Olin Corp.

National Labor Relations Board - Board Decisions

Apr 15, 1980

248 N.L.R.B. 1137 (N.L.R.B. 1980)

OLIN CORPORATION 1137
Olin Corporation and Oil, Chemical and Atomic
Workers International Union, AFL-CIO-CLC,
and its local 7-629
Oil, Chemical and Atomic Workers International
Union, AFL-CIO-CLC, and its Local 7-629
and Olin Corporation. Cases 8-CA-11673 8-
CB-3603
April 15, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On October 23, 1979, the National Labor Rela-
tions Board issued the attached Proposed Decision
and Order in this proceeding in which it proposed
finding that Respondent Oil, Chemical and Atomic
Workers International Union, AFL-CIO-CLC,
and its Local 7-629, violated Section 8(b)(3) of the
National Labor Relations Act, as amended, by fail-
ing and refusing to bargain collectively with Re-
spondent Employer. Additionally, the Board pro-
posed finding that Respondent Employer had not
engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act by its
withdrawal of the union-security clause from its
proposed contract. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent Union filed exceptions and a supporting
brief. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Proposed Decision and Order in light of the
exceptions and briefs and has decided to affirm the
proposed rulings, findings, and conclusions and to
adopt the proposed Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the proposed
Order set forth in the attached Proposed Decision
and Order and hereby orders that the Respondent
Union, Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO-CLC, and its Local 7-
629, its officers, agents, and representatives, shall
take the action set forth in the said proposed
Order.
No exceptions were filed with respect to the Board's finding that Re-
spondent Union violated Sec. 8(b)3)
248 NLRB No. 148
October 23, 1979
PROPOSED DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed by Olin Corporation on Decem-
ber 13, 1977, a complaint was issued on January 24, 1978,
alleging that Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO-CLC, and its Local 7-629, has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(3) of the National
Labor Relations Act, as amended.
Upon a charge filed by the Oil, Chemical and Atomic
Workers International Union, AFL-CIO-CLC, and its
Local 7-629, on January 25, 1978, a complaint was
issued on March 10, 1978, alleging that the Employer has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, as amended. An amendment
to the complaint was issued on March 27, 1978, alleging
that the strike and concerted cessation of work was pro-
longed by the Employer's unfair labor practices thereby
converting the strike and cessation of work into an unfair
labor practice strike.
On July 26, 1978, an order consolidating the cases and
notice of consolidated hearing was issued.
Pursuant to due notice, a hearing was held before Ad-
ministrative Law Judge John F. Corbley on August 17,
1978, in Cleveland, Ohio. The General Counsel, the
Union, and the Employer were represented by counsel.
All parties were afforded full opportunity to be heard, to
present oral and written evidence, and to examine and
cross-examine witnesses. The General Counsel, the Em-
ployer, and the Union filed briefs with the Administra-
tive Law Judge, which are here considered.
On December 13, 1978, Chief Administrative Law
Judge Thomas N. Kessel informed the parties that Ad-
ministrative Law Judge Corbley had died on November
7, 1978. Administrative Law Judge Corb!ey had been
unable to issue a decision in this proceeding within the
meaning of Section 102.36 of the Board's Rules and Reg-
ulations, Series 8, as amended. Chief Administrative Law
Judge Kessel proposed several courses of action for dis-
position of the instant matter, including settling the case,
transfer to the Board for issuance of a Proposed Decision
and Order on the record as made, designation of another
administrative law judge to prepare and issue a decision
on the record as made, or a hearing de novo before an-
other administrative law judge. Thereafter, the Employ-
er, the Union, and the General Counsel advised the
Chief Administrative Law Judge that the parties desired
to have the case transferred to the Board for issuance of
a Proposed Decision and Order based on the record as
made. Accordingly, on February 1, 1979, the Board
issued an order transferring the proceeding to the Board
for the purpose of making findings of fact and conclu-
sions of law, and for the issuance of a Proposed Decision
and Order. The Board advised the parties that Section
102.46(b) and (j) of the Board's Rules and Regulations,
Series 8, as amended, are applicable with respect to the
OLIN CORPORATION
1138 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
filing of exceptions and further briefs after issuance of
the Board's Proposed Decision and Order.
Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
Upon the entire record in this proceeding and after
consideration of the briefs, the Board makes the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The complaints allege, the answers admit, and we find
that the Employer is a Virginia corporation, with its
principal office and place of business located in Stam-
ford, Connecticut, with numerous facilities located
throughout the country. The sole facility involved in this
proceeding, located in Ashtabula, Ohio, was engaged in
the manufacture and nonretail sale of chemicals. The
Employer, in the course and conduct of its business, an-
nually ships goods valued in excess of 50,000 from its
Ashtabula, Ohio, facility directly to points located out-
side the State of Ohio. Accordingly, we find, as alleged
in the complaint and admitted by the Employer, that the
Employer is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and we find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
I11. THE ALLEGED UNFAIR LABOR PRACTICES
The Ashtabula plant began operations in 1963 as a
joint venture of the Employer and the General Tire
Company. Shortly after the plant began operations, the
Union organized the production and maintenance em-
ployees. In 1973, the Employer bought out General
Tire's interest in the plant. The Employer and the Union
signed their first collective-bargaining agreement cover-
ing a period from November 18, 1974, through Novem-
ber 17, 1977. The contract contained a union-security
clause, as did the prior contracts. At the time of negotia-
tions for a new contract the production employees num-
bered 26 and the maintenance employees 32.
The complaint in the CB case alleges that on or about
December 12, 1977, the Respondent Union, during the
course of a negotiating session, presented to the Employ-
er numerous proposals which had previously been aban-
doned by the Union or had been unresolved in prior ne-
gotiations.'
On October 4, 1977, negotiations commenced between
the parties to renew the existing bargaining agreement.
The Employer's negotiating committee was headed by
Allan Baker, regional labor relations manager for the
Chemicals Group, who was in charge of all matters of
labor relations including contract negotiations. Also on
An additional allegation based upon new proposals by the Union on
January 3, 178, concerning reinstatement of an employee's health insur-
ance, was supported by no evidence, and accordingly is dismissed.
the Employer's negotiating committee was Jim Lang-
ford, the plant manager, and Ronald Bodach, the plant
industrial relations manager. Present for the Union, ac-
cording to Baker, were Bill Newman, business agent,
Ernest Toth (at that time an International representative
of the Union, later described by Baker as, "generally,"
spokesman for the Union), Mr. Bert, Mr. Holcomb, Mr.
Sheene, and Mr. Dioneff. Dioneff was alleged in the
complaint as chairman of the bargaining committee, a
fact stipulated to by the Employer. Newman was present
only on October 4. Beginning November 17, Donald
Kreuter, an International representative, was also present
for the Union. According to Toth, he himself took over
Newman's duties when the latter retired.
Only three witnesses testified at the hearing: Baker,
concerning both the CB and CA complaints; Langford,
concerning the expressed desire of some strike replace-
ments not to be required to join the Union; and Toth, es-
sentially concerning the 8(a)(5) complaint. Unless other-
wise indicated, the recitation of facts is that of Baker,
whose testimony comprises approximately two-thirds of
the record and was in most instances consistent with that
of Toth.
On October 4, the Union submitted a list of 41 propos-
als, and the Employer its list of 10 proposals for a new
production personnel training program. No agreement
was reached at the first meeting, or at subsequent meet-
ings held on October 18 and 25, and November I and 14.
Little progress was made in the negotiations until the
meeting on November 17, the expiration date of the con-
tract. The existing contract expired at midnight and the
Union requested a 2-hour extension. The outstanding
issues then were the Employer's proposed training pro-
gram and wages. Following the November 17--18 meet-
ing, the employees went on strike. When Baker inquired
what the strike was about, Toth explained that it was
about wages and the proposed training program and that
everything else was acceptable.
