Kevin Steel Products, Inc.

KEVIN STEEL PRODUCTS, INC. Kevin Steel Products, Inc. and Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 2-CA-13002 March 8, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 21, 1973, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. The General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Kevin Steel Prod- ucts, Inc., West Haverstraw, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3, 1951) We have carefully examined the record and find no basis for reversing his findings. We hereby correct an apparently inadvertent error made in the Administrative Law Judge's Decision in par. c of sec. Ili, C, 3; it should read "would not let Leggio return " Respondent contends in its brief that the second strike which began on July 1, 1973, is an economic strike We note that no allegation was made in the complaint that the July 1 strike was an unfair labor practice strike and we, therefore, find it is unnecessary to pass on the status of the strike at this time DECISION SIDNEY SHF.RMAN, Administrative Law Judge: The initial charge herein was served on Respondent on June 11, 1973,1 the complaint issued on July 31, and the case was heard on August 28 and 29. After the hearing briefs were 1 All events hereinafter related occurred in 1973 unless otherwise indicated 493 filed by Respondent and the General Counsel. Upon the entire record,2 the following findings and recommenda- tions are made: 1. RESPONDENT'S OPERATIONS IN COMMERCE Kevin Steel Products, Inc., hereinafter called Respon- dent, is engaged in the fabrication and distribution of steel and related metal products at its establishment in West Haverstraw, New York. It annually sells more than $500,000 worth of products, of which more than $50,000 in value is shipped to out-of-state points . Respondent is engaged in commerce. II. THE UNION Shopmen's Local Union No. 455, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization under the Act. 111. THE MERITS A. The Issues The pleadings, as amended at the hearing, raise the following issues: 1. Whether Respondent has violated Section 8(a)(1) by offering employees inducements to defect from the Union? 2. Whether Respondent laid off, and subsequently terminated, certain employees because of their union activity and because the Union refused to remove Leggio as its shop steward, thereby violating Section 8(a)(3) and (1)? 3. Whether Respondent has refused to bargain with the Union since June 4? 4. Whether Respondent has violated Section 8(a)(5) and (1) by refusing to sign an agreement reached between it and the Union. 5. Whether the Board should defer the taking of jurisdiction herein pending the conclusion of certain arbitration proceedings dealing with some of the matters involved herein? B. Sequence of Events Respondent has been engaged in the steel fabrication business in West Haverstraw, New York. Early in 1973, it had about 15 shop employees, and an unspecified number of other employees, who did installation work in the field. Only the former are involved herein. For some years, Respondent has had contractual relations with the Union as the representative of the shop employees, the last such contract having been in effect from July 1, 1970, through June 30, 1973. That contract contained a provision for arbitration of grievances. The Union's chief shop steward during the term of that contract was Leggio. On February 15, the employees struck because of Respondent's delin- quency with respect to various trust funds established by the parties' contract. By letter dated February 15, Respon- dent notified the strikers that they were being laid off for lack of work. By February 21, Respondent had satisfied its 2 For corrections of the transcript, see the order of October 29 209 NLRB No. 80 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligation to the trust funds and the Union on that date announced termination of the strike and asked Respon- dent's president, Palatnik, how many men he needed to resume operations . He answered that he did not need any at that time, but would continue to operate as he had during the strike with but one employee to help him. About March 1, the Union's president, Colavito, discussed the reasons for the layoffs with Palatnik, who insisted that he had no work for the men, adding that, even if he did have work, he would not recall them as long as Leggio was shop steward. On March 30, Respondent notified the laid-off employees that it was necessary "to permanently termi- nate" them because there was no reasonable expectation of their being recalled. About May 1, negotiations for a new contract, to succeed the one expiring on June 30, commenced. At this and subsequent meetings-on May 15 and 21-the main bone of contention was wage rates and the recall of Leggio. On May 21, Colavito proposed that the existing contract be extended, pending