United Steel Workers; Local 2556, Steelworkers

National Labor Relations Board - Board Decisions

Aug 19, 1971

192 N.L.R.B. 773 (N.L.R.B. 1971)

UNITED STEELWORKERS; LOCAL 2556, STEELWORKERS
United Steelworkers of America , AFL-CIO; Local
1556, United Steelworkers of America, AFL-CIO;
Local 2969, United Steelworkers of America,
AFL-CIO and Lynchburg Foundry Company, Divi-
sion-of Woodward Iron Company, a Division of the
Mead Corporation . Case 5-CB-993
August 19, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On March 15, 1971, Trial Examiner Arthur Leff
issued his Decision in the above-entitled proceeding,
finding that Respondents had not' engaged in the
alleged unfair - labor practices 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 "to the Trial Examiner's Decision
with supporting briefs. Respondents filed a brief and
a reply brief.
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 and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that thee complaint herein be, and it hereby is,
dismissed in its entirety.
1 Both the Respondents ' and Charging Party's requests for oral
argument are hereby denied, as m our opinion, the record in this case,
including the exceptions and bnefs, adequately presents the issues and
positions of the parties. ,
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Trial- Examiner: This case, heard at
Washington ; D.C., on December 17, 1970, pursuant to a
charge filed by the Charging Party (herein called the
Company) on February 19, 1970, and a complaint issued
192 NLRB No. 110
773
October 7, 1970, presents essentially the following ques-
tion : Did the Respondents , in January 1970, violate
Section 8(bX3) of the Act, as alleged, by submitting to a
ratification -vote of the Union members of , two collective-
bargaining units, voting together as one group, certain
wage increase proposals which the -Company had made
separately to the respective bargaining representatives of
each of these bargaining units, and by rejecting both of
these proposals , because they had not been approved by, a
majority of the pooled votes of both unions? The
Complaint alleges, and the Respondents deny, that an
object and an effect of the Respondents ' aforesaid action
was 'to require the Company, without its consent, to
bargain with the Respondents collectively in a single
combined bargaining ,unit, rather than separately with the
respective recognized representatives in - each of the two
units as theretofore established. ,
Upon the entire record in the case, my consideration of
the briefs filed by the General Counsel, the Charging
Party, and the Respondents, and from my -observation of
the witnesses , I make the following:
FINDINGS OF- FACT AND CONCLUSIONS
1. THE BUSINESS OF THE 'COMPANY
The Company, Lynchburg Foundry Company, a subor-
dinate division of The Mead Company, an Ohio corpora-
tion, manufactures machine parts and related . iron prod-
ucts at foundries located in Lynchburg, Virginia, and
Radford, Virginia. The Company annuallyships ,,from its
Lynchburg and Radford plants to places outside the
Commonwealth of Virginia goods , and materials valued in
excess of $50,000. The Respondents admit, and I find, that
the Company is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondents, United Steelworkers of America,
AFL-CIO, (herein referred to variously as the Steelwork-
ers, USWA, or the International);, Local 2556 of the
Steelworkers (herein, sometimes referred to as the Lynch-
burg local); and Local 2969' of the Steelworkers (herein
sometimes referred to as the Radford local ) are labor
organizations within the meaning of Section ,2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company has two plants separated by a distance of
100 miles, one at Lynchburg, Virginia, where it employs
about 2,000 production and maintenance employees, and
the other -at Radford, Virginia, where it employs about
1,500 production and maintenance employees. At Lynch-
burg, the Company manufactures mainly ductile iron
castings, ranging in weight from 2 to 1,000 pounds,
primarily for the automotive, refrigeration, and machine
tool industries. At Radford, the Company makes mainly
ductile pressure pipe for water and gas transmission, large
castings, ranging from 2 to '50 tons, for the machine tool
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
industry, and small fittings and castings, ranging from 2 ,to
400-pounds ,- for the automotive industry. Both plants
perform ,parallel and interchangeable work with respect to
one substantial segment of the - company's total manufac-
turing- operations-the production of shed castings. Close
to 500 -employees are engaged in such production at
Lynchburg, and at Radford, where the Company added a
shell foundry ; in 1966, because of ,the lack of expansion
space at Lynchburg, there are now about the same number
of employees engaged in that work. The shell foundries at
both, plants have -similar machinery and equipment -and
their employees possess similar skills and perform similar
functions. When, faced with unbalanced workloads at the
two, foundries, it• it not an uncommon practice for the
Company' to,move unfinished shell castings from one
foundry to the-,other, for completion of customers' orders.
The Company's production and maintenance employees
at , both its Lynchburg and Radford plants have been
organized by the Steelworkers for more than 25 years, with
those at. -Lynchburg- grouped under Steelworkers' Local
2556 and those at Radford-under Steelworkers' Local 2969.