At the November 30 negotiating meeting, the Union
made a counterproposal on the training program, which
Baker interpreted as requiring the Employer to hire six
additional employees, and was therefore unacceptable.
However, at the next meeting on December 7, agreement
was reached on pay differentials in certain classifications,
temporary upgrading and the elimination of certain over-
time provisions. Baker understood at that time that any
settlement would be conditional upon the "return" of
employee Jim Dioneff, described by Baker as a mainte-
nance mechanic, who had been terminated on December
5. At the end of the December 7 meeting, the Employer
training program, vacations, and wages were still in
issue.
At the next meeting on December 12, Baker had
hoped to reach accord because the gap had been nar-
rowed considerably. A Federal mediator called the meet-
ing, which started with the parties being in their respec-
tive caucus rooms. The mediator informed Baker that, al-
though the latter had thought the parties were close to
settlement, the Union had informed him that some 15
items remained unresolved. At some point the parties
went into joint session. Baker had had the entire contract
proposal typed (in evidence as G.C. Exh. 5), including
OLIN CORPORATION 1139
items that were not changed in negotiations, as well as
items agreed to by the parties on November 17-18 and
December 7. The 15 items in question were Items 1, 7, 8,
13, 15, 16, 18, 19, 24, 30, 33, 34, 37, 38, and 39. Many of
these were considered by the Employer as either with-
drawn or dropped by the Union during the November
17-18 bargaining session, based upon Toth's explanation
to Baker, referred to above, that everything but wages
and the new training program was acceptable. 2
During the December 13 meeting, Baker told the
union negotiators that he thought the Union had negoti-
ated in bad faith, and that he had no alternative other
than to make a final offer. He reviewed this offer and
gave the Union copies of the proposed contract that he
had typed. He also asked the negotiators if they intended
to give the employees a democratic vote. Dioneff-
speaking first-said "no" and Toth said "not at this
time." Baker then said he would file a charge with the
Board and the meeting ended.
On December 13, the Employer filed the CB charge in
this case; the complaint issued January 24, 1978, and was
served on Dioneff on January 25, and on others several
days later. The CA charge (signed by Donald Kreuter)
was filed January 25, alleging that the Employer had re-
fused to bargain since October 4, 1977.3 In the mean-
time, the Federal mediator had called additional meetings
on January 3, 20, and 24, and later on February 3 and 28.
No matters were resolved.
Specifically, the CA complaint alleges that the Em-
ployer, on or about January 30, 1978, during the course
of a telephone conversation, through its agent and super-
visor, Allan Baker, informed a representative of the
'Briefly these 15 items involved the following, as testified to by Baker:
I. Resolve accumulated grievances-a proposal "considered re-
solved" on Nov. 18.
*7. Delete anything to do with the training program proposed by
the company.
*8. Time span between B mechanic and A mechanic classifications
specified.
13. Allow employees on vacation to bid on job-dropped.
15. Employee transfers at company option-agreed on Nov. 17
(possibly Dec. 7).
16. Delete language about labor groups-dropped Nov. 17. 2nd
part of 16: No mandatory overtime-dropped Nov. 18.
18. Saturday holidays to revert back to Friday-company agree
Nov. 17. 2nd part of 18: additional holidays on Flag Day and em-
ployee birthday-dropped when strike started.
19. A vacation addition-dropped Nov. 17. 2nd part of 19: In-
crease in vacation pay-dropped when strike started.
*24. "Retention dates for discipline" and fixed penalties for disci-
pline.
30. A-rate for phosgene operator-resolved Dec. 7.
*33. Better coverage on insurance policies.
*34. Company to "make up the money" on misassigned overtime;
also Union representative being present at any meetings."
