Phelps Dodge Min. Co., Tyrone Branch v. N.L.R.B., 953
| Decision Date | 26 April 1994 |
| Docket Number | No. 92-9556,I,AFL-CI,No. 953,953,92-9556 |
| Citation | 22 F.3d 1493 |
| Parties | 146 L.R.R.M. (BNA) 2129, 62 USLW 2720, 128 Lab.Cas. P 11,114 PHELPS DODGE MINING COMPANY, TYRONE BRANCH; Phelps Dodge Copper Products Company, El Paso Rod Mill, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. United Steelworkers of America, International Brotherhood of Teamsters Local 104, International Union of Operating Engineers, Localntervenors, American Mining Congress, Amicus Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Philip A. Miscimarra (Joel H. Kaplan and Amy Hartman, of Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL; and Andrew C. Hartzell, Jr. and Philip L. Harvey, of Debevoise & Plimpton, New York City, were with him on the briefs), of Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for petitioners.
Joseph A. Oertel (Jerry M. Hunter, Yvonne T. Dixon, Nicholas E. Karatinos, Aileen A. Armstrong, and Howard E. Perlstein, N.L.R.B., Washington, DC, were with him on the brief), N.L.R.B., Washington, DC, for respondent.
Melvin P. Stein (John L. Hollis, of John L. Hollis, P.A., Albuquerque, NM, was with him on the brief), of Melvin P. Stein, P.C., Pittsburgh, PA, for intervenors.
Rosemary M. Collyer and Michael A. Bazany, Jr., of Crowell & Moring, Washington, DC, for amicus curiae American Mining Congress; and Edward M. Green, General Counsel, American Mining Congress, Washington, DC, of counsel.
Before TACHA, HOLLOWAY, and KELLY, Circuit Judges.
Phelps Dodge Mining Company, Tyrone Branch, and Phelps Dodge Copper Products Company, El Paso Rod Mill (collectively "Phelps Dodge" or "the company") petition for review of a National Labor Relations Board ("NLRB" or "the Board") decision and order finding that Phelps Dodge violated Secs. 8(a)(5), 8(a)(3) and 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. Secs. 158(a)(5), 158(a)(3) and 158(a)(1). The NLRB applies for enforcement of its order. We exercise jurisdiction pursuant to 29 U.S.C. Sec. 160(e) and (f) and set aside the Board's order. 1
Phelps Dodge operates eight copper mining and processing facilities at five locations in the United States, employing both union-represented and unrepresented workers. Most of the hourly ("day's pay") employees at the Phelps Dodge mine at Tyrone, New Mexico are jointly represented by the United Steelworkers of America ("Steelworkers"), the International Brotherhood of Teamsters, Local No. 104 ("Teamsters") and the International Union of Operating Engineers, Local No. 953, AFL-CIO ("Operating Engineers") under the title "PACT Union". The PACT Union and the Tyrone mine are parties to a collective bargaining agreement covering the period April 1987 through June 1991. The day's pay employees at the El Paso rod mill are represented by the International Brotherhood of Electrical Workers ("IBEW"). 2 The IBEW labor agreement covers the period May 30, 1988 through May 29, 1991. The remainder of Phelps Dodge's employees are unrepresented and work at several "non-union facilities": a rod mill at Norwich, Connecticut; a refinery at El Paso, Texas; a mine at Morenci, Arizona and smelting operations at Hidalgo and Hurley, New Mexico.
Between October 1985 and August 1989, Phelps Dodge made eight payments to the day's pay employees at its different facilities. The amount of these "appreciation payments" or "bonuses" varied, as did the employees who received them, and the payments were made on a random, unscheduled basis.
In March 1990 Phelps Dodge implemented a program entitled the "Phelps Dodge Mining Company Union Free Day's Pay Quarterly Appreciation Payment Program" (the "1990 Quarterly Payment Program"). The 1990 Quarterly Payment Program provides for regular, quarterly payments to Phelps Dodge's unrepresented day's pay employees based on a formula linked to the current commodity exchange price of copper ("Comex price"). The PACT Union and the IBEW then filed unfair labor practice charges against Phelps Dodge, alleging that the exclusion of the unionized employees at the Tyrone mine and the El Paso rod mill from the 1990 Quarterly Payment Program interfered with protected rights, discriminated against union-represented employees and constituted a unilateral mid-contract change.
