Continental Copper & Steel Industries, Inc.

BRAEBURN ALLOY STEEL DIV. 1127 Braeburn Alloy Steel Division, Continental Copper & Steel Industries, Inc. and United Steelworkers of America, AFL-CIO . Case 6-CA-6009 April 16, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 20, 1972, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief and limited cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent with this Decision. The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(5) and (1) of the Act by bypassing the recognized bargaining representative, the International Union, and by dealing instead directly with officers and committee- men of the International's Local Union. For the following reasons we disagree with this conclusion and dismiss the complaint. The United Steelworkers of America, AFL-CIO, here called International, has been for many years the recognized bargaining agent for Respondent's production and maintenance employees at its Brae- burn plant, which alone is involved in this proceed- mg.' The employees at the plant are members of the International's Local 1084 which designates certain of its members as bargaining committeemen but which, as is agreed, is not itself a recognized bargaining agent either individually or jointly with the International. Typically, in the past, all bargain- ing on the union side has been done by an International representative accompanied by Local committeemen. In August 1971, -the International served on Respondent notice to negotiate a new agreement to succeed the then current one which was to terminate on November 1, 1971. Rather fruitless negotiation meetings took place in October. Respondent would not accept the International's proposals which included substantially increased economic benefits, and on November 1 the employees rejected Respon- dent's counteroffer, more modest in its improve- ments, and then struck. About 10 days later, Respondent notified Ivanusic, the International representative, that it had decided for economic reasons to shut down its Braeburn plant. Shortly thereafter it advised the International that it could not continue its operations at Braeburn absent an agreement making possible a substantial reduction in costs. December 1971 and January 1972 saw Respon- dent proceed with its plans for liquidation. However, in early February 1972,2 employees and members of the Local bargaining committee sought to induce Respondent to abandon its plan to close down Braeburn, and, on February 17, Grotta, Respondent's director of labor relations, told Ivanu- sic that he was now authorized to negotiate on reopening the plant. On February 26 Respondent met with Ivanusic and the Local bargaining commit- teemen from all three units and offered a 3-year contract until March 1, 1974, providing, inter alia, for substantial reductions in various costs. No agreement was reached, but union representatives agreed to present the offer to unit employees for their consider- ation. Thereafter, as the record shows, Respondent attempted at various times to persuade Local officers and committeemen to effectuate acceptance and execution of its proposed agreement of the 26th. Thus, in response to the request of two Local committeemen and without consulting the Interna- tional, Respondent modified the "extra" vacation provision of its February 26 offer. Further, it sought from Local representatives statements acknowledg- ing the Local membership's ratification of its offer of February 26; and on March 9 it met with the production and maintenance committee, in the absence of Ivanusic, in an unsuccessful attempt to have the committee sign the contract. Then, again in Ivanusic's absence, it met with the Local's officers and committeemen on March 14 and finally did secure their signatures on the agreements for all units. At all times material herein, the International has refused to sign these agreements. In finding, essentially on these facts, that Respon- dent, by dealing directly with the Local and its committeemen and by executing collective agree- ments with them covering the units represented by the International, bypassed the latter in derogation I Actually the International is also the certified bargaining agent for small units have thus normally followed the lead of the production and units of Respondent's Braeburn clerical and technical employees The maintenance group, our discussion for purposes of simplicity and clarity practice in the past has been for the International and Respondent to agree deals, unless otherwise indicated, directly with that large group. first on a production and maintenance contract and then for the technical 2 All dates hereinafter occurred in 1972 unless otherwise indicated. and clerical units to agree to such contract with minor variations As the two 202 NLRB No. 171 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its exclusive bargaining rights under Section 8(a)(5) and (1) of the Act, the Administrative Law Judge rejected Respondent's contention that the International was "estopped from denying the existence of a valid agreement" by virtue of certain statements made by its principal representative, Ivanusic, during the period of time that Respondent was dealing with the Local representatives. We disagree with the Administrative Law Judge's con- clusion that the International's conduct here, in the person of Ivanusic, does not throw a different light on what, absent that conduct, might well have been unlawful conduct by Respondent. Without question Ivanusic acquiesced in the direct contacts between Respondent and Local representa- tives. Thus, he knew that such direct contacts were being made, but at no time did he seek to interpose the International's exclusive representative status and stop- either Respondent or Local representatives from communicating directly with one another. On the contrary, the record abundantly shows that Ivanusic by his conduct directly encouraged Respon- dent and Local committeemen to deal directly with one another with respect to the February 26 offer. Immediately after the February 26 meeting, Ivanusic told representatives of Respondent that he had no doubt that the employees would go for Respondent's offer which, however, he added, the International would not approve. Nevertheless, he voiced the opinion to Respondent that, as had occurred on occasions in the past with locally approved contracts, the International might dust put it "in a drawer"-a statement surely implying possible International acquiescence in, if not formal approval of, a locally reached agreement . On March 9, when Grotta, Respondent's chief negotiator, telephoned him about a company meeting in progress with the Local committee concerning signing of a contract based on the company offer, Ivanusic made no objection to such a meeting being held. Rather he simply stated that if he were a Local representative he would sign the contract but that the International would not. And several days later after meeting with the Local committee, Ivanusic reported to Respondent he was sure the Local committee would sign the contract, repeated he would if he were a Local representative, and then added his by now customary disclaimer that the International would not approve, again suggesting that the International might do no more than put the contract "in a drawer." He also stated that he would have breakfast with the Local committee later in the morning of that day, March 14, at which time the committee would make its final decision on signing the contract-a statement this time surely recognizing the substantial