Latrobe Steel Co.

National Labor Relations Board - Board Decisions

Aug 22, 1979

244 N.L.R.B. 528 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Latrobe Steel Company and United Steelworkers of
America, AFL-CIO. Case 6-CA 10333
August 22. 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRU ESI)AI I
On March 8, 1979, Administrative Law Judge Sid-
ney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
cross-exceptions and a supporting brief, to which Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,i and
conclusions of the Administrative Law Judge. to
modify his remedy,2 and to adopt his recommended
Order.
I The Administrative Law Judge's finding that Respondent violated Sec.
8(a)(5) of the Act by preconditioning bargaining upon the presence of a
court reporter is fully consistent with our recent decision in Bartlt-(Collins
Company. 237 NLRB 770 (1978). In passing, we note that impasse on this
issue can preclude collective bargaining on any topic whatsoever Thus. al-
though other procedural matters such as the location. date, and time of
bargaining sessions may be agreed to by means other than through formal
negotiation, insistence on the presence of a court reporter in effect reduces
the options of the parties to the exchange of written communiques. We find
such insistence at odds with the concept of meaningful bargaining and hence
a violation of the duty to bargain in good faith imposed by the Act.
2 Having found that the strike which commenced August . 1977. was an
unfair labor practice strike, the Administrative Law Judge found that the
strikers were unfair labor practice strikers and he ordered that Respondent
offer to each of them upon their unconditional application for reinstatement
immediate and full reinstatement to his former position or, if such position
no longer existed, to a substantially equivalent position, without prejudice to
his seniority or other rights and benefits, dismissing, if necessary. persons
hired on or after August I, 1977. The Administrative Law Judge further
recommended that Respondent make such strikers whole for any loss of pay
or benefits suffered by reason of Respondent's failure or refusal to reinstate
such striker within 5 days after his unconditional application for reinstate-
ment by payment to him of a sum of money equal to that he would have
earned as wages and other benefits from 5 days after his unconditional appli-
cation for reinstatement until the date of reinstatement. less his net earnings
during such period, said backpay to be computed in the manner prescribed
by the Board in F. W Woolworth Companyv 90 NLRB 289 119501, with
interest thereon as prescribed in Florida Steel Corporation. 231 N I.RB 651
(1977). We agree that this remedy is appropriate. In so doing, we note that
the Board has found the 5-day period is a reasonable accommod:laion he-
tween the interests of the employees in returning to work as quickly as pos-
sible and the employer's need to effectuate that return in an orderly manner.
Accordingly, if Respondent herein has already rejected. oir hereafter rejects.
unduly delays. or ignores any unconditional offer to return to work. r at-
taches unlawful conditions to its offer of reinstatement, the 5-da) period
serves no useful purpose and backpay will commence as of the unconditional
offer to return to work. Newport News Shipbuilding and Dn Dl ('olpan',.
236 NLRB 1637 (1978). Member Jenkins, foir the reasons set forth in his
partial dissent in Drug Package Companv. Inc.. 228 NL.RB 108 (1977). would
begin Respondent's backpay obligation from the date of each striker's un-
conditional offer to return to work.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Latrobe Steel Company.
Latrobe, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
SIAIIMl N I () Il I CAS.
SIi)N&Y J. BARHAN. Administrative Law Judge: This mat-
ter was heard in Pittsburgh. Pennsylvania. on March 14. 15.
16. and 17. 1978. upon a complaint issued on December 30.
1977. based on charges filed by the Charging Party, United
Steelworkers of' America. AFL ('10, herein the Union. on
June 21 and December 20, 1977 (all dates hereinafter. un-
less otherwise noted, are in 19771. The complaint alleges
that the Respondent. L.atrobe Steel Company violated Sec-
tion 8(a)(5) and (I) of the Act b (a) insisting on the pres-
ence of a professional stenographer to make verbatim tran-
scripts of collective-bargaining negotiations between the
Union and Respondent for a new bargaining agreement;
lb) insisting to the point of impasse on the exclusion of the
Union from the right to initiate grievances on behalf of'
employees in the unit represented b the Union: (c) insist-
ing to the point of impasse on Respondent's right to settle
grievances with employees in the unit, without affording the
Union the opportunity to be present: (d) insisting to the
point of impasse that I.ocal 1537, affiliated with the Union.
herein the local, he made a party to any new collective-
bargaining agreement between Respondent and the Union.
It is also alleged that the strike of Respondent's employees
in the unit, which began on August 1. was caused and pro-
longed by Respondent's alleged unlfair labor practices.
Respondent's answer denies the commission of the unfair
labor practices alleged. and also denies that the strike of the
employees was an unfair labor practice strike, but admits
allegations of the complaint justifying the assertion ofjuris-
diction under current standards of the Board. Respondent.
engaged at Latrobe. Pennsylvania, in the manufacture and
distribution of steel products, during a recent annual period
received directly from outside the State of Pennsylvania
goods and materials valued in excess of $50,000. and
shipped directly to points outside the State of Pennsylvania,
goods and materials valued in excess of $50.000. and to
support a finding that the Union is a labor organization
within the meaning of the Act.
