Trojan Steel Corp.

National Labor Relations Board - Board Decisions

Jan 19, 1976

222 N.L.R.B. 478 (N.L.R.B. 1976)

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trojan Steel Corporation and International Brother-
hood of Boilermakers , Iron Ship Builders , Black-
smiths, Forgers and Helpers, Local No. 667, AFL-
CIO-CLC. Case 9-CA-9147
January 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On September 15, 1975, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Trojan Steel Corpora-
tion, Charleston, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 554 (1950), enfd 188 F 2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was heard at Charleston, West Virginia, on June 4 and
5, 1975, upon a complaint issued on March 25, 1975, based
upon a charge filed on February 13, 1975, by the above-
named Charging Party (herein the Union). The complaint
alleges that the above-named Respondent refused and con-
tinues to refuse to bargain in good faith with the Union as
representative of an appropriate unit of Respondent's em-
ployees "by refusing to execute a written collective-bar-
gaining agreement, the provisions of which were previously
agreed upon by Respondent and the Union," in violation
of Section 8(a)(1) and (5) of the Act.
Respondent's answer denies the commission of the al-
leged unfair labor practices, but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board (Respondent, en-
gaged in metal fabrication, during a recent annual period
shipped products valued in excess of $50,000 in interstate
commerce from its plant at Charleston, West Virginia) and
to support a finding that the Union is a labor organization
within the meaning of the Act.
Upon the entire record in this case, from observation of
the witnesses, and after due consideration of the briefs filed
by the General Counsel and the Respondent,' I make the
following:
FINDINGS AND CONCLUSIONS
I THE FACTS
Preliminary
The Union was certified by the Board on or about
March 25, 1974 (all dates hereinafter in 1974 except where
otherwise stated), as the exclusive representative for the
purposes of collective bargaining in the following appropri-
ate Unit: "All production and maintenance employees em-
ployed by the Respondent at its Charleston, West Virginia
plant including welders, truckdrivers, machine operators,
electricians, janitors, mechanics, maintenance employees,
helpers, laborers, tool room employees, layout employees
and door shop employees; but excluding all office clerical
employees, salesmen, engineers, and all other professional
employees, guards and supervisors as defined in the Act." 2
Bargaining between the parties began on April 18. In all,
there were some 20 bargaining sessions (if we count meet-
ings in the morning and in the afternoon of the same day
as two meetings, as Respondent seems to do). During the
course of the bargaining, Respondent from time to time
made counterproposals on various contract clauses to the
Union in a piecemeal fashion, setting forth each clause on
a separate sheet (or sheets) of paper. At one time or anoth-
er most, if not all, of these proposals were discussed be-
tween the parties at the negotiations, together with propos-
als made by the Union.
On June 18, following a bargaining session on June 10,
the employees in the bargaining unit began a strike. On
July 12, after three more bargaining sessions, Respondent,
i Respondent filed a motion to strike portions of General Counsel' s brief,
asserting that it was unfair or improper for General Counsel to argue that
Respondent refused to bargain in good faith by engaging in surface bargain-
ing when that theory was not alleged in the complaint Respondent's motion
is, in effect, a reply brief. I shall treat with the legal point hereinafter.
2 During the bargaining between Respondent and the Union, considered
in part hereinafter, Respondent raised some question as to whether the
Union was the certified representative. However, it is noted that the answer
to the complaint admits that the Union is, and has been since March 25, the
bargaining representative of the employees in the bargaining unit set forth
above, which is admitted to be appropriate for the purposes of collective
bargaining within the meaning of Sec 9(b) of the Act.
222 NLRB No. 66
TROJAN STEEL CORPORATION
on the basis that the parties were at an impasse, asserted to
the Union, in a letter dated that day, that it intended to put
into effect certain items in Respondent's "final offer," in-
cluding the wage increase previously offered.
