Modern Drip Forge Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1335 (N.L.R.B. 1998)

MODERN DROP FORGE CO. 1335
Modern Drop Forge Company, Inc. and Workers
Security League Union. Case 13–CA–33931
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On December 30, 1996, Administrative Law Judge
Marion C. Ladwig issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has delegated 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, and conclusions2 and
to adopt the recommended Order as modified and set
forth in full below.3

1 We deny the General Counsel’s motion to strike the Respondent’s
brief in support of its exceptions in which the General Counsel asserts,
inter alia, that the Respondent relied on and referred to asserted factual
matters not in the record. However, in doing so, we note that the Board
considers only record evidence and arguments pertaining to that record
evidence.
We also deny the Respondent’s corrected motion to reopen the re-
cord because the motion involves, inter alia, evidence of events occur-
ring after the close of the hearing, and evidence which we find would
not require a different result in this case, including evidence concerning
a unity agreement between the United Steelworkers of America and the
Workers Security League Union. See WXRK, 300 NLRB 633 fn.1
(1990); and Contemporary Guidance Services, 291 NLRB 50 fn. 2
(1988).
2 We do not pass on the judge’s comments to the effect that, as a re-
sult of the Respondent’s unlawful conduct, a fair and uncoerced vote in
the Union’s scheduled election for officers is impossible.
3 In its brief in support of its exceptions and its corrected motion to
reopen the record, the Respondent asserts that the recommended Order
is moot because, after the close of the hearing, it took the required
actions. As noted above, we deny the Respondent’s motion and, fur-
thermore, we do not find that the recommended Order set forth below is
moot. The effects of any efforts to remedy the violations may be ad-
dressed in compliance, in any event, we do not find that the Respon-
dent’s asserted posthearing actions would constitute full compliance
with the recommended Order. See, e.g., Lear Siegler, Inc., 295 NLRB
857, 861–862 (1989); and Passavant Memorial Area Hospital, 237
NLRB 138 (1978).
We note that any issues arising from post-hearing events, including
the question of the identity of the current legitimate designated agents
of the Union, are left to compliance, and accordingly, we have modified
the recommended Order to require the Respondent to bargain with the
current legitimate designated agents of the Union without naming the
agents.
We have also modified the recommended Order and issued a new
notice to include a “cease and desist” provision with regard to the Re-
spondent’s discrimination against Smith to fully remedy the violation
found.
Further, we have modified the recommended Order and issued a new
notice to conform with the complaint and the violations found and to
provide that the Respondent is to recognize and bargain in good faith
with the Union’s designated agents, without reference to any specific
bargaining proposals.
Finally, we have modified the recommended Order in accordance
with Excel Container, 325 NLRB 17 (1997).
ORDER
The National Labor Relations Board orders that the
Respondent, Modern Drop Forge Company, Inc., Blue
Island, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with the duly designated agents
of the Workers Security League.
(b) Refusing to remit to the League’s duly designated
agents dues that have been checked off and withheld
since September 1995.
(c) Refusing to accept and process employee griev-
ances submitted by the League’s duly designated agents.
(d) Interfering with the administration of the League
and rendering unlawful assistance to persons not duly
designated agents of the League, by recognizing and bar-
gaining with them instead of with the League’s desig-
nated agents.
(e) Discriminating against Hessie Smith because of his
union or other protected concerted activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain in good faith with the
League’s duly designated agents until the Respondent
complies with this Order, the runoff election is held, and
recognition is granted to the union that is properly and
lawfully selected by the employees.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension of
League Vice President Hessie Smith and within 3 days
thereafter notify him in writing that this has been done
and that the suspension will not be used against him in
any way.
(c) Remit to the League’s duly designated agents dues
that have been checked off and withheld since September
1995, with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Blue Island, Illinois, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 13,
4 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

326 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1336
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
Notice To Employees
Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with the
duly designated agents of the Workers Security League.
WE WILL NOT refuse to remit to the League’s desig-
nated agents the dues that have been checked off and
withheld since September 1995.
WE WILL NOT refuse to accept and process employee
grievances submitted by the League’s duly designated
agents.
WE WILL NOT interfere with the administration of the
League and render unlawful assistance to persons not
duly designated as agents of the League, by recognizing
and bargaining with them instead of with the League’s
duly designated agents.
WE WILL NOT discriminate against Hessie Smith be-
cause of his union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL recognize and bargain in good faith with the
League’s duly designated agents until we comply with
this Order, the runoff election is held, and we grant un-
contested recognition to the union that is properly and
lawfully selected by the employees.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the sus-
pension of League Vice President Hessie Smith, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension will not be
used against him in any way.
WE WILL remit to the League’s duly designated agents
dues that have been checked off and withheld since Sep-
tember 1995, with interest.
MODERN DROP FORGE COMPANY, INC.

Sheryl Sternberg, Esq., for the General Counsel.
Jeffrey K. Ross, Richard B. Lapp, and Eric J. Gorman, Esqs.,
(Seyfarth, Shaw, Fairweather & Geraldson), of Chicago, Illi-
nois, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Chicago, Illinois on August 12–15 and 27–30,
1996.1 The charge was filed January 9 (amended January 23,
February 12, and April 15). The complaint was issued May 7
and amended at the trial.
This is an extreme case of company interference with the
right of employees to freely choose their representatives in a
company-supported unaffiliated union.
In a Board election on December 8, an outside union (the
Steelworkers) received more votes than unaffiliated Workers
Security League Union (the League). Before 11 challenged
ballots were resolved, the vote was 175 for the Steelworkers,
167 for the League, and 5 for no union. The revised tally of
ballots on January 11 was 178 to 174 to 6, requiring a runoff.
Because the League’s officers were supporting the Steel-
workers—and because a group of 12 “loyalists” had failed both
before and after the election to get sufficient employee support
to remove the officers lawfully under the League’s bylaws—the
Company permitted the 12 loyalists to post copies of a notice in
the plant, declaring that the offices of Vice President Hessie
Smith (serving as acting president) and the three other officers
were “hereby declared vacant.” The notice announced that at a
meeting to be held on December 17, nominations would be
accepted and an election would be held by “hand vote.”
About 40 loyalists (about 15 percent of the 270 to 275
League members) attended the December 17 meeting. They
barred about 35 or 40 other members (including the League
officers) from entering. They then purported to nominate and
elect officers and delegates to serve until the next scheduled
League election on January 11, 1997.
On December 21 the Company notified Hessie Smith and the
other “former” officers and delegates that it “no longer consid-
ers [them] as the legitimate representatives of the Workers Se-
curity League for purposes of contract administration as of
Monday, 12/18/95.”
In the Company’s December NewsNotes (its newsletter sent
to employees’ homes), which began with “A Christmas Mes-
sage,” the Company reported that the “former” officers and
delegates were “summarily kicked out of office for their con-
tinued and unbelievable support of the United Steelworkers of
America.” It named the four “new” officers and seven delegates
elected at a “special” League meeting on December 17 and
stated that it “hopes the [League] members will support these
new officers who were elected to represent the best interests of
the Workers Security League and its members” (emphasis
added).

1 All dates are from September 1995 to May 1996 unless otherwise
indicated.
MODERN DROP FORGE CO. 1337
The Company then engaged in further conduct that would
delay any election runoff, giving the Company time to under-
mine employee support for the League’s officers and to build
support for the “new” officers and delegates.
While withholding checked-off League dues from the offi-
cers, the Company refused their request to bargain on a wage
reopener (as originally requested in September) and refused to
accept and process their employee grievances, or to meet on
any issue. It instead recognized the loyalist-elected officers and
delegates as agents of the League, accepted and processed their
employee grievances, and bargained with them on the wage
reopener issue.
It offered them from 3 to 5 percent increases in wages, with a
35-cent minimum, for all employees “retroactive to 11/16/95”
and payable “in a single check” to the date of signing the wage
reopener agreement. It reported in its April/May NewsNotes
that “Accumulated backpay for eligible employees under this
last proposal now amounts to $205,351.33 on 5/5/96.”
Meanwhile on April 4, the Company issued a leaflet report-
ing to the employees that a Federal district court had found that
the “former” officers were not removed, and the “new” officers
were not elected, in accordance with the League’s bylaws. It
reported that the court had also issued a preliminary injunction
barring the officers elected at the December 17 meeting from
“acting as officers” of the League and had ordered them to
withdraw their freeze on the League funds in the bank. Pointing
out that the ruling was not binding on it, the Company refused
to release the dues.
On April 9 the Company stated in another leaflet that all
“contract proposals by the Company are withdrawn” (nullifying
its offers of accumulated backpay) and warned that no negotia-
tions would be scheduled until the League’s “leadership is es-
tablished as loyal to [League] members.” It then engaged in a
vilification campaign against the officers and made an implied
threat of loss of backpay—in the hundreds of thousands of
dollars—if the officers remained in office. It strongly implied,
however, that if the employees would remove the officers and
select “loyal” leadership, it would reinstate its offer of accumu-
lated backpay.
The primary issues are whether the Company, the Respon-
dent, (a) unlawfully interfered with the administration of the
League and unlawfully rendered assistance to a dissident group
of employees, (b) unlawfully refused to bargain with the
League’s authorized agents, and (c) discriminatorily suspended
Hessie Smith, in violation of Section 8(a)(1), (2), (3), (4), and
(5) of the National Labor Relations Act.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures steel forgings at
its facility in Blue Island, Illinois, where it annually receives
goods valued over $50,000 directly from outside the State. The
Company admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of