negotiations between the Union and an industry association , and that upon the conclusion of such negotiations Respondent adopt the association contract. Palatnik suggested that an appropriate draft be prepared by the Union's counsel and cleared with Respondent's counsel . On June 1, when Colavito returned with a draft of his proposal and advised Palatnik it had been cleared with his lawyer, Palatnik insisted, nevertheless, on calling his lawyer, who arranged a meeting for further discussion of the proposal. However, a few days later that meeting was canceled by Palatmk, who subsequently advised Colavito that he would not sign the contract. In the meantime the Union had submitted to arbitration various issues, including the propriety of Respondent's refusal on February 21 to recall Leggio and the other strikers . Such arbitration was still in progress at the time of the instant hearing. C. Discussion 1. The deferral issue Section 10 of the parties' contract established a grievance procedure for handling any "complaints , disputes or grievances" submitted to the shop stewards by employees, and it was further provided that any "difference, grievance or dispute" which was not otherwise settled through that procedure and "any difference or dispute between the Company and the Union arising out of this Agreement or as to the meaning , application or alleged violation of any provision, or provisions of this Agreement shall, upon request of either party to this Agreement be submitted to" final and binding arbitration. Section 15 (B) of the contract forbids discipline or discharge except for "proper cause." In section 11 of the contract Respondent renounces resort to "lockouts," subject to certain exceptions not here relevant. At the time of the instant hearing there was pending an arbitration proceeding between the parties over various matters, including the "lockout" of February 15, and the failure to recall Leggio . At the hearing, Respondent moved that the Board defer any action on the merits herein pending the outcome of such proceeding, citing Collyer Insulated Wire, A Gulf and Western Systems Co.3 Ruling on that motion was reserved at the hearing. The question of deferral is here complicated by the fact that, in addition to acts by Respondent, which arguably violate the contract and are currently the subject of arbitration proceedings-namely, the failure to recall, and termination of, various employees-the complaint alleges conduct which clearly involves no breach of contract but only of a statutory duty. The propriety of deferral in such a situation was considered in Sheet Metal Workers' Interna- tional Association, Local Union No. 17, AFL-CIO (George Koch Sons, Inc.),4 where the issue was whether the Board should defer to arbitration with respect to the legality of a work stoppage in a case where there was also involved the legality of a union fine, a matter beyond the purview of the parties' grievance and arbitration procedure and one which was decided in that case by the Board on the merits. The Board there said: ... since we are in any event required to take jurisdiction in order to determine the issue of whether the fine was violative of our Act, there seems less reason to defer the other issue raised by the complaint; namely, the Union's conduct with respect to the strike. When an entire dispute can adequately be disposed of under the grievance and arbitration machinery, we are favorably inclined toward permitting the parties an opportunity to do so. One of our reasons for so doing is to avoid multiplicity of forums . But, here, since we must perforce determine a part of the dispute, there is far less compelling reason for not permitting the entire dispute to be resolved in a single proceeding. Here, too, the entire dispute cannot be disposed of under the contractual grievance and arbitration machinery; for, the complaint raises two issues clearly beyond the purview of such machinery-namely , the alleged violation of Section 8(a)(5) by Respondent's refusal to execute a contract and its alleged solicitation of employees to defect from the Union. Moreover, there is another consideration militating against deferral of any part of this case. In Collyer, the Board stressed as a condition favoring deferral the absence of any "claim ... of enmity by Respondent to the employees' exercise of protected rights." Here, there is not only a claim, but it is found below that Respondent has unlawfully frustrated the efforts of the Union to conclude an agreement with it on behalf of the employees and that it has attempted since early in 1972 to induce employees to defect from the Union by various promises of benefit. For all the foregoing reasons, Respondent 's motion to defer to arbitration is denied. 2. Solicitation of employees to abandon the Union The complaint alleges that on various dates in January and February Respondent offered inducements to the employees to abandon the Union. 