The NLRB affirmed and adopted the Administrative Law Judge's ("ALJ") decision and order. The ALJ concluded that Phelps Dodge unilaterally changed employment terms affecting the El Paso rod mill and Tyrone mine bargaining unit employees, thus violating Sec. 8(a)(5) of the Act, when it discontinued the 1985-1989 payment program (which covered union-represented employees) and implemented the 1990 Quarterly Payment Program (which excluded union-represented employees) in its place. The ALJ also found that Phelps Dodge violated Sec. 8(a)(3) because it excluded union-represented employees from the 1990 Quarterly Payment Program based solely on their union status. Finally, the ALJ held that Phelps Dodge violated Sec. 8(a)(1) of the Act by using the term "union free" in describing the 1990 Quarterly Payment Program.
We must accept the NLRB findings unless we "cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).
Section 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. Sec. 158(a)(5). Section 8(d) of the Act treats "wages, hours, and other terms and conditions of employment" as mandatory bargaining subjects. 29 U.S.C. Sec. 158(d). Finding that the 1985-1989 payments were existing "terms and conditions" of the union-represented employees' employment, the ALJ concluded that Phelps Dodge violated Sec. 8(a)(5) when it unilaterally discontinued the 1985-89 payment "program" and implemented the 1990 Quarterly Payment Program without notifying and bargaining with the union representatives about the change. Our review is limited to whether substantial evidence supports the Board's finding that Phelps Dodge violated Sec. 8(a)(5) of the Act.
An employer violates Sec. 8(a)(5) of the Act when she unilaterally alters "wages, hours, and other terms and conditions of employment" without first notifying and bargaining with the union. NLRB v. Katz, 369 U.S. 736, 742-43, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). It is undisputed that Phelps Dodge did not notify or bargain with the unions when it discontinued the 1985-1989 payments and implemented the 1990 Quarterly Payment Program. Thus, the critical inquiry is whether the 1985-1989 payments qualify as "wages" or "other terms and conditions of employment."
The 1985-1989 "appreciation payments" or "bonuses" are considered "wages" or "other terms and conditions of employment" "if they are of such a fixed nature and have been paid over a sufficient length of time to have become a reasonable expectation of the employees and, therefore, part of their anticipated remuneration." NLRB v. Nello Pistoresi & Son, Inc., 500 F.2d 399, 400 (9th Cir.1974); see e.g. Century Elec. Motor Co. v. NLRB, 447 F.2d 10, 14 (8th Cir.1971). Payments to employees which are fixed as to timing but discretionary in amount do not become part of the employees' reasonable expectation and thus are not considered "terms and conditions" of employment. See Daily News of Los Angeles v. NLRB, 979 F.2d 1571, 1575 (D.C.Cir.1992). Moreover, "[i]n determining whether a particular practice should be characterized as a term or condition of employment, the Board has examined the regularity of the practice and the way in which the employer has treated it." Guy Gannett Publishing Co., 295 NLRB 376, 378 (1989).
Here, Phelps Dodge made eight payments to various employees during the period 1985 to 1989:
(1) 10-3-85 Paid to employees of all facilities except Norwich, Connecticut rod mill. Twenty hours at employee's straight time rate of pay.
(2) 7-23-86 Paid to all employees companywide. Twenty hours at employee's straight time rate of pay.
(3) 2-87 Paid to employees at the El Paso refinery only. Paid on a two-tier approach, based on either fifty hours or ten hours multiplied by an employee's straight time rate of pay. 3
(4) 8-3-87 Paid to employees of all facilities, excluding the Norwich, Connecticut rod mill, the El Paso, Texas rod mill, and the El Paso, Texas refinery. Twenty hours at employee's straight time rate of pay.
(5) 12-15-87 Paid to all employees companywide. One dollar an hour for hours worked and vacation hours during prior twenty-six week period.
(6) 5-88 Paid to all employees companywide. Eighty hours at employee's straight time rate of pay.
(7) 11-18-88 Paid to all employees companywide. Two dollars an hour for hours worked and vacation hours during prior twenty-six week period.
(8) 8-89 Paid to all employees companywide. One dollar an hour for hours worked and vacation hours during prior twenty-six week period.
From these eight payments, the ALJ concluded that Phelps Dodge's so-called "appreciation payments" constituted "wages" or "terms and conditions" of the union-represented employees' employment. The record, however, does not contain substantial evidence to support the ALJ's conclusion that the eight payments in 1985-1989 were of such a fixed nature to rise to the level of an established "term and condition" of employment.
In Ithaca Journal-News, Inc., the NLRB found that merit increases given to employees were entirely discretionary because the timing, amount and selection of employees to receive the increases had not been determined in any consistent manner. 259 NLRB 394, 395 (1981). Of the thirteen employees eligible for an increase,...
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