1 The General Counsel’s unopposed motion to correct the transcript,
dated September 23, 1996, is granted and received in evidence as G.C.
Exh. 53.
the Act and that the League is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. League’s loss of employee support
In 1992, after the prior collective-bargaining agreement ex-
pired, there was much discussion in the plant and at a League
meeting about “trying to have a stronger union” and it being
time to “bring in organized labor.” The League members were
“really tired of the way the contract was dragging,” and “the
people just felt as if it was time” to talk to a “real union.” With
a show of hands the members voted to have the Steelworkers
attend a meeting and speak to the membership. (Tr. 465–466,
665; R. Exh. 116A at 30–31, 41–42.)
A League committee spoke to the Steelworkers and invited
them to attend a meeting. About five Steelworkers representa-
tives attended the next meeting and answered questions.
“[T]here was a very favorable reaction toward the Steelwork-
ers.” In another show of hands, “overwhelmingly . . . almost
down to a person [they] felt that the Steelworkers should take
over at that moment.” (Tr. 665–666, 668–669; R. Exh. 116A at
43–47.) On January 27, 1993 the Steelworkers extended a for-
mal invitation for affiliation, pointing out that the League
would be chartered as an individual Steelworkers local (R. Exh.
2).
As negotiations with the Company progressed, however, in-
terest in affiliating with the Steelworkers waned. The Company
made a better offer, which the League accepted on March 10,
1993. After signing the contract (effective November 16, 1992
and expiring November 16, 1997) the League informed the
Steelworkers that the members were not interested in affiliation
at that time. (Tr. 466, 668–669, 988; G.C. Exh. 2; R. Exhs. 1,
116A at 54, 59–60.)
In the 1995 negotiations there were “a lot of problems” and
members were “kind of fed up, and they talked about organized
labor.” Members were “tired of the way management was con-
ducting contract negotiations, and they felt as if we needed a
strong voice.” (Tr. 322.) A “lot of individuals” were “unhappy
with the way things were going on” and “expressed interest in
the Steelworkers” (Tr. 650.)
League officers met with Steelworkers representatives on
Thursday, September 7 and received authorization cards to pass
out at the plant. By 4 p.m. Sunday, September 10, when a gen-
eral membership meeting was held, a large number of cards had
been signed. Additional cards were signed at the meeting. Vice
President Hessie Smith, who counted the cards (and who im-
pressed me most favorably by his demeanor on the stand as a
truthful, forthright witness), recalled at the trial that the total
number of cards was more than 162, the number of employees
who signed the “I’m Voting Steelworkers!” petitions that were
attached to a Steelworkers leaflet during the election campaign.
(Tr. 305–306, 311–312, 404–405, 467–470, 648–651, 658–662,
735; R. Exh. 26.)
A Steelworkers representative at the meeting collected the
authorization cards. As Hessie Smith recalled, there “was more
of a pep rally type atmosphere at the September 10 meeting
where everybody was gung-ho for the Steelworkers, let’s do it,
something of that nature.” (Tr. 401, 468, 470.)
I note that one of the cardsigners was forge shop helper John
Gough, who later became 1 of the 12 loyalists (then called
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1338
“concerned members”) that campaigned and distributed leaflets
against the Steelworkers, remaining loyal to the company-
supported League in the representation election (Tr. 790–792,
1070). As a witness for the Company, Gould claimed that he
was told when given the card to sign that if they could get
enough signatures, “we can get [the Steelworkers] to come here
and we can call a meeting [for them] to talk to us . . . . that sign-
ing the card wouldn’t mean affiliation or joining the Steelwork-
ers.” When asked why he signed the card he answered: “Be-
cause we weren’t happy with the representation that we were
getting, and we wanted to talk to somebody else.” (Tr. 754–
758.)
Gough later conceded that “Evidently I did” read the card
before signing it on September 7 and that the card says, “I au-
thorize the United Steelworkers of America to represent me in
collective bargaining.” He still claimed that he was told the
card was not to “get the Steelworkers in, it’s just to talk to them
. . . . to get them to come and talk to us.” When asked why he
wanted to talk to the Steelworkers, his only answer was, “I
don’t know.” (Tr. 759–760, 766–767; G.C. Exh. 35.) Gough
did not appear by his demeanor on the stand to be a credible
witness. I discredit this testimony regarding what he was told
about the purpose of the authorization cards.
2. Disclaimer of interest
On September 11 the Steelworkers filed a petition in Case
13–RC–19209 (R. Exh. 32).
The League’s officers (called “original officers” at the trial
to distinguish them from the “loyalists [Tr. 24]”) decided to
disclaim any interest in having the League appear on the ballot
in the representation case. Believing that a majority of the
members wanted the stronger Steelworkers to displace the
weaker League, they considered the real contest to be one be-
tween the Steelworkers and the Company, which would oppose
displacing the unaffiliated union.
As Vice President Hessie Smith credibly explained at the
trial, “I felt at the time that the majority of the members
wanted” to keep the League off the ballot and “I was really
under the impression that by filing the disclaimer . . . it would
be between” the Steelworkers and the Company, and if the vote
was for “no union,” then “you would still have the Workers
Security League” (Tr. 385, 649). League Treasurer Robert Pu-
cik also credibly testified that he believed the League would not
be on the ballot, but it “would be still in effect” if the Steel-
workers lost the election (Tr. 672–673).
League President Baker notified Robert Bates, the League’s
attorney. Bates responded on September 21 that “You have
advised that the [League] desires to disclaim interest and not
participate in the election. As indicated last week, upon written
instruction from you I will notify the NLRB,” but after doing
so, “this firm withdraws as [League] counsel due to the appear-
ance of a potential conflict of interest,” without explanation (Tr.
478; R. Exh. 7.)
On September 23 Baker wrote Bates and notified him that he
was authorized to make it known to NLRB “that we are dis-
claiming interest and participation in the election” (R. Exh. 11).
On September 26 Bates wrote the Regional Director, with cop-
ies to the parties, that the League “disclaims interest in repre-
senting the unit petitioned for [emphasis added] and therefore
does not desire to participate in the hearing or election to fol-
low” (R. Exh. 13).
On the first day of the hearing in the representation case on
October 3, when the hearing officer asked Baker if the League
intends to intervene in this matter, Baker answered “No” (R.
Exh. 116A at 6). Baker had been injured on the job and had
been on disability leave since July 15, 1995 (Tr. 287, 1049;
G.C. Exh. 45 at 312; R. Exh. 116B at 197).
3. Conflicting interpretations of disclaimer
At the representation hearing on October 3, when arguing
that the League “must be on the ballot,” the Company took the
position that “the disclaimer is ineffectual” (R. Exh. 116A at
71). In the plant, however, the Company took the position that
the League was disbanded: “No union” and “no labor con-
tract.”
Loyalist Daniel Wurtzbacher credibly testified that on the
day the disclaimer was posted on a door in the forge shop of-
fice, he overheard Vice President Hessie Smith arguing with
Forge Shop Supervisor Robert Clark about what the disclaimer
meant. Wurtzbacher credibly recalled that Clark (who did not
testify) said that the union was “disbanded” and there was “no
union.” There were other people (also who did not testify)
around and Smith was “explaining in a loud conversation” that
the union was not disbanded, that the League “was still intact
and they were still handling grievances.” (Tr. 809–811, 871–
873; G.C. Exh. 31.)
Although the League’s bylaws (G.C. Exh. 6, R. Exh. 89, art.
17) provide that it cannot be “disbanded or dissolved” without a
two-thirds vote of the entire membership, Human Resources
Vice President Jack Hennessey claimed at the trial that upon
receipt of the disclaimer letter (G.C. Exh. 13), his understand-
ing was that the disclaimer “voided the labor contract” and
“effectively disbanded” the League as a union (Tr. 1007).
To the contrary, the League on September 29 posted an “At-
tention Employees” notice (R. Exh. 116G; Intervenor Exh. 4),
signed by President Baker, stating in part that Former Attorney
Bates’ disclaimer letter

does not state anywhere in it that the Union will be
decertified and in my answer to the letter the Workers
Security League states nothing about being decerti-
fied and not representing the employees. Everything
stays in place until after the election. Employees will
continue to pay Union Dues. The grievances will be
handled by the Workers Security League . . . . There
has been a misinterpretation about the disclaimer.

Despite this unambiguous clarification, the Company still
took the position that there was “no union” and “no labor con-
tract.” It stopped deducting union dues and on October 11 uni-
laterally implemented a controversial Hammershop Unit As-
signments Policy and Procedures because “There was no un-
ion.” (Tr. 581–582, 1007–1008; G.C. Exh. 32.)
This occurred the week after the Company took the opposite
position at the representation hearing on October 3, contending
that “the disclaimer is ineffectual.”
The Company’s no-union, no-contract position aroused loy-
alist action. As employee Wurtzbacher credibly testified,
“When I found out there was a disclaimer filed and that the
[League] was going to be disbanded” (having overheard Super-
visor Clark tell Hessie Smith that there was “no union”), he
sought out a lawyer. This was Attorney Joseph Mazzone, who
represented the loyalists in the representation case, in court
MODERN DROP FORGE CO. 1339
proceedings, and in wage reopener negotiations with the Com-
pany. (Tr. 792, 807, 868; R. Exh. 39.)
Vice President Jack Hennessey admitted at the trial that the
“cooperation” between the Company’s attorneys and Mazzone
began on October 11 or 12, and “I know they basically [have]
been on the same side since it started” (Tr. 558–560, 1122–
1126; prenumbered and received G.C. Exh. 52, a three-page
index of correspondence belatedly filed this month on Decem-
ber 6, 1996).
4. Change in position
Vice President Hessie Smith, in the absence of President
Baker and without the benefit of legal counsel (after League
Attorney Bates withdrew as counsel “due to the appearance of a
potential conflict of interest”), was faced with the cutoff of dues
income and with the adamant company stand that there was “no
union” and “no labor agreement.”
Smith credibly testified that at the time the disclaimer was
filed he thought the Steelworkers and “no union” would be on
the ballot, that “you would still have the union” until the elec-
tion, and that “I thought that you would still have the Workers
Security League in place” if a majority of the employees voted
“no union.” He recalled that when the question was raised on
the floor at the September 10 meeting about if “no union” won,
he heard that “you would still have the Workers Security
League in place.” (Tr. 385–387.)
Smith also recalled, however, that when he told Supervisor
Robert Clark that he did not think the disclaimer meant dis-
banding the League (Tr. 388–389):

Robert was telling me that maybe what you intended
to do and what you actually did was two different
things, and that’s when I first started to really under-
stand what might be happening. . . . he was saying
that we didn’t have a union anymore.

