Lectromelt Casting Co.

National Labor Relations Board - Board Decisions

Apr 11, 1984

269 N.L.R.B. 933 (N.L.R.B. 1984)

LECTROMELT CASTING CO.
Lectromelt Casting and Machinery Company, a Divi-
sion of Akron Standard Division, Eagle Picher
Industries, Inc.; and Lectromelt Casting Divi-
sion, Ravenna Industries, Inc., a wholly-owned
subsidiary of the A. C. Williams Company and
Hells Palmer
Lectromelt Casting Division, Ravenna Industries,
Inc., a wholly-owned subsidiary of the A. C.
Williams Company and Donnal May. Cases 8-
CA-13000 and 8-CA- 13431
11 April 1984
DECISION AND ORDER REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 1-December 1982 Administrative Law Judge
Lowell Goerlich issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, Respondents Akron and Ravenna filed cross-
exceptions and supporting briefs, and Respondent
Akron filed a brief in support of the judge's deci-
sion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and
has decided to affirm the judge's rulings, findings, 2
and conclusions and to adopt the recommended
Order only to the extent consistent with this Deci-
sion and Order.
Based on his assessment of the credited testimo-
ny, the judge found that Helis Palmer was suspend-
ed for cause and not because of his union or other
protected activities. Accordingly, he recommended
that the consolidated complaint, as amended, be
dismissed insofar as it alleges that Palmer was un-
lawfully suspended. We agree.
Without reaching the merits, the judge recom-
mended further that the complaint be dismissed in
its entirety. In this respect, he found that a private
settlement agreement between the Union and Re-
spondent Ravenna bars prosecution of a claim that
employees were unlawfully discharged following
an unauthorized work stoppage precipitated by
Palmer's suspension.
I Respondent Akron has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the issues
and positions of the parties.
2 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the fmndings.
269 NLRB No. 161
Contrary to the judge, we find, on the facts and
for the reasons set forth below, that the private set-
tlement agreement here in question is not a bar to
this aspect of the proceeding, which we shall
remand to the judge for disposition on the merits.
The record establishes that Palmer was given a
5-day disciplinary suspension commencing
Monday, 11 June 1979. On that date, Respondent
Akron met with a union committee which sought
revocation of the suspension. This grievance was
not resolved. On the following day employees
went out on a wildcat strike to protest the suspen-
sion. In the course of the strike, which the General
Counsel concedes was unprotected, Akron ob-
tained a temporary restraining order against em-
ployee misconduct, citing mass picketing and
blocking of its facility by strikers.3
Contemporaneously, Akron filed a Section 301
suit against the Union for breach of contract, seek-
ing compensatory and punitive damages, and on 20
June, the day after the strike ended, filed charges
with the Board. A complaint subsequently issued
alleging that the Union, through its officers, agents,
and representatives, including the three alleged dis-
criminatees herein: Palmer, Donnal May, and
Eddie May, violated Section 8(b) of the Act by en-
gaging in the picket line misconduct, mentioned
above.
Meanwhile, on 18 June, Akron discharged 10
employees, including Palmer and the two Mays,
for having "instigated, supported and/or participat-
ed in the illegal wildcat strike...." Grievances
lodged on their behalf were rejected by Akron 25
June. On 16 July counter charges were filed
against Akron by Palmer and, subsequently, by an-
other former striker, Probst, on behalf of himself
and others, alleging that they were unlawfully dis-
charged.
This is how matters stood when Respondent Ra-
venna, cognizant of the foregoing, purchased
Akron's assets and took over the latter's operations
as a successor on 20 August 1979. On the same
date, Ravenna entered into an agreement with the
incumbent Union recognizing it as the employees'
bargaining representative and adopting the labor
agreement of its predecessor, subject to certain
modifications, terms, and conditions, of which the
following are here relevant:
6. All lawsuits and NLRB charges filed by
Lectromelt Division will be dropped.
7. The ten (10) employees terminated by Lec-
tromelt Division will be reinstated Wednesday,
s Subsequently, Respondent Akron obtained a preliminary injunction
against the Union for the conduct here cited.
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 22, 1979, provided that they drop all
charges and claims against Lectromelt Divi-
sion.
Thereafter, the parties signed a document memori-
alizing certain action taken pursuant to the above
accord. It states:
Of the ten (10) employees terminated four (4)
did notify the Company by August 22, 1979 of
their intention to drop their charges ...
These four employees submitted to the Com-
pany a copy of a letter they gave the NLRB
indicating their desire to drop charges.
They are therefore reinstated.
The remaining six (6) employees who were
terminated will not be reinstated.
Consistent with the agreement, the Respondent
also ended all litigation and abandoned all claims
arising out of the wildcat strike.
As previously mentioned, the judge held that this
agreement and the action taken with respect to it
extinguished the right of employees to seek adjudi-
cation of their claim that they were unlawfully dis-
charged. We disagree.
The Board's authority to adjudicate an unfair
labor practice charge under Section 10(a) of the
Act is not affected by any private agreement
among parties to a dispute which is the subject of
that charge.4 To be sure, the Board has deferred to
private settlement agreements under certain cir-
cumstances where the Board is persuaded that it
would effectuate the purposes of the Act to do so.5
However, in the case before us, yielding to the
agreement in no manner resolves the issues raised.