From the outset of organization separate bargaining units
were established at each, of these plants. Board-conducted
elections, pursuant to consent agreements, were conducted
in stipulated" production and maintenance bargaining units
at Radford in 1943, and at Lynchburg in 1944, resulting in
the certifications of Steelworkers Local 2969 (then known
as 2669) at'Radford and of the Steelworkers (without any
Local identification) at Lynchburg. The Company and the
Steelworkers have siince maintained a continuing contrac-
tttal "relationship with respect to each of these units by
entering', into ' successive collective -bargaining contracts
covering, separately the, Radford and Lynchburg plant
units, 'the latest of'which, made in May 1970, are now in
full force and effect.
Although Local 2969 alone was designated as the
exclusive bargaining agent for the Radford unit in the 1943
election, and the Steelworkers alone was designated as the
exclusive bargaining agent for the Lynchburg unit in the
194 election, it.appears from the contracts which are in
evidence, as well as from'the`Company's course of dealings
with the Respondents, as described below, that in point of
fact the Company has recognized and dealt with both the
Steelworkers and Local 2969, jointly, as, the bargaining
representatives ,of the `employees in the Radford unit, and
with both the Steelworkers and Local 2556, jointly, as' the
bargaining representative of the employees in the Lynch-
burg unit.'
Historically, collective-bargaining negotiations have
1 In evidence are the latest two collective-bargaining contracts and the
latest (separately negotiated) pension and insurance agreement covering
each of the units. Thecollective-bargaining agreements each state in-their
recognition clause,that " he Company recognizes the Union as the
exclusive bargaining agency for its employees" in the covered unit. The
term "Union" is earlier defined-in the Lynchburg contract as referring to
USWA, Local' 2556, and i$-the Radford contract as referring to USWA,
Local 2969 . However, the written agreements on their signature pages
explicity, ,identify.the contracting parties as being the Company and the
Steelworkers. This is in conformity with the Steelworkers' constitution
which provides in Article XVIi, that "[t]le International Union shall be
the-contracting party 'in` all collective bargaining agreements and all such
agreements shall be signed by the International officers." Each of the
agreements in evidence is executed on behalf of the Steelworkers not only
by its top officers , but also by the Steelworkers' staff representatives who
been conducted separately for each of the bargaining units.
Until 1967, negotiations .were ,conducted -long thefollow-
ing lines. The Company was representetl .i the separate
negotiations by its general manager and .personnel director,
as well as by various officials from the .plant whose
contract was being negotiated. "'Erie -Company represbnta-
tives met with a union bargaining team composed" of the
Steelworkers' subdistrict director, the Steelworkers' staff
representative assigned to the unit involved in the
negotiations, and the employee negotiating committee
designated by 3the' Local at the plant involved. The
Steelworkers' subdistrict director, whose jurisdiction ex-
tended to , both`units, headed -'each -of the '- separate unit
bargaining committees and 'acted as its ' principal spokes-
man.-Upon completion-of the negotiations, the Company's
final proposal was' customarily submitted to 'the Local's
membership for °a ratification vote. This was done, though
such submission has- never been required either by the
Steelworkers' constitution or by agreement ofthe negotiat-
ing parties. If the Company's final.proposalwas approved
by , the Local's membership, a, formal contract was
prepared for,signature. As.noted above,, the Steelworkers'
constitution requires that all agreements shall be signed by
its International officers . The contracts were drawn to
make the Company ` and the 'Steelworkers 'the signatory
parties thereto. They were signed on behalf of the
Steelworkers by its International officers, by the Steelwork-
ers' subdistrict-director, and representatives who participat-
ed in the negotiations, and by the Local's-, president, and
members of-the Local's negotiating committee. Usually,
however, the Company did not wait for the signatures of
the International officers, but would put the contract's new
benefits and provisions immediately into effect upon
notice of ratification by the , Local's membership.