Smith further recalled that “I took it upon myself to freeze”
the League’s funds because he “was starting to understand that
indeed [the disclaimer] was going to dissolve” the League and
he did not want to pay out salaries “because we wasn’t func-
tioning as a union” (Tr. 391). As acting president, he did not
want to pay out funds for lost time, “Because the company had
issued a lot of things and I was learning that a disclaimer of
interest would really dissolve the union and I didn’t think we
had any right to use union funding” (Tr. 395–396).
By the time of the second day of the representation hearing
on October 10, Hessie Smith (acting without legal advice) had
changed his position about not disbanding the League—based
on the Company’s interpretation of the disclaimer.
On questioning by the Company’s counsel, Smith testified
on cross-examination (R. Exh. 116B at 177–178, 180):

Q. [BY MR. ROSS] Well, as you sit here right now, Mr.
Smith, are you or are you not the vice president of the
Workers Security League?
A. If there is one in existence, yes. If not, no.
Q. Well, as far as you know, based on what your un-
derstanding of what the disclaimer was, do you believe the
Workers Security League is still in existence?
A. No. I don’t. Not right now.
Q. Okay. And what’s the basis for that belief?
A. The basis of a belief is that the company is saying
that [it] no longer exist[s].
. . . .
Q. Well, let me ask you this, did you intend to—by
having the disclaimer issued, did you intend to disband the
union?
A. It was the intention to leave it between Steelwork-
ers and no union because that [was] what a number of
people felt it should have been.
Q. So is it then fair to say that it was your intention to
have the Workers Security League disbanded, out, kaput,
gone?
A. My intention was to not have them in the election.
Q. Well, if they’re not in the election, they’re gone?
A. Then it’s my intention to have them disbanded.
5. Withdrawal of disclaimer and the election
On November 7, the parties in the representation case stipu-
lated “that the disclaimer has been withdrawn” as of September
26 and that the League would appear on the ballot in the elec-
tion, which was held on December 8 (Tr. 392, 440–441, 451–
453; R. Exhs. 21, 116D at 354–364). On December 11, to clar-
ify Mazzone’s status, Baker and Hessie Smith wrote him that
“As the elected officials of the [League], we are notifying you
that effective immediately, your services as an attorney or advi-
sor are neither needed or wanted” (Tr. 489; R. Exh. 27).
Smith testified that during the election campaign, “I sup-
ported what the majority of the members wanted” and “sup-
ported the Steelworkers” (Tr. 340). Photographs of him, Secre-
tary Charles Johnson, and Treasurer Robert Pucik as well as
photographs of three of the four delegates were printed on
Steelworkers campaign material, along with the photographs of
32 additional employees and the written endorsements of 18
others (R. Exh. 25). The signatures of all four officers were
among the 162 signatures on the “I’m Voting Steelworkers!”
petitions attached to a Steelworkers leaflet (R. Exh. 26).
As shown on the January 11 revised tally of ballots, the
original tally on December 8 was 175 votes for the Steelwork-
ers, 167 for the League, and 5 for no union. The final tally on
January 11, after 11 challenged ballots were resolved, was 178
for the Steelworkers, 174 for the League, and 6 for no union.
(G.C. Exh. 17; R. Exh. 47.) The results of the election were
therefore inconclusive both on December 8 and January 11,
requiring a runoff.
B. Interference in Choice of Representatives
1. No intention to bargain with officers
Vice President Hennessey claimed at the trial that in the
week after the December 8 election (the week of December 11),
as far as he was concerned, “the original officers were still the
authorized [League] representatives” (Tr. 591).
To the contrary, Hennessey had already told Vice President
Hessie Smith, when refusing Smith’s request that he turn over
the union dues, that he considered the League officers “agents
of the United Steelworkers of America.” He had also told Smith
that the three union bulletin boards were for the use of the
League and “he didn’t consider [Smith and the other officers]
to be Workers Security League anymore” (Tr. 202–204, 227–
228).
Hennessey admitted that before December 8, he “had re-
ceived verbal requests from Hessie Smith to turn the dues
over.” The Company, after the disclaimer was withdrawn on
November 7, had deducted the October, November, and De-
cember dues. Hennessey also admitted that in November he
made the decision not to allow the officers to post notices on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1340
the League’s bulletin boards and “had given keys to the loyal-
ists.” (Tr. 533–537, 591, 1013.)
Moreover, in that same week of December 11, despite his
claim that he considered the officers still to be the authorized
representatives, Hennessey gave a clear signal to the employees
that he had no intention of bargaining with the officers, but
would bargain with League “members” or with a bargaining
committee appointed by “authorized” representatives.
Hennessey did so in his Open Letter to the employees (Tr.
589–590; G.C. Exh. 34), notifying them that the employees had
rejected the Steelworkers as their bargaining agent—even
though the Steelworkers had received more votes in the election
than the League.
The Open Letter reads (G.C. Exh. 34):

Employee rejection of the [Steelworkers] as their bar-
gaining agent on December 8th means that the [League]
continues to represent all hourly paid production and
maintenance employees.
The NLRB election triggered by the [Steelworkers] pe-
tition has delayed discussions between the Workers Secu-
rity League members and Modern Drop Forge Company
on the wage reopener which provided both employees and
[the Company] with the opportunity to discuss employees
wage rates, incentive rates, Pay for Performance and the
Broad Banding hourly wage compensation system. A let-
ter notifying [the Company] of the employees’ intent to
reopen the labor contract for wage discussions was filed
with the Company on 9/11/95 as required and therefore the
contract is still open for a discussion of wage issues.
The company believes that the delays in starting dis-
cussions of the wage reopener have gone on long enough
and that [League] members should contact their leadership
representatives and urge them to form a Bargaining
Committee who would begin discussions as soon as possi-
ble.
Employees with questions about the Labor Contract
Wage Reopener status should contact their immediate su-
pervisor or an authorized [League] representative. [Em-
phasis added.]
2. Attempted replacement of officers
a. Offices “declared vacant” by 12 loyalists
The problem was how to replace the officers with “author-
ized” representatives with whom the Company would bargain.
Loyalist Wurtzbacher, who had contacted Attorney Mazzone
to represent the loyalists, revealed at the trial that both before
and after the election, the group of 12 loyalists (calling them-
selves “concerned members”) failed in getting a sufficient
number of signatures on petitions to remove the officers (Tr.
828, 832–834, 838, 842, 852, 855–856).
The reason was obvious. The League had about 270 or 275
members (R. Exh. 116B at 91). There were 162 employee sig-
natures on the “I’m Voting Steelworkers!” petitions that were
attached to a Steelworkers leaflet (R. Exh. 26) and 175 votes
for the Steelworkers on the December 8 tally of ballots (G.C.
Exh. 17; R. Exh. 47). It was therefore apparently hopeless at
that time to obtain the required signatures of “one-third of all
the members” to file removal petitions and the approval of
“two-thirds of the membership voting” to lawfully remove the
officers under the League’s bylaws. An approval of “two-
thirds of the membership eligible to vote” was required to re-
move delegates. (G.C. Exh. 6; R. Exh. 89, art. 10.)
After the Company gave the signal that it would bargain with
“authorized” representatives, the 12 loyalists issued a Declara-
tion and Notice leaflet that omitted any reference to the
League’s bylaws requirements for nominating, electing, and
removing officers (G.C. Exh. 2; R. Exh. 89, arts. 4, 10). The
leaflet, purportedly issued on behalf of the League, had the
names of Wurtzbacher and the 11 other loyalists typed at the
bottom. (G.C. Exh. 5). The copy the Company introduced in
evidence (R. Exh. 36) shows how the document was originally
prepared, without the date of the meeting and without the typed
names of the 12 loyalists. The evidence does not reveal who
prepared the original copy.
The notice stated that the League is currently in a state of
emergency and that the offices of president, vice president,
secretary, and treasurer were “hereby declared vacant” (empha-
sis added). It also stated that notice is given that on December
17, a meeting would be held to accept nominations and that an
election would take place “by hand vote.” It promised that “all
dues paying members in good standing will be eligible to par-
ticipate.”
The Company at least acquiesced and cooperated.
The Company acquiesced by permitting the notice to be
posted on the League’s bulletin boards and elsewhere in the
plant. Hessie Smith credibly testified that he saw the notice
posted on two League bulletin boards and also on the bulletin
board at the entrance to the locker room, on two windows be-
fore the shop office, and by the water fountain in the trim and
die repair area. (Tr. 207–208.) As found, the Company had
changed the locks on the League’s bulletin boards before the
Board election and had given keys to the loyalists.
Vice President Hennessey admitted that he was advised that
there was the notice in the plant, that somebody brought him a
copy, and that no one in human resources told any supervisor to
remove them (Tr. 573, 1037).
The Company cooperated by excusing loyalist Wurtzbacher
for “union business” on December 16 (the day before the hand
vote) to consult with Attorney Mazzone, evidently to plan the
purported election. Wurtzbacher was not a union officer or
delegate. (Tr. 555–556, 886–887; R. Exhs. 39, 125.)
b. Loyalist election of “new” officers and delegates
At the meeting on Sunday, December 17, the loyalists re-
neged on the promise in the Declaration and Notice leaflet that
“all dues paying members in good standing will be eligible to
participate.”
The loyalists held the meeting in the banquet hall of the
school that is located across the street from the plant. When
Vice President Hessie Smith arrived, one of the loyalists in-
structed the security guard (from A&R Security, which pro-
vided the Company’s security service) “that I wasn’t allowed in
the meeting.” Smith remained at the school. He observed about
40 members attend the meeting and about 35 or 40 other dues
paying members in good standing being refused entrance. (Tr.
208–212, 277, 571; G.C. Exh. 7.) Loyalist Wurtzbacher credi-
bly recalled that those who were prevented from entering in-
cluded all four officers and two of the delegates (Tr. 904–906).
Inside the meeting about 40 loyalists (about 15 percent of the
members) purported to nominate and elect four officers and
seven delegates to serve temporarily until the next scheduled
League election on January 11, 1997 (Tr. 430, 578–579). In the
MODERN DROP FORGE CO. 1341
Company’s December NewsNotes (its newsletter sent to em-
ployees’ homes [Tr. 224]), which began with “A Christmas
Message,” the Company reported (G.C. Exh. 9 at 1, 8) that