For, on its face, the agreement does no more than
offer each discharged striker immediate reinstate-
ment as a quid pro quo for abandoning his claim
that he was unlawfully discharged. With respect to
those who failed or refused to accept this offer
within the time allowed, the offer was withdrawn
and the discharged employees were left in the same
position as before-free to exercise whatever right
of access to the Board's processes the Act allows.
In these circumstances, we find that the settle-
ment agreement between Respondent Ravenna and
the Union does not bar prosecution of complaint
allegations that Palmer and the two Mays, who
with three others did not accept the offer of rein-
' Machinists Lodge 743 v. United Aircraft Corp., 337 F.2d 5 (2d Cir.
1964).
a See, e.g., Central Cartage Co., 206 NLRB 337 (1973).
statement,6 were discharged in violation of Section
8(a)(3) and (1) of the Act.
Accordingly, we will remand this proceeding to
the judge for a decision on the merits.7
ORDER
Pursuant to Section 102.48 of the Board's Rules
and Regulations, it is ordered that Cases 8-CA-
13000 and 8-CA-13431 be remanded to Adminis-
trative Law Judge Lowell Goerlich for disposition
on their merits.
IT IS FURTHER ORDERED that the judge shall pre-
pare and serve on the parties a Supplemental Deci-
sion in said cases containing his resolutions with re-
spect to the credibility of witnesses, findings of
fact, conclusions of law, and recommendations; and
that, following the service of such Supplemental
Decision on the parties, the provisions of Section
102.46 of the Board's Rules and Regulations, Series
8, as amended, shall be applicable.
CHAIRMAN DOTSON, dissenting in part.
Like the judge I would defer to the August 1979
settlement between the Respondent and the Union
and dismiss the allegations that the Respondent dis-
criminatorily discharged Palmer and Donnal and
Eddie May. By the settlement the parties reason-
ably resolved multiple disputes resulting from a
wildcat strike and gave the 10 discharged strikers
an opportunity for reinstatement. The agreement
represents the fruits of voluntary bargaining and is
consistent with the policies of the Act. Deferral is
appropriate.
8 The complaint in this proceeding does not allege violations with re-
spect to the other employees who failed to accept the offer of reinstate-
ment.
7 Having decided to remand the instant proceeding, we shall deny the
Respondent's motion to introduce newly discovered evidence, without
prejudice to the Respondent's right to renew its motion before the judge.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. Helis
Palmer, an individual, filed the original charge in Case
8-CA-13000 on July 16, 1979, alleging that Lectromelt
Casting Co. had discharged him on June 18, 1979, in vio-
lation of Section 8(a)(3) of the National Labor Relations
Act herein referred to as the Act.
On August 13, 1979, Palmer filed an amended charge
of the same import in Case 8-CA-13000 except that it
named the Employer as Lectromelt Casting and Machin-
ery Co.
On or about August 20, 1979, Lectromelt Casting Di-
vision, Ravenna Industries, Inc., a wholly-owned subsidi-
ary of The A. C. Williams Company, hereinafter referred
to as Ravenna, acquired the assets of Lectromelt Casting
934
LECTROMELT CASTING CO.
and Machinery Company, a Division of Akron Standard
Division, Eagle Picher Industries, Inc., hereinafter re-
ferred to as Akron, and continued Akron's operations.
On December 12, 1979, Donnal May, an individual,
filed a charge in Case 8-CA-13431 naming Lectromelt
Casting and Machinery Company as the Employer. In
the charge it was alleged that the Employer had dis-
charged Eddie Lee May, Odell May, Donnal May, Paul
Armbruster, and Larry Westfall in violation of Section
8(a)(3) of the Act. The charge was served on Ravenna
on December 19, 1979. On August 21, 1980, a complaint
and notice of hearing was issued on Donnal May's
charge in Case 8-CA-13431 naming Ravenna as Re-
spondent. Among other things, it was alleged in the
complaint that Ravenna had purchased the assets of
Akron on August 20, 1979, and since such date has been
engaged in the same business operations, and that at the
time of purchase Ravenna had knowledge of a charge
filed by Forrest Probst in Case 8-CA-13053 against
Akron. It was also alleged that Akron discharged
Donnal May and Eddie Lee May on June 18, 1979, in
violation of Section 8(aX3) of the Act, and that since
August 20, 1979, Ravenna had refused to employ these
employees.
On September 22, 1980, Ravenna filed its answer de-
nying that it had engaged in the unfair labor practices al-
leged but admitting that:
On or about August 20, 1979, The A. C. Williams
Company purchased the assets of the Lectromelt
Casting and Machinery Company, a division of
Akron Standard Division, Eagle Picher Industries,
Inc., including the facilities and equipment. The
assets were transferred to the Lectromelt Casting
Corp., an Ohio corporation which was a wholly-
owned subsidiary of Ravenna Industries, Inc. Lec-
tromelt Casting Corp. was merged into Ravenna In-
dustries, Inc. on December 17, 1979. Since August
20, 1979, Respondent has been engaged in the same
business operations, at the same location, selling the
same products to substantially the same customers,
and has a majority of its employees individuals who
were previously employees of the Lectromelt Cast-
ing and Machinery Company, a division of Akron
Standard Division, Eagle Picher Industries, Inc.
At the time of purchase of the assets of Lectromelt
Casting and Machinery Company, on or about
August 20, 1979, Respondent had knowledge of a
charge filed by Forrest Probst in Case No. 8-CA-
13053 against Lectromelt Casting and Machinery
Company, a division of Akron Standard Division,
Eagle Picher Industries, Inc.
