Pittsburg-Des Moines Steel Co.

National Labor Relations Board - Board Decisions

Dec 11, 1980

253 N.L.R.B. 706 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburgh-Des Moines Steel Co. and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local No.
439. Case 32-CA-1972 and 32-CA-2142
December 11, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.LO
On July 23, 1980, Administrative Law Judge
David G. Heilbrun issued the attached Decision
dismissing this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein.
The General Counsel excepts to the Administra-
tive Law Judge's findings that the management-
rights and no-strike clauses in Respondent's Sep-
tember 11, 1979, new contract proposals were ar-
guably without taint; that Respondent's September
11, 1979, new contract proposals contained mainte-
nance-of-membership proposals in lieu of union se-
curity, a change allowable to gain union attention
and reflecting new sentiment among unit employ-
ees; that "the radical change in circumstances as to
the operational staffing within the affected bargain-
ing units, coupled with the Union's seeming disin-
terest in genuine settlement of the contract question
amply justified the total withdrawal of proposals as
they stood on July 12, 1979;" and that there was
no "abiding regressiveness" in Respondent's Sep-
tember 11, 1979, contract proposals. We find merit
in the General Counsel's exceptions.
The consolidated amended complaint alleges that
on or about July 12, 1979, Respondent withdrew
its pending proposals for collective-bargaining
agreements covering separate units of drivers and
employees engaged in warehouse operations, which
proposals were dated May 17, 1979; and that Re-
spondent later presented the Union with new pro-
posals for collective bargaining covering the
above-mentioned unit, which proposals contained
substantial changes, including items less favorable
to the Union than those contained in Respondent's
proposals submitted on May 17, 1979.
The Administrative Law Judge found that the
General Counsel's theory of "surface" or "bad-
253 NLRB No. 86
faith" bargaining, which focused upon Respond-
ent's action in withdrawing all proposals on July 12
and putting forward obviously regressive new con-
tract proposals on September 11, was utterly lack-
ing in merit. We disagree.
The facts, as more fully set forth by the Admin-
istrative Law Judge, show that Respondent and the
Union have been parties to contracts covering sep-
arate units of drivers and warehouse operations, the
most recent of which expired on March 31, 1979.
Although the parties had held seven or eight bar-
gaining sessions prior to the expiration date of the
contracts, no agreement was reached and a strike
ensued on March 31, 1979.'
Both of the expired contracts contained provi-
sions concerning union security, checkoff, manage-
ment prerogatives, and protection of rights; that is,
an employee's right to refuse to cross picket lines
sanctioned by the Union. The contracts also con-
tained extensive grievance procedures which pro-
vided that any differences between the parties as to
time limits could be amicably settled and individual
employees were entitled to present grievances al-
though only Respondent and the Union could take
a dispute to arbitration. The contracts also pro-
vided that there would be no strikes, slowdowns,
or lockouts unless one of the parties failed to
comply with the grievance procedures. Finally, the
expired contracts provided for noncontributory
health plans as well as Respondent's contributions
to the Western Conference of Teamsters Pension
Plan Trust Fund.
At the bargaining session of May 17, Respondent
submitted its contract proposals. Except for a new
section on strikes and lockouts and changes in the
health and pension provisions, the contract was
similar to the recently expired contracts. Subse-
quent meetings and conversations were not fruitful
in getting Respondent to sign the contract as the
Union understood it-Respondent contending that
the Union misunderstood its position with respect
to the no-strike/no-lockout clause. Respondent
abruptly withdrew its proposals on July 12.
Contrary to the Administrative Law Judge's
finding, we find no support in the record for his
conclusion that "radical change in circumstance as
to operational staffing within the affected bargain-
ing units, coupled with the Union's seeming disin-
terest in genuine settlement of the contract ques-
tion, amply justified the total withdrawal of pro-
posals as they stood on July 12." The record is
devoid of evidence that Respondent directly or in-
directly asserted that its employment complement
i -he strike ended May 29, %when he employees railfied 'hat the
Union unllderstood t be an agreed-upon contracl and went back o work
706
PITTSBURGH-DES MOINES STEEL CO.
had changed as a result of the strike and its hiring
of some strike replacements, or that it could no
longer offer the same contract proposals it had pro-
posed to the Union as of May 17. The strike had
lasted no more than 2 months, terminating 6 weeks
before Respondent withdrew its original contract
proposals on July 12. Replacements composed no
more than 30 percent of the work force, and it ap-
pears that any antiunion sentiment by employees
concerned paying dues in June and July when no
union contract, and no benefits, were in effect.
As to the Union's asserted disinterest, it would
appear that the parties had narrowed their differ-
ences concerning the contracts to a dispute as to
whether Respondent had deleted a controversial
clause concerning no-strike and no-lockout lan-
guage which the Union asserted Respondent had
agreed to drop as early as May 17. Although the
Union may have been operating under the miscon-
ception that Respondent had dropped its insistence
on the disputed no-strike and no-lockout language,
the Union in its communications with Respondent
was anything but apathetic in its demands, de-
scribed in detail in the Administrative Law Judge's
Decision. Rather, the record shows that the Union
thought that it had a bargaining agreement which
had been ratified and signed, and insisted that Re-
spondent had agreed to delete the no-strike and no-
lockout language. The history of the negotiations
shows that in a letter dated June 15 the Union
"reauthored" clean contract drafts, requested and
received from Respondent, by deleting the disputed
language on strikes and lockouts. In a letter dated
June 22, Respondent notified the Union that it had
not agreed to withdraw the no-strike and no-lock-
out provision from either contract and that it de-
clined to execute the documents. Then, on July 12,
without prior notice to the Union of its intentions,
Respondent notified the Union that it was with-
drawing its last contract proposal without specify-
ing the contract terms with which the parties were
in disagreement.