A special Workers Security League meeting was held
on 12/17/95 to elect new officers and delegates to replace
the former [League] officers and delegates who were
summarily kicked out of office for their continued and un-
believable support of the United Steelworkers of America.
[New officers and delegates named.]
These officers and delegates have hired attorney Joe
Mazzone to assist them in contract negotiations with the
Company. [The Company] expects to be contacted about
beginning discussions on the wage reopener very soon.
[The Company] hopes that the [League] members will
support these new officers who were elected to represent
the best interests of the Workers Security League and its
members. [Emphasis added.]

On December 18 Hessie Smith, “On behalf of the members
and officers” of the League, wrote Vice President Hennessey
complaining about “the illegal actions that took place this
weekend” (G.C. Exh. 7):

A group of 40 people decided to have their own Work-
ers Security League election of officers. [Company] secu-
rity guards turned away members in good standing and
denied them the right to vote. In other words, a handful of
less than 20 percent of the workers . . . took it upon them-
selves to decide all 380 employees fate.
. . . .
We want to inform you that if you in any way recog-
nize or support this group, you will be in clear violation of
Federal Law.

Hennessey responded in his December 21 letter, in which he
advised Smith in part (G.C. Exh. 8):

Modern Drop Forge Company will recognize any
group of legitimate Workers Security League supporters,
even if they are only elected for a temporary period in or-
der to begin discussions between the Company and the
employees regarding the labor contract wage reopener. . . .
You and the other former [League] officers and dele-
gates are hereby advised that [the Company] no longer
considers you as legitimate representatives of the . . .
League for purposes of contract administration as of Mon-
day, 12/18/95. [Emphasis added.]
3. Bargaining with the “new” officers and delegates
Faced with the threat that the Company would bargain with
the officers and delegates who were purportedly elected in the
December 17 loyalist meeting, the League officers hired Attor-
ney Pasquale Fioretto as the League’s attorney, replacing At-
torney Bates who had withdrawn as counsel in September (Tr.
477).
On January 5 Fioretto sent Vice President Hennessey a letter,
advising that he was counsel for the League and stating in part
(G.C. Exh. 12; R. Exh. 44):

First, the Workers Security League, through its law-
fully elected officers, hereby demands that the Company
bargain with them over the wage reopener and discuss
various work-related grievances over the past several
weeks.
. . . .
Moreover, we have been informed that the Company
has in its possession union dues which it collected from all
bargaining unit members for the months of October, No-
vember, and December 1995. The Company refused to
forward the dues to the Union. . . . The Company has no
authority to retain said union dues.

In response, Hennessey wrote Fioretto a letter on January 8,
stating in part (G.C. Exh. 13; R. Exh. 46):

Modern Drop Forge Company has never been contacted by
the former Workers Security League officers regarding initia-
tion of discussions over the wage reopener issue. We have,
however, been contacted recently about some work-related
grievances which occurred after 12/17/95 and we have recog-
nized the new Workers Security League officers and dele-
gates as employee representatives.
It is our understanding that the members of the Work-
ers Security League held an emergency meeting on Sun-
day, 12/17/95, to fill vacancies in the officer and delegate
positions . . . .
The Company is currently holding approximately 3
months in union dues which we will continue to hold in an
escrow account until we are directed to pay it to the Work-
ers Security League by their new labor lawyer, Joseph
Mazzone. . . . I suggest if you have any questions about
the distribution of that money, you should contact Mr.
Mazzone, who I am sure can clarify the matter for you.
If you have any questions about the current leadership
of the Workers Security League union and who [the]
Company recognizes, I suggest you also discuss that mat-
ter with Mr. Mazzone, who has been retained by the
Workers Security League loyalists to represent them and
to assist them with the negotiating process.
I would also like to suggest that any future communi-
cations about these matters be directed to our labor lawyer,
Jeff Ross . . . I am sure he would be glad to answer any of
the questions you might have about this matter.

Hennessey admitted that between December 18 and April the
Company “refused to accept grievances that the original offi-
cers attempted to file” and “to allow the original officers and
delegates to attend grievance meetings.” He also admitted that
he and the supervisors “refused to meet with the original offi-
cers” about “any issues.” (Tr. 567–568.) On March 5, respond-
ing to a grievance signed by President Baker and Vice Presi-
dent Hessie Smith, who were seeking a remittance of the union
dues to the “proper union officers,” Hennessey wrote Baker
stating (R. Exh. 66):

Please be advised that we cannot accept the grievance
you have filed on 2/23/66 without it being signed by a
Workers Security League officer or delegate.
If you’d like to file this grievance, I suggest you con-
tact one of the current officers or delegates of the [League]
and ask them to sign it for you.

In the meantime between January 16 and April, while refus-
ing to bargain with the original officers, Hennessey held seven
bargaining sessions on the wage reopener with loyalist-elected
officers and delegates and their attorney Mazzone (Tr. 215,
573, 1044–1046).
The lead article in the Company’s February 29 NewsNotes
(G.C. Exh. 29) was entitled, “Company/Workers Security
League wage reopener talks continue.” On the second page
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1342
under the heading “Increases Retroactive to 11/16/95 When
Agreed,” the Company announced that

All agreed upon pay increases pursuant to the wage re-
opener discussions will be retroactive to 11/16/95. Special
one-time checks will be issued when the agreement on the
wage reopener is reached and both parties sign and exe-
cute the wage reopener agreement. [Emphasis added.]

In its March 29 NewsNotes, under the title “What’s happen-
ing with wage reopener negotiations,” the Company referred to
its proposals for higher percent increases, minimum guarantees,
and incentive rate increases. It concluded (G.C. Exh. 30 at 3):

The Wage Reopener discussions are temporarily on
hold due to the time demands on [League] officers and
delegates and their attorney caused by the former [League]
officers’ and delegates’ lawsuit against the current
[League] officers and delegates in Federal Court. [League]
officers and their attorney and other concerned employees
had to appear on two hearing dates this month—Tuesday,
3/12 and Thursday, 3/14—to testify about the circum-
stances leading to the election of new officers on 12/17/95.
Negotiations should resume after the judge issues his rul-
ing on or about 4/1/96.
Backpay estimates based on the current Company pro-
posal as of the week ending 3/24/96 come to over
$128,107.19.
When the final Wage Reopener agreement is reached,
all eligible employees will receive a single check for back-
pay earned from 11/15/95 to the date of the Wage Re-
opener agreement signing. [Emphasis added.]

By April the Company had raised the amount of its wage re-
opener increases, retroactive to November 16 and payable “in a
single check” to “the date of the Wage Reopener agreement
signing.” In its April/May NewsNotes it reported, in exact dol-
lars and cents, the amount of backpay that would have accumu-
lated by May 5 under its last offer to the loyalist-elected offi-
cers and delegates. The report reads (G.C. Exh. 18 at 15):

The company’s last wage reopener proposal called for a 5%
increase in Forge Shop and Cold Press incentive rates and a
guaranteed 3% with a minimum of $.35 per hour increase for
all hourly employees retroactive to 11/16/95. Accumulated
backpay for eligible employees under this last proposal now
amounts to $205,351.33 as of 5/5/96.
4. Withdrawing offer of accumulated backpay
Meanwhile on April 4 the Company issued a leaflet regard-
ing the “Federal Court Ruling 4/4/96” (G.C. Exh. 24). The
leaflet states in part:

Judge Leinenweber this morning ruled in favor of the
former Workers Security League officers and issued a pre-
liminary injunction barring the [League] officers elected at
the 12/17/95 meeting from acting as officers of the Work-
ers Security League and ordered them to withdraw their
freeze on the [League] union funds held at Interstate Bank
of Oak Forest.
Judge’s Findings of the Facts Limited to:

The former [League] officers and delegates were
not removed from office under the Workers Secu-
rity League Constitution and Bylaws. The new
[League] officers elected on 12/17/95 were not
elected in accordance with the Workers Security
League Constitution and Bylaws.

Company Not a Party to This Suit
The Judge’s ruling in this matter . . . is not binding on
the Company because the Company was not party to this
suit. Therefore, the issue as to who are the proper repre-
sentatives of the [League] is still undecided from the
Company’s standpoint.

