Weirton Steel

National Labor Relations Board - Board Decisions

Dec 11, 1981

259 N.L.R.B. 666 (N.L.R.B. 1981)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weirton Steel, Division of National Steel Corpora- Judge and to adopt his recommended Order, as
tion and Independent Steelworkers Union. Case modified and restated herein. 4
6-CA-12955
ORDER
December 11, 1981
Pursuant to Section 10(c) of the National Labor
DECISION AND ORDER Relations Act, as amended, the National Labor Re-
JEN S, A D lations Board adopts as its Order the recommendedBY MEMBERS FANNING, JENKINS, AND
B7EZIMMSFRMAN, Order of the Administrative Law Judge, as modi-
fied and set out in full below, and hereby orders
On March 12, 1981, Administrative Law Judge that the Respondent, Weirton Steel, Division of
Thomas A. Ricci issued the attached Decision in National Steel Corporation, Weirton, West Virgin-
this proceeding. Thereafter, Respondent filed ex- ia, its officers, agents, successors, and assigns, shall:
ceptions and a supporting brief, and the General 1. Cease and desist from:
Counsel filed cross-exceptions and a brief in answer (a) Refusing to bargain in good faith on the sub-
to Respondent's exceptions. ject of its stock investment plan with Independent
Pursuant to the provisions of Section 3(b) of the Steelworkers Union on behalf of employees in the
National Labor Relations Act, as amended, the Na- following bargaining units:
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel. All office clerical, plant clerical and technical
The Board has considered the record and the at- employees, including research technician-A,
tached Decision in light of the exceptions and research technician-B, technician-A, techni-
briefs and has decided to affirm the rulings,' find- cian-B, junior technician, shop technician-A,
ings, 2 and conclusions3 of the Administrative Law shop technician-B, storekeeper, junior drafts-
men, stenographer, receptionist, typist, typist-
'Respondent excepts to the Administrative Law Judge's ruling exclud- temporary-research and development, office
ing an abstract of its payroll records, contending that the payroll records girl, senior re arch technician, enior shop
were voluminous and therefore the abstract should have been permitted
under Fed. R. Evid. 1006, 28 U.S.C.A. We find no merit to this excep- technician, and file girl employed by National
tion, noting that, at the hearing, Respondent offered neither to introduce Steel Corporation's Research and Develop-
the original payroll records into evidence, nor to demonstrate that these
records could not conveniently be examined in the hearing room. ment Department at its Weirton, West Virgin-
' Respondent has excepted to certain credibility findings made by the ia, facility; excluding all other employees, em-
Administrative Law Judge. It is the Board's established policy not toees currently reresented b labor orani-
overrule an administrative law judge's resolutions with respect to credi-ye urrently represented y la r rgani
bility unless the clear preponderance of all of the relevant evidence con- zations, confidential employees, managerial
vinces us that the resolutions are incorrect. Standard Dry Wall Products. employees, and guards, professional employees
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings. and supervisors as defined in the Act.
In the "Background Facts" section of his Decision, the Administrative
Law Judge incorrectly stated that employees could contribute as much as All office clerical, plant clerical and technical
10 percent of their gross pay to the stock plan. The record reveals that employees, including Industrial Engineer tech-
the plan allows them to contribute a maximum of only 7-1/2 percent. Ad- nicians, juniors and stenographers employed
ditionally. the Administrative Law Judge referred to the Independent
Steelworkers Union as the International Steelworkers Union. These inad-
vertent errors in the Administrative Law Judge's Decision do not affect in which they were deprived of the stock plan, in order to compensate
his conclusions or our adoption thereof. them for the loss of earnings suffered in consequence of Respondent's il-
Respondent excepts to the Administrative Law Judge's finding that legal conduct.
Respondent's spokesman McCreary refused even to talk about the possi- The Administrative Law Judge found that May 1979, during which
bility of continuing the stock plan for employees in the bargaining unit, Respondent paid $75,000 into the plan to match employee contributions,
contending that this finding is unsupported by the record. On several oc- was a representative period for the purpose of determining Respondent's
casions, McCreary agreed to talk about the possibility of Respondent backpay liability. Review of the record indicates that this issue was not
continuing the plan and provided the Union with purported reasons for fully litigated at the hearing. Accordingly, we shall leave to compliance
its refusal to continue it. However, in light of the Administrative Law proceedings the determination of whether May 1979 was a representative
Judge's well-documented finding that Respondent's purpose in refusing to period.
consider continuing the plan was to discourage its employees from par- The Administrative Law Judge also recommended that Respondent
ticipating in union activities, we agree with the Administrative Law compensate employees for dividends that would have been earned on Na-
Judge that Respondent did not bargain in good faith with respect to this tional Steel stock purchased by employee and company contributions if
issue. Respondent had not unlawfully discontinued the plan. We agree that Re-
' The General Counsel excepts to the Administrative Law Judge's fail- spondent must compensate employees for dividends on stock that would
ure to conclude that certain statements made by Respondent violated have been purchased by Respondent's matching contributions. However,
Sec. 8(aXl) of the Act. The Administrative Law Judge found that on we will not require Respondent to compensate employees for dividends
August 8, 1979, McCreary told union negotiators that they could have that would have been earned on employee purchases of National Steel
the stock plan if they forgot about the Union. We agree with the General stock since this would go beyond our requirement that employees be
Counsel that McCreary made this statement in order to dissuade employ- made whole for losses suffered as a result of Respondent's unlawful
ees from supporting the Union and thereby violated the Act. We shall action. We shall modify the recommended Order accordingly.
amend the recommended Order accordingly.4 We modify the Administrative Law Judge's recommended Order to
The Administrative Law Judge recommended that Respondent pay apply to "employees in the bargaining unit" rather than "salaried employ-
$75,000 per month to the credit of eligible employees for the time period ees."
259 NLRB No. 91
4
,
By MEMBE„S FA NIG JEN IN N*.-,.lations it t r , _, ,. .* . . - 1
ZIMMERMAN rder of the d inistrative La Judge, as odi-

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Respondent Offi
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g s rech t senio shop
. tion's lop-
esew * . .. , . Wii Vi/;-

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It i t r ' esta lis e policy not toniovees currently renresented bv labor orfani-
i- loyees Curr b bo o
vinces us that the resolutions are incorrect. Standard Dry W ell Producm employees, and guards, professional e ployees