area of authority vested in the committee. Also, the record is devoid of evidence to show that Ivanusic took any steps to prevent Respondent's meeting with Local representatives that morning for the purpose of securing their signatures on its proposed agreement, which was in fact signed at that time and shortly thereafter placed in effect, while the record affirma- tively shows that Ivanusic facilitated Respondent's course of conduct by encouraging Local representa- tives to proceed on their own-and absent Interna- tional approval-with consideration of the Compa- ny's February 26 offer. This is shown by Ivanusic's failure to attend the Local meeting of which he had notice and at which the Local membership voted on the company offer, and by his several comments to Local officers and committeemen that he would sign the proposed contract if he were a Local representa- tive. In view of the foregoing, we find that the International Union through its agent Ivanusic acquiesced in and encouraged Respondent's direct dealings with the Local representatives concerning its February 26 contract proposals and that it also facilitated such direct dealings by encouraging Local representatives to work directly with Respondent concerning its proposals. Consequently, Respon- dent's conduct complained of here did not constitute unlawful bypassing in negotiations of the established recognized bargaining representative but was, on the contrary, conduct acquiesced in, and encouraged by, that bargaining representative. Therefore, we find contrary to the Administrative Law Judge that such conduct did not violate Section 8(a)(5) and (1) of the Act. As we have found that Respondent's conduct leading up to the execution of the contract on March 14, 1972, was not unlawful, we further find, contrary to the Administrative Law Judge, that Respondent's placing in effect new terms and conditions of employment specified in that agreement was not unlawful under Section 8(a)(5) and (1) of the Act. Accordingly, we shall dismiss the entire complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION SAMUEL M. SINGER, Administrative Law Judge: This proceeding was tried before me in Pittsburgh, Pennsylvania, on July 26-27, pursuant to a charge filed on April 10 and complaint issued on May 15, 1972. In general, the complaint alleges that Respondent , in violation of Section 8(a)(5) and ( 1) of the National Labor Relations Act, has failed and refused to bargain collectively with the Charging Party (International) as the exclusive bargaining represent- BRAEBURN ALLOY STEEL DIV. 1129 ative of its employees by bypassing International and executing a collective agreement with one of its locals; and by unilaterally, without prior notice and consultation with International, instituting certain work rules. At the hearing, the complaint was amended to allege that a strike called by International in July 1972 was an unfair labor practice strike. All parties appeared and were afforded full opportunity to be heard, to examine, and to cross-examine witnesses. Subsequent to the trial on September 5, 1972, briefs were filed by the parties. Upon the entire record' and my observation of testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a Delaware corporation, with its principal place of business in Hillside, New Jersey, is engaged in the manufacture and sale of specialty steel. Solely involved here is its facility at Braeburn, Pennsylvania. Respondent annually sells to purchasers in other States, and purchases and receives from sellers in other States, goods and materials valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce and operations affecting commerce within the meaning of the Act. The Charging Party (International) is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts 1. Past contractual relations Respondent and International have had a long history of contractual relations dating back to 1940 in regard to the Company's production and maintenance employees. In December 1945 and again in January 1963, International was certified as exclusive representative of Respondent's office clericals and technical employees, respectively. Prior collective agreements, including the last 3-year contract, expiring on November 1, 1971, expressly stipulated that the agreements were between Respondent and "the United Steelworkers of America, or its successor."2 Historically, company officers would meet with an International staff representative and production and maintenance employees (committeemen of Local 1084) and negotiate a contract to be approved and signed by Respondent's officials and top International officers (including President Abel, other officers, and District 19 Director Hart) as well as by the staff representative and committeemen. After the pro- duction and maintenance collective agreement was settled, I Transcript corrected by my order on notice, dated September 5, 1972 Respondent's motion, dated September 6, 1972, for additional corrections is hereby granted General Counsel's objection to two corrections proposed by Respondent is overruled 2 This practice was in accord with International's constitutional provision that International "shall be the contracting party in all collective agreements" and all agreements "shall be signed by the International officers." Under its constitution, no subordinate body, including officers or the "economics" agreed to would be applied to the other two units (plant clericals and technical employees), with the International staff representative for the other two units and his committeemen confining their negotiations to noneconomic items. Although separate agreements are signed for all these units, all have common effective and termination dates. 2. The abortive October negotiations for a new agreement ; the November 1 strike call On August 25,3 International served on Respondent notice that its contracts would terminate on November 1 and requested a meeting to negotiate new agreements. On August 31, Respondent answered it would be "very happy" to negotiate subject to the limitation of the Presidential Executive Order relating to "freezing wages and puce increases." The parties thereafter met three times in October. The Company was represented by Grotta (its chief spokesman and also an attorney and director of industrial relations for the parent company-Continental Copper and Steel Industries), by Wolfson (group vice president and an officer of Continental as well as general manager of the Braeburn Division), and by Stanton (director of industrial relations for Braeburn). The Union was represented by its chief spokesman Ivanusic (Interna- tional staff representative) and by approximately eight production and maintenance employees and occasionally (in post-October meetings) by Malec (International staff representative for the office clerical and technical units) and employees serviced by Malec. In the October meet- ings, Grotta took the position that because of the Company's condition Respondent could not even "consid- er the steel package or. . .pattern" (i.e., the economic terms already settled by "Big Steel" and International), but that it was willing "to do something because of the cost of living." When Ivanusic turned down Respondent's eco- nomic offers, Grotta asserted that the Union was "unrealis- tic" and that the plant could close down and the men "would lose their jobs," pointing to another company division which was forced to liquidate because the union at that installation (not connected with International) was unreasonable. Ivanusic commented that the Company's offers "would be disposed of by the membership." At the October 29 meeting, Grotta made his final offer of a 3-year contract with a 3-percent "economic package" (wages and fringe benefits) increase for the first year, the same percentage increase for the second year, and a 3 1/2- percent increase the third year; or, in the alternative, a 1- year contract with a 3-percent increase.4 After caucusing on the offer, Ivanusic and his committee submitted the proposal to the membership, which rejected it and voted to strike upon termination of the current agreement (Novem- ber 1). agents of locals, is empowered to act for or bind International except "upon express authority" given by the constitution or written approval of the International president or executive board 3 Unless indicated otherwise, all dates cover the August 1971-July 1972 period. 