On a number of occasions, notably during negotiations
on May 24, June 7 (afternoon session), September 19, and
December 3, and in a letter dated November 22, the Union
requested Respondent to present its contract offer in a sin-
gle integrated document. In particular, on December 3, the
Union requested such an integrated proposal from Re-
spondent for the purpose of submitting it to the union
membership for a vote on acceptance of Respondent's pro-
posal as a means of ending the strike. Respondent, howev-
er, through its counsel, consistently refused to accede to
the Union's request, asserting that the Union could de-
termine for itself, from the various written proposals pre-
sented by Respondent and from the Union's records, what
Respondent's present proposal was. Respondent counsel's
position was that "if [the Union] did not have any of the
employer's final offer proposals in written form, I would be
happy to provide them to [the Union.]." (G. C. Exh. 8.) 3
The Union thereupon drew together in one document of
approximately 33 pages all of the separate contract propos-
als made by Respondent in writing in the form in which
they had been presented. (G._ C. Exh. 2.) Later the Union
took this material and drew it up in the form of a bargain-
ing agreement. (G. C. Exh. 9.) The two documents are es-
sentially the same, except for typographical errors and
changes in paragraph and section headings, and some vari-
ances noted hereinafter. There is some dispute, or confu-
sion, as to- when these documents were delivered to the
Respondent, but it is unnecessary to resolve this. It is
agreed that both were delivered to Respondent' s counsel.
He certainly had one of them by January 6, 1975, the day
Respondent was notified that the Union had accepted
Respondent's last contract offer and the Union advised
that pickets were being withdrawn. (See letter dated Janu-
ary 6, 1975, to the Union from Respondent's counsel,
Resp. Exh. 2, p. 21, in which he stated, "I have reviewed
generally the documents left with me today . . . and find
numerous inconsistencies and omissions from items that
we had previously agreed upon.") It is further clear that
this material in the form of a bargaining agreement (G. C.
Exh. 9) was submitted to Respondent for signature before
February 6, 1975, when^the parties met and discussed the
asserted inconsistencies and omissions in the proffered
agreement claimed by Respondent during the course of
meetings in the morning and afternoon of that day.
Contract Clauses in Dispute
The initial difficulty in this case hes in ascertaining ex-
actly what clauses Respondent contends were not, but
should have been, included in the contract submitted for
3 At an unemployment compensation hearing on December 4, William
Thayer, an official of Respondent, testified that the Union had been given
Respondent's full and final offer in writing, consisting of "typed copies of
every offer we made," adding, "If the Boilermakers representative was not
competent enough to put the package together from what we gave them,
that's not our fault."
-479
signature, and what clauses were included which Respon-
dent contends should not have been. I have ascertained at
least four different lists constructed by Respondent, which
together contain, as nearly as I can distinguish, approxi-
mately 30 items. Respondent counsel's notes show that he
raised and discussed 23 items with the Union on the morn-
ing of February 6, 1975, and that he discussed 20 items
with the Union in a meeting in the afternoon of the same
day. These latter were confirmed in a letter to the Union
from Respondent counsel, dated February 7. Respondent's
brief mentions about 18 items in the course of a general
discussion, and Respondent's counsel referred to about 25
items during the course of his rather discursive testimony,
many of them in quite general terms.
In addition to the testimony of Respondent 's counsel,
Union International Representative Phillip R. Bartley, and
employee Franklin Lee Tate,4 (G. C. Exhs. 2-and 9) I have
carefully considered in detail Respondent's Exhibit 2,
which consists of Respondent counsel's file memoranda
with respect to the negotations, together with Respondent's
contract proposals attached thereto, consisting of approxi-
mately 175 numbered pages (hereinafter referred to as Re-
spondent Counsel's notes). Reference will be made herein-
after to this material by page number. Reference will also
be made to a_prior bargaining agreement between Respon-
dent and another union (herein called the old contract).
The original detailed objections to the Union's contract
proposal were made by Respondent's counsel on the morn-
ing of February 6, 1975 (Resp. Exh. 2, pp. 15-18). These
are set forth below in quotations, together with my summa-
ry findings and analysis with respect to each (a more de-
tailed analysis would unduly lengthen this decision):
"1. The effective date of the agreement was not June
12." The union proposal provided for an effective date of
"June 10" (Respondent's reference to June 12 is a typo-
graphical error). At the meeting with Respondent counsel
on February 6, 1975, Union Agent Bartley agreed with him
that this was an error and the date should be the date the
document was executed.
"2. The local and the international are held jointly and
severally in the agreement." This is a position which Re-
spondent held very early in the negotiations, but which
Respondent clearly and unequivocally withdrew in the ne-
gotiations on the morning and the afternoon of June 7.
(See Resp. Exh. 2, p. 84, item 6, p. 79 and item 6, p. 86.) It
was nevertheless still stressed by Respondent's counsel in
his testimony with respect to objections to the Union's pro-
posal.