S r
ministrativeA n «* < * i i-i a icai
All Cleri
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ll t t tri t a axi u f only 7-1/2 percent. d- nicians, juniors and Stenographers employed
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ND_, r . AI ..
WEIRTON STEEL 667
by the Weirton Steel Division of National (d) Notify the Regional Director for Region 6, in
Steel Corporation at its Weirton, West Virgin- writing, within 20 days from the date of this Order,
ia, and Steubenville, Ohio, facilities, and Na- what steps the Respondent has taken to comply
tional Steel Corporation's Commercial Man- herewith.
agement Services Departments at its Weirton,
West Virginia, facilities; excluding all otherAPPENDIX
employees, all employees currently represent- NOTICE To EMPLOYEES
ed by labor organizations, Labor Relations ste- POSTED BY ORDER OF THE
nographers and typists, confidential employees,NATIONAL LABOR RELATIONS BOARD
managerial employees and guards, professional An A Government
employees and supervisors as defined in the
Act. ~~~~~~~~Act. ~The National Labor Relations Act gives employees
(b) Denying employees in the above-mentioned the following rights:
units the continued benefits of Respondent's stock i s-
investment plan for the purpose of restraining and T o ngage n self-orgaization
coercing them, and other employees of NationalTo form, join, or assist any unon
Steel Corporation, in their union activities. To bargain collectively through repre-
(c) Telling its employees that they could contin- sentatives of their own choice
ue to enjoy the stock investment plan if they forgot To engage in activities together for the
about the Union. purpose of collective bargaining or other
(d) In any like or related manner interfering mutual aid or protection
with, restraining, or coercing its employees in the To refrain from the exercise of any or all
exercise of the rights guaranteed them in Section 7 such activities.
of the Act. WE WILL NOT refuse to bargain with Inde-
2. Take the following affirmative action which is pendent Steelworkers Union as agent of the
deemed necessary to effectuate the policies of the employees in the units described below, on the
Act: subject of our stock investment plan.
(a) Upon request, bargain in good faith with In- WE WILL NOT deprive the employees in the
dependent Steelworkers Union, as agent of employ- units described below of the benefits of our
ees in the above-mentioned units, on the subject of stock investment plan for purposes of restrain-
Respondent's stock investment plan. ing and coercing them in their freedom to
(b) Make whole all of the employees in the engage in union activities or to seek represen-
above-mentioned units for all economic benefits tation by Independent Steelworkers Union.
denied them as a result of its discontinuance of WE WILL NOT tell employees that they
their participation in its stock investment plan for could continue to enjoy our stock investment
the period beginning September 1, 1979, until such plan if they forgot about the Union.
time as Respondent complies with this remedial WE WILL NOT in any like or related manner
order, in the manner set forth in the Administrative interfere with, restrain, or coerce our employ-
Law Judge's Decision, as modified herein. ees in the exercise of the rights guaranteed
(c) Post at its Weirton, West Virginia, and Steu- them in Section 7 of the Act.
benville, Ohio, plants copies of the attached notice WE WILL make whole the employees in the
marked "Appendix." 5 Copies of said notice, on units described below for loss of economic
forms provided by the Regional Director for benefits resulting from our discontinuing their
Region 6, after being duly signed by its representa- participation in our stock investment plan.
tive, shall be posted by Respondent immediately WE WILL, upon request, bargain in good
upon receipt thereof, and be maintained by it for 60 faith with Independent Steelworkers Union as
consecutive days thereafter, in conspicuous places, the agent of employees in the units described
including all places where notices to employees are below on the subject of our stock investment
customarily posted. Reasonable steps shall be taken plan. The bargaining units are:
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material. All office clerical, plant clerical and techni-
cal employees, including research techni-
In the event that this Order is enforced by a Judgment of a United cian-A, research technician-B, technician-A,
States Court of Appeals, the words in the notice reading "Posted by technician-B, junior technician, shop techni-
Order of the National Labor Relations Board" shall read "Posted Pursu- c-A, shop t, stork
ant to a Judgment of the United States Court of Appeals Enforcing anian-A, shop techniian, torekeeper,
Order of the National Labor Relations Board" junior draftsmen, stenographer, receptionist,
r APPENDIX
r r t- NOTICE To E PLOYEES
l ti s ste- POSTED BY ORDER OF THE
t i t , fi ti l e ployees, NATIONAL LABOR RELATIONS BOARD
ri l l r , r f i lGovernme t
r i f
The ati al a r elati s ct gives e l ees
it t ti it t' t T ea i
i t t l f r t r r tr i i To form, j n lf- rganiz ti
r i ti l T o fo rm -i0 o r assl st ^ u nl on
l i ti . i ll ti l t r r r -
t i i

ll
( ) t, i i
'
ti ,
f,
t l . r i i its are:
i ti r t
o c e , l t l i l t i-
*In

A , k ;; D <»ole aapor
Cian-A, hnic -, St e ,
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e in
i
l ti l
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
typist, typist-temporary-research and devel- in the course of its business, it purchased and received at
opment, office girl, senior research techni- its Weirton location goods and materials valued in excess
cian, senior shop technician, and file girl em- of $50,000 directly from out-of-state sources. I find that
ployed by National Steel Corporation's Re- the Respondent is engaged in commerce within the
search and Development Department at its meaning of Section 2(2), (6), and (7) of the Act.
Weirton, West Virginia, facility; excluding II. THE LABOR ORGANIZATION INVOLVED
all other employees, employees currently
represented by labor organizations, confi- I find that Independent Steelworkers Union is a labor
dential employees, managerial employees, organization within the meaning of Section 2(5) of the
Act.and guards, professional employees and su- c
pervisors as defined in the Act. II. THE UNFAIR LABOR PRACTICES
All office clerical, plant clerical and techni-
cal employees, including Industrial Engineer A. Background Facts
technicians, juniors and stenographers em- National Steel Corporation is a large company which
ployed by the Weirton Steel Division of Na- produces steel. It operates through a number of subdivi-
tional Steel Corporation at its Weirton, West sions, one of them, called Weirton Steel, is immediately
Virginia, and Steubenville, Ohio, facilitites, involved in this case. Generally speaking, the major
and National Steel Corporation's Commer- group of employees working for the entire company fall
cial Management Services Departments at into two classes: (1) hourly paid production and mainte-
its Weirton, West Virginia, facilities; exclud- nance workers, who are engaged in the direct production
ing all other employees, all employees cur- process; and (2) salaried office and technical workers,
sometimes called clericals. There are large groups of
rently represented by labor organizations, both categories employed in the many subdivisions of the
Labor Relations stenographers and typists, parent company, located in different cities. The produc-
confidential employees, managerial employ- tion and maintenance employees have for some years
ees and guards, professional employes and been represented by the Independent Steelworkers
supervisors as defined in the Act. Union, under regular collective-bargaining contracts. Up
to the time of the events which gave rise to this proceed-
WEIRTON STEEL, DIVISION OF NA- ing, none of the office workers or salaried employees had
TIONAL STEEL CORPORATION been represented by any union.
One of the distinctive benefits enjoyed by all the sala-
DECISION ried employees as a condition of their employment is the
right to participate in what is called the stock investment
STATEMENT OF THE CASE plan, a fringe benefit not accorded to the production and
THOMAS A. RICCI, Administrative Law Judge: A hear- maintenance employees. The salaried employees can, if
ing in this proceeding was held on October 15 and 16, they choose, contribute a certain percentage of their pay
1980, in Pittsburgh, Pennsylvania, on complaint of the to this plan for the purpose of purchasing stock in Na-
General Counsel against Weirton Steel, Division of Na- tional Steel. They can contribute as much as 10 percent
tional Steel Corporation, herein called the Respondent or of their gross pay. In turn, the Company is obligated,
the Company. The complaint issued on January 31, 1980, still under the terms of the plan, to contribute an equal
upon a charge filed by Independent Steelworkers Union, amount-called matching funds-to the credit of each
herein called the Union, on November 23, 1979. The participating employee. What stock, as a result, the indi-
principal issue of the case is whether the Respondent in vidual then comes to own, is determined by adding his
truth committed an unfair labor practice by refusing to and the Company's matching contribution. However, the
bargain about, or to continue, an established stock invest- plan provides that in no event is the Company required
ment plan for the benefit of its employees in order to to contribute more than 7-1/2 percent of the employee's
coerce them in their freedom to engage in collective bar- pay, in the event the employee chooses to contribute up
gaining through the Union. Briefs were filed by the Gen- to 7-1/2 percent or more. There are also detailed provi-
eral Counsel and the Respondent. sions for permissible increase or reduction in an employ-
Upon the entire record and from my observation of ee's contribution or participation, withdrawal or reentry
the witnesses I make the following: into the plan, etc., but these matters are not germane to
the issue to be decided here. The overall plan is adminis-
FINDINGS OF FACT tered by trustees, under the terms of a written arrange-
ment, and they have the right, clearly stated, to suspend
I. THE BUSINESS OF THE RESPONDENT the Company's contributions altogether in the event, in
The Weirton Steel Division of National Steel Corpora- their opinion, the Company's economic condition so re-
tion is a Delaware corporation, engaged in the manufac- quires.
ture and nonretail sale of steel and steel products at its In 1978 the salaried employees-office clericals, plant
Weirton, West Virginia, and Steubenville, Ohio, loca- clericals, technical employees, etc.-at the two locations
tions. During a 12-month period ending November 1979, operated by the Company's Weirton Division-one at