4 According to Grotta, the percentage increase International obtained under the "basic steel contract" had averaged about 5 1 /2 percent. 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The November 10-February 17 discussions concerning liquidation and phaseout of company operations On November 10, Industrial Relations Director Grotta notified International Representative Ivanusic of the Company's "final decision" to close down the Braeburn Division, offering to meet with him to discuss orderly liquidation .5 Thereafter, until February 17, the parties discussed the "phaseout" operations and the employees' right to terminal benefits such as severance pay and pensions. In a meeting held on November 17, attended by Ivanusic, Malec, and their committees, the Union pro- posed a 1-year extension of the last collective agreement, but the Company answered that "this came pretty late in the game," after the employees already resorted to a strike; however, it was indicated that the proposal would be considered further. On November 17, Grotta wrote the Union to "confirm" the parties' understanding regarding the closing and liquidation of the plant, including the withdrawal of the pickets from around the premises, and the return of employees beginning with November 29 to complete the work in progress and phase out all operations. At a meeting held on November 23, Ivanusic handed the Company a letter offering to have the employees "return to work immediately upon the same terms and conditions as were in effect up to October 31, 1972." During the discussion on liquidation, Ivanusic asked the Company "what would it take to keep the plant open." Respondent's representatives stated that "we needed a 20 percent reduction in costs" through a reduction (5 percent) in past wages, elimination of all "extra vacations" received under the expired contract, and an increase in productivity.6 Ivanusic rejected the offer, counterproposing a 2-year extension of the prior agreement with a waiver of one of the "extra" weeks of vacation stipulated in the old contract.? There followed an exchange of correspondence covering the phaseout operations. Among other things, Respondent agreed to reopen the plant and recall some of the employees on December 27 in order to complete the work in progress and to "liquidate" inventory machinery and other materials.8 Around February 8, Wolfson (general manager of Braeburn and group vice president of the parent, Conti- nental) received a petition from employees (union and nonunion) appealing to the Company to reconsider its decision to terminate operations at Braeburn. A day or two later, Yeager and Moret, two of the eight production- maintenance committeemen (who did not sign the peti- tion), arranged to see Wolfson to discuss what steps could be taken to keep the plant open. Both had heard "rumors going around that . . . Mr. Wolfson couldn't understand why some of the committee wasn't going to see him" about 5 Grotta stated that he was sending a copy of the November 10 letter to Malec, the International representative who handled "the other two units. . .namely, the office and clerical employees and the technical employees." 6 The expired contract provided for "regular" vacations, based on length of service, and "extra" vacations (2 weeks for 50 percent of the work force with highest seniority and I week for the rest) 7 Concurrently with its November 23 offer to return to work, the Union ceased picketing and abandoned the strike this matter. When they told Wolfson that some of the men thought "there may be a chance to save the mill," the latter answered that he also "hated to see the plant go down." Wolfson said that he was going to the Company's headquarters in New York on February 17, and asked if the committee could "recommend anything that [he] could take back to show the board of directors and [Company President] Fielder" to persuade them to keep the plant open. Yeager said they "couldn't give him anything like that until the whole committee drafts something up."9 On February 17, representatives of Respondent and of International met in New York. Grotta informed the Union of the employee petition and of telegrams received from mayors of two communities requesting the Company to reconsider its decision to close the plant. To Grotta's statement that he had been authorized to negotiate further if the Union would come up "with any suggestions with respect to opening up the plant," Ivanusic responded that the matter would be taken up at a union meeting. 4. The February 26 meeting concerning the possible reopening of the plant The parties met on February 26 to discuss the terms of reopening the plant. The Union was represented, by an "enlarged committee" consisting of its two International staff representatives (Ivanusic and Malec) and members of the negotiating committees for all three units-all members of Local 1084. Ivanusic started the meeting by asking "what is it going to take to open up." After referring to its losses because of the shutdown, Respondent's chief spokesman Grotta stated that the Company "would be willing to open up" if the Union agreed to extend the expired collective agreement until March 1, 1974, and to eliminate "all extra vacations, both to senior and junior people-two weeks in the case of senior and one week in the case of the juniors." Grotta indicated further that the Company would have to be empowered to eliminate or combine jobs in all three units, subject to review by a Joint Labor-Management Productivity Committee in each unit; that operations "shall be continued" and uninterrupted*for coffeebreaks or wash-up periods, although employees would be permitted to drink coffee at their stations; that the Company would be entitled to formulate "reasonable" work rules, not violative of the collective agreement, to be "posted" throughout the plant subject to the Union's right to question their reasonableness through the contractual grievance machinery; that Respondent be empowered to establish "new incentives" in the hammer shop in accord- ance with proper engineering practices "without reference to any other clause of the Agreements"; and that any past practices contrary to these terms "shall have no force and effect" and "shall be disregarded by the Joint Labor- s The findings herein before made concerning the past contractual relations between the parties and the negotiations in October and November are based on substantially undisputed evidence and the composite credited testimony of company and union officials (including Grotta and Ivanusic) 9 The findings in the foregoing paragraph are based on the credited mutually corroborative testimony of Yeager and Moret and in part on that of Wolfson. The latter stressed that he had agreed to see the committeemen pursuant to his "open door" policy BRAEBURN ALLOY STEEL DIV. Management Productivity Committees or in any arbitra- tion procedures." 