3 192 NLRB 837 4 199 NLRB 166. KEVIN STEEL PRODUCTS, INC. As background evidence on this issue the General Counsel adduced testimony by Burrett, corroborated by Union Agent Steinhauser, that early in 1972 Respondent's president, Palatiik, offered the employees more liberal fringe benefits, if they would repudiate the Union; and, Prah testified that "beginning in 1972" he had conversa- tions with Palatnik, in which the latter promised to make certain improvements in the existing retirement and hospitalization plans, if the employees would defect from the Union, but, when Palatnik urged him to relay this message to others in the shop, Prah refused to do so.5 Notwithstanding Palatnik's denials, the foregoing testi- mony is credited on the basis of demeanor considerations. Viera testified that he joined in the strike on February 15, and that the next day, when he returned to the plant for his pay, Palatnik promised that he would have plenty of work, if he went "non-union." Viera appeared to be a sincere witness and his testimony is credited, despite Palatnik's denial. Accordingly, it is found that by Palat- nik's offer to recall Viera, if he forsook the Union, Respondent violated Section 8(a)(1) of the Act. 3. The 8(a)(3) issue The General Counsel contends that 19 shop employees, including Leggio, were laid off by Respondent on or about February 15, and discharged on or about March 30, because of their union activity and because the Union refused to remove Leggio as chief shop steward, and that Respondent thereby violated Section 8(a)(3) and (1). Respondent concedes the layoffs and discharges but denies that they were motivated by improper considerations. The employees struck on February 15, because Respon- dent owed about $15,000 to the trust funds established by the parties' contract. The same day, Respondent mailed a letter to the strikers notifying them that they were being laid off for lack of work and that they would be advised when they were again needed. On February 21, Respon- dent having paid up its obligation to the trust funds, Union Agent Steinhauser informed Respondent's president, Palat- nik, that the strike was over and the pickets were being removed, and asked how many men Palatnik was going to reinstate at that time. Palatnik answered that he was not going to recall anyone except Bolson, a finisher. When Steinhauser demanded that Leggio be recalled, since he was the senior crane operator (as well as the chief shop steward, with superseniority under the contract) and the services of a crane operator would be needed to assist Bolson, Palatnik answered that he, himself, would perform whatever crane work was needed. Until July 1, Respondent continued to operate with only s Since the incident related by Burrett occurred beyond the period of limitations prescribed by Sec 10(b) of the Act, it is considered here only as showing Respondent's union animus The incident involving Prah is, also, considered only in that light. (Not only is it apparently barred by Sec 10(b), but the record shows that, although a union member, Ptah was a supervisor by reason of his authority to hire employees and to decide what probationary employees to retain at the end of their trial period Accordingly, for that reason alone, any blandishments offered him to forsake the Union would not violate the Act.) 6 Colavito testified without contradiction that, when he visited the plant on June 1, he saw several office employees and Mannocchi. as well as Bolson, doing unit work 495 Bolson in the shop, assisted by Palatnik on the crane, and to an unspecified extent by Mannocchi, one of his former employees, and several nonunit personnels On July 1, the contract having expired, Respondent's former employees resumed picketing, to protest its failure to execute a new contract. Apparently, about the same time Respondent recalled several more of its former employees, and at the time of the hearing it was still operating on a limited basis and was still being picketed. Prah, who joined in both strikes, testified that, when he returned to the plant on February 20 for his pay, Palatnik stated there was nothing he could do about recalling Prah at the moment and that he was going "to try to stick it out" until July 1,7 but that he would be willing to "open the shop" if the Union would replace the "shop steward." Burrett testified that during the strike Palatnik told him that he deplored the existing situation but "he could not do anything else because of the union," that the witness could go back to work for him at any time but Palatnik could not "open the shop" so long as Leggio would work there. Although disputing Burrett's account, Palatnik acknowl- edged that he had made the statement that he would not recall Leggio "as shop steward" because he was "overstep- ping his