"3. Those employees who had- previously advised the
employer of their, intention to resign and did resign and
withdrew their pension money have waived all rights to
recall." This apparently refers to certain strikers who had
allegedly resigned during the strike in order to obtain mon-
ey deposited in their pension accounts. As such, this pro-
posal was first made on February' 6, 1975, after the Union
had accepted Respondent's last contract proposal. It is also
4 Tate made a very poor impression On cross-examination , in particular,
he appeared to be testifying in accordance with a preconceived formula,
which he applied to almost every question. I am convinced that his testimo-
ny is not reliable and I do not credit it except where it conforms with other
credited evidence as found hereinafter.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted that one of Respondent's contract proposals which
the Union did accept, section 2(a) of the seniority proposal,
does provide for termination of all seniority rights upon an
employee quit, which constitutes a termination of employ-
ment.
"4. Those striking employees who have unconditionally
offered to return to work will be taken back by the employ-
er as needed on a preferential hiring basis but not necessar-
ily based on seniority." This was not, so far as can be as-
certained from Respondent Counsel's notes, ever proposed
by Respondent as a part of the bargaining agreement, nor
was it mentioned in the form set forth prior to February 6,
1975.
"5. The Company did not agree that voluntary with-
drawal of dues check off should be stricken from the con-
tract." However, notes on Respondent's proposal attached
to Respondent Counsel's notes for the October 10 meeting
(Resp. Exh. 2, p. 32) show that Respondent had indeed
made this change. Respondent's counsel agreed to this in
his testimony.
"6. In regard to Article III [apparently referring to
union representation], the employer reserves the right to
have committee meetings on non-paid time." This item is
related to the next following item and is discussed with it.
"7. The duties of the shop committee or steward will not
interfere with his duties to the employer." These items were
brought up, in more or less these terms, by Respondent at
the second bargaining session , on April 30, and Respon-
dent thereafter, on May 8, submitted its only written pro-
posal to the Union on the subject of union representation.
The union proposal incorporates that proposal as origi-
nally submitted. Without repeating Respondent's proposal
here (see Resp. Exh. 2, p. 154), it clearly meets the points
made in these objections.
"8. The grievance procedure proposed was not the one
proposed by the employer." This was made more specific
on the afternoon of February 6, 1975, when Respondent
narrowed its objections to a claim that the Union's propos-
al should have provided for a 5-day limitation on the sub-
mission of grievances in step 1, and a 10-day limitation on
Respondent's response in step 3. General Council Exhibit
9, which was the contract submitted by the Union for sig-
nature, did, in fact, fail to provide any limitation in step I
(for reasons stated below), but, contrary to Respondent,
provided a 10-day limitation in step 3. Respondent's brief
quite inexplicably contends only that the Union erroneous-
ly set a 10-day limitation on the filing of grievances (which
is clearly not the case). In addition to these items,
Respondent's counsel in his testimony complains that the
Union's proposal for step 1 of the grievance procedure
"doesn't make sense." 5
5 The Union's step I in the grievance procedure reads "If any employee
or group of employees believes they have a grievance , they shall first take up
the grievance with his or their forman [ sic] If a satisfactory disposition of
the grievance is not made at this stage , employee may request his steward to
be present within (5) working days." The right of an employee to have his
steward present on request was not part of Respondent's original proposal,
but was agreed to during the negotiations The Union obviously transposed
the 5-day limitation for the filing of the grievance in the first instance (as
proposed by Respondent) to the time period in which the presence of the
steward could be requested . Other than Respondent counsel's testimony,
Union Representative Bartley testified that , at the meet-
ing on February 6, he agreed ' with Respondent that the
time limits counsel claimed were correct and should be
included in the agreement. Respondent counsel's testimony
is confusing; he testified both that the Union did and did
not agree with Respondent's positions on these time limita-
tions. I credit Bartley's testimony.
"9. In regard to hours of work, there was no agreement
that the starting and stopping times of the shift could be
changed by agreement of the parties. The employer re-
serves the right to change these with advance notice to
employees ." The facts concerning this issue tend to become
involved . There appears to be no mention of this issue in
Respondent 's brief. Respondent counsel's testimony some-
times tends to confuse the issue .6
The Union's contract proposal in regard to hours of
work, submitted to Respondent for signature, consists of
three paragraphs. The language of the first paragraph,
which is copied word for word from the "old contract," (as
noted below the parties had agreed to use the language of
the old contract) sets forth the regular workday and the
starting times of the shifts, "unless changed by agreement
between the parties hereto," and the regular workweek.