t h e
e a ning o f Sec t io n , 6 , a n o f th e A c t .
i i i , f ilit ; l i II. T E LABOR ORGANIZATION INVOLVED
fi d
ti l , ri l l , i ti it i t i f ti 2(5) f thedental.empoyes, anagria emloyes, Act.
i l
f III. I I
ound
in to tw o class es :
n anc e
ing all other employees, all employees cur- process; and (2) salaried office and technical workers,ti ll l i l . l
i i i t

be en

t itt
t, t y t ri t, l rl t t , t s s
I. I ' r
7
s ecti

e a e a e e c earl s

WEIRTON STEEL 669
Weirton, West Virginia, and one at Steubenville, Ohio-- In denying the commission of any unfair labor prac-
turned to the International Steelworkers Union for repre- tice, the Respondent's principal defense is that the Com-
sentation. In consequence a Board election took place in pany is not obligated to yield to any demand of the
each of the two groups, as separate bargaining units, and Union, that in the give and take of the bargaining proc-
on September 28, 1978, the Union was certified as bar- ess it is free to pick and choose among the demands and
gaining agent in each unit. There followed a series of counterdemands, and that all it did in this case was say
bargaining sessions, 33 of them, starting in January 1979 no in response to the Union's demand for an economic
and ending at the end of August of that year. The Cor- benefit to the employees. There are other defense con-
pany was represented by one committee, with John tentions. The Company also asserts that it did discuss
McCreary, vice president of industrial relations, as chief this particular demand among those of the Union's that it
spokesman, and an employee committee of nine persons did bargain in good faith, that it gave substantial quid pro
speaking for the Union, with their lawyer, Robertson. quo in return for withholding the plan, that the employ-
On August 30, 1979, the parties signed a comprehensive ees were anyway free to do as they wished. It is also
collective-bargaining contract covering both units. argued that the Union did not have to settle and sign the
Beginning with its first reaction to the Union's initial binding contract finally agreed to, and since it voluntar-
list of demands, and holding firm to the very end of the ily accepted the complete terms of a comprehensive
negotiation sessions, the Respondent adamantly, and agreement, how can it now complain that there was any
without qualification, held firm to a refusal to accede to illegal coercion.
the employees' request that they be permitted to contin-
ue their participation in the stock investment plan. The C. The Evidence: Analysis
eventual agreement signed makes no reference to the The confusing use of words in the complaint tends to
plan; the understanding was that these people would no distort the real issue of the case and therefore calls for
longer enjoy that particular employment benefit is clear. clarification at the outset. At one point, the complaint
Thereafter, the Union filed a charge with the Board, stated that on Augt 30 the Company "excluded" these
saying that the Company committed an unfair labor employees from further enjoyment of the stock invest-
practice by withholding that plan from these particular ment plan. This is another way of saying that the Com-
salaried employees and by refusing to bargain in good pany that day took the benefit away from them, like cut-
faith about it. ting their pay. At another point the complaint stated that
B. The Theory of Illegality on August 8 the Company "promised to return" that
same benefit to the employees on the condition they re-
The complaint speaks of the Respondent's conduct jected the Union. How could the Company, on August
with respect to this stock investment plan fringe benefit 8, promise to give back something it never took away
as violative of three separate prohibitions set out in the until 3 weeks later? Besides, the idea, literally expressed,
statute. One allegation is that, by telling the employees that the Company "disqualified" these employees from
they would retain the benefit only on condition they re- the plan is incorrect. It did not do it as a unilateral act;
jected representation by the Union, the Respondent vio- in fact, as will appear below, its spokesman told the
lated Section 8(a)(1). Another allegation is that by deny- union committee, before August 30, it was up to them, it
ing them that benefit, in the contract as signed, it dis- was for the employees to decide whether they wished to
criminated against them in violation of Section 8(a)3). continue enjoyment of that benefit. And in the end,
And then the complaint alleges that, by its refusal to bar- when they voted to ratify the agreement reached by the
gain about the plan at all as a possible condition of em- two committees in the final negotiation sessions, the em-
ployment throughout the negotiation sessions, the Com- ployees said, "Allright, if we have to we will do without
pany violated Section 8(a)(5), refusal to bargain. In the the stock investment plan."
light of the evidence received at the hearing, oral and This erroneous language in the complaint in turn tends
documentary, I view these as but multiple paraphrasing to lend a certain superficial persuasiveness to some of the
of a single idea, and it is that the Company illegally co- defense assertions. By merely pointing to the Union
erced and restrained the employees in their right to agreeing, as in the end it did, to doing without the stock
engage in collective bargaining. In fact, the complaint investment plan, the Respondent effectively destroys, on
also alleges, as indeed it must, that by each of the sepa- the face of things, the alleged "discrimination" under
rately articulated unfair labor practices it also violated Section 8(a)(3) of the Act. And talking between the par-
Section 8(a)(1). ties there were, hundreds and hundreds of pages as re-
I think that the essential theory of illegality charged to corded by the stenographer who were present at 33
the Respondent, however phrased, is that National Steel meetings. The company spokesman said no a number of
passed a message to all its salaried employees-both times to the Union's demand on this point. The law
those at the two locations involved in this case and all clearly saying neither party need concede any economic
those working for it at its many other locations-that if demand, there results a seemingly correct picture. In the
any of them chose to go union-as none had previously circumstances, I think it best to start by stating in very
done-they would pay a price, and that the Company plain English what this case is actually about.
would see to it that they paid that penalty, by losing the That this stock investment plan has always been a very
very substantial financial benefit of participation in the substantive condition of employment of the salaried em-
stock investment plan. ployees, and therefore a mandatory subject of collective