10 At the end of the meeting the Union agreed to present the Company's proposals to the member- ship. As the Company's representatives were leaving, Interna- tional Representative Ivanusic accosted Grotta in the hall and told him that while "there was no question in his mind that the rank-and-file [Local] would go" for the Compa- ny's reopening offer, he thought that Grotta "ought to know" that Ivanusic's supenor, District Director Hart, "will probably", oppose and "not sign it" because Interna- tional had recently been able to secure the basic steel industry, "package" from other holdouts (i.e., competitors of Respondent such as Vasco) "at the last minute" under threat of strike. When Grotta remonstrated that "Braeburn couldn't compare with these other companies like Vasco" because Braeburn was "very small" in comparison and was in "financial difficulty," Ivanusic observed that it could well be, as had happened before, that International might just decide to put the contract approved by the local "in a drawer" and forget about it-citing an instance when this had happened and the employer in effect operated without a collective agreement." 5._ Respondent's individual dealings with employees to secure approval of its February 26 reopening proposals Two days later (Monday, February 28) employees Yaeger and Moret at their own request met with General Manager Wolfson. They told Wolfson' and Industrial Relations Director Stanton, who was also present, that the senior employees were very, much concerned about the Company's February 26 reopening proposal regarding vacations (i.e., the suggested loss of the two "extra" weeks vacation to which they were entitled under the expired contract-supra, fn. 6) and suggested that the Company's reopening offer would have a better chance of passing at the scheduled February 29 Local ratification meeting if Respondent agreed to give the senior men at least one "extra" week. Wolfson said he would "contact" New York. The next day (Tuesday, February 29), before the member- ship meeting, Stanton asked Yaeger and Moret to meet with him and Wolfson, which they did. Wolfson informed them that New York "would go along" with their proposed change on vacation.12 At these two employees' request, Wolfson agreed to reduce the Company's proposals, including the new vacation provision, to writing in order to present them to a membership meeting that afternoon.13 10 According to Company Representative Grotta, the above company "reopening" proposals (except on vacations) were exactly those contained in G.C Exh 12, which the Company reduced to writing after the February 26 meeting at the request of the Union 11 The findings in this section are based pnmanly on the composite testimony of Grotta and Ivanusic The latter admitted telling Grotta that if the contract was approved by the employees "it would probably be put in a drawer" and "just [be] forgotten" by International, but Ivanusic also insisted that he had warned Grotta that International "could not agree to such an agreement as was proposed" on February 26 Grotta conceded that Ivanusic had given such warning, that he was told Ivanusic's supenor (District Director Hart) "would not sign it," that past contracts always bore Hart's and other International officials' signatures, and that Ivanusic had said there was "a possibility" that the International would not sign the agreement even if the employees voted for it 1131 At the meeting held that afternoon, the production and maintenance employees approved the Company's reopen- ing proposals by a vote of about 134 to 39. When Yaeger notified Wolfson of the vote, the latter said that he was "happy" but asked if Ivanusic had attended the meeting. Yaeger said he had not. Nevertheless, Company Chief Negotiator Grotta "proceeded to draw up an agreement, a formal agreement of [sic] supplement." On March 1, the employees in the technical unit and those in the office and clerical unit also voted to accept Respondent's reopening proposal. Malec, the International's staff representative for these two units, testified credibly that he was not aware of these meetings and that he had not recommended approval of the company proposals to anyone. Ivanusic testified credibly that although he knew of the maintenance- production unit meeting, he "refused to be a party to it." Shortly after the production-maintenance ratification meeting, Industrial Relations Director Stanton approached employees Yaeger and Moret and told them that the Company wanted "a letter, saying that the body had voted and accepted the Company's proposal." When Yaeger mentioned that he "didn't know how to draft" one, Stanton said that the other two units had already signed such letters and he could come to his office to "draft one up together." The letter was thereafter prepared in the office, but, after Yaeger discussed it with other committee- men, it was decided not to sign it and the letter was destroyed. Stanton then called the production-mainte- nance committee to Wolfson's office. Wolfson told the committee that he had been unable to reach Ivanusic and asked why the committee had not signed the letter. One of the committeemen said that even if the committee approved the Company's proposals, "it wouldn't mean anything any way, without the International's signature on it.,, 14 6. The International's refusal to sign Respondent's proposed agreement; Respondent's continued attempts to secure the Local's approval of the agreement; and the Local's ultimate execution thereof On March 8, Industrial Relations Director Stanton telephoned International Representative Ivanusic and told him that the contracts were ready for signature and that he wanted to meet with him and the Local's negotiation committee to sign the documents. Ivanusic said it "would serve no useful purpose" because he could not sign it.15 Stanton nonetheless met with the committee on March 9 12 According to Stanton , this concession was worth approximately $40,000 annually 13 The above findings are based pnmanly on the credited testimony of Yaeger, in substantial part corroborated by Moret and Wolfson. 14 Based on Yaeger's credited, substantially uncontradicted testimony Stanton admitted asking Yaeger to prepare the letter and that it was typed by Stanton's secretary 15 Both Ivanusic and Stanton testified regarding this incident . According to Stanton, in answer to his observation , "Well, what about the committee if they don't sign these, if you are not coming over " Ivanusic responded, "It is entirely up to the committee " I do not credit this testimony since Stanton's own version makes it clear that Ivanusic in this very conversation indicated that International was still holding out for the steel industry basic agreement Stanton quoted Ivanusic as stating that a competitor at "the last Continued) 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and "solicited their signatures ," but (in Stanton's words) "they would not sign if the International did not sign." Stanton immediately reported the incident to Chief Company Negotiator Grotta, who told Stanton "to keep the committee in his office" until he telephoned Ivanusic. According to Grotta, Ivanusic denied instructing the committee not to sign the agreement and quoted Ivanusic as saying that "if he was in their position, that he would sign." After relaying this information to Stanton and to Local President Smith (who was in the