Steelworkers, Local 1114

National Labor Relations Board - Board Decisions

Dec 7, 1970

187 N.L.R.B. 22 (N.L.R.B. 1970)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America, AFL-CIO, and its
affiliated Local 1114 and Harnischfeger Corpora-
tion and Walter J. Zarski . Cases 30-CB-253-1 and
30-CB-253-2
December 7, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On November 20, 1969, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that the Respondent Unions had
not engaged in any violation of Section 8(b)(1)(A) or
(3) of the Act and recommending that the complaint
be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and Charging Party filed exceptions and the
Respondents filed cross-exceptions to the Decision
and supporting briefs. The Respondents and Charg-
ing Parties filed answering briefs. The Charging
Parties also requested oral argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-excep-
tions, and briefs, and the entire record in the case,t
and hereby adopts the Trial Examiner's recommenda-
tion that the complaint be dismissed in its entirety, but
solely for the reason that Section 10(b) barred the
issuance thereof.2
The charges herein were filed and served on the
parties on February 18, 1969. The 10(b) cutoff date is
therefore August 18, 1968. The complaint alleges as
violative of Section 8(b)(1)(A) and (3) conduct of the
Respondent International Union at its convention on
August 19 through 23, 1968, affirming and adopting
fines which had been levied by the Respondent Local
Union on the complainants :n 1967; and admitted
actions of the Respondent Local Union on November
28, 1968, and February 8, 1969, respectively, against
certain of the complainants in threatening them with
legal action, and instituting suit against one complain-
ant, for failure to pay the fines thereafter.
The relevant facts are that on June 5, 1967, the 10
complainants herein, who are members of the
i The Charging Parties' request for oral argument is hereby denied, as
the entire record in this case, including the exceptions, cross-exceptions,
and briefs, adequately present the issues and positions of the parties
2 In view of our Decision herein that in the circumstances of this case
Respondents, appeared at a hearing conducted by a
trial board of the Local Union to determine whether,
as charged, they had violated the International
Union's constitution by (a) "slandering or willfully
wronging a member of the international union"
and/or (b) "deliberately engaging in conduct in
violation of the responsibility of members toward the
organization as an institution ." On July 6, 1967, the
Local Union informed the complainants that they
were found guilty and fined in varying amounts for
violation of one or both of the foregoing constitution-
al provisions. Pursuant to the provisions of the
International Union's constitution , the 10 complain-
ants appealed to the International Union's executive
board, without any request that the trial board action
be stayed. On May 15, 1968, following a hearing
before and recommendation of the International
Union's commission, the complainants were informed
by the executive board that it was adopting the
commission's recommendations . These recommenda-
tions were to affirm the action of the trial board but to
make the fines uniform in amount. Although the
constitution provided for an appeal to the Interna-
tional Union's convention, which was held on August
19 through 23, 1968, none of the complainants
appealed to the convention. On November 8, 1968,
the Local Union sent to five of the complainants who
had not paid their fines and were still employed by the
Company a letter reminding them of their failure to
appeal the penalities to the International Union's
convention, and requesting payment of the fines by
November 23, 1968, in order to avoid legal action
against them by the Local Union. Four of these five
complainants paid their fines as requested in the letter
between November 15 and 23, 1968, but one did not.
The Respondent Local Union filed suit against this
remaining complainant in the state court on February
8, 1969, to collect the fine from him. The record does
not reveal the disposition of the suit or whether this
complainant paid his fine. Thereafter, on February
18, 1969, the charges were filed and served on the
parties in the instant case . On June 23, 1969,
complaint issued herein.
The General Counsel contended and the Trial
Examiner agreed that Section 10(b) did not bar the
complaint because the demand for payment of the
fines and attempts to collect them by threat of suit,
and suit, removed all doubt as to the Unions'
intentions vis-a-vis the fines, and established coercion
within the 10(b) period as to the above five complain-
ants. It was the Trial Examiner's view that this
conduct constituted continuing coercion until the
the complaint was barred by Section 10(b), we find it unnecessary to reach,
and therefore do not adopt, the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they relate to the merits of the
8(b)(l)(A) and (3) issues herein
187 NLRB No. 4
STEELWORKERS , LOCAL 1114 23
demand for money was either satisfied or abandoned.
The General Counsel also contends that the imposi-
tion of the fines was not final until the meeting of the
International convention, within the 10(b) period, and
thus all 10 complainants were coerced within that
period. We do not agree with these contentions.
As to the five complainants who so far as the record
shows had either paid their fines or left the Company
prior to the attempts of the Local Union to collect the
fines , we hold that in the absence of any provision in
the Unions' constitution or bylaws providing for
automatic suspension of fines pending appeal, and
because those employees failed to appeal to the
International convention, the fines as to these five
complainants became final before the 10(b) cutoff
date. Cf. New Mexico District Council of Carpenters
and Joiners of America (A.S. Horner, Inc.).3 The
remaining five complainants likewise failed to appeal
to the International convention, and it similarly
cannot be said that the convention took any action as
to them.
The Local Union's conduct toward these members
is comparable to that of the union involved in
International Association of Machinists and Aerospace
Workers, AFL-CIO (Union Carbide Corporation).4 In
that case, as in the instant case, the members of the
union engaged in alleged union misconduct, and the
allegedly unlawful fines were imposed before the
10(b) period. All that occurred of significance within
the limitation period were threats of suit, and suit, to
collect the fines. As we did in that case, we shall
dismiss this complaint because the claimed cause of
action rests on pre-10(b) period conduct and it would
be necessary to find that that conduct violated the Act
in order to hold that the Respondents' post-10(b)
activities were unlawful. This the Board is forbidden
to do.5 Under these circumstances, we must dismiss
the complaint.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is dismissed in its entirety.
3 176 NLRB No. 105
4 180 NLRB No 135, reaffirmed upon reconsideration, 186 NLRB No.
138
5 Bryan Manufacturing Co, 362 U S 411
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
i The complaint also named as Respondent a District 32, apparently an
intermediate body of the International Union, but the General Counsel
agreed with the Respondents at the hearing that this District 32 was in no
way involved in the case and should therefore be ignored in any further
designated Trial Examiner at Milwaukee, Wisconsin, on
August 12 and 13 , 1969, on complaint of the General
Counsel against United Steelworkers of America,
AFL-CIO, herein called the International Union Respon-
dent , and its affiliated Local 1114 , herein called the Local
Union Respondent .' The issue of the case is whether the
Respondents violated Sections 8(b)(1)(A) and 8 (b)(3) of the
Act by imposing internal union fines upon certain of its
members and by instituting court action to enforce
collection . Briefs were filed after the close of the hearing by
all parties.