role as shop steward" and that he had told Prah on February 20 that he would not recall anyone until Leggio was replaced as shop steward. Palatnik, nevertheless, denied that the purpose of the layoff was to force the replacement of Leggio as shop steward, declaring that it was due solely to lack of works However, when asked whether he would have recalled the employees, if Leggio had been ousted as shop steward, Palatnik answered: I would have maybe called back maybe only a very few employees, maybe the foreman and one other employ- ee, just to clean up the place, just to keep the place going.9 Thus, by his own admission, Palatnik's refusal to recall the laid-off employees was attributable at least in part to his opposition to Leggio because he was "overstepping his role as shop steward." Prah related a further conversation with Palatnik on February 27, in which the latter stated that he was prepared to recall six or seven men but not "the shop steward." Palatnik's version was that on that occasion he told Prah only that he would not recall anyone due to lack of work. However, Prah is credited on the basis of demeanor. Although Palatnik testified at some length about the dearth of work in the shop after February 15, and the reasons therefor, it is found, on the basis of his aforenoted 7 That was the expiration date of the Union's contract. 8 Palatnik explained that on February 15 the only substantial order in the shop consisted of work he was doing under subcontract, and that, when the employees struck, he notified the customer that he could not guarantee delivery because of the strike , whereupon the customer canceled the order. 9 This testimony seems to reflect the assumption by Palatnik that Respondent was not permitted by the union contract to recall even one or two men for cleanup work without bringing Leggin back as shop steward. The basis for this assumption is not clear from the record. However, it suffices for present purpose that Palatnik believed that to be the case and was admittedly motivated by that belief. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admission at the hearing, as well as that made to Prah on February 27, that, had he been so minded, Palatnik would then have been able to provide work for some of the laid- off employees but did not do so because of his aversion to Leggio and his apparent belief that, if he recalled any of the other men, he would be obligated by the union contract to recall Leggio also. While not disputing that Palatnik was opposed to recalling Leggio, Respondent contends that such opposi- tion stemmed solely from Leggio's "improper activities, e.g., inhibiting productivity, causing breakdowns, insubor- dination and a threat to `get the boss.' " Palatnik explained that his difficulties with Leggio began with an incident in the fall of 1972, when a dispute arose over the failure of Palatnik to call Leggio in on a Saturday, when some work was being done on the plant building.10 Palatnik added that, when, soon thereafter, he had occasion to rebuke Leggio for poor workmanship on a painting job, Leggio retorted that Palatnik was "picking on" him because of the aforecited Saturday work incident and declared that Palatnik was "a challenge to" him and he was "going to get" Palatnik. This incident apparently inspired the following letter of October 31, 1973, to the Union: On numerous occasions, I have discussed with you the difficulties we have with Salvatore Leggio. Mr. Leggio does not perform his duties with the competence required. In addition, his negative attitude is reflected in the performance of his duties as Shop Steward. His apparent resentment of me personally and this business, which provides a livelyhood [sic] for so many people, has now been brought into the open. On October 30, 1972 in the presence of others, he threatened me and the very existence of my business. This threat arose from the fact that when requested to do a certain job, Mr. Leggio did it in such an inadequate manner, that it was brought to his attention by the Shop Foreman. His response to the criticism was if you don't like it call the delegate. His response to my telling him he must learn to do a proper job was, "If I don't like it I can have some one else do it." Mr. Leggio does not run my business nor will I permit him to do so. He will do his job competently or he can leave. After making this "or else" statement he said he would place a security guard around the clock to make sure he caught me doing something wrong and then the threat to which I previously referred. He said and I quote, `Bob, you're a challenge to me and I am going to get you. It was never my impression your union countenanced such an attitude, nor was it your desire to "get me" or Kevin Steel Products, Inc. This is the culmination of a series of incidents and 10 The contract requires that "the shop steward shall