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after consideration
of the briefs filed by the General Counsel and Respondent,
I make the following:
FINtINlS ANDI C()N( I.'SI(NS
A. 7/ie F(ci'
Background
In 1937 Respondent recognized the Steel Workers Orga-
nizing Committee. the predecessor of the Union. as the bar-
244 NLRB No. 59
528
I.ATROBI STEEL COMPANY
gaining representative of employees in its steel manufactur-
ing and by-products coke plants. and entered into a
collective-bargaining agreement with that labor organizt-
tion. Since that time. Respondent appears to have had con-
tinuous bargaining relations with the Union or its prede-
cessors. However, none of the bargaining agreements
between them have included the local as a partN to the
agreement. although in recent years, at least, elected officers
of the local participated on the bargaining committee which
has negotiated those agreements and. together with other
representatives of the Union, have signed such contracts.
Representation
It is agreed, and I find, that the Union at all times mate-
rial has been and s now the representative for the purposes
of collective-bargaining. within the meaning of Section 9(a)
of the National Labor Relations Act, as amended, herein
the Act, in the following unit which is an appropriate unit
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act: "All production and mainte-
nance employees employed by Respondent at is Latrobe,
Pennsylvania, facility, excluding office clerical employees.
mechanics. confidential employees, managerial employees
and guards, professional employees and supervisors as de-
fined in the Act."
Negotiations
1. Generally
The most recent bargaining agreement between Respon-
dent and the Union covering the above-stated unit, effective
August 1,. 1974, had a termination date of August 1, 1977.
Representatives of Respondent and the Union met begin-
ning June 7, on 27 occasions in negotiations prior to August
1, the date that employees in the unit went on strike, and on
20 occasions since then, up until the time of the hearing in
this matter. in an effort to arrive at an agreement on a new
bargaining contract. At these negotiations, Respondent's di-
rector of industrial relations. Joseph W. Pischke, insisted
upon a number of procedures which had not previously
been required in bargaining for an agreement for this unit.
Thus, at the outset, Pischke advised the union negotiators
that though they were accustomed to addressing him infor-
mally by his first name, in this bargaining they would be
required to address him formally. as Mr. Pischke, or he
would not respond. He also advised the Union that Respon-
dent insisted on having the negotiations recorded by profes-
sional reporters, who were present at the initial meeting.
and that no off-the-record discussions between the Union
and Respondent would be permitted. The Union was also
informed that Respondent intended to make the transcripts
of the negotiations available to members of the bargaining
unit during their nonwork time in Respondent's personnel
office. With minor variation. noted hereafter. Pischke rig-
idly adhered to these requirements and limitations during
the negotiations. In addition, after a number of the negotia-
tion sessions. Respondent issued letters to the employees
entitled "Straight Talk." and referred to generally at the
hearing as "Straight Talk letters." which Respondent used
to advise the employees of the availability of transcripts of
the negotiations in the personnel office, and to comment on
the negotiations generally and the conduct of the union ne-
gotiators in particular. Respondent had not employed these
tactics in previous negotiations.' The record indicates that
these new procedures may have been adopted at the in-
stance of the Timkin Compan. which had acquired Re-
spondent since the time of the previous negotiations (for the
1974 77 contract) covering the appropriate unit here in-
volved.
From the outset of the negotiations, the Union sought to
obtain Respondent's agreement of the terms of the 1977
basic steel argeement which had been negotiated with the
major employers in the industry (Respondent traditionally
had accepted the basic steel agreement in the past), and to
the continuation of the terms of the 1974 agreement be-
tween the Union and Respondent except as changed by the
basic steel agreement and b 21 "local proposals" made by
the Union. On its part, Respondent submitted 22 proposals
to change the terms of the 1974 bargaining contract (ac-
cording to one witness these would result in about 400
changes in the contract), including demands that the local
be made a party to the contract, and to change the opera-
tion of the grievance procedure, as dicussed hereinafter. Re-
spondent dropped none of its proposals prior to August 1.
the inception of the strike, although it made certain eco-
nomic proposals prior to that date which the Union re-
jected. 2 It does not appear that Respondent has accepted
any of the Union's proposals. On its part, the Union seems
to have first reduced its demands after the inception of the
strike, dropping its 21 local proposals, and agreeing to 2
issues raised by Respondent (which the latter characterized
as an insignificant movement).l
2. The transcripts
At the first bargaining session. Pischke introduced two
professional reporters present who he stated would record
all of the negotiations on Respondent's behalf. It was made
clear that Respondent would negotiate only on that basis,
and that no discussion of negotiable issues would be permit-
ted off-the-record.' As previously noted, the Union was in-
' Respondent's actions in making the transcripts available to the employ-
ees and in issuing Straight Talk letters to the employees were not alleged as
violations of the Act in and of themselves. but litigation of these matters was
permitted in order to show the context in which Respondent insisted on
requiring a professional transcript of the negotiations. and to shed whatever
light possible on Respondent's purpose.
2 It appears that at all times during the negotiations. Respondent look the
position that it would not "segment-bargain.' that is. Respondent considered
all of its proposals to be of equal value and not severable one from the other.