The second paragraph provides for 4 hours call-in pay,
which the parties had agreed. to. (In fact, Respondent's
brief complains-erroneously-that the Union had omit-
ted this provision.) The third paragraph, which was copied
from Respondent's own proposal, reads as follows:
The employer may alter these hours between 6:00 A.
M. and 5:00 P. M. as business necessaties [sic] dictates.
If the dailey [sic] work hours are changed from the
normal work day, the employee or employees involved
shall be notified the day prior thereto.
The problem here lies in the manner in which this provi-
sion was negotiated. Respondent, on June 6, made a pro-
posal for hours of work which included the exact language
used in the third paragraph of the Union's proposal set
forth above. (Resp. Exh. 2, p. 106.) However , the following
day, June 7, Respondent agreed with the Union's state-
ment that the language should be that of the "old con-
tract." (Resp. Exh. 2, p. 80, item 11, together with item 11,
p. 86), but added orally that "we still wanted the right to
change schedule with prior notice."
Thus the confusion arises from the manner in which Re-
spondent made its proposals. The parties are in basic
agreement as to this provision, as Respondent 's counsel
agreed in his testimony, though he asserts that "it's just a
matter of getting the exact language ironed out." Exactly
what Respondent counsel's language problem may be is
difficult to determine. Since he only objects to the language
from the "old agreement" stating "unless changed by
agreement between the parties hereto," and the Union is in
the record does not indicate that Respondent ever discussed this point with
the Union Indeed, on cross-examination , Respondent stated, "I understood
the step I in General Counsel's Exhibit 9 because I know the background of
it and all the charges that were made."
6 For example , counsel at one point testified that, with respect to this
clause , "the union wanted us to notify the employees on the day before and
we didn't want to be required to do that" However, the record seems clear
that this was not the point objected to by Respondent, and, indeed , the right
of the employees to be notified of changes in advance seems conceded.
TROJAN STEEL CORPORATION 481
agreement, the problem is readily resolved by striking out
those words. In the circumstances, and since the difficulty
was caused by Respondent's own action, it would be un-
conscionable to hold the Union at fault with respect to this
proposal.
"10. On all unexcused absences, for overtime purposes,
the employer reserves the right to require a doctor's ex-
cuse." This will be considered with the next following
point.
"11. On unexcused absences during holiday [week], the
employer reserves the right to require a doctor's excuse."
This and the preceding objection are clearly frivolous. The
Union's proposal contains the only written proposal made
by the Respondent on the issue (Resp. Exh. 2, p. 98): "AB-
SENCES DUE TO ILLNESS The Employer may require
an employee to provide a physician' s statement before re-
turning to work in any absence due to illness." Nothwith-
standing Respondent counsel's testimony to the effect that
some other, oral proposal on the subject had been made to
the Union, no reference to that fact appears in Respondent
Counsel's own notes. There is no reference to this subject
in his brief. Reading the above clause in connection with
the proposed clauses on "Holidays" and "Overtime" leaves
one to wonder why Respondent would have orally sought
other redundant clauses. I find that he did not.
"12. In regard to the bumping proposal, the employer
had proposed that the employee not have the right to arbi-
tration in bumping and that the employee could bump only
into a job he had previously performed." In his testimony
Respondent's counsel agreed that Respondent had indeed
dropped its contention that the employee must have
worked in the job previously. However, he asserted that,
after submitting its original written proposal to the Union
on "Bumping" (which did not refer to Arbitration), Re-
spondent later proposed to add additonal language to its
proposal stating, "The employer's decision herein is not
subject to arbitration." This language does not appear in
Respondent Counsel's notes. The point does seem to have
been raised by counsel during the meeting of February 21,
1975, after the Union had accepted the Respondent's last
proposal. Respondent's last proposal with respect to bump-
ing rights before January 6, 1975, was presented to the
Union on October 10. The Union copied that proposal,
word for word, in its contract proposal.