On April 9 (the month before it issued its April/May News-
Notes, discussed above), the Company issued a leaflet nullify-
ing the offered accumulated backpay in its proposals to the
loyalist-elected officers and delegates. After stating in the leaf-
let (G.C. Exh. 28) that the Company “will recognize any loyal
[League] members . . . for representing employees in any disci-
plinary action situation,” it stated under the heading “Status:
Wage Reopener,” in part:

No negotiations scheduled until [League] leadership is
established as loyal to [League] members.
All contract proposals by the Company are withdrawn
. . . .

Thus, the Company was clearly notifying the employees that
it had been willing to offer accumulated backpay to the loyalist-
elected officers and delegates, but that it would not make such
an offer to the League’s officers and delegates.
In its May 13 leaflet, issued 6 days before a May 19 recall
vote, the Company encouraged all “loyal” League members to
“be sure to cast their vote on [the loyalists’] recall petition”
(G.C. Exh. 26; R. Exhs. 82, 115) and encouraged them again in
its April/May NewsNotes (G.C. Exh. 18 at 4, 15). It is in that
same NewsNotes (at 15), under the heading “Wage Reopener
Discussions Update,” that the Company notified the employees
the exact amount of backpay that would have accumulated
through May 5 under its last proposal. This was after the Com-
pany issued the notice on April 9 that “All contract proposals
by the Company are withdrawn.”
Having refused to negotiate with the League’s officers and
having withdrawn all its contract proposals, the Company was
making an implied threat before the recall vote that the em-
ployees may lose the offered accumulated backpay if the recall
of the officers failed and they remained in office.
On the other hand, by notifying the employees in the
April/May NewsNotes the exact amount of the backpay that
would have accumulated by May 5 under the Company’s “last
wage reopener proposal” (to the loyalists before the Federal
district court’s ruling on April 4), the Company strongly im-
plied that if one condition were met, it would be willing to rein-
state the offer of wage increases, retroactive to November 16
and payable when the wage reopener agreement is signed. The
condition was that the League members remove the officers and
select leadership that was, to the Company’s satisfaction,
“loyal” to League members.
The League members were therefore faced at the May 19 re-
call vote with the choice of (a) voting to remove the officers, as
the Company sought, or (b) voting against their removal and
running the risk of jeopardizing the hundreds of thousands of
dollars of backpay that would accumulate by the time an
agreement could be reached in wage reopener negotiations with
“loyal” League leadership.
MODERN DROP FORGE CO. 1343
5. Vilifying League officers
After notifying the employees on April 4 that the Federal
district court had enjoined the loyalist-elected officers from
“acting as officers” of the League, the Company engaged in a
vilification campaign against the League’s officers—further
interfering with the right of the employees to freely choose
their representatives in the company-supported unaffiliated
union.
On April 19 the Company issued a leaflet (G.C. Exh. 25)
with the heading, “Modern Files Unfair Labor Practice Against
Reinstated [League] Officers and Delegates.” Among many
allegations denigrating the League’s officers in the two-sided,
legal-size leaflet, the Company accuses the “reinstated” officers
of abandoning their responsibility to bargain by “not re-
quest[ing] bargaining with the Company over the wage re-
opener at any time during the fall of 1995.” It ignored the fact,
as discussed above, that Hennessey had insisted that there was
“no union” until the disclaimer was withdrawn and had told
Hessie Smith in November that “he didn’t consider [Smith and
the other officers] to be Workers Security League anymore.”
The leaflet concluded by asserting that the leadership had not
maintained any credibility with the Company’s management
“in terms of wanting to work with the Company to solve day-
to-day labor contract administration issues” because the Com-
pany believed that the current League leadership “cannot serve
two masters at the same time”—further threatening not to bar-
gain with the League’s officers.
On May 13, before the May 19 recall vote, the Company is-
sued the be-sure-to-vote leaflet, which repeatedly called the
officers the League’s “puppet officers.”
The Company referred in the leaflet (G.C. Exh. 26) to the
League’s charges filed by Attorney Fioretto on January 9 in this
proceeding. The charges (G.C. Exh. 1A) alleged that the Com-
pany violated Section 8(a)(5) by withholding union dues, refus-
ing to negotiate over the wage reopener, and refusing to accept
and process grievances. The May 13 leaflet stated that the
“same old worn out unfair labor practices filed by the [League]
puppet officers in January of this year have been turned into
complaints against the Company” by the Board.
The May 13 leaflet concluded, under the heading “Loyal
[League] Members . . . Stand Up for Your Rights”:

The legitimate members of the [League] have taken
the appropriate steps to remove the [Steelworkers] puppet
officers of the [League] from office. The vote regarding
the recall and removal of those officers and delegates has
been scheduled for Sunday, May 19 at 10 a.m. at [the
school across the street from the plant]. All loyal [League]
members should be sure to cast their vote on that recall
petition.

Two days later, on May 15, the Company issued another
leaflet entitled “Summary of [League] Leadership’s Failure to
Represent Members’ Interests 6/92–6/95.” It contained a full
legal-size page of criticism, denigrating the officers’ leadership.
(G.C. Exh. 27.)
In its April/May NewsNotes (G.C. Exh. 18 at 4), the Com-
pany encouraged League members to vote on removing the
officers by reporting that “180 or more” members had signed a
recall petition. It stated that under the League’s bylaws, “up to
2/3 of the membership must vote for the removal.”
The Company then in that NewsNotes (at 5), referring to its
“unfair labor practice [charge] against Steelworkers union and
its agents,” recited two full columns of accusations against the
League leaders in support of the charges. It concluded: “Any
employee with questions about the Company unfair labor prac-
tices charges against the [Steelworkers] and its local agents
should contact their department supervisor.”
Despite the implied threat of loss of backpay unless the
League members remove the officers—conduct that clearly
tended to coerce the employees to remove the League’s offi-
cers—and despite the Company’s vilification campaign against
these officers, a sufficient number of members continued to
support the officers in the May 19 vote to block their removal.
In constrast to the number of members (reputedly 175 to
180) who publicly signed the recall petitions, the May 19 secret
vote was 80 to 62, with 10 disputed ballots, This was less than
the required two-thirds of the members voting. The vote is the
subject of additional litigation. (Tr. 379–380, 935, 776; R.
Exhs. 54, 82, 86.)
6. Contentions of the parties
The General Counsel contends (Br. 23) that after the sham
December 17 election, the Company rushed to recognize the
“wholly illegitimate” loyalists officers and “precipitously
agreed to negotiate with them about the wage reopener.” It
“negotiated with [them] for seven negotiating sessions” and
“refused to deal with anyone but the loyalists concerning the
filing and processing grievances.” The Company was not con-
cerned that the loyalist officers “had no legitimate claim to act
as authorized representatives of the League” and the Com-
pany’s unlawful assistance to them “furthered its own goal, i.e.,
to dictate to its employees who should and should not hold
League office and be League representatives.”
The General Counsel further contends (Br. 26) that the
Company’s actions were taken to undermine the original offi-
cers’ “chances of re-election in the League’s January 1997
internal election for officers and delegates, and to ensure that
the loyalists will be elected in their place.” The General Coun-
sel concludes (at 27): “These attempts by [the Company] to
influence and even select their employees’ collective-
bargaining representatives constitutes unlawful interference in
the League’s administration and unlawful assistance to the
loyalists. Therefore [the Company] has violated Section 8(a)(1)
and (2) of the Act.”
The Company contends in its brief (Br. 15–16):

The parties do not dispute that Modern Drop Forge
Company recognized and bargained with a group of
[League] loyalists who were elected as union officers at
the December 17, 1996 emergency meeting. The Board
argues that by recognizing and bargaining with the
[League] loyalists, the Company unlawfully interfered
with and rendered assistance to that faction of the Union.
The Board finds scant support for its position, however, in
the case law. Indeed, Modern Drop Forge Company’s de-
cision to recognize and bargain with the [League] loyalists
was lawful and proper.
7. Concluding findings
a. Controlling principles
The general rule is well established, as held in Howland
Hook Marine Terminal, 263 NLRB 453, 454 (1982)—cited by
the Company in its brief (Br. 11–12)—that

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1344
Section 8(a)(5) requires an employer to recognize the
agents of its employees’ collective-bargaining representa-
tive. The designation of such agents is purely an internal
union affair. [Emphasis added.]