3 There is some confusion in the record as to when the Union dropped its
21 local issues. One witness for the General Counsel. William Ehman, testi-
fied that the Union dropped its 21 local proposals in early July Pischke
asserted that the Union had withdrawn none of its proposals before August
18. but then testified that the 21 proposals were withdrawn on August 5 A
publication issued by the local on October 10 indicates that the 21 issues
were withdrawn on October 5.
' Pischke testified to two occasions after the beginning of the strike in
which he had informal discussions with union negotiators. initiated by the
latter, with respect to facts which might assist in reaching agreement and
ending the strike The only other deviation from Respondent's fixed policy
also occurred during the strike when Respondent met with the Union to
discuss continuation of emplosee insurance coverage during the strike. No
reporters were present at that meeting. which apparently did not involve
bargaining issues.
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed that the transcripts would be made available to unit
employees in Respondent's personnel office. In addition to
making the transcripts available to the employees. Respon-
dent also commented on the negotiations in the Straight
Talk letters issued to employees after a number of the bar-
gaining sessions, some of which were derogatory of the
union negotiators and their conduct of the negotiations.
These actions caused the negotiators on both sides to be
overly conscious of the record, led to confrontations be-
tween Respondent and the Union with respect to the mak-
ing and use of these transcripts, and otherwise impeded the
course of the negotiations. Thus, there were frequent accu-
sations during the negotiations that one side or the other
was speaking "for the record," or acting in an abnormal
way because of the record, or was speaking to an "invisi-
ble" audience which was not participating in the bargain-
ing. Since the Union had no way of going "off-the-record,"
and had no control over the actions of the reporters, on one
occasion a rather stormy confrontation occurred when the
reporter continued to record comments of the union nego-
tiators remaining in the room after the session was con-
cluded. The union negotiators also felt forced to restrain
themselves in the manner of their proposals and the vigor of
their arguments lest the transcripts or the Straight Talk let-
ters be used by Respondent to make them appear in a bad
light to the employees. On one occasion in which the union
negotiators accused management in profane terms of being
insensitive to the welfare of the employees, this was re-
ported to the employees in a Straight Talk letter in a man-
ner that caused criticism of the union negotiators. The
Union further complained that the manner in which the
negotiations were being reported to the employees caused
misunderstandings that made it difficult for the Union to
make or withdraw contract proposals.5
The record is persuasive. and I find that the Union ob-
jected to Respondent's insistence on a transcript of the ne-
gotiations taken by professional reporters, and to the uses
made of the transcripts, as set forth above. from the outset
of the negotiations and thereafter. To the extent that
Pischke testified that the Union did not object to the "pres-
ence of the stenographer" at the first negotiations, on June
7, I1 do not credit his testimony. He elsewhere testified that
there were long discussions concerning the transcripts at
this opening session, although he asserts this related only to
the use of the transcripts. He agrees that the Union ob-
jected to "the use of a stenographer" at the second session.
on June 13, and thereafter. 6
Respondent adduced a number of reasons in support of
its decision to insist upon a professional transcript of the
negotiations. In essence, they are the following:
I. Respondent's parent company. The Timkin Company,
has had similar transcripts made of its negotiations with the
In one instance, the Union was inhibited in pursuing a proposal that
Respondent provide certain benefits for employees suffering from alcoholism
because. when Respondent denied that there was a problem, the union nego-
tiators were unwilling to discuss individuals "on the record."
IAt the June 13 session. one of the union negotiators brought, and was
permitted to use, a tape recorder, ostensibly to check on the accuracy of the
professional reporters. Shortly thereafter the union negotiator announced
that he was discontinuing use of the tape recorder, stating that he had dem-
onstrated that there were a number of errors in the transcript.
Union over several years. It appears. however, that in those
cases there has been agreement by the Union to that proce-
dure. There is no indication that Timkin has used the tran-
scripts as Respondent has in the present case.
2. Although Respondent has never insisted on profes-
sional transcripts of negotiations for the unit involved here.
it is asserted that such transcripts were made in two in-
stances involving dealings between Respondent and the
Union. In one case, in 1975. when Respondent was negoti-
ating for the first time with the Union for a unit of office
and technical employees, and the Union accused Respon-
dent of bargaining in bad faith. Respondent assertedly had
difficulty in putting its notes together in response, and
thereafter brought a professional stenographer into the ne-
gotiations. The Union does not seem to have objected. The
transcripts were not used in communications with employ-
ees, so far as is shown. Though the Union withdrew its
charges against Respondent in that case, it appears from
Pischke's testimony that the parties have never come to
agreement on a bargaining agreement for that unit.
In a second instance, Respondent brought professional
reporters into meetings called for the purpose of bringing
the pension plan covering unit employees into conformity
with the Employee Retirement Income Security Act (ERI-
SA). Though the Union objected, the meetings continued.
As Pischke testified, the parties there, in fact. "were not
negotiating" in the sense involved in the present proceed-
ing.