plant with the committee), the latter stated that the committee would visit the International office on the following day to settle the matter. In his conversation with Smith, Grotta warned that "this Company is fed up with the way that this thing had been handled , and we are going to seek legal remedies against the International , as well as the individuals who were involved" because of the losses Respondent sustained by its announced offer to reopen the plant. Grotta immediately called the International 's office to speak with International President Abel in order to give him "our side of the story, before he [Abel] met with the committee." He ultimately spoke with one of Abel's aides (Assistant General Counsel Lawson) who told him that he already had met with the committee , that "the agreement in its present form" would not be signed by International, and that if Grotta wished to carry on further negotiations he should do so with Ivanusic. On March 13 , Grotta _met with Ivanusic and his production-maintenance committee , just before a regularly scheduled Local 1084 meeting . After reviewing his previous (March 9) conversations with Local President Smith, his later exchange with the International 's (Assistant General Counsel) Lawson, and his earlier (February 26) talk with Ivanusic (supra, sec. A,4). Grotta warned that in view of the International's refusal to sign his previously prepared reopening agreement, Respondent was "going definitely to proceed" against the International, the Local, "and the individuals concerned" for damages. According to Grotta, he told them that this was the time "to make up their minds" to sign and that he also wanted the Local officers' signatures . Further, according to Grotta, the committee- men stated that they were "in favor of the settlement" and "would like to sign" the Company's proposed agreement, but hesitated because Ivanusic had warned them they might be brought up on charges . Grotta assured them that if they signed the agreement he "would recommend to the Company that they absolve you from any personal liability." The committee promised to consider the matter at the membership meeting that night and to inform Grotta of its position. At the Local meeting held that night (March 13), Ivanusic ' told the membership that the International would still not sign the Company's proposed reopening agree- ment. The meeting "got a little rowdy" and Ivanusic requested the membership to "just let" him talk it over with the Local's committee . Ivanusic then met with the committeemen and reaffirmed the International's decision moment. agreed to the steel package" after "it looked like" It would face a strike 16 As previously noted (supra, sec A,1), all past contracts were signed for the International by Hart and by International officers such as Abel, as well not to sign, but said that, "with all the pressure" they were under, their willingness to sign the agreement was understandable. According to Ivanusic, he said, "If I was on the local committee, I would, sign it, but as an International representative, I wouldn't sign it." Having heard nothing from the Union by 11 o'clock that night (March 13), Grotta telephoned the union hall, but obtained • no information until around 2 a.m., when Ivanusic visited Grotta's motel. According to Grotta, Ivanusic told him that the "probability" was that the contract would not be signed by his supervisor, Hart (the district director) and a member of the International executive board), explaining that there was "a political situation" between Hart and International President Abel regarding the forthcoming union election.16 Further, according to Grotta, Ivanusic again indicated that "as far as he was concerned, this thing will be put in a drawer"; that Ivanusic had told the committeemen that if he were in their position, he would sign; and that Ivanusic mentioned he would breakfast with the committee at 9 a.m., at which time the committee would make a "final decision" on signing the document. Ivanusic testified credibly that he told Grotta "there is no doubt in my mind that the committee is going to sign it, but I can't," again explaining that Hart "would not approve it." Later in the morning (March 14), the Local's officers and its production-maintenance committee met with Respon- dent and signed the Company's proposed agreement. Immediately afterward, Industrial Relations Director Stanton called in the committeemen for the technical unit and for the office and clerical unit to sign separate agreements, which they did.17 He gave the committees copies of the agreements to submit to International; and signed a separate agreement with the Local under which the latter undertook "to persuade the International Union to execute the agreements" signed with all three units. The document also provided that in the event the International sought to revoke Local 1084's charter or remove its officers for signing the agreements, the officers (and the signing committeemen) "will be released from any liability" by Respondent. When Stanton called Ivanusic on March 15 or 16 to ascertain if the International would sign the Agreement, the latter said "no". International has since continued its refusal to sign the agreements. 7. Application and enforcement of the March 14 agreements; the July 19 strike called by International Industrial Relations Director Stanton testified that, after execution of the March 14 agreements by Respondent and the Local, the Company "gradually increased [its] forces" and at the time of the hearing was "in full production." It was stipulated that the Company has applied and enforced the' provisions of these agreements. The Productivity Committee (consisting of company and Local representa- tives), established for the first time by these agreements, has met and engaged in discussions leading to elimination as by the International representative (Ivanusic). 17 As in the case of the production-maintenance unit, the staff representative for these two units (Malec) was not present. BRAEBURN ALLOY STEEL DIV. of various job categories. Grievances of various types (respecting vacations, insurance, holiday pay, etc.) have been processed thereunder. Respondent has also posted a set of rules and regulations subsequent to execution of 'the agreements.18 On July 19, International commenced to picket Respon- dent's plant with signs reading, "Unfair Labor Practice, No Contract with the United Steelworkers of America." The pickets consisted of International representatives and of members working for employers other than Respondent. Although Respondent's employees have not participated in the picketing, all (except a few, mainly office, employees) have refused to cross the picket line.19 B. Conclusions 1. Respondent's execution of the March 14 collective agreement with the Local, in derogation of International's exclusive representative status The legal principles here applicable are settled. "The National Labor Relations Act makes it the duty of the employer to bargain collectively with the chosen represent- atives of his employees. The obligation being exclusive ...it exacts `the negative duty to treat with no other.' " Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 683-84. Accordingly, an employer may not bypass and ignore the exclusive bargaining representative and sign a collective agreement with any other labor organization, even if such other labor organization happens to be a subordinate body or local of a certified International-unless, of course, the International, by delegation or course of conduct, has