m-
t l t i f t t f i s f r i t l i t tends to
l ; t r t di t t t l l t l i f l
l r j y t t rti l r l t fit i l r. l rifi ti t t t t. t i t, t l i t
r ft r, t i fil r it t r , s t ugust t l t
i t t t itt f ir l r l f f t j t t i t
r ti it l i t t l fr t rti l t l . i i t f i
g g ain n g t h at t o o k t h e fi
fait i . ti t ir . t t r i t t l i t st t that
o n
)(l
)(l
t
8
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining, is so clear as to require little citation of au- of the plan while not represented by any union, the com-
thority. Winn-Dixie Texas, Inc. d/b/a Foodway, 234 pany refused to talk about it with their newly chosen
NLRB 72 (1978). There were about 1,050 employees in union and refused to include it as a benefit in the con-
the two bargaining units involved. For the month of tract eventually signed. The only difference between that
April 1979 alone, 529 of the employees were contribut- case and this lies in the nature of the evidence proving
ing 7-1/2 percent of their pay into the fund, an average the illegal purpose. Unlike here, the Kroger plan, as writ-
of $112 per man. This means the Company was paying ten, in haec verba excluded any and all union-represented
out to their benefit, urder the matching funds system, an employees. It read as follows:
equal amount. Even today $25 a week is a good part of a
man's pay. There were 298 other employees contributing Notwithstanding the foregoing provisions, any em-
a lower percentage of their pay, and therefore receiving ployee who is covered by a limited group pension
less cash for work from the Company. All of these em- plan as herein defined shall cease to be eligible here-
ployees lost this part of their pay when the union con- under and, if a member of this Plan, shall be consid-
tract was signed. And the reason was because from first ered to have withdrawn therefrom on the date
to last the company spokesman held firm to a fixed no, when such coverage commenced. The term "limit-
refusing time and time again to even consider the possi- ed group pension plan" means a plan for the pay-
bility of continuing the plan. ment of pensions or other retirement benefits which
Why did the Respondent do that? This is the question (a) is limited in its coverage to a particular group of
in this case. It will not do for the Company now to say employees, and (b) is established by or at the request
no employer is obligated to grant any economic demand of the covered employees or their authorized repre-
by a union. Of course it does not have to concede em- sentatives. [Emphasis supplied.]
ployee benefits in the bargaining process. It can even
insist to impasse upon reducing the established hourly But unlawful motive, or prohibited intent, is rarely
wage rate. It can discharge any employee it does not proved by explicit and direct evidence. The question is
like, as has been said, for a good reason, for a bad comparable to a charge of hidden unlawful purpose in
reason, or for no reason at all. But if it reduces the pay, the obstensibly justified discharge of an individual em-
if it rejects a demand out of hand, if it fires a man, all for ployee. Therefore, no two cases are alike and none can
the purpose of discouraging and, intentionally, putting a be determinative precedent for the next; good faith "can
stop to union activities, it violates this statute in every in- have meaning only in its application to the particular
stance. That is what this law is all about. This is why facts of a particular case." N.L.R.B. v. American Nation-
every violation of Section 8(a)(2), (3), (4), and (5) of the al Insurance Co., 343 U.S. 395 (1952). While it is true
Act is also a violation of Section 8(a)(l). "It shall be an that the statute provides that neither party to the bar-
unfair labor practice for an employer-(l) to interfere gaining process need yield its position on any lawful pro-
with, restrain, or coerce employees in the exercise of the posal ". .. one must recognize as well that bad faith is
rights guaranteed in section 7." No matter how it is ac- prohibited though done with sophistication and finesse.
complished, be it by threat, creation of an employer Consequently, to sit at the bargaining table, or . . . to
dominated group, discharge of a man, retaliation for tes- make concessions here and there, could be the very
tifying at a Labor Board hearing, or refusal to bargain in means by which to conceal a purposeful strategy to
good faith, if the purpose of the activity is to coerce the make bargaining futile or fail." N.L.R.B. v. Herman Sau-
employees so that they will agree to discontinue attempts sage Co., Inc., 275 F.2d 229, 232 (5th Cir. 1960).
at union representation in collective bargaining, the con-
duct is prohibited, and not permissible at all. Has such an D. The Evidence
illegal purpose been proved in this case? It matters not In the case at bar, the proof of illegal motive in what
how the complaint be phrased, the question remains the was ostensible bargaining is twofold. Part of it appears in
same.' I .„ ,.the recorded transcripts of the regular negotiation ses-
A very comparable case is The Kroger Co., 164 NLRB sions that took place, where the established committees
362 (1967), enfd. 401 F.2d 682 (6th Cir. 1968), cert. and their principal spokesmen participated. The second
denied 395 U.S. 904 (1969). There, a savings and profit- part is oral testimony at the hearing concerning a meet-
sharing plan was involved, and there too, although the ing where no transcript record was made, held shortly
employees involved had previously enjoyed the benefit before the final collective-bargaining agreement was
signed. I find that, viewed in totality, the evidence does'The General Counsel's reliance, in his brief, upon N.LR.B. v. Benne. prve affi rmatively bthwd total, the edens spoes
Katz Alfred Tinkel, and Murray Katz d/b/a Williamsburg Steel Productvely both that the Respondent pokes-
Company, 369 U.S. 736 (1962), is misplaced. There the employer acted man, John McCreary, refused to talk about the possibil-
unilaterally, just gave the employees a raise during the union organiza- ity of continuing the investment plan for these salaried
tional campaign. The Court held this was coercive, an unfair labor prac- employees in any form, and that the Respondent's pur-
tice, because of the very nature of the act. From this the General Coun- pose behind such refusal was to discourage both these
sel argues that the Company here should be found to have acted illegally
"without regard to respondent's subjective state of mind." The logical and all its other nonrepresented salaried employees from
continuance of this argument is that, when unorganized employees start any steps towards union representation.
bargaining through a union, all negotiations must be upward, they must One further detail must be clarified before the evi-
always end up with all they previously had plus what the bargaining dence is listed. Among its many starting economic and
process adds to their old quantum of economic benefits. But the General
Counsel was careful not to go that far, and correctly so, because the posi- other demands which the Union wrote out and which
tion misconceives this entire case. the Company studied before any discussions took place
.

. . .
) .
I
.

..
. .
.
ill l r r i t i It tt t t t
t l i t r , t ti r i t st si l r i i is t l . t f it i
s a m e . „, „ _ .,,,.„„„ the r r tr ri t f t r l r e tiati ses-
B s io n s t h at t o o k w he r e t h e
( 8) , a n d t h ei r Pri i l i i .
i . . ( ). , i fi i l ti ri r i
ri l i l , t r t , lt t i r tr ri t , l rtl
l i l r i l j t fit f r t fi l ll ti - r i i t
,_ --- , _ „ ,. .,..., „, „ n~signed. I i i i li i I The . e., signed. I fin that, iee in. toat t o vdence does
. l i ts prv affiratively 's S
m a , J o h n
ti l i . rt el t is as coercive, an unfair labor prac- e l ees in any for , and that the espondent's pur-
„„„ ii, .. ^l r i ^ j- k 1..1
po b e h in d s u c h re f u sa l w a s t o discourage both these
a n d a l S l
St Uni
i i t i , all ti ti s st be ar , they ust e f rt er detail ust be clarified before the evi-
* r * j _ *» » -** * -i
d e n c e is lis t e d . Amon it s many Starting economic and
Ot
.the l
r l l , i n e . oat evdence
ray i iamsb rg l ducts v irmativel
l * r .1. .d sco r
»
i
cou a
WEIRTON STEEL 671
were several that would have given these salaried em- March 22
ployees more, in the stock investment plan, than they M A iMcCreary: As to your demands relative to a stockwere at the moment enjoying. It was proposed that they iese rra e d n s to t
be able to change their individual participation twice in-inestment program, we do not propose to offer it
stead of once each year; that the Company match their to you. [This was McCrearys initial response to the
contributions up to 10 percent of their salary, instead of Unions demands touching upon the stock invest-
only as high as 7-1/2 percent; and that the employees bement pan
permitted to contribute more than 10 percent into theril 16
plan, but with no obligation on the part of the Company
to give over 10 percent. The Company rejected all pro- Mr. Bakich [for the Union]: The counterproposal
posals about the plan offhand. In the session there was on the stock plan-what is your answer to our
mention of the fact that some of the suggested improve- counterproposal to the stock plan to have the same
ments in the plan would cost the Company more money. system the way it is set up now, that will bind you
As the early meetings continued, the Union gave up on to no contract whatsoever due to money difficulties
these suggested improvements and came down to the within the corporation? Within the corporation, you
level where it asked for no more than exactly what the can stop the existing plan at Weirton Steel. What is
plan had long provided and was being enjoyed by the your answer to that counterproposal, Mr.
employees at that moment. The "no" response held firm. McCreary?
With this, clear on the record, the question of the case
reverts to its basic form. Why did the Company, even * * * *
then, and to the very end, refuse to talk about it at all?
Another argument was made by the company spokes- Mr. McCreary: The Company's response of 31
man, at certain early meetings, that must be mentioned. through 34 [the four union demands touching on
The overall, companywide plan is administered by trust- the stock plan] is the same as it was prior to your
ees, all pursuant to terms and provisions spelled out in counterproposal... "The demands are rejected."
writing and approved by the Internal Revenue Service.
As stated above, the trustees have the power to discon- April 27
tinue the Company's matching funds if economic condi- Mr. Petrella [for the Union]: I have a couple of
tions make it advisable. In his constant repetition of the questions. One is the company position on the
phrase that he would never agree to incorporate the plan stock. Does it still remain the same?
in any form in "any bargaining unit," McCreary said Mr. McCreary: You may assume, Craig, that all
there might be the danger that such a contractual obliga- company positions remain the same unless I advise
tion on the Company would make it impossible for the you differently in the course of one of these meet-
trustees to stop the contributions in the event of econom- ings.
ic stress. He may have been right on that score. But
again the union spokesmen removed that obstacle. The May 18
Union's final position was it wanted, or at least was .
asking the Company to consider the possibility of con- M r. MCreary: We never really got to thatsub-
tinuing, the plan in precisely the same form as it was in ject because the position of the management of Na-
effect at the time, including any limitations on employee tional Steel Corporation in respect to these negotia-
enjoyment as it stood. But still again the answer was tions is: () No stock investment plan, and (2) no
"no," without further talk. offset or no parody kind of arrangement for the
There is a significant difference between an employer stock investment plan. So, we didn't talk about the
telling his employees they will not get more if they go possibilities of parody. The stress of the meeting a
union, and telling them they will without doubt lose week ago Wednesday with Mr. Angevine had to do
something they already have if they persist in such activ- with the potentially unhappy affects of agreeing
ities. An employer has a right to bargain hard, as the with the ISU salaried committee on stock invest-
cases say, and when that happens and the greater number ments, primarily, but also some of the other benefits
of as yet unorganized personnel learn that their fellow matters which are in issue on the potential for orga-
employees gained nothing by paying union dues, they nizing salaried employees at other divisions.
may well be discouraged from themselves pursuing that Ma
course. But when the employer takes pains to assure that
in any union contract the employees have to surrender a Mrs Shawver [for the Union]: You stated that the
long enjoyed and established benefit-and reveals its pur- company is willing to pay for the right to manage-
pose to be that all the unorganized employees understand ment to run the business and all earlier in your talk
that-it effectively weakens any thoughts in the larger there. But are you not willing to talk about the two,
group to attempt unionization at all. This is what the the rates of pay and stock program. We can consid-
words "restrain or coerce" mean in the statute. er these two issues an impasse as far as you are con-
The written transcripts of all that was said during the cerned right now?
33 meetings between the two committees span over 1,800 Mr. McCreary: I didn't say I wasn't willing to
pages; all were placed into evidence. The following are talk about it . . . Somebody down at the end of the
pertinent excerpts from those transcripts: table asked me specifically about the stock plan, and
l r , i t t i t t , M s to y d a i to a stc
r t t t j i . It r t t t inv esten a m, w d o o rps t afftock
l t t i i i i l rti i ti t i i -ti vestment r r , t t ff it
t f r; t t t t t ir Uno' dem w as tcrearys i iti l r t t
t i l r me ont s d em an d s to uc h. n] P0 " t h e s t oc i v e st
April
terproposal ...