It is also well established, as held in Whitewood Mainte-
nance Co., 292 NLRB 1159, 1169 (1989), that the legal theo-
ries underlying the 8(a)(2) and (5) allegations are related. An
employer “may not refuse a demand to recognize and bargain
with [one union] in violation of Section 8(a)(5), and if it recog-
nizes and bargains with any other labor organization, it neces-
sarily violates Section 8(a)(2).”
In Farmers Energy Corp. v. NLRB, 730 F.2d 1098, 1101–
1102 (7th Cir. 1984), a case in which the employer engaged in
conduct “designed to aid it in asserting control over the em-
ployees’ bargaining representative [the CIU, an unaffiliated
union],” the court specifically recognized “the employees’ right
to freely choose a bargaining representative.” Although in a
different fact situation from here, the court held that the em-
ployer’s selection of “the employee to represent” the CIU
“strongly suggests that the employees did not freely control
their choice of a bargaining representative.”
In Midwestern Mining, 277 NLRB 221 fn. 1, 254 (1985), the
Board found that a message from the employer’s top-level
management was that it “favored the CIU and would reward
employees who supported that [union]” because it would not be
“that much of an expense.” The Board held that this message,
in sharp contrast with the employer’s “outspoken and unlawful
efforts to undermine employee support for the UMW [an affili-
ated union],” constituted unlawful “assistance and support of a
union” that the employer “felt it could better control” and vio-
lated Section 8(a)(2) and (1) of the Act.
I find that these principles are controlling. The “employees’
right to freely choose a bargaining representative” must be
respected. Unlawfully recognizing and bargaining with persons
other than the union’s designated agents violates Section
8(a)(2), the same as recognizing and bargaining with the wrong
union.
b. Extreme case of company interference
As found, this is an extreme case of company interference
with the right of employees to freely choose their representa-
tives in a company-supported unaffiliated union—or, in the
words of the Board in Midwestern Mining—a union the Com-
pany “felt it could better control.”
The Company was unwilling to deal with the lawfully desig-
nated agents of the League, preferring to deal with loyalists.
The Company was obviously determined to have the League’s
officers replaced with loyalists who would support it in oppos-
ing the stronger Steelworkers in any runoff election, in the hope
of ensuring a victory for the weaker League.
The Steelworkers had received more votes in the December
8 election than the League, but not a majority. Before 11 chal-
lenged ballots were resolved, the Company began engaging in
conduct to make sure that if the League did not received a ma-
jority of the votes in the final tally, any election runoff would
be delayed, giving more time to undermine employee support
for the League’s officers and build support for loyalist officers
and delegates.
The League’s bylaws require a two-thirds vote to remove
both officers and delegates. The Company realized that this
requirement for lawfully removing the officers could not be met
because a group of 12 loyalist (calling themselves “concerned
members”) had already failed, both before and after the De-
cember 8 election, in getting sufficient employee support.
The Company therefore permitted the 12 loyalists to post
copies of a notice in the plant, bypassing the required recall
procedure and declaring that the offices held by the League
officers were “hereby declared vacant.” The notice also by-
passed the required nomination and election procedure and
announced that at a meeting on December 17, nominations
would be accepted and an election would be held by “hand
vote.”
About 40 loyalists held the purported election at the Decem-
ber 17 meeting where about 35 or 40 other members in good
standing, including the League officers, were denied entrance.
The Company then reported to the employees in its Christmas
newsletter that the “former” officers and delegates were “sum-
marily kicked out” of office for their “continued and unbeliev-
able support” of the Steelworkers and that it hopes the League
members would support the “new” officers who were “elected
to represent the best interests of the Workers Security League
and its members.”
Refusing any dealings with the League’s designated agents
in administering the collective-bargaining agreement expiring
November 16, 1997, the Company bargained with the loyalist-
elected officers and delegates on a wage reopener, offering
them wage increases retroactive to November 16, 1995, with
accumulated backpay that would amount to $205,351.33 by
May 5, 1996.
Meanwhile, after reporting to the employees that the Federal
district court’s April 4, 1996 preliminary injunction barring the
loyalist officers “from acting as” League officers, and stating
that the court’s ruling “is not binding” on it, the Company on
April 9, 1996 withdrew all its contract proposals and informed
the employees that no further negotiations would be scheduled
until League leadership was established as “loyal” to the mem-
bers.
The Company then engaged in a vilification campaign to fur-
ther undermine employee support for the League’s designated
agents and made a coercive implied threat that the employees
may lose the offered accumulated backpay if the employees
failed to remove the officers. It strongly implied, however, that
it would reinstate the offer of accumulated backpay if the em-
ployees removed the officers and selected “loyal” representa-
tives.
The League members were faced with the choice of (1) vot-
ing to remove the officers, as the Company sought, or (2) vot-
ing against their removal and running the risk of jeopardizing
the hundreds of thousands of dollars of backpay that would
accumulate by the time an agreement could be reached in wage
reopener negotiations with “loyal” representatives.
c. Cited Board case distinguished
In its defense, the Company primarily relies on the Board’s
specific rulings in Howland Hook, above, 263 NLRB at 454. I
agree, however, with the General Counsel (Br. at 19) that
Howland Hook in these specific rulings is “distinguishable
from the instant case.”
The Company submits in its brief (Br. 11–12) that in
Howland Hook, “an employer faced competing claims to rec-
ognition by two individuals claiming to be the authorized union
steward. After the employer recognized one individual as stew-
ard, the other filed Section 8(a)(3) and (5) charges. Rejecting
those claims, the Board absolved the [employer] and held that it
MODERN DROP FORGE CO. 1345
had fulfilled its bargaining duty despite recognizing only one of
the stewards.” The Company quotes the Board’s following
reasoning (263 NLRB at 454):

[T]o find otherwise would be to require the Respon-
dent to go behind the conflicting representations and
claims of authority and to evaluate those claims in
terms of the Local’s bylaws. Section 8(a)(5) did not
obligate the Respondent, in such circumstances, to in-
terpret the Local’s bylaws or to evaluate the motives
behind the conflicting demands made. Rather, the
resolution of the dispute herein is left to the internal
procedures of the ILA. [Emphasis added.]

Here, however, the Company did not leave the dispute over
the status of the League’s officers to the “internal procedures”
of the League under its bylaws. It made the decision itself not
to recognize the League’s designated agents. It permitted the
group of 12 loyalists to post copies of the hereby-declared-
vacant notice in the plant, bypassing the internal procedures in
the League’s bylaws for removing and replacing officers.
In Howland Hook the Board specifically found that the union
president selected an interim steward, that the executive board
selected another, and that each acted “with apparent authority
to speak on behalf of the Local.” The Board explained (263
NLRB at 454 fn. 6):

The Local’s bylaws do not address the appointment or
selection of interim stewards. While the bylaws do place
much authority in the office of president to act on behalf
of the Local, they also state that the executive board is the
“highest governing authority” within the Local between
membership meetings. Thus, in asserting the authority to
select the interim steward, the executive board members
were raising, at least, a colorable claim.”