Upon the entire record , and from my observation of the
witnesses , I make the following: 2
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Harnischfeger Corporation is a Wisconsin corporation
with plants located in Milwaukee, West Allis, and Cudahy,
Wisconsin, where it is engaged in the manufacture of
industrial cranes, excavators, and related equipment.
During the past year, a representative period, it purchased
and received goods and materials transported in interstate
commerce valued in excess of $50,000 from points outside
the State of Wisconsin. I find that the employer is engaged
in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to exercise jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Steelworkers of America, AFL-CIO,
and its affiliated Local No. 1114, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Picture of the Case
The basic evidentiary facts upon which the entire
complaint rests, established by documentary proof, are not
in dispute. The documents were placed in the record at the
start of the hearing by stipulation of the parties. The
remainder of the hearing, when oral testimony was
received, added little of substance to the whole case, and
consisted largely of attempts to add color to and suggest
interpretations of what are indisputable acts and written
documents.
On October 25, 1966, 14 employees, all members of the
Respondents and all working in a single department of the
Company's plant, quit work in the middle of a shift; they
struck. One of the group was also a union steward; he left
about 30 minutes before the rest. The Company discharged
the other 13 as they were leaving the building. Hoping to
have the men reinstated, the Union filed a grievance under
the existing contract, and, the matter being urgent, the
parties jumped quickly into the third stage of the procedure,
where at two such meetings, on October 27 and October 31,
proceedings
Z Absent opposition, a motion by the Company to correct the transcript
is hereby granted and the transcript is corrected accordingly
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company refused reinstatement on the ground the
employees had struck in violation of the no-strike provision
in the contract. It was agreed to go to arbitration.
Within a few days the employees advised management
representatives they wished to give a different version of the
events . The Company agreed to hear them , arranged to take
their written statements , and invited representatives of the
Union to be present. On November 9 and 14, nine of the
discharged employees gave statements to officials of the
Company, before a stenographer; agents of the Union were
present. The burden of their story was to implicate the
steward in the strike and to shift the onus generally from
themselves to him. With this, the third step grievance
meeting was reconvened and the Company agreed to and
did reinstate all 13 strikers. It also discharged the steward,
on the ground of his conduct on the day of the strike.
The Union then filed a grievance aimed at reinstating the
steward, the Company was adamant, and contract
arbitration followed. At an arbitration hearing in Decem-
ber 1966, six of the employees testified before the
arbitrator; essentially it was their separate statements that
formed the body of evidence supporting the employer's
position. The arbitrator ruled against the Union; the
steward was finished. Later, internal union charges were
filed against 11 of the employees involved in the strike, they
were tried before a committee of members, 10 were found
guilty and fines were imposed. Some paid in August,
September, and November of 1967. Reminder letters were
sent to others and one, Walter Zarski, was sued in the State
Court on February 4, 1969, for collection of the fine. The
charge against the Union was filed on February 18, 1969.
B. What are the Issues?
The ultimate allegation of the complaint is that by
imposing these fines on 10 emnloyees as a group, Local
1114 first, and then the International Union by affirming
the fines on appeal, violated Section 8(bXl)(A) because
they restrained and coerced "employees in the exercise of
the rights guaranteed in Section 7." It cannot, and it is not
disputed that a money fine, backed by suit at law for
collection, restrains and coerces the culprit involved.
However, not every such internal fine imposed by a labor
organization upon its members restrains and coerces within
the meaning of Section 8(b)(1)(A) of this statute. Thus, a
fine for crossing a legitimate union picket line, N.LR.B. v.
Allis-Chalmers Mfg. Co., 388 U.S. 175, or one for exceeding
an agreed-upon production quota, Scofield v. N. L R B., 394
U.S. 423, do not so coerce. On the other hand, a fine for
refusing to join a union strike in violation of an existing
collective-bargaining agreement, Glaziers Local Union No.
1162 (Tusco Glass Co.), 177 NLRB No. 37, for filing unfair
labor practice charges with the Board, Local 138, Interna-
tional Union of Operating Engineers (Skura), 148 NLRB 679,
or for filing a decertification petition seeking extinction of
the union as bargaining agent , Local 125, International
Molder's and Allied Workers Union, 178 NLRB No. 25, does
coerce illegally and does violate Section 8(b)(1)(A).3 A
minimum proposition dictated by these diversified preced-
3 The principle of the Skura case was expressly affirmed by the Supreme
Court when it enforced the Board 's further holding that it is also illegal to
expel a member for filing charges with the Board . N L.R B v Industrial
ents is that there can be no determination that a union fine
in any given case is or is not unlawful unless there first be a
clear and definitive finding as to precisely what conduct of
the employee-member, what action which he chose to take,
it was that the union, by its internal charge and fine
procedures, sought to stop. And it seems equally clear,
given the variety of things union members will do, that in
this general area no single earlier decision will serve as
determinative precedent for a fine aimed at curbing a
different kind of behavior. Indeed, the General Counsel
conceded at the hearing that the instant case is a novel one,
that there is no precedent for finding these fines to have
been illegal , whatever the Respondents purpose may have
been in bringing the charges at all.
Difficult as the ultimate question of law may be in this
case , more elusive and vague is the answer to the necessary
threshold question as to the reason for the fines. All of the
parties equivocated throughout the hearing ; there was a
deliberate multiple ambivalence, particularly on the part of
the General Counsel, on this essential question. It starts
with the complaint, which says the Union resented two
things the employees did: "furnishing information to and
cooperating with the Employer during the processing of a
grievance," "and/or for testifying in an arbitration
proceeding." At the start of the hearing the General
Counsel phrased all of this differently: "No. 1, by meeting
with the employer during a conference; No. 2, by giving a
deposition at the request of the employer ; or [emphasis
added] No. 3, by testifying when called by the employer in
an arbitration hearing."