. , , ll
i t t t t tr t l li a- co pany positions re ain the sa e unless I advise
t l it i i l f r t iffere tl in the course of one of these eet-
i t e e t f econo - ings.
nion's final position as it t , r t l t . M
as i t a t si r t e ssi ilit f - r.be Cre r : r r ll t t t tpsu -
ti i , t l i r i l t s f r s it s i tiot t siti t t -
effect at the ti e, including any li itati s on e ployee ti al teel r rati in res ect to these e tia-
t lo n i s : 0 N o l ,
o f fs e t o r k n d
s t o c k l . , i 't t l t t
i iliti . str ss f t eeti a
w e e k it r. i t
t h t h e t i
t h itt t i t-
t , ri ril , t ls s f t e t er benefits
tt i r i iss t e te tial for r a-
i i sa la ie d l t t r i isi s.
y3
m
..
ouhary
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said I was willing to entertain union proposals. I or offset by not giving you the stock plan. We are
am willing to entertain any union proposals, obvi- saying the same thing in perhaps slightly less words.
ously, for alternatives to the stock plan. Whether or
not I can do anything about them at this point, I * * * *
can't say.
Mr. McCreary: It is an expensive proposition to
August 13 have a union.
Mr. McCreary: With respect to the stock invest- Mr. Robertson: If you did not have these costs,
ment plan, the Union Demands 31 through 34, the would you be willing to offer the stock?
result of the meeting on the 6th of August was to Mr. McCreary: It depends on why I didn't have
reaffirm the Company's response to this demand the costs, I suppose, David.
dated 3/15/79 . . . The Company will not agree to * * , . ,
· . . the Company will, obviously, discuss what the
Union wants to discuss, but the Company at this Mr. McCreary: It depends on a variety of circum-
point is not going to agree to any alternate to the stances. Obviously, if the Company's position is that
stock plan. the stock plan or the absence of the stock plan is an
offset for the additional expenses involved in main-
* ' * * * taining the relationship with the union, and the
company is not required to maintain a relationship
Mr. Robertson [the union lawyer]: What is the with the union, it would have to look at its position
Company's reasoning in not granting the Union's with respect to the stock plan.
demand for a plan-first of all, we asked for a stock
plan, and then we revised it to indicate that we * * * *
would accept the stock plan which gave the Com-
pany the sole right to terminate the plan at any time Mr. Robertson: My question is: Do you intend to
they saw fit for economic reasons, to terminate for provide the stock to the salaried non exempt em-
the rest of the salaried employees of National Steel. ployees in this union even though it is not a matter
What is the reason that that cannot be agreed to? of contract?
Mr. McCreary: The reasons are simply-fold. , , * , ,
Number one, it is expensive. We are not particularly
charged up about the prospect of spending the Mr. Robertson: Your position, John, I guess, is
money, at least not at Weirton at the present time that from the company's viewpoint, they cannot
. . .More to the point, I suppose is the prospective agree to the stock plan because in future organiza-
effect of giving the stock plan in a collective bar- tional campaigns, they wish to be able to cite the
gaining negotiation to a one-certified labor organi- fact that the stock plan, historically, is available to
zation and the anticipated effect that that would unorganized salaried employees; is that correct?
have on other similarly situated groups, both other Mr. McCreary: That is correct.Yes.
salaried groups and other production and mainte- Mr. Robertson: If you go the way of Weirton
nance groups, both here at Weirton and other divi- salary, you, too, will be faced with the loss of the
sions. It is the original hole in the dike that we stock plan.
don't want to put in the dike. Mr. McCreary: The possibility of the loss of the
Mr. Robertson: You are afraid your other salaried stock plan. As I say, elsewhere, as here, it is a man-
employees will organize? datory subject of bargaining.
Mr. McCreary: No. We are afraid our other sala- Mr. Robertson: And its omission from this con-
ried employees will organize, and we are also afraid tract shall exists as a veiled threat to other salaried
our other hourly employees will demand the stock employees of National.
plan. Mr. McCreary: Veiled threats are in the eyes of
the beholder. It will exist as a fact which people
* * * * * can view and reach their own conclusion about.
Mr. Shawver: If we are getting slapped across the August 14
fingers, then fine. Let's call a spade a spade and say, Mr. Robertson: It is a question of whether you
"If you guys organize, we are going to take the have X number of stewards, and you are creating
plan away from you." other positions, and if so, are they all entitled to lost
Mr. McCreary: Or you can look at it from the time or is that a liability of the Union?
company standpoint, and that is there are extraordi- Mr. McCreary: If you drop your demand to pay
nary costs and expenses associated with the negotia- them for some or all of this process, you can pick
tion and maintenance of the union for salaried non anybody you want to.
exempt employees which are attempting to recoup Mrs. Shawver: If we do that can we get the stock
program?
.
.
M r. If i t t t ,
, w o u d illi t ff r t st c ?
M r. It I i 't a e
t h e c o s t s, , i .
. .
r.
' iti i t t
i
.
.

, t l st t t irt t t t ti t t ' ,
ore

t ti i l r r i- f t t t t e st c plan, historically, is available to
t ti i t ff t t t t t l r a ize salaried e ployees; is that correct?