In 1967, the earlier practice of holding, entirely separate
meetings with the union bargaining committees` in the two
units was altered somewhat Negotiations were scheduled
that year for new contracts in both units to replace the
ones that were _. to_,expire on April 30, 1967. Before
negotiations began, the Steelworkers requested that the
negotiations be conducted at a joint meeting with the
representatives of both the Radford and Lynchburg Locals
present. The Company refused. When the Company
negotiators subsequently arrived at a- negotiating meeting
scheduled for-the Radford bargaining unit, they found
present there the Lynchburg bargaining , committee as well
as the Radford committee. The Company representatives
walked out, refusing to participate in any discussions while
both bargaining ''committees were present. This ` led to the
participated in the negotiations, by the president of the Local -concerned,
and by the members of that Local 's bargaining committee. Further, the
term "Union" as used in certain other'sections of the agreement, such, as
those relating to the checkoff and grievance procedures , can only be read
in context as reflecting a contractual intent to encompass within the
meaning of that term both the USW4 and the Local involved as an
integrated unity. Support for that construction is also to be found in the
pension and insurance agreements in evidence . These agreements, which
are executed in the same manner as the collective -bargaining agreements
referred to above, recite that they have been entered into between the
Company and the Steelworkers `,`for itself and oni behalf; of the employees
in the collective bargaining unit under Local Union: No. 2556'[29691
described in . , the collective bargaining agreement between the
Company and the [Steelworkers' I Union." I
1,
UNITED STEELWORKERS; LOCAL 2556, STEELWORKERS 775
filing with the Board . of Section 8(a)(5) charges by the
Steelworkers and 8(bX3) charges by the Company. The
Board's Regional Director , issued a complaint on the
Steelworkers' charges (in Cases 5-CA-3757 and
5-CA-3758), but refused - to issue a complaint on the
Company's charges , explaining in his letter of dismissal
that his investigation disclosed that the Union was merely
seeking to use the same negotiators at both plants and not
to force joint negotiations covering both units . Before-the
Regional Director''s action, however, an agreement was
reached between the Steelworkers and the Company for
the resumption of negotiations in both units . The Steel-
workers were to be allowed to designate not more than 4
Lynchburg, employees to attend Radford bargaining
sessions as observers but not as participants , and the same
conditions were to apply to the attendance of Radford
employees at Lynchburg bargaining meetings . Negotia-
tions were conducted in both units on that basis,
agreement was soon reached on the terms of a new 3-year
contract for each bargaining unit, effective May 1, 1967,
and, following ratification by the membership of each of
the Locals voting separately, the revised provisions of the
new contract were pout into effect . Thereafter, a memoran-
dum of agreement was entered into by the, Steelworkers
and the Company, in which the'Company agreed that in all
future negotiations it would not protest the Union's
selection of the persons who would constitute its negotiat-
ing committee at either plant, and both parties undertook
to request the withdrawal of their respective charges
pending before the Board. On the basis of that agreement,
the"Regional Director withdrew the complaint issued in
Cases 5-CA-3757and 5-CA-3758.
The next round of negotiations took place in early 1969,
when the separate pension and insurance ' agreements
covering the Lynchburg and Radford plants, respectively,
came up for renegotiation .2 'Prior to the commencement of
these negotiations , the Steelworkers requested , and the
Company agreed, to have negotiations for the two
contracts covering the separate units conducted simultane-
ously at one location ' and with union negotiating commit-
tees composed of the same individuals ' representing the
Lynchburg and`Radford units .3 The Company, however,
conditioned its consent on the understanding that this was
not -to be regarded as setting a -precedent for future
collective-bargaining negotiations . The negotiations, con-
ducted in this manner, resulted in two separate but
identical contracts, one for each unit4 In this instance, as
had also been true on some other occasions in the past, the
contracts were approved and executed without prior
submission to the Locals' memberships for ratification.
B. The Events Directly in Issue
The last mid-term wage increase provided for in the 1967
2 The pension and insurance agreements have traditionally covered
different periods than the collective-bargaining contracts and have been
separately negotiated.
3 In making its request, the, Steelworkers pointed out that a , similar
procedure had been followed in the negotiations for the 1966 pension and
insurance agreements. It made clear , however, that it was not insisting on
that procedure.
4 The 1966 pension and insurance agreements for the respective units
were also identical in their terms and provisions . The same appears to be
Lynchburg' and Radford contracts was to have become,
effective May 5, 1969, but was advanced by agreement to
November 12, 1968, leaving no further wage increase in
prospect until after the contracts' common expiration, date,
April 30, 1970. In October 1969, Warren Wilkerson, the
president of the Lynchburg-Local, in a telephone talk with
William S . Williams, the Company's general manager,
directed the latter's attention to certain problems that had
arisen in the plant because the Company's wage rates no
longer measured up to prevailing area standards for
comparable plants. Williams agreed: to meet with Wilker-
son and others from the Lynchburg Local, to discuss the
situation. At the meeting, held on October 31, Wilkerson,
inquired whether the Company would give consideration
to a wage increase prior to the expiration of the then
current contract. Williams 'agreed to take Wilkerson's
request under advisement and to discuss ' it with-other-
members of management. There the matter rested for ',the
next two months.
In early January, 1970, Williams contacted W. J.
Anderson, the Steelworkers' staff representative assigned
to the Lynchburg bargaining unit. Williams' told Anderson
that the Company was now ready to-make'a substantial,
wage increase offer , ro 'ded that the term of the existing
contract was extended without any other, changes for an
additional year beyond its April 30, 1970, expiration-date.
Williams at the same time also told Anderson that the
Company had not received any wage increase request from
Radford and stated that the Company was prepared to
make the same offer to the Radford employees if such 'a
request was received. Later thatevening, Williams received
a telephone call from William Boothe, the Steelworkers'
staff representative for the Radford bargaining unit.
Boothe, indicated that he wanted Radford included in any'
offer to be made, and asked whether the Company would
be willing to make its offer jointly to the. Lynchburg and
Radford negotiating groups . Williams was willing to do so,
and a meeting was arranged for January 14,' 1970.