On March 10, 1981, Ravenna Industries, Inc., filed for
reorganization under chapter 11 of The Bankruptcy Act.
On March 26, 1981, an order consolidating cases,
amended consolidated complaint, and notice of consoli-
dated hearing in Cases 8-CA-13000 and 8-CA-13431
was issued naming Ravenna as Respondent in both cases.
The allegations of the consolidated complaint were es-
sentially the same as those of the previous complaint
except that Helis Palmer was named as an additional dis-
criminatee.
On April 16, 1981, Ravenna answered the amended
consolidated complaint. Its answer to the amended con-
solidated complaint was essentially the same as its
answer to the previous complaint; however, the admis-
sion was added:
At the time of purchase of the assets of Lectro-
melt Casting and Machinery Company, on or about
August 20, 1979, Respondent had knowledge of the
charge filed by Helis Palmer in Case No. 8-CA-
13000 against Lectromelt Casting and Machinery
Company, a division of Akron Standard Division,
Eagle Picher Industries, Inc.
On October 22, 1981, Helis Palmer filed a second
amended charge in Case 8-CA-13000 naming Lectromelt
Casting and Machinery Company, a Division of Akron
Standard Division, Eagle Picher Industries, Inc., and
Lectromelt Casting Division, Ravenna Industries, Inc., a
wholly-owned subsidiary of The A. C. Williams Compa-
ny, as the Employers, and charging that these Employers
discharged Palmer, Donnal May, and Eddie Lee May in
violation of Section 8(a)(3) of the Act. The second
amended charge was served on Akron and Ravenna on
October 22, 1981.
On November 4, 1981, an order consolidating cases,
second amended consolidated complaint, and notice of
consolidated hearing was issued naming Akron and Ra-
venna as Respondents in Case 8-CA-13000 and Ravenna
as Respondent in Case 8-CA-13431. The second amend-
ed consolidated complaint was essentially the same as the
prior amended consolidated complaint. Added was an al-
legation that:
A charge in Case No. 8-CA-13053 was filed by
Forrest Probst against Respondent Akron on
August 1, 1979, service by registered mail being
made upon Respondent Akron on or about August
7, 1979, which named, among others, Donnal May
and Eddie Lee May as discriminatees because of
their discharges on June 18, 1979.
On or about January 6, 1982, Respondents Ravenna
and Akron filed separate answers denying that they had
engaged in the unfair labor practices alleged. They also
pled a number of affirmative defenses, one of which was:
The unfair labor practice charges filed against Re-
spondent Akron were part of a grievance settlement
negotiated by Respondents with the incumbent
union, Local 45, International Molders & Allied
Workers Union, which was the exclusive bargaining
agent for the discriminatees and other bargaining
unit employees. As part of said grievance settle-
ment, the charges were to be withdrawn and, in ex-
change therefor, Respondent Akron caused a Sec-
tion 301 damage suit against the Union to be dis-
missed and Respondent Akron withdrew certain
unfair labor practice charges which were pending
against the Union and upon which Region 8 of the
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.L.R.B. had issued complaint. In further consider-
ation thereof, Respondent Ravenna offered rein-
statement to the 3 above referred discriminatees.
Accordingly, there was a full settlement reached
and Respondent Akron fully complied with the
terms of said settlement and should not now be put
to a defense of said unfair labor practice charges.
The matter came on for hearing on January 21 and 22,
March 10, 11, and 12, and July 14 and 15, 1982, in
Akron, Ohio. Each party was afforded a full opportunity
to be heard, to call, examine, and cross-examine wit-
nesses, to argue orally on the record, to submit proposed
findings of fact and conclusions of law, and to file briefs.
All briefs have been carefully considered.
On the entire record' in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF RESPONDENTS
Ravenna Industries, Inc., is now, and has been at all
times material herein, an Ohio corporation which is a
wholly owned subsidiary of The A. C. Williams Compa-
ny, which is now, and has been at all times material
herein, an Ohio corporation.
On or about August 20, 1979, The A. C. Williams
Company purchased the assets of Respondent Akron, in-
cluding the facilities and equipment. The assets were
transferred to Lectromelt Casting Corp., an Ohio corpo-
ration which was a wholly owned subsidiary of Ravenna
Industries, Inc. Lectromelt Casting Corp. was merged
into Ravenna Industries, Inc., on December 17, 1979.
Since August 20, 1979, and at all times material herein,
Respondent Ravenna has been engaged in the same busi-
ness operations, at the same location, selling the same
products to substantially the same customers, and has
had as a majority of its employees individuals who were
previously employees of Respondent Akron.
By virtue of the operations described above Respond-
ent Ravenna has continued the employing entity and is a
successor to Respondent Akron.
At all times material herein Respondent Ravenna has
been engaged in the manufacture and sale of foundry
castings at its facility located in Barberton, Ohio, the
only facility involved herein.
Respondent Akron was engaged in the manufacture
and sale of foundry castings at its facility located in Bar-
berton, Ohio, until on or about August 20, 1979.
Annually, in the course and conduct of its business op-
erations, Respondent Akron, prior to its sale referred to
above, shipped goods valued in excess of $50,000 from
I There being no opposition thereto, Respondent Akron's motion to
correct the transcript is granted and the transcript is corrected according-
ly.