As the hearing progressed the General Counsel added
further descriptions of the asserted conduct by the
employees which had offended the Union. One of these was
that they had told the truth, in their direct appeals to the
employer, in the signed depositions, or in their oral
testimony to the arbitrator. He offered to prove, out of the
mouths of the employees, that it was the steward who had
egged them on to strike and whose discharge grievance was
therefore justly rejected by the arbitrator. "I am merely
asking you to make supplementary findings concerning the
steward's encouragement of the walkout. That's part of my
case here, and you can' t make those findings based upon
that transcript [the transcript of hearing before the
arbitrator]." Now the conduct which the fine was intended
to punish, became the act of telling the truth. Whether, with
the Trial Examiner finding, as of necessity he must be
privileged to do under such a theory, that the employees
had not told the truth, this complaint should now be
dismissed, the General Counsel avoided saying.
From this, the General Counsel then said that the evil is
seen in the fact "that they [the Union ] violated their duty of
fair representation to these employees ." Here the theory of
illegality was completely shifted; it ceased to be a fine
punishing direct dealing with the employer behind the
union's back, as it were, or giving testimony before an
arbitrator, or telling the truth. The alleged offense to the
Union's sensibilities became, instead, the employees'
Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U S
418
STEELWORKERS , LOCAL 1114
demand that the Union represent them in the processing of
the grievance.
A copy of the initial charges placed against the employees
was received in evidence . It refers only to general language
in the union constitution about "slandering or willfully
wronging" a union member , and conduct in violation of a
member's responsibility to the Union "as an institution."
The subsequent letter sent each employee to advise him of
the decision and fine , after a trial by a three-man board,
merely restates the general terms of the charge . And the
report of the International Commission , a body of the
International Union which considered the employees'
appeal , speaks in no more definitive terms as to what the
offense may have been. Asked at the hearing to state more
exactly what it was that the employees had done for which
they had been fined, counsel for the Respondents refused to
do more than to refer to this general language from the
International Commission report.
The defense rests essentially on the assertion that the
employees had undercut the legitimate bargaining agent by
engaging in collateral bargaining with the employer and
therefore could lawfully be fined, as permitted by the
proviso to Section 8(b)(1)(A) of the Act: ". . . this
paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to acquisition or
retention of membership therein."
The first question to be decided, therefore, is the factual
issue of determining what acts of the employees lay at the
basis of the internal union charges and fines.
There is a separate allegation in the complaint that by
these union fines the Respondents also refused to bargain
with the Company in violation of Section 8(b)(3) of the Act.
This allegation will be better appreciated after resolution of
the major issue of the case.
C. The Pertinent Facts
1. The work stoppage
In keeping with the current contract the 13 employees
who quit work on October 25, 1966, were being paid at a
rate lower than employees in other departments doing the
same kind of work, and they were therefore disgruntled.
One of them, Ralph Cartwright, had a few weeks earlier
filed it grievance for this reason, but it had failed. To a man,
about 7:30 in the evening, in midshift, each of them went to
the nurse for a sick slip, and asked for a pass to go home.
They were not ill. As they were leaving their foreman told
them they would be discharged if they left. Harold
McLaughlin, the steward, left work about half an hour
before this, on the excuse , not true, that his wife was ill and
needed him at home. This was a strike by the 13 men, and
by McLaughlin as well. The strike was in violation of the
contract, and the 13 men were that day discharged.
2. Meeting at the union hall
that same evening
By arrangement made before leaving the plant, all 14
proceeded to a bar to discuss the matter . They telephoned
the then president of Local 1114 , Fred Kelber , and agreed
to meet him at the union hall later . From the tavern, or
25
taverns , everybody proceeded to the union hall , where there
was talk with Kelber and with Fred Myers , the Local 1114
vice president who 5 days later assumed the presidency
because Kelber changed jobs to become a staff representa-
tive of the International Union. Kelber told them they had
violated the agreement and that the best chance of
prevailing upon the Company to take them back was if they
offered to return immediately while he made an appeal to
management . They refused to go back , and I credit
Kelber's testimony that the discharged men continued their
protest that the pay rates were wrong and the entire union
membership should bring pressure on the Company . Before
the meeting was over 11 of the men signed a grievance form
addressed to the Company. It reads:
Termination
We the undersigned feel we were unjustly treated by
being terminated for leaving the plant early due to
illness & personal reasons , therefore we demand to be
compensated for all wages lost due to termination.
3. The grievance of the
discharged employees
Two days later , on October 27, Kelber , Myers , and the
steward, together with a Mr. Lusher , an International
representative , all for the Union , met with three company
representatives to consider the employees ' grievance.
Conceding the Company 's position that the strike had been
a contract violation , the Union asked that discipline be
limited to the loss of interim earnings and the men be
reinstated . The Company remained adamant and the
parties agreed to meet again on October 31. They did so,
with the same persons present . Each party held firm to its
earlier position and it was agreed to go to arbitration.
The same representatives met again on November 16. By
this time nine of the employees had given written
statements to the Company . Now the Company, on the
ground that further investigation-the nine written state-
ments , caused it to believe the men had been misled , agreed
to reinstate the men on November 21, and to reduce the
disciplinary action to loss of such interim earnings. The
grievance was considered settled on this basis.
4. Union meetings of all stewards
On November 1, 1966, 12 of the discharged employees
signed a joint request for a general membership meeting. It
reads as follows:
We the undersigned request a special membership
meeting at the earliest possible date, for the purpose of
discussing our discharge cases . We also request the
presence of the entire executive board.
The general membership meeting requested by the
discharged employees was never held. Instead , these people
were heard at a regular monthly meeting of stewards, held
on November 2. After other matters had been disposed of,
there was much discussion of the October 25 walkout and
the consequent discharges . Many views were expressed: the
walkout had been illegal , there should be a general
"walkout," there should be arbitration , etc. Steward
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLaughlin gave his version of the events . According to
the minutes of the meeting placed in evidence , Winfred
Stolze , discharged , "informed the Executive Board that he
had been approached indirectly as to exposing the leader of
the alleged walkout with the indication that the rest of the
men would be returned to their jobs ." Jerry Matter, also
discharged , acted as spokesman for the employees. A
summary statement attached to the minutes of the meeting
shows he said the following:
1. Men told to sign blank paper with understanding
men will walk out together.
2. Steward also signed this paper that he was with men
100%.
3. This paper had no writing on it but was a verbal
expression.