The union representatives at the meeting on January 11
were headed by R. E.-Starnes, the Steelworkers' subdistrict
director. With him were the Steelworkers' staff representa-
tives for the Lynchburg and Radford 'plant units and, the
bargaining•committees of the two Locals.
At this -meeting the Company submitted in specific
terms its separate but identical proposal to each bargaining
unit . The proposal was for a wage increase of 30 cents an
hour across-the-board, conditioned upon extension "of the
existing contract's duration for one year to April 30, 1971,
without other changes. There was very little discussion of
the wage offer ; the remainder of the meeting was taken up,
mainly with the union representatives' unsuccessful efforts
to have the Company discuss other ' current problems, the,
settlement of some of which would be delayed if 'the
true, with relatively minor exceptions, of the separate collective=bargaining
contracts covering the two units here involved , at least those negotiated
since 1967, which are in evidence. Comparison discloses substantial identity
as to almost all contract items, including, inter alia, expiration dates,,wages,
premium and penalty pay , shift differentials, holidays, vacations, and.
grievance , procedures . Discernible differences are-to be found only-in the
seniority provisions, the Lynchburg contracts containing several provisions
relating to bumping rights on layoffs and departmental seniority rights that
are not contained in the Radford contracts.
776 DECISIONS `OF NATIONAL LABOR RELATIONS BOARD
contracts were extendedas proposed by the Company. The
union representatives expressed no position, one way or
the other, on whether they considered the Company's
conditionAl wage increase an acceptable one. When the
meeting concluded, the union representatives stated only
that they would take the proposal to their membership and
let them vote on it. They did not, however, commit
themselves, to accept the proposal if approved by the vote
of the membership, leaving- open their option in that
respect . Nothing was said about the manner in which the
membership vote-would be taken.
Earlier, however, the union representatives had deter-
mined among themselves to have a pooled ratification, vote
on the Company's proposal. During a recess of the meeting
after the Company had submitted its wage proposal, the
union representatives held a caucus to consider, among
other things, what effect the proposal's contract extension
condition might have. Starnes "told the committeemen that
the Company's offer called for caution, since there was a
possibility that one Local might accept the proposal while
the other rejected it. Should that occur, Starnes pointed
out, it would result in obliterating the common expiration
dates then contained in the two contracts. Different
expiration dates,, he emphasized, would weaken union
bargaining strength, at each plant, as it would enable the
Company in the, event of a strike at one plant to starve out
the employees at the struck plant by moving orders to the
plant not on strike. As a means of avoiding any risk of split
expiration dates, Starnes suggested that the membership
votes of both. Locals on the-question of approval of the
Company's offer, be pooled and that the combined. vote
alone be considered as reflecting employee desires on the
Company's, wage proposal. Following discussion of
Starne's suggestion, the members of the Lynchburg and
Radford bargaining committees were individually polled to
determine whether they agreed with Starnes' suggestion.
The result-was a unanimous one to adopt that suggestion.
The decision to pool the membership votes of both Locals
was a departure from the past practice of the Locals to
have membership votes on Company contract proposals
separately, tallied for each Local.
Several days after the January 14, 1970, meeting, Locals
2556 and 2969, acting in conjunction with the Steelworkers,
submitted the Company' s wage -increase proposal to a vote
by the members of each Local. Before the vote was taken,
copies of the Company's proposal were distributed to the
members, of each Local and Local membership meetings
were , held at which the pooling arrangement agreed, upon
by the committeemen on January 14 was explained. After
the vote, the ballots from each plant were taken to a
midway point where they were opened and counted. The
result : rejection of the Company's offer by a vote of 722 to
503, Following the count, the Company was notified of the
rejection of its offer.
No further effort was thereafter made by the Steelwork-
5 With respect to the contracts negotiated in May 1970, the record , notes
only that they were submitted to a combined vote. It does not reveal what
new provisions of the contracts
, '
if any, the employees were asked to vote on,
nor does it indicate whether or not the -Respondents had any special reason
for submitting these contract proposals to a combined vote.
6 Although the vote taken is styled in the complaint as a "ratification"
vote, and will similarly be referred to here for purposes of convenient
ers or either of the Locals to discuss wage increases until
negotiations began in March ,for new contracts to replace
the contracts expiring on April 30. The .1970 contract
negotiations followed the procedural format of the 1967
negotiations: the negotiations were conducted on alternate
days at Lynchburg and at Radford, with discussions at
Lynchburg confined to Lynchburg unit matters and those
at Radford confined to Radford unit matters, and with the
bargaining committees of both locals present at all
meetings,-but each participating actively only at meetings
involving its own unit. When negotiations were concluded
in May for the 1970 contracts, the Company's final
proposals were submitted to the memberships of each local
for ratification, and, as in January, the votes of both Locals
w e r e pooled b e f o r e they w e r e counted. This t i m e , - a
majority voted for acceptance of the Company's contract
proposals. It is not 'charged in this case that the combined
ratification vote in' May was violative of the Act .5
C. Analysis, and Conclusions
The sole question in this case is whether'the Respondents
violated Section 8(bX3) when they submitted the Compa-
ny's January 1970 wage increase proposal, separately made
to the Lynchburg and Radford bargaining units, to a
"ratification" vote by, the members of both units voting as
a groups The complaint alleges that an "object". and
"effect" of the Respondents' action was to require the
Company to bargain with the Respondent in -a single
combined bargaining unit rather than separately in each of
the two established units. There is' nothing in the record,
however, to indicate that the Respondents' conduct had
any such actual effect; to the contrary the record
affirmatively shows that in subsequent negotiations the
Respondents continued to deal with the Company on the
same separate unit basis as before. As for the alleged
unlawful object, it appears to- be the General Counsel's
position, as reflected at oral argument and in his brief, that
this is inherent in the very nature of, the conduct
complained of, and is not a matter for independent, proof.