be one of the employees assigned to overtime work." The dispute over Respondent's alleged violation of that provision is now in arbitration statements which can lead to no other conclusion but that Mr. Leggio wants to get me. In order to do so he must, of course, damage the business. An alternative is that his threat to get me is a physical threat, however, I doubt that. Mr. Leggio's attitude was exposed for all to see, that of an enemy bonng from within, who out of spite, ignorance or viciousness has set as his goal, the destruction of my business. I realize that short of a singular destructive act by him, he will not destroy me. However, single invidious acts of malfeasance and nonfeasance directed against me and my business, must have a cumulative deleterious effect and impede the progress and growth of a business important to me and my employees. I call upon you, known to me to be responsible and in the highest tradition of labor leaders, to investigate this problem. It is not in the best interest of the union or me that such problems continue. Palatnik testified further that after the incident described in the foregoing letter, and while he was in the plant washroom, he overheard Leggio upbraid another employee for working too fast; that during November and December 1972, in his job of operating the overhead crane, Leggio burned out two motors through an improper operating procedure; that the witness rebuked Leggin three or four times on that account but to no avail; that the witness did not discharge Leggio therefor because he had a "reasona- ble doubt" at the time about Leggio's responsibility for the damage to the motors; that, after having operated the crane, himself for 4 or 5 months thereafter without any maintenance problems the witness is now convinced that Leggio was in fact responsible for such damage; that in December 1972, when the witness personally took over the supervision of a job in order to expedite it, Leggio took sick leave the next day; that two of the employees told the witness that Leggio had taken off in order to hinder Palatnik's efforts to expedite the job; ii that the witness believes that Leggio was responsible for a general slow- down, which resulted in that particular job taking 1,500 hours longer to complete than normal; and that the witness concluded from the foregoing events that Leggio was engaged in a plot to undermine him. Leggio, on the other hand, attributed the maintenance problems with the crane to matters unrelated to his operating procedure, asserting that he based this view in part on information he received from the shop mainte- nance man, Thompson, as to the cause of those problems, and he expressly denied any mishandling of the crane. He denied, also, that he instigated any slowdown in the shop, explaining that the sick leave cited by Palatnik was due to a dental appointment and insisting that there was no washroom incident such as Palatnik described. His version of the "challenge" remark was that at the time of that incident he was seeking a monetary award in the 11 Palatnik explained that it was necessary to replace Leggio for that day with an inexperienced man, who could not maneuver the crane as skillfully as Leggio, thereby slowing down the work. KEVIN STEEL PRODUCTS, INC. arbitration proceeding involving the "Saturday-work" incident and that all he told Palatnik was that "that money was a challenge to" him and that he "would go out to get it." Respondent's maintenance man, Thompson, was not called by Respondent to corroborate Palatnik 's charge of abuse of equipment by Leggio and no explanation was offered for this omission , and, as noted above, Palatnik, himself, admitted to uncertainty as to the cause of the breakdown of the equipment until after he had , himself, operated it for 4 or 5 months. In view of these circum- stances, I credit Leggio's denial of responsibility for any damage to the crane's motor and of employing the improper operating procedure , to which Palatnik ascribed his suspicion that Leggio was responsible for the frequent breakdowns of the crane . Accordingly, it is found not only that Leggio did not, in fact, mishandle the crane, but also that Palatnik did not have any reason to believe that such was the case , and the inference is, therefore, warranted that, contrary to Palatnik's testimony, he did not actually entertain any such belief either before or after February 15. However, I do not credit Leggio's rather strained explana- tion of the "challenge" remark and find that he did make such a remark in the terms described by Palatnik, and, in view of the circumstantiality of his account of the matter, credit Palatnik's testimony about the washroom incident. Absent any contradiction thereof , Palatnik's testimony about the report he received concerning Leggio 's reason for taking sick leave on December 1972 is also credited. While