3. Respondent indicates that both parties found the tran-
scripts somewhat useful. Respondent using them at the end
of each session to review the events of the day, and both
sides finding it convenient on occasion to ask the reporter to
repeat a comment made during the bargaining which had
been missed. One union negotiator who missed a session of
the negotiations read the transcript of that day in Respon-
dent's personnel office. There was also some indication that
Respondent found this a convenient way to keep its parent
company informed as to the negotiations.
4. Respondent argues that in the event of a charge that
Respondent had engaged in bad faith bargaining in viola-
tion of the Act, such transcripts would be very useful in
meeting the charge.
3. The contract clauses
In his complaint, the General Counsel attacks Respon-
dent's alleged insistence to the point of impasse on three
contract proposals during the negotiations involved here.
The first of these proposals required that the local be made
a party to the contract, which had never been the prior
practice. Respondent argued that this would make the
elected officials of the local, with whom Respondent dealt
in the day-to-day administration of the contract, more re-
sponsible. During discussion of this argument, Respondent
indicated that it hoped thereby to restrain work stoppages
in violation of the contract, but seems to have finally con-
ceded that, notwithstanding the proposed change, it would
continue to deal with such occurences in the future as it had
in the past. The Union asserted that it could not agree to
this proposal inasmuch as the Union's constitution prohib-
530
LATROBE STEEL COMPANY
ited such a practice. On August 29, during intensive nego-
tiations immediately prior to the strike on August I as
Pischke testified, the Union informed Respondent that
there was no chance of the parties reaching an agreement if
Respondent insisted on this term. However. Respondent
did not withdraw its insistence on this proposal until Febru-
ary 6. 1978. at which time it also withdrew the proposals to
change the grievance procedure discussed below.
The two remaining contract proposals by Respondent
with which we are concerned here are part of Respondent's
attempt to substantially rewrite and restructure the griev-
ance procedure in the bargaining agreement. One result of
this would withdraw from the Union the right to file griev-
ances on its own initiative on behalf of employees or in
protection of the rights of the Union as a whole. (Among
other changes. Respondent's proposal would delete that
part of the prior contract providing that the "grievance pro-
cedure may be utilized by the Union in processing griev-
ances which allege a violation of the obligations of the
Company to the Union as such." See G.C. Exh. 8. p. 53.
marginal number 300) Thus, only grievances signed by indi-
vidual aggrieved employees could be processed under the
grievance procedure.
Respondent does not seem to dispute these findings, stat-
ing in its brief that "one of [Respondent's] requests elimi-
nated the Union from filing a grievance under the grievance
procedure of the contract," but asserting that "the Union
was not excluded from representing employees in the subse-
quent steps of the Grievance Procedure." (Br.. p. 29)
The General Counsel further contends that Respondent's
proposed grievance procedure provided that "the aggrieved
employee could settle his grievance or complaint with or
without the Union's presence 'as the employee may elect
. . 'in thefirst two steps of the grievance procedure." (Br., p.
12, emphasis supplied). At the same time, the General
Counsel admits that under the grievance procedure provi-
sions of the 1974-77 contract which the Union wished con-
tinued, "the aggrieved employee could seek to settle the
grievance with or without the Union present. at the employ-
ee's own election," "during the first step of the grievance
procedure." (Br.. p. 12, emphasis in the original) Thus, the
issue really concerns the changes proposed by Respondent
in step 2 of the grievance procedure. Paragraph I of step 2,
as proposed by Respondent is set forth below (regular type
is the language of the prior agreement: bracketed matter is
language of the prior agreement deleted by Respondent's
proposal: underlined material is new matter inserted in Re-
spondent's proposal):
Step 2
I. A grievance, to be considered further must be
filed in writing .. [promptly] within five calendar days
after the conclusion of the Step I discussions. It shall
be dated and signed by [the grievance committeeman
or] the employee (or other employees affected) and a
member of the grievance committee and should include
such information and facts as may be of aid to the
Company [and the Union] in arriving at a fair, prompt
and informed decision. A step 2 meeting will be sched-
uled by the Company within 10 calendar days following
receipt of appeal to step 2. The meeting ill be between
the emploqee a metnber of the grievance coninittel, as
the employee mayl elect, the General Foreman or his dles-
ignated representative. The answer to the grievance
shall be given by the General Foreman or his designated
representative within 72 hours from the time of presen-
tation.... Such answer .. shall be signed and deliv-
ered to the grievance committeeman] within tie clen-
dar days bllowing the Step 2 meeting and shall be signed
and delivered to the employee and a meniber of the griev-
ance committee.
B. .4 nalysis and C(onclusions
1. Respondent's insistence on verbatim transcripts
From the outset of negotiations for a new contract. Re-
spondent made clear that it would not bargain with the
Union unless all of the bargaining discussions were re-
corded by professional reporters. Though the Union pro-
tested Respondent's demand and continued to object to this
procedure and the uses made of the transcripts of bargain-
ing by Respondent, it nevertheless continued to bargain
with Respondent. During the negotiations Respondent not
only took particular effort to make the transcripts available
to the unit employees, but used them as a basis for denigrat-
ing the union negotiators and their conduct of the negotia-
tions. By this conduct Respondent clearly inhibited free and
full discussion of bargainable issues and impeded the course
of bargaining for a new collective-bargaining agreement.
contrary to the purposes and policies of the Act.