There being no opposition thereto, Respondent Akron's and Respond-
ent Ravenna's separate requests that the General Counsel's petition to
revoke subpena, the answer thereto, and the ruling thereon be made a
part of the official record are hereby granted and the same are hereby
included in the record.
its Barberton, Ohio facility to points located outside the
State of Ohio.
Respondent Ravenna is now, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent Akron is now, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Molders and Allied Workers Union,
Local Union No. 154, herein called the Union, is now,
and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Suspension of Helis Palmer
Helis Palmer was the chairman of the safety commit-
tee at Respondent Akron. In February 1979 he had filed
a charge with OSHA against Respondent Akron. OSHA
conducted an inspection in May 1979 which resulted in
Respondent Akron's being cited for some violations.
Palmer's job was that of clamp and rollover man. His
performance was essential to uninterrupted production
for, unless Palmer completed his tasks, other employees
who worked with him were unable to commence their
tasks. Thus, when Palmer's assignments were not com-
pleted, other employees were generally idle and produc-
tion was held up. This, according to L. J. Walker, Palm-
er's foreman, occurred on June 7, 1979. As a result, on
June 8, 1979, Walker gave Palmer a letter of suspension
for violation of "Plant Rules Group C-5, refusal or fail-
ure to follow instructions of Supervision." The letter fur-
ther revealed:
Although I told you to stay on your job and work
and not wander around the plant, on Thursday,
June 7, 1979 you disobeyed my order to stay on the
job and you were wandering along the canal and
out in back of the buildings.
Palmer was suspended from work commencing on June
11, 1979, and continuing through June 15, 1979.
Walker's testimony confirmed his charges against
Palmer. Palmer denied that he had "wandered" as assert-
ed by Walker and claimed that he was on safety commit-
tee business with Walker's permission.
In respect to the incidents involving Palmer's alleged
misconduct I do not consider either Palmer or Walker to
be a wholly reliable witness. Nevertheless, a resolution
may be made since George Stasko, an Akron employee
who had no interest in the outcome of this proceeding,
testified credibly. Stasko figured in a truck incident
which Palmer claimed he was investigating as a safety
committeeman and which was cited, among other things,
as a basis for Palmer's suspension. On June 7, 1979,
Stasko was driving a dump truck. According to Palmer,
he conferred with Stasko and inspected the dump truck,
which Stasko had told him "didn't have good brakes,
and that the dumping part was not working right."
936
LECTROMELT CASTING CO.
Palmer testified further that he rode in the truck and
when he alighted from the truck Foreman Walker ad-
vised him that Michael Klimko, manager of industrial re-
lations, wanted to see him. Walker testified that he saw
Palmer alight from the truck and asked him what he was
doing in the truck. Palmer replied that Stasko had "asked
him to check the truck, that something was wrong with
the truck." Walker directed Palmer to return to his job.
Upon inquiry by Walker, Stasko said that nothing was
wrong with the truck and that he had not asked Palmer
to "go out there."
Stasko contradicted the testimony of Palmer. Stasko
testified that he recalled the dump truck incident, but
that he had made no safety complaints to Palmer about
the truck. Palmer had "waved" him down. Palmer en-
tered the truck and asked "how everything was going."
Palmer then rode to the dump and back in the truck
with Stasko. Walker was there when "[Stasko] let
Palmer out of the truck." Either that day or the next day
Walker "asked [Stasko] what Mr. Palmer was doing in
the truck and [he] said [Palmer] got in and asked [him]
how everything was going and rode back with [him]."
Stasko did not usually drive this particular truck.
Palmer having been discredited in respect to the truck
incident, and in light of the record as a whole, I do not
believe the denials that he was otherwise wandering
from his job on June 7, 1979. Thus, in the light of the
credible testimony of Stasko, I find that Palmer was sus-
pended for a cause unrelated to his union activities. Ac-
cordingly, the General Counsel has not proved by a pre-
ponderance of the evidence, as claimed, that Palmer was
suspended because he filed charges with OSHA or was
an aggressive union safety partisan. Allegations in the
second amended consolidated complaint going to these
alleged violations of the Act are dismissed.
B. Respondents' Claim That Compliance With a
Settlement Agreement With the Union Is Grounds for
Dismissal of the Second Amended Consolidated
Complaint
Around the middle of 1978, within 2 weeks after Mi-
chael Klimko, manager of industrial relations, com-
menced employment with Respondent Akron (Klimko's
employment commenced in May 1978), Donnal May
came into Klimko's office with two committeemen and
demanded that May be assigned to a certain crane job.
Klimko declined. Shortly thereafter, Klimko looked out
the window and "everybody was going out the gate."
After a short meeting with the manager of industrial re-
lations at Akron Standard, the strikers came down from
the "hill" 2 and returned to work.
On February 9, 1979, while Joseph Segatta, vice presi-
dent of industrial relations, was in the plant, Donnal May
asked him for a meeting. Segatta declined stating that he
was busy and that the meeting should be scheduled later.
According to Segatta, "One thing lead to another," there
was a "little shouting," and Segatta was "shaking [his]
finger in [May's] face to try to make a point." May
"brush[ed]" Segatta's hand away with his hand. Segatta
2 The "hill" was the place where the picket line was established during
strikes. Going up on the "hill" meant going on strike.
gave May a 3-day suspension. Immediately, a wildcat
strike occurred.