agreed to bind itself by or has ratified acts of its local. See N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 350, 362; Quaker State Oil Refining Corp. v. N.L.R.B, 270 F.2d 40, 45-46 (C.A. 3); Independent Stave Company, Inc. v. N.L.R.B., 352 F.2d 553, 558-561 (C.A. 8); General Transformer Company, 173 NLRB 360, 370-76. Here, International has been the exclusive bargaining representative of Respondent's employees in all three units (production-maintenance, office clerical, and technical) for many years. All prior collective agreements (including the 3-year contract which expired on November '1, 1971) expressly identified the contracting party as International, although, as was the practice, committeemen of Local 1084 servicing the Braeburn Division had participated in the negotiations along with International representatives. And, in accordance with International's constitutional require- ments, the agreements had to be and consistently were signed by International officers (including district director 19 having jurisdiction in the area) in order to be binding and effective. The 1971-72 negotiations commenced in the usual pattern in October when Respondent met with International Representative Ivanusic and Local commit- teemen to discuss the Company's contract proposals, which turned out to be considerably below the Internation- al's "Big Steel" settlement "package." In November and is These rules and regulations vary only in minor part from those in effect previously Contrary to General Counsel's contention (br p 11, In 9), the provisions pertaining to "continuous" operations, coffeebreaks, working time, and "reporting on and off" are substantially the same (see Resp. Exh I I and 12) 1133 thereafter, they discussed the Company's decision to close and "phase out" its operations at Braeburn and the Union's counterproposals as to what it "would...take to keep the plant open." Rejecting various union proposals for extensions of the last agreement, Respondent indicated that the Union's decision to strike and the steps the Company itself already took to cease operations required it to effect a 20-percent reduction in costs-comprising a reduction in past wages, elimination of "extra vacations," and an increase in productivity. Finally, at the February 26 meeting at which International Representatives Ivanusic (representing the major production-maintenance unit) and Malec (representing the other two units) were present, Respondent's chief spokesman, Grotta, offered "to open up" the plant if the Union agreed to a more-than-2-year extension of the last (expired) agreement on condition that all "extra vacations" (2 weeks for the senior and 1 week for the more junior employees) were eliminated and the Company were permitted to effect certain savings through job eliminations and other methods. Although the Union agreed to present the Company's proposals to the member- ship and Ivanusic opined that the employees "would go" for them, Ivanusic also told Grotta that he "ought to know" that Ivanusic's superior (District Director Hart) "will probably" oppose them because International recent- ly had been able to secure from other holdouts (Respon- dent's competitors) the full basic steel industry "package." When Grotta remonstrated that Braeburn's size and financial situation defied comparison, Ivanusic indicated that International might decide , as sometimes in the past, to put the contract (if approved by the Local) "in a drawer" and just "forget" it. Thereafter Respondent seized the opportunity to insure the Local's acceptance of its proposals by directly dealing with employees over the head of International. Within 2 days (February 28), two production-maintenance commit- teemen (Yaeger and Moret) suggested to General Manager Wolfson that an improvement in the company proposal (allowing at least one "extra" vacation week to senior employees) would make the company offer more palatable for passage at the upcoming Local February 29 meeting. Wolfson promised to discuss the matter with the main office in New York and later informed the committeemen that Respondent "would go along" with their suggestion regarding the Company's vacation proposal, even though the change (according to company estimates) would cost Respondent $40,000 annually. Later, after each of the three bargaining units voted to accept the Company's proposals, Company Negotiator Grotta "proceeded to draw up" the "formal" reopening agreements. Industrial Relations Di- rector Stanton solicited from employees Yaeger and Moret a letter to the effect that the production-maintenance unit had "accepted the Company's proposal." When Yaeger indicated he "didn't know how to draft" one, Stanton helped prepare it in his office. The production-mainte- nance committee, however, refused to sign the letter and it was thereupon questioned about it by General Manager 19 As noted at the outset of this Decision, at the hearing General Counsel amended the complaint to allege that the July 19 work stoppage by the Company's employees was an unfair labor practice strike, l.e, "caused and prolonged by the unfair labor practices of the Respondent " 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wolfson. One of the committeemen told him that the committee's approval "wouldn't mean anything anyway, without the International's signature on it." During its dealings with employees , as well as afterward, International continued in its refusal to approve and sign Respondent's proposed "reopening" agreement. On March 8, Ivanusic told Industrial Relations Director Stanton it "would serve no useful purpose" to meet with him because he could not sign it . Stanton nonetheless admittedly "solicited" the committeemen's signatures, but (as Stanton put it) the latter "would not sign if the International did not sign." Chief Negotiator Grotta then took the matter up with Ivanusic, who reiterated his view that his superiors would not approve the agreement , although (as he told Grotta) if he were in the committee's position, he would sign it. Grotta then warned the committee that he would take legal action against them as "individuals ," as well as against International , unless they signed. He reiterated this warning at a March 13 meeting with the committee and Ivanusic. When the committeemen indicated they were "in favor of the settlement," but feared signing it because they might be subjected to union charges, Grotta assured them that as far as the Company was concerned he would see to it that Respondent would "absolve [them] from any personal liability" if they affixed their signatures. At a meeting with the committeemen held shortly afterward, Ivanusic reaffirmed International's unwillingness to sign, although he also told them that "with all the pressure" brought against them he himself would sign the agreement if he were on the committee . Ivanusic repeated this to Grotta before the committee made its "final decision"; he also told Grotta that he had no doubt that the Local would sign the agreement, but added "I can't" because his superior (Regional Director Hart) "would not approve it" On March 14, Respondent and the Local signed copies of the reopening agreement (which the Company had proposed to International on February 26 and had modified as to vacations 2 or 3 days later in response to employee suggestions), separately for each of the three bargaining units. In another document signed simultane- ously, the committee undertook "to persuade the Interna- tional Uhion to execute the agreements" and Respondent, in turn, agreed to release the signing employees (officers and committeemen) "from any liability" if the Internation- al took union action against them . International has continued in its refusal to sign the agreements. Based on the foregoing and the entire record , I find and conclude that by dealing directly with the Local and its committeemen and by executing collective agreements with them covering the units represented by International, Respondent bypassed the latter in clear derogation of its exclusive bargaining authority , in violation of Section 8(a)(5) and ( 1) of the Act. I am not persuaded by Respondent's contention that International is "estopped from denying the existence of a valid agreement" (br. pp . 