4. Men led to believe that they should say nothing to
anybody including all Supervision.
5. Men led to believe that Whole Union was 100%
behind walkout and that brother Fred Kelber was
behind it.
6. Men told to go to nurse and report sick while
Steward had excuse that his wife was sick.
7. Men told where to meet after walkout by Steward.
8. Men were not told individually they were violating
contract, some were told in groups of 3 or 4.
9. Men were led to believe that they would be
ineligible to attend Executive Board meeting.
10. Men went to nurse in groups of 2 or 3.
11. Reason for walkout-differences in pay rate to
people doing samejob.
12. Superintendent Del Krause asked men in office to
air problems.
13. Everybody has a gate pass.
This was the first time there was any serious talk of
McLaughlin being responsible for the decision of the other
13 to strike . Reference to his participation in the strike there
had been , but the thought that the large group might not
have misconducted themselves but for the activities of the
steward was simply a new idea as far as the union officers
and the membership as a whole were concerned. The
refusal of the 13 to file charges against McLaughlin that
night proves how tongue -in-cheek the entire attitude was.
In the end a vote was taken and it was to press the discharge
grievance to arbitration.
In the corridor outside the hall a number of employees
continued that discussion with Kelber. He told them in his
opinion there was little chance the Union would prevail in
the arbitration, and that judging by his experience the
arbitration proceeding would take 4 months, if not more.
5. The employees turn to the Company
During the questioning of witnesses at the hearing there
appeared between the lines a subtle disagreement between
the parties over the question whether it was the employees
who first conceived the notion of telling the Company their
stones , or whether it was the Company which took the
initiative to draw them out. What difference definitive
resolution of this matter would make in the ultimate
contentions of the parties was not clear , for, as stated
above , the lawyers equivocated as to their fundamental
positions . For what it is worth , I find that although
management representatives did nothing to discourage the
employees from coming directly to them , the whole idea of
giving statements directly to the Company was born in the
minds of the 13 discharged persons as a group.
The employees met twice as a group , once at the home of
Winfred Stolze and once at the home of Lyle Bartel. All 13
were at Bartel's house and all but one or two at Stolze's.
The dates of these gatherings are not clear on the record,
but they did take place at about the time of the October 31
second meeting of the grievance committee and no later
than the November 2 gathering of the stewards at the hall.
Cartwright , the first employee witness , started by saying
that at Stolze's house the men talked about their situation,
and that at one point Stolze told them "his wife had heard
from some representative in the company at the place
where she worked , in a restaurant some place , he didn't
state exactly who it was or what the place was, that the
company didn't know actually what had taken place during
the walkout ." As Cartwright continued , his testimony
became even less clear : ". . . we had tried to contact
somebody from the company by telephone , I don't know
who was talked to exactly , and they had said the company,
whoever spoke from the company said we should go and
tell our story to the Union , that was as far as the whole
meeting had taken place."
Stolze 's wife was not called as a witness . Her husband,
also called by the General Counsel , only added confusion
to the whole story. "I came home from work, my wife said
Mr. Losse [company vice president of industrial relations]
had called; not Mr . Losse , she said someone called and said
I was supposed to call Mr. Losse , which I did and I asked
him what he wanted, and he then explained to me he got
word some of the people would like to give their testimony,
and I said, 'I don't know , if they ask I 'll tell them what you
said ,' so I called Joe Till and told him what he said , and told
him it was strictly up to the men , what they wanted to do
about it." "... I don't know who left the message , I asked
my wife about it, she still doesn't know , she said it could be
anybody . I talked to her last night about it." Aside from this
vacillation in his story, Stolze was not a credible witness, for
he deliberately evaded questions and showed unmistakea-
ble hostility to the General Counsel.
Against these witnesses , the story as told by Losse , for the
Company, was clear and direct . He said a message had
reached his home for him to telephone Stolze , and that he
did so on November 5, when Stolze spoke as follows: ".. .
he said he would like to have the discharged employees
meet with the company as soon as possible , because they
felt they wanted to tell their side of the story." Losse agreed.
It was between November 2 and 6 that the employees
communicated with Losse. In consequence six of them met
with him in the company office on November 7: Till,
Pellowski , Dalberto, Cartwright , Matter, and Stolze.
Present with the vice president of industrial relations were
Harold Joy, director of labor relations , and Mr. Surmacz,
vice president of manufacturing . Here , as Mr . Joy testified:
"The employees started telling us what had happened the
night of the walkout, just what the circumstances were,
what the real facts were on the walkout , how they felt they
had been led into it by their steward and therefore they felt
they weren ' t entirely wrong and to blame for the whole
STEELWORKERS , LOCAL 1114
thing." The end result was that arrangements were made to
make written statements at the YMCA on November 9.
I credit Losse . No reason was shown why the Company
should wish to search for reason to change its twice -stated
position to reject the 13-man grievance . There had been two
earlier strikes in violation of the contract , and each time the
Company had warned it would take drastic action . This is
what it did . In contrast , the employees had not appeared at
the grievance meetings ; their position had been defended
by the union officers instead , including the steward himself.
They were out of work and the indication was it would be
months before an arbitration proceeding could possibly
restore them to the job. They could only gain if a new story
were told to the Company.
On the 8th Losse called the union agents to advise them
he would take statements from the employees and to invite
them to be present . Three union agents appeared on the
9th, when six employees gave statements , and again on the
14th, when three more employees spoke to the Company.
The statements are substantially consistent , although
varying in detail ; they explain why the employees struck,
how they planned to act in concert by deceiving the nurse,
how they asked Steward McLaughlin for his opinion, how
he did not discourage them but expressed assurance there
would be success and no adverse developments , and how he
joined by himself leaving 30 minutes before they did.
6. Discharge of the steward and his grievance
H L. Joy, the director of labor relations, said
McLaughlin was discharged the afternoon of November 14.
Apparently this was after the second group of employee
statements had been received . A grievance was filed on
behalf of the steward and again the parties quickly jumped
to the third stage of the grievance procedure.
It will be recalled that the Company agreed to reinstate
the 13 on November 16. Immediately thereafter, on the
same day, the McLaughlin grievance was considered by the
same representatives . The Company held firm and
arbitration was set . On December 28 and 29 , 1966, the
arbitrator heard testimony ; six of the nine employees who
had signed statements at the YMCA appeared as witnesses.
