over again in the event of a strike" And, fur- ther, in the April 10 meeting, he told the union repre- sentatives, "if there is a strike, because of the finan- cial implications, [the Respondent] will have to withdraw any offers the whole game will have to start all over again" The controlling principle of law is stated in Pepsi Cola Bottling Co, 251 NLRB 187, 189 (1980) 9 Excluded from the terms was an explicit commencement and termi- ' No other member of the union bargaining committee testified in cor roboration of Yarborough nation date 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A complete package proposal made on behalf of either party through negotiations remains viable, and upon acceptance in tow must be executed as part of the statutory duty to bargain in good faith, unless expressly withdrawn prior to such accept- ance, or defeased by an event upon which the offer was expressly made contingent at a time prior to ac- ceptance 10 Yarborough, the union negotiator, denied that the Re- spondent's agents made references that the offer would be withdrawn in the event a strike took place Indeed, Yarborough's testimony as to the May 5 and 6 meetings alone would, if believed, support a finding that the March 19 offer was in any event placed back on the table The issue of credibility cannot be resolved by resort to inherent probability It can be argued that the Union had dissipated its strength and employee support during the strike and was driven by motivations of desperation to resort to a cunning strategem to manufacture an out- standing offer which had in fact been withdrawn, and that it would have been unreasonable for Respondent to have left unresolved a standing offer which was pre- mised on economic conditions status quo ante a debilitat- ing strike It can also be argued that it was unreasonable and improbable that the Union's chief negotiator could have submitted a revoked offer to the members for ac- ceptance, and reasonable to conclude that Respondent, which had suffered economically as a result of the strike, did not become emboldened to demand stronger terms until the moment it realized that the Union had capitulat- ed at the bargaining table, or had become weakened by internal dissension In the final analysis, the credibility issue must be resolved by an evaluation of demeanor of the witnesses and the probative value of their testimony The General Counsel has the burden of proving the alle- gations of the complaint by the preponderance of proba- tive, credible testimony In this case, that burden was placed upon the testimony of one person, Yarborough However, I find that his demeanor and testimony was less credible than that of Neal or Collins, with the sole exception of the content of the March 19 offer Neal's and Collins' demeanor was more certain, and had that kind of spontaneity indicative of candor They were more convincing and responsive witnesses Their testi- mony, particularly that of Neal, was more detailed and vivid, and tended to supply more of a context for the events Yarborough's denials often took the form of a qualified "I don't recall" nature His testimony was gen- eralized, conclusionary, selective, and elicited by sugges- tive, if not leading, examination Accordingly, I credit the testimony of Collins and Neal where it is contradict- ed by Yarborough as to the status of the March 19 offer '° See generally Penasquaos Gardens 236 NLRB 994 995 (1978) I find that by Maxwell's and Neal's statements the Union on March 19, April 6, and April 10 was informed that in the event of a strike the offer would be with- drawn I, therefore, find that when the employees went out on strike on April 13, that strike by the terms of the offer defeased and withdrew the March 19 offer Fur- thermore, I find I cannot credit Yarborough's uncorro- borated but uncontradicted testimony as to the fact a May 5 secret meeting was held with Maxwell at which Maxwell in effect renewed the March 19 offer Maxwell was present April 6 and 10 when his superior, Neal, in- formed the union representatives of the conditional nature of the offer It is inconceivable that he would take a position contrary to Neal's, particularly at a time when the strike was failing and employees were returning to work By Yarborough's own testimony, Maxwell was genuinely angered by the Union's attempt to negotiate increased benefits at the May 6 meeting Such spontane- ous chagrin is hardly consistent with Yarborough's testi- mony that the May 5 meeting culminated with a consen- sus that the next day the Union would make greater de- mands upon which the Respondent could then slightly alter its proposal I am not, therefore, convinced that the Respondent ever renewed its March 19 offer after the the strike defeased that offer C Conclusion The Union, in the instant case, accepted the March 19 proposal on May 16 Such acceptance was untimely as the offer by its terms lapsed upon the occurrence of the strike on April 13 I, therefore, conclude that a complete and binding agreement was never consummated because the parties never reached a contemporaneous meeting of the minds li For the foregoing reasons, I conclude that the Re- spondent has not violated the Act as alleged in the com- plaint, as amended 12 ORDER The complaint, as amended, is dismissed " The Respondent in its brief raises two additional grounds upon which I am urged to conclude that no binding collective bargaining agreement was ever consummated These are that the Respondent s al leged offer of May 6 was Incapable of forming a complete contract since it called for unspecified additional concessions, and that the purported agreement is defective because It lacks a commencement date and term Based on my disposition of Respondent's principle contention, which was the focus of this litigation at hearing, I find it unnecessary to reach either of these Issues ii 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