the three incidents last mentioned might be deemed to have justified Palatnik in believing that Leggio was bent on disrupting Respondent 's operations by instigating a general slowdown, the following matters militate against the credibility of his testimony that he actually entertained such a belief or that his objection to recalling Leggio was motivated solely by such a belief. a. In a letter to the employees of January 29, Palatnik referred to the "large number of problems which have arisen as a result of what we believe to be excessive zeal if nothing else, of union representatives" (emphasis sup- plied). Palatnik acknowledged that the foregoing referred, at least in part, to Leggio. b. Palatnik did not dispute Colavito's testimony that, at a meeting between them early in March , Palatnik ex- plained that he objected to Leggio because he was constantly "raising questions" about the administration of the contract-opposing the assignment of laborers to do mechanics' work-departures from seniority in layoff, and deviations from the contract in selecting employees for overtime work. Prah, who, as found above, was a supervisor, confirmed that there were occasions when he attempted to "sneak" laborers into mechanics' jobs, which provoked complaints by Leggio to Palatnik . And, Leggio ascribed Palatnik's "bitterness" toward him to Leggio's efforts to enforce the contract. c. As noted above, Palatnik acknowledged at the hearing that he had declared that he would not let Palatnik return as shop steward because "he was overstepping his role as shop steward." d. Although Palatnik professed to believe , at least as early as October 31 , that Leggio was plotting Respondent's downfall, he made no effort to initiate the procedure 497 prescribed in the contract for the discharge of a shop steward nor did he take any other disciplinary action against him, retaining Leggio as an employee until February 15, when he joined the strike . Moreover, Palatnik maintained at the hearing that during the period of the layoff he considered allowing Leggio to return as an employee, albeit not as a shop steward. e. It seems inherently improbable that, because of a grievance over I day's pay, Leggio would want to destroy Respondent's business on which he and his fellow union members depended for their livelihood or that Palatnik would in good faith believe that Leggio would take such action for such a reason. In view of all the foregoing considerations, it is found that Palatnik's antipathy toward Leggio stemmed mainly from his insistence on Palatnik's compliance with the contract in the matter of work assignments and the selection of employees for overtime work and layoffs. It is apparent that Leggio's inflexibility in these areas was resented by Palatnik because it frustrated his efforts to promote efficiency of operations and reduce costs at a time when Respondent's financial position was precarious. While it is clear that the incident referred to in the letter of October 31 , 1972, generated a strong, emotional reaction on Palatnik's part and while he may have genuinely believed at that time that Leggio was bent on undermining Respondent's operations, it is significant that Palatnik made no specific reference to that charge in any of his later communications to the employees or the Union about Leggio, but stressed only his resentment of Leggio's zeal as a steward. It is inferred, therefore, that the October 31 letter reflected only a passing reaction to the October 22 incident and that any effect thereof was secondary to the more realistic and substantial objections by Palatnik to Leggio's strict enforcement of the Union 's contract. It having been found, on the basis of Prah's credited testimony, that Palatnik would have recalled six or seven of the strikers on February 21, but for his opposition to Leggio, and that such opposition was due in large part, if not entirely, to Leggio's zeal in enforcing the Union's contract, it follows that such failure to recall was for discriminatory reasons and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. 4. The 8(a)(5) issue The General Counsel contends that Respondent violated Section 8(a)(5) and ( 1) on and after June 1 by refusing to execute an agreement which it had concluded with the Union . In the alternative, the General Counsel contends that, if the Board finds that there was not a complete agreement on June 1, it should still adjudge Respondent to be in violation of Section 8(a)(5) by reason of its alleged refusal to bargain with the Union on and after June 4. There was substantial agreement between Palatnik and Colavito as to the course of the negotiations for a contract to replace the one due to expire on July 1. These negotiations began with a meeting early in May between Palatnik and Colavito . At this meeting and a later one, on May 15, the main obstacles to agreement