Here, the circumstances were entirely different. The loyalist-
elected officers and delegates obviously did not have even a
colorable claim to those positions.
Moreover, in Howland Hook the Board specifically found
that the internal union dispute was “unrelated to the employer’s
bargaining obligations.” The Board held in that case that “there
is no evidence that the [employer] seized upon the dispute
within the Local as a means of avoiding its bargaining obliga-
tions.” In this proceeding, however, as the General Counsel
points out (brief at 20), “there is ample evidence that the [Com-
pany] has done just that, seized upon the League’s internal
dispute as a pretext for avoiding its bargaining obligations with
the less favored original officers.”
d. Violation of Section 8(a)(2)
The Company has ignored the well-established rule, as held
in Howland Hook, above, 263 NLRB at 454 (1982), that the
designation of agents of employees’ collective-bargaining rep-
resentative is “purely an internal union” matter.
The Company flouted the League members’ right to freely
choose whether to retain their designated agents in the unaffili-
ated union. It decided itself that the agents should be replaced,
regardless of the wishes of the members.
The Company recognized the loyalist-elected “new” officers
and delegates who did not have even a colorable claim to those
offices. It refused to deal with the League’s designated agents
and bargained with the “new” officers and delegates from Janu-
ary 16 until it notified the employees on April 4 that the Federal
district court had issued a preliminary injunction barring the
“new” officers “from acting” as League officers. It continued
refusing to bargain on the wage reopener with the League’s
designated agents.
In Midwestern Mining, above, 277 NLRB 221 fn. 1 (1994),
the Board drew the sharp contrast in the employer’s message
supporting an unaffiliated union, with its “outspoken and
unlawful efforts to undermine employee support for the [affili-
ated union].” The Board held that the employer unlawfully
assisted and supported the unaffiliated union, which it “felt it
could better control,” violating Section 8(a)(2) and (1) of the
Act.
Here, in sharp contrast with its support of the “new” officers
and delegates, the Company engaged in a vilification campaign
against the League’s officers. It also made the coercive implied
threat that the employees may lose accumulated backpay unless
the League members removed the officers, but strongly implied
that it would reinstate the backpay offer if “loyal” representa-
tives were selected.
I find that the Company was motivated in large part by its
determination to replace the League’s designated agents with
loyalists who would support it in opposing the stronger Steel-
workers in the runoff election, in the hope of ensuring a victory
for the weaker League, which it felt it could better control.
I therefore find that the Company interfered with the admini-
stration of the League, and rendered unlawful assistance to the
loyalist-elected officers and delegates, by recognizing them on
December 18 and bargaining with them until April 4, instead of
recognizing and bargaining with the League’s designated
agents, violating Section 8(a)(2) and (1) of the Act.
I further find that even if the Company recognized and bar-
gained with the loyalist officers and delegates with a good-faith
belief that they represented “the best interests of the Workers
Security League and its members”—rather than the interest of
the Company in defeating the stronger Steelworkers and retain-
ing the weaker League, which it felt it could better control—
that was a decision for the League members to make, without
company interference or coercion.
Whether the League officers who supported the Steelworkers
in the election should have been replaced with members who
remained loyal to the company-supported unaffiliated League
was “purely an internal union” matter for the League mem-
bers—not the Company—to decide.
C. Refusal to Bargain with League’s Designated Agents
1. Findings of the 8(a)(5) violations
Having found that the Company violated Section 8(a)(2) and
(1) by recognizing and bargaining with the loyalist officers and
delegates purportedly elected on December 17, I find that the
Company likewise violated Section 8(a)(5) and (1) by refusing
to bargain on the wage reopener with the League’s designated
agents. As discussed about, it is well established as held in
Whitewood Maintenance, above, 292 NLRB at 1169, that the
legal theories underlying the 8(a)(2) and (5) allegations are
related.
The League’s designated agents are President Charles Baker,
Vice President Hessie Smith, Secretary Charles Johnson,
Treasurer Robert Pucik, and Delegates Jim Feidner, Richard
Kivo, Andre Peterson, and Walter Waushon (Tr. 1069; G.C.
Exh. 1(i) par. 7).
The Company’s vice president Hennessey admitted at the
trial that since December 18, the Company “has refused to meet
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1346
with the original officers to negotiate about the wage reopener
in the existing contract” (Tr. 568).
Concerning the union dues that the Company has checked
off since September, the Company is still holding them in es-
crow, despite the repeated oral and written requests for Hennes-
sey to remit them to the League’s officers (Tr. 234, 430–431,
591; G.C. Exhs. 12, 14, 15; R. Exhs. 44, 77, 85). On January 8
Hennessey refused to remit the checked-off dues “until we are
directed to [by the loyalists’] new labor lawyer, Joseph Maz-
zone” (G.C. Exh. 13; R. Exh. 46). After the Company notified
the employees on April 4 that the Federal district court had
ruled against the loyalist-elected officers, Hennessey told Hes-
sie Smith that he would not turn over the dues because “he
didn’t considered us as being officers and delegates” of the
League, but “considered us” agents of the Steelworkers (Tr.
234).
Concerning grievances, the Company has stipulated that be-
tween December 17 and April 4, it “would only accept griev-
ances under the collective-bargaining agreement that were
signed by an officer or delegate of the loyalist faction of the
Workers Security League.” It also stipulated that the Company
now (after April 4) “does not require either a League officer or
a delegate to sign the grievance before the Company will accept
it.” (Tr. 1068–1069; G.C. Exh. 33.) On April 9, as found, the
Company notified the employees in a leaflet (G.C. Exh. 28) that
it would recognize any loyal League members “for representing
employees in any disciplinary action situation.”
2. Unfounded defenses
a. Requests to bargain not timely filed
The Company contends in its brief (Br. 3, 7–9, 22) that the
Company was never obligated to bargain with the original offi-
cers on the wage reopener because there was no timely request
to bargain. It contends that there were five reopener requests
made by the original officers: two that were indisputably too
early and three, indisputably too late.
The Company contends that two identical copies of the
original reopener request (R. Exhs. 4A and B) were received on
September 11 and 12, before the reopener window period, and
three were received in 1996, “long after the window period
expired.” Regarding the 1996 requests, the Company refers to
League Attorney Fioretto’s January 5 demand to “bargain over
the wage reopener” (G.C. Exh. 12; R. Exh. 44), League Presi-
dent Baker’s and Vice President Hessie Smith’s April 14 re-
newed request to bargain “over the outstanding wage reopener
issue” (G.C. Exh. 14; R. Exh. 77), and Baker’s and Smith’s
May 31 renewed request (G.C. Exh. 15; R. Exh. 85).
The Company received one copy of the wage reopener re-
quest on September 12, as stamped on the League’s letter (G.C.
Exh. 3). The wage reopener provision in the agreement (G.C.
Exh. 2; R. Exh. 1, art. 17(i)) specifies a 60-day window period
that begins September 16, 4 days later. The Company, however,
did not rely on this early submission of the reopener request
when refusing to bargain with the League’s officers.
After the December 8 election, in the week of December 11
as found, Vice President Hennessey sent an open letter to the
employees (G.C. Exh. 34), acknowledging receipt of a letter “to
reopen the labor contract for wage discussions” and stating that
“therefore the contract is still open for a discussion of wage
issues.”
Then, after the purported election on December 17, the
Company recognized and bargained on the wage reopener with
the loyalist-elected officers and delegates (who had not even a
colorable claim to those positions) in the hope of building sup-
port for “these new officers” who were elected, according to the
Company, “to represent the best interests of the Workers Secu-
rity League and its members.”
On December 21 Hennessey informed Hessie Smith that the
Company would recognize the loyalists “to begin discussions
between the Company and the employees regarding the labor
contract wage reopener.” Neither in that letter nor in Hennes-
sey’s January 8 letter in response to Attorney Fioretto’s January
5 bargaining demand letter did Hennessey rely on the early
submission of the September wage reopener request as a reason
for refusing to bargain on the wage reopener. The Company did
not respond to Baker’s and Smith’s April 14 and May 31 re-
newed requests to bargain on the wage reopener (Tr. 575).
Having acknowledged receipt of the League’s September re-
quest to reopen the contract for wage discussions, having in-
formed the employees in December that “the contract is still
open for a discussion of wage issues,” and having bargained
with the loyalist-elected officers and delegates on the wage
reopener to build employee support for “these new officers,”
the Company has obviously waived the contractual 60-day
window requirement.
I reject the contention as a clear afterthought.
b. Not sent by registered mail
The Company contends in its brief (Br. 8 fn. 8) that “Even if
the original officers had made and demanded to bargain over
the reopener, those demands would have been invalid under the
contract. The [collective-bargaining agreement] expressly re-
quires that bargaining demands under the reopener provision be
in writing and sent by registered mail,” citing the second para-
graph of article 17(i) of the agreement (G.C. Exh. 2; R. Exh. 1),
which reads in part:

All notices regarding either party’s intention to request
a reopening under this article shall be given by registered
mail. . . .

This provision obviously refers to the September wage re-
opener request, not to the League’s repeated requests that the
Company bargain on the wage reopener, after the Company
acknowledged that “the contract is still open for a discussion of
wage issues.”
The League’s September 12 wage reopener request (G.C.
Exh. 3; R. Exh. 4B), which the Company accepted as the wage
reopener, was sent by certified mail (R. Exh. 4B).
I reject this contention as another clear afterthought.
c. Confusion over source of requests
The Company contends in its brief (Br. 18–20) that because
the Company was confused about the source of the original
officer’s bargaining demands, the League’s demands were
properly rejected.
This is a defense that the Company first raised as an after-
thought on April 4, when reporting to the employees in a leaflet
that the Federal district court had ruled against the loyalist-
elected officers. The Company concluded the report (G.C. Exh.
24) with the statement that it would continue to hold the dues
until the League officers repudiate their unity and joint bargain-
ing agreements with the Steelworkers and “clarify that [the
League] leadership represents the Workers Security League.”
The Company was referring to the short-lived position taken
by the League officers in December, before hiring counsel to
MODERN DROP FORGE CO. 1347
oppose the Company’s bargaining on the wage reopener with
the loyalist-elected officers and delegates. The League officers
had been without the benefit of legal counsel since the
League’s former attorney withdrew as counsel in September
“due to the appearance of a potential conflict of interest” and
since the Company began withholding the checked-off union
dues, cutting off the League’ only source of income (Tr. 430–
431).
Under these circumstances, on December 17 (the same day
that the loyalists held a meeting and purportedly elected new
officers and delegates), the League officers signed a unity
agreement with the Steelworkers. The agreement (R. Exh. 35)
stated that “Over 98% of us believe we need a union contract
and union protection” and that “until the final question of union
representation is resolved by the workers,” the Steelworkers
and League commit themselves to forming a joint bargaining
committee. The League officers signed it on the uninformed
belief that in this way, “everybody could be represented” (Tr.
431–433).
On December 21 Hennessey responded to Hessie Smith’s
December 18 letter (G.C. Exh. 7), in which Smith stated that
recognition of the loyalist-elected officers would violate Fed-
eral law. Hennessey advised Smith (G.C. Exh. 8) that the
League’s officers and delegates “are hereby advised that [the
Company] no longer considers you as legitimate representa-
tives” of the League “for purposes of contract administration as
of Monday, 12/18/95.”
On that same day, December 21, Smith (as acting League
president) signed a letter with a Steelworkers representative (R.
Exh. 42), requesting that the Company engage in joint bargain-
ing. The Company immediately, and of course properly, re-
jected such bargaining (G.C. Exh. 22).
Shortly afterwards, the new League attorney Fioretto com-
municated with the Company, making it clear that the League
was then seeking bargaining only on its own behalf. In a letter
to Hennessey on January 5 (G.C. Exh. 12; R. Exh. 44), Fioretto
stated that he “is counsel for” the League and that

First, the Workers Security League, through its law-
fully elected officers, hereby demands that the Company
bargain with them over the wage reopener . . . .

The evidence shows that the Company understood at that
time that the League, being represented by an attorney, was
seeking bargaining only on its own behalf.
By January 8, when Hennessey answered Fioretto’s January
5 bargaining demand that the Company bargain with the
League’s “lawfully elected officers,” the Company was already
on notice that the League had ceased joining with the Steel-
workers in issuing literature to the employees. A Steelworkers
leaflet, dated January 4, was issued in the name of the Steel-
workers organizing committee, the same as in the Steelworkers
preelection campaign. The Steelworkers had issued all its
preelection campaign literature in the name of its organizing
committee (R. Exhs. 18, 22–23, 94–96), except its leaflets is-
sued in the name of the Steelworkers itself (R. Exhs. 12, 25–
26).
Moreover, in Hennessey’s January 8 response (G.C. Exh. 13;
R. Exh. 46), he said nothing about refusing to bargain because
he believed or suspected that the League was still seeking joint
bargaining. He refused to bargain because

[W]e have recognized the new Workers Security League offi-
cers and delegates as employee representatives.
. . . .
If you have any questions about the current leadership
of the Workers Security League union and who [the]
Company recognizes, I suggest you . . . discuss that matter
with Mr. Mazzone, who has been retained by the Workers
Security League loyalists to represent them and to assist
them with the negotiating process.
I would also like to suggest that any future communi-
cations about these matters be directed to our labor lawyer,
Jeff Ross . . . I am sure he would be glad to answer any of
the questions you might have about this matter.