*37. Increase in Sunday premium pay. Company apparently agree
to 5 cents in the first year and an additional 5 cents the next, at the
Nov. 17-18 session, and also to shift differential increases.
*38. Triple time after 12 hours and hazardous duty pay.
*39. Call-in pay from time of the phone call.
* indicates that the Emloyer considered the matter dropped on No-
vember 18 by reason of the Union explaining to the Company that the
strike was over company-proposed training program and wages.
3 When the CA complaint issued on March 10 it alleged instead a later
development discussed below: the January 30 withdrawal by the Em-
ployer of the union-security clause and the refusal to bargain about that
withdrawal. The CB and CA cases were thereafter consolidated for hear-
ing.
Union that it was withdrawing and did thereby unlawful-
ly and without justification withdraw the union-security
clause from its proposed contract, and that since January
30 the Respondent Employer has refused to bargain with
the Union with respect to the withdrawal of the union-
security clause, in violation of Section 8(aX)(1) and (5) of
the Act.
The General Counsel's witness, Ernest Toth, the only
union negotiator to testify, stated tht the contract pro-
posed by the Employer at the meeting on December 12
contained a union-security clause which was the same as
the union-security clause included in the prior contracts
between the parties. The parties then stipulated that this
was the same clause as in the expired contract. The
clause provides for a union shop and voluntary checkoff.
Toth testified that at no time prior to January 30, 1978,
was the issue of union-security placed on the table by the
Employer.
It is Toth's testimony that Baker told him that the De-
cember 12 contract offered by the Employer would
stand unless the Union was advised "by mail or across
the table" that it was withdrawn. Baker did so testify
and, when asked what his purpose was in so doing, an-
swered:
In the negotiating process, usually when you make
a final offer, most always that means it's over, vote
on it or don't vote on it. That's it. That's what's
there. It's not going to change to improve it [sic]
unless we notify that we pull the final offer off of
the table and we had some discussion about the pos-
sibility of closing the plant. It was possible that at
some point of time it would have been. Olin may
have offered to pull the whole offer off at that time.
Baker's testimony thereafter is confusing; however, it in-
cludes the following:
I said in cross-examination this day that the final
offer would be on the table until I notified them by
meeting or by mail.
At that point the union attorney dropped the matter and
shifted his questioning to Baker's followup letter written
the next day, January 31, discussed below. In its brief, at-
torney for the Employer contends that the January 30
telephone "notice" was not defective, particularly when
followed by a confirming letter; also that what Baker
meant was that the Employer would not withdraw the
entire offer without advising the Union by letter or
during the course of a meeting, but that no such commit-
ment was made with respect to any modification to the
final offer.
In the meantime there had been a membership meeting
in December. Baker understood that Dioneff had called
people to cancel a meeting set for December 19 and res-
cheduled it for December 29. The company offer was
not acted upon and, in fact, the negotiators were given a
vote of confidence. 4 At the January 3, 1978, negotiating
4 According to Toth, the December 29 meeting had not been called as
a ratification meeting; however, the Employer's offer was to have been
presented on December 19, but as the weather was inclement it was pre-
Continued
OLIN CORPORATION
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting Baker asked again about an employee vote on
the contract, and was told it was not his concern. Baker
then went to company headquarters at Stamford to en-
courage the vice president to contact the Union's Inter-
national president and urge a secret-ballot vote on the
Company's final offer. 5 It was apparently the intent to
restaff the plant if a vote to ratify did not result; in evi-
dence is a letter of January 14 to employees notifying
them that, unless they returned to work by January 19,
the Company would begin restaffing on January 23.
Another meeting called by the mediator occurred on
January 20, at which the Union reviewed the 15 items
that had been put back on the table. It dropped Items I
and 38, that is, the resolution of accumulated grievances,
and triple time after 12 hours and hazardous duty pay. It
also asked for amnesty for picket line misconduct-this
appears to have been tires slashed, car lights broken, and
doors kicked, some on January 30-and urged the rein-
statement of Dioneff to his job. Baker anticipated that a
vote might be taken at a January 21 membership meeting
of the Union because of hoped-for intervention by the
International, but was later advised that no such vote
had been taken. He testified that he did not push hard
for such a vote on January 20.