The General Counsel argues basically ,that since the pooled
ratification submission was admittedly intended to pre-
clude acceptance of the Company's proposal by either, unit
unless accepted by both, and made approval, or rejection
by one unit possibly contingent upon the desires of the
employees in the other unit, the Respondents' conduct.
must be found' unlawful per se, as being in derrogation of
their statutory obligation to represent employees and to
bargain with the Company on a unit-by-unit basis,
adhering to established unit lines until changed by the
Board or with employer consent.
The Respondents urge by way of defense: (1) that union
ratification, procedures are matters solely for union
concern and are not "cognizable" under the Act7 and (2)
that even if deemed subject to Board scrutiny, the pooled
identification, it is noted that the use of that term is not accurate in a strict
legal sense , since, as appears from the facts found , there was no prior
acceptance by the union negotiators, even on a tentative basis, of the
Company's wage increase proposal.
7 Union constitutions vary with regard to their requirements for
membership ratification of union contracts negotiated by local unions.
Many, including that of the Steelworkers , contain no such requirement. Of
UNITED STEELWORKERS; LOCAL 2556, STEELWORKERS 777
ratification procedure utilized by the Respondents was
lawful under the Act since it was designed to serve
legitimate union objectives directly relaited to the interests
of employees in each of the two separate bargaining units.
Board precedent appears to support the proposition
stated by the Respondents in the first count of its defense.8
Perhaps this, should end the matter. However, none of the
cited cases involved a factual situation similar to the one
here, and it is at least arguable that the non-scrutiny
principle for which the cited cases stand should not be
expanded to a case where, as here, the challenged form of
ratification procedure is alleged to be inherently at war
with statutory objectives. For that reason, and because I
am persuaded that the Complaint must in any event be
dismissed , essentially on the ground stated in the second
count of the Respondents' defense, I do not pass on the
first count, but rest my decision in this case solely on the
considerations set out below.
As a starting point, it is important to bear in mind the
close -community of interest that exists between the
Lynchburg and Radford bargaining units . Thus, as has
been shown above, the employees in- the two units work for
the same employer at plants which geographically are not
remote; to a substantial extent they are engaged in the
manufacture of the- same products, and have overlapping
work functions and similar skills; and they are members of
the same union. Though separate unit lines have always
been formally observed in the conduct of negotiations, the
same individual has acted as chief spokesman for the union
bargaining teams in the two units, and this has been true
also of his counterpart on management's side of the
bargaining table. If only from fact last stated,.an inference
appears clear that there must have been substantial, and
expected, coordination with respect to bargaining positions
in the two units, both on the part of the Union ands on that
of the Company. And, this is confirmed by the fact that, at
least in recent years, the separate contracts negotiated for
the two units have been virtually identical in their
substantive provisions. The Company's own recognition of
the close community of interest of the two units, and of the
consequent desirability of parallel treatment for both, is
most vividly illustrated by its own action in January 1970.
It will be recalled that when the Company became ready to
respond to the request- for a wage increase made on behalf
of the Lynchburg employees, it literally invited the
Steelworkers to make a similar request on behallf of the
Radford employees, and then quickly agreed to present its
wage increase proposals simultaneously to the representa-
tives of both units at a joint meeting. ,
The relationship between the two units just described
lends force to the Respondents' contention I that the
employees in each of the two units had a substantial and
direct interest both in continuing the parity that had been
the national union constitutions that do, some call for ratification by
"members affected" but most refer simply to ratification by the "local
membership." When the total membership is employed under a single
contract this would appear to be a distinction without a difference, but the
distinction may be important (and under the General Counsel 's position in
this case may have potential legal significance) where a local negotiates
separate contracts for different segments of its membership , those, for
example, employed by different employers or in different bargaining units.