After I day Respondent Akron gave in and revoked
May's suspension. Segatta described the resolution, "We
buried the axe and started anew, made a new beginning."
On February 16, 1979, Segatta directed a letter to the
Union as follows:
On Monday, February 12, 1979 the plant returned
to normal operation after a one day wildcat strike
on Friday, February 9, 1979. The company and the
union were scheduled to meet at 1:00 p.m. on Feb-
ruary 12, 1979, and the company had at that time
definitely planned to:
1. Bring a law suit for full and complete damages
against the:
A. International Union
B. Local Union 154
C. Local Union Committee Members and Offi-
cials
2. File an 8 B-3, unfair labor [practice] charge,
against the union with the National Labor Rela-
tions Board for the union's causing of a strike
without due recourse to the labor contract and a
refusal to bargain about the issues.
3. Seriously discipline the union committee members
and officials. When a walk out occurs the union
representatives have a greater responsibility than
the rank and file employees to be on the job and
to set the example as union leaders. Their absence
from their jobs during a walk out indicates com-
plete support for an illegal act.
After our meeting began, on Monday, the company
noted the conciliatory and cooperative attitude of
the union committee who indicated that they
wanted to work with management in making the
plant productive. With this type of reception all
three items listed above were dropped from the
agenda when the company met in caucus. We will
work with you and we want you to work with us.
However, if this type of illegal action occurs in the
future, the company will not hesitate to take the
action mentioned above as well as any other action
deemed necessary to the fullest extent.
As noted above, Helis Palmer was suspended on June
8, 1979, for 5 days, June 11 through 15. On June 11,
1979, a meeting was held between Respondent Akron
and the union committee during which the Palmer sus-
pension was considered. The committee included Donnal
May as its chairman. The grievance was not settled. On
June 12, 1979, a wildcat strike was commenced. Re-
spondent Akron refused to meet with the Union until the
employees returned to the plant. Respondent Akron
stood pat. The strike continued until June 19 when the
employees returned to work. Around 15 employees
worked during the strike. None of the alleged discrimin-
atees worked.
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 13, 1979, Respondent Akron filed an action in
the Court of Common Pleas for Summit County against
the Union and others seeking, among other things, a tem-
porary injunction against the employees' misconduct,
citing mass picketing and the blocking of access to and
egress from Respondent Akron's premises. On June 13 a
temporary restraining order was granted; on June 26,
1979, a preliminary injunction was entered.
On June 15, 1979, Respondent Akron filed a complaint
against the Union for breach of contract pursuant to Sec-
tion 301 of the Labor Management Relations Act, as
amended, 29 U.S.C. §175. Among other things, Respond-
ent asked for $250,000 as compensatory damages and
$10,000 for each day the Union engaged in the strike as
punitive damages.
On June 20, 1979, a charge was filed with the National
Labor Relations Board by Respondent Akron charging
the Union with unfair labor practices. On July 26, 1979,
a complaint and notice of hearing was issued in Case 8-
CB-3926 in which, among other things, it was alleged:
On or about June 13, 1979, and continuing until
June 20, 1979, Respondent, through its officers,
agents, representatives, Donnal May, Eddie May,
Forest [sic] Probst, Helis Palmer and/or other duly
authorized pickets, whose identities are unknown, in
the presence and sight of employees, physically
blocked the driveways to the Employer's premises
which had the effect of barring, delaying, hindering,
obstructing and preventing ingress and egress to
and from the Employer's plant by employees. [Em-
phasis supplied.]
On June 18, 1979, Paul Armbruster, Odell May,
Harold Ireton, James Ritter,s Larry Westfall, Bobby
Ward, Forrest Probst, Eddie Lee May, Donnal May, and
Helis Palmer were discharged for cause in that each "in-
stigated, supported and/or participated in the illegal
wildcat strike,4 commencing June 12, 1979 at Lectromelt
Casting & Machinery Company." (G.C. Exh. 4.)
Grievances for these employees were denied by Re-
spondent Akron on June 25, 1979.
As noted above, Respondent Ravenna purchased the
assets of Respondent Akron on August 20, 1979, "except
its agreement with the International Molders and Allied
Workers Union, AFL-CIO (molders), which union rep-
resented the employees of Lectromelt Casting Division."
On the same day Respondent Ravenna entered into a
labor agreement with the Union in which it recognized
the Union as the exclusive bargaining agent for its em-
ployees at Ravenna. Among other things, Respondent
adopted the contract between the Union and Respondent
Akron with certain conditions. Among these conditions
were:
5. The language of the contract as herein revised
and restated shall control the relations between the
parties without reference to any grievance decision,
Arbitration decision or written or unwritten past
3 Ritter was also cited for throwing rocks at nonstriking employees.
4 The General Counsel concedes that the strike was an illegal wildcat
strike.
practice which may have been in effect prior to
August 20, 1979 or which either party may claim to
have been in effect prior thereto.
6. All lawsuits and NLRB charges filed by Lec-
tromelt Division will be dropped.
7. The ten (10) employees terminated by Lectro-
melt Division will be reinstated Wednesday, August
22, 1979, provided that they drop all charges and
claims against Lectromelt Division.a
Thereafter Respondent Ravenna and the Union6 joint-
ly signed the following memorandum:
The agreement between the Company and the
Union signed 8-16-79 [sic] stipulates:
6. All lawsuits and NLRB charges filed by Lec-
tromelt Division will be dropped.