"13. The assignment or reassignment of employees is
not subject to arbitration." It appears that counsel also
duplicated this objection in item numbered 21, as follows:
"In regard to assignment to classifications add: The assign-
ment of an employee to a classification is not subject to
arbitration. The employer will, however, give union ad-
vanced notice of any change in classification." This lan-
guage nowhere appears in Respondent Counsel' s notes of
the negotiations, though the essence of this proposal occurs
in the notes of the June 10 meeting. However, thereafter, at
the July 10 meeting the Respondent orally proposed the
following with respect to assignment to classifications; "All
new employees will be placed in a classification by the
company at its discretion. All future changes in classifica-
tion will be based on seniority if physical fitness, ability
and attitude in the opinion of the employer are relatively
equal. All subject to the grievance procedure." (Resp. Exh.
2, p. 54.) No later reference to assignment to classifications
appears or is suggested in Respondent's brief. The Union's
contract proposal on this issue, however, which reads, "The
Employer reserves the exclusive right to assign employees
to job classification and move employees from one job
classification to another as business necessities dictate,"
was taken, word for word, from an earlier written proposal
of Respondent. (See Resp. Exh. 2, p. 97.)
It should be noted in the last analysis on this issue that
both Respondent's counsel and Union Representative
Bartley concur in their testimony that at their meeting on
February 6, 1975, it was agreed that Respondent's assign-
ment of employees to classifications was not subject to ar-
bitration, Bartley taking the position that "It's already in
there."
"14. Add to safety: All gloves must be turned in to re-
ceive new gloves." Respondent's counsel testified, in re-
spect to a contract proposal that Respondent furnish em-
ployees safety gloves, that on February 6 Respondent
advised the Union "that we had previously agreed the old
gloves had to be turned in before new ones would be is-
sued. The Union agreed to this change in their proposal
and agreed that the parties had originally agreed to this."
Bartley, on the other hand, testified that this subject had
never been discussed during negotiations, but that the
Union didn't object to it. Indeed, there is no reference to
return of gloves in Respondent Counsel' s notes that I could
find, and Respondent's brief refers to none. Respondent
made one specific proposal to the Union on the issue of
furnishing gloves to employees (Resp. Exh. 2, p. 81), and it
does not provide for the return of gloves by the employees.
I credit Bartley.
Items 15 and 20 both object extensively that the union
contract did not provide that employee refusal to cross
picket lines should be considered a strike under the con-
tract. Early in the negotiations, Respondent did propose
clauses to this effect (Resp. Exh. 2, p. 116). However, as
Bartley testified, Respondent's counsel later withdrew this
and proposed other language. Thus, Respondent Counsel's
notes show that, at the meeting on October 10, he gave the
Union Respondent's written proposal on picket line cross-
ing (a copy of which is attached to the notes) and that the
Union agreed. Comparison of that written proposal (Resp.
Exh. 2, p. 34) and the Union's proposal show that they are
identical? Respondent counsel's testimony on the subject
clearly refers to those meetings after the Union had accept-
ed Respondent's contract proposals, during which' meet-
ings Union International Respresentative Nacey ( Messie in
the transcript) was present.
"16. In regard to strikes and pickets, [in withdrawing its
previous proposal for Union strike liability], the employer
reserves all rights under common law or rules of law or
arbitration to collect from the union damages due to an
illegal strike." However, reference to the Respondent's
notes of the particular meeting, July 10, at which this was
7I rather suspect that counsel may have intended to retain his earlier
proposals as well, but the Union cannot be faulted for accepting
Respondent's written proposal as presented, particularly when Respondent
consistently objects that the Union's proposals vary from the language Re-
spondent proposed
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought up, shows that Respondent did not make this mat-
ter a contract proposal. (Resp. Exh. 2, p. 46.) Respondent's
statement was: "The company withdraws its proposals re-
lating to the union being required to pay the employer for
damages due to an illegal picket (Section 4, Article XX)
but in so doing we do not want this to mean that we in any
way waive our right under common law of arbitration to
collect from the union for damages due to an illegal
strike." 8
"17. In regard to strikes and pickets, ... the arbitrator
shall have the exclusive authority to decide if the employee
or employees involved engaged in striking in violation of
this agreement. The arbitrator does not have the authority
to decide the reasonableness of the discipline or rather (sic)
it was equally or fairly applied." Union Representative
Bartley testified that Respondent's counsel brought this
subject up in the meeting of the parties in early February
1975, but that "it was never brought up in prior negotia-
tions. This was the only time it was ever brought up." So
far as I can determine, there is no reference to this item in
Respondent's brief, or in Respondent counsel's testimony.