The General Counsel called as a witness an attorney of
wide experience in labor relations and collective bargaining
who testified to the effect that the use of professional report-
ers to record collective-bargaining negotiations is unusual
and is considered generally to impede and obstruct such
bargaining. In his brief, the General Counsel cites various
experts in the field as having written to this effect. Respon-
dent, on its part, at the hearing called as a witness as attor-
ney for Respondent's parent. The Timkin Company. who
testified that his experience has been generally to the con-
trary. However. our experience, and I believe the weight of
authority of experts in the field of labor relations, tend to
support the witness called by the General Counsel rather
than Respondent's witness on the issue. See also Bartlett-
Collins Company, 237 NLRB 770 (1978).
Respondent's reasons for insisting upon such transcripts.
noted hereinabove, amount generally to claims of personal
preference and convenience. Respondent also places par-
ticular stress on the usefulness of such transcripts in the
event of unfair labor practice charges, citing N.L.R.B. v.
Southern Transport, Inc.. 355 F.2d 978 (8th Cir. 1966).
These reasons cannot prevail, however, over the over-
whelming weight of evidence of those who know this field
that insistence upon such transcripts, over the objections of
other parties to the negotiations, tends to stulif, bargaining
and obstruct the policies and purposes of the Act to foster
and encourage free collective bargaining. Experience has
shown that careful notetaking by the negotiating team does
serve well all of the needs of the parties, including defenses
to unfair labor practice charges. Indeed, insistence on intro-
531
I) (ECISIONS ()1 NAIO()NAI. I.ABOR RELATIONS BOAR[)
ducing strange reporters in the negotiators tends to create
tension and suspicion, as in the instant case, which leads to
the very litigation that Respondent says it seeks to avoid.
Insistence upon unilaterally imposed conditions is not con-
ducive to peaceful settlement of ditficult labor relations
problems.
Since the close of' the hearing in this matter, the Board
has decided, in Bartle,-(ollins. vl/p,, that insistence by one
party to bargaining negotiations upon verbatim transcripts
of the negotiations taken by professional reporters as a con-
dition precedent to the bargaining over the objection of
other parties constitutes unlawful insistence upon a non-
mandatory bargaining issue in violation of Section 8(a)(5)
and (I) of the Act. Respondent's counsel. by letter supple-
menting his brief, contends that decision is not applicable
to this case because (I) "the impasse and ensuing strike [in
this matter Nwas caused by the intransigent position taken
and maintained by the Union throughout the bargaining
negotiation." and (2) "in all equity and judicial fairness a
retroactive or ex pos fatelo application of the holding in the
Bartlett case would not be justified in these proceeding,"
citing Drug Package, Inc. v. N.L.R.B., 570 F.2d 1340 (8th
Cir. 1978).
I find, however, contrary to Respondent, that the impasse
with respect to the taking of' the transcripts of negotiations
took place at the outset of the negotiations when Respon-
dent insisted that the negotiations could not proceed except
upon that condition, and the Union objected and continued
to maintain its opposition to such procedure. The fact that
the Union nevertheless continued to bargain does not
change the result. To hold that the Union was compelled to
break off bargaining in order to make its point would be
destructive of the bargaining process and run counter to the
purposes of the Act. Moreover, even if it were considered
that impasse occurred as to this issue when the strike began
on August 1, 1977, 1 find that Respondent's insistence on
the taking of verbatim transcripts of the negotiations con-
tributed substantially to that impasse. as discussed further
hereinafter.
Drug Package. supra, considered whether the Board's re-
cent policy of issuing bargaining orders retroactive in effect.
rather than merely prospective, where a refusal to bargain
was found, was appropriate in that case. The court, after
holding that the Board was in error in finding a refusal to
bargain in the first instance, held the Board's order inappro-
priate there, though recognizing the authority of the Board
to announce new rules in adjudicatory proceedings such as
the present case. In this case, where the insistence on verba-
tim transcripts, and the uses made of them are shown to
have impeded and obstructed collective bargaining con-
trary to the basic purposes of the Act, a finding that Re-
spondent thereby violated the Act is particularly appropri-
ate.
For the reasons stated. I find that by insisting to impasse
upon professional reporters to make verbatim transcripts of
the bargaining negotiations, Respondent violated Section
8(a)(5) and (I) of the Act.
2. Insistence on the L.ocal as a party to the contract
Respondent. from the beginning of the negotiations until
February 6, 1978 (about 7 months after the inception of the
strike), insisted that the local be included as a party to the
collective-bargaining agreement. Respondent's position was
that this would make the local. some of whose officers par-
ticipated in the bargaining negotiations, more responsible in
the administration of the bargaining agreement.