In his decision , issued on March 18 , 1967, the arbitrator
denied the grievance . He found in fact McLaughlin "was
aware that a walkout was in the making ," "he failed to take
steps to prevent the work stoppage or to keep his supervisor
informed ," and therefore deserved a severe penalty. The
arbitrator expressly refused to find the steward had
"initiated or incited" the strike.
7. The union charges and fines
Of the 13 employees-exclusive of the steward-who
struck, the complaint names 10 of them as having been
unlawfully charged and fined within the Union. Eight of
these had given statements to the Company in the YMCA:
Stolze , Matter , Bruss, Cartwright, Kingsbury, Pellowski,
Dalberto, and Zarski. The 9th man named in the complaint
is Robert Alger; he did not give a statement , but he did
testify in the arbitration . Joseph Till, the 10th man and last
in the complaint, neither signed any statement nor gave any
27
testimony . And of the 10 only 6 appeared as witnesses at
the arbitration proceeding.
On May 16, 1967, "the steward body" of Local 1114
preferred charges against 11 employees , the 10 named in
the complaint , plus Balsewicz . Balsewicz had signed a
statement for the Company but did not appear before the
arbitrator . Identical letters sent to each of these 10 , in part
reading:
The Steward Body of Local 1114 USA-AFL-CIO
hereby prefers charges against you for violation of the
following provisions of the Constitution of the United
Steelworkers of America , Article XII, Section 1, (g)
willfully wronging a member of the International
Union, and (m) deliberately engaging in conduct in
violation of the responsibility of members toward the
organization as an institution.
All the men appeared before a trial board of three
members on June 5, 1967. Longhand minutes of the
proceedings were made , and are now in evidence here. The
trial committee found Balsewicz not guilty , Alger and Till
guilty only under clause (m) of the charge , and the
remaining eight guilty under both clauses (m) and (g).
At a general membership meeting later one man was
fined $25 , three were fined $50 , and the rest $100.
There was an appeal to the International Union's
International Commission , which heard the employees on
January 24, 1968. Eight of the fined employees appeared in
person and spoke. The Commission approved the fines as
they stood and the employees were advised, on May 1,
about the Commission's report and that the International
Executive Board would review the action on May 8, where
they would again have an opportunity to be heard. The
Executive Board then also approved all of the fines as
originally imposed.
By this date-May 8, 1968-when the final step was
taken within the Union to make imposition of the 10 fines a
closed matter-3 of the employees had left the Company:
Dalberto on February 16, 1967, Matter on April 14, 1967,
and Kingsbury on January 1, 1968. Whether or not these
men ever paid the fine , and whether or not they remained
members of the Union after leaving this employment, the
record does not show . Two paid their fines while still
employed, but before November 1968: Alger on August 19,
1968 and Pellowski in September 1968.
On November 8, 1968 , the financial secretary of Local
1114 wrote to the remaining five to remind them of the final
action concerning the fine and to demand payment as
required by the Union 's constitution . Four of the persons
who received this dunning letter then proceeded to pay: Till
on November 15, Bruss and Stolze on November 18, and
Cartwright on November 22.
This left Zarski , fined $100 , the only delinquent. He
received a letter from the Union's lawyer on December 28,
1968, demanding immediate payment by January 10 if he
wished to avoid suit . On February 4, 1969, he was served
with a summons and complaint in the State Court of
Wisconsin . It does not appear that he ever paid the fine.
The initial charge in this proceeding was filed on
February 18, 1969.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Analysis
1. Section 10(b): 6-month limitation
The Respondents ask for dismissal of the entire
complaint on the ground that even assuming it was illegal
to have imposed these fines , the unfair labor practices were
completed with finality by May 8, 1968, when the Executive
Board affirmed the International Commission, and that this
was more than 6 months before the filing of the charge. For
this defense the Union relies primarily upon Bryan
Manufacturing Co., 362 U.S. 411.
In essence , the contrary argument made in support of the
complaint is that the major bite of any fine is the ultimate
enforcement in collection proceedings, when all doubt as to
imposition of the fine is ended, and the pay-or-else time has
arrived. The position concedes, as it must, that even a
determination that there be a fine brings a coercive effect to
bear upon the accused, but goes on to theorize that the
followup lawyer's claim particular act of his, and some
other for having done something else. This letter, and then
the suit at law, are akin to continuing coercion until the
demand for money is either satisfied or abandoned. If this
be a persuasive view, it follows that the five members who
received the November 8 letter were subjected to direct
illegal coercion within the 6-month period before February
18, 1969, to say nothing of Zarski, who was served with a
summons and complaint in the very month of February.
The employee whose discharge was considered in Bryan
Manufacturing, refused to join the Union and lost his job
for that reason. The Respondent Union had caused the
discharge, and the basis for its action, vindicated in the
Supreme Court, was a union security collective-bargaining
agreement valid on its face as expressly permitted by the
statute . The pressure for money, which the Respondents
here put on five employees in November 1968 and again on
Zarski the following February, had no such prima facie
lawful warrant.
I find no merit in the defense resting upon Section 10(b)
of the Act.4
2. The principal issue
As stated in the beginning, there can be no finding of a
statutory violation in a union fine unless first the employee-
member conduct said to have offended the Union be
fixed -and proved. Some conduct by members is properly
subject to internal fine, other is not. In this case the conduct
must have been the same by all 10 involved. There is no
allegation, nor was it even obliquely suggested throughout
the proceeding, that some may have been fined for one
reason and others for different reasons. Indeed, the
prosecution took pains to stress the contention that all were
treated alike by the Union, and that all must be viewed as
having engaged in the same conduct deemed punishable by
the trial board. Moreover, the documentary evidence
received, upon which virtually the entire case rests,
precludes any finding that one member may have been
fined for one particular act of his, and some other for
4 See , Local 248, UAW (Allis Chalmers), 149 NLRB 67, 76. Compare,
N.L.R.B v Local 269, IBEW, 357 F.2d 51 (C A 3), enfg., 149 NLRB 768
having done something else. This characterization of the
record is conceded.
The facts here stated show, among other things, that
some of the men "cooperated" with the Company and
others did not, that some gave written depositions and
others did not, that some testified before the arbitrator and
others did not. In his brief the General Counsel blurs these
clear differences by saying "no valid distinction can be
drawn between the three means by which they represented
their position and account of the walkout . . . no rational
distinction can be drawn relative to the stage at which each
individual participated in the process."