"18. In regard to management rights add: This agree-
ment is both the source and limitations of the agreements
between the parties, all policies or practices not specifically
set out herein shall not be binding upon the employer."
The reason for this objection does not appear. The Union's
proposal on management rights, which contains the lan-
guage here alleged to have been omitted, follows
Respondent's proposal. (Resp. Exh. 2, p. 126.) The objec-
tion is not repeated in Respondent's brief, or in Respon-
dent counsel's testimony.
"19. In regard to Article XXI add: There shall be no
limitation placed on the amount of work supervisory per-
sonnel can perform." Beginning with the first meeting,
April 18, the parties had a running dispute over whether
the contract should have a provision permitting supervisors
to do bargaining unit work. In all of these discussions, the
term "supervisor" was used interchangeably with "lead-
men" and the discussions concerned whether leadmen
should be permitted to work (e.g., Resp. Exh. 2, p. 122).
When Respondent submitted its first and only written pro-
posal on supervisors working, on June 6 (Resp. Exh. 2, p.
102), it provided that "the Employer may select from any
source leadmen who shall be working supervisors. There
shall be no limitation placed on the amount of work they
perform." The Union's contract proposal contains this ex-
act language. Respondent's counsel testified, however, that
at the meeting on May 15 he advised the Union that Re-
spondent wanted "no limitations placed on the amount of
work any supervisory personnel can perform," assertedly
explaining that there were other supervisors besides lead-
men who might perform work. This would be more persua-
sive if Respondent had-not thereafter submitted its contract
proposal with the more limited language set forth above,
which the Union accepted. Respondent Counsel' s notes
show that, in meetings as late as July 10 and September 19,
8 In Respondent's brief, however, it is still contended that the Union's
contract proposal was deficient in that it did not include the clause on union
responsiblity (Resp Exh. 2, p. 163) which Respondent admits it had with-
drawn
the Union was discussing the issue in terms of leadmen
working, with no apparent correction from Respondent.
Items 22 and 23. In regard to wage provisions , Respon-
dent contends that the Union omitted from its contract
proposal provisions that Respondent had proposed to the
effect that the wages provided were minimum wages and
Respondent reserved the right to pay above scale, and to
the effect that Respondent reserved the right to grant merit
increases . There seems to be no doubt that Respondent
presented a written proposal to the Union on June 6, pro-
viding that the wage rates in the contract were the mini-
mum rates and despondent reserved the right to pay above
the minimum rate . This proposal was not contained in the
Union 's contract proposal . It is also clear that Respondent,
on several occasions during the negotiations , advised the
Union that it desired to reserve the right to pay merit in-
creases, but did not present a formal written proposal to
the Union on that subject . 9 I do have serious doubts that
Respondent 's proposal reserving the right to pay above the
minimum scale is substantially different from its position
reserving the right to grant merit increases. It is noted,
moreover, that Respondent's counsel, in his letter to the
Union dated February 7, 1975, asserted that at their meet-
ing on February 6, 1975, the Union had agreed to the inser-
tion of Respondent 's clauses on minimum scale and on
merit increases . This is confirmed in counsel 's testimony
and is not denied by Bartley.
At the close of Respondent's discussion of the above
items with the Union on February 6, Respondent 's counsel
advised that there were still "additional items" to be dis-
cussed thereafter . However, counsel testified that this was
stated , not because he actually had additional items to dis-
cuss, but as a matter of caution , in case he found or
thought of additional objections to the Union's contract
proposal submitted to Respondent for signature . There ap-
pear to be about six of these additional objections , none of
which I find have merit and therefore do not require ex-
tended discussion , except in one instance. These latter six
contentions are: (1) that the name of the Union should
have included "AFL-CIO-CLC"; (2) that the Union alleg-
edly failed to provide for 4 hour call-in pay (the Union's
proposal, in fact, did so provide); (3) that the Union failed
to provide for reimbursement of driver expense on the
road ; (4) that the Union failed to provide for meal allow-
ances for workers on overtime ; 10 (5) that the Union
failed to provide that , in order to qualify for funeral pay,
the employee had to attend the funeral and that the last
day of funeral leave would be the day of the funeral;"
9 Respondent seeks to overcome'that oversight by reference to a letter
dated July 12 in which it advised the Union, among other things, that Re-
spondent asserted the right to grant merit increases. I do not consider this a
contract proposal
10 These latter two items were not Respondent 's proposals which the
Union might be privileged to adopt. They were union proposals . Respon-
dent claims that the Union could have determined Respondent 's position
from an interim summary of position made up by Respondent.