20, 25) because of certain statements made by International Representative Ivanusic. Thus, even if, as Respondent urges (br. p. 21), "[t]hrough- out negotiations, Ivanusic had stated that any proposal of Respondent would be decided upon by the rank -and-file," Ivanusic's statements amounted to nothing more than that the Company's proposals would be subject to membership ratification-a far cry from an authorization that the membership, the Local, or its committeemen were free to negotiate and conclude an agreement opposed by Interna- tional. See General Transformer Company, 173 NLRB 360, 371. Ivanusic's statements that, if he were part of the Local committee, he personally would sign the reopening agreement clearly implied-what he expressly stressed- that as an International representative he could not sign it. Ivanusic's further remarks, that if the contract were approved by the employees it "might" or even "probably" would be placed in a drawer and "forgotten" by Interna- tional, were in no sense promisory but merely conjectural, and certainly did not bind or estop International. In any event, it is clear that Respondent was not misled by them. To begin with, Ivanusic repeatedly put Respondent on notice that International-at times naming his own superior (Regional Director Hart)-opposed the agreement and would settle for nothing less than the "steel package" it had recently been able to secure from competitors. Furthermore, Respondent knew that, as in all prior collective agreements, Hart's and other International officers' signatures were prerequisites to a viable collective agreement. Indeed, the very agreements it executed with the Local on March 14 provided spaces 'for such signa- tures; and, concurrent with the signing of these agree- ments, Respondent gave the Local's officers and commit- teemen copies to submit to International-exacting from them written commitments to attempt "to persuade the International Union to execute the agreements"-hardly consistent with Respondent's current claim that execution by International was not required. Finally, on March 15 or 16, Respondent's industrial relations director, Stanton, himself, solicited International to sign the agreements. The foregoing also disposes of Respondent's unsupport- ed claim (br. p. 20) that "past dealings have demonstrated" that International officials ' signatures on collective agree- ments constituted a mere "formality." Respondent chooses to ignore the fact that past agreements have always been between Respondent and International . Under the circum- stances, I see nothing significant in the claim stressed by Respondent (br. p. 22), that subsequent to March 14 "the International never disavowed the existence of the new contract" and did not request further bargaining . Interna- tional's opposition to the agreement was repeatedly made, known before March 14, and was reiterated on March 15 or 16. In any event, International preserved its rights by filing the unfair labor practice charges herein on April 10. I find that the evidence with regard to the negotiations and Respondent's conduct surrounding execution of the March 14 agreements with the Local amply support the conclusion that Respondent was attempting to avoid its statutory responsibility and that its present claim that International is "estopped from denying the existence of a valid contract" is an afterthought contrived to justify its unlawful action in dealing with and signing the March 14 BRAEBURN ALLOY STEEL DIV. 1135 agreements with the Local in derogation of the exclusive representative status of International. 20 2. The alleged unilateral changes in working conditions As shown supra (sec. A,7), it was stipulated that the Company has since March 14 applied and enforced the agreements it, signed with the Local. These agreements provided, among other things, for a change in vacations; 21 established a Joint Productivity Committee for each of the three bargaining units; empowered Respondent to elimi- nate' and combine jobs, subject to review by these committees; provided for continuous and uninterrupted operations without coffeebreaks and wash-up periods; authorized Employer self-formulation and posting of "reasonable" work rules; and authorized Respondent to establish "new incentives" in the hammer shop. It was also provided that past practices contrary to these terms "shall have no force and effect." As Respondent points out (br. p. 26), if the agreements entered into on March 14 were lawful, there would be no need to consider the alleged unilateral violations. Having found that they were not, it is necessary to consider whether Respondent wrought any changes in preexisting terms and conditions of employment, i.e., those in effect prior to the November 1, 1971, expiration date of the last collective agreement. I have already noted (supra, fn. 18) that, contrary to General Counsel's claim, the rules announced and posted since March 14 vary in only minor and insignificant respects from those previously in effect; and that the provisions for "continuous" operations, coffeebreaks, wash-up time, and "reporting on and off" are substantially the same as before. Accordingly, I find no illegal unilateral company action with respect to these matters. However, it appears that the new March 14 agreements did bring about changes respecting vacations, established for the first time Joint Productivity Committees, and empowered Respon- dent,to establish "new incentives" in the hammer shop.22 The record also shows that Respondent has eliminated certain jobs in accordance with the terms and procedures provided by the new'agreements.23 I find that the above changes, effected through and by virtue of the unlawful March 14 collective agreements executed in derogation of the International's exclusive 20 The cases relied on by Respondent are distinguishable on their facts Thus as to Ste Genevieve Local 169 (Mississippi Lime Company), 191 NLRB No 115, and United Cement, Lime Gypsum Workers (Nevada Cement Company, 173 NLRB 1390-two cases where an International was found to have violated Sec 8(b)(3) of the Act for refusing to sign an employer- proposed contract accepted by the locals-Respondent states (br pp. 23-24) that the "Board rejected [therein] the Union's contention that the Local did not have authority to accept the employer's proposal under the International Constitution since (1) the International Representative had assured the employer it would have a contract if the Local membership approved the employer's proposal, (2) he made no mention of the Local's lack of authority, (3) the Union's conduct was not contrary to any of the provisions of the International Union Constitution and any deviations were sanctioned by the International Union representative " Respondent's quoted analysis, even if taken at face value, itself shows that the cited cases are wholly inapplicable to the facts here