Notwithstanding this attempt to call all colors by one
name, the fact is that starting with the complaint and
ending with the brief , the General Counsel lists no less than
six different forms of conduct as the behavior which the
Union is supposed to have resented and which constituted
the basis of the charges and fines. They are: (1) they [the
employees] "cooperated" with the Company [presumably
this refers to the group action in sending a delegation to the
office on November 7 to inform the Company of what the
employee group as a whole wanted to have presented to the
future arbitration proceeding on the discharge grievance of
all ]; (2) they "furnished information" to the Company [this
is the matter of some giving and signing depositions on
November 9 and 14]; (3) they testified before the arbitrator
[6 of the 10 gave such testimony as company witnesses on
December 28, 1966]; (4) in the course of the arbitration
proceeding they urged a position at odds with that of the
constituted union agents and officers; (5) they set their own
personal interests against that of a union agent-should they
stay fired or should McLaughlin be dismissed instead?-;
and (6) they told the truth.
a. Failure to prove a prima facie case
I shall recommend dismissal of the complaint allegation
that the union fines were in violation of Section 8(b)(1)(A)
of the Act, for two separate and distinct reasons . The first is
because the General Counsel has failed to state and to
prove a cause of action that can be coherently and
intelligibly appraised . The reason for the fine stated , as it is,
variously, alternatively, inconsistently, in most forms
concededly applicable only to some of the total group of 10
members and not to others , makes it impossible to give
rational consideration to the legality of any fine here. The
law as it stands makes unmistakable that unless the
complaint, however articulated , presents a definitive and
clear-cut assertion as to what the particular employee
conduct said to be protected by the statute was, the
logically second-place question-is the fine to curb such
conduct illegal-cannot be reached. Unless, of course, it is
to be presumed that because it was the Union that imposed
the fine an unfair labor practice was committed.5 But
generalities about public policy, subtle insinuations of
dishonesty, unproved charges of ulterior motive, are not
enough, and cannot serve as substitute for the primary
burden upon the General Counsel to state and prove, at the
start, the true reason for the fines . Brief comment upon the
8 Cf. Local 35 7, Teamsters v N L R. B, 365 U.S. 667.
STEELWORKERS , LOCAL 1114 29
diversified, elusive and ever-shifting causes for the fines,
under the multifaceted assertion advanced by the General
Counsel, will suffice to illustrate why there can be no
objective evaluation of the ultimate complaint allegation in
this case. When a union member is fined for the fact, and
clearly for the fact, that he appeared as a witness -before the
arbitrator in a contract arbitration proceeding, an under-
standable argument could be made that the situation is
analogous to testifying in an NLRB proceeding. But this is
not that case, because four of the men never appeared
there, and the General Counsel insists no distinction can be
made between the activities of some in the total group as
against that of others. Some, but not all, went directly to the
Company, after the regular contract grievance proceeding
conferences , and told management a different story; they
offered to give the Company signed statements at variance
with the position that the Union had been urging in
processing their grievance. The prosecution compares this
conduct to that of a member filing a charge against his
union with the Labor Board, and therefore urges the Skura
case decision for a finding of illegality. And to facilitate this
jump between an employee turning to the employer for
vindication of his statutory union activities right and resort
to the NLRB for enforcement of the law, the General
Counsel blandly says the two steps are one and the same.
Quite apart from the idea that an employer now fills the
role of custodian of his employees' right to deal with him
through a union-a contention that merits no answer at
all-how does one discuss two such divergent concepts as
though they were one and the same? Apples are not pears.
The revolving riddle continues. Four hundred pages of
testimony taken by the arbitrator 3 years ago tell the story
of what happened during the wildcat strike of October
1966. He sustained the discharge of the steward but was
careful to call nobody a liar; he deemed the steward guilty
of omission, or acquiescence where he should have strained
to protect the employees against their own folly. At the
hearing here the General Counsel offered to have the
witnesses retell the whole story of that night, and his
purpose was, he said, to prove that as between McLaughlin
and the employees later fined, the latter told the truth. He
asked for an express finding by the Trial Examiner that the
steward encouraged and was himself responsible for the
strike, "and you [the Trial Examiner] can't make those
findings based on that transcript [the testimony before the
arbitrator]." The reason for the later union charges was,
according to the brief, because the testimony of the
employees was truthful. Does this mean that employees
who lie at an arbitration hearing may be disciplined by the
Union? More important, does it mean that under the rule of
the Skura decision a member who files a false, or
unprovable charge with the Board may be fined by his
union, and that only the man who files one that later stands
up is protected? Both these questions must be answered
affirmatively, if the offer of proof as to who told the truth to
the arbitrator has any relevance to the issue of this case.
The General Counsel purposefully skirted these aspects of
his case , with the result that there stand completely
inconsistent factual assertions as to the true reason for the
charges and the fines.
There is more. Apparently without regard to any and all
of the foregoing, the contention is then made that the
offense really lay in the employees having taken a position,
in the overall handling of their discharge grievance, that
clashed with the arguments being made by the union
agents. Every union member is said to have a right to insist
that the union grievance committee represent him in his
grievance on a basis acceptable to the member. Then comes
still another reason for the fine, and it is that the events of
October 25 endangered the positions of both the 13-man
group and of the steward. Somebody had to suffer and the
employees thought it right it should be McLaughlin, and
not they. This fact of McLaughlin being a steward made the
general membership particularly resentful of the unilateral
action of the 13 in going directly to the Company. Under
this view McLaughlin's status as a union agent becomes the
critical element proving illegality in these fines. And again
the General Counsel leaves unanswered the resultant
embarrasing question: had McLaughlin not been a steward,
but simply a 14th man who perhaps first inspired the others
to strike and then ducked for cover, would the Union have
been privileged, under the proviso of Section 8(b)(1)(A), to
impose the fines and insist upon acceptance, by individual
members, of the composite officer group judgment as to
how to process the grievance?