7. The ten (10) employees terminated by Lectro-
melt Division will be reinstated Wednesday, August
22, 1979, provided that they drop all charges and
claims against Lectromelt Division.
Of the ten (10) employees terminated four (4) did
notify the Company by August 22, 1979 of their in-
tention to drop their charges. They are James
Ritter, Harold Ireton, Bobby Ward, and Forrest
Probst.
These four employees submitted to the Company
a copy of a letter they gave the NLRB indicating
their desire to drop charges.
They are therefore reinstated.
The remaining six (6) employees who were termi-
nated will not be reinstated.
On August 20, 1979, the original charge of Helis
Palmer dated July 16, 1979, and the amended charge
dated August 13, 1979, were pending and Forrest
Probst's charge filed August 1, 1979, was pending. The
first complaint was not issued until a year later on
August 21, 1980. The last amended complaint was filed
on November 4, 1981. Answers were finally filed on Jan-
uary 6, 1982, and the second amended consolidated com-
plaint came on for hearing on January 21, 1982. Briefs
were filed on November 2 and 3, 1982. Thus, when the
hearing was commenced on January 21, 1982, the discri-
minatees had been without jobs with Respondents for 2-
1/2 years.
The settlement negotiated with Respondent Ravenna
provides for full reinstatement of the three alleged discri-
minatees, as well as the remainder of the alleged wildcat
strikers, with the loss of accrued backpay for about 8
weeks. Had Palmer not been lawfully suspended his loss
would have been an additional 5 days' backpay. If it is
considered that wildcat strikers are not favorites of the
law and that the burden was on the General Counsel to
prove that the alleged discriminatees did not instigate or
participate in the wildcat strike (see K & K Transporta-
tion Corp., 262 NLRB 1481 (1982)), had the General
6 Among others, Kim A. Bond, who had been president of the Union
during the June strike, signed the agreement.
" The Union included the International and Local No. 154.
938
LECTROMELT CASTING CO.
Counsel joined7 in the settlement agreement it surely
would have withstood any claim that the settlement did
not effectuate the policies of the Act.8 For Helis Palmer,
Donnal May, and Eddie Lee May the setttlement agree-
ment meant immediate reinstatement which would have
probably continued them in gainful employment in their
exact jobs until Respondent Ravenna entered bankrupt-
cy. Additionally, as reinstated employees, their dis-
charges would not have banned them from exercising
their duties as shop committeemen. Such a settlement
closely approximating the status quo ante surely is not at
odds with a national labor policy which envisions a res-
toration of the status quo ante and an expeditious return
to work of discriminatees discharged in violation of Sec-
tion 8(a)(3) of the Act. In the case of Ford Motor Co. v.
EEOC, 29 FEP Cases 121 (1982), Justice O'Connor,
speaking for the Supreme Court, said (at 122):
But for the victim of job discrimination, delay is es-
pecially unfortunate. The claimant cannot afford to
stand aside while the wheels of justice grind slowly
toward the ultimate resolution of the lawsuit. The
claimant needs work that will feed a family and re-
store self-respect. A job is needed-now ...
A "now job" was in the offing for each alleged discri-
minatee on August 20, 1979; nevertheless, the wheels of
justice have continued to grind during a long period in
which the alleged discriminatees could have been gain-
fully employed. In terms of accomplishment the wheels
of justice spin to small end.
In the same case Justice O'Connor points out that the
preferred means for bringing discrimination to an end is
"through '[c]ooperation and voluntary compliance"'
whereas "[d]elays in litigation unfortunately are now
commonplace, forcing the victims of discrimination to
suffer years of underemployment or unemployment
before they can obtain a court order awarding them the
jobs unlawfully denied them." Id. at 125-126.
The instant case is a puissant example of what the Su-
preme Court was concerned about in Ford Motor Co.,
supra. Thus, a sound labor policy would seem to contem-
plate and encourage the fashioning and acceptance of
means by which good-faith voluntary settlement of dis-
crimination cases may be expeditiously achieved. How-
ever, to obtain this goal, authority must be lodged in the
bargaining agent to bind the alleged discriminatee it rep-
resents to the voluntary settlement it negotiates even
though a charge of unfair labor practices has been filed
with the Government and the Government has thus
become a party to the labor dispute. Otherwise, the in-
ducement to voluntarily settle a labor dispute is lacking.
In the case of NLRB v. Allis-Chalmers Mfg. Co., 388
U.S. 175, 180 (1967), the Supreme Court said:
I In this regard the Regional Director's approval of the withdrawal of
Probst's unfair labor practice charge was tantamount to an approval of
the settlement agreement.
a In this regard it is significant that reimbursement for backpay is not
mandatory under the Act. The Act may be effectuated with "reinstate-
ment of employees with or without back pay." Sec. 10(c). Moreover, in
view of the fact that Respondent Ravenna was a successor employer who
had committed no unfair labor practices, a posted notice would have
been of doubtful efficacy.
National labor policy has been built on the
premise that by pooling their economic strength and
acting through a labor organization freely chosen
by the majority, the employees of an appropriate
unit have the most effective means of bargaining for
improvements in wages, hours, and working condi-
tions. The policy therefore extinguishes the individual
employee's power to order his own relations with his
employer and creates a power vested in the chosen rep-
resentative to act in the interests of all employees.