The Company began hiring permanent replacements
on January 23, and 23 of 26 production employees had
been hired by January 30. Maintenance work was to be
subcontracted pursuant to a decision made in the late
afternoon of January 25. In the meantime, Baker had
asked the mediator to call a negotiating meeting held
January 24,6 at which most of the time was spent in
caucus. The subject of contracting out the maintenance
work was brought up by the Employer. The mediator
reported a "final proposition" by the Union, as follows:
10-percent wage increase the first year, 8 percent the
second, and 8 percent the third year; I additional holi-
day, with the option for those in training under the pro-
posed training program of the Company to work that
holiday rather than take it; plus the reinstatement of
Dioneff. The Company rejected the offer as totally unac-
ceptable.
Then, on Monday, January 30, the first day of work
for strike replacements, Baker made the telephone call to
Toth withdrawing the union-security provision in the
Employer's outstanding offer. It appears that Toth was
called at 6 p.m. in Canton, Ohio, where he was engaged
in other union business, along with Kreuter. In testifying,
Toth read from his notes made at the time: "Mr. A.
sented on December 29. The offer was not voted upon. Toth acknowl-
edged that the Company was concerned that a ratification vote was being
delayed.
B The International president of the Union did in fact wire the local
president on December 10 as follows (Union Exh. I):
I am informed that the Company has made a final offer on the
Olin Group of Local 7-629 after some 6 weeks of strike activity.
FMCS has recommended a secret-ballot vote by the membership
to determine their desires.
I would suggest it might be good strategy to consider a secret
ballot vote to demonstrate the solidarity of the group to the Compa-
ny.
Baker testified that he had heard only rumors regarding this telegram.
a In testifying, Baker referred to this meeting as having occurred on
January 4. However, the record indicates it in fact occurred on January
24.
Baker January 30, 1978 approximately at 6:00 p.m. Indi-
cated Company was withdrawing union-security provi-
sion in the contract and also made mention contracting
out of maintenance work not in conflict with the con-
tractual provisions. I did not accept Company's change
in their provision." Toth testified that Baker told him
that he was making the change on the basis of legal
advice. Concerning the difficulty of informing the mem-
bership of this withdrawal of union-security, Toth ex-
plained that the ratification vote on January 31 would be
taken in Ashtabula, that the employees were on strike
and some were working out of town, that Toth and
Kreuter were occupied in Canton, and that it would be
difficult to call off the meeting. It appears, however, that
word was sent to the president of the Local, but the af-
firmative vote to ratify was based upon the Employer's
December 12 contract proposal. The fact that the Com-
pany's attempted withdrawal of union-security was con-
veyed by telephone apparently weighed heavily in the
Union's decision to go ahead with the ratification vote.
Toth testified that he had had the experience of the
Company withdrawing an entire offer across the bargain-
ing table, but had never had it done by telephone. The
employees decided to continue the strike when advised
that the Employer had withdrawn the union-security
provision. Baker testified that in the January 30 tele-
phone call he advised Toth that the plant had been com-
pletely restaffed and a decision made not to require the
replacements to join the Union.
Attached as Exhibit A to this Proposed Decision and
Order is the January 31 letter of Baker confirming the
January 30 telephone call (Union Exh. 2). It refers to the
replacement of all production employees and the con-
tracting out of maintenance work in explanation of the
"pull back" from a union-security clause, asserts that the
Union made no response at the January 24 meeting to
the subcontracting proposal, which was intended to save
costs and increase efficiency, and finally refers to confu-
sion among replacements and striking employees regard-
ing whether replacements had to join the Union, with
the result that "there does not seem to be any reason to
keep a union-security clause in the agreement." The last
sentence of the letter expresses a willingness to discuss
"this matter" in the event of "changed circumstances in
the future."