It may be that the prosecution's failure to choose any one
of these many possible grounds for the fines, and to
predicate the complaint on a definitive and understandable
basis , resulted from the ambiguities, vagaries, inconsisten-
cies , and generalities appearing throughout the many
documents placed in evidence. In justice it must be said
that it is virtually impossible to put the finger on a single
act, common to all 10 of the persons covered in the
complaint, as the basis of the union charges. Be that as it
may, unlike inconsistent and alternative theories of law
argued from a given set of basic factual assertions, an
essential factual allegation cannot be pleaded as a multiple
choice. Whatever the explanation, I find that the record
does not prove a prima facie case in support of the
complaint and shall therefore recommend dismissal.
b. The reason for the union charges: Conclusion
A reason for the fines there has to be and it must have
been one applicable to all 10 of the men successfully
charged. The language used by the Union and set out in the
written charges placed in the hands of each member merely
sets out general provisions from the constitution, language
too all-embracing to permit specific findings. The strikers
were treated as a group, when charged, when tried before
the union committee, and when served with the penalty
notices. This last, the final document, is worded the same in
all 10 cases . Of particular interest is Joseph Till, who gave
no written deposition to the Company and who did not
appear at the arbitration hearing. There must be a common
basis for joining him with the rest.
On the record as made, the best source of information as
to what this case is all about is the minutes of the internal
union trial when the men were told why they had been
charged, when their defense arguments were heard, and
when the substance of the issues was discussed. The hearing
was most informal, the notes sketchy, on occasion hardly
legible, and very often rambling and out of context. One
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dung can be said with certainty: no single act by any one
man, no particular conduct by any group of them, no
isolated aspect of the total events which had occurred,
stands out as of greater significance than any other.
There were available in the room the depositions
previously signed by the employees and the transcript of
testimony taken before the arbitrator. These served to
reveal all that had happened before. The fact that the
written statements and the arbitration hearing testimony
were used there is not sufficient reason for narrowing the
basis of the charges to the mere fact of signing depositions
and to testifying. The talk that went on covered all the
preceding events.
Fair appraisal of the evidence in its totality, and due
regard for the logic required to consider the case as a single
issue applicable to all 10 members fined, warrants the
finding, which I make, that the charges were filed because,
acting unilaterally and outside the contractually established
grievance procedure, the men went directly to the employer
to alter the course of the collective-bargaining process that
was going on and to further their individual interests
against those of the Union as an entity.6 By such conduct
they undercut the statutory authority of the exclusive
bargaining agent, and could properly be fined by the Union
in keeping with the proviso to Section 8(b)(1)(A): ". . . this
paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to the acquisition or
retention of membership therein." The complaint must
therefore be dismissed.
The realities are clear enough. Fourteen men struck,
including McLaughlin. The Company discharged 13, but it
could as well have dismissed McLaughlin also. Later that
evening, first while drinking beer and later, at midnight, in
discussion with the union officers, all of the men were still
aroused and determined to close the whole plant. They
rejected the sane advice of the officers to return immediate-
ly to the Company and offer to resume working. It was only
with the urgings of Kelber and Myers that they signed the
formal, contract grievance form and agreed to have the
Union attempt to get them not only their jobs but also what
money they were losing while not working. And the Union
promptly pressed the grievance, even jumping the prelimi-
nary stages. The Company was tough; twice-on October
27 and 31-it condemned wildcat strikes and refused
reinstatement. The Union's only choice was to go to
arbitration and it prepared to do that. Vice President
Kelber candidly told the discharged men their chances were
slim and it would take some months in any event.
Understandably they were unhappy; understandably they
would seek to do something about their plight. And so, 2
days later, at the general steward meeting of November 2,
they chose a spokesman-Gerald Matter-to implicate
McLaughlin in the strike and to somehow make it appear
the fault was his. With this, the Union asked did the men
wish to prefer internal union charges against the steward;
they refused to go that far.
But they did, at the same time and in a day or two,
assemble twice in the home of one or another of the group,
to discuss what course to take. They decided to go to the
6 The processing of grievances during the life of a collective-bargaining
agreement is a form of collective bargaining within the meaning of the Act
Company in order, somehow or other, to get their jobs
back. Losse, the company officer, when told the men
wanted to see him about all this, said it was not necessary
for all to come, it would be enough if they sent a
representative member. Among those who went, on
November 7, was Till. And they now described the events
of the October 25 strike in a way that showed McLaughlin,
for the least, to have been a striker himself.
On hearing their stories, orally and then in writing, the
Company took them back and fired McLaughlin. At the
hearing in this proceeding, 3 years later, both the General
Counsel and the Company insinuated, but did not directly
avow, that McLaughlin caused the men to strike. He did
not. The reason why the men struck is clear on the record;
they struck because they felt they were underpaid; a
specific grievance so claiming had been lost only days
earlier. They talked to the steward about striking, and he
did not attempt to dissuade them; he even cooperated and
joined them. He was foxy and covered his departure more
convincingly than they did. But it was not he who was
responsible for the strike. Indeed later that evening the men
continued to protest, at the union hall, that it was not right
for others to be paid more than they and that everybody
should quit to support their demand.
Interwoven through the briefs supporting the complaint
is the thought the Union preferred its steward over rank-
and-file members, and therefore failed to represent all
employees in the bargaining unit equitably. Presumably the
Union could have avoided this charge only by offering
McLaughlin as a sacrificial lamb in return for the jobs of 13
men. But all 14 were equal offenders under the current
contract so far as the Company was concerned. A no less
persuasive argument could be made that the Company had
no adequate reason in the end to choose McLaughlin for
punishment and go easy on the others who had shown as
much contempt of prior warnings against wildcat strikes.
No charge of ulterior motive was made against the
Company, and I make no finding of improper conduct
against it. But it is a possible speculation whether the
Company may not itself have seized the moment to give
vent to an union animus by striking only at the union agent.
The further suggestion that Kelber, of the Union, sent the
men to the Company to give statements endangering
McLaughlin's job, is totally unwarranted on the evidence.
Nor is there any significance in the fact the officers made
no effort to prevent the giving of statements on November 9
and 14, or even the employee testimony of the arbitrator.
The union agents were told they could come to the YMCA
only as observers, and the action of the employee group
remains from first to last purely a unilateral move
bypassing the union hierarchy. And if the union member-
ship, or its stewards who later filed the charges against these
10 men, waited until after McLaughlin's arbitration was
decided, their patience adds no support to this complaint.
The delay may have resulted from no more than a proper
expectation that the calmer things remained until that
question was decided, the better the chances McLaughlin,
like the others before him, might have been restored to
work.