However, it is admitted that at all times material the
Union was the designated or selected representative of' all
the employees in the appropriate unit, and "by virtue of
Section 9(a) of the Act has been and is now the exclusive
representative of all the employees in said unit for the pur-
poses of collective bargaining." (See par. 7 of the complaint
and Respondent's answer) For approximately 40 years Re-
spondent has bargained and signed bargaining agreements
with the Union or its predecessors as the representative ofl
such employees. It appears that during some part of that
period officers of the local participated in that process as
agents or representatives of the Union for that purpose. On
this record it cannot be said that the unit employees desired
the local to participate in the bargaining process on any
other basis. Indeed, during the negotiations, the Union op-
posed this proposal of Respondent on the grounds that it
was not only contrary to the settled policy of the Union, but
was also contrary to the Union's constitution. In such case
it is to be assumed that the unit employees had assented to
the Union's practice that the local not be made a party to
the contract.
In these circumstances, the Union being the exclusive
bargaining representative of the unit employees within the
meaning of the Act, Respondent was not justified in insist-
ing to the point of impasse, as it did, that the Union relin-
quish that status and agree that the local be a corepresenta-
tive of the employees for the purposes of collective
bargaining. As the Supreme Court held in N.L.R.B. v.
Wooster Division of Borg-Warner Corp.. 356 U.S. 342
(1958). such proposals to change the representative status of
the labor organization designated or selected by unit em-
ployees are not proposals which deal with "wages hours
and other terms and conditions of employment." and thus
are nonmandatory bargaining issues which cannot be in-
sisted upon in negotiations to the point of impasse.
For the reasons set forth. Respondent, by insisting to the
point of impasse that as a condition to agreement upon a
new contract that the local be made a party to the contract,
violated Sections 8(a)(5) and (I) of' the Act.
3. Insistence upon changes in the grievance procedure
a. Il;'aiver of/ the Union's right to he present at the
adjustment o'grievance.s
Section 9(a) of the Act provides, insofar as pertinent to
this issue, that employees shall have the right "to present
grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining repre-
sentative." provided that "the bargaining representative has
been given opportunity to be present at such adjustment."
The General Counsel contends that Respondent insisted
as a condition to entering into a new bargaining agreement
with the Union that the latter agree that in the first two
steps of the grievance procedure that "the aggrieved em-
532
1.AIR(O)B SE.I. (COMPANY
ployee could settle his grievance or complaint with or with-
out the Union's presence. 'as the employee may elect.'
((G.. hr.. p. 12) This, indeed. seems to he the effect of
Respondent's proposal as to the first step of the grievance
procedure. However. Respondent's proposal to this extent
was the same as the grievance procedure in prior contact
between the Union and Respondent which the Union as-
serted it was willing to accept in the new agreement (though
without other changes sought by Respondent). This being
so. it can hardly he said that Respondent was insisting upon
an impermissible change in the first step of the grievance
procedure to the point of impasse.
However, Respondent's proposal for the second step oft
the grievance procedure presents a more difficult problem.
In this step Respondent proposed. and insisted until long
after the inception of the strike, that the step 2 meeting in
the grievance procedure "will he between the employee. a
member of the grievance committee, as i' cmpllovc'c a
elect. land] the General Foreman or his designated repre-
sentative" (Emphasis supplied.) This was a substantial
change from the prior agreement, and was never agreed to.
But Respondent's proposal further provided that Respon-
dent's answer to the step 2 grievance presentation would be
given in writing within 5 days after the meeting, with copies
of such answer delivered to the employee and a member of
the Union's grievance committee. Thus it is far from clear
that Respondent's proposal envisioned a step 2 meeting at
which the employees' grievances would he adjusted without
affording the Union an opportunity to be present at the
adjustment. Rather it appears that it was anticipated that
the employees' grievances would be adjusted if they were
adjusted-by written communication after the meeting.
with a copy given to the Union and the employee. In these
circumstances, I find that Respondent's proposal, on its
face, did not exclude the Union from an opportunity to be
present at the adjustment of the employees' grievances at
step 2 of the grievance procedure. It may be that such
would be the practice under such procedure. but I cannot
here pass upon that.
For the reasons stated, it will recommend that the allega-
tions of the complaint that Respondent violated the Act hb
insisting to the point of impasse on the right to settle griev-
ances with unit employees without affording the Union an
opportunity to be present be dismissed.
b. Waiver of the Union s right to tile grievatie.v
Under the prior agreement between the Union and Re-
spondent. the Union had the right to file grievances on be-
half of individual employees and groups of employees, and
also to protect the rights of the Union under the bargaining
agreement. Respondent's proposals with which we are con-
cerned here withdrew the Union's right to file grievances on
its own initiative and required that all such grievances be
signed by individual employees. In its brief, Respondent
argues that though its proposals would eliminate the union
from filing grievances, the Union was not excluded from
representing employees at later stages of the grievance pro-
cedure, and, further, that "it was the intransigence of the
Union that eliminated any prospect of reaching an agree-
ment." (p. 31) "so it is apparent that this particular pro-
posal of' the company \Aas not the ca;us o the impasse' (p.
30).