At a negotiating meeting on February 3, the union bar-
gaining committee offered to sign the contract as ratified
by the membership on January 31, but the Employer was
not prepared to accept a contract with the union-security
provision intact. According to Toth, this was reported to
the bargaining unit members at a union meeting on Feb-
ruary 4. At the February 3 negotiating meeting the
Union took the position that the economic strike had
become an unfair labor practice strike by reason of with-
drawal of union security, and the CA complaint was
amended to that effect on March 27. In the meantime
Kreuter, by letter of February 16 to the Employer, made
an unconditional offer on behalf of the strikers to return
to work. This apparently was repeated by the Union at
the last negotiating session on February 28.
The Union contends that its resubmission on Decem-
ber 12 of certain proposals dropped earlier or left unre-
OLIN CORPORATION 1141
solved was a tactic to which it was entitled as the items
reintroduced were only temporarily put aside by it on
November 17-18 in the hope of reaching a new contract
upon expiration of the old. The General Counsel con-
tends, however, that, whatever the purpose, the Union
intended to and did frustrate the bargaining process
thereby, thus violating Section 8(b)(3).
Although a number of the items "reinstated" were
wage related and arguably remained on the table when
no agreement on wages generally was reached, we con-
clude that the attempt to get Bargaining Committee
Chairman Dioneff reinstated was the moving reason for
the Union's claim on December 12 that approximately 15
items were still negotiable. On December 7, and again on
December 12, the Union made clear to the Company
that Dioneffs reinstatement was a condition to agree-
ment. But nothing in this record reveals the reason for
Dioneff's termination and there is no contention that it
constituted an unfair labor practice by the Employer. An
employer is entitled to discharge an employee for any
reason so long as the motive is not discriminatory within
the meaning of the Act. Thus we conclude that the
Union's injection of the Dioneff termination7 into the on-
going bargaining was, in the circumstances, an attempt to
frustrate the bargaining process, and we find it to be in
violation of Section 8(bX3). 8
It is Respondent Employer's position with respect to
the 8(a)(5) complaint that, notwithstanding the Union's
conduct of December 12 in "torpedoing" the negotia-
tions at that point-to use the Employer's expression-it
continued to meet with the Union thereafter in order to
reach agreement; that it pressed the union negotiating
committee and the president of the International Union
to get a vote on ratification of its final offer; that it deter-
mined to restaff its plant only after the efforts aforemen-
tioned proved futile; that a new work force expressly
concerned about having to join the Union was hired; and
that, although the Employer withdrew the union-security
clause knowing that a ratification vote was scheduled for
the next day, the union negotiating committee had not
recommended acceptance and there was no reason for
the Employer to anticipate that the membership would
ratify its December 12 offer. In its brief the Employer
urges in addition that it had in no way promised that it
would not modify its offer of December 12.
The Employer emphasizes that the CA complaint al-
leges only the withdrawal of the union-security clause
7 The termination of maintenance mechanic Dioneff preceded by some
6 weeks the subcontracting of maintenance work as a whole. As to the
latter, an unfair labor practice charge has since been dismissed.
s In finding the (bX3) violation, Chairman Fanning relies only upon
the Union having conditioned its agreement to a contract on the rein-
statement of employee Dioneff, terminated by the Employer on Decem-
ber 5 during the strike. As the reason for the termination of Dioneff does
not appear, the issue cannot be considered a mandatory subject of bar-
gaining. See Southern Californiq Pipe Trades District Council No. 16 of the
United Association (Aero Plumbing Ca), 167 NLRB 1004, 1008-09 (1967),
where a union's insistence upon the standard agreement containing non-
mandatory provisions to which the employer objected was found to be
an 8(bX3) violation. See also Nordstrom, Inc., 229 NLRB 601 (1977).