"Congress has seen fit to clothe the bargaining rep-
resentative with powers comparable to those pos-
sessed by a legislative body both to create and re-
strict the rights of those whom it represents ... ."
Steele v. Louisville & N.R. Co., 323 U.S. 192, 202.
Thus only the union may contract the employee's
terms and conditions of employment, and provisions
for processing his grievances; the union may even
bargain away his right to strike during the contract
term, and his right to refuse to cross a lawful picket
line. The employee may disagree with many of the
union decisions but is bound by them. "The majori-
ty-rule concept is today unquestionably at the
center of our federal labor policy." "The complete
satisfaction of all who are represented is hardly to
be expected. A wide range of reasonableness must
be allowed a statutory bargaining representative in
serving the unit it represents, subject always to
complete good faith and honesty of purpose in the
exercise of its discretion." Ford Motor Co. v. Huff-
man, 345 U.S. 330, 338. [Emphasis supplied.]
It is further stated in Ford Motor Co. v. Huffman, 345
U.S. 330, 339 (1953), "The National Labor Relations
Act, as amended, gives a bargaining agent not only wide
responsibility but authority to meet that responsibility."
In Hines v. Anchor Motor Freight, 424 U.S. 554, 563-564
(1976), the Supreme Court opined: "Wages, hours, work-
ing conditions, seniority, and job security therefore
became the business of certified or recognized bargaining
agents, as did the contractual procedures for the process-
ing and settling of grievances, including those with re-
spect to discharge.... The union's broad authority in
negotiating and administratirig effective agreements is
'undoubted,' Humphrey v. Moore, 375 U.S. 335, 342
(1964) . . ."
In the recent case of Clayton v. Automobile Workers
(ITT Gilfillan), 451 U.S. 679 (1981), the Supreme Court
observed, in referring to the rule in Republic Steel Corp.
v. Maddox, 379 U.S. 650 (1965), that it was "intended to
protect the integrity of the collective-bargaining process
and to further that aspect of national labor policy that
encourages private rather than judicial resolution of dis-
putes arising over interpretation and application of col-
lective-bargaining agreements." (Emphasis supplied.) In
the light of these Supreme Court decisions, it is clear
that, had no unfair labor practice charges been pending
before the Board, the Union's August 20, 1979, agree-
ment with Respondent Ravenna would have bound the
employees the Union represented.
As noted above, at the time the Union negotiated the
settlement, the discharge grievances of the alleged discri-
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minatees, as well as those of other alleged wildcat strik-
ers, had already been denied by Respondent Akron on
June 25, 1979.
Further procedures under the contract with Respond-
ent Akron allowed "[t]he Union the option of submitting
a grievance to an impartial umpire as it has in the past
'or' if the grievance cannot be settled at Step 4 and
either party elects to exercise ecomomic power, it must
do so within the sixty (60) days or the grievance will be
considered settled." Hence, it is clear that, at the time of
the settlement of the discharge grievances, the Union
was faced with either abandoning the grievances, select-
ing an umpire," or striking.
Besides being faced with these choices, the Union has
pending against it suits in the Federal and state courts
which charged misconduct by certain persons, including
the alleged discriminatees, and which involved many
thousands of dollars. A complaint had been issued
against the Union by the General Counsel on July 26,
1979, naming discriminatees Donnal May, Eddie Lee
May, Helis Palmer, and others as having engaged in
unfair labor practices. The unfair labor practice charges
of Palmer and Probst for wrongful discharge had been
pending against Respondent Akron since July 16 and
August 1, 1979, respectively. 10 Additionally, a successor
employer had come into the picture, a circumstance
which triggered the renegotiation of Respondent Akron's
labor agreement.
Surely expertise in the field of labor relations discloses
that even under most favorable circumstances it is diffi-
cult to obtain the reinstatement of all wildcat strikers
where the wildcat strike had been lost. Such difficulty
would seem to be aggravated where, as here, the Gener-
al Counsel has issued a complaint naming some of the al-
leged wildcat strikers as culprits. Furthermore, the union
negotiators, having been close to the strike, must have
had less than a suspicion as to which employees instigat-
ed and participated in the wildcat strike. Indeed, it is sig-
nificant that Probst, who together with the alleged dis-
criminatees comprised the committeemen who represent-
ed the Union during the strike, accepted reinstatement.
Under these circumstances the Union ought not be fault-
ed for agreeing to reinstatement of the alleged wildcat
strikers conditioned upon the withdrawal of the pending
unfair labor practice charges of Probst and Palmer
which were of speculative merit. (The complaint as to
Palmer was not issued until March 26, 1981.) The surren-
der of 8 weeks' backpay was a reasonable exercise of the
Union's statutory authority as the representative of the
alleged discriminatees. Indeed, in effecting the settlement
agreement the Union could not have avoided reviewing
the same facts as did the General Counsel, but from an
inside point of advantage.
It is true that the statutory duty of fair representation
demands that "the exclusive agent's statutory authority
to represent all members of a designated unit includes a
a That is if the parties followed Respondent Akron's contract.
10 Donnal May did not file his charge until December 12, 1979, and
Eddie Lee May had filed no charge. Thus, the return to work by these
employees was not conditioned upon the withdrawal of unfair labor prac-
tice charges filed by them. The only employees who were subject to this
condition were Palmer and Probst.
statutory obligation to serve the interests of all members
without hostility or discrimination toward any, to exer-
cise its discretion with complete good faith and honesty,
and to avoid arbitrary conduct." It is also true that the
the Union commits an unfair labor practice if employees
are denied the "right to be free from unfair or irrelevant
or invidious treatment by their exclusive bargaining
agent in matters affecting their employment." Vaca v.