Following Respondent's withdrawal of its pro-
posals on July 12, the Union notified Respondent
by letter of July 17 that it was its position that it
had a binding collective-bargaining agreement with
Respondent, notwithstanding that the Union may
have misunderstood that the disputed clause was
contained in the final proposal. Also at this time,
the Union indicated that it was filing an unfair
labor practice charge concerning Respondent's fail-
ure to execute the agreement. 2 Thereafter, the
Union signed and delivered to Respondent the two
contract proposals Respondent had sent the Union
2 The Union withdrew the charge in Case 32-CA 1940 after it as
advised by Region 32 that it would not issue a complaint
on June 10. By letter dated August 24 Respondent
notified the Union that the contract proposals the
Union had signed had been unconditionally with-
drawn by Respondent on July 12. On August 29
the Union wrote to Respondent again asserting that
an agreement had been reached between the parties
and offering to negotiate concerning Respondent's
opposition to its previous offer in order to avoid
what could be lengthy and extensive litigation by
both parties.
On September 11 Respondent acknowledged the
August 29 letter and enclosed new contract pro-
posals for the respective units. These deleted the
former section II, which covered long-accepted
union-security and checkoff clauses and instead
proposed maintenance of membership. Former sec-
tion III (management prerogatives) was greatly ex-
panded. In fact the Administrative Law Judge re-
ferred to it as a "dramatic expansion." It included
Respondent's right to control operations including
production requirements; to sell or lease free of the
liabilities of the contract; to determine the types
and distribution of work within locations; to deter-
mine starting and quitting times and the number of
hours per day and per week operations would be
carried on; to determine whether and to what
extent the work required in its business would be
performed by employees covered by the contract;
to select and assign work to employees in accord-
ance with requirements determined by manage-
ment; to increase or decrease the working force; to
make rules for efficiency or safety; to hire, pro-
mote, demote, transfer, layoff, and recall employ-
ees; to classify and reclassify employees; to deter-
mine policies affecting the selection of employees;
to assign and reassign employees to duties and
hours of work; to determine safety, health, and
property protection measures; and to discharge,
suspend, and otherwise discipline employees. A
zipper clause was added to section III stating that
"[i]n no event shall any right, function or preroga-
tive of management ever be deemed or construed
to have been modified, diminished or impaired by
any past practice or course of conduct, or other-
wise than by an explicit provision of this Agree-
ment." Deleted was the former clause "that ques-
tions arising under this Section may be subject to
the grievance procedure."
Also missing from Respondent's September II
proposal was the former section IV which pro-
vided that employees would not be required to
cross picket lines recognized by the Union and the
parent body of the union establishing the picket
line, as well as the right to strike during the con-
tract term if the Company was failing to abide by
an arbitration award. Injunctive relief for violation
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the no-strike/no-lockout clause was provided
only for the Company, as was the right to hold an
arbitration within 48 hours if the Union breached
the clause.
While Respondent's September II proposals re-
tained the fundamental grievance procedure of sec-
tion XV of the prior contracts, the new proposal
reduced the time limit for the filing of nondisciplin-
ary grievances from 10 to 5 days of a grievant's
knowledge, and required that the arbitration board
be invoked within only 2 working days rather than
within 4. Time was to be of the essence in the ab-
sence of a written, mutual agreement.
While Section 8(d) of the Act does not require
or compel either party to agree to a proposal or re-
quire the making of concessions, the Board does
consider the totality of an employer's conduct to
determine its motivation in determining whether
the employer was really engaging in surface bar-
gaining with no genuine intent to reach agreement.
Our review of the record herein, including Re-
spondent's abrupt and unexplained withdrawal of
its contract proposals on July 12, and its failure to
offer any reasonable explanation for its more re-
strictive contract proposals of September 11, leads
us to conclude that Respondent sought to frustrate
bargaining. We cannot agree with the Administra-
tive Law Judge that the management-rights ampli-
fication was simply "extensive legalistic phrasing"
that could be "swept away by a handshake."
Rather, as we find, the intent was to reduce the
role of the Union as the bargaining representative
of the employees. Nor was there any reasonable
prospect that the September 11 proposals as a
whole might advance the negotiations. 3 According-
ly, we conclude that, by withdrawal of its original
proposals tentatively agreed upon and by substitu-
tion without explanation of regressive proposals,
Respondent has failed to bargain in good faith and
has thereby violated Section 8(a)(5) of the Act.4
3 After charges were filed with the Board, Respondent withdrew part
of its September I proposals, those having to do with the grievance pro-
cedure and with sympathy strikes. In our view this was an untimely con-
cession. insufficient to alter our conclusions and remedy herein.
4 See General Athletic Products Co.. 227 NLRB 1565 (1977); Yearbook
House, 223 NLRB 1456, 1464-65 (1976); Pacific Grinding Wheel Co., Inc.,
220 NLRB 1389, 1390 (1975); The Gerstenslager Company, 202 NLRB
218. 224-225 (1973). Respondent argues that Board law holds that a party
may lawfully withdraw a contract proposal at any time before it is ac-
cepted. The cases cited by Respondent, which are consistent with the
principles of law discussed in the cases cited herein, are unavailing as a
defense. We note that in those cases relied upon by Respondent the se-
quence of events led the Board to conclude that the employer's course of
conduct did not constitute an 8(aX5) violation Here, we find that Re-
spondent's asserted reasons for, and the timing of, its actions bear no rela-
tion to the restrictive changes proposed on September II11. Rather, based
on our examination of the circumstances of this case, we conclude that
Respondent's overall course of conduct, for which it has proffered no
good cause, evidences an intention to frustrate bargaining rather than at-
tempting in good faith to reach agreement.
CONCLUSIONS OF LAW
1. Pittsburgh-Des Moines Steel Company is an
employer within the meaning of Section 2(6) and
(7) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Local No. 439, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All driver employees employed by Respond-
ent in the environs of Respondent's Stockton, Cali-
fornia, plant; excluding office workers, clerical
workers, technical and professional employees,
watchmen, guards, janitors, and supervisors as de-
fined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act.
All employees employed by Respondent per-
forming work in the environs of Stockton, Califor-
nia, in reinforcing steel fabrication and in the fol-
lowing warehouse operations, production, fabrica-
tion, and distribution, constitute a unit appropriate
for collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all material times International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local No. 439, has been the
exclusive collective-bargaining representative
within the meaning of Section 9(a) of the Act for
all Respondent's employees employed in the units
described above.