Chairman Fanning places no reliance upon the Union having reintro-
duced on December 12 various of its proposals temporarily abandoned
early on the morning of November 18 in the hope of achieving a com-
plete contract.
without bargaining, not a failure to bargain in good faith.
It considers applicable the Board's Decision in Loggins
Meat Co., Inc., 206 NLRB 303 (1972), where employer
conduct during negotiations was devoid of bad faith and
the employer's last-minute withdrawal of two items of
some importance was found consistent with good-faith
bargaining. These items were a provision for daily over-
time and an annual wage reopener. The senior partner of
Loggins did not approve these two provisions and ac-
cordingly they were withdrawn although the contract
had already been approved by the union membership.
The Administrative Law Judge in that case concluded
that acceptance of an offer is not effective until commu-
nicated to the offeror, as a matter of fundamental con-
tract law, and therefore no binding contract came into
being, citing Williston, On Contracts, 3d ed., vol. 1, sec.
70. Noting, however, that there was an allegation in the
case of bad-faith bargaining, the Administrative Law
Judge went on to find that both parties had reserved the
right to alter their proposals at any time, and thus could
withdraw a proposal before acceptance. He declined to
infer bad faith from a principal's rejection of a contract
proposal not previously considered. The Administrative
Law Judge there, in evaluating the senior partner's entire
course of conduct, concluded that it did not reveal a
purpose to delay and frustrate bargaining. A majority of
the Board panel agreed in that case.
Though we dismiss the 8(a)(5) allegation, we think the
holding in Loggins is inapplicable here.9 There, by ratifi-
cation of the membership, the parties had reached agree-
ment before the union was notified that the company
president would not approve two provisions. Here, no
agreement had been reached and ratification of the Em-
ployer's proposed contract had not yet occurred when
the Employer notified the Union that it was withdrawing
the union-security provision. On that same day replace-
ments for production employees-among whom there
was concern about having to join the Union-had started
work. By letter the next day, the Employer confirmed
the withdrawal of the union-security provision and also
indicated its willingness to continue bargaining. Success-
ful collective bargaining requires flexibility. In context,
the Employer's modification of its proposed agreement
by withdrawing the union-security provision before
agreement had been reached, and its refusal to bargain
about the withdrawal at that time when it was operating
with a new work force do not constitute an 8(a)(5) viola-
tion. Accordingly, we find that the Employer did not
violate Section 8(a)(5) of the Act by refusing to bargain
concerning its withdrawal of the union-security clause,
and shall dismiss the CA complaint.
THE REMEDY
Having found that the Respondent Union has refused
to bargain collectively, we shall order Respondent
Union, upon request, to bargain with Olin Corporation as
the exclusive representative of the employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
I Chairman Fanning dissented in Loggins and would have found an
8(a)5) violation.
OLIN CORPORATION 141
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I. Olin Corporation is an employer engaged in com-
merce within the meaning of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO-CLC, and its Local 7-629, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees em-
ployed at the Company's facility in Ashtabula, Ohio, ex-
cluding all office clerical employees, and all professional
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since on or about April 2, 1964, when certified, and
at all times thereafter, Respondent Union has been the
exclusive representative of the above-designated employ-
ees in the said appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. Since on or about December 12, 1977, and at all
times material thereafter, the Respondent Union has
failed and refused to bargain collectively with Olin Cor-
poration and has thereby violated Section 8(b)(3) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Olin Corporation has not engaged in unfair labor
practices within the meaning of Section 8(a)(l) and (5) of
the Act by its withdrawal, on or about January 30, 1978,
of the union-security clause from its proposed contract.