Sipes, 386 U.S. 171, 177-178 (1967). As stated in Electri-
cal Workers IBEW (Union Pacific Railroad Co.) v. Foust,
442 U.S. 42, 47 (1979), "In particular, a union breaches
its duty when its conduct is 'arbitrary, discriminatory, or
in bad faith."'
Here the Union cannot be charged with either arbi-
trary or discriminatory conduct or with acting in bad
faith. Had it neglected its statutory duty to make an
honest effort to try to negotiate the alleged wildcat strik-
ers back to work, a question may have arisen as to the
Union's good faith. Had it failed to represent all the al-
leged wildcat strikers on an equal basis, it could have
been charged with discrimination. However, the Union
clearly sponsored the best interests of all employees.
Thus, the individual employee's self-interest must be sub-
ordinate to the best interests of the group. To this end a
compromise presented a desired means through volun-
tary resolution of the grievances. "Compromises on a
temporary basis, with a view to long-range advantages,
are natural incidents of negotiation." Ford Motor Co. v.
Huffman, supra at 338. Furthermore, the record does not
reveal that any alleged wildcat striker, including the al-
leged discriminatees, objected to the settlement agree-
ment at the time it was negotiated. Probst, who had filed
an unfair labor practice charge, withdrew same. Donnal
May did not file his charge until many months later.
Palmer, who knew his way to the General Counsel, filed
no charges that the Union had lacked in good faith or
breached its statutory duty in representing him. Indeed,
with the facts before him, the General Counsel allowed
Probst to withdraw his charge.
Thus, the Union, commanded by the statute to repre-
sent all employees in the unit, had fulfilled its responsibil-
ity in good faith, with honesty of purpose, and for the
ultimate welfare of the group it represented, and the
group was bound by its action even though unfair labor
practice charges were pending in respect to the same
subject matter. The Supreme Court has stated:
Inevitably differences arise in the manner and
degree to which the terms of any negotiated agree-
ment affect individual employees and classes of em-
ployees. The mere existence of such differences
does not make them invalid. The complete satisfac-
tion of all who are represented is hardly to be ex-
pected. A wide range of reasonableness must be al-
lowed a statutory bargaining representative in serv-
ing the unit it represents, subject always to com-
plete good faith and honesty of purpose in the exer-
cise of its discretion. [Ford Motor Co. v. Huffman,
supra at 338.]
The Supreme Court has further stated:
940
LECTROMELT CASTING CO.
The collective bargaining system as encouraged by
Congress and administered by the NLRB of necessi-
ty subordinates the interests of the individual em-
ployee to the collective interests of all employees in
a bargaining unit.
Hines v. Anchor Motor Freight, 424 U.S. at 564, quoting
Vaca v. Sipes, 386 U.S. at 182 (emphasis added).
That the Union chose negotiation rather than other
techniques for the settlement of the labor dispute, such as
arbitration, does not imply that it had not fulfilled its
statutory responsibility.
While "the federal policy favoring arbitration of labor
disputes is firmly grounded in congressional command"
(Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 377
(1974)), "a union does not breach its duty of fair repre-
sentation . . . merely because it settled the grievance
short of arbitration" (Hines v. Anchor Motor Freight, 424
U.S. at 567).
Since 1955 the Board, with court approval and appar-
ent congressional sanction, has deferred to the arbitral
process negotiated by the parties to a labor agreement
where certain safeguards are satisfied. Spielberg Mfg. Co.,
112 NLRB 1080 (1955). The same sound labor policy
which has persuaded the Board to defer to the decision
of an arbitrator is equally persuasive of a deference to a
voluntary settlement composed honestly and in good
faith between the union representing a majority of an
employer's employees in an appropriate unit and an em-
ployer.
"[The] congressional policy [that final adjustment by
the method agreed upon by the parties is declared to be
the desirable method for settlement of grievance dis-
putes] 'can be effectuated only if the means chosen by
the parties for settlement of their differences under a col-
lective bargaining agreement is given full play."' Hines v.
Anchor Motor Freight, supra at 562.
Where there is a conflict of legitimate interests, as
here, a balance must be struck by the Board between
those interests which will effectuate national labor
policy. "It is the Board's function to strike a balance
among 'conflicting legitimate interests' which will 'effec-
tuate national labor policy."' NLRB v. Magnavox Co.,
415 U.S. 322, 326 (1974).
In the instant case the balance weighs in favor of de-
ferring to the voluntary agreement negotiated between
the Union and Respondent Ravenna." It is recommend-
ed that the 8(a)(3) allegations in the second amended
consolidated complaint be dismissed. Cf. North Electric
Co., 215 NLRB 324 (1974). Accordingly, it is recom-
mended that the Board issue the followingl s
ORDER
It is hereby ordered that the second amended consoli-
dated complaint be dismissed in its entirety.
11 "[The Board has . .. deferred to a private settlement agreement
where the Board was convinced that, given the particular facts of the
case, it would effectuate the policies of the Act not to disturb the agree-
ment." Roadway Express, 246 NLRB 174 (1979).
" If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poes.
941