were Palatnik's opposition to Leggio's returning as shop steward and his insistence on a reduction in the existing wage scale, on the 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground that Respondent could not compete with other area firms under that wage scale. When they met again, on May 21, Palatnik announced that he was expecting some work within a few weeks, at which time he would recall some of the men, but he remained adamant with regard to Leggio. Finally, as a concession to Respondent, Colavito proposed that the Union grant Palatmk an extension of the current contract, pending negotiation of a new contract with other area employers in the industry, with the stipulation that Respondent would adopt any new agreement reached with such employers and that the Union would not strike Respondent during such negotiations, unless Respondent accepted struck work from another shop. The advantage of this proposal to Respondent was that it would be exempt from any strike that might be called in connection with the foregoing areawide negotiations. When Palatnik indicated interest in this proposal, Colavito began to reduce it to writing, but Palatnik insisted that the drafting of language be handled by counsel. According to Colavito, Palatnik declared that whatever counsel agreed on would be acceptable to him. Colavito had a contract drafted by union counsel, Mrs. Harper, who reported to him that she had submitted the draft to Respondent's attorney, Guazzo, and that he had indicated approval and had promised to recommend acceptance thereof to his client. However, when he received the draft in the mail , Colavito was not satisfied with the language of the "struck work" clause, and requested Mrs. Harper to make a change therein and clear it with Guazzo.12 On June 1, Colavito presented the final draft to Palatnik, who indicated that it was acceptable to him but that he wished to call Guazzo. After a telephone conversation with Guazzo, Palatnik reported that he was to meet with Guazzo on June 5. When Colavito asked why such a meeting was necessary, in view of the fact that Guazzo had already evinced his approval to Mrs. Harper and Palatnik had dust indicated his own satisfaction with the draft, Palatnik answered only that he did not know and suggested that Colavito speak to Guazzo. Colavito prompt- ly called him and asked for the reason for the proposed meeting, asserting that Mrs. Harper had reported that Guazzo was satisfied with the draft, whereupon Guazzo answered, "That's right," but, nevertheless, insisted on meeting with his client. Despite repeated questioning by Colavito, Guazzo offered no explanation, and it was finally arranged that the parties would meet with Guazzo on June 5. According to Colavito, Palatnik concluded the June 1 meeting with the assurance, "... don't worry, we got an agreement." 13 Palatnik denied that he gave the foregoing reassurance to Colavito on June 1. As for the May 21 incident, Palatnik insisted that he merely told Colavito to put his contract proposal in writing and he would have Guazzo look at it and that he advised Colavito that he could make no commitment without first having discussed with Guazzo the long-range implications of that proposal. There is thus 12 From a comparison of the initial draft and the subsequent one, it appears that the change desired by Colavito was the inclusion in the "struck -work" clause of a requirement that, in case of a strike by Respondent's employees because of its acceptance of work from a struck employer, Respondent would reimburse the employees for any wages lost as a result of their strike Similar provisions appeared in the expiring contract, wherever it authorizes strike action to protest specified conduct by a conflict between Colavito and Palatnik as to whether on May 21 Respondent accepted the proposal for an interim contract, subject only to agreement on appropriate language, or whether Palatnik stipulated that, before signing any such contract, he would have to discuss the merits thereof with Guazzo. As to his telephone conversation with Guazzo on June 1, Palatnik testified that he asked Guazzo whether he had cleared the new draft and that he professed to have seen only the old one and proposed a meeting to discuss the new one. However, Palatnik did not dispute Colavito's testimo- ny that on June 1, when he asked why a meeting with Guazzo was necessary, Palatnik answered that he did not know; nor did Guazzo deny that, when Colavito taxed him with having already indicated approval of the proposed contract, he acknowledged that such was indeed the case but offered no explanation to Colavito for his scheduled meeting with Palatnik. If the reason for that meeting was, as Palatnik testified, his desire to consult Guazzo about the merits of the Union's proposal, it seems that it would have been a simple matter for either Palatnik