See, Lahne, Union Contract Ratification Procedures, 91 Monthly Labor
Review, No. 5, p. 7.
achieved in wage scales and in maintaining the common
contract expiration dates that had been established for the
two units. Thus, with wage scales no longer identical, there
was a conceivable risk that the Company might be
motivated to transfer work to the lower scale plant. More
important, however, with different expiration dates, the
economic power of each of the units would be substantially
reduced since the Company would then be in a position in
the event of a strike to transfer some of its work from the
struck plant to the other. The latter consideration was
specifically recognized in United States Pipe and Foundry
Company v. N.LRB., 298 F.2d 873 (CA. 5), as providing
legitimate justification (consistent with, the Act's require-
ments for separate unit bargaining) for joint insistence
upon common contract expiration dates by representatives
of several plant units engaged in separate bargaining with
an employer. In that case, the question before the Court, in
its own words, was "whether by prearrangement among
themselves, three unions, certified ' bargaining representa-
tives of three separate bargaining units, simultaneously
negotiating separate contracts with , the same employer,
may insist as a condition to agreement that all three
contracts under negotiation shall expire on the same
common date." The Court answered affirmatively, explain-
ing:
... viewed realistically, a common expiration- date of
all three contracts had a vitally important connection
with the "wages, hours and other terms and conditions
of employment" of the employees - at each plant.
Without a common expiration date, any union striking
for a new contract might have to "bail with a sieve"
while the employer shifted its production - activities to
the other plant or plants . With a common expiration
date, it is obvious that each union might be able to
negotiate a more advantageous new contract for the
employees represented by the Union.
s r • s a
In such a situation ... it seems to us that the
importance of collective bargaining on questions
affecting "wages, hours, and other terms and condi-
tions of employment" overrides the apparent expansion
of the scope of the bargaining unit. That expansion is
more apparent than real, for the very real, hard
problem faced by each of the three unions, acting as
the exclusive representative of the employees in its unit,
is that a common expiration date for all three contracts
vitally affects the ability of each union separately to
bargain.
In my view, the reasoning of the Court quoted just above
controls decision here. It is evident `that the only way the
Respondents could maintain common expiration dates for
8 See, North Country Motors Ltd, 146 NLRB 671, 674; M & M
Oldsmobile, inc., 156 NLRB 903, 905-906; Roesch Transportation Co., 157
NLRB 441, 446-447. The case which the General Counsel cites as authority
to the contrary, Los Angeles Mailers Union No. 9 (Dow Jones & Ca, Inc),
155 NLRB 684, is not in point. In that case there was no need for the Board
to consider or pass on the validity of the ratification procedure involved,
since the sole issue before it was whether the union delayed submission for
ratification of the terms of a contract earlier agreed to by its negotiators in
order to gain time to accomplish other purposes found unlawful by the
Board.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Lynchburg and Radford bargaining units, when
confronted with the Company's January 1970 conditional
wage proposals, was, through a common response to the
Company's proposals by both units. As the record shows,
the representatives ' of each of the units decided on the
technique of a pooled ratification vote to assure that result.
Their decision was motivated by precisely the same
considerations that led the Court in United States Pipe &
Foundry Co. to' conclude that the prearranged insistence on
common expiration dates by the 3 unions- in that case
served a lawful union purpose that was directly related and
important to terms . and conditions of employment for
employees, within each of the units there involved If the
prearranged conditioning, of agreement by the union in
U. S. Po and Foundry upon common expiration dates for
the several separate units there involved was for a lawful
obJective,.and served a statutory unit purpose, as the Court
held in that case, a fortiori, it seems to me, the same is true
of the determination of Respondents in this case not to
accept the Company's wage proposals, unless this could be
done without rupturing future simultaneous bargaining.
A determination to that effect, as the record also shows,
was actually, made at the caucus of the union representa-
tives held during a recess of the meeting at which the
'Company presented' its proposals. The determination was
specifically concurred in, not only by the Steelworkers'
representatives, ' but also by the Local representatives of
each of the units. The -Steelworkers and Local 2556, as the
designated' joint representatives of the Lynchburg unit, and
the Steelworkers and Local, 2969, as the designated joint
representatives of - the Radford unit, were statutorily
authorized' on behalf of the units they respectively
represented to assess the Company's proposal and to
accept orreject it on the basis of their own judgment of
what was in the best-interest of the represented employees.
Under the Steelworkers' constitution their authority to do
so was subject only to the limitation that negotiated
contracts required- the approval of the International
officers, but such approval appears from past experience to
have been 'perfunctorily granted as a matter -of course
Where. a contract was agreed to by the Steelworkers' staff
representatives involved in the negotiations. The Respon-
dents were under no obligation by reason of the Steelwork-
ers internal requirements to submit Company proposals to
0 See, North Country Motors, Ltd, supra, at p. 674.
io -Cf. N.L.R.B. v. Wooster Division of Borg Warner, 356 U.S. 342. One of
the questions before the Court was whether an employer could insist during
bargaining on a,contractual provision which would require ,a secret ballot
vote among all unit employees on the employer's last offer before the union
could strike. The Court ruled the, proposed "ballot" provision to be a
nonmandatory subject for bargaining, explaining, at` p. '349-350-
The "ballot" clause... relates only to the procedure to be followed by
a vote of the members of the represented units, and no
such obligation is, of course, imposed by the Act.9 It is true
that the practice - in the past had been for the union
negotiators of each plant bargaining unit,, upon completion
of the negotiations, to submit the Company' s final offer to
the ' Local membership at that plant for ratification. But
this, I find, did not create'a prescriptive right of statutory
force running, to the Company to have that practice
continued. Under the scheme of the statute, the question as
to whether ' the designated representatives of the ' unit
employees, authorized to act in,their behalf, should seek an
advisory opinion from the represented employees or decide
on their own whether a contract proposal should' or should
not be accepted, was a matter of union, not employer,
concern.10
At the caucus meeting, the representatives of the two
units were faced with the Company's, proposal to each of
the units containing two interdependent provisions--(l) a
proposed wage increase, which was made dependent upon
(2) a contract extension- for one year. In effect, they
decided two things at. that meeting: (1) as far as the
proffered wage increase was concerned they were willing to
be guided by employee wishes, but (2) the Company's
proposal was wholly unacceptable to them if it meant ,a
rupture of simultaneous expiration dates. The latter part, of
that decision was a final one not to be submitted to
membership vote. As already stated, that decision was
voluntarily concurred in by the, representatives' (both
International and Local) of each of the two bargaining
units, and it must be presumed,that the representatives of
each of the units made their judgment on the basi'sof what
they considered to be in the best interests of their own unit.
The` pooled ratification procedure wasi agreed upon as the
most feasible means for implementing both parts of the
Respondents' decision. The Respondents 'might have
accomplished the same purpose in another way. They
might have balloted the employees at the two plants
separately, and if, say, the Lynchburg employees voted to
accept and the Radford employees voted to reject the
Company's proposal, the Lynchburg bargaining agents
would still have been free to reject the Company's proposal
because of U.S. Pipe and Foundry considerations-and this
even though the problem of severed expiration,dates would
not have resulted but for the Radford employees' dissatis-
the employees themselves before their representative may call a strike
or refuse a final offer. It settles no term or condition of employment it
merely calls for an advisory vote of the employees ... [Unlike a partial
"no-strike"vote ] it deals only with relations between the employees and
their unions. It substantially modifies the collective-bargaining system
provided in the statute by weakening the independence of the
representative chosen by the employees. It enables the employer, in
effect, to deal with its employees rather than with their statutory
representative.
UNITED STEELWORKERS ; LOCAL 2556, STEELWORKERS 779
faction with a proposal the Lynchburg employees were
willing to accept 11 In fornt.the alternative procedure which
the Respondents could thus have adopted would have been
different, but in substance it would have been the same as
the pooled vote procedure to which the respective
representatives of the Lynchburg and Radford units agreed
to in advance as a way of obviating any need for a
rejection subsequent to membership vote.
For the reasons stated above, I am unable to agree with
the General Counsel's position that the pooled ratification
procedure adopted by the Respondents transgressed
statutory requirements for unit-by-unit bargaining because
it conditioned agreement in one unit upon agreement in
both,12 or because, depending on the mathematical
variables of how the employees in each unit voted, it might
have allowed the wishes of the employees in one unit to
determine the position of the employees in the other.
My conclusion in this respect is predicated on the
particular factual context of this case-taking specifically
into account (a) the community of interest between the two
units, (b) the limited scope of the Company's proposal that
was voted on, (c) the interdependence of its two compo-
nent parts (wage increase, conditioned on contract exten-
sion), (d) the fact that the pooled vote was agreed to by the
designated representatives of each of the two units
concerned, and (e) the specific and legitimate union
objective it was designed to serve, all as more fully
described above. As it is not necessary to the disposition of
this case, I need not indicate whether my conclusion in this
respect would have been the same if the Company's
separate proposals had been only for a wage increase
without an accompanying contract extension condition.
Nor do I intimate any view of what my position would be
if the Respondents had submitted to a pooled ratification
vote of both units contract proposals that were of direct
concern to the employees of only one but not both of the
units. That case is not before me.
11 See, Brotherhood of Painters (Morgantown Glass and Mirror, Inc.), 177
NLRB 155. In the cited case, a local of the Painters (Local 850) had reached
an agreement with the employer , apparently satisfactory to its membership.
It was understood, however, that the approval of the International's
representative would have to be obtained before the agreement would be
regarded as final . Thereafter, the International representative refused to
approve the agreement solely because a sister local (Local 751) had objected
to it on the ground that it provided for a wage scale lower than in its own
contracts , and, as a consequence, Local 850 refused to execute the
agreement which it had previously told the employer was satisfactory to it.
The employer charged that Local 850's rejection of the contract for that
reason was violative of Section 8(b)(3). The Board dismissed the complaint,
explaining in relevant part:
The Respondent deferred signing the tentative agreement pending the
International Representative 's approval of the wage scale . . . and the
International Representative withheld approval because of dissatisfac-
tion therewith. The wage scale was an integral part of, not extraneous
to the Respondent's contract negotiations. In these circumstances,
although the decision to withhold approval of the wage scale may have
been influenced chiefly, or even solely, by the views of Local 751, we
find that the decision related to the terms and condition of employment
being negotiated by Respondent Local 850 for the unit employees it
represented and not to any terms and conditions of employment
elsewhere.
12 This case is quite different from Standard Oil Company, 137 NLRB
690, enfd., 322 F.2d 40 (CA. 6), upon which the General Counsel and the
Charging Party rely. In the cited case, two Locals affiliated with the same
International and a subordinate Council , refused , pursuant to-an earlier
agreement with their international and the Council , to execute collective-
The- question remains whether apart from any ,illegality
inherent in the pooled ratification procedure itself-I have
found there was none=there is sufficient independent
evidence in this record to support the complaint's allega-
tion that "an object and an effect" of rthe ,Respondents'
utilization of that procedure was to require, the Company
to bargain with the Respondents in asingle combined
bargaining unit composed of. the employees from both
plants. As earlier noted, -the record shows that the
Respondents' action did not have any such actual "effect",
and as for "object" the General Counsel, both in his oral
argument and his brief, appears to rely only-on a per se
theory under which this would be presumed from, the
action itself. The Charging Party, however, does suggest in
his brief that when the pooled ratification vote is
considered in conjunction with the- Respondents' other
efforts to gain a merger of the two units, as reflected in the
findings in this case, an inference is warranted that the
Respondents' submission of the Company's January 1970
proposals to a pooled vote was motivated by the unlawful
object alleged. I disagree. In the first place, such an
inference would require discrediting the uncontradicted
testimony of Starnes as to the considerations which
prompted the Respondents' decision, and I find no
supportable basis in this record for doing so. In addition, it
is clear that the other conduct of the Respondents to which
the Charging Party points was all lawful conduct. Thus, the
record shows that although the Steelworkers did in fact
request joint contract negotiations for the two plant units
in 1967, and again in 1970, as it was clearly entitled to do,
it did not insist on this when the Company rejected its
requests but continued to engage with the Company in
separate negotiating meetings at Lynchburg and at
Radford, as the Company desired. The Respondents, it is
true, did insist on including on the negotiation committee
for each plant unit employee committeemen from the other
plant, who acted as observers. But, under now well-
bargaining agreements which they had reached at three of the Company's
plants until another Local of the same International successfully negotiated
an agreement with the Company at a fourth plant in Toledo , Ohio. The
basis for the alleged 8(bX3) violation in Standard Oil unlike in the instant
case, was a refusal to sign a contract that had already been agreed upon.
(See, H. J.jHeinz Co. v. N.LItB., 311 U.S. 514). The Board and the Court
found the union's conduct in Standard Oil violative of Section 8(b)(3)
because it was not related to any dissatisfaction with contract terms in their
own bargaining units, to which they had in fact already agreed, but was
based upon an "extraneous" matter concerning unsettled bargaining issues
in another unit. In the case at hand, in marked contrast , the Respondents'
negotiators had not agreed to anything. Further, as has been shown above,
the Respondents' agreement in this case to have both units take a common
position on the Company's offer was primarily designed to preserve the
existing simultaneous expiration dates, an objective which, as shown above,
has been held directly related, and not extraneous , to legitimate unit
interests.
Phelps-Dodge, 1 84 NLRB No. 106, is also distinguishable from the instant
case for the reason last stated. In that case, the Board , pointing to
admissions by union representatives and other evidence of a kind not
present in this record, was careful to emphasize that the union's insistence
as a condition to agreement upon the simultaneous and satisfactory
settlement of negotiations in all bargaining units was only peripherally
directed at achieving common expiration dates, and wasprimarily motivated
by a purpose to achieve in effect a consolidation of the separate units by
merging the bargaining in them and obtaining an agreement on terms and
conditions of employment to be applicable generally on a companywide
basis. Such a conclusion is not supported by the evidence in this case.
780' DECISIONS OF NATIONAL LABOR RELATIONS BOARL
established law, the, Respondents were clearly within their
lawful rights in doing so.13 Such lawful conduct can
scarcely- be viewed as sufficient to override the Respon-
dents', disclaimer of a purpose to compel companywide
bargaining without the Company's consent.
For the reasons, stated above, I conclude and find that
the unfair labor practice allegations of the Complaint have
not been sustained, and, accordingly, I shall recommend
dismissal of the complaint in its entirety.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and(7) of the Act.
2. The Respondents are labor organizations. within the
meaning of Section 2(5) of the Act.. -
3. The Respondents have not, as , alleged in the
complaint, engaged in unfair labor, practices within the
meaning,of Section 8(bX3) of the Act.
RECOMMENDED ORDER
It is recommended that the Complaint' herein be
dismissed in its entirety.
is General Electric-Co. v.,,N.L.R.B. 412 F.2d 512 (C.A. 2); Minnesota
Mining & Mfg. Co., 415 F.2d 174 (C.A. 8).