Industrial Union Of Marine And Shipbuilding Workers Of America, Afl-Cio

National Labor Relations Board - Board Decisions

Jan 10, 1986

277 N.L.R.B. 1548 (N.L.R.B. 1986)

1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Union -of Marine and Shipbuilding Work-
ers of America, AFL-CIO and Bethlehem Steel
Corporation and Local 33 , Industrial Union of
Marine and Shipbuilding Workers of America,
AFL-CIO. Cases 5-CB-4634, 5-CB-4634-2,
and 5-CB-4642
10 January 1986
DECISION AND ORDER
By MEMBERS DENNIS, BABSON, AND
STEPHENS
On 12 October 1984 Administrative Law Judge
David L. Evans issued the attached decision. The
General Counsel, the Charging Party Employer
(Bethlehem), and the Charging Party Union (Local
33) each filed exceptions and a supporting, brief,
and the Respondent (the National) filed a brief in
response, and a supplemental brief.
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,2
and-conclusions3 and to adopt the recommended
Order.
i Local 33 has requested oral argument The request is denied as the
record, exceptions, and briefs adequately present the issues and the posi-
tions of the parties
Local 33 and Bethlehem have moved to reopen the record to submit
additional evidence. On careful consideration, we have determined that
the additional evidence, if admitted, would not require a different result
in this case We therefore deny the motions
3 The General Counsel, Local 33, and Bethlehem have excepted to
some of the judge's credibility findings The Board's established policy is
not to overrule an administrative 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 Cir 1951) We have carefully examined the record
and find no basis for reversing the findings
In sec IV,B,1, par 10 of his decision, the judge credited the testimony
of the Respondent's vice president, Robert Pemberton, over that of Local
33's executive secretary, James Harmon, concerning a conversation
which, according to Pemberton, took place 12 January 1984 The judge
reasoned inter aha that Harmon's testimony contained an "impossibility,"
because Harmon stated that Pemberton told him Pemberton had seen a
videotape presented by Bethlehem It was undisputed that Pemberton did
not view the videotape until 18 January Harmon testified that the disput-
ed conversation took place "a week or so" after 11 January If credited
in its entirety, Harmon's version of events was not impossible Conse-
quently, we affirm the judge's credibility resolution but disclaim any reli-
ance on his finding that Harmon's version of the events was impossible
In the same section of the decision, par 11, the judge stated that Beth-
lehem's general manager, Francis Long, "according to his own testimo-
ny, did not mention the United States Lines bid" in an 18 January 1984
conversation with representatives of the National We find, contrary to
the judge, that Long did mention the United States Lines bid in his testi-
mony concerning this conversation
In fn 13 of his decision, the judge attributed greater bias to the testi-
mony of Bethlehem's witnesses than to the testimony of the National's
president, Arthur Batson We do not rely on this footnote and make no
finding concerning the bias of any of the witnesses.
3 We disavow any reliance on the distinction drawn by the judge be-
tween written and oral waivers in sec IV,c,3,(a),(1), par 3 of his deci-
sion
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
We likewise disavow his analysis of Connecticut Light & Power, Co., 271
NLRB 766 fn 27 (1984)
The General Counsel and the Charging Parties have excepted to the
judge's finding that Bethlehem and Local 33 executed settlement agree-
ments on 30 March 1984, rather than on 20 March We find it unneces-
sary to decide on which date the settlement agreements were executed
Similarly, we find it unnecessary to decide whether the parties ever
reached a complete and comprehensive collective-bargaining agreement
Nelson A. Levin, Esq., for the General Counsel.
Michael Brodie, Esq. (Freedman & Lorry), of Philadel-
phia, Pennsylvania, for the Respondent.
Thomas J. D'Alesandro III and Jacob Yosef Miliman,
Esqs. (D'Alesandro, Miliman & Yerman), of,Baltimore,
Maryland, for Charging Party Local 33.
Harriet E. Cooperman (Kaplan, Heyman, Greenburg, Eng-
leman & Belgrad, P.A.), of Baltimore, Maryland, for
Charging Party Local 33 on the Brief.
Warren M. Davison, Eric Hemmendinger, and Earle K
Shawe, Esqs. (Shawe & Rosenthal), of Baltimore, Mary-
land, for the Charging Party Employer.
John L. Kluttz, Esq., of Bethlehem, Pennsylvania, for
Charging Party Employer.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. On
August 14, 1981, Bethlehem Steel Corporation and In-
dustrial Union of Marine and Shipbuilding Workers of
America, AFL-CIO (Respondent, IUMSWA, or the Na-
tional Union) entered into two collective-bargaining
agreements which state that they "shall continue in effect
to and including 11:59 p.m. of August 19, 1984." The
two agreements covered Bethlehem's production and
maintenance and salaried plant clerical employees at its
shipbuilding and repair yards on the East Coast: East
Boston; Hoboken; Key Highway (Baltimore); and Spar-
rows Point (also Baltimore). In addition to establishing
terms and conditions of employment of all employees in
these four yards, certain provisions specifically covered
situations existing in individual yards. Participating in the
bargaining with IUMSWA for the 1981 agreements were
four local unions of the four yards: Local 25 (East
Boston); Local 24 (Key Highway); Local 15 (Hoboken);
and Local 33 (Sparrows Point). Representatives of these
Locals signed the 1981 agreements along with (and liter-
ally under) representatives of IUMSWA. During the life
of the 1981 agreements all the shipyards of Bethlehem
Steel closed except Sparrows Point.
On March 30, 1984,1 representatives of Bethlehem
Steel and Local 33 executed documents purporting to
i The complaint alleges that the documents were signed on March 20,
1984, however, as explained herein, I have found that they were signed
on March 30
277 NLRB No. 191
SHIPBUILDERS (BETHLEHEM STEEL)
terminate the 1981 agreements and establish new con-
tractual terms and conditions for employment of the em-
ployees at Sparrows Point for the period April 1, 1984,
through September 30, 1987. IUMSWA objected to the
implementation of the March 30 agreements and took
certain actions against Bethlehem and Local 33. These
actions are the subject of the complaint which alleges
that IUMSWA's action violated Section 8(b)(1)(A) and
(3) of the National Labor Relations Act.
1. CHARGES, COMPLAINT, AND INJUNCTION
On April 13, 1984,2 Bethlehem Steel Corporation
(Charging Party Employer or Bethlehem) filed the
8(b)(3) charge in Case 5-CB-4634 alleging:
Since on or about April 5, 1984, the Union has re-
pudiated, and has failed to recognize and abide by,
a collective-bargaining agreement entered into be-
tween the Charging Party and the Union's author-
ized agent Local 33, IUMSWA, following extensive
bargaining negotiations.
On April 16, in Case 5-CB-4634-2, Local 33 of Indus-
trial Union of Marine and Shipbuilding Workers of
America (Charging Party Union or the Local) filed an
8(b)(3) charge which essentially tracks the charge filed
by Bethlehem against IUMSWA.
On April 24, Local 33 filed a further charge against
IUMSWA in Case 5-CB-4642. This charge alleges that
IUMSWA violated Section 8(b)(1)(A) by filing internal
union charges against, and scheduling for union trial, of-
ficials of Local 33 in order to remove them from office.
On May 1 and 2 the Regional Director issued original
and amended consolidated complaints alleging that: On
February 13 Respondent "gave Local 33 authority to ne-
gotiate a separate colllective-bargaining agreement to
cover employees at the Sparrows Point facility" in the
production and maintenance unit;3 that Local 33 and
Bethlehem "reached full and complete agreement" on
March 20;4 on April 1 the membership of Local 33 rati-
fied the agreement; that on April 2, 1984, Bethlehem put
the agreement into effect; that on April 4 Respondent's
general executive board rejected the agreements. The
complaint alleges as violations:
10. On or about April 16, 1984, Respondent:
(a) Filed a grievance with the Employer concern-
ing the Employer's modification of the 1981 con-
tract "by purporting to enter into an agreement,"
effective April 1, 1984, with Local 33.
(b) Through Arthur Batson [Respondent's presi-
dent] directed James Harmon, Executive Secretary
2 All dates are between September 1, 1983, and May 1, 1984, unless
otherwise specified
2 At trial this allegation was amended to include the Sparrows Point
salaried plant clericals who , although placed in a separate unit , were also
represented by Local 33 and Respondent
' The complaint was amended at trial to reflect that, as well as two
bargaining units, there were two agreements executed by Bethlehem and
Local 33 which are the subject of this case, one agreement for the pro-
duction and maintenance employees and one for salaried plant clericals.
At trial, the parties and witnesses usually referred to the agreement in the
singular, as I shall do here except where necessary
1549
of Local 33 and an employee of the Employer, also
to file the grievance described above in paragraph
10(a) and to send a supportive letter to the Employ-
er demanding arbitration over said grievance.
(c) Through Arthur Batson, sent a letter to James
Harmon informing him that Batson was moving
that Harmon be recalled as a member of Respond-
ent's General Executive Board as a result of Har-
mon's failure to comply with Batson's request de-
scribed above in paragraph 10(b).
11. On or about April 18, 1984, Respondent,
through Arthur Batson, informed Local 33 that a
hearing was scheduled to determine whether Local
33 should be suspended by Respondent as a result
of Local 33's conduct "in negotiating an agreement
... and attempting to effectuate the terms of that
agreement without the participation of [Respondent]
in the negotiations," and as a result of James
Harmon having "disobeyed an order of [Respond-
ent] directing . . . Harmon to join a grievance filed
by [Respondent]," which grievance is described
above in paragraph 10(a).
The complaint alleges that the conduct described in its
paragraphs 10(b) and (c) violated Section 8(b)(1)(A) of
the Act and that the conduct enumerated in paragraphs
10 and 11 further constitutes violations of Section 8(b)(3)
of the Act.
Respondent filed an answer , amended at hearing, de-
nying these allagations of the complaint.
On May 10, the Honorable Judge James R. Miller,
United States District Court for the District of Mary-
land, pursuant to Section 10(1) of the Act, enjoined Re-
spondent from repudiating the agreements reached be-
tween Local 33 and Bethlehem and from taking further
actions to suspend Local 33 or interfere with officials of
Local 33 in effectuating the agreements and from pursu-
ing its grievance against Bethlehem Steel pending final
resolution of this matter by the National Labor Relations
Board.
A hearing upon the complaint issued by the Regional
Director was conducted by me on 10 different dates be-
tween June 7 and 28, 1984.5
After the hearing all parties filed briefs which have
been carefully considered.
II. JURISDICTION
Bethlehem Steel is a Delaware corporation with an
office and place of business in Sparrows Point, Mary-
land, where it is engaged in the business of shipbuilding.
Bethlehem annually purchases and receives at that facili-
ty goods and materials valued in excess of $50,000 direct-
ly from points outside the State of Maryland. Therefore
Bethlehem is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
5 Certain errors in the record are noted and corrected
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. LABOR ORGANIZATIONS INVOLVED
Respondent and Local 33 are now, and have been at
all times material , labor organizations within the meaning
of Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since World War II Bethlehem Steel Corporation has
operated as many as eight shipyards on the Atlantic
Coast. In 1959 Respondent organized the Bethlehem At-
lantic Coast Committee (BACC) to conduct bargaining
on a multiplant basis. BACC consisted of national repre-
sentatives and two representatives of each Local at the
eight shipyards. Since 1959 the shipbuilding business has
steadily declined in the United States; thus, Bethlehem
was reduced to four yards by 1981. BACC continued to
function throughout these years, negotiating 3-year con-
tracts with Bethlehem from 1960 through 1981. At the
expiration of each contract it was the National Union,
not any Local, which served notice to Bethlehem that
renewal bargaining was demanded. The Local Unions
participated in the renewal negotiations by submitting
proposals to the National and having representatives on
various committees. One such committee was the
"housekeeping" committee, the function of which was to
review the expiring contracts for the purpose of convert-
ing side letters to text and eliminating references to
locals and yards which were no longer in existence. The
locals would also conduct "local issue" negotiations with
representatives of the individual yards concerning mat-
ters which pertained to those yards only. While it did re-
ceive input from the locals beforehand, the National con-
ducted the negotiations on issues of general concern,
such as contract duration and wages and other benefits.