The right of the Union, however. to represent the em-
ployees in the unit, both individually and collectively, at all
stages of the grievance procedure, including the right to file
grievances and process them, alnd to administer the collec-
tive-hargaining agreement. is a statutory right which Re-
spondent may not insist to the point of impasse that the
U nion waive. The proposal that only grievances signed bh
individual employees could be considered under the con-
tract was not a matter included ithin the term "vsaces.
hours and other conditions of emplo?ment" tha; Respon-
dent vas privileged to make a conditlon precedent to agre.te-
ment, as Respondent did here. See Indluwril I ml, ot \,/-
rim' and S/iiphuildi I r'/-,r )I -IMli a, l1 F1 (0
N.I,.RB.. 320 F.2d 61 (d (ir. 1963i.
I find, on the record as a vhole. iand as discussed here-
inhelow. that Respondent, h insisting to impasse upon the
elimination of the l nioin frorn iling grie ances under tlhe
contract and upon the requirement that all grieances be
signed hb individual emiploecs, engaged in cond uct olat-
ing Section 8(a1(5) and ( I ) of the Act.
4. The impasse issue: nature of the strike
Respondent does not dispute that the bargaining negotia-
tions had reached an imnpasse hb the time that the lniion
went on strike on August . 1977. or that Respondent con-
tinued to insist uponi all of its proposals discussed above at
that time and for a considerable periold thereafter. but ar-
gues, nevertheless. that it cnnot be held responsible tir tihe
impasse which occurred since the nion ,also adamantly
refused to gi e up an of its demands prior to the strike.
and. indeed, did not come to terms with Respondent even
when Respondent dropped its proposals on Februar 6.
1978, for changes in the grievance procedure and that the
local he made a party to the contract. Respondent misses
the point. There is no show ing that the Union was engaged
in other than proper bargaining, or that it was not privi-
leged to maintain the positions which it held. On the other
hand. as has been shown. Respondent was not privileged to
insist to impasse upon positions which have been discussed.
In effect. Respondent argues that there would have been no
agreement even if it had not taken the adamant positions
with which we are here concerned. The problem is that we
have no way of testing this argument because Respondent
did not withdraw from these impermissible positions prior
to impasse. It is impossible to know as a matter of hindsight
what the Union might have done. prior to impasse. it' Re-
spondent had not exacerbated the negotiations with unilat-
erally imposed conditions (such as the insistence upon ver-
batim transcripts and the uses made of them). or had
dropped the proposals discussed above prior to the strike.
As an example: the record shows that there wias no chance
whatsoever of an agreement so long as Respondent insisted
on making the local a party to the contract. Respondent
was informed of this. but not only did not drop this pro-
posal. but made it clear that its agreement to athinig was
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contingent on the Union's agreement to all of Respondent's
proposals.'
On the record as a whole, I find that Respondent's ada-
mant position with respect to making the local a party to
the contract, its insistence upon a verbatim transcript of the
negotiations by professional reporters, and its insistence on
excluding the Union from filing grievances on its own ini-
tiative under the contract contributed substantially to the
impasse which resulted in the strike and were causes of the
impasse which occurred and of the strike which resulted. I
therefore find, that the strike was an unfair labor strike.
caused and prolonged in substantial part by Respondent's
unfair labor practices.
CON(IUSIONS OF L.AW
1. Respondent is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material herein the Union has been and
continues to be the exclusive representative of Respondent's
employees in the appropriate bargaining unit set forth im-
mediately below for the purposes of collective bargaining
within the meaning of Section 9(a) and (b) of the Act.
4. All production and maintenance employees employed
by Respondent at its Latrobe. Pennsylvania, facility, ex-
cluding office clerical employees. mechanics, confidential
employees, managerial employees and guards, professional
employees and supervisors as defined in the Act constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. Respondent, by insisting to impasse on the presence of
professional reporters to make verbatim transcripts of bar-
gaining negotiations as a condition of bargaining, and by
insisting to impasse, as a condition of agreement to a bar-
gaining contract, upon making the local a party to the con-
tract, and that all grievances filed under the contract be
signed by individual employees in the unit, has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) of the Act, which unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
6. The strike of the unit employees which began on Au-
gust 1, 1977, was caused and has been prolonged by Re-
spondent's unfair labor practices.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act, it will be recommended
I The fact that the Union still did not come to agreement with Respondent
even after Respondent dropped its impermissible proposals during the strike
has been carefully noted, but does not change the conclusions made above.
The record is not clear as to the details of the negotiations. That the Union
continued adamant on its demands, even after Respondent dropped its most
objectionable proposals, may well be due to the state of the bargain at that
time. It is not surprising that the union position might have hardened after 7
months of strike.
that Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent has engaged in unfair la-
bor practices in violation of the Act by insisting to impasse
as a condition of bargaining upon verbatim transcripts of
the negotiations taken by professional reporters, and by in-
sisting to impasse as a condition to agreement to a collec-
tive-bargaining contract upon making Local 1537. affiliated
with the Union, a party to the contract. and that all griev-
ances filed under the contract be signed by individual em-
ployees. I shall recommend that Respondent be ordered to
cease and desist from engaging in such conduct, and. upon
request, bargain collectively in good faith with United
Steelworkers of America, AFL-CIO, and its designated
agents at times and places mutually convenient concerning
wages, rates of pay, hours of employment, and other terms
and conditions of employment.