M r
.
If
re ry:
o r is il
i r i
M r e ry: f
i t ll t i r , i
l ri
ti s f
.
.
.
l
WEIRTON STEEL 673
Mr. McCreary: No. A. If you mean by during negotiations, all the
meetings that we attended, I think the only one was
After a July 27 meeting, the employee members of the that one that you referred to, where our lawyer was
union committee, frustrated by the endless talking that not present, there were seven negotiators there,
was accomplishing little of substance, and fearful of pos- where he was afraid the rest of the salaried in the
sible decertification of the Union a month later, decided corporation would be organized, if they saw that
to talk with McCreary without their lawyer, and without we were able to organize and keep all of our bene-
the formality of transcript recording. At their request, fits, and the stock plan too.
seven of the nine members met with McCreary and sev-
eral of his committee group, on the afternoon of August * * S *
8, in the regular conference room. All seven of the union
men present there testified. From their pertinent testimo- A. I think I also stated that, he [McCreary] said I
ny: can't make you any promises, but if the union was
just going to happen to disappear, then you would
Joseph Shawver: . . . we were concerned about probably go ahead and enjoy the same benefits that
the impasse, as far as the stock program was con- you have enjoyed before the organization of the
cerned, and we asked him about this program, if union.
there was any way that we could get this into our Robert Lewis: The nature of the discussion was
contract, to bring it back to our people, this was the that if Mr. McCreary did not intend to offer stock
final stumbling block, that we felt, as far as going plan to any bargaining unit employees.
back to our people, we could take the contract back Q. Did he give any reason for this?
and have it ratified, so we brought this up, at which A. Well, not at that meeting though, meetings in
time we were told . . . Mr. McCreary told us the past, to be comparative and stuff with other
again, that there would [be] no stock program, as companies, they did not intend to offer the bargain-
far as the C and T [clerical and technical] people ing unit people the stock plan, because we had
were concerned, Weirton Steel Company. At that become unionized.
time, he said that there would be no stock program,
to take back to our people, and that he had given us * * * * *
a contract that was inferior, and one that we felt
that we could not take back to our people and have A. The statement that I can remember was if the
ratified. Union would walk away, then as long as he was
present, we could keep our stock.
Q. And that occurred at the meeting you recall
as being August 8th, 1979?
JUDGE RIccI: Did you say on direct examination A. Yes.
that at that August 8th meeting, did you quote Adm Hudek: ... the only comments, I believe
McCreary as saying that the reason why the com- that I can remember is that, I think Mr. McCreary
pany did not want to give the union that stock plan, mentioned that he wanted the union to go away,
was so the employees would refuse to ratify the and some of the other negotiators had questioned
contract? him as to what status the stock plan was, and exact-
THE WITNESS: Yes, sir, that's what I said. ly what they were driving at, we never accom-
Edward Simmons: . . . Mr. McCreary did all the plished, or what they personally were driving at, I
talking, and he said that in no way we are ever did not have personal comments with Mr.
going to get the stock plan, and he even talked McCreary at that meeting, but it was not in refer-
about some alternative methods of making up a dif- ence to the stock plan.
ference in that loss, and he said that we weren't
going to make up any sort of a difference, or get * * * * *
the stock plan either . .. he indicated that if he
gave us the stock plan, the rest of the National Steel Well, he discussed the issue, I believe it was with
would be organized . . . he made more or less a one of the negotiators, and he said something to the
statement that I can't make any promises, you know effect that the stock plan, he could not offer it, but
that, but if the union would just sort of disappear, obviously we had it before, and more or less that
you would probably maintain all the benefits that we would keep it, you know, if we did not have a
you enjoy now, because the hourly ISU unit down union.
there.
* S * * *
Q. Now, at that meeting, did Mr. McCreary
Q. During the course of negotiations, did any em- promise you, that if you ceased supporting the
ployer representative tell you, or any of the negoti- Union, decertified the union, or abandoned your
ating committee, as to why the employer was not participation in the union, you would receive the
willing to agree to this stock investment plan? stock plan?

. ..

..

CCI: ir t e a i ati A. Yes.
, am ,
-
s t l l t
..
..
..
t

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.... my memory on the meeting wasn't the could decide that question for themselves when they
greatest, and I believe that Mr. McCreary said that looked at the ultimate facts, "reach their own conclu-
he wanted the union to go away, somehow, some- sions." In the collective-bargaining process, especially
way, and again, the words he said, I got the impres- one as long drawn out as this, an illegal motive, if in fact
sion, he said if the union was gone, we had the it exists, is rarely articulated in so many words.
stock plan before the union came, and with a shrug McCreary's lengthy discourses, appearing both in the
of the shoulder or something like that, we will keep minutes of the negotiation meetings and in his extended
it still if the union was gone, that was my impres- testimony at the hearing, show a master of words, and a
sion of the talk, but the specifics, I can't recall. talented skill at speaking indirectly and with obfuscation.
Mc Creary: I don't think there was any direct But it is the total picture of the events that must be eval-
comment. uated, not any single phrase or comment. His recorded
words must also be taken with the fact-as to which
Against the foregoing there is the following testimony w ords must also be taken with the fact-as to hihbyo ~ Mc ~re~a ~ry: ~there is no question-that management never varied an
Ub~~y A ~Mc ~rea r~y.~ yiota fr m its absolute refusal to yield in the slightest on
He started by describing the meeting as a "bitch the subject of the plan, indeed, even to talk about any
session." Then there was a specific question asked possibility of compromising on the subject.
to me by Mr. Shawver, and that question was in In giving their recollections of what was said at some
effect, "Why aren't you giving us the stock invest- of the recorded meetings, several employee-members of
ment plan," and my response being, I told him, I've the union committee quoted McCreary in more explicit
been telling you since this thing started, why you language. At one point Shawver said he heard the state-
are not going to get the stock investment plan, and ment that the Company was refusing the plan because of
he said suppose the union was just to go away, "the fact that we had organized," because "these other
what would happen then, and I said Joe, you know, sister divisions were watching, and if we got a contract
I can't make you any promises, we are in a bargain- and didn't lose anything, then they too, would follow
ing situation here, but I told you before, when we unionization." But this man also admitted this was "prob-
talked about this subject, that the employees' stock ably off the record," "it came from the other side of the
investment plan, in its present form, it is available to table," "I don't know specifically who said that."
all salaried employees of the National Steel Corpo- Hudeck, also of the committee, quoted McCreary as
ration. The only thing that can affect that availabil- saying "they were worried about other corporations pos-
ity is the existence of a collective-bargaining agent, sibly unionizing, if we were given the stock plan as a
and then it becomes a mandatory subject of bargain- union." This witness, too, added he did not remember
ing. If there were no collective-bargaining agent, I "exact words," "I'm not sure if it was a direct state-
have no reason to believe that the employees, these ment," "somehow I came out with the feeling."
employees will not be covered by that stock invest- Given McCreary's oblique way of talking about this
ment. subject during the recorded meetings, it is understanda-
McCreary closed with denying having said, at the ble that some of the listeners would later recall the con-
August 8 meeting, that his reason for refusing the stock versations as much in terms of what impressions were
investment plan was any fear that by granting it to these conveyed than in precisely what words were spoken.
people other divisions of National Steel Company would But because the discussions were recorded by a stenogra-
be organized. He also denied having asked the men to pher, fairness demands that only what was then written
decertify the Union. Beyond this, McCreary did not oth- be considered now and not the ideas that witnesses think
erwise contradict the testimony of the union committee- were intended. A more significant example of this is tes-
men. timony, at the hearing, by the Union's lawyer, Robert-
Although there were three other persons present at son. He recalled McCreary saying that ". . . under a
that meeting representing the Company, none of them Domino theory, if the Independent Steelworkers Union
testified concerning what was said on that day. walked out with the stock plan, that this could create se-
As stated above, I think the foregoing evidence proves rious organizational problems for them in other divisions
affirmatively the reason why the Respondent refused to .... " In fact, the transcripts do not show that
continue the investment plan for these people, or even to McCreary ever spoke of a domino theory in so many
talk of any such possibility, was because, and only be- words. But he did speak of intending to avoid any single
cause, they had taken the first step towards unionization "hole in the dike," "the anticipated effect that that [con-
among all the Company's salaried personnel, wherever tinuing the stock plan] would have on other similarly sit-
located. When McCreary talked, during the recorded uated groups." With this spoken by McCreary, Robert-
meetings, about never permitting the plan to be covered son was not wrong in paraphrasing it as a "domino"
by any "bargaining unit," about his fixed determination basis for refusal.
to give neither the stock plan nor any "off set" or We come to the unrecorded meeting of August 8. Dis-
"parody" in its place, he strongly indicated both his turbed by the substantive futility of the long bargaining
closed mind on the bargainable issue and his unlawful sessions up to that point, primarily over the imminent
motivation. When Robertson, on August 13, asked him loss of the stock investment plan, the employee commit-
was this a "veiled threat" to the as yet unorganized sala- tee wanted to make a last effort, without the formality of
ried employees elsewhere, McCreary said the outsiders the lawyer or the stenographer, to prevail upon
....