Respondent's argument is quite tenuous I find that this summary would not
properly be considered a detailed contract offer.
i i The union proposal, in fact, did require attendance at the funeral Re-
spondent did propose "last day" language on May 8 (Resp Exh . 2, p. 161),
but thereafter submitted a proposal which omitted this language (Resp Exh
2, p. 110) The Union agreed to this and it is contained in the Union's
proposal. Respondent counsel's testimony confirms this To the extent that
TROJAN STEEL CORPORATION
and (6) that the Union failed to provide a special provision
for employees who had already been given wage increases.
There is no contention that the Union did not correctly
submit for signature the exact wage provision which Re-
spondent had proposed. However, as noted previously, Re-
spondent had voluntarily granted the wage increase which
it had proposed to some employees who worked during the
strike. Respondent contends that, if it signed the Union's
contract proposal, it would now be required to give an
additional wage increase to these same employees, and
therefore the Union was obligated to modify the
Respondent's wage proposal to provide for this special sit-
uation. I disagree. The Union was obligated (in the legal
situation here obtaining) to submit to Respondent for sig-
nature the proposal which Respondent had offered to the
Union. If the Union had modified the proposal, it would
be subject to objection. What has happened here is that the
Respondent has taken action which raises a question, not
as to the terms of the agreement, but as,to Respondent's
obligation under the agreed terms of the contract. The
Union is not required in this situation to agree as to the
nature of Respondent's compliance with this agreement,
only with respect to the terms of the contract.
Analysis and Conclusions
The Union in this case, after about 8 months of negotia-
tions and a 6-month strike, determined to accept
Respondent's last contract offer and end the dispute. This
became difficult to accomplish because Respondent had
made its proposals throughout the negotiations on a piece-
meal basis and had adamantly refused to submit an inte-
grated contract proposal. When the Union finally assem-
bled Respondent's various proposals into an integrated
document which the Union accepted and submitted to the
Respondent for signature, the Respondent refused to exe-
cute it, contending some items agreed to during negotia-
tions were not contained therein, and several items includ-
ed in the contract submitted for signature were not agreed,
or not in the form submitted. In all, Respondent raised
some 30 objections to the contract.
The General Counsel contends that the bargaining
agreement submitted was complete, that the clauses con-
tained therein were those proposed by Respondent, as
modified in the negotiations, and that Respondent, there-
fore, was obligated to sign the contract. The complaint al-
leged that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to sign the agreed-upon contract. The
General Counsel further contends that Respondent acted
in bad faith in refusing to execute the document. However,
as urged by Respondent, since this was not alleged in the
complaint, or fully litigated as a violation of the Act, I am
precluded from finding that Respondent violated the Act
by bad-faith bargaining. Respondent further appears to
contend that I am limited in this case to comparing the
items proposed and agreed by Respondent with the
counsel's testimony indicated that "last day" language was thereafter agreed
to by the parties, Respondent Counsel's notes do not bear him out and this
is not credited.
483
Union's proposed bargaining agreement, and, if the two
are not identical, I must dismiss the complaint. See Rud-
nick Land & Cattle Co., 159 NLRB 477 (1966). For reasons
set forth below, I do not agree that my responsibilities are
so mechanistically limited.
I have, as heremabove set forth, carefully considered the
approximately 30 deficiences Respondent asserts in the
bargaining agreement submitted, prior to February 6, 1975,
by the Union to Respondent for signature. I find that, of
Respondent's various objections, there are only three pro-
visions in the submitted contract which might reasonably
be said to differ from Respondent's prior proposals (and
thus not agreed to): (1) The effective date of the agree-
ment submitted by the Union was incorrect; (2) two num-
bers in the grievance procedure were incorrect and one
clause in the grievance procedure was inartistically worded
(but admittedly understood by Respondent); and (3) the
Union failed completely to include a clause proposed by
Respondent reserving the right to-pay wage rates above the
minimum scale. However, the significant point with respect
to these items is that, to the extent that Respondent ad-
vised the Union of its objections on February 6 (it is not
clear that Respondent advised of the inartistic wording of
the grievance procedure), the parties at their meetings on
that day discussed these objections and the Union acceded
to the Respondent's position on each of these clauses. The
Union similarly acceded to certain other objections raised
by Respondent on February 6, including several provisions
proposed by Respondent for the first time on that occa-
sion.12
Respondent seems to take the position, as has been not-
ed, that these discussions and agreements on February 6
have no bearing on its obligation to execute the union pro-
posal, arguing that the Board may only consider the docu-
ment as submitted by the Union. This is manifestly wrong.