Moreover, in both cases the Board stressed that the International representative had apparent authority to bind the International Here, Ivanusic (the chief union negotiator and spokesman for the production-maintenance unit) had neither actual nor apparent bargaining authority, were violative of Section 8(a)(5) and (1) of the Act. See N.L.R.B. v. Katz, 369 U.S. 736. Respondent's conduct was unlawful, even "without also finding [the Company] guilty of overall subjective bad faith." Katz, 396 U.S. at 747. Moreover, the fact that Respondent had discussed and may even have reached an impasse on any of these subjects (e.g., vacations) does not exculpate its conduct. Before an impasse may be raised as a defense to a charge of refusal to bargain, it must appear that the employer complied with his statutory obligation to bargain. See N. L. R. B. v. A ndrew Jergens Co., 175 F.2d 130, 136 (C.A. 9); Industrial Union of Marine and Shipbuilding Workers of America (Bethelehem Steel Company), v. N.L.R. B., 320 F.2d 615, 621 (C.A. 3). This it did not do here where it bypassed the statutory representative in conclud- ing the unlawful March 14 agreements. I conclude that Respondent also violated Section 8(a)(5) and (1) by unilaterally changing terms and conditions of employment. 3. Status of the strike Although International filed unfair labor practice charges alleging violation of Section 8(a)(5) and (1) on April 10, it did not call a strike against Respondent until July 19. The pickets-International representatives and members employed by employers other than Respondent -carried signs reading "Unfair Labor Practice, No Contract with the United Steelworkers of America." I find and conclude that insofar as International is concerned the strike was caused by Respondent's unfair labor practices, including its execution of the March 14 collective agreements with the Local, in derogation of International's exclusive bargaining authority. See Mastro Plastics Corp. v. N.L.RB., 350 U.S. 270, 278; N.L.R.B. v. Fitzgerald Mills Corp., 313 F.2d 260, 269 (C.A. 2). It is well settled that in an unfair labor practice strike, the employer is under a legal duty to reinstate unfair labor practice strikers upon request, even if to do so requires the employer to discharge their replacements. Presumably it is on the basis of this rule that General Counsel urges (br. p. 21) that Respondent's employees who refused to cross the picket line be granted the "unfair labor practice striker status and provide[d]. . .all the benefits of such status." In my view, the peculiar circumstances in this case do not warrant application of the usual rule. It will be recalled authority to do so; and he repeatedly warned Respondent that its proposals would not receive international approval. Malec, the International representative who spoke for the two other units (office clerical and technical employees), was not even contacted by Respondent before it requested the Local to sign the contracts covering those units 2i I e, elimination of "extra" or bonus vacations-senior employees to receive I instead of 2 weeks as formerly, and junior employees (who formerly received I week) to receive none 22 While, as Respondent claims (br p 27), the preexisting 1968-71 collective agreement authorized it to establish "new incentives," the procedures for doing so imposed on it substantial limitations ; under the new agreement the new incentives could be established "without reference to any other clause of the Agreements " 23 1 reject Respondent's claim (br p. 26) that under the 1968-71 agreement Respondent "did not have to bargain with the Union" concerning elimination (and combination) of lobs The Union did not waive such right to bargain under sec 2 ("Management " clause) and 10 ("Seniority"), the provisions Respondent relies on 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that after the Local signed the March 14 agreements, employees in all units returned to work-notwithstanding Respondent's unfair labor practices. It was not until International set up its own picket line that the employees withdrew their services-perhaps out of reluctance to cross a picket line' for fear of International sanctions. In any event, it would appear that in a case like this, where employees had returned to work under the peculiar circumstances described-based upon their own "ratifica- tion" of their local committeemen's "agreement"-the employees should in fairness be regarded as estopped from claiming advantage by reason of their own acts. I conclude that although the July 19 strike was an unfair labor practice strike vis-a-vis International, the strikers who had previously returned to work despite Respondent's unfair labor practices do not occupy the status of unfair labor practice strikers.24 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of the Act. 3. At all material times, said Union (International) has been and is the exclusive bargaining representative for purposes of collective bargaining of Respondent's employ- ees in the production and maintenance, office clerical, and technical employee units described in the complaint, by virtue of Section 9(a) of the Act. 4. Respondent violated Section 8(a)(5) and (1) of the Act by bypassing said International in derogation of its exclusive bargaining authority, by dealing directly with a local thereof not the statutory representative of its employees, and by executing the March 14 collective agreements with said Local covering the units represented by International. 24 The record does not disclose whether all of Respondent's employees were recalled or returned to work between March 14 and July 19 Moreover, it may be that some actually refused to return to work because of the unfair labor practices. The entire matter may be explored later in compliance 5. Respondent also violated Section 8(a)(5) and (1) of the Act by unilaterally, and in derogation of Internation- al's exclusive representative status, instituting changes in terms and conditions of employment by virtue of the above-mentioned collective agreements. 6. The strike called by International on July 19 was and is an unfair labor practice strike, but employees who had returned to work between March 14 and July 19, as a result of the March 14 collective agreements between Local 1084 and Respondent, do not qualify as unfair labor practice strikers even though they did not cross International's picket line on and after July 19. 7. The unfair labor practices enumerated in above paragraphs 4 and 5 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY "Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, Respondent should be required to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act. Respondent will be required to cease and desist from performing or giving effect to its March 14 agreements with Local 1084; and to bargain collectively, upon request, with International as the exclusive representative of the employees in the appropriate units and embody in signed agreements any understandings reached. In his brief (p. 21), General Counsel states "inasmuch as the unilateral changes involved the elimination of certain jobs [under and by virtue of the March 14 agreements], Respondent should [also] be ordered to reinstate any employees who lost their jobs by reason of these unlawful changes and to pay them backpay." I agree and the order will so provide.25 [Recommended Order omitted from publication.] proceedings if not adjusted prior thereto 25 Backpay with interest thereon shall be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Company, 138 NLRB 716