,

e '

Against the foregoing there is the followg twords
gainst the foregoing there is the following testimony ._ ti -t t t
iota fr it l t
i ilit r i i t e s ject.
,

'
t, I t it t e feeli ."
m e n t . t ti , it i
l it i i i , t t
b le t h at so m e o f t h e l is t en er s w o u ld la te r r ec all t h e c -
t i ti i t r f t i r ssi s r
ti t i i l t r r .
l l
B u t ec a u se t h e i
i
f n es s l
rtif i i t
b e i r t t i t t itne t i
i ti t
w e r e i i i t l t i i t -
ri '
so n H e

r io u s
. ."

t

WEIRTON STEEL 675
McCreary to let them keep it. The essence of their testi- plained how in the practical application of the new con-
mony is that he made them understand that with a union tract terms they were no better off than they were
they were not going to get it, but without a union they before. But their details were not clear, such as to sup-
could keep it. It matters not who brought up the subject port truly reliable findings. McCreary's lengthy state-
of removing the Union from the picture. I think it clear ments as to how, over the long run, the new provisions
it was the employees who asked would the Company's do favor the employees, are equally devious and ob-
position change if the Union were decertified, or other- scured. In the circumstances, I cannot say for a fact that
wise removed from the picture. It was a logical thing for the Respondent gave a monetary equivalent, or anything
them to inquire about, for they had been listening to even approaching, the $75,000 a month which McCreary
McCreary's oblique message that it was the presence of said the stock investment plan cost the Company for that
the Union which dictated loss of the plan to these one group among its many and various plants. There
people. I credit their testimony. McCreary's testimony simply is no clear and definitive evidence of substantive
about that meeting is not really in conflict with that of advantage given the Weirton clericals and technicians
the employees. He said, "It [the plan] is available to all which all the others do not also have.
salaried employees .... The only thing that can affect Tied in with this quid pro quo contention defense is the
that availability is the existence of a collective bargaining further position that, anyway, the Company could not
agent .... If there were no collective bargaining agent afford the cost of continuing the stock investment plan
.... I find, whatever words he used, that he did tell for these particular employees. McCreary did say this to
the union committeemen at the August 8 meeting that if the committee more than once; although it must be noted
they forgot the Union altogether they would continue to he never suggested in the continuing talk any different,
enjoy the benefits of the stock plan. diluted continuance of the plan that might have cost less.
At the hearing, the Respondent asserted other reasons But most pertinent of all is the fact that it went right on
why it refused to permit these employees to continue the giving the benefits of the plan to the much larger group
benefits of the stock plan. I find none of them convinc- of its salaried employees who remained outside any "bar-
ing. One idea was that it costs the employer money to gaining unit."
have a union represent its employees, paid time for union All things considered, I find that by refusing to discuss
stewards being a major element. But when McCreary any possibility of continuing the stock investment plan,
asked Robertson, on August 14, would the Union drop and by that technique refusing to continue it to the bene-
its demand that the Company "pay them [the stewards] fit of these employees, for the sole purpose of discourag-
for some or all of this process," the lawyer's response ing union activity by them and by other employees of
was to ask would the Company in that case give the em- the Company, the Respondent violated Section 8(a)(l)
ployees the stock investment plan. McCreary's answer and (5) of the Act. The essence of the Respondent's con-
again was "no." Among other things which McCreary duct having been to deprive the Weirton salaried em-
listed as "benefits" given to the Union as alternative to ployees of the stock investment plan, I also find that it
the stock investment plan were a grievance procedure, thereby violated Section 8(aX3) of the Act, calculated
checkoff, and union security. It is perhaps best not to discrimination in employment as a coercive tactic to dis-
comment extensively on such arguments here. Whether courage union activity. This is not a per se finding of ille-
McCreary realized it or not, what he was saying in effect gality as in its brief the Respondent would characterize
is that if employees want to exercise their statutory it. It is cited authority to the effect that an employer is
rights to engage in union activity, they must expect to not obligated either to grant a new, or to continue an old
pay a monetary price at the hands of the Company. He economic benefit, is therefore inapposite. It is the affirm-
was virtually conceding the merits of the complaint. ative evidence of unlawful intent in its conduct that
McCreary also spoke of having given these employees proves the unfair labor practice found in this case.
a raise in return for the stock plan. And it is a fact the e asAnd finally, there remains the contention, as a mattercontract, as signed on August 30, gave a retroactivet, , of law, that by signing the contract without the stock in-
cost-of-living raise back to May. The trouble with this vstnt plan, the elys, the ontac w itout t o n
defense is that the same cost-of-living raise was given, in ve st m e nt plan, th e emoyees o r t h e r uon waved any
May, to all the Respondent's salaried employees in all of right now to charge that any statutory rights of the
its other subdivision plants, but at that time withheld had been violated The defense is not supported by the
from these salaried people. This means that in their even- record and therefore findt wthout me ee Kroger
tual contract all they got was what had been withheld supra 14 NL at
from them, and only from them, all these months. It was I. THE REMEDY
therefore not a benefit alternative to the stock investment
plan they lost. The Respondent having refused to bargain in good
For the rest, there is very extended testimony about faith on the subject of the stock investment plan for
how the conditions of employment spelled out in the these salaried mmployees, it must be ordered now to bar-
contract, eventually signed, compare with those of all gain with their union, on request, as the statute com-
the other unrepresented salaried employees. The contract mands. The unfair labor practice technique having been
consists of 100 printed pages, and the testimony seeking used to deprive the employees of a direct, monetary
to explain its import, both that of the employee witnesses benefit, the Respondent must also be ordered to make
and of McCreary, is uncomprehensible detail and conclu- them whole for what loss of earnings they suffered in
sionary words. A number of longtime employees ex- consequence of the illegal conduct.

.
.
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.