Bethlehem Steel, 89 NLRB 341
STEELWORKERS , LOCAL 1114 31
If there be such a thing as a purely internal union
squabble , something that concerns no outsiders and that
ought properly be left to the membership as a whole to
resolve however they choose to live together , this is it. If
there be a situation where the statute intended the Union to
be free to "prescribe its own rules with respect to .. .
membership . ..," clearly it must be when one group sets
itself up to flaunt the regularly established procedures for
running union affairs in an orderly fashion . No precedent
to the contrary has been cited.
To the extent that dicta in other decisions reach this
subject it supports this view . "The employee may disagree
with many of the union decisions but is bound by them.
The majority-rule concept is today unquestionably at the
center of our federal labor policy ." Allis Chalmers, supra. A
persuasive analogy appears to the case of direct bargaining
negotiations preceding a contract, where of necessity the
union committee evaluates the interests of diverse categor-
ies among the employees embraced within the single
bargaining unit . A balancing of interests towards achieving
overall benefit must be made . There will be those who feel
the ultimate bargain was weighted too heavily, or
unreasonably in favor of fellow members . But: "The
complete satisfaction of all who are represented is hardly to
be expected . A wide range of reasonableness must be
allowed a statutory bargaining representative in serving the
unit it represents , subject always to complete good faith and
honesty of purpose in the exercise of its discretion." Ford
Motor Co v. Huffman.
It will not do for a litigant here after the event to
characterize the position taken by the Union at the October
grievance committee conferences as "technicalities,"
"perfunctory and restrictive ," of "untenable nature," or
"practically equivalent to a refusal to process the grievance
at all." It may not have been much , in view of the obvious
indefensibility of the wildcat strike , but the union
representatives were doing the best they could in the
circumstances . All 14 men had struck , but only 13
discharged . If in the judgment of the lawyers who wrote the
briefs the Union lacked "good faith and honesty" because
it did not put McLaughlin on the spot , theirs is only a
personal opinion , and hardly determinative of the law.
The reality that the 10 men-truly defectors from union
ranks- made a shambles of the regular grievance
procedure , is not altered by saying , as does the General
Counsel's brief , that "Section 9(a) of the Act grants an
individual employee the right to present his grievance
directly to the employer ." It is one thing for a discharged
employee to go to the employer himself to handle his own
affairs. It is quite another for him to file a contractual
grievance through the union of which he is a member, and
then , during the heat of the proceeding , insist that it be
litigated as he, in disagreement with the officer body, sees
fit, even to the extent of simultaneously dealing with
company representatives behind the Union 's back. The
fines imposed in this case were not directed against these
men merely as employees of the Company , but rather as
members of the Union . And it is with union membership
that the proviso to Section 8(b)(1)(A) is concerned . That is
why, in the Allis Chalmers case, the Supreme Court said:
"Integral to this federal labor policy has been the power in
the chosen union to protect against erosion its status under
that policy through reasonable discipline of members who
violate rules and regulations governing membership."
3. Section 8(b)(3)
There is no merit in the further complaint allegation that
the Respondent Unions refused to bargain with the
Company in violation of Section 8(b)(3) of the Act. This
charge rests upon the same story told above. The complaint
details that the Union "deprived the Employer of pertinent
evidence bearing upon the merits of a grievance " arising
under the contract . The contention is explained in the brief
as the counterpart to an employer 's obligation , on demand,
to furnish relevant information to a union , under Section
8(a)(5) of the Act, to enable it to bargain intelligently.
To start with, the reason for the fine was to enforce a
proper concern in any union that its members not derogate
the duly constituted structure of its organization and not
disrupt its lawful functioning as the representative of all
employees in the bargaining unit . The purpose of the fine
was not to conceal data, or to suppress evidence-as
charged here . The analogy to Section 8(a)(5) of the Act is
ill-taken in any event. The first element of any wage data
case is that the union must demand company record
information before it can be found that the refusal to
furnish it was an unfair labor practice . There was no
demand for anything here ; the Company filed no
grievance, the Company wanted nothing of the Union. It
had taught the employees a lesson-not to strike during the
life of a contract-and it wanted that lesson to stick.
Moreover , it is difficult to perceive how the Company could
have asked for any information or evidence it knew nothing
about. It was the Union that sought to get thejobs back for
its members; it was the Union that wanted something.
The real purport of the complaint on this point is that in
the processing of a grievance , and, I suppose , at any stage in
the collective -bargaining process , if there be a version of
events, or any fact, that can favor the position of the
employer, the law requires that the union volunteer it to the
opposing side of the table . If this be a correct reading of the
statute , it follows that any employer must bring to the
bargaining table all those of its records that can conceiva-
bly give support to a union's economic demands, regardless
of whether the union asks for them , or even knows that they
exist . In short, each side must be the helpmate of its
opponent in the economic struggle of the collective-
bargaining process.
I do not read the statute , or the decisional precedents, in
this fashion , and shall therefore dismiss the complaint in its
entirety . In the day-to-day handling of grievances under a
collective -bargaining agreement, the parties are best left to
their own resources in the privacy of the conference room;
it is by free and unhampered discussion that disagreements
are settled and economic calm replaces industrial strife. It
would be unhealthy , in the sense of frustrating freedom of
movement by the negotiators , were the Government
privileged to keep a sharp eye over the shoulder of each
party to assure that they act and speak fairly, with open
candor, and with a due regard for the interests of the
opposition.
An equally convincing argument might be made on this
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record that the refusal to bargain was committed by the
Company. Regardless of whether it was Losse, vice
president of industrial relations, who invited the employees
to his office as a group, or, as really happened, it was the
group of 13 acting in concert who came to him to save their
skins, what happened on November 7 in the company
office can fairly be described as direct dealing between
employer and employees outside the knowledge of the
exclusive bargaining agent and in derogation of its
statutory agency authority. The employees were not
interested in abstract justice or ultimate truth in any
theoretical sense . They wanted their jobs back. And it
would be unrealistic to say Losse did not know this and that
he did not, between the words of the agreement to reduce
the statements to writing, pretty much give them to
understand all this would help them. There is no charge
against the Company and this is an end to the matter.
RECOMMENDATION
For the foregoing reasons, and in consideration of the
entire record, I recommend dismissal of the complaint.