5. The Respondent, Pittsburgh-Des Moines Steel
Company, has refused and continues to refuse to
bargain collectively in good faith with Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local No. 439, as
the exclusive collective-bargaining representative
of its employees employed in the units described
above, within the meaning of Section 8(a)(1) and
(5) of the Act.
6. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
We have found that Respondent violated Section
8(a)(1) and (5) by withdrawing, on or about July
12, 1979, pending proposals which it had submitted
to the Union dated May 17, 1979, and thereafter,
on September 11, 1979, by presenting the Union
with new proposals for collective-bargaining agree-
ments covering separate units of drivers and ware-
house operations, which proposals contained sub-
stantial, regressive changes less favorable to the
Union than those contained in the proposals dated
May 17, 1979, which Respondent withdrew on
708
PITTSBURGH-DES MOINES STEEL CO.
July 12, 1979. We shall order Respondent to cease
and desist therefrom and to bargain collectively in
good faith with the Union in the appropriate
units. 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Pittsburgh-Des Moines Steel Company, Stockton,
California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Local No. 439, as the duly designated exclusive
bargaining representative of employees in the fol-
lowing appropriate units:
All driver employees employed by Respondent
in the environs of Respondent's Stockton,
California, plant; excluding office workers,
clerical workers, technical and professional
employees, watchmen, guards, janitors, and su-
pervisors as defined in the Act.
All employees employed by Respondent per-
forming work in the environs of Stockton,
California, in reinforcing steel fabrication and
in the following warehouse operations, pro-
duction, fabrication and distribution.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No.
439, as the duly designated exclusive collective-bar-
gaining representative of all employees in the
aforesaid appropriate units.
(b) Post at its Stockton, California, plant and all
places where notices to employees are customarily
posted copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice, on forms provided
I The General Counsel requests the Board to order that Respondent,
upon resumption of bargaining, place before the Union those same pro-
posals for contracts which were before the Union on July I 1, just prior
to the start of Respondent's unfair labor practices herein, i.e., a return to
the status quo ante. We deny the General Counsel's request on grounds
that our normal bargaining order will suffice to remedy the violation
herein Member Jenkins would grant the General Counsel's request.
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-
by the Regional Director for Region 32, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILl. NOT refuse to bargain in good
faith with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, Local No. 439, as the duly designat-
ed exclusive representative with respect to
wages, hours, and other terms and conditions
of employment, concerning unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act.
WE WIILL, upon request of the above-named
Union, meet with and bargain collectively in
good faith with the Union as the exclusive col-
lective-bargaining representative of the em-
ployees in the appropriate units, and, if an un-
derstanding is reached, reduce to writing and
sign any agreement reached as a result of such
bargaining. The appropriate units are:
All driver employees employed by us in the
environs of our Stockton, California, plant; ex-
cluding office workers, clerical workers, tech-
nical and professional employees, watchmen,
guards, janitors, and supervisors as defined in
the Act.
All employees employed by us performing
work in the environs of Stockton, California,
in reinforcing steel fabrication and in the fol-
709
I)lECISIONS OF NATI()NAL I.ADOR RELATIONS O()ARDI
lowing warehouse operations, production, fab-
rication and distribution.
PI' 1ITSBUR(;H-DIES MOINES S I1I
COMPANY
DECISION
STAI1 ENI i ll. CASE
DAVID G. HIl.IIBRUN, Administrative Law Judge: IThis
case was heard before me in Stockton, California, on
April 22 and 23, 1980, based on such allegations of a
consolidated amended complaint as remained after var-
ious other allegations invoking Section 8(a)(1) and (3) of
the Act were disposed of during the course of hearing
by a settlement agreement reached between all parties
and approved by me. The residual allegations, read in
conjunction with colloquy solicited at the outset of the
hearing, assert that Pittsburgh-Des Moines Steel Co.,
herein called Respondent, violated Section 8(a)(l) and
(5) of the Act by bad-faith surface bargaining with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called the
Union, as manifested by certain acts of withdrawing
pending contract proposals and later presenting new and
substantially changed ones.
Upon the entire record,' my observation of witnesses
and consideration of post-hearing briefs filed by the Gen-
eral Counsel and Respondent, I make the following:
FINDINGS OF FACT AND RESUILTANT CONCIUSION
OF LAW
The Union has historically represented employees in
seperate bargaining units of drivers (Unit A) and ware-
house operations including reinforcing steel fabrication
(Unit B), for which separate collective-bargaining con-
tracts are administered. 2 The latest pair of these were en-
tered into for the respective units on August 28, 1976
and June 6, 1976. They each expired simultaneously on
March 31, 1979.3 The parties had engaged in seven or
eight bargaining sessions prior to that expiration date,
however, failing agreement, a strike of employees in both
units occurred on or about April 1. Each expired con-
tract had been in full and comprehensive form, contain-
ing in part the following language:
SECTION II. Union Membership, referral, Check-off.
A. Union Membership-All employees covered by
this Agreement who are members of the Union on
the date of execution of this Agreement or on the
effective date of this Agreement, whichever is later,
shall as a condition of employment remain in good
Certain errors in the transcript are hereby noted and corrected
2Respondent is a corporation engaged in the production and sale or
steel products at Stockton, California. annually purchasing and receivinig
goods or services valued in excess of $50,000 directly from suppliers lo-
cated outside the State of California. On these admitted facts, I find that
Respondenl is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and otherwise that the Union is a labor
organization within the meaning of Sectionl 25).
a All dates are in 1979, unless shown otherwise
standing in the Union. All present employees cov-
ered by this Agreement who are not members of
the Union and all employees hired hereafter shall
become ad remain members in good standing in
the Union as a condition of employment after the
thirty-first (31st) day following their employment,
the effective date of this Agreement, or the date of
execution of this Agreement, whichever is later.