Having found that the strikers who went on strike on
August 1, 1977. and thereafter, are unfair labor practice
strikers, it will be recommended that Respondent be or-
dered to offer each of them, upon his unconditional applica-
tion for reinstatement, immediate and full reinstatement to
his former position or, if such position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and benefits, dismissing, ift' neces-
sary, persons hired on or after August I. 1977. Respondent
shall make such strikers whole for any loss of pay or bene-
fits suffered by reason of Respondent's failure to refusal to
reinstate such striker within 5 days after his unconditional
application for reinstatement by payment to him of a sum
of money equal to that he would have earned as wages and
other benefits from 5 days after his unconditional applica-
tion for reinstatement until the date of his reinstatement.
less his net earnings during such period, and interest
thereon to be computed in the manner prescribed in F W.
Woolworth Company. 90 NLRB 289 (1950). and Florida
Steel Corporation, 231 NLRB 651 (1977). See generally. Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record. and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER'
The Respondent, Latrobe Steel Company, Latrobe.
Pennsylvania, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Interfering with the efforts of the United Steelwork-
ers of America, AFL-CIO, to bargain on behalf of the em-
ployees in the unit described below by insisting to impasse
upon any of the following:
(I) the presence of professional reporters to make a ver-
batim stenographic record of negotiations as a condition to
negotiations with the Union.
8 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.
534
IA RO)B SIELL (OMPANY
(2) mnaking l.ocal 1537. affiliated with the Ilnion. a party
to the contract. as a condition to agreement upon a bar-
gaining contract.
(3) that the Union be excluded from filing grievances. or
that all grievances be signed b individual employees.
(b) In any like or related manner interfering with the
efforts of the L nion to bargain collectively on behalf of the
employees in the nit described below:
The appropriate unit is: All production and mainte-
nance employees employed by Respondent at its La-
trobe. Pennsylvania. facility, excluding office clerical
employees. mechanics, confidential employees, man-
agerial employees and guards, professional employees
and supervisors as defined in the National Labor Rela-
tions Act, as amended.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Upon request, meet and bargain collectively in good
faith with the Union and its designated agents at mutually
convenient times and places with respect to wages., rates of
pay. hours, and other terms and conditions of employment,
and if agreement is reached, embody it in a signed contract.
(b) Offer full reinstatement to all strikers who went out
on strike on August I, 1977. or thereafter joined such strike.
within 5 days after each such striker makes an uncondi-
tional offer to return to work, and make each striker whole
for any loss of pay or benefits suffered by reason of Respon-
dent's failure or refusal to reinstate such striker within the
time limit required in the manner set forth in the portion of
this Decision entitled "The Remedy."
(c) Post at its facility at Latrobe, Pennsylvania, copies of
the attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director flr Re-
gion 6. after being duly signed by an authorized representa-
tive of Respondent. shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, inconspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 6. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
9 In the event that this Order is enforced by a Judgment of a 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."
11 s I FR IIIER ORDI)Rtl) that the complaint he. and t
hereby is. dismissed as to any alleged iolation of the Act
not found hereinabove in this Decision.
APPEN DI X
Norl(i To EPI.OYi¥s
POSTED BY ORI)FR OF1 1111
NAIIONAI. LABOR RI.AIION\s Bt ARI)
An Agency of the United States Government
Wi Vt ll_. N interfere with the efforts of I ted
Steelworkers of America. AFL (IO. to barg;ian on be-
half of the employees in the unit described belo bh
insisting to impasse upon any of the following:
(I ) that a professional reporter be present to mlake a
stenographic record as a condition to bargailling with
the Union.
(2) that Local 1537. affiliated with the Union. he a
party to the contract, as a condition of the C(ompan;
agreeing to a bargaining contract.
(3) that the Union not file grievances under the con-
tract, or that employees must sign all grievances.
WF wilL Nor in any like or related manner interfere
with the efforts of the Union to bargain collecti\ el on
behalf of the employees in the unit described below.
The appropriate unit is: All production and mainte-
nance employees employed by the company at its La-
trobe, Pennsylvania, facility. excluding office clerical
employees. mechanics. confidential employees, maln-
agerial employees and guards, professional emplo'ees
and supervisors as defined in the National abor Rela-
tions Act. as amended.
WtE WILL, upon request, meet and bargain collec-
tively in good faith with the Union and its designated
agents at mutually convenient times and places with
respect to wages, rates of pay, hours. and other terms
and conditions of employment, and if agreement is
reached, embody it in a signed contract.
WI- witi. offer full reinstatement to all strikers who
went on strike on August 1. 1977. or thereafter joined
such strike, within 5 days after each such striker makes
an unconditional offer to return to work, and vwt. ,1Wt.
make any such striker whole for losses of pay anti
benefits suffered by reason of your failure or refusal to
reinstate such striker within 5 days of unconditional
application, as required by the Order of' the National
Labor Relations Board.
LATROBI. STEtI. COMPANY