ORDER l 0
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent Union, Oil,
Chemical and Atomic Workers International Union,
AFL-CIO-CLC, and its Local 7-629, its officers, agents,
and representatives, shall:
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with the above-named Employer as the exclusive repre-
sentative of the employees in the unit herein found ap-
propriate, and embody in a signed agreement any under-
standing reached. The appropriate unit is:
1o Any party may, within 20 days from the date hereof, file with the
Board in Washington, D.C., eight copies of a statement setting forth ex-
ceptions to this Proposed Decision and Order, together with seven copies
of a brief in support of said exceptions and, immediately upon such fil-
ings, serve copies thereof on each of the other parties.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and Proposed Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.Cease and desist from refusing to
bargain collectively concerning rates of pay, wages, hours of employ-
ment, and other conditions of employment with Olin Corporation, as the
exclusive representative of the employees in the appropriate unit de-
scribed below.
All production and maintenance employees em-
ployed at the Olin Corporation facility in Ashtabu-
la, Ohio, excluding all office clerical employees, and
all professional employees, guards and supervisors
as defined in the Act.
(b) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respondent
Union's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members of Respondent
Union are customarily posted. Reasonable steps shall be
taken by Respondent Union to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent Union has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case 8-
CA-1 1673 be, and it hereby is, dismissed.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
EXHIBIT A
January 31, 1978
Mr. Ernest J. Toth, International Representative
Oil, Chemical and Atomic Workers International Union
P.O. Box 9786
499 Kenilworth Drive
Bay Village, Ohio 44140
Dear Ernie:
This will confirm our telephone conversation of yes-
terday that because all production employees have been
replaced and the Company's maintenance work has been
contracted out, such changed circumstances have dictat-
ed that we pull back from the labor contract any require-
ment that employees be required to be a member of the
Union as a condition of employment.
With specific regard to the contracting out, you will
recall that on January 24, 1978, during the course of a
meeting between representatives of the Company and the
Union, you were advised that the Company was consid-
ering contracting out its maintenance work and that the
Company wanted to give the Union an opportunity to
discuss the matter. As you will no doubt further recall,
your reply to the Company's offer to discuss the matter
was "no response." You were then told that while no
final decision had as yet been made, a decision was an-
ticipated within 24 hours.
Thereafter, you were notified that the Company had
made its decision to contract out all its maintenance
work to P.S. Maintenance, Inc. This decision was based
upon substantial cost savings to the Company and in-
creased efficiency of operations. A contract has been en-
OLIN CORPORATION 1143
tered into between the Company and P.S. Maintenance,
Inc., and therefore all the Company's future maintenance
work will be performed by the contractor. It is under-
stood further that the contracting out provision of the
labor agreement does not apply to any contracting out of
this maintenance work.
You should know, however, that while the contractor
is reassigning his work force to the Olin facility, there
may be openings available, on a temporary basis, for
those maintenance employees who make an uncondition-
al offer to return to work.
There has been some confusion as well as questions
raised by the replacements and the striking employees re-
garding whether replacements have to join the union.
Under these circumstances, there does not seem to be
any reason to keep a union security clause in the agree-
ment, and, accordingly, we are withdrawing the union
security clause from our offer. Should there be any
changed circumstances in the future, we will, of course,
be happy to discuss this matter with you.
Very truly yours,
/s/ L.A. Baker
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, as amended, we
hereby notify you that:
WE WILL NOT refuse to bargain collectively with
Olin Corporation, as the exclusive representative of
all employees in the bargaining unit described
below.
WE WILL, upon request, bargain collectively with
Olin Corporation, as the exclusive representative of
all employees in the bargaining unit described
below, with respect to rates of pay, wages, hours of
employment, and other conditions of employment,
and, if an understanding is reached, embody such an
understanding in a signed agreement. The bargain-
ing unit is:
All production and maintenance employees em-
ployed at the Olin Corporation facility in Ashta-
bula, Ohio, excluding all office clerical employ-
ees, and all professional employees, guards and
supervisors as defined in the Act.
OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO-CLC
AND ITS LOCAL 7-629
OLIN CORPORATION