C. Check-Off-The Company shall, if requested by
the Local Union, deduct from the pay of all em-
ployees covered by this Agreement, union dues, ini-
tiation fees and uniform assessments, and promptly
remit all such deductions to the Local Union, sub-
ject to the conditions hereinafter stated in this Arti-
cle. No deduction shall be made which is prohibited
by applicable law.
SECTION III. Management Prerogatives.
The Company retains the exclusive right to manage
its business and plants and to direct the working
forces. The right to manage the business and plants
includes, but not by way of limitation, the right to
hire, classify, promote, transfer, discharge or disci-
pline for cause, to maintain discipline and efficiency
of employees, and the right to relieve employees
from duty because of lack of work or other legiti-
mate reasons, except that no employee shall be dis-
criminated against and that questions arising under
this Section may be subject to the grievance proce-
dure.
SECTION' IV. Protection of Rights.
D. Picket Lines-Employees shall not be required
to pass picket lines recognized by Local #439 and
the parent body of the union establishing the picket
line.
In addition to this quoted material, section XV on
"Grievance Procedure" was one full page in length. It
set forth a board of arbitration and impartial umpire pro-
cedure with time periods in which to file and process
grievances from inception to the umpire level. Phraseolo-
gy was contained by which it was recognized expressly,
"that if these time limits are not met the difference shall
be assumed to be amicably settled." Additionally, the
section set forth certain limitations on retroactive remedy
and recognized the entitlement of an individual employee
to present a grievance in a manner as would be consist-
ent with Section 9(a) of the Act. An individual employ-
ee's rights under this procedure did not include that of
taking a dispute to arbitration, which was "reserved for
the Union and the Company." Finally, the parties respec-
tively agreed that there would be no strikes, slowdowns,
7 10
I'ITTSBURGIH-IDES MOINES STEEL CO.
or lockouts during the term of the agreement, "except
and unless one of the parties fails to comply with, the
grievance procedures set forth herein." Among other
features of the contracts were section X on "Health and
Welfare Coverage" and section Xl on "Pension Cover-
age," by which the Employer agreed respectively to pro-
vide noncontributory coverage under a Delta Lode Plan
and pension coverage by employer contributions into the
Western Conference of Teamsters Pension Plan Trust
Fund.
Following commencement of the strike a bargaining
session was scheduled between the parties under media-
tion auspices for May 17. Business Representative Rich-
ard Parra, assisted by Shop Steward Paul Ciarmitaro,
member Hamilton Briggs, and Local President Ace
Hatten, represented the Union, while Respondent's rep-
resentatives on this occasion included Pittsburgh based
Bill Songer and District Manager Floyd Bedwell. At
that point in time Respondent was seeking a 2-year re-
newal without change as to sections II, III, IV, or XV,
while proposing a new section XVII on "Strikes and
Lockouts" and rearranging former section XVII on
"Termination" as a proposed new section XVIII. The
language sought under proposed new section XVII was:4
It is the desire of the Union and the Company to
avoid strikes and work stoppages. The Company
agrees not to cause, permit or engage in any lock-
out of its employees during the term of this Agree-
ment except for refusal of the Union to submit to
arbitration in accordance with Section XV or fail-
ure on the part of the Union to carry out the award
of the Arbitration Board. The Union agrees that
neither it, nor its members individually or collec-
tively, will, during the term of this Agreement
cause, permit or take part in any strike, picketing,
standing, slowdown, or curtailment or restriction of
production, or interference with the work in or
about the Company's plant or premises except for
refusal of the Company to submit to arbitration in
accordance with Section XV, or failure on the part
of the Company to carry out the award of the Arbi-
tration Board. In any case where a work stoppage,
strike or intentional slow down of production
occurs contrary to and in violations of the provi-
sions of this Section, and any employee as disci-
plined which may include discharge, the disciplin-
ary action taken by the Company shall be subject to
the grievance procedure up to and including arbi-
tration only for the purpose of determining the guilt
or innocence of the employee.
Additionally, Respondent was proposing to discontin-
ue union-related health, welfare and pension coverage by
agreeing, for the future, to obtain health and welfare
coverage "from a reliable insurance company, or compa-
nies legally authorized to operate in the State of Califor-
nia," while establishing a "Qualified Plan" under ERISA
I4 recognize a latent ambiguit inl proposing no change to the prior
grievance prccedure in which strike and lockout phraseology appeared.
while imultaneously proposing clabhrate ne. treatment of the subject
Assuming this to he no more than inadvertence in draftsmanship I dii nio
more than make the observation
in which a stated schedule of retirement benefits would
be provided. Parra testified that after some table bargain-
ing on May 17 the parties caucused and communicated
thereafter through the mediator. In the course of this, he
recalled the mediator telling him confidentially how
there was "no problem" with the no-strike/no-lockout
language but that the Company was "holding steadfast"
on the subjects of medical coverage and pension. The
gist of Bedwell's testimony concerning this meeting was
that the Union "didn't like" Respondent's no-strike/no-
lockout proposal, and that no member of management's
negotiating team ever stated to the mediator that this
subject was being withdrawn or deleted.
Parra testified that he next arranged a meeting be-
tween himself and executive Ned Ware, a person two ex-
ecutive levels above Bedwell, and probed for some reso-
lution of the strike. Parra recalled asking Ware if he
would "intervene" to at least preserve the Teamster pen-
sion plan for drivers as a concession that might cause
unit A employees to accept the company plan. The two
argued some, became mutually upset, and then returned
to a civil mode in which Ware assertedly agreed to com-
municate Parra's idea to Songer, although not recom-
mending it. Parra testified that later in the afternoon of
May 23 he telephoned Ware to state he would schedule
a ratification vote on the package and wanted to clearly
confirm his understanding that as of May 17 the Compa-
ny's no-strike/no-lockout proposal had been dropped. To
this he recalled Ware stating that since he had not been
present at the May 17 meeting he would only agree to
check the matter out and to get back to Parra. Parra de-
scribed another telephone conversation between these
two the morning of May 29 at which, in anticipation of a
favorable ratification vote, Ware spoke tentatively about
the mechanics of returning strikers to work. Parra's testi-
mony does not attribute any reference to the subject of
strikes or lockouts during this conversation. He then
conducted a ratification vote, explaining to members of
each unit that the no-strike/no-lockout clause had been
deleted, and this formed the basis of the vote. The vote
of both units was affirmative, and Parra immediately
called Ware with news of this in a discussion where
again no reference to such language was made. Parra
sent a confirming mailgram to Ware that afternoon refer-
ring to acceptance of the final proposal dated May 17,
1979, for drivers and plant employees," adding that all
strikers were ready to immediately resume work. In fact,
a number of union members went directly to the plant
after the ratification vote and spoke with Bedwell near
the entrance. One of these striking employees, James
Asher, testified that in the course of 30 or 40 employees
converging on Bedwell and later milling around, the offi-
cial was heard to say, "I don't know what contracts you
voted on, but I don't think it was the one we presented."