It is undisputed that since 1959 the constitutions of the
National Union have contained provisions which vest all
"executive and judicial powers" of the Union in its gen-
eral executive board (G.E.B.) when the National' s annual
convention is not in session. The constitutions have fur-
ther provided:
No agreement or amendment to any agreement
between this Union or any Local or other subdivi-
sion of this Union and an employer shall become ef-
fective or be, or be deemed to be, valid unless said
agreement or amendment (a) had first been ap-
proved by the G.E.B., (b) has been ratified by the
vote of the majority of those members to be cov-
ered by the agreement who vote on the question,
and (c) names this Union as a party to the agree-
ment.
In 1974 Local 33 passed a resolution that its representa-
tive on the G.E.B. request that the National give it
greater numerical representation on the BACC or that it
be let out of the BACC and be allowed to negotiate its
own contract at Sparrows Point. At a G.E.B. meeting
conducted on October 9, 1974, the Local requested the
authority "to negotiate alone in the coming [1975] nego-
tiations with Bethlehem.° The G.E.B. granted this re-
quest by letter of October 11, 1974. The letter added:
The Board also indicated that it wished to contin-
ue the same services to Local 33 as has been avail-
able while it was a member of the BACC, including
negotiations , grievances and arbitration.
Thereafter Local 33 amended its bylaws effective Janu-
ary 10, 1975, in the following particulars:
Article VIII
Agreement and Strikes
Sec. 1. The General Executive Board must ap-
prove all agreements between this Local or any
subdivision of this Local and the Employer before
such agreements must be endorsed by a majority
vote of the members voting by secret ballot, cov-
ered by the agreement before becoming effective.?
After establishing the form of the Local's negotiating
committee, the bylaws further states:
The authority of the Committee shall be subject
to Article VIII, Section 1 [of the bylaws] and the
IUMSWA National constitution.
These bylaws were aproved by the National and thereaf-
ter Frank Derwin (who was then secretary-treasurer of
the National Union and secretary of the BACC) 'ap-
proached Bethlehem in an attempt to bargain for a Spar-
rows Point contract. Bethlehem refused to bargain on a
contract for Sparrows Point apart from the other BACC
yards. Therefore, Local 33 remained a member of BACC
and participated with the other Locals and the National
in the 1975 and 1981 negotiations between the BACC
and Bethlehem.
The 1981 agreement contains the following relevant
provisions:
AGREEMENT dated August 14, 1981, between
BETHLEHEM STEEL CORPORATION, a
Delaware corporation, and INDUSTRIAL
UNION OF MARINE AND SHIPBUILDING
WORKERS OF AMERICA, A.F.L.-C.I.O., an
unincorporated association.
The above-named parties hereby agree as herein-
after set forth in respect of rates of pay, hours of
work and other conditions of employment of the
Employees in the bargaining unit hereinafter in Sec-
tion 1 of Article II (Application of This Agreement)
defined who shall be employed at any shipyard of
shipyards listed in Section 1 of said Article II (Ap-
plication of This Agreement) which shall at the
time be operated by the Company, said Industrial
Union of Marine and Shipbuilding Workers of
America, A.F.L.-C.I.O., acting on behalf of itself
and of the Employees in said bargaining unit.
6 Minutes of the October 9, 1974 G E B . meeting
7 This is an exact quote, the syntax is original
SHIPBUILDERS (BETHLEHEM STEEL)
ARTICLE I--DEFINITIONS
Except as otherwise stated in this Agreement,
whenever used in this Agreement the respective
terms hereinafter in this Article mentioned shall
have the respective meanings hereinafter set forth.
(a) The term "the Company" means Bethlehem
Steel Corporation, a Delaware corporation.
(c) The term "the Union" means Industrial
Union of 'Marine and Shipbuilding Workers of
America, A.F.L.-C.I.O., an unincorporated asso-
ciation. Wherever said term is used with refer-
ence to a particular Yard or Yards, said term in-
cludes the Local or Locals of the Union which is
or are specified for such Yard or Yards in Sec-
tion 1 of Article II (Application of This Agree-
ment) of this Agreement.
The agreement provides for a union shop and the assign-
ment of wages under the checkoff clause to the National
Union. The agreement further specifies the term and
conditions of employment of the employees in the fol-
lowing aspects: hours of work, rates of pay, incentive
pay, overtime, call-in and minimum pay, night-shift
bonus, traveling time allowances, extra compensation for
work under "dirty" condlitions, vacations, seniority,
safety, sanitation and health, military leave, apprentice-
ship and training, division of work, assignment of work,
tool allowance, grievance procedure and arbitration, and
a no-strike, no-lockout clause. The contract concludes
with the following article:
ARTICLE XXV-TERM
Section 1. Except as otherwise expressly provid-
ed in this Agreement, this Agreement shall become
effective on the date hereof and shall continue in
effect to and including 11:59 p.m. of August 19,
1984.
During the life of the 1981 agreement, there was one
midterm modification negotiated by Bethlehem with
both the National and the Local. The modification was
brought about by Bethlehem's having entered bidding
competition to secure a Navy contract called TAKX. To
improve its bidding position, Bethlehem wished to have
a longer no-strike commitment. Accordingly, after nego-
tiations, by letter of understanding dated June 3, 1982,
the parties entered into the following agreement:
This will confirm our understandings with re-
spect to the August 14, 1981 Labor Agreement as it
affects only the Union-represented employees at the
Sparrows Point, Maryland, shipyard.
It is the party's intent to make a good-faith effort
to reach a Labor Agreement in 1984 negotiations. If
they are unable to do so, however, the "no-strike,
no-lockout" restriction imposed on the Union, the
Employees, and the Company by Article XV of the
1981 Agreement shall apply with full force and
effect until the conclusion of the TAKX program.
1551
This letter of understanding was signed by Anthony P.
St. John and Frank Long on behalf of Bethlehem Steel;
Frank Derwin and Authur E. Batson for the National
Union; and James Harmon and Alvin Spencer Shiflett
for Local 33. St. John was then the chief of Bethlehem's
industrial relations department and Long was his imme-
diate subordinate. Derwin was the president of the Na-
tional Union and Batson was its secretary-treasurer.
Harmon was the secretary-treasurer (and principal offi-
cer) of Local 33 and Shiflett was the Local's president.
In October 1982 the Key Highway facility was closed
and Sparrows Point was left as Bethlehem's only yard on
the East Coast. Also in October 1982, the National held
a convention in Kissimmee, Florida. At this convention
Derwin retired, Batson became president of the National,
and Harmon became a member of the G.E.B. Harmon
and Shiflett testified that during the course of that con-
vention they approached Batson at the swimming pool of
the hotel at which the convention was held. According
to Shiflett and Harmon, the three men discussed the pos-
sibility of moving one employer's contract from Local 33
to another local of the National Union. Shiflett and
Harmon further testified that after conclusion of this dis-
cussion Batson made a comment regarding the decline of
the shipbuilding industry. According to Harmon, Batson
said, "Well, you're finally going to get your wish. You're
going to be able to negotiate your own contract because
other repair yards are closing down. Harmon testified
that he replied: "Well, Local 33 has always wanted to
negotiate its own contract. That's unfortunate that it hap-
pened this way. We don't want to see our brothers and
sisters close down." Shiflett's testimony is essentially
identical. Batson denied any such conversation with Shi-
flett and Harmon.
Batson was a far more impressive witness than
Harmon or Shiflett, and I credit his denial. But even if I
were to credit the testimony of Harmon and Shiflett, I
would not find, based thereon, that Batson granted the
Local bargaining powers completely independent of the
National as argued by the proponents of the complaints.
As quoted above, the National's constitution had re-
quired the National to be a party to all contracts, and
therefore a participant in all contract negotiations for
decades. In essence, the proponents of the complaint
argue that the conversation in Kissimmee extinguished
that constitutionally prescribed relationship between the
National and its Local. Usually, such institutional reorga-
nizations are accomplished by more formalisms than
pool-side chats. Such was the case in 1974 when the
G.E.B. granted Local 33 bargaining rights for the 1975
negotiations. This came to nothing as Bethlehem refused
to negotiate with Local 33 apart from the BACC, but
what is significant is that the matter was handled by the
full G.E.B. by written instrument which reserved the
function of the National to participate' in negotiations, as
well as subsequent grievance and arbitrations. That is, in
addition to Batson's having a more credible demeanor, I
do not believe the newly elected Batson took it on him-
self to jettison the National's constitution a3,d vest Local
33 with plenary bargaining rights exclusive of the Na-
tional.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Facts of the Case
1. Negotiations between Bethlehem and Local 33
In August 1983 Bethlehem's industrial relations depart-
ment was reorganized and renamed the human resources
department . Long became chief of that department and
notified Batson that month that , thereafter, step 3 griev-
ances which were to be appealed to arbitration should be
referred to him . Long and Batson already had a relation-
ship in which they freely contacted each other, some-
times several times a week . Prior to the events of this
case , Long had no such relationship with Harmon.
Long testified that since 1981 Bethlehem 's shipbuilding
division has lost bids on 36 of 37 contracts because of
high labor costs. (TAKX was the only exception.)
On October 12, Long, accompanied by his assistant
Steven F . Sullivan, met with Harmon and Shiflett in
Harrisburg, Pennsylvania . According to Long:
The purpose of the meeting was to ask the Union
if they would entertain our request to begin early
negotiations in order to bring our employment costs
into a competitive posture.
According to Long, Harmon and Shiflett refused to dis-
cuss early negotiations unless there was a particular job
or contract which Bethlehem had to bid on. As Long
testified, the term "early negotiations" was employed to
indicate negotiations for the purpose of securing a con-
tract to replace the one then in effect. When asked why
he met in October with the local representatives , without
representatives of the National , Long testified:
Because there isn't any point in going to the Nation-
al to make a request like that without going to the
Local first because if the Local isn't going to be at-
tuned to it or approve it, the National won't either.
It is disputed that representatives of the National Union
were given no notice of this October 12 meeting be-
tween Long , Sullivan , Shiflett, and Harmon.
On November 18 Long met with Batson in an arbitra-
tion session conducted by permanent arbitrator Laurence
Seibell . While there was at this time an obvious opportu-
nity to bring the matter up, Long did not mention to
Batson his previous contact with the local representa-
tives, or the request for early negotiation.
On December 8, Long and Batson met again to discuss
the possibility of settling the same grievance . This meet-
ing was conducted without the presence of Arbitrator
Seibell. After this meeting Long gave to Batson a sum-
mary sheet listing the various shipyards in the United
States. It included those which were represented by the
National and its locals and those which were not. The
document reflected that labor costs at Sparrows Point
were much higher than all but one other shipbuilding
yard in the United States . According to Long, Robert
Pemberton (Respondent 's vice president and secretary
treasurer who accompanied Batson) observed that Avon-
dale Shipyard in Alabama was in a much more favorable
bidding position than Sparrows Point. No comment was
made by Batson . Long made no request of Batson; spe-
cifically, he did not request that early negotiations begin
and he did not mention that he had previously asked
Local 33 to enter early negotiations.
Long testified that during Christmas week Bethlehem
Steel was invited to bid on the construction of four to six
oceangoing vessels by United States Lines. The job en-
tailed the usage of 1.2 to 3 million man-hours in a period
of 3 to 4 years.8 Long further testified that as a result of
receiving this invitation he met with Harmon and Shiflett
on January 10 and again requested early negotiations.
Harmon and Shiflett agreed to meet with Bethlehem rep-
resentatives and the Local's full negotiating committee
on January 11, which they did. Neither Long nor any
representative of Local 33 informed Batson (or any other
representative of the National) that Bethlehem and the
Local had met on January 10 and intended to meet on
January 11.
On January 11 Long and other members of Bethle-
hem's negotiating committee met with the full negotiat-
ing committee of Local 33 . At this meeting the Local's
negotiating committee was shown a tape which Bethle-
hem intended to show to the employees . The videotape
lasted approximately 25 minutes . It consisted of state-
ments by two of Bethlehem 's officials regarding the
status of Bethlehem 's position in the industry and the
foreseeable future of the Sparrows Point yard. A tran-
script of the videotape was received in evidence. Ac-
cording to the transcript, Bethlehem 's officials stated that
Bethlehem had no work scheduled beyond September
1985 when the TAKX program would be completed. At
the end of this videotape presentation Long asked the
Local representatives again to begin early negotiations in
order to help Bethlehem submit an, attractive bid to
United States Lines. The Local 33 negotiating committee
agreed on that date to enter such early negotiations. Nei-
ther Long , nor any other representative of Bethlehem,
nor any representative of Local 33, informed Batsos or
any other representative of the National that on January
11 the Local agreed to early negotiations.
On January 12 Long called Batson and told him that
Bethlehem had a videotape it intended to show the em-
ployees in the shipyards and asked Batson to review it
first. Batson and Long agreed to meet on January 18 for
the purpose of reviewing the videotape which had been
shown to the Local the day before. Long did not men-
tion that he had shown the tape to the Local negotiating
committee the day before and, specifically, he did not
mention that the Local had agreed to early negotiations
on January 11.
Also on January 12 Harmon called Pemberton at the
National Office. According to Harmon:
I called Bob, asked him-I told him that we had
seen the video and that Frank Long had said they
were going to show it to the National. I asked him
if he had seen it, he said yes. I asked him if he
would go over the rates [which Bethlehem had
8 Long testified that labor and material costs are roughly equal on such
ships, assuming this to be correct , and that the labor costs at Sparrows
Point to be accurately reflected on the compilation given Batson and
Pemberton on December 8, the price of such a contract could be up to
$600 million
SHIPBUILDERS (BETHLEHEM STEEL)
given Harmon on January 11] and get back with me
and let me know if they were accurate because the
company wanted to enter early negotiations, and
before our Local made any decision , we wanted to
confirm those rates.
Pemberton testified that Harmon called him and only
asked what the first-class mechanic 's rates were at two
other shipyards. Pemberton testified that he said that he
would look it up and call Harmon back, which he later
did.
To the extent they differ, I credit Pemberton. Har-
mon's account of the telephone conversation includes an
impossibility: it is undisputed that the National had not,
at that point, seen the videotape mentioned by Harmon
and there is no reason that Pemberton would have said
that he had seen it. Harmon's account further contains an
implicit falsehood; according to the testimony of Long,
the Local had already agreed to enter early negotiations
and Harmon 's call was not an attempt to gather informa-
tion to decide whether to respond to a request for early
negotiations . Finally, I do not believe that , assuming
Pemberton was paying attention at all to what Harmon
was saying, Pemberton would have left unchallenged
Harmon's statement that "early negotiations" were being
contemplated by the Local and the National . In summa-
ry, the General Counsel has not met his burden of prov-
ing that I should credit Harmon over Pemberton in de-
termining what dialogue occurred during this telephone
conversation.
On January 18, Batson and Pemberton met again with
Long and Sullivan. The videotape was shown to Batson
and Pemberton and they were given a transcript of the
presentation . Portions of the transcript upon which the
proponents of the complaint rely as notice that Bethle-
hem was seeking early negotiations are:
If you and I are to be here at the yard working, in
October 1985, their three things would have to
happen and happen soon . . . . The costs of doing
business would have to be reduced to a more com-
petitive level so that .. . the yard can compete
more effectively for the few jobs that are available,
and . . . we must win a major contract to continue
working here, The very survival of our yard is at
stake . . . . Keeping Sparrows Point alive would
require sacrifice by everybody in this yard. .. .
Management personnel have already taken a 5 per-
cent reduction in pay. They've also seen their
health, pension and other benefits reduced . Most of
them have lost a week's vacation and more benefit
reductions are coming. But Management can't do it
alone.... I am convinced that if we work together
we can make it happen. It's urgent that we start
now! You'll be asked to make some sacrifices-like
those management has already made.
At the conclusion of videotape presentation, according
to Long:
I told [Batson] that we had shown the videotape to
Local 33's negotiating committee and that we in-
tended to show the tape to all the employees in the
1553
shipyard immediately . And further to that that . .
the general manager of Human Resources, would
be available on a scheduled basis to answer any
questions that any employee had on any of the con-
tent of the videotape . I told Mr. Batson that" we
were in dire straits ; that we had no work beyond
TAKX, and that we had to do something to en-
hance our bidding position . He indicated that he un-
derstood our problem and he indicated a willingness
to help if he could . I told him that there was a very
significant problem in the yard not being able to get
work and the fear of it closing.
Long, according to his own testimony , did not mention
the United States Lines bids , or that Bethlehem was then
in bidding competition with any other shipyard , or that
Bethlehem and Local 33 had agreed to begin early nego-
tiations . Batson denied that he expressed a "willingness
to help"; indeed , Batson testified that he challanged the
message of the videotape . Batson testified that he told
Long that essentially the same message had been given
to the employees by videotape in 1981 (which was true),
and that Bethlehem had belied itself by stating then that
each division of Bethlehem Steel would have to stand on
its own two feet , but thereafter shipbuilding yards had
been closed because the Corporation was losing money
because of imported steel.
Long further testified that at this January 18 meeting
Batson stated he had attended a White House conference
and officials there had stated several United States ship-
yards would be closing in the near future , including the
Sparrows Point yard. According to Long he responded:
I indicated that under those circumstances , Bethle-
hem Steel did not intend for the closing of Spar-
rows Point to occur by our forfeiture. I told him
that I was concerned about getting in the middle
between the National and the Local. . . . I told him
that I wanted him to know what I was doing and
that a meeting had been scheduled with Local 33's
negotiating committee in the Poconos on February
8-9 to discuss with him a new comprehensive medi-
cal plan that had been put into effect by the Com-
pany for all Bethlehem's salaried employees , includ-
ing the members of management and supervision in
the shipyard.9
Although Long testified that he told Batson that he
wanted him to know what he and the Local were doing,
according to his own testimony he did not tell Batson
that the Local had agreed to early negotiations.
Batson denied that at the January 1 8 meeting Long
said anything about being in "the middle between the
National and the Local " or made any statement at this
meeting about the relationship between the National, the
Local , and Bethlehem . Batson testified that Long stated
he was setting up a meeting "sometine in February" in
the Pocono Mountains with the "Local guys," not the
Local negotiating committee. Batson acknowledged that
9 Just when Long and the Local had agreed to meet in the Poconos is
not disclosed by the record
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Long "invited us, along with the Local to attend that
meeting." Further according to Batson , Long statetd that
reservations would be made for two nights at $116 to
$118 per night and that the presentation regarding the
supervisory insurance program would take about 2
hours. When Batson complained about the cost, Long of-
fered to show the National the program at a later time.
Batson agreed to go up to the Poconos for 1 day to hear
the presentation.
To the extent they differ , I credit Batson over Long in
determining what happened at this January 18 meeting.
In addition to Batson 's having a more credible demeanor,
Long was clearly hiding from Batson the fact that the
Local had already agreed to early negotiations. Long
told both the National and the Local that he would keep
the National apprised of what was going on, but he did
not. Long was asked on cross-examination and testified:
Q. Did you tell Mr . Batson that you were meet-
ing with the Local 's negotiation committee for the
purpose of conducting early negotiations by which
the existing collective -bargaining agreement would
be modified?
A. No. In my conversations with Mr. Batson, it's
unnecessary to go into those details. He and I had
been dealing together for a long time.
Long was further asked on cross-examination:
Q. And on January 18, you told [Batson] you
wanted him to know everything that you were
doing.
A. I didn't say-I don't think my affidavits says
"everything."
Q. Oh, you had reservations about what you
wanted him to know you were doing; is that cor-
rect?
A. There are many things that I do that are not
of his concern , or my wife's concern , or I don't tell
him everything I'm doing.
The matters being discussed between Harmon and Long
were Batson's concern, as Long very well knew. It is
clear for this record that although Long told both
Harmon and Batson that Batson would be kept informed,
he did everything but inform Batson of what was tran-
spiring between Local 33 and Bethlehem Steel. There is
no reason to believe that Long was any more candid in
court than he was with Batson in these matters. Long
has created a most unfavorable impression with me by
his testimony that he told Batson that he wanted him to
know what was going on while it is clear that he was
simultaneously hiding the fact that he had met three
times with the Local and had gotten its agreement to
enter early negotiations , a matter which would have a
most profound impact on the National.
It should be noted at this point that Batson and
Harmon have had a strained relationship since 1981.
However, the source of their problems had nothing to
do with Bethlehem , and there is no evidence that the dif-
ferences between Batson and Harmon had ever had any
impact upon the relationship between Bethlehem and the
National or Bethlehem and the Local before the events
described herein.
Batson credibly testified that on the way back to his
office from the January 18 meeting with Long, he and
Pemberton discussed the proposed meeting about the in-
surance program for nonrepresented employees and su-
pervisors10 and the time and trouble it would take to go
to the Pocono Mountains . Batson told Pemberton that
since Long had offered to show the program to the Na-
tional representatives at a later date, he would take Long
up on the offer when he talked to him again.
Long testified that on the evening of January 18 he
called Batson at his home. According to Long:
The matter which was discussed was the relation-
ship as I saw between the officers of Local 33 and
the National Office. . . . I told him I was con-
cerned because of-I was concerned about the posi-
tion the company was in in dealing on the one hand
with the National and on the other hand with the
Local, because there were very hard feelings, in my
judgment, from what I have heard, from what I
have seen. . . . I told Mr. Batson that I was con-
cerned about my position vis-a-vis the Local and
the National because there [were ] very very bad re-
lations, if you will , bad blood between the National
officers and the Local officers, and that this was
creating , or I could foresee a problem growing in
continuing to meet with the Local on the one hand
and the National on the other . And I could see that
nothing was going to come out of it in essence that
would-everything that would come out of it
would be to the detriment of the company and I
simply expressed that concern to him for that
reason.
Long did not testify as to what, if anything , Batson re-
plied and he did not explain why he brought these mat-
ters up to Batson in a late night phone call . Also, Long
did not testify as to what he meant by "continuing to
meet with the Local" and when he had not, as then, told
Batson that he had met with the Local at all.
Long further testified that within "2 or 3 days" after
January 18 Batson told him:
That he would not be able to attend the meeting in
the Poconos, generally because the Local-it was
indicated that the Local didn 't want them to attend
so that he would not attend.
Long did not say how he was contacted by Batson and
did not testify that he made any response.
According to Batson there was only one conversation
regarding meeting in the Poconos and his telling Long
that he would not attend According to Batson, Long
called him at home in the evening on January 20:
'd Both Long and Batson agreed that Long stated that the purpose of
the Pocono meeting was to give a presentation about the insurance pro-
gram which had been instituted for nonrepresented employees and super-
visors That is, it is undisputed that Long did not tell Batson that he in-
tended to engage in any negotiations in the Poconos , including specifical-
ly any "early negotiations "
SHIPBUILDERS (BETHLEHEM STEEL)
His [tong's] opening words on to me saying hello
was, "I got a real problem ," he said, "this is real
bad." He said, "There is bad blood , bad blood."
And I didn 't relate to what he was talking to. I
says, "What 's wrong? What are you talking about?"
He repeated the same things, "Bad blood, bad
blood." And I says, "Well, what is it about Frank?"
And he said , "The Local guys are all upset and
don't want you and Bob to go to the Poconos."
I says, "Well , that's no real great problem." I
says, "I don 't understand what its about." ... But,
I says, "I intended to call you early next week and
beg off the meeting, tell you that we would rather
see the presentation at another time." He continued
again with "bad blood," and he then named Jim
Harmon and Spence Shiflett as really being bitter
about us going to the Poconos . And I said , "Well,
Frank, if there is any bad blood , its not coming
from us, or from me, to them." I said , "Jim is on
the General Executive Board . I treat him the same
as the other General Executive Board members. So,
I don't know what the bad blood is you are refer-
ring to. It's not coming from me."
Further according to Batson , Long stated he did not
want the "bad blood" between Harmon and Batson to
destroy or hurt the friendship that Long had with
Batson . Batson further testified that he assured Long that
it would not.
To the extent they differ I credit Batson . Specifically,
I find that it was Long telling Batson that the Local rep-
resentatives did not want Batson there and not Batson
telling Long that he would not come because he was not
wanted. There is no evidence of any contact at this time
between Harmon or Shiflett and Batson which would
have caused Batson to conclude that the Local did not
want him at the meeting and there is no reason why
Batson would say such a thing to Long.
On January 26 and 27 the Local and Bethlehem met
again , this time in Bethlehem , Pennsylvania. Long testi-
fied that the Company called the meeting "to get from
the Local its reading of the reaction of the membership
to the showing of the videotape and to exchange with
Local 33's negotiating committee our reading of the
membership reaction to the showing of the videotape."
Neither Behtlehem or Local 33 advised Batson or any
other official of the National that the meeting of January
26-27 was scheduled ; at the time the meeting occurred
the last information Batson had was that the Local and
the National were going to meet in the Poconos some-
time in February for the purpose of giving the Local the
presentation on the insurance program which had been
instituted for supervisors and nonrepresented employees.
At the January 26-27 meeting , according to Long,
Bethlehem and the Local discussed employees' reaction
to the videotape and "beyond that we took advantage of
the time available in the meeting to address a compre-
hensive medical plan that was going to be shown in the
Poconos on February 9. We had the full-blown presenta-
tion by Mr, Morgan with the videotape, the explanation
of the comprehensive medical plan, and then we began
to address other aspects of employment costs which the
1555
Union might look at to bring a reduction in the employ-
ment costs." 11
Long testified that at the January 26-27 meeting Beth-
lehem "showed" the Local 33 negotiating committee
(consisting of Harmon, Shiflett , and three employee-
members) "ways in which the vacation schedule might
be altered so as to reduce vacation costs." Long told the
Local 33 negotiating committee that the present contract
had 13 holidays and the average in the industry was 10
and that they ought to look at giving up 3 holidays; he
told them what kind of cost saving that would be. Long
further testified that: "We also had prepared , in advance
of the meeting, a scheme if you will , or a proposal, for a
two-tier wage structure without any cost figures at-
tached, but simply a scheme and we presented that to
the Union." Long testified that Local 33 gave a violent
rejection" to the proposed comprehensive medical plan
but "reserved commitment " on the other proposals.
Long testified that at this January 26-27 meeting
Local 33 and Bethlehem negotiators agreed to meet in
Ocean City, Maryland, on March 15 and 16 to exchange
"formal proposals" at that time , and that the parties
would meet again in Beaumont , Texas, the week of April
9.12
On February 8 and 9 Bethlehem's representatives and
Local 33's negotiating committee members did meet in
the Poconos. According to Long they went over the in-
surance cost matters, discussed management deficiencies
in the shipyard and:
In addition to that, we began housekeeping of the
labor agreement , by principally taking the side let-
ters that are in the back of the book and bringing
them forward, incorporating into the body of the
main agreement the local issues that had been nego-
tiated over the years, at Sparrows Point shipyard,
deleting references to the yards that were closed,
and changing the agreement from the National
agreement to a Local agreement.
When asked why the Local and the Company began
housekeeping at that point Long replied:
Because that is a normal and routine function of the
routine negotiations , as I indicated earlier.
Harmon also testified that it was at this February 8-9
meeting in the Poconos the Company and Local 33
began deleting references to the National from the 1981-
1984 contract. According to Harmon, Local 33's negoti-
ating committee initiated the proposal to take the Nation-
al Union out of the existing contract and admitted that
no one from the Local informed the National of such
proposals before making them to Bethlehem.
It is undisputed at the time of the February 8-9 meet-
ing, at which time the proposals to delete the National
11 Long did not explain how Morgan was present and then prepared
to present the insurance program previously scheduled for February 8-9
11 The reference to Beaumont, Texas, is essentially extraneous to this
case Representatives of Local 33 and Bethlehem did take a trip to Beau-
mont at some point during the events of this case, but the purpose is not
clear in the record. Local 33 did not represent any employees at Bethle-
hem's Beaumont shipyard although the National, of course, did
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the existing agreement were made, the last informa-
tion Batson had was that the meeting would concern
only an insurance program which Bethlehem had insti-
tuted for supervisors and nonrepresented employees; and
Batson had not been informed of the January 26 and 27
negotiating meetings conducted by the Local and Bethle-
hem.
On February 15 Batson and Long had another tele-
phone call. According to Long's testimony, on which
the General Counsel heavily relies:
Q. What was the substance of that conversation?
A. I, told him that, first of all, that the compre-
hensive medical plan that I had talked to him about
earlier had in essence turned out to be not worth-
while discussing with him further because of an ad-
verse IRS ruling on it.
I told him that we had been engaged in house-
keeping on the agreement and explained the house-
keeping situation to him. I told him that we' had es-
tablished a future negotiating schedule [with] formal
exchange of proposals in Ocean City on March 15
and 16, and I mentioned to him the trip to Beau-
mont.
I told him in the course of during the housekeep-
ing, we were changing the agreement from a Na-
tional agreement to a Local agreement. He asked
me that if in the course of that, Mr. Harmon was
Xing out the National completely. I told him that
that was pretty, much true.
I said to him that Mr. Harmon had indicated that
there was precedent for that in that Bath Iron
Works signed with Local 6, that Quincy had signed
with Local 5, and that in the recent past . . . Mary-
land Dry Dock had entered into an agreement that
did not have National approval.
Mr. Batson refuted Mr. Harmon's assertions with
respect to Local 5 and Local 6, saying that those
agreements were with the National, and explained
that the Maryland situation was an aberration be-
cause of an inadequate or an insufficient wage set-
tlement which went counter to a policy that Mr.
Batson and Mr. Derwin had at that the time, and
that the National officers simply refused to sign it.
He said, however, that his lawyers had been
urging him to get out of the matter of signing
agreements-the better way to go would be to have
the Local sign with the Company and that way the
National would be protected against suits. I told
him that under the circumstances, that I was ex-
tremely squeamish about proceeding the way I was
without. his, involvement; [t]hat we had future meet-
ings and that we were changing the agreement and
that it was giving me heartburn. He said that Mr
Harmon and Mr. Shiflett did not want them, mean-
ing Arthur Batson and Bob Pemberton, and that we
should go ahead without them. I said, "Arthur, I'm
still having problems with this; I want you to think
about it. If you have any problem with it, please get
back to me." And I repeated if you have any prob-
lem with this, please get back to me.
Q. Did Mr. Batson ever get back to you about
that?
A. No, he did not.
Batson testified that he called Long on February 15
because Pemberton had advised him that Harmon had
told Pemberton that he (Harmon) had seen the insurance
presentation. Batson testified that he called to find out
why Long had not called him to set up a meeting re-
garding the insurance issue. According to Batson, Long
stated that the insurance turned out to be something the
National would not be interested in. Further according
to Batson:
He said he was having a real problem. He said that
James Harmon had made proposals to eliminate the
references of the National Union from the contract.
He expressed concern about this. This was getting
him in the middle, and he didn't-again, didn't want
to hurt the relationship with us. And I said, to him,
I said, "Well Frank, Jim Harmon cannot make pro-
posals-cannot take the National Union out of the
contract. We are a party to the contract." I says,
"You know, what can he do to take us out of there?
... I-As I said, Frank was expressing his concern
of what Harmon was-of what James Harmon was
trying to do and in the middle of this thing and was
appealing to me to-what could be done about this
to not let this happen, and he was warning me of
what Harmon was trying to do. . . . I said, I told
Frank that we had a-this was Wednesday now, so
Monday, the following Monday was the beginning
of our meetings in Atlantic City, our next scheduled
General Executive Board, and I would discuss that
with James Harmon at the Board meeting.
To the extent they differ, I credit Batson over Long.
It is too much to believe that Long told Batson that the
National's existence was being removed from the con-
tractual relationship and that Batson did no more than
say that he had been advised by his lawyers to cease the
practice of signing contracts to avoid potential liability.
Batson was well aware of the National's constitutional
requirement that the National be a party to any contract
entered by any Local. He would not have, with a mere
shrug of the shoulders, betrayed the Union's constitution
and his responsibilities under it. That is, there is no
reason to believe that Batson would have left unchal-
lenged Harmon's intent, as expressed by Long, and I do
not. Because of this reason, and Batson's more favorable
demeanor, I credit Batson's account of the February 15
telephone conversation over Long's. 13
13 At the hearing the General Counsel took pains to bring out that
Batson retained seniority at another shipyard which was bidding for the
U S Lines contract From this the General Counsel would have me con-
clude that Batson was unduly biased Batson is a middle-aged man who
appears unlikely to return to the world of manual labor, even if the other
yard gets the contract and even if Batson gets thrown out of his (com-
fortable) office some day I firmly believe that the more undue bias was
possessed by Long (and Sullivan) whose employer had lost 36 to 37 bids
and which was desperate to get labor costs lowered
SHIPBUILDERS (BETHLEHEM STEEL)
On February 21 and 22 the National Union had its
quarterly G.E.B meeting. Harmon testified that at the
end of the meeting on February 22:
Arthur Batson said to me, he said, "Jim, I received
a telephone call from Frank Long and that you are
taking out all references to the National Union in
the contract."
And I said, "Yes, basically that's true."
He said, "Well, you realize you will be the only
local doing that," he said, "negotiating your own
contract." He says, "as the national president," he
says, "I am demanding that four safeguards for the
National Union be in that contract." He said, "I
demand that the vice president, secretary-treasurer
determine eligibility as far as good standing; that
the checkoff stay intact as it is; that the National be
able to enter the yard any time they want to investi-
gate complaints; and that they have some kind of
clause that protects Key Highway, East Boston,
Hoboken and the other yards that have closed
down if Bethlehem would reopen."
He said, "If you get those four safeguards, you
have my approval to negotiate your own contract."
He says, "But you realize Local 33 will be the only
local negotiating its own contract without the Na-
tional Union being a party to it."
I said, "Arthur, I know Maryland Dry Dock has
its own contract."
And he said, "That was a feud we had with the
management over there. It had nothing to do with
the union." He said, "We just was fighting with the
company and we wouldn' t sign it or approve that
contract."
I said, "Well, Arthur, I guarantee your four safe-
guards will be in the contract." And that was the
end of the conversation.
(It is to be noted that there is nothing in Harmon's ac-
count of the exchange between himself and Batson re-
garding "early negotiations" or negotiations which
would lead to opening the contract which did not expire
until August 19.)
Batson testified that the meeting of February 22 was
scheduled to begin at 9 a.m.; however, the start was de-
layed because one member of the G.E.B. was tardy.
Batson testified that he was sitting at the head of a con-
ference table in the meeting room with Robert Pember-
ton, vice president and secretary treasurer, Frank
Derwin, past president and president emeritus of the Na-
tional Union, Arthur Durand, secretary treasurer of
Local 5 in Quincy, Massachusetts, and Harvey Line-
berry, president of Local 24 at Key Highway which, by
this time, had closed. Harmon, also a member of the
G.E.B., was sitting at the same end of the table waiting
for the meeting to begin. According to Batson and Pem-
berton, Batson instructed Pemberton to use the telephone
located in the room to call the tardy member and get
him out of bed, if necessary. Further according to Batson
he used the time to address Harmon on the issue of his
communications from Long. According to Batson:
1557
I had intended to discuss the situation with Jim
earlier and it came back in my mind to discuss what
had happened, and I used that opportunity to speak
to Jim. I leaned over, as Arthur Durand testified,
and said, [to Durand) "Pay attention to this conver-
sation," and then I did speak to Jim.
[I] said, "Jim, I had a conversation with Frank
Long and during that conversation Frank informed
me that you were making some proposals to elimi-
nate references to the national union from the con-
tract. Is that true?"
Jim did not respond and . .. I waited for a few
seconds for his response and he did not respond so I
said , "Jim, just let me interject this, that certain
things have to be in the contract. We are a party to
the contract and certain things have to be in the
contract such as the check-off business, the secre-
tary-treasurer of the National's rights to discharge a
member if they are in arrears in their dues, such as
the National representatives being able to enter the
shipyard to represent employees and our participa-
tion in the grievance procedure."
Jim then said to me, "All I've been doing is some
housekeeping."
And I said , "Well, okay, ][ can understand and
appreciate housekeeping. I know that there are a lot
of situations in regard to housekeeping that pertain
to the other shipyards since their close, and some of
the issues in regard to the BACC."
I said , "I understood that there were housekeep-
ing- things that would have to be done due to the
fact that the other shipyards had been sold or out of
business , and any event, and that the BACC, as it
was written in the book, certainly had changes to
be made to it."
Harvey Lineberry then interjected that, "Don't
forget that Local 24 is-the yard is still open, Local
24." And I said , "I had that in mind , also."
I said to Jim, "Whatever you do, I want to be in-
formed and I want to see what you are doing."
He said, "No problem. I will keep you informed
of anything I'm doing."
This testimony of Batson was fully supported by
Durand, Lineberry, Derwin, and Pemberton (who re-
turned from his telephone call and caught the end of the
exchange between Batson and Harmon). I fully credit
this testimony of Batson, as supported by the four other
G.E.B. members present, and discredit Harmon.14
On February 29 David Watson, general manager of
the Sparrows Point shipyard, and David Klinges, vice
president, of Bethlehem's shipbuilding division, met in
New York City with officials of the Unites States Lines.
According to the testimony of Watson, U.S. Lines in-
formed Bethlehem that Bethlehem had submitted a com-
petitive bid, but costs were still too high. Watson relayed
14 Spencer Shiflett and his wife, Deborah , testified that on the day fol-
lowing the convention , at the same hotel , they met Batson in the hotel
lobby at which time Batson stated that the Local could negotiate its own
contract as long as "safeguards" were included Batson denied this testi-
mony and I found him credible in that denial
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thes information to Sullivan and Long who set up a
meeting with Shiflett, Harmon, and Local 33's negotiat-
ing committee. These meetings were scheduled for
March 2, 3, and 4. The National was given no notice
that these meetings were to occur. 15
Shiflett testified that on March 19 Pemberton called
the Local 33 hall to urge Shiflett and Harmon to contact
their congressman regarding the award of a large ship-
building contract not involved herein. Shiflett testified
that he then told Pemberton that he could not talk be-
cause he was on the way to Ocean City to meet with
Bethlehem Steel and was in a hurry because negotiations
were getting "hot and heavy."' Pemberton credibly
denied that there was any mention of any negotiation
with Bethlehem Steel, during this conversation.
(I have discredited the General Counsel's evidence
that during the March 1 and 19 calls between Harmon
and Shiflett and Barnes and Pemberton "negotiations"
were mentioned. However, assuming that the word was
used , there is nothing in the testimony of Harmon and
Shiflett that would have conveyed the impression the
plenary negotiations , as opposed to "housekeeping," was
going on ; and, certainly , there is nothing in their testimo-
ny that would have indicated to Barnes or Pemberton
that Local 33 and Bethlehem were negotiating midterm
modifications of the agreement which was to expire on
August 19. Also, it is to be noted that these three com-
munications upon which the proponents of the complaint
rely as evidence that Batson knew of the actual time of
the negotiations between Local 33 and Bethlehem were
not those initiated by Local 33 in an effort to give the
National notice that plenary negotiations were conduct-
ed. The mention of the negotiations, which I have dis-
credited, was purely incidental to the calls made and re-
ceived between Harmon and Shiflett and Barnes and
Pemberton. That is, even according to the testimony of
Harmon and Shiflett, the Local representatives were
then making no conscious attempt to inform the National
representatives of what the Local and Bethlehem were
doing.)
On March 28 , Batson was at a conference in Washing-
ton, D.C., when he called. his office in Silver Spring,
Maryland, to check for messages . His bookkeeper asked
him if he had seen the morning Baltimore Sun and
Batson replied that he had not. The secretary read
Batson an article which related that a "tentative agree-
ment"'s between Local 33 and Bethlehem Steel would
is Shiflett testified that on March 1 he called Earl Barnes , Respond-
ent's , regional director for the Baltimore region to tell him that an arbitra-
tion in which Sheflett, Harmon, and Barnes were involved had to be re-
scheduled because "we had just met with the company and we had to get
our bidding rate lower . that negotiations were going to be getting
hot and heavy because we had to lower our bidding rate " Harmon testi-
fied that he called Barnes on the same date and delivered essentially the
same message . Barnes credibly denied that either Harmon or Shiflett told
him that the reason they wished to change the arbitration date was that
Local 33 was involved in negotiations with Bethlehem (The arbitration,
which did not involve Bethlehem , was canceled anyway because of the
illness of the arbitrator )
16 The practice of the parties was to refer to unratified agreements as
"tentative agreements "
be presented to the membership for ratification on
Sunday, April 1. The article further stated that the
agreement was to run from April 1 to September 1987;
that it provided for a freezing of wages for current em-
ployees and a reduction of wages and benefits for em-
ployees hired after March 31; and that a new profit-shar-
ing plan was included.
Batson returned to his office in Silver Spring, Mary-
land, and attempted to call Harmon. Failing to reach
Harmon, he called Long. According to the credible testi-
mony of Batson:
I said, "Frank, what is this shit in the newspaper
about a tentative agreement?"
Frank said, "What is in the newspaper is true."
I said , "What do you mean, it's true? When did
we negotiate?"
He said, "I told you we were negotiating."
And I said, "When did you tell me that?"
He said, "I told you that on a couple of occa-
sions."
"Frank, you never told me anything about nego-
tiations. We open negotiations with you- through
our office, through communications." I said, "I
have [bad] no communications with you of negotia-
tions."
And he said that they-again, that he had in-
formed me about this. I asked him when and he re-
ferred to showing me that the tape in-on January
18th. I said, "You showed me a tape and that meant
you were in negotiations?"
He said , "That was that it intended to do."
[He] also told me that he informed me in February
that Jim Harmon was making proposals to take the
National Union out of the contract. I said, "Well,
what happened in that regard?"
He said, "You are out."
I said , "What do you mean we are out?"
He said, "You are out of the contract."
I said , "In reference to-can I enter the shipyard,
can a National representative enter the shipyard?"
He said, "No."
I said , "Can a National representative, or does
the National participate in the grievance proce-
dure?"
He said, "No."
I said, "What about the secretary-treasurer being
able to discharge a person if they are in arrears in
dues?"
He said, "Don't hold me to it, but," he said, "I
believe the recognition clause is intact," he says,
"but I will have to let you know that for sure. I am
not positive."
I asked him if, and this was with a bit of sarcasm,
I asked him if Jim Harmon took out the clause that
would allow a local officer . . . such as himself to
get a leave of absence and hold his seniority if he
went to work for the National union or became a
National officer.
He said in a laughing voice, "Oh, he made sure
that stayed."
SHIPBUILDERS (BETHLEHEM STEEL)
I said , "Well, ]Frank," I said , "Jim Harmon
cannot negotiate us out of the contract . That con-
tract is with us . We have a contract until August
19th."
He [Long] said that he was aware of the contract
we had until August 19th. He said, "This is a new
tentative agreement to replace that contract."
Long testified:
[Batson] told me that he had been apprised of the
settlement . . . and he continued that you, Bethle-
hem Steel, Frank Long, or however you want to
put it, still have an agreement with me, and I re-
sponded that I had now had an agreement that su-
perceded and has appropriately replaced that old
agreement.
Long offered some additional testimony which was
denied by Batson ; however, to the extent they differ I
credit Batson who impressed me more favorably as a
witness in general , and on this conversation particularly.
Later in the afternoon Harmon returned Batson's call;
on the line with Harmon was Shiflett. According to the
credible testimony of Batson the following exchange oc-
curred at that time:
I asked him about the agreement. I said , "What is
this business with this tentative agreement, Jim?"
He said, "I tried to get ahold of you and tried to
call you to let you know this was happening last
night."
I said , "Well, why didn't you get me last night?
Why didn't you call me at the office?" "How come
I have to read this in the newspaper or get this
report from a newspaper that you have reached a
tentative agreement?"
And he said he's gotten busy, "I haven't had a
chance to call you."
I then said, "What is Frank Long referring to
when he says that the National Union is out of the
agreement?"
He said, "That's not true."
I said , "Well, Frank says it is true, and I specifi-
cally asked him about items and he said that we are
out. I find no items that we're in."
He said, "You are still in the agreement except
for the changes we made relative to the housekeep-
ing of taking out the BACC stuff and their refer-
ences to the other shipyards."
I said , "Well, you've got a vast difference of
opinion than what he says."
[He] said he would send me two copies of the
tentative agreement, because I had said I had not
received anything except what I saw in the newspa-
per. He said he would send me two copies of the
tentative agreement.
According to Harmon the following exchange occurred:
He asked-he said he had read in the newspaper
that we had reached a tentative agreement. He
1559
wanted to know if it was true. I told him yes: He
asked me if the newspaper article was-did it ex-
plain the major portions of the tentative agreement.
I told him yes, it did. He was upset that we reached
a tentative agreement and had not been informed,
which Spence Shiflett and I both apologized for.
We felt that-we expressed to him that we should
have contacted him before the news release had got
out and we apologized, that we'd just been hectic,
and we'd been running aroung doing-printing up
the tentative agreement, that we've been in Execu-
tive Board meetings and we were just doing, you
know, all the things it takes to get a contract out to
the members.
And that he made comments that-he made a
comment that were safeguards in the contract. We
told him yes, they were. He mentioned the four
safeguards again in detail and we expressed the fact
that those four safeguards would be part of the con-
tract. And he said that, "When are you voting on
[it]?"
I said , "Well, April 1st," and [gave] him the
times. I said gust like the newspaper article said, be-
cause it was in the newspaper. He asked him if I
would send him a couple copies of the tentative
agreement, which I immediately mailed to him.
And he said, "There had better be a place for the
National to sign in this contract." And that sort of
caught me off guard because up until then, you
know, I, with out other conversation was under the
impression that the National wasn't interested in ne-
gotiating a contract. And I told him that, you
know, I didn't figure that would be a problem if he
wanted to sign.
Shiflett testified consistent with Harmon. Batson
denied that there was any mention of "safeguards" or
that he had said anything about the National's wanting to
sign a tentative agreement in this conversation.
Harmon testified that he then sent a letter to Batson
enclosing a copy of the tentative agreement which, fur-
ther according to Harmon, was reached on March 20.
The letter states:
Dear Brother Batson:
Enclosed you will find two (2) copies of the
"Tentative Agreement". These are the only changes
in the Contract.
All of the safeguards that you requested concern-
ing the National Union are still in the Contract, as I
assured you they were at the G.E.B. meeting in
February.
Before signing the actual Contract [Shiflett] and I
will send to your office the actual Contract, includ-
ing all side letters and Local Issues that are now
being incorporated into the Main Agreement for
your approval.
It was not my understanding that the National
Union wanted to sign our New Contract, but, I can
assure you that it surely is not a problem with
Local #33's Negotiating Committee.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If you have any further questions concerning our
new Contract please don't hesitate to call.17
Batson admitted receiving this letter but credibly denied
that the copy of the tentative agreement was enclosed.
Batson further credibly testified that when he did receive
this letter , enclosed was a summary of the agreement
(called a "flyer" by the parties) which had been mailed
to the employees who were to vote on the tentative
agreement.' 8
As to the substance of the conversation between
Harmon (with Shiflett on the line) and Batson, the credi-
bility resolutions are difficult. The proponents of the
complaint argue that Harmon would have been clairvoy-
ant to have constructed a letter reflecting the "safe-
guards" that Harmon claimed Batson demanded at the
February joint executive board meeting and demanded
again in the telephone call of March 28 if such demands
had not been made. I disagree. I do not believe that Re-
spondent's four witnesses to the exchange of the Febru-
ary G.E.B. were committing perjury; all had a credible
demeanor and were consistent on all significant points.
Moreover , I do not believe that Harmon was unaware
that a "case" was being constructed . It is clear that he
was in consultation with Bethlehem Steel at every point
in the events leading to this case and that Local 33 and
Bethlehem are far too sophisticated not to have realized
by March 28 that they were heading for some sort of
legal action over this matter. I believe Harmon 's letter
was an exercise in case-building and nothing more. Be-
cause of this reason , and Batson 's more credible demean-
or, I discredit Harmon's testimony, and Shiflett's, as to
the conversation between Harmon and Batson on March
28.
After the March 28 conversation with Harmon (and
Shiflett on the line), Batson called Long again. Accord-
ing to Batson the following exchange occurred:
[I] told Mr. Long that I had had the conversation
with Harmon and Shiflett and that they say we are
not out of the agreement.
Frank says, "Arthur , let me assure you that you
are out."
I said , "Frank, we cannot be out. How can you
assure me that we are out when we can't be out,"
and I says, "Harmon says we are in, which one of
you guys is telling the truth?"
He said, "I assure you that you are out, but we
are willing to put you back in."
I said , "How do you propose to do that?"
17 An "actual contract" or a complete contract reflecting both the
items negotiated by Local 33 and Bethlehem and what remained of the
agreements between Bethlehem and the National has never been signed.
Only one complete proposal has been made ; this was given to Harmon
by Sullivan during the 10(I) hearing before Judge Miller. (The proposal
makes it unequivocally clear that Bethlehem intended the National to
have no rights thereafter, except the meaningless "right" to investigate
grievances which it could not press because it was removed from partici-
pation in the grievance procedure)
16 Certainly , if the tentative agreement was not signed until March 30,
as I have found infra, Harmon could not have enclosed a signed copy of
the tentative agreement as he testified See the discussion below
He said, "We have-we have machinery through
Mr. Sullivan, Steve Sullivan has two sets of docu-
ments ; one with the National out and one with the
National in ." And Mr. Long said , "I will be willing
to have Mr. Sullivan come to your office and go
over this with you to insert what you want back
in.,,
I said, "That's fine to have Mr. Sullivan come to
my office. I will do that if Mr. Harmon and Mr.
Shiflett also come to my office so that there is no
dispute as to what's in and what's out. I will be
willing to do that."
He said that he would have Mr. Sullivan contact
me to try to set up such a meeting.
I then continued my discussion about my disap-
pointment with the agreement. I said, "Frank, you
know I feel like somebody sold my car."
And he laughed. I said, "I am part owner in this
thing and you guys sat down and sold it and just
left me out. I didn't have any way. Where is my
agreement that runs through to the 19th?"
He said, "That's why I've got a problem. That's
what I have been trying to tell you. I'm in the
middle."
[I said,] you are in the middle, you put yourself
in the middle, I didn't do it." I says, "Where am I
now? You are in the middle and I'm out. I said, "At
least , you are someplace."
Long did not testify about this second conversation with
Batson on March 28; this testimony of Batson stands un-
rebutted, and I find it credible.19
Batson testified that during the evening of March 28
he received from other persons copies of the flyer which
Local 33 had composed for mailing to the membership
for purposes of discussion at the ratification meeting
which was scheduled for April 1. Batson testified that he
called Harmon and told him:
The the terms of the tentative agreement reflected
by the flyer were "just unbelievable" and he did not
know how Harmon would get General Executive
Board approval."
Harmon asked what Batson meant about G.E.B. approv-
al, and Batson read him section 19 of the constitution
quoted above. According to the undisputed testimony of
Batson:
He [Harmon] told me that he would not sign any-
thing until we made that decision, the G. E.B. made
that decision. He spoke for me [sic] and Spence. He
said, "Spence and I will not sign anything."
19 The conflict between what Long and Harmon told Batson about the
National's status under agreements between Local 33 and Bethlehem con-
tinued through their testimony at the hearing. Long testified that it was
the intention of the negotiators of Local 33 and Bethlehem to excise the
National from the agreement, Harmon testified that the National was not
out of their agreement, and was a party; Sullivan testified that Local 33
and Bethlehem intended that the National be a party to the extent it
wished to be a party
SHIPBUILDERS (BETHLEHEM STEEL)
Batson also criticized terms of the profit-sharing agree-
ment and the reduction of holiday and insurance benefits
for new employees and the fact that employees would
get no wage increases during the life of the agreement.
Batson also told Harmon that he (Harmon) knew that
the 41-month duration exceeded the National Union's
policy that contracts not exceed 36 months. Batson ac-
knowledged that in this conversation Harmon told him
that the membership of Local 33 was meeting on April 1
for purposes of a ratification vote. It is undisputed that
Batson did not request or order Harmon not to conduct
the vote.
On March 29 Batson received a call from Sullivan
who said that Long had asked Sullivan to get together
with Batson for purposes of reinserting the National into
the agreement. Batson said he would meet with Sullivan
if Harmon and Shiflett were there also. Batson said he
would call Local 33 about such a meeting. Batson then
called Harmon to inform him that he was scheduling a
special G.E.B. meeting to review what Harmon had ne-
gotiated with Long. Batson told Harmon the meeting
would be the following week in New York City at a
named hotel. Batson also told Harmon that Sullivan was
attempting to set up a meeting for the purpose of putting
the National back into the contract, but that he would
not meet with Sullivan without Harmon or Shiflett.
Harmon told Batson that he was too busy to attend and
would have Shiflett call him. (The next day Shiflett ad-
vised Pemberton that, because of postsurgical problems,
he would not be available for such a meeting.)
On the same day, March 29 Batson called Long and
told him "that I have set up a General Executive Board
meeting to vote on the contract." Batson further told
him that "there were going to be difficulties with the
General Executive Board." Batson told Long that the
main problems were the duration of the contract (be-
cause it exceeded the National's policy of 36 months)
and the two-tier wage systems (which was contrary to
AFL-CIO policy). Long asked Batson to communicate
with him after the G.E.B. meeting and Batson promised
to call Long when it was over.
Batson testified that on the afternoon of March 30 he
and Long spoke again by telephone. Batson told Long
that Shiflett and Harmon had said that they were un-
available to meet with Sullivan and that he (Batson) had
instructed Pemberton to attempt to get other members of
Local 33 's negotiating , committee to meet with him and
Sullivan. Batson testified that he and Long also "con-
firmed" that they would be in communication after the
G.E.B. meeting which was scheduled for April 4.
When relating the March 29 conversation with Long,
Batson testified:
I am trying to recall one statement, whether it
was in this conversation or Friday's [March 30]
afternoon conversation, and I am not positive about
this one statement. It could be either one or the
other.
But he told me in either one of those two conver-
sations, and I apologize for not knowing which one
exactly, that nothing would be signed until he heard
the results of the General Executive Board's vote.
1561
While Batson was unsure of which conversation Long's
statement was made in, he clearly testified that, on either
March 29 or 30, Long told him that nothing would be
signed until after the G.E.B. meeting. This testimony
stands unrebutted, and I find it credible.
After this conversation with Long, Batson was advised
by Pemberton that Shiflett would not attend the meeting
with Sullivan. Batson told Pemberton to call Sullivan
and cancel their proposed meeting for that day.
On the following day, March 30, Local 33 and Bethle-
hem executed two documents, each entitled "Settlement
Agreement." One settlement agreement purported to
cover the Sparrows Point production and maintenance
employees, the other the salaried plant clerical employ-
ees. The reasons for my finding that the documents were
signed on March 30, and not March 20 as alleged in the
complaint, are enumerated below in subsection 4.
2. Ratification and implementation
On April 1 Harmon and Shiflett conducted a meeting
of membership of Local 33. By the time this meeting was
convened the employees had received the flyer outlining
the terms of the two agreements with Bethlehem Steel.
Harmon acknowledged on cross-examination that he did
not mention to the ratifying employees that the National
had been negotiated out of any relationship with Bethle-
hem. The members in two units, as they had done in pre-
vious ratifications, voted on the contracts together. The
tally was 625 to 400 to ratify both agreements
Harmon notified Long of the ratification vote on April
1. Bethlehem placed' the settlement agreements into
effect as of the date; wages and benefits of any employ-
ees hired thereafter were reduced; wages of current em-
ployees were frozen; cost-of-living adjustment was re-
duced; and a new profit-sharing program was instituted.
Bethlehem submitted a new, and lower, bid to U.S. Lines
on April 6. (The contract for the ships had not been
awarded at time of trial.) Profit-sharing payments were
distributed to employees on April 11.
3. G.E.B. reaction
On April 4 the special G.E.B. meeting was held in
New York City. All members of the board were present
except two. Pemberton, secretary of the National, took
notes at the meeting and then made a "synopsis" of those
notes. The synopsis was received in evidence after coun-
sel had an opportunity to examine the notes actually
taken at the meeting.
According to Batson's testimony and the synopsis of
Pemberton's minutes (which are consistent with 'that tes-
timony), Batson began the meeting by saying that the
meeting was called because a tentative agreement had
been reached between Bethlehem Steel and Local 33;
that the National had not been a party to the agreement
and "we were not knowledgeable of it coming to be";
and that he would turn the chair over to Harmon to
report on "how this happened." Harmon' began reading
from a statement which included references to exchanges
between Long and Batson to which Harmon had not
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been a party. 20 Batson interrupted Harmon and stated
that the meeting had been called to review the contract
and not to review some statement Harmon and Long had
created.
Batson did respond to some remarks made by Harmon
including, according to the synopsis made by Pemberton:
Harmon at the G.E.B. meeting on Feb. 22, 1984 and
in front of Derwin, Durand, Pemberton, and told
him that Long told me about the housekeeping be-
cause of other yards and that you Jim were propos-
ing to take National out of the contract. That you
had plan [sic] meeting for Beaumont, Texas &
Ocean City, Maryland. You told me that wasn't the
intent that any changes that were to be made that
you would inform us in advance of the contract. No
one from the Company or Local 33 sent us a letter
or ask us to participate in the contract talks. There
was no letter, no document, no knowledge that any
proposals were made except the usually [sic] house-
kept [sic] that really is not in negotiations.
Batson then reviewed the flyer which had been sent to
the employees.21
Batson first took issue with the introductory statement
on the flyer that Local 33 had "reached a tentative
agreement . . . it protects our members ' wages and bene-
fits." Harmon said it protected everyone who was work-
ing at the time; Batson stated that "members are mem-
bers when they become members and you do not protect
members' rates in my estimation." Batson referred to the
flyer's statement that unions across the country had been
making major concessions; Batson stated that the mem-
bers of UMSWA had been on strike since September 15
and had not yielded to such concession demands. (This
was in reference to a situation in Pittsburgh with another
employer.) Batson pointed out that the hire-in rate had
been reduced to about 50 percent; Harmon replied that
he was ' protecting workers who were then employed.
Batson stated that the flyer was incorrect where it said
there were no cuts in pay for presently employed mem-
bers because they no longer had a $1 cost-of-living al-
lowance; Harmon acknowledged that that was true, but
asserted that the profit-sharing agreement would more
than make up the difference.
Batson observed that the profit-sharing provisions re-
lated on the flyer contained no guarantees; Harmon then
produced a letter from Long guaranteeing a $2 payment
for the first year (only) of the contract. In response to
comments by Batson, Harmon also acknowledged that
there would be cuts in tool allowances, night-shift bonus,
and "dirty money" to employees hired after March 31.
Batson read other provisions which cut vacations and ex-
tended eligibility periods for holiday pay and insurance
20 The statement was to the effect that Batson was told by Long nego-
tiations were going on between Local 33 and Bethlehem Steel and that
Batson told Long that he approved of such negotiations.
21 Harmon testified that at the meeting the G.E.B members had copies
of a settlement agreement, and that is what was reviewed To the extent
they differ, I credit Batson on this point The synopsis by Pemberton re-
lates that the "tentative agreement" was outlined by Batson by numbered
paragraphs This number system is consistent with the flyer and not con-
sistent with the numbering of the settlement agreements
benefits for employees fired after March 31. Batson fur-
ther read a provision which limited all newly hired em-
ployees to their (reduced) hire-in rate with no chance for
progress. Batson pointed out sick pay benefits had been
reduced and that an employee absent at the first of a
quarter could lose all benefits for nimself and his family
for the entire quarter. Harmon replied that a "council"
would be established to review such situations although
that was not written in the tentative agreement. Batson
responded that this and certain elements of the profit
sharing were, by Harmon's admissions, not reduced to
writing.22
During the meeting Batson related that he had re-
ceived telegrams from various locals asking the G.E.B.
to reject the agreement and that he had received a call
from an employer-competitor of Bethlehem asking when
the same concessions could be made for it. Several of the
G.E.B. members who had not yet spoken then made var-
ious critical remarks about the proposed tentative agree-
ment. A motion was made to reject the agreement. All
except Harmon voted for rejection. At the end of the
meeting, according to the credible testimony of Batson,
executive board member Charles Zaruba addressed
Harmon and stated:
Before we break this meeting up, Jim, you heard
the vote. What do you intend to do?
Jim said-Jim Harmon answered, "I will-I will
do what the Board has directed me to do."
At that point the meeting broke up but Batson and
Pemberton and two other members stayed in the room
while Batson called Long. Batson told Long that the
G.E.B. had voted to reject the tentative agreement.
Long asked where that put the parties. Batson replied:
It puts up with an August 19 agreement that is
still in effect and the willingness to sit down and see
if we could do something to resolve the problem.'
And I added that that was part of the Board's posi-
tion.
Frank said, Frank Long said to me, "We have a
tentative agreement and the tentative agreement is
in effect."
I said, "What do you mean by that?"
He said, "It means that it replaces the other
agreement."
And I said, "Then, you're saying the August 19
agreement is gone without us having given it up?"
And he said, "That is correct."
At the completion of the call, which Batson estimated
to have taken about 1-1/2 hour, Batson reconvened the
executive board meeting. Several members had left but
all, except Harmon, were located and returned to the
room. At that point a motion was made and carried that
Batson contact Respondent's attorney and get what legal
assistance it needed to correct the problem.
22 Harmon testified that Batson stated at the G.E B. meeting that the
tentative agreement would be acceptable after August 19, but not before
Batson credibly denied this remark
SHIPBUILDERS (BETHLEHEM STEEL)
By letter of April 5, Batson informed Long:
You are hereby advised that the negotiating com-
mittee of Local No. 33 had no authority to enter
into any agreement by which the presently effective
collective-bargaining between Bethlehem Steel cor-
poration and the Industrial Union of Marine and
Shipbuilding Workers of America, AFir CIO,
would be terminated and/or modified prior to the
expiration date thereof, namely, August 19, 1984.
The Industrial Union of Marine Shipbuilding
Workers of America, AFL-CIO, considers your
company bound by the terms of the presently effec-
tive agreement and will take all steps necessary to
compel compliance with that agreement.
On April 16 the National filed a grievance against Beth-
lehem Steel contesting the validity of the settlement
agreements and seeking arbitration. Also on April 16
Batson called Harmon and told him that he wanted the
Local to file the same grievance against Bethlehem.
Harmon refused. Batson thereupon sent Harmon a letter
stating that he was removed from the G.E.B. for failure
to join the National Union's grievance against the Com-
pany-
On April 18, by letter of that date, Batson informed
Harmon and Shiflett that the National Union was insti-
tuting proceedings to suspend Local 33 for violating the
National Union's constitution and a directive of the
G.E.B. The letter contained a notice of hearing sched-
uled for April 27.
These actions by the National toward the Union were
premised on the Union negotiating the "March 20"
agreement and refusing to join the National in a griev-
ance to set aside that agreement with Bethlehem Steel.
Respondent's attempt to process its grievance with
Bethlehem, and its actions toward Harmon and the
Local, were enjoined by Judge Miller under Section
10(j) of the Act, as previously mentioned.
4. The date of the settlement agreements
The complaint, as amended, alleges that contracts
were executed by representatives of Local 33 and Beth-
lehem Steel on March 20, 1984. The allegation of the
date is denied by Respondent and, of course, the General
Counsel has the burden of proof on this issue. I find that
the General Counsel has failed to meet that burden for
the following reasons.
In October and January, Long told Harmon and Shi-
flett that midterm (or "early") negotiations were neces-
sary because the very vitality of Sparrows Point ship-
yard was at stake. The members of Local 33's negotiat-
ing committee accepted Long's representations and
began early negotiations on January 11. The products of
these negotiations were two contracts; one for 2000
hourly employees, the other for 50 salaried employees.
The contracts, each entitled "Settlement Agreement,"
are both dated by typewriter. The dates on the two con-
tracts are in the upper right-hand corners of the first
pages, a most salient position. The date on both contracts
is, "March 30, 1984." The typewriting of the two con-
1563
tracts, each consisting of several pages, is without flaw,
and both contracts contained many recitations of numer-
als. Each contract was signed by seven individuals; the
two company negotiators (Long and Sullivan) and the
five Local 33 negotiating committee members (Harmon,
Shiflett, Godsey, Richardson, and Case.)
The effect of Sullivan's testimony is that the typist
(who was otherwise flawless) made the same mistake
twice on the two different contracts and none of the
seven signatories of the documents (which purportedly
represented the preservation of 2000 jobs and the salva-
tion of the shipyard) noticed the errors. This is too much
to believe, and I do not.
There was no testimony offered as to how the seven
signatories could have missed such an error on March
20. In fact, there was no testimony at all of how the doc-
uments were finally composed, typed, and signed. In
their testimony Long, Harmon, Shiflett, Case, and Sulli-
van were initially led to testify that the contracts were
signed on March 20. (The other signatories, Richardson
and Godsey, did not testify.) Only Sullivan was asked
any questions about how the dates on the contracts (re-
flected in C.P. Emp. Exhs. 24 and 25) were altered. His
testimony on direct examination was no more than that
the initials by the alterations were those of Shiflett and
himself; that "I believe it was on March 28"; and that he
and Shiflett initialed the documents when Harmon "was
in the other room on the phone." There was no detail as
to how the "typographical errors" were discovered or
where or how he, Shiflett, and Harmon got together on
March 28, or why Harmon was not asked to join in the
alterations.
Additionally, as noted above, Batson testified that after
he was given the newspaper account on March 28, he
called both Long and Harmon and both men told him
that nothing would be signed until Batson and the
G.E.B. had a chance to review the contracts that Behtle-
hem Steel and Local 33 had reached. This testimony was
unrebutted, and it is compelling evidence that the settle-
ment agreements had not been signed as of March 28.
Finally, Harmon first testified on cross-examination
that the parties met "several days" after March 20 to
work on "some contract language and some position and
premium rates." He added, "Things were pretty hectic
between March 20 and April 2. There was quite a bit
going on. The next couple of days after March 20 we
were meeting off and on, several meetings. And then
after-we had a meeting on the cost-of-living." On redi-
rect examination (and after a lunchbreak), Harmon
changed his testimony to indicate that the "several meet-
ings" were on one date, March 20. His retraction had an
especially hollow ring, and I believe his testimonmy on
redirect examination to have been false. I believe Har-
mon's original testimony on cross-examination; this testi-
mony clearly demonstrates that no settlement agreements
could have been signed on March 20.
In summary, I believe, and find, that the two settle-
ment agreements were signed on March 30, as originally
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
typed, and altered at some later point to reflect falsely
that they had been signed on. March 20.23
C. Analysis and Conclusions
1. Summary of facts
To summarize the facts as I have found them: In 1981
Bethlehem Steel, the National, and Local 33 entered con-
tracts' which were not to expire until August 19, 1984.
The contracts were modified once,, midterm, by execu-
tion'of'an agreement by all three parties on June 3, 1982.
This agreement specified that the parties would "make a
good faith effort to reach a new labor agreement in 1984
negotiations."
Long had had limited contact with the Local before,
but during the fall of 1983 he initiated contact with
Local 33 to begin "early negotiations"; that is, to open
and modify the 1981 agreements . Long's object, of
course, was to lower Bethlehem Steel 's labor costs. Long
testified that his initial approach was to Local 33, rather
than the National, because if Local 33 did not agree to
early negotiations there was no purpose in going to the
National.24 However, once he obtained agreement to
early negotiations from Local 33, rather than approach
the National and get it to join the early negotiations,
Long and Sullivan attempted to negotiate a complete
agreement with Local 33, even though Bethlehem had
expressly promised to negotiate in good faith in 1984. As
the early negotiations between Bethlehem Steel and
Local 33 progressed, Batson was told of no proposals
which were being exchanged; he was not told that Local
33 and Bethlehem Steel were negotiating terms which
would take effect before August 19; and he was told no
more than that "housekeeping" was being conducted.
When Batson was told that Local 33 had proposed to
eliminate the National (which was "housekeeping" in no
sense of the word), he told both Long and Harmon that
Harmon could not propose that.
On March 28 Batson learned through a newspaper ar-
ticle that Bethlehem and Local 33 had been negotiating
and had reached some agreements. Batson, by telephone,
inquired of Long and Harmon as to the meaning of the
agreements which were reported in the newspaper.
Batson told Long, inter alia, that "you still have an
agreement with me ." Batson scheduled a G.E.B . meeting
to review the agreements, but he did not order Local 33
not to conduct a ratification meeting scheduled for April
1. On March 30 Bethlehem and Local 33 signed two set-
tlement agreements which purported to set aside the ex-
isting contracts between Bethlehem, the National, and
the Local
On April 1 a flyer summarizing most of the agree-
ments reached between Bethlehem and Local 33 was
23 That the newspaper account of March 28 reported "a contract" be-
tween- Local 33 and Bethlehem does not establish that anything had been
signed before March 30 Aside from being hearsay in the purest form, the
article nowhere says that anything had been signed (In fact, it reports
that a Bethlehem official "confirmed that negotiations have been under
way on a new contract to replace a labor agreement that expires August
19 " The article goes on to quote the official ' as saying "at this time the
company doesn't have any comment to make regarding any current dis-
cussions.")
24 There is no explanation for Long's assertion in this regard
ratified by the membership of Local 33 ; the employees
were not told of the National's removal from any con-
tractual agreements between Bethlehem Steel and Local
33. On April 1 the settlement agreements were placed
into effect, Bethlehem Steel immediately cut wages and
benefits of newly hired employees and froze all other
wages. On April 4 Batson conducted a G.E.B . meeting
which rejected the contract . Harmon then agreed to
accede to the resolution of the G.E.B . Long disputed the
validity of the G.E.B .'s rejection and, on April 7, Bethle-
hem submitted a bid to United States Lines premised on
the lower - labor costs contained in the settlement agree-
ments. Additionally, Bethlehem Steel paid profit sharing
to employees as called for by the settlement agreements
on April 11.
Thereafter , the National attempted to file a grievance
protesting the validity of the settlement agreements. It
further attempted to get Harmon to join the grievance.
Harmon refused to join the grievance and was suspended
from the G .E.B. for that reason. Further , the National
instituted internal union proceedings to place the Local
in trusteeship . These actions of the National were en-
joined under Section 10 (j) of the Act pending Board dis-
position of this case. -
2. The "complete agreement" allegation
The complaint alleges that the "March 20" agreements
were "complete" agreements . This allegation is essential-
ly superfluous; Respondent did, or did not, have a right
to repudiate any midterm modifications negotiated by
Local 33 and Bethlehem, whether the agreements affect-
ed only one term or condition of employment of the em-
ployees in the units or the agreement changed every
term therein. However, I feel constrained to point out
that complete agreements were not reached.
Long testified that "housekeeping" was still going on
at the time of the hearing and all parties agreed that
housekeeping was a part of negotiations. Profit-sharing
provisions and attendance program elements were left to
oral agreements. Also, since Long, Harmon, and Sullivan
could not agree on whether the parties intended the Na-
tional to be a party to the settlement agreements, there
could not have been a contractual meeting of the minds
between Local 33 and Bethlehem Steel.
Moreover, even accepting the General Counsel's
theory of the case that the Local had `permission to ne-
gotiate with Bethlehem as long as four "safeguards"
were included, no complete agreement was reached and
ratified. It was not until April 1 that Long, by letter (and
not by contract) agreed that if closed yards were re-
opened, Bethlehem would recognize that National and
the "applicable Local." Also, there was never reduced to
a signed agreement any representation that the National
would still be allowed to enter the shipyard to .investi-
gate grievances (an empty "safeguard," if there ever was
one if the National was not to be a party to the contract
between Bethlehem and Local 33.) The union-shop and
checkoff "safeguards" also were never negotiated. The
one complete proposal exchanged between Bethlehem
and Local 33 was Bethlehem's proposal given to Harmon
by Sullivan during the 10(j) proceedings. The union-shop
SHIPBUILDERS (BETHLEHEM STEEL)
and checkoff proposals are in total confusion. Those
clauses give the National the right only to determine if
an employee, because of dues-arrearage, is not in good
standing with the Local. Also the proposed clause in-
cludes an authorization card which is premised on the
representation to the signatory employee that: "You have
been hired (returned) to work in a bargaining unit which
is covered by a union shop provision in an Agreement
between Bethlehem Steel Corporation (Shipbuilding De-
partment) and [the National Union]." However, the con-
tract, as proposed by Bethlehem recites that it is between
Bethlehem and "the Union" which is defined as Local 33
and which is expressly distinguished from "the National
Union." Therefore, even accepting the General Counsel's
factual premise of this case, the "safeguards" were never
negotiated, and certainly never included, in any agree-
ment which, to be "complete," required their inclusion.
Finally, the proponents of the complaint concede that
membership ratification was an indispensable part of the
making of a complete agreement . However, Harmon tes-
tified that only the "flyer" was voted on at the April 1
ratification meeting. The flyer does not mention the ex-
clusion of the National from all agreements, nor does it
mention the four "safeguards" allegedly demanded by
Batson. Therefore, even by the General Counsel 's factual
assertions, ratification did not take place because some of
the agreements reached were concealed from the mem-
bership by Harmon.
3. The 8(b)(3) allegation
a. The controlling law and the General Counsel's
contentions
(1) Respondent's rights under Section 8(d) of the
Act
Because of its repudiation of the settlement agreements
negotiated between Local 33 and Bethlehem Steel, the
National is alleged to have refused to bargain in good
faith in violation of Section 8(b)(3) of the Act.
Referring to the obligation in good faith, Section 8(d)
states:
[T]he duties so imposed shall not be construed as
requiring either party to discuss or agree to any
modification of the terms and conditions contained
in a contract for a fixed period, if such modification
is to become effective before such terms and condi-
tions can be reopened under the provisions of the
contract.
The ultimate issue in this case is whether the National's
conduct was protected by this provision , or whether it
somehow waived its right under Section 8(d) to protest
the actions of Local 33 and Bethlehem.
Waivers of statutory rights are not lightly inferred by
the Board and the Courts . As stated by the Supreme
Court in Metropolitan Edison Co. v. NLRB, 103 S.Ct.
1467 (Apr. 4, 1984), a waiver of a statutory right must be
"clear and unmistakable ."' Therefore, the issue may be
restated : Did Batson, knowing what he knew when he
knew it, clearly and unmistakably waive Respondent's
rights to demand , under Section 8(d), that Bethlehem
1565
and Local 33 continue to honor the contracts to which
all three entities were parties, and which were not, by
their terms, scheduled to expire until August 19, 1984?
Just what constitutes a "clear and unmistakable"
waiver of statutory rights depends, of course, on the
facts of each case . In cases involving alleged written
waivers of 8(d) rights the Board has held that a waiver
must be most "clear and unmistakable" to be effective.
Necessarily, an oral waiver of statutory rights would
have to be even more "clear" and more "unmistakable."
The proponents of the complaint can point to no state-
ment or act of Batson which would constitute such a
waiver of Respondent's rights under Section 8(d).
Bethlehem and Local 33 concealed from Batson the in-
formation that pleanary negotiations were being conduct-
ed. This factor immediately distinguishes the two cases
principally relied on by the proponents of the complaint:
Continental Copper Industries, 202 NLRB 1127 (1973);
and Nevada Cement, 173 NLRB 1390 (1968). In those
cases the parent unions had actual knowledge of the
terms that had been exchanged between the locals and
employers involved, and the representatives of the parent
unions gave unequivocal consent to the locals to con-
summate agreements without them. Here, the substantive
terms were concealed from Batson by Bethlehem and
Local 33, and the complaint's theory of knowledge and
consent relies on discredited testimony, inferences, and
inferences on inferences. The first inference invoked by
the proponents of the complaint is that, although it did
not mention negotiations, the January 18 videotape pres-
entation demonstrated to the National that Bethlehem
wanted negotiations. On top of this inference is urged
the inference the National should have somehow figured
out that Bethlehem and Local 33 were actually negotiat-
ing midterm modifications, not just "housekeeping."25 It
is to be observed that when he wanted the Local's con-
sent to early negotiations Long did not propound such a
dialectic of inferences; he just asked.
While Batson could have been more vehement with
Long and Harmon once he did have knowledge of the
putative midterm agreement,26 he did make it clear to
both that the National did not intend to meekly step
aside and allow its contractual existence with Bethlehem
to be negotiated away. While he waited to see if the
membership of Local 33 would ratify the agreement and,
while he presented the substantive terms to the G.E.B.
for review, neither of these actions constituted a "clear
and unmistakable" waiver of the National's rights under
Section 8(d) of the Act to object to implementation of
changes, midterm, of its agreement with Bethlehem.
Rather, Batson informed both parties to the settlement
agreements that the National was not waiving its 8(d)
rights by telling Long, inter alia, that "'You still have an
agreement with me," and by scheduling review before
25 As stated by Bethlehem 's brief at 69: "The timing of the meetings,
moreover, was a give-away that midterm bargaining was being conduct-
ed."
2s Perhaps Batson had been lulled into a true sense of security by the
existence of his contract which was not to expire until August 14 and by
Bethlehem 's June 3, 1982 express promise to "make a good faith effort to
reach a new labor agreement in 1984 negotiations."
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the G.E.B. which was virtually certain to reject the
agreements.
(2) The theories of agency
Since Batson, himself, did not waive Respondent's
rights under Section 8(d), the proponents of the com-
plaint are -reduced to the contention that , by his action or
inaction, Batson somehow made Harmon the National's
agent with authority to waive its 8(d) rights, or that, at
least, Batson gave Harmon apparent authority to waive
those rights.
The proponents of the complaint first argue that au-
thority to negotiate midterm modifications of the agree-
ment to which the National was a party was vested in
the Local when Batson acquiesced in Harmon 's house-
keeping . By this acquiescence Batson made Harmon his
agent , so the argument goes, for negotiation of any
agreement Harmon cared to enter . Therefore, the argu-
ment continues, Harmon was the National 's agent for
purposes of negotiating midterm modifications . The ar-
gument concludes that Respondent did not attempt to
withdraw this authorization until its letter of April 5,
well after the settlement agreements were allegedly
signed on March 20; therefore , Respondent 's repudiation
of the "March 20" agreements constituted violations of
Section 8(b)(3) of the Act.
The basic premises of this line of argument are eroded
by my findings above. Additionally, Long admitted that
on March 28 Batson said , "You still have an agreement
with me." By this statement Batson withdrew any au-
thority from Harmon , assuming any had existed thereto-
fore , to negotiate midterm modifications. It was not until
after this , on March 30, that the settlement agreements
were signed . Therefore , assuming that the National, by
making Local 33 its agent , agreed to enter negotiations
for midterm modifications , it withdrew from such negoti-
ations, as it had a lawful right to do, on March 28.27
However , no such agency, or "apparent" agency, rela-
tionship ever existed.
I have discredited the testimony upon which the theo-
ries of agency are based , but, even accepting the testimo-
ny proffered by the proponents of the complaint, the ar-
gument would nevertheless fail. According to the Re-
statement Agency § 1, the word "agency" is defined ac-
cordingly:
Agency is a fudiciary relation which results from
the manifestation of consent by one person to an-
other that the other shall act on his behalf and sub-
ject to his control, and consent by the other to so
act.
27 See Connecticut Power Co., 271 NLRB 766 (1984), where the Board
held that a party may agree to negotiations for midterm modifications,
and then withdraw from such negotiations without violating the statutory
duty to bargain . In reaching this conclusion the Board expressly over-
ruled Equitable Life Insurance Co, 133 NLRB 1675 (1961), which had
been relied on by the administrative law judge Apparently overruled,
sub silentio , in Connecticut Power was another decision relied on by the
administrative law judge therein, and relied on by the proponents of the
complaint herein General Electric Co, 173 NLRB 253 (1968), enf dented
412 F 2d 512 (2d Cir 1969).
To argue that the Local acted here on "behalf" of the
National is ludicrous. The' Local attempted to negotiate
away the economic benefits established by the efforts of
the National in 1981 . In doing so it also undermined the
National's position in bargaining with Bethlehem's com-
petitors who would, of course, want similar concessions.
Local 33 further ignored the policies of the National,
clearly stated in the National 's constitution and the
Local's own bylaws, that the National must be a party to
all agreements. Finally, Local 33 not only attempted to
destroy the relationship which Respondent had with
Bethlehem Steel , it attempted to destroy Respondent's
relationship with the members it represented by negotiat-
ing away Respondent 's representative status.
The proponents of the complaint argue that Harmon,
nevertheless, had "apparent authority" to act as the
agent of the National. As Long himself testified, he'knew
that there was "bad blood" between Harmon and Batson.
He knew Batson would never willingly make Harmon
his agent for anything . That Harmon was not going to
act as the National 's agent was made unmistakably clear
at the February 8-9 session in the Poconos when
Harmon proposed to delete the National from the agree-
ment the National had negotiated in 1981. The Restate-
ment Agency at § 112, further states:
Unless otherwise agreed, the authority of an agent
terminates if, without knowledge of the principal,
he acquires adverse interest or if he is otherwise
guilty of a serious breech of loyalty to the principal.
Harmon's proposal to delete the National was, at mini-
mum, disloyalty. Long knew this, and he necessarily
knew that, thereafter, Harmon was not acting as the
agent of the National.
b. Conclusions
Whether they were signed on March 20, as the com-
plaint alleges , or they were signed on March 30, as I
have found, the settlement agreements were not negotiat-
ed by the National or any of its actual, or apparent,
agents. Therefore, the settlement agreements , as they
purported to modify or terminate the National' s agree-
ments with Bethlehem, which were not otherwise sched-
uled to expire until August 19, 1984, are null and void .21,
Since the settlement agreements executed (either on
March 20 or 30) by Local.33 and Bethlehem Steel are
void, it necessary follows that Respondent's attempt to
repudiate these agreements, and its further attempt to
have the parties return to the agreements which were
not scheduled to expire until August 19, 1984, were pro-
tected by Section 8(d) of the Act. Accordingly, I shall
recommend that the 8(d)(3) allegations of the complaint
be dismissed.
28 In its brief Local 33 argues that even if the settlement agreements
were not valid before , they became valid sometime after the expiration of
the 1981 agreements on August 19, 1984 The settlement agreements were
negotiated in violation of the representative status of the National and in
violation of its rights under Sec 8(d) of the Act Therefore , they were
void at their inception There is , of course , no authority for the proposi-
tion that the expiration of a valid agreement somehow breathes life into
other which were void at their inception
SHIPBUILDERS (BETHLEHEM STEEL)
4. The 8(b)(1)(A) allegations
The proponents of the complaint argue that the settle-
ment agreements were valid contracts and the attempts
of the National to repudiate those agreements, and its
discipline of Harmon for refusing to join the National in
its efforts to repudial a those agreements, violate Section
8(b)(1)(A) of the Act.
Section 8(b)(1)(A) provides:
It shall be an unfair labor practice for a labor or-
ganization or its agents
(1) to restrain or coerce (A) employees in the ex-
ercise of the rights guaranteed in section 7: Provid-
ed, That this paragraph shall not impair the right of
a labor organization to prescribe its own rules with
respect to,the acquisition or retention of member-
ship therein ... .
Since I have found that the settlement agreements,
which were signed on March 30, are void, the premise
for the 8(b)(1)(A) allegations is necessarily eroded.
Also, Respondent's conduct was within the union rules
proviso of Section 8(b)(l)(A), quoted above. While Re-
spondent did not prove that Bethlehem knew of the fact,
it is clear that Harmon and Shiflett knew, or should have
known, of the National's constitutional requirement that
the National must be a party to any agreement entered
into by a Local, and that all agreements, to be valid,
must be approved by the G.E.B.29 Indeed, Charging
29 In 1979 an agreement was executed between another local of the
National Union and another employer, Maryland Dry Dock The Nation-
al did not become a party to that agreement, and it did not repudiate that
agreement. Upon this fact Charging Party Local 33 argued at hearing
that the constitutional provisions of the National were rendered void.
This evontention is no more than an argument that " the exception makes
the rule " The constitutional provisions had been in effect for decades,
and the National has been a party to all agreements of all other locals
Moreover, subsequent agreements with Maryland Dry Dock have includ-
ed the National as a party.
1567
Party Local 33's own bylaws, as quoted above, repeat
these requirements of the National's constitution. These
constitutional provisions and the April 4 G.E.B. resolu-
tion passed pursuant thereto are clearly "rules" within
the quoted proviso of Section 8(b)(1)(A) and Respond-
ent's action to enforce those rules was therefore protect-
ed by that proviso.
Accordingly, I shall recommended that the 8(b)(1)(A)
allegations of the complaint also be dismissed.
CONCLUSIONS OF LAW
1. Bethlehem Steel Corporation is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Industrial Union of Marine and Shipbuilding Work-
ers of America, AFL-CIO and its Local 33 are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
3. Respondent Industrial Union of Marine and Ship-
building Workers of America, AFL-CIO has not violat-
ed either Section 8(b)(3) or Section 8(b)(1)(A) of the Act
as alleged in the complaint.
4. The settlement agreements , whether they were
signed on March 20, 1984, as alleged , or March 30, 1984,
as I have found, by Bethlehem Steel Corporation and
Local 33 of Industrial Union of Marine and Shipbuilding
Workers of America, AFL-CIO are null and void.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3o
ORDER
The complaint is dismissed in its entirety.
as 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.