It was months later, on April 4, that the Company told the
employees in a leaflet (G.C. Exh. 24) that the officers must
“clarify that [the League] leadership represents the Workers
Security League.” Although the Company never communicated
this message directly to them, the League’s officers complied.
In their April 14 letter to Hennessey (G.C. Exh. 14; R. Exh.
77), Baker and Smith stated, in part, that

The Workers Security League, by and through its officers, on
behalf of the bargaining unit members, hereby renews its re-
quest that the Company meet and bargain with us over the
outstanding wage reopener issue.

Getting no response, the two League officers on May 31 sent
Hennessey another letter (G.C. Exh. 15; R. Exh. 85), renewing
the request in the identical words. Again the Company did not
respond (Tr. 575).
After obtaining legal advice, the League’s officers never re-
peated their mistake of attempting to engage in joint bargaining
so that “everybody could be represented” (Tr. 431–433.) Al-
though the Steelworkers continued to issue organizing litera-
ture, the leaflets were all issued in the name of the Steelworkers
organizing committee, as shown by the exhibits the Company
introduced in evidence (R. Exhs. 50, 55, 76).
I discredit Hennessey’s denial—to a question asked on direct
examination by company counsel—that he “received any in-
formation which suggested to [him] that the unity agreement
between the original officers and the Steelworkers was not in
full force and effect in accordance with its terms” (Tr. 1043).
The League’s officers have never sought joint bargaining after
getting legal advice. The Company was on notice that all the
literature issued after the League hired Attorney Fioretto was
issued by the Steelworkers in the name of its organizing com-
mittee. Furthermore, Fioretto’s bargaining demand on January
5 and Baker’s and Hessie Smith’ bargaining requests on April
14 and May 31, clearly stated that the League was seeking bar-
gaining on its own behalf.
I find the Company’s contention that it was confused about
the source of the League’s bargaining demands was fabricated,
after the district court’s April 4 ruling, to justify its refusing to
bargain on the wage reopener with the League’s designated
agents.
I therefore reject this defense as unfounded.
d. Other unfounded defenses
I reject the contention in the Company’s brief (Br. 11 fn. 12)
that “even if they had any claim to authority within the
[League], the original officers repeatedly manifested their po-
litically-motivated intent not to bargain with the Company un-
der the reopener provision.” This contention is based on loyalist
Wurtzbacher’s claim that Hessie Smith was continually refus-
ing, in “maybe four or five different conversations,” to bargain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1348
on the wage reopener—telling Wurtzbacher roughly around
February that the original officers “didn’t want the employees
to know what there was to offer” (Tr. 801–805). I discredit this
part of his testimony.
I also reject the inaccurate contention in the Company’s brief
(Br. 11 fn. 12) that “To be sure, since April 1996 the original
officers have made renewed (untimely) bargaining demands,
but only on behalf of their joint [Steelworkers-League] negoti-
ating committee which they admit is still in effect.”
I further reject the inaccurate contention in the Company’s
brief (Br. at 22) that the League’s officers affiliated with the
Steelworkers.
3. Concluding findings
I find that since December 18, the Company has unlawfully
refused to bargain on the wage reopener with the League’s
designated agents and has refused to remit to them the withheld
union dues that have been checked off since September 1995,
violating Section 8(a)(5) and (1).
I also find that from December 18 until April 4, the Com-
pany unlawfully refused to accept and process employee griev-
ances submitted by the League’s designated agents, further
violating Section 8(a)(5) and (1).
D. Suspension of Vice President Hessie Smith
On January 18 the Company gave Hessie Smith a 3-day, in-
house suspension for being absent on January 11, when he
signed the revised tally of ballots for the League. Others present
at the opening of the challenged ballots and the signing in-
cluded Hennessey and Company Attorney Ross. Smith had
signed the original tally of ballots for the League at the Decem-
ber 8 election. (Tr. 258–261, 549, 1047–1048; G.C. Exhs. 16–
17; R. Exh. 47.)
The Company admits in its brief (Br. 21) that it disciplined
Smith because, according to the Company, he was not a League
officer at the time (having been purportedly replaced in the
loyalists’ December 17 meeting) and “had no authority” under
the collective-bargaining agreement to “attend the vote count
on behalf” of the League.
The evidence shows that Smith was the leading spokesman
for the League’s designated agents, whom the Company was
unlawfully refusing to recognize, and that he was representing
the League on January 11 at the counting of the challenged
ballots, see Magnesium Casting Co., 250 NLRB 692 fn. 2
(1980), enfd. 668 F.2d 13 (1st Cir. 1981) (suspension for at-
tending Board hearing).
Particularly in view of this evidence, I find that the General
Counsel has carried the burden of proving that Smith’s pro-
tected union activity, a designated agent of the League, and
Smith’s absence from work to represent the League at the
counting of the challenged ballots, were substantial and moti-
vating factors in the Company’s decision to suspend him.
Wright Line, 251 NLRB 1083 (1980).
I further find that the Company has failed to meet its burden
to prove that it would have suspended Smith in the absence of
his representation of the League. Hennessey admitted at the
trial that he disciplined Smith for being absent on “personal”
instead of “union” business (Tr. 1048). In sharp contrast to its
disciplining Smith, the Company not only excused loyalists
from work for purportedly representing the League on “union”
business, but it paid them for their lost time (Tr. 519, 546–549,
573; R. Exh. 125).
I therefore find that the Company discriminatorily suspended
Hessie Smith for engaging in protected union activity, to dis-
courage employees from supporting the League’s designated
agents, and for representing the League at the Board proceed-
ing, violating Section 8(a)(3), (4), and (1).
E. Necessary Remedial Actions
The Company has deprived the employees of their represen-
tation by the League’s designated agents for now over a year.
Instead of allowing a timely runoff election to take place af-
ter the inconclusive December 8, 1995 election, the Company
engaged in conduct that has delayed the runoff for an indefinite
period of time, giving the Company time to undermine em-
ployee support for the League’s designated agents.
The Company recognized and bargained on the wage re-
opener with loyalist-elected officers and delegates who had not
even a colorable claim to those positions. It continued doing so
until April 4, 1996, when it notified the employees that the
Federal district court had barred those purported officers from
“acting as officers” of the League. On April 9 the Company
withdrew its offers of wage increases retroactive to November
16, 1995, payable “in a single check” to “the date of the Wage
Reopener agreement signing,” and refused to schedule any
further negotiations on the wage reopener until the League
leadership was “established as loyal to [League] members.”
Next, to further undermine employee support for the
League’s designated agents, the Company engaged in a vilifica-
tion campaign against them and made a coercive implied threat
before the May 19, 1996 recall vote that the employees may
lose hundreds of thousands of dollars of accumulated backpay
unless they voted to remove the League’s officers. Despite this
coercive conduct, a sufficient number of League members con-
tinued to support the League’s officers to block their removal.
One result of the Company’s unlawful conduct is that a fair,
uncoerced vote for new officers and delegates in the next
scheduled League election on January 11, 1997, is obviously
made impossible.
A second result is that the employees are still being denied
the retroactive wage increases that were offered to the loyalist-
elected officers and delegates, before the Company announced
the court’s enjoining the purported officers on April 4, 1996,
from “acting as officers” of the League and before the Com-
pany withdrew all its contract proposals on April 1.
A third result is that the employees may lose the hundreds of
thousands of dollars of accumulated backpay, which the Com-
pany offered to the loyalist-elected officers and delegates, but
refused to offer to the League’s designated agents.
A fourth result is that the employees—who have been de-
prived of representation by the League’s designated officers
and delegates since December 18, 1995, and are now being
deprived of a fair, uncoerced vote for new officers and dele-
gates in the scheduled League election on January 11, 1997—
may face further deprivation of freely chosen bargaining repre-
sentatives in 1997.
Because of the company-induced delay of the runoff elec-
tion, the employees may be deprived of uncontested representa-
tion during the upcoming negotiations to renew the current
collective bargaining, which has a November 16, 1997 expira-
tion date.
Under these unusual circumstances, I find that the Company
must be required to take remedial actions that includes the fol-
lowing, to effectuate the purposes of the Act.
MODERN DROP FORGE CO. 1349
1. Recognize and bargain in good faith with the currently
designated agents of the League, immediately offering to them
the Company’s last wage reopener proposal (which it withdrew
on April 9, 1996), including the offer of pay increases retroac-
tive to November 16, 1995, payable in a single check to the
date of signing the wage reopener agreement. As the Company
reported to the employees in its April/May NewsNotes (G.C.
Exh. 18 at 15), the offered accumulated backpay then amounted
to “$205,351.33 as of 5/5/96.”
2. Continue to recognize and bargain in good faith with the
currently designated agents as the authorized officers and dele-
gates of the League until all the remedial actions are taken, the
runoff election is held, and the Company grants uncontested
recognition to the union that is properly and lawfully selected
by the employees in the runoff election.
CONCLUSIONS OF LAW
1. By interfering with the administration of the Workers Se-
curity League Union and rendered unlawful assistance to the
loyalist-elected officers and delegates, by recognizing them on
December 18, 1995, and bargaining with them until April 4,
1996, instead of recognizing and bargaining with the League’s
designated agents, the Company engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(2)
and (1) and Section 2(6) and (7) of the Act.
2. By refusing since December 18, 1995, to bargain on the
wage reopener with the League’s designated agents and by
refusing to remit to them the withheld union dues that have
been checked off since September 1995, the Company has vio-
lated Section 8(a)(5) and (1).
3. By refusing from December 18, 1995, until April 4, 1996,
to accept and process employee grievances submitted by the
League’s designated agents, the Company further violated Sec-
tion 8(a)(5) and (1).
4. By discriminatorily suspending League Vice President
Hessie Smith on January 18, 1996, the Company violated Sec-
tion 8(a)(3) and (4).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including the necessary remedial
action described above.
[Recommended Order omitted from publication.]