Asher added that no response was made since the indi-
viduals present, mostly "didn't care about that part" and
were really concerned about resuming work. Ciarmitaro
was also present on this occssion but could not corrobo-
rate Asher's testimony, saying he "couldn't hear him too
well" as Bedwell was talking to about 10 employees out-
side the building.
71 1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parra soon arranged with company officials that they
would prepare clean contract drafts for signature. This
was done and both proposed contracts sent to Parra
around June 10. On reviewing these and finding the con-
troversial proposed section XVII was contained, Parra
telephoned Ware to register his surprise at why this
would be so. Ware denied any understanding that it was
to be deleted or dropped, adding that the Company
might consider further discussion toward a trade-off in
contract language. Parra refused to entertain any ex-
change saying that the Union would live up to whatever
had been agreed on. Parra then reauthored the docu-
ments by deleting the disputed language on "Strikes and
Lockouts," and returning the termination clause to its
place as section XVII. These drafts were then sent to
Ware as enclosures to a letter dated June 15 from attor-
ney Richard Maney. It read:
Enclosed is the executed Collective Bargaining
Agreements between Teamsters Local No. 439 and
PDM Steel Company.
In regards to the Drivers' Agreement, one correc-
tion has been made. The strike and lockout provi-
sion which was set forth in the agreement by your
Company has been eliminated to bring the Collec-
tive Bargaining Agreement in accordance with the
negotiated agreement with the parties. To refresh
your recollection, the strike and lockout provision
was submitted to the Union by your Company but
then it was later agreed upon that the provision was
to be withdrawn. We have corrected the Agree-
ment in the manner.
Ware answered Macey on June 22 with the following
letter:
This is in response to your letter of June 15,
1979, which was received in our office on June 21,
1979.
I completely disagree with the contents of your
letter. The strike and lock-out provision which is
contained in the draft submitted by the Company
contains the full and complete understanding of the
Company in this matter. It is our position that the
Company did not at any time agree to withdraw the
no-strike, lock-out provision from either contract.
In such circumstances, the Company declines to
execute the documents contained in your letter as
they do not reflect the agreement of the parties as
we understand it.
There was no further contact between the parties
until July 12. On that date Bedwell wrote Parra as
follows:
It is clear that we are in disagreement regarding
certain essential contract terms and have not been
able to consumate an agreement.
By this letter, we hereby withdraw our last con-
tract proposal and suggest that we get together in
the immediate future to continue negotiations to
reach an agreement. We will review all matters and
have a new proposal for your consideration.
I hope to hear from you as soon as possible re-
garding the scheduling of a meeting for negotia-
tions.
This was answered by Macey in a letter to Bedwell
dated July 17, which read:
Teamsters Local No. 439 has referred to me your
letter of July 12, 1979.
This is to inform you that it is the position of my
client that it has a binding collective-bargaining
agreement with your company. As I informed you
in previous correspondence the offer presented by
your company was accepted. If the negotiations had
not removed the particular language which I re-
ferred to in my previous letter and it was a union
misunderstanding, then, of course, the final proposal
was accepted as presented, however, it is the
union's position that the agreement which was for-
warded to you through my office by letter dated
June 15, 1979 encompassed the terms of your final
offer.
My client has filed an unfair labor practice con-
cerning this matter because of your failure to ex-
ecute the agreement as agreed to.
The unfair labor practice referred to by Macey was
filed July 16 as Case 32-CA-1940. Here it was alleged,
among other things, that since on or about June 22 the
Employer had refused to execute a previously agreed
collective-bargaining agreement. On or about August 22,
this charge was withdrawn after the Regional Director
for the Union, Region 32 advised the Union, because of
this refusal, to issue a complaint.
Shortly after this, I'arra resurrected the proposed
agreements as sent to him by Respondent around June
10. Hatten and Secretary-Treasurer Bob Plummer ex-
ecuted both documents on behalf of the Union, and
Parra delivered them immediately to Bedwell. This de-
velopment was answered by letter of Bedwell to Parra
dated August 24, which read:
We are in receipt of a contract proposal which
was apparently signed by Mr. Ace Hatten and Mr.
Bob Plummer on August 22, 1979.
This contract proposal embodies terms of an
offer which was unconditionally withdrawn by the
Company by a letter dated July 12, 1979. Accord-
ingly, the proposal we received is rejected by the
Company. Enclosed is your copy of this rejected
proposal which we have not signed.
The Company remains ready and willing to meet
with you to bargain in good faith in order to reach
an acceptable agreement. I will be preparing a
counter proposal from the Company which I will
forward to you shortly.
Parra wrote back on August 29 as follows:
I am in receipt of your letter of August 24, 1979,
with the contracts returned unexecuted.
712
PITTSBURGH-DES MOINES STEEL CO.
It is the Union's position, as we had discussed in
previous correspondence, that an agreement had
been reached between the company and the Union
and that a minor matter of misunderstanding had to
be clarified which has been accomplished by our
forwarding executed contracts to your company.
In order to avoid a legal dispute, and any inference
of bad faith dealings by your company, I would be
willing to sit down with a representative from your
company in order to determine what your present
opposition is to your previous offer, which, in the
opinion of the Union was acceptable and accepted.