This position would so exalt form over substance as to
distort the purposes for which the Act was enacted. The
purpose of the Act is to achieve industrial stability by en-
couraging the processes of collective bargaining and the
execution of agreed-upon bargaining contracts". Here, the
record shows, and I find, that Respondent and the Union
were in agreement on February 6, 1975, on the terms of a
collective-bargaining contract. The mere fact that this re-
quired some additions or alterations in the agreement sub-
mitted (in some instances merely the change of numbers),
in the circumstances of this case, does not relieve the par-
ties of the obligation to execute the bargaining contract
agreed to. See International Union of Operating Engineers,
Local 525, AFL-CIO (Clark Oil & Refining Corporation),
185 NLRB 609 (1970). The proliferation of Respondent's
objections to the, Union's proposal, including items which
Respondent had previously withdrawn from negotiations,
items on which the Union had, in fact, accepted
Respondent's proposals, items advanced for the first time
after the Union's acceptance of Respondent's prior con-
tract proposal, and at least one, item which Respondent
had never advanced as a contract proposal, may not serve
12 Among those provisions to which the Union acceded on that date were
clauses pertaining to Hours of Work and Assignment to Classification pro-
posed by Respondent, notwithstanding, as has been found, that the Union
was not at fault in its original proposals.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to becloud the fact that as of February 6, 1975, the parties
were in agreement on the terms of an agreement , and that
Respondent violated Section 8(a)(5) and (1) of the Act by
failing to execute the contract as agreed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material, the Union has been and contin-
ues to be the exclusive representative of Respondent's em-
ployees in the following appropriate bargaining unit within
the meaning of Section 9(a) of the Act:
All production and maintenance employees employed
by the Respondent at its Charleston, West Virginia
plant, including welders, truckdrivers, machine opera-
tors, electricians, janitors, mechanics, maintenance
employees, helpers, laborers, tool room employees,
layout employees and door shop employees, but ex-
cluding all office clerical employees, salesmen, engi-
neers, and all other professional employees, guards
and supervisors as defined in the Act.
4. By failing and refusing to execute the collective-bar-
gaining contract between the Union and Respondent, as
agreed upon on February 6, 1975, Respondent has engaged
in and is engaging in an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act, which unfair
labor practice affects commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has unlawful-
ly refused to bargain with the Union by failing and refus-
ing to sign a collective-bargaining contract agreed to be-
tween the Union and Respondent, I shall recommend that
it cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 13
The Respondent Trojan Steel Corporation , Charleston,
West Virginia , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Local 667, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths , Forgers and Helpers,
AFL-CIO-CLC, the Union herein, as to wages , hours, and
other terms and conditions of employment covering the
appropriate unit, by refusing to sign the collective-bargain-
ing contract on which Respondent and the Union have
agreed.
(b) Engaging in any like or related contract in deroga-
tion of the statutory duty to bargain in good faith.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request by the Union forthwith execute the
contract upon which agreement was reached with the
Union on February 6, 1975, completed copies of which
shall be furnished by the Union.
(b) Post at its operations at Charleston, West Virginia,
copies of the attached notice marked "Appendix." 14 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 9, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any material.
(c) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
13 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
14 In the event that the Board's 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 Pursuant
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
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in good
faith with Local 667, International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths, Forg-
ers, and Helpers, AFL-CIO-CLC, by refusing to sign
the collective-bargaining agreement to which the
Union and the Company agreed.
WE WILL NOT engage in any like or related conduct in
derogation of our statutory duty to bargain in good
faith with the Union.
WE WILL, upon request by the Union, forthwith exe-
cute the collective-bargaining contract upon which the
Company and the Union agreed.
TROJAN STEEL CORPORATION