it it
it t t l r oney to gaining unit."
i r r t it l , i ti i ll
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A m o n g r w ic M c C r ea r y i ri l i
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ckoff, i curity. It i r t t t i i i ti i l r i ti
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r i fi i t f
irt ll i t rits f the c l i t. ative evidence of unla ful intent in its conduct that
r r l f i i t l t i l i i i
r i i r t r f r t t l . it i f t t A n t ra t c n a.
tr t, s i t , r tr ti a at l y t he c o n trwh t
t-of-li i r i t . tr l it t i o f l aw n t h a b y s gn ln g t h e c o n t ra c t w l t h o u t t h e s t o c kn n -
f i t t t t-of-li i r i i , i rv s t e t Pnowt t e taptaystuo o r t ir nion i
, t ll t t' l ri l i ll f hdg h tbn o w t o c h ar ged t h a t an y st a t u to r ysuportd b t '
it t r i i i l t , t t t t ti it l rh a d i l t f i nou rt t
f t l ri l . i i i r ec o r d an d 6Nh e r e f o r e fi n da t w l t h o u t m e t S ee K r og er
C ft ' s up ra ' 164 N L K " a t 37**
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i ti it .
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As always the remedial order must be aimed at restor- butions for economic reasons, as the plan agreement pro-
ing the status quo; it may neither be punitive nor an un- vides. Whether the contributions have since been re-
warranted windfall to the employees involved. The sumed was not shown. Beginning with the month of Sep-
method appropriate in this case will be unusual, because tember 1979 and continuing for every month thereafter
the nature of the economic benefit of which the employ- that the Company's contributions have been, or will be
ees were illegally deprived is a variable under the stock made, to other salaried employees, the Respondent must
investment plan. It is not comparable to simple calcula- pay S75,000 for each month to the credit of these sala-
tion of backpay that would otherwise have been earned. ried employees. The payments shall be continued until
In May 1979, 4 months before the effectuation of the such time as the Respondent complies with that part of
unfair labor practice committed, over 500 employees this remedy which orders it to bargain with the Union
were contributing 7-1/2 percent of their pay into the on the subject in good faith. This rational restructuring
fund, and therefore receiving a like amount in matching of the past means that for each of the pertinent months
funds paid them by the Company. But the system pro- in question $150,000 worth of company stock would
vided that they could change the amount-reduce it or have been purchased in the name of the employees. The
discontinue it altogether. Two hundred or so others were Respondent must therefore also pay, as part of the make-
contributing less, and about 200 more were, at that time, whole remedy, a sum of money equal to what dividends
contributing, and therefore receiving nothing. But like such stock would have earned between the month in-
the first group, these others too had the privilege of volved and the date when it complies with the affirma-
changing their amount, or entering the plan if they tive bargaining order. The total thus paid by the Compa-
wished. Had the Respondent not taken this right away ny shall then be distributed, for each month involved,
from them, how many would have reduced their contnb- equally among all the employees who were working
uting percentage, how many would have increased their during that month and who were eligible to participate
input, how many would have entered the fund for the in the plan. It shall be a cash payment into their hands.
first time? There is absolutely no way of answering these This does not mean the Respondent's duty to continue
questions. making these monthly payments becomes a contractual
In his brief, the General Counsel asks that the Compa- obligation. As argued by the Respondent, the Board is
ny now be ordered to pay to the employees who in May without authority to dictate any economic terms to be
1979 were contributing the permissible maximum, a full inserted into a collective-bargaining agreement even
7-1/2 percent of their pay from August 30, when the l n se rt ed l n to a collective-bargaining agreement, even7-1/2 percent of their pay from August 30, when the where it has been found there was bad-faith bargaining,
union contract was signed, to the day the Respondent as here. In fact, the August 30 contract signed was for a
complies with this Order to cease and desist. He also 1-year period; whether it has been renewed this record
asks, if I read him correctly, that as to those employees does not show. But the Respondent must continue
who were then contributing less, or nothing at all, the s n o t s w B u t h e eodent must
Company pay to their benefit "the maximum amount making the payments here ordered until such time as it
each employee could [would?] have contributed." The does bargain in good faith. When that point has been
suggestion is founded upon pure speculation. To order reached is a question left to the compliance stage of the
the Company to pay the full 7-1/2 percent to persons proceeding.
who had as yet not decided to contribute anything It is possible this formula places a liability on the Re-
would be more in the nature of punitive, rather than re- spondent in excess of what its burden might have been
medial action. And to order the Company to pay the full had it not committed the unfair labor practice found. But
7-1/2 percent to these employees who chanced, in May "the burden is upon the employer to establish facts
1979, to be comtributing that much, means giving them which . . . would mitigate that liability [N.LR.B. v.
something to which they may not be entitled, because Brown & Root, Inc., et al., 311 F.2d 447 (8th Cir. 1963)],"
they too might have changed their percentages depend- and there is no way a more reasonable formula could be
ing upon economic conditions. Under such a procedure evolved in this case. Concededly there is an element of
surely the man who was giving nothing, or very little, uncertainty in this remedy. As precedent holds: ". .. the
will say he would have gone up to 7-1/2 percent had he backpay claimant should receive the benefit of any doubt
had the opportunity. And as surely the man who was rather than the Respondent, the wrongdoer responsible
giving 7-1/2 percent will assert he never would have for the existence of any uncertainty and against whom
lowered his amount. However the concept be viewed, it any uncertainty should be resolved." United Aircraft Cor-
would be a guessing game; there simply is, and there poration, 204 NLRB 1068 (1973). See also: J. H. Rutter-
never will be, any way of knowing how what did not Rex Manufacturing Company, Inc., 194 NLRB 19 (1971),
happen would have happened. and N.LR.B. v. Miami Coca-Cola Bottling Company, 360
In the circumstances, I think a fair overall make-whole F.2d 569 (5th Cir. 1966).
formula will be as follows: A representative period There is another side to this coin. Some of the employ-
shows on the record that for the month of May 1979 the ees involved, looking to the past, will feel they are get-
Respondent contributed a total of S75,000 on behalf of ting less than their proper share. Others, no doubt, will
all the employees in the two bargaining units to their receive more than they probably would have benefited in
credit in the stock investment plan fund. The record also matching funds during the period following the unfair
shows-at least McCreary's statement to that effect labor practice. It is in the nature of collective bargaining
stands uncontradicted-that in June 1980 the trustees of that employees act together, make common cause vis-a-
the fund suspended the Company's matching fund contri- vis their employer. Just as a union may contract to have
$
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it lt t . r s t rs r es e t st therefore also pay, as part of the ake-
t r i i t i . t li e s c stock ould have earned bet een the onth in-
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first ti r i l t l i t t '
questions. ~~~~~~~~making these onthly pay ents beco es a contractual
I is ri f, t r l s l sks t t t - a ti n . s e y t es n s a ci
y be ordered to pay t t l y s i whoathorit y t he Recono i t t
r tri ti t r i i l i , f ll iw t h o u t au t h o n ^ t o dl c ta t e-ri economic terms to be
- / r t f t ir fr t , t wn s ert ed i nt oh a ll ti - r i i r t,
union contract was signed, to the day the Respondent aw h er e It nh as be en f o u nd t h ere w a s bad-faith bargaining,
li it t i r r t i t. l as he re I n f a c t th e A u gu s t 3 0 c o n t ra c t signed was for a
sks, if I r i rr tl , t t s t t s l B'" pe o ds w h t h e rs . h as be e" r ewed this record
r t tri ti l ss, r t i t ll, t md o es n o t s po e u ts t h e respondent t continue
y t t ir fit "t xi a ount m ak l n g the pay ents here ordered until such ti e as it
l l [ l ] t i t . rdoes i i i i
ti i cul ti . erpreache i ti l ft t t li t f t
l t rsonsproce .
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R es p o nd en t m us t c o n ti m u e
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athorit
WEIRTON STEEL 677
some employees be paid a higher rate than others, even v. THE EFFECT OF THE UNFAIR LABOR PRACTICES
so, to achieve a workable remedy in a problematic case, UPON COMMERCE
the Board may balance conflicting interests among the The unfair labor practices of the Respondent set forth
employees in the interest of all as a total group. Com- in section III, above, occurring in connection with the
pare: International Association of Bridge, Structural & Or- operations of the Respondent described above, have a
namental Ironworkers, Local 373, 232 NLRB 504 (1977). close, intimate, and substantial relationship to trade, traf-
And finally, the really coercive effect of the Respond- fic, and commerce among the several States and tend to
ent's unfair labor practice was in denying these employ- lead to labor disputes burdening and obstructing com-
ees the cash benefits of the plan, and not in its refusal to merce and the free flow of commerce.
talk about it with their union. If the remedy be limited to
talking about it all over again, even in good faith, the re- CONCLUSIONS OF LAW
straining force upon the employees' prounion resolve- 1. By refusing to bargain with the Union in good faith
the end object of the Respondent's purpose-will remain on the subject of its existing stock investment plan, the
a fact of life. This means the Company will continue, as Respondent has violated and is violating Section 8(a)(5)
it has since 1979, to enjoy the fruits of its unfair labor of the Act.
practice. It is the Board's duty to avoid such a pointless 2. By denying its Weirton Steel Division salaried em-
ending to the entire proceeding, as was the case in the ployees the continued benefit of its stock investment plan
Sixth Circuit Court in the Kroger case, supra. Merely be- for the purpose of restraining and coercing them, and
cause a more nearly perfect restoration of the status quo other employees of National Steel Corporation, with re-
would present "complex problems and multiple ramifica- spect to their union activities, the Respondent has violat-
tions" is not reason enough for abandoning justice alto- ed and is violating Section 8(aX3) of the Act.
gether. 3. By the foregoing conduct, the Respondent has vio-
lated and is violating Section 8(a)X1) of the Act.
4. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]
.
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t ti l i , t t l - r ti s f t e espondent described above, have a
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