In the event your opposition is minor and is accept-
able to the Union, the contract can then be consum-
mated. I make this offer to avoid what could be a
lengthy and expensive litigation on behalf of both
the Union and your company.
On September 11 Bedwell wrote to Parra as follows:
Thank you for your letter of August 29, 1979. I
was glad to hear that the Union is willing to resume
negotiations to reach a new contract. Like you, I
look forward to working out any remaining differ-
ences we may have.
As you know. the Company's previous contract
offer was withdrawn by letter dated July 12, 1979. 1
have enclosed the Company's new proposal, con-
sisting of a proposed Plant Agreement and a pro-
posed Driver's Agreement. You will note that while
certain language changes have been made, the Com-
pany's proposals contain the same economic provi-
sions which were included in our previously with-
drawn proposal.
In the interest of resuming negotiations as soon as
possible, I propose that we meet on September 19,
at a place and time of your choice. I hope that we
can speedily resolve our differences and enter into a
new Agreement. Please let me know the time and
place you would like to meet.
Enclosed with Bedwell's letter were two complete
contract drafts for the respective units. These were sym-
metrical in form and content with internal disparity aris-
ing chiefly because of job difference inherent in the two
units and associated variation in how wage rates, over-
time, hours of work, layoff and recall (including job bid-
ding), and classification listings were traditionally han-
dled. For this reason the "Plant Agreement" ran 24
pages long and that for "Driver" only 18 pages long.
However, of far greater importance, they were identical
in certain subjects or lack of subjects as now manifesting
Respondent's "new proposal."
The former section II was entirely deleted save for
brief phraseology agreeing to notify the Union about
new employees hired and not discriminate against em-
ployees or applicants because of union membership or
lack thereof. The prior section IV (D) was deleted in its
entirety. A dramatic expansion was proposed as to
former section III so as to have it read:
A. Except as otherwise specifically provided in
this Agreement, the Company has the sole and ex-
clusive right to exercise all the authority, rights and
functions of management. The Company expressly
retains the complete and exclusive authority, right
and power to manage its operations and to direct its
employees except as the terms of this Agreement
specifically limit said authority, rights and powers.
These retained authorities, rights and powers in-
clude, but are not limited to, the right to plan, de-
termine, direct and control all operations, methods
and services; to establish and administer policies,
procedures and standards related to repair work; to
determine the nature and cost of services; to deter-
mine methods, processes, nature, means, schedules
and volume of work, production and operation,
leasing, repair, distribution, administration and fi-
nancing; to determine format and types of services;
to determine the suppliers and customers with
whom it will deal, and the prices at which and
terms upon which its materials, equipment and sup-
plies will be purchased and its products and services
will be sold; to determine, plan and control oper-
ations, including production requirements; to select,
discontinue and change materials, processes and
components; to sell, merge, consolidate or lease in
whole or in part free of the liabilities of this Agree-
ment; to establish, abolish, revise or continue poli-
cies, practices or procedures for the conduct of the
operation; to reorganize or combine any operation;
to determine or redetermine the number, location,
relocation and type of its equipment, facilities and
operations, the types and distribution of work
within locations, and the processes services, equip-
ment, technology, technical methods and proce-
dures and materials to be utilized; to establish and
abolish use of equipment, technology, technical
methods and procedures; to continue or to discon-
tinue operations and services; to introduce new or
improved equipment, methods, facilities, technol-
ogy, technical methods and procedures; to deter-
mine starting and quitting times and the number of
hours per day and per week operations shall be car-
ried on; to determine the extent to which facilities
and equipment will be operated; to expand, limit,
cease or curtail operations; to determine whether
and to what extent the work required in its business
shall be performed by employees covered by this
Agreement; to select and assign work to employees
in accordance with requirements determined by
management; to determine the existence, amount or
lack of work; to increase or decrease the working
force; to make and enforce reasonable rules for the
maintenance of technical standards, discipline, effi-
ciency or safety; to hire, promote, demote, transfer,
lay off and recall employees; to classify and reclas-
sify employees; to determine policies affecting the
selection of employees; to assign and reassign em-
ployees to duties and hours of work; to determine
safety, health and property protection measures for
the operation; to maintain order and efficiency in its
operations; to discharge, suspend and otherwise dis-
cipline employees; to determine the qualifications
713
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
required to supervise and direct employees in the
performance of their duties; to set standards to
insure the proper and efficient use of the working
force and equipment; and otherwise to take such
action as management may determine to be ne-
cesssry for safe, orderly, efficient and economical
operations.
B. It is specifically agreed that the enumeration
of certain management prerogatives listed above
shall not be deemed to exclude other management
prerogatives not specifically enumerated above, and
it is further specifically agreed that all of the rights,
powers or authorities vested in the Company,
except those specifically abridged, delegated, de-
leted or modified by the express terms of this
Agreement, are retained by the Company. In no
event shall any right, function or prerogative of
management ever be deemed or construed to have
been modified, diminished or impaired by any past
practice or course of conduct, or otherwise than by
an explicit provision of this Agreement.
The fundamental grievance procedure of section XV
was preserved with small but significant additions to the
language. After repeating preliminary phraseology creat-
ing the board or arbitration and impartial umpire, Re-
spondent's new proposal expressly set forth the right of
parties to appear by counsel and submit written briefs,
while any grievance arising out of discharge or discipline
should not involve the principle of "proof beyond a rea-
sonable doubt," but should instead apply "preponderance
of the evidence," as the burden of proof. Further, the
impartial umpire was to save no authority" to ignore,
add to, subtract from, alter, amend, charge (sic) or nulli-
fy the terms of this Agreement in any way or to render
an award which is in conflict with any of the provisions
of this Agreement." It was also proposed to reduce the
time limit for the filing of nondisciplinary grievances to 5
days of an aggrieved party's knowledge of the event and
to require that the arbitration board be invoked within
only 2 working days rather than within 4 working days,
and to use a different measure of timeliness. Relatedly,
the written notice of employing an impartial umpire was
to be served in only 5 working days following arbitration
board meeting. Procedural time limits were dealt with as
follows:
Time is of the essence, in all of the grievance and
arbitration procedures in this agreement. Failure to
comply with and fully satisfy any of the said time
limitations by the aggrieved party constitutes
waiver of the alleged grievance and all rights and
claims underlying the grievance. The above time
limits may be extended by written mutual agree-
ment between the Union and the Company.
The new proposal expanded on Respondent's with-
drawn language for a section XVII as follows:
A. (1) The Union and the Company have provided
in this Agreement an orderly and rational way of
resolving disputes covering the terms of this con-
tract and involving employees in this bargaining
unit. Both the Company and the Union pledge to
utilize the grievance procedure wherever applicable
and declare their opposition to lockouts and strikes
in attempting to resolve such disputes.
(2) No Lockout. The Company agrees that during
the term of this Agreement it will not cause, permit
or engage in any lockout of its employees covered
by this Agreement.
(3) No Strike. During the term of this Agreement
there shall be no strike (sympathy or otherwise),
slowdown, sick-in, work stoppages, picketing, boy-
cotting, or other restriction of or interference with
operations of this Company by employees covered
by this Agreement or by the Union. Any employee
covered by this Agreement engaging in any such
activity will neither earn, accrue, nor receive any
wages or other benefits that may otherwise occur
or accrue during that time, and the Company may
discharge or otherwise discipline any such employ-
ee and said discharge or other discipline will not be
subject to the grievance/arbitration provisions of
this Agreement, except as to the issue of participa-
tion in such conduct.
(4) The Union and the Company agree that nei-
ther it nor its officers or agents will engage in,
cause, encourage, permit, condone or sanction any
conduct specifically precluded by this Section and
will make every reasonable effort to discourage and
terminate such activity.
(5) The Company shall have the right to full judi-
cial relief, including injunctive relief, for violation
of this Section.
Additionally, a second part of now proposed section
XVII, new in concept, provided for "Expedited No
Strike Grievance Arbitration" and was to be applicable
where the Company believed a violation of no-strike
provisions had occurred and in connection with which
three named arbitrators ' were named as primary persons
eligible to hear the dispute within a basic 48-hour period
after selection and then render an immediete bench deci-
sion or a written one within 24 hours.
On September 17 Bedwell wrote to Parra again as fol-
lows:
As I have previously advised you, the Company
hopes to reach an agreement with your union as
soon as possible.
Although we have not previously been able to
reach an agreement, I am confident that we will be
able to do so. I am therefore renewing my request
for a meeting on Sept. 19, 1979 at a time and place
of your choice. At this meeting, I hope to explain
further the Company's current proposals and the
circumstances which have contributed to those pro-
' One of tihe individuals is a former administrative law judge of the
San Francisco Branch Office, Division of Judges, National Labor Rela-
lions Iloard, the second holds membership in the National Academy of
Arhitrators, and the third is nationally promilent in the Field of labor dis-
putes resollution
714
PITTSBURiH DES MOINFS STtIEI. CO
posals. The Company will certainly consider any
counter proposals the Union may have.
Please advise me immediately when and where we
can meet.
Immediately upon receipt of the Bedwell September
17 letter, Parra telephoned him to state that the Union
was not willing to reopen negotiations. Bedwell immedi-
ately, then, sent Parra a mailgram which read:
This is to confirm our telephone conversation of
today in which you informed me that the Union
will not attend a negotiating session which I pro-
posed for tomorrow. You also advised me that the
Union does not intend to negotiate further with the
Company.
I regret the Union's position.
The Company is anxious to meet with you for pur-
poses of negotiating the contract. Although we ap-
parently have some differences, I believe that
through negotiations, these differences can be re-
solved. We are ready to move in good faith to
reach an agreement. You have not even given us a
chance to explain our proposal, or to hear any
counter proposals you may have.
The Company remains ready and willing to negoti-
ate with the Union at a time and place of your
choice. We want to reach an agreement with you.
The final communication of that day was Macey's
letter to Bedwell reading:
Mr. Parra has turned over to me your telegram
of September 18, 1979. Both my client Teamsters
Local No. 439 and myself have consistently in-
formed you that there is an existing Collective Bar-
gaining Agreement between my client and your
company.
We have advised you that negotiations are not in
order at this time because of the existence of this
Collective Bargaining Agreement. Both this office
and my client have informed you that as a compro-
mise of ome apparent minor differences, the Union
would be willing to meet with your company's rep-
resentative to see if these minor differences relating
to your denial of the existence of a contract could
be worked out. This relates to an attempt to avoid
extended litigation and does not relate to any new
negotiations relating to a contract. As long as your
company insists on entering into negotiations for the
execution of a Collective Bargaining Agreement, I
have advised my client not to meet with your com-
pany, however, in an attempt to resolve the differ-
ences relating to the dispute as to whether there is a
contract, my client would be willing to meet, keep-
ing in mind, of course, that it is my client's position
that there is a contract.
On September 25, Bedwell wrote Parra as follows:
I am writing to once again request that the Union
resume negotiations with the Company so that we
may reach an Agreement. I have previously for-
warded to you the Company's proposal for a new
Agreement. and I am still awaiting an opportunity
to discuss that proposal with you, and to consider
any counter proposals the Union may have.
I am at a loss to explain the Union's assertion that
we previously reached an Agreement. As you well
know, the Company withdrew its previous proposal
by letter dated July 2, 1979. That proposal was
never accepted by the Union prior to its withdraw-
al. It simply is not true that the parties ever reached
an Agreement.
However, the Company remains eager to negoti-
ate a new agreement with you. For that reason, I
have set aside this Friday, September 28, 1979, to
meet with you to negotiate a new contract. I hope
that you will be willing to meet that day at a time
arid place of your choice If you are unable to meet
on Friday. please let me know an alternate date onil
which you can meet. I look forward to hearing
from you shortly.
Macey answered this by mailgram dated September
26, which read:
In reply to your letter of September 25, 1979 Team-
sters Local #439 has consistently taken a position
that it has a contract with your company. As previ-
ously stated to avoid litigation they would be glad
to discuss and compromise minor variations which
might be acceptable to the employer and the Union.
On this basis Mr. Parra will meet with you on
Monday, October I at agreed upon location and
time. Please contact Mr. Parra to confirm the time
and place.
On October 10 the parties met in an unsuccessful ne-
gotiating session. Following this, Bedwell wrote Parra
on October 23 with a letter reading in part:
In order to indicate to you our desire to move to
reach a new agreement, I am proposing by this
letter the following concessions in the Employer's
current proposal:
I. The revision of Section XV (Grievance proce-
dure) to conform to Section XV of the Union's last
proposal which was dated August 22, 1979. This
concession is being made on both the Plant and
Driver Agreement proposals. The Company agrees
to the Union's proposal on Section XV.
2. The revision of Section IV to include Section
D, (Picket line) as proposed by the Union in its
August 22, 1979 proposal. This concession is also
being made in both the Plant and Driver Agree-
ments. The Company agrees to include Section IV
(D) as proposed by the Union.
In light of these concessions, I hope that the
Union will reconsider and work together with us to
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reach a new agreement. The Company stands ready
and willing to meet with you. Please let me know a
time and place that is convenient to the Union.
This was in turn answered by Macey on October 25,
who wrote:
Mr. Parra has turned over to me your letter of
October 23, 1979 for a reply.
As your company is well aware, it is the Union's
position that it has a contract with your company.
The Union was willing, as a matter of compromise,
to see if the differences that have arisen between
your company and the Union concerning the exist-
ence of a contract could be resolved.
Your company has consistently ignored that this
is the Unions' position and that the Union is not and
will not enter into any negotiations with your com-
pany other than on the basis of a compromise for an
existing contract.
This case was heard by the General Counsel on the
express theory of "surface" or "bad faith" bargaining
(G.C. Br. p. 2). Embodied in this theory were further as-
sertions that focused action on July 12 was a component
of bad-faith dealing, while new contract proposals on
September 11 were actionably regressive. As to all such
allegations there is utter lack of merit.
The course of negotiations here is devoid of bad-faith
indicators as these typically emerge when an employer
tampers with and teases the bargaining process. Re-
spondent's pre-July 12 conduct was classically hard, re-
sponsible bargaining, and in fact provided most of the
impetus to test out whether true progress could be made
between the parties. Parra's late May dealings with Ware
were little more then a clumsy attempt to split and con-
fuse management functionaries, an effort that failed com-
pletely as Ware did nothing to disturb his side's carefully
drawn posture. Parra's own uncontradicted version of
what Ware said to him by telephone on or about June 10
does not even attribute a flat dropping of no-strike lan-
guage to Respondent. 6 Further, the dynamics of orderly
return and job dovetailing as to strikers was carried out
as the Union did little more than figuratively yelp about
not having been granted a hoped for deletion of contract
phraseology. The radical change in circumstance as to
operational staffing within the affected bargaining units,
coupled with the Union's seeming disinterest in genuine
settlement of the contract question, simply justified the
total withdrawal of proposals as they had stood on July
12. There is no more reason to expect that labor contract
offers will be held open beyond a reasonable time period
than there is to expect that this test not be used for other
e In a related vein, I discredit the testimony of ames Asher to the
effect that Bedwell spoke of having a belief that union members may
have voted on the wrong contract. Bedwell credibly denied this and I
find no reason to accept Asher's testimony as being more than complete-
ly erroneous.
relationships that arise in business operations. The action
was thus justified as to permit a fresh view of prospects
looking toward ultimate agreement, particularly where
the Union was contenting itself with a battle of words
over what was arguably moot and became so confirmed
through the filing of an unmeritorious charge bottomed
on Section 8(d) of the Act. As there is no hint from the
evidence that Respondent would have done other than
resume thorough, incisive bargaining had request been
made, its technical clearing away of existing proposals by
Bedwell's July 12 letter is not a violation. There is no
doubt, as shown by subsequent events in October, that
Respondent at least was quite ready to acknowledge es-
sential framework of the expired agreement as still viable
and the most obvious source of much structure and con-
tent needed for any new agreement.
After the unsuccessful attempt to enlist this Regional
Office in salvaging its listless performance, the Union
then sought to breathe life into fantasy by the amateurish
delivery of signed documents reflecting a long repudiat-
ed contract. This event of late August was promptly re-
jected, and notwithstanding the clean need to finally and
forcefully deal with the reality of resuming negotiations
from an unpromising tactical position, the Union dallied
still further. As such final timespan passed, counsel to
Respondent busied themselves in draftsmanship, and
from this effort the elaborate phraseology of September
II emerged on the topics of management rights, no-strike
and union security. The first two of these are arguably
without taint, as they constitute no more than proposals.
The extensive, legalistic phrasing of the management
rights clause could be swept away in a single handshake,
while that which addresses a no-strike problem was simi-
larly of mere tentative character and fully amenable to
modification through table bargaining. See Times-Herald.
Inc., 249 NLRB 13 (1980). A comparable appraisal ob-
tains as to the maintenance of membership proposal,
which in the circumstances was at least an allowable at-
tempt at gaining the Union's attention and at most an
employer-oriented entitlement reflecting new sentiment
among bargaining unit personnel. ' In either event there
was no abiding regressiveness to the matter, and as Bed-
well guilelessly testified, Respondent harbored no real
expectation that it would survive the expected challenge.
The entire significance of this litigation is captured in the
ambiguous syntax of Macey's final letter, one in which
"compromise" is admittedly still sought by a labor orga-
nization having no better claim to responsible standing as
a party yet enmeshed in contract renewal bargaining.
[Recommended Order omitted from publication.]
7 It is unnecessary to reach Respondent's alternate theory premised (on
Olin Corporation, 248 NLRB 1137 (1980), as regarding a probable lack (lf
majority support for the Union by the point in time of September II.
IThat entire doclrine is academic to this case i light of Respondent' fun-
damental innocence in making the maintenance of membership proposal
as and when it did.
716