Kevin Steel Products, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1974

209 N.L.R.B. 493 (N.L.R.B. 1974)

KEVIN STEEL PRODUCTS, INC.
Kevin Steel Products , Inc. and Shopmen's Local
Union No. 455, International Association of
Bridge , Structural and Ornamental Iron Workers,
AFL-CIO. Case 2-CA-13002
March 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 21, 1973, Administrative Law Judge
Sidney Sherman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief. The General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Kevin Steel Prod-
ucts, Inc., West Haverstraw, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
We hereby correct an apparently inadvertent error made in the
Administrative Law Judge's Decision in par. c of sec. Ili, C, 3; it should
read "would not let Leggio return "
Respondent contends in its brief that the second strike which began on
July 1, 1973, is an economic strike We note that no allegation was made in
the complaint that the July 1 strike was an unfair labor practice strike and
we, therefore, find it is unnecessary to pass on the status of the strike at this
time
DECISION
SIDNEY SHF.RMAN, Administrative Law Judge: The initial
charge herein was served on Respondent on June 11,
1973,1 the complaint issued on July 31, and the case was
heard on August 28 and 29. After the hearing briefs were
1 All events hereinafter related occurred in 1973 unless otherwise
indicated
493
filed by Respondent and the General Counsel. Upon the
entire record,2 the following findings and recommenda-
tions are made:
1. RESPONDENT'S OPERATIONS IN COMMERCE
Kevin Steel Products, Inc., hereinafter called Respon-
dent, is engaged in the fabrication and distribution of steel
and related metal products at its establishment in West
Haverstraw , New York . It annually sells more than
$500,000 worth of products , of which more than $50,000 in
value is shipped to out-of-state points . Respondent is
engaged in commerce.
II. THE UNION
Shopmen's Local Union No. 455, International Associa-
tion of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, is a labor organization under the Act.
111. THE MERITS
A. The Issues
The pleadings, as amended at the hearing, raise the
following issues:
1. Whether Respondent has violated Section 8(a)(1) by
offering employees inducements to defect from the Union?
2. Whether Respondent laid off, and subsequently
terminated, certain employees because of their union
activity and because the Union refused to remove Leggio
as its shop steward, thereby violating Section 8(a)(3) and
(1)?
3. Whether Respondent has refused to bargain with the
Union since June 4?
4. Whether Respondent has violated Section 8(a)(5)
and (1) by refusing to sign an agreement reached between
it and the Union.
5. Whether the Board should defer the taking of
jurisdiction herein pending the conclusion of certain
arbitration proceedings dealing with some of the matters
involved herein?
B. Sequence of Events
Respondent has been engaged in the steel fabrication
business in West Haverstraw, New York. Early in 1973, it
had about 15 shop employees, and an unspecified number
of other employees, who did installation work in the field.
Only the former are involved herein. For some years,
Respondent has had contractual relations with the Union
as the representative of the shop employees, the last such
contract having been in effect from July 1, 1970, through
June 30, 1973. That contract contained a provision for
arbitration of grievances. The Union's chief shop steward
during the term of that contract was Leggio. On February
15, the employees struck because of Respondent's delin-
quency with respect to various trust funds established by
the parties' contract. By letter dated February 15, Respon-
dent notified the strikers that they were being laid off for
lack of work. By February 21, Respondent had satisfied its
2 For corrections of the transcript, see the order of October 29
209 NLRB No. 80
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligation to the trust funds and the Union on that date
announced termination of the strike and asked Respon-
dent 's president, Palatnik , how many men he needed to
resume operations . He answered that he did not need any
at that time , but would continue to operate as he had
during the strike with but one employee to help him. About
March 1, the Union's president , Colavito, discussed the
reasons for the layoffs with Palatnik, who insisted that he
had no work for the men, adding that, even if he did have
work, he would not recall them as long as Leggio was shop
steward . On March 30, Respondent notified the laid-off
employees that it was necessary "to permanently termi-
nate" them because there was no reasonable expectation of
their being recalled.
About May 1, negotiations for a new contract, to
succeed the one expiring on June 30, commenced . At this
and subsequent meetings-on May 15 and 21-the main
bone of contention was wage rates and the recall of Leggio.
On May 21, Colavito proposed that the existing contract be
extended , pending negotiations between the Union and an
industry association , and that upon the conclusion of such
negotiations Respondent adopt the association contract.
Palatnik suggested that an appropriate draft be prepared
by the Union's counsel and cleared with Respondent's
counsel . On June 1, when Colavito returned with a draft of
his proposal and advised Palatnik it had been cleared with
his lawyer, Palatnik insisted , nevertheless , on calling his
lawyer, who arranged a meeting for further discussion of
the proposal. However , a few days later that meeting was
canceled by Palatmk , who subsequently advised Colavito
that he would not sign the contract.
In the meantime the Union had submitted to arbitration
various issues, including the propriety of Respondent's
refusal on February 21 to recall Leggio and the other
strikers . Such arbitration was still in progress at the time of
the instant hearing.
C. Discussion
1. The deferral issue
Section 10 of the parties ' contract established a grievance
procedure for handling any "complaints , disputes or
grievances" submitted to the shop stewards by employees,
and it was further provided that any "difference , grievance
or dispute" which was not otherwise settled through that
procedure and "any difference or dispute between the
Company and the Union arising out of this Agreement or
as to the meaning , application or alleged violation of any
provision , or provisions of this Agreement shall, upon
request of either party to this Agreement be submitted to"
final and binding arbitration. Section 15 (B) of the contract
forbids discipline or discharge except for "proper cause."
In section 11 of the contract Respondent renounces resort
to "lockouts," subject to certain exceptions not here
relevant.
At the time of the instant hearing there was pending an
arbitration proceeding between the parties over various
matters, including the "lockout" of February 15, and the
failure to recall Leggio . At the hearing, Respondent moved
that the Board defer any action on the merits herein
pending the outcome of such proceeding, citing Collyer
Insulated Wire, A Gulf and Western Systems Co.3 Ruling on
that motion was reserved at the hearing.
The question of deferral is here complicated by the fact
that , in addition to acts by Respondent, which arguably
violate the contract and are currently the subject of
arbitration proceedings-namely, the failure to recall, and
termination of, various employees-the complaint alleges
conduct which clearly involves no breach of contract but
only of a statutory duty. The propriety of deferral in such a
situation was considered in Sheet Metal Workers' Interna-
tional Association, Local Union No. 17, AFL-CIO (George
Koch Sons, Inc.),4 where the issue was whether the Board
should defer to arbitration with respect to the legality of a
work stoppage in a case where there was also involved the
legality of a union fine , a matter beyond the purview of the
parties' grievance and arbitration procedure and one which
was decided in that case by the Board on the merits. The
Board there said:
... since we are in any event required to take
jurisdiction in order to determine the issue of whether
the fine was violative of our Act , there seems less
reason to defer the other issue raised by the complaint;
namely, the Union 's conduct with respect to the strike.
When an entire dispute can adequately be disposed of
under the grievance and arbitration machinery, we are
favorably inclined toward permitting the parties an
opportunity to do so. One of our reasons for so doing is
to avoid multiplicity of forums . But, here , since we
must perforce determine a part of the dispute , there is
far less compelling reason for not permitting the entire
dispute to be resolved in a single proceeding.
Here, too, the entire dispute cannot be disposed of under
the contractual grievance and arbitration machinery; for,
the complaint raises two issues clearly beyond the purview
of such machinery-namely , the alleged violation of
Section 8 (a)(5) by Respondent 's refusal to execute a
contract and its alleged solicitation of employees to defect
from the Union . Moreover, there is another consideration
militating against deferral of any part of this case. In
Collyer, the Board stressed as a condition favoring deferral
the absence of any "claim ... of enmity by Respondent to
the employees' exercise of protected rights. " Here , there is
not only a claim , but it is found below that Respondent has
unlawfully frustrated the efforts of the Union to conclude
an agreement with it on behalf of the employees and that it
has attempted since early in 1972 to induce employees to
defect from the Union by various promises of benefit.
For all the foregoing reasons, Respondent 's motion to
defer to arbitration is denied.
2. Solicitation of employees to abandon the
Union
The complaint alleges that on various dates in January
and February Respondent offered inducements to the
employees to abandon the Union.
3 192 NLRB 837
4 199 NLRB 166.
KEVIN STEEL PRODUCTS, INC.
As background evidence on this issue the General
Counsel adduced testimony by Burrett, corroborated by
Union Agent Steinhauser, that early in 1972 Respondent's
president, Palatiik, offered the employees more liberal
fringe benefits, if they would repudiate the Union; and,
Prah testified that "beginning in 1972" he had conversa-
tions with Palatnik, in which the latter promised to make
certain improvements in the existing retirement and
hospitalization plans, if the employees would defect from
the Union, but, when Palatnik urged him to relay this
message to others in the shop, Prah refused to do so.5
Notwithstanding Palatnik's denials, the foregoing testi-
mony is credited on the basis of demeanor considerations.
Viera testified that he joined in the strike on February
15, and that the next day, when he returned to the plant for
his pay, Palatnik promised that he would have plenty of
work, if he went "non-union." Viera appeared to be a
sincere witness and his testimony is credited, despite
Palatnik's denial. Accordingly, it is found that by Palat-
nik's offer to recall Viera, if he forsook the Union,
Respondent violated Section 8(a)(1) of the Act.
3. The 8(a)(3) issue
The General Counsel contends that 19 shop employees,
including Leggio, were laid off by Respondent on or about
February 15, and discharged on or about March 30,
because of their union activity and because the Union
refused to remove Leggio as chief shop steward, and that
Respondent thereby violated Section 8(a)(3) and (1).
Respondent concedes the layoffs and discharges but denies
that they were motivated by improper considerations.
The employees struck on February 15, because Respon-
dent owed about $15,000 to the trust funds established by
the parties' contract. The same day, Respondent mailed a
letter to the strikers notifying them that they were being
laid off for lack of work and that they would be advised
when they were again needed. On February 21, Respon-
dent having paid up its obligation to the trust funds, Union
Agent Steinhauser informed Respondent's president, Palat-
nik, that the strike was over and the pickets were being
removed, and asked how many men Palatnik was going to
reinstate at that time. Palatnik answered that he was not
going to recall anyone except Bolson, a finisher. When
Steinhauser demanded that Leggio be recalled, since he
was the senior crane operator (as well as the chief shop
steward, with superseniority under the contract) and the
services of a crane operator would be needed to assist
Bolson, Palatnik answered that he, himself, would perform
whatever crane work was needed.
Until July 1, Respondent continued to operate with only
s Since the incident related by Burrett occurred beyond the period of
limitations prescribed by Sec 10(b) of the Act, it is considered here only as
showing Respondent's union animus The incident involving Prah is, also,
considered only in that light. (Not only is it apparently barred by Sec 10(b),
but the record shows that, although a union member, Ptah was a supervisor
by reason of his authority to hire employees and to decide what
probationary employees to retain at the end of their trial period
Accordingly, for that reason alone, any blandishments offered him to
forsake the Union would not violate the Act.)
6 Colavito testified without contradiction that, when he visited the plant
on June 1, he saw several office employees and Mannocchi. as well as
Bolson, doing unit work
495
Bolson in the shop, assisted by Palatnik on the crane, and
to an unspecified extent by Mannocchi, one of his former
employees, and several nonunit personnels On July 1, the
contract having expired, Respondent's former employees
resumed picketing, to protest its failure to execute a new
contract. Apparently, about the same time Respondent
recalled several more of its former employees, and at the
time of the hearing it was still operating on a limited basis
and was still being picketed.
Prah, who joined in both strikes, testified that, when he
returned to the plant on February 20 for his pay, Palatnik
stated there was nothing he could do about recalling Prah
at the moment and that he was going "to try to stick it out"
until July 1,7 but that he would be willing to "open the
shop" if the Union would replace the "shop steward."
Burrett testified that during the strike Palatnik told him
that he deplored the existing situation but "he could not do
anything else because of the union," that the witness could
go back to work for him at any time but Palatnik could not
"open the shop" so long as Leggio would work there.
Although disputing Burrett's account, Palatnik acknowl-
edged that he had made the statement that he would not
recall Leggio "as shop steward" because he was "overstep-
ping his role as shop steward" and that he had told Prah on
February 20 that he would not recall anyone until Leggio
was replaced as shop steward. Palatnik, nevertheless,
denied that the purpose of the layoff was to force the
replacement of Leggio as shop steward, declaring that it
was due solely to lack of works However, when asked
whether he would have recalled the employees, if Leggio
had been ousted as shop steward, Palatnik answered:
I would have maybe called back maybe only a very few
employees, maybe the foreman and one other employ-
ee, just to clean up the place, just to keep the place
going.9
Thus, by his own admission, Palatnik's refusal to recall
the laid-off employees was attributable at least in part to
his opposition to Leggio because he was "overstepping his
role as shop steward."
Prah related a further conversation with Palatnik on
February 27, in which the latter stated that he was
prepared to recall six or seven men but not "the shop
steward." Palatnik's version was that on that occasion he
told Prah only that he would not recall anyone due to lack
of work. However, Prah is credited on the basis of
demeanor.
Although Palatnik testified at some length about the
dearth of work in the shop after February 15, and the
reasons therefor, it is found, on the basis of his aforenoted
7 That was the expiration date of the Union's contract.
8 Palatnik explained that on February 15 the only substantial order in
the shop consisted of work he was doing under subcontract , and that, when
the employees struck, he notified the customer that he could not guarantee
delivery because of the strike , whereupon the customer canceled the order.
9 This testimony seems to reflect the assumption by Palatnik that
Respondent was not permitted by the union contract to recall even one or
two men for cleanup work without bringing Leggin back as shop steward.
The basis for this assumption is not clear from the record. However, it
suffices for present purpose that Palatnik believed that to be the case and
was admittedly motivated by that belief.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admission at the hearing, as well as that made to Prah on
February 27, that, had he been so minded, Palatnik would
then have been able to provide work for some of the laid-
off employees but did not do so because of his aversion to
Leggio and his apparent belief that, if he recalled any of
the other men, he would be obligated by the union contract
to recall Leggio also.
While not disputing that Palatnik was opposed to
recalling Leggio, Respondent contends that such opposi-
tion stemmed solely from Leggio's "improper activities,
e.g., inhibiting productivity, causing breakdowns, insubor-
dination and a threat to `get the boss.' " Palatnik explained
that his difficulties with Leggio began with an incident in
the fall of 1972, when a dispute arose over the failure of
Palatnik to call Leggio in on a Saturday, when some work
was being done on the plant building.10 Palatnik added
that, when, soon thereafter, he had occasion to rebuke
Leggio for poor workmanship on a painting job, Leggio
retorted that Palatnik was "picking on" him because of the
aforecited Saturday work incident and declared that
Palatnik was "a challenge to" him and he was "going to
get" Palatnik. This incident apparently inspired the
following letter of October 31, 1973, to the Union:
On numerous occasions, I have discussed with you the
difficulties we have with Salvatore Leggio.
Mr. Leggio does not perform his duties with the
competence required. In addition, his negative attitude
is reflected in the performance of his duties as Shop
Steward. His apparent resentment of me personally and
this business, which provides a livelyhood [sic] for so
many people, has now been brought into the open.
On October 30, 1972 in the presence of others, he
threatened me and the very existence of my business.
This threat arose from the fact that when requested to
do a certain job, Mr. Leggio did it in such an
inadequate manner, that it was brought to his attention
by the Shop Foreman. His response to the criticism was
if you don't like it call the delegate. His response to my
telling him he must learn to do a proper job was, "If I
don't like it I can have some one else do it."
Mr. Leggio does not run my business nor will I permit
him to do so. He will do his job competently or he can
leave.
After making this "or else" statement he said he would
place a security guard around the clock to make sure he
caught me doing something wrong and then the threat
to which I previously referred. He said and I quote,
`Bob, you're a challenge to me and I am going to get
you.
It was never my impression your union countenanced
such an attitude, nor was it your desire to "get me" or
Kevin Steel Products, Inc.
This is the culmination of a series of incidents and
10 The contract requires that "the shop steward shall be one of the
employees assigned to overtime work." The dispute over Respondent's
alleged violation of that provision is now in arbitration
statements which can lead to no other conclusion but
that Mr. Leggio wants to get me. In order to do so he
must, of course, damage the business. An alternative is
that his threat to get me is a physical threat, however, I
doubt that.
Mr. Leggio's attitude was exposed for all to see, that
of an enemy bonng from within, who out of spite,
ignorance or viciousness has set as his goal, the
destruction of my business.
I realize that short of a singular destructive act by him,
he will not destroy me. However, single invidious acts
of malfeasance and nonfeasance directed against me
and my business, must have a cumulative deleterious
effect and impede the progress and growth of a
business important to me and my employees.
I call upon you, known to me to be responsible and in
the highest tradition of labor leaders, to investigate this
problem. It is not in the best interest of the union or me
that such problems continue.
Palatnik testified further that after the incident described
in the foregoing letter, and while he was in the plant
washroom, he overheard Leggio upbraid another employee
for working too fast; that during November and December
1972, in his job of operating the overhead crane, Leggio
burned out two motors through an improper operating
procedure; that the witness rebuked Leggin three or four
times on that account but to no avail; that the witness did
not discharge Leggio therefor because he had a "reasona-
ble doubt" at the time about Leggio's responsibility for the
damage to the motors; that, after having operated the
crane, himself for 4 or 5 months thereafter without any
maintenance problems the witness is now convinced that
Leggio was in fact responsible for such damage; that in
December 1972, when the witness personally took over the
supervision of a job in order to expedite it, Leggio took sick
leave the next day; that two of the employees told the
witness that Leggio had taken off in order to hinder
Palatnik's efforts to expedite the job; ii that the witness
believes that Leggio was responsible for a general slow-
down, which resulted in that particular job taking 1,500
hours longer to complete than normal; and that the witness
concluded from the foregoing events that Leggio was
engaged in a plot to undermine him.
Leggio, on the other hand, attributed the maintenance
problems with the crane to matters unrelated to his
operating procedure, asserting that he based this view in
part on information he received from the shop mainte-
nance man, Thompson, as to the cause of those problems,
and he expressly denied any mishandling of the crane. He
denied, also, that he instigated any slowdown in the shop,
explaining that the sick leave cited by Palatnik was due to
a dental appointment and insisting that there was no
washroom incident such as Palatnik described. His version
of the "challenge" remark was that at the time of that
incident he was seeking a monetary award in the
11 Palatnik explained that it was necessary to replace Leggio for that day
with an inexperienced man, who could not maneuver the crane as skillfully
as Leggio, thereby slowing down the work.
KEVIN STEEL PRODUCTS, INC.
arbitration proceeding involving the "Saturday-work"
incident and that all he told Palatnik was that "that money
was a challenge to" him and that he "would go out to get
it." Respondent 's maintenance man, Thompson , was not
called by Respondent to corroborate Palatnik 's charge of
abuse of equipment by Leggio and no explanation was
offered for this omission , and, as noted above, Palatnik,
himself, admitted to uncertainty as to the cause of the
breakdown of the equipment until after he had , himself,
operated it for 4 or 5 months. In view of these circum-
stances, I credit Leggio's denial of responsibility for any
damage to the crane 's motor and of employing the
improper operating procedure , to which Palatnik ascribed
his suspicion that Leggio was responsible for the frequent
breakdowns of the crane . Accordingly, it is found not only
that Leggio did not , in fact, mishandle the crane , but also
that Palatnik did not have any reason to believe that such
was the case , and the inference is, therefore , warranted
that , contrary to Palatnik 's testimony, he did not actually
entertain any such belief either before or after February 15.
However , I do not credit Leggio 's rather strained explana-
tion of the "challenge" remark and find that he did make
such a remark in the terms described by Palatnik , and, in
view of the circumstantiality of his account of the matter,
credit Palatnik 's testimony about the washroom incident.
Absent any contradiction thereof , Palatnik 's testimony
about the report he received concerning Leggio 's reason
for taking sick leave on December 1972 is also credited.
While the three incidents last mentioned might be
deemed to have justified Palatnik in believing that Leggio
was bent on disrupting Respondent 's operations by
instigating a general slowdown , the following matters
militate against the credibility of his testimony that he
actually entertained such a belief or that his objection to
recalling Leggio was motivated solely by such a belief.
a. In a letter to the employees of January 29, Palatnik
referred to the "large number of problems which have
arisen as a result of what we believe to be excessive zeal if
nothing else, of union representatives" (emphasis sup-
plied). Palatnik acknowledged that the foregoing referred,
at least in part , to Leggio.
b. Palatnik did not dispute Colavito 's testimony that, at
a meeting between them early in March , Palatnik ex-
plained that he objected to Leggio because he was
constantly "raising questions" about the administration of
the contract-opposing the assignment of laborers to do
mechanics' work-departures from seniority in layoff, and
deviations from the contract in selecting employees for
overtime work . Prah , who, as found above, was a
supervisor, confirmed that there were occasions when he
attempted to "sneak" laborers into mechanics' jobs, which
provoked complaints by Leggio to Palatnik . And, Leggio
ascribed Palatnik 's "bitterness" toward him to Leggio's
efforts to enforce the contract.
c. As noted above , Palatnik acknowledged at the
hearing that he had declared that he would not let Palatnik
return as shop steward because "he was overstepping his
role as shop steward."
d. Although Palatnik professed to believe , at least as
early as October 31 , that Leggio was plotting Respondent's
downfall , he made no effort to initiate the procedure
497
prescribed in the contract for the discharge of a shop
steward nor did he take any other disciplinary action
against him, retaining Leggio as an employee until
February 15, when he joined the strike . Moreover , Palatnik
maintained at the hearing that during the period of the
layoff he considered allowing Leggio to return as an
employee, albeit not as a shop steward.
e. It seems inherently improbable that, because of a
grievance over I day's pay, Leggio would want to destroy
Respondent 's business on which he and his fellow union
members depended for their livelihood or that Palatnik
would in good faith believe that Leggio would take such
action for such a reason.
In view of all the foregoing considerations , it is found
that Palatnik's antipathy toward Leggio stemmed mainly
from his insistence on Palatnik 's compliance with the
contract in the matter of work assignments and the
selection of employees for overtime work and layoffs. It is
apparent that Leggio 's inflexibility in these areas was
resented by Palatnik because it frustrated his efforts to
promote efficiency of operations and reduce costs at a time
when Respondent 's financial position was precarious.
While it is clear that the incident referred to in the letter of
October 31 , 1972, generated a strong, emotional reaction
on Palatnik 's part and while he may have genuinely
believed at that time that Leggio was bent on undermining
Respondent 's operations, it is significant that Palatnik
made no specific reference to that charge in any of his later
communications to the employees or the Union about
Leggio, but stressed only his resentment of Leggio's zeal as
a steward . It is inferred, therefore , that the October 31
letter reflected only a passing reaction to the October 22
incident and that any effect thereof was secondary to the
more realistic and substantial objections by Palatnik to
Leggio's strict enforcement of the Union 's contract.
It having been found , on the basis of Prah's credited
testimony, that Palatnik would have recalled six or seven of
the strikers on February 21, but for his opposition to
Leggio, and that such opposition was due in large part, if
not entirely, to Leggio's zeal in enforcing the Union's
contract , it follows that such failure to recall was for
discriminatory reasons and that Respondent thereby
violated Section 8(a)(3) and ( 1) of the Act.
4. The 8(a)(5) issue
The General Counsel contends that Respondent violated
Section 8(a)(5) and ( 1) on and after June 1 by refusing to
execute an agreement which it had concluded with the
Union . In the alternative , the General Counsel contends
that , if the Board finds that there was not a complete
agreement on June 1, it should still adjudge Respondent to
be in violation of Section 8(a)(5) by reason of its alleged
refusal to bargain with the Union on and after June 4.
There was substantial agreement between Palatnik and
Colavito as to the course of the negotiations for a contract
to replace the one due to expire on July 1. These
negotiations began with a meeting early in May between
Palatnik and Colavito . At this meeting and a later one, on
May 15, the main obstacles to agreement were Palatnik's
opposition to Leggio's returning as shop steward and his
insistence on a reduction in the existing wage scale, on the
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground that Respondent could not compete with other area
firms under that wage scale. When they met again, on May
21, Palatnik announced that he was expecting some work
within a few weeks, at which time he would recall some of
the men, but he remained adamant with regard to Leggio.
Finally, as a concession to Respondent, Colavito proposed
that the Union grant Palatmk an extension of the current
contract, pending negotiation of a new contract with other
area employers in the industry, with the stipulation that
Respondent would adopt any new agreement reached with
such employers and that the Union would not strike
Respondent during such negotiations, unless Respondent
accepted struck work from another shop. The advantage of
this proposal to Respondent was that it would be exempt
from any strike that might be called in connection with the
foregoing areawide negotiations. When Palatnik indicated
interest in this proposal, Colavito began to reduce it to
writing, but Palatnik insisted that the drafting of language
be handled by counsel. According to Colavito, Palatnik
declared that whatever counsel agreed on would be
acceptable to him. Colavito had a contract drafted by
union counsel, Mrs. Harper, who reported to him that she
had submitted the draft to Respondent's attorney, Guazzo,
and that he had indicated approval and had promised to
recommend acceptance thereof to his client. However,
when he received the draft in the mail , Colavito was not
satisfied with the language of the "struck work" clause, and
requested Mrs. Harper to make a change therein and clear
it with Guazzo.12 On June 1, Colavito presented the final
draft to Palatnik, who indicated that it was acceptable to
him but that he wished to call Guazzo. After a telephone
conversation with Guazzo, Palatnik reported that he was to
meet with Guazzo on June 5. When Colavito asked why
such a meeting was necessary, in view of the fact that
Guazzo had already evinced his approval to Mrs. Harper
and Palatnik had dust indicated his own satisfaction with
the draft, Palatnik answered only that he did not know and
suggested that Colavito speak to Guazzo. Colavito prompt-
ly called him and asked for the reason for the proposed
meeting, asserting that Mrs. Harper had reported that
Guazzo was satisfied with the draft, whereupon Guazzo
answered, "That's right," but, nevertheless, insisted on
meeting with his client. Despite repeated questioning by
Colavito, Guazzo offered no explanation, and it was finally
arranged that the parties would meet with Guazzo on June
5. According to Colavito, Palatnik concluded the June 1
meeting with the assurance, "... don't worry, we got an
agreement." 13
Palatnik denied that he gave the foregoing reassurance to
Colavito on June 1. As for the May 21 incident, Palatnik
insisted that he merely told Colavito to put his contract
proposal in writing and he would have Guazzo look at it
and that he advised Colavito that he could make no
commitment without first having discussed with Guazzo
the long-range implications of that proposal. There is thus
12 From a comparison of the initial draft and the subsequent one, it
appears that the change desired by Colavito was the inclusion in the
"struck -work" clause of a requirement that, in case of a strike by
Respondent's employees because of its acceptance of work from a struck
employer, Respondent would reimburse the employees for any wages lost as
a result of their strike Similar provisions appeared in the expiring contract,
wherever it authorizes strike action to protest specified conduct by
a conflict between Colavito and Palatnik as to whether on
May 21 Respondent accepted the proposal for an interim
contract, subject only to agreement on appropriate
language, or whether Palatnik stipulated that, before
signing any such contract, he would have to discuss the
merits thereof with Guazzo.
As to his telephone conversation with Guazzo on June 1,
Palatnik testified that he asked Guazzo whether he had
cleared the new draft and that he professed to have seen
only the old one and proposed a meeting to discuss the new
one. However, Palatnik did not dispute Colavito's testimo-
ny that on June 1, when he asked why a meeting with
Guazzo was necessary, Palatnik answered that he did not
know; nor did Guazzo deny that, when Colavito taxed him
with having already indicated approval of the proposed
contract, he acknowledged that such was indeed the case
but offered no explanation to Colavito for his scheduled
meeting with Palatnik. If the reason for that meeting was,
as Palatnik testified, his desire to consult Guazzo about the
merits of the Union's proposal, it seems that it would have
been a simple matter for either Palatnik or Guazzo to have
so apprised Colavito. The fact that they failed to disclose
any such reason to him at the time, but, instead, parried his
insistent demands for an explanation with vague and
equivocal responses, is persuasive that at that time they
recognized that Respondent had no valid reason for
refusing to execute the contract nor any reason that they
could afford to disclose.
In view of these circumstances, as well as demeanor
considerations, Colavito's testimony is credited insofar as it
conflicts with Palatnik's, and it is found that on May 21
Palatnik undertook to sign a contract embodying the terms
then proposed by Colavito, subject to agreement by the
parties' counsel on appropriate language; that by June 1
counsel had agreed on such language; and that on that
date Palatnik reviewed the draft prepared by counsel and
acknowledged that it reflected the understanding reached
by the parties on May 21, but refused to sign it at that time,
proposing instead a meeting with his counsel on June 5.
As to subsequent events, the record shows that on June 5
Colavito was notified of cancellation of the scheduled
meeting and on June 6 he was informed by Palatnik that he
was upset by an incident that had occurred on June 2,
involving alleged surveillance of Respondent's operations
by Leggio, and Palatnik insisted that he would not sign any
contract until the Union got rid of Leggio. On June 28,
when the matter was next discussed by the parties,
Palatnik, at first, reiterated his refusal to sign a contract
unless the Union ousted Leggio as shop steward, but, when
the Union indicated its willingness to consider a change in
shop stewards if he would accept the proposed contract,
Palatnik declared he still would not sign the contract
because of the high wage scale. On July 16, after the other
area employers in the industry had reached agreement on
the terms of a new contract and Colavito again appealed to
Respondent It is thus clear that there was nothing novel about such
reimbursement provision and that it was one routinely included by the
parties in clauses dealing with authorized strikes
13 All the findings made in the preceding paragraph are based on
Colavito's testimony, which was not disputed except in the two respects
noted in the next paragraph
KEVIN STEEL PRODUCTS, INC.
Palatnik to sign the contract, he answered that he preferred
the existing situation. There have been no further discus-
sions of the contract.
Respondent contends that, even if there was an agree-
ment reached on the terms proposed by the Union, it was
not legally binding because it was too vague and indefinite.
Respondent relies on the fact that the Union's proposal did
not, itself, specify the wage rates and other terms that
would apply to Respondent after the Union reached an
accord with the other, area employers, but provided only
that Respondent would be bound by whatever terms and
conditions were negotiated with such other employers.
The clearest expression of the Board's position on that
point is contained in Sheet Metal Workers' International
Association, Local Union No. 270 (General Sheet Metal
Co.).14 There an employer had executed an "interim
agreement," stipulating that it would be superseded by
whatever contract was negotiated by the union with a
multiemployer association, of which the employer was not
a member. However, after such contract was negotiated,
the employer refused to comply with the requirement
therein for contributions to a fund to be used to promote
the interests of his industry. In alleging that the union's
insistence on compliance by the employer with that
provision was unlawful, the General Counsel relied on
Board ruling that the establishment of such a fund was not
a mandatory subject for bargaining and a union's insist-
ence thereon violated Section 8(b)(3) of the Act. However,
the Board affirmed the Trial Examiner's dismissal of the
complaint, which dismissal was predicated on the rationale
that the employer's agreement to be governed by whatever
terms might be negotiated in the future by the multiem-
ployer association was legally binding, so that, in insisting
on the employer's contributing to the industry fund, the
union was merely demanding that he honor a valid,
contractual commitment. With respect to the contention
that the interim agreement was void for uncertainty, the
Trial Examiner quoted the following:
It is not necessary that a promise should within itself be
certain if it contains a reference to some document,
transaction, or other extrinsic facts from which the
meaning may be made clear . . . . An offer or
agreement may also refer to another agreement for a
definition of terms, even to a contract to be made
subsequently.15
The foregoing ruling is deemed to be controlling here,
and it is therefore found that the instant, extension
agreement was not void for uncertainty.
Upon consideration of all the foregoing matters, it is
found that by June 1 the parties had reached agreement on
the terms of an interim contract but Respondent refused
on and after that date to execute a contract embodying
those terms, thereby violating Section 8(a)(5) and (1).16
14 144 NLRB 773
15 Williston on Contracts, 3d ed , Sec 47
16 In view of this finding , there is no need to pass on the General
Counsel's alternative contention that Respondent has refused to bargain
since June 4
17 Mor Paskesz, 171 NLRB 116, enfd 405 F 2d 1201 (CA 2, 1969),
CONCLUSIONS OF LAW
499
1. The following unit is appropriate for collective
bargaining:
All production and maintenance employees and plant
clericals of Respondent, employed at its plant, exclud-
ing office clericals, watchmen, guards and supervisors
as defined in the Act.
2. At all times material herein, the Union has been the
statutory representative of the employees in the above unit.
3. Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing on and after June 1, 1973, to sign a
document embodying the agreement of the parties.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discriminating against employees because of the
insistence of their shop steward on strict enforcement of
the provisions of the Union's contract, and it has violated
Section 8(a)(1) by offering an employee an inducement to
abandon the Union.
5. The foregoing violations are unfair labor practices
affecting commerce within the meaning of the Act.
THE REMEDY
It having been found that Respondent violated Section
8(a)(1), (3), and (5), it will be recommended that it be
required to cease and desist therefrom and take appropri-
ate, affirmative action.
With regard to the 8(a)(5) violation, it will be recom-
mended that Respondent be ordered to execute the draft
agreement submitted on June 1 and give it retroactive
effect to July 1, making its employees whole for any loss of
wages or other benefits suffered as a result of its failure to
sign the agreement , together with interest at the rate of 6
percent per annum.17
With regard to the layoff of February 15, and the
subsequent "discharge" of the laid-off employees, while it
has been found that after the termination of the strike
Respondent would have recalled six or seven of those
employees but for its opposition to Leggio as shop steward,
and that the refusal to recall them for such a reason was
unlawful, the present record does not permit a determina-
tion of the exact number or identity of such employees.
That issue will therefore have to be relegated to the
compliance stage of this case, as will the issue of the
amount of backpay due such employees. Interest at the
rate of 6 percent per annum will be added to any such
backpay (Isis Plumbing & Heating Co., 138 NLRB 716),
and the formula stated in F. W. Woolworth Company, 90
NLRB 289, shall govern the computation thereof. No
backpay shall be awarded to any employee for such time as
he participated in the strikes that began on February 15
and July 1.18
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
Shamrock Systems, Inc, 155 NLRB 1121
18 With respect to the February 15 strike, no backpay is due until
February 21, when the Union notified Respondent of the conclusion of the
strike and, in effect , requested reinstatement of as many employees as
Respondent needed at that time ' With respect to the July I strike, it is
necessary to consider what effect to give to the fact that the employees were
(Continued)
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, there is hereby issued the following recom-
mended:
ORDER19
Respondent, Kevin Steel Products, Inc., West Haver-
straw, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist:
(a) Discriminating against employees because of their
insistence, or the insistence of their representative, on strict
enforcement of the provisions of a collective-bargaining
contract covering the following unit:
All production and maintenance employees and plant
clericals employed in Respondent's plant, excluding
office clericals, watchmen, guards and supervisors as
defined in the Act.
(b) Offering employees inducements to defect from the
Shopmen's Local Union No. 455, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, or any other union.
(c) Refusing to bargain in good faith with the afore-
named Union as the representative of the employees in the
unit described above, by refusing, upon request, to sign the
contract submitted by said union on June 1, 1973.20
(d) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the above-named
Union or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective-bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the
extent permitted by the proviso to Section 8(a)(3) of the
Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request by the aforenamed Union, execute the
contract submitted by it on June 1, 1973, and give
retroactive effect thereto from July 1, 1973.
(b) In the manner and to the extent prescribed in the
"Remedy" section of the Administrative Law Judge's
Decision, make employees whole for any loss of earnings
suffered as a result of Respondent's discrimination against
them, and offer them immediate reinstatement to their
former jobs or, if they no longer exist, to substantially
equivalent jobs, without prejudice to their seniority and
other rights and privileges.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under
the terms of this recommended Order.
(d) Post at its place of business in West Haverstraw, New
York, copies of the attached notice marked "Appendix." 21
Copies of said notice, on forms to be provided by the
Regional Director for Region 2, shall, after being duly
signed by Respondent's representative, be posted by it
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
discriminatorily terminated before that strike began Had it been caused by
such discrimination, the loss of wages during the strike would necessarily
have been attributable to Respondent's discriminatory conduct and would,
therefore, properly enter into the computation of backpay However, that
strike was admittedly called only to protest Respondent's refusal to sign a
contract and it is inferrable therefrom that the employees would have struck
even if there had been no discriminatory terminations. Under those
circumstances, the loss of wages during the period of the July I strike may
not be imputed to such terminations but to a supervening factor-the
Respondent 's refusal to sign a new contract
19 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
20 See American Needle & Novelty Company, 206 NLRB No 61
21 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection; and
To refrain from any or all these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT discriminate against employees by
laying them off or discharging them because they or
their representatives insist on strict compliance by us
with the terms of our contract with Shopmen 's Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO,
or any other union.
WE WILL NOT offer employees inducements to
abandon the above -named Union or any other union.
WE WILL, upon request , sign the contract submitted
to us on June 1 , 1973, by the above-named Union on
behalf of the employees in the following unit:
All production and maintenance employees and
plant clericals employed in our shop , excluding
office clericals, watchmen, guards and supervisors
as defined in the Act.
KEVIN STEEL PRODUCTS, INC.
WE WILL offer reinstatement to their former or
substantially equivalent positions to all employees
whom we have refused to recall , or whom we have
terminated , because of the insistence of their represent-
atives on strict enforcement of our contract with the
above-named Union , and we will make such employees
whole for any loss of wages suffered as a result of our
discrimination against them.
All our employees are free to join or not to join
Shopmen 's Local Union No. 455, International Associa-
tion of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO.
Dated By
501
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 36th
Floor, Federal Building , 26 Federal Plaza , New York, New
York 10007 , Telephone 212-264-0330.
KEVIN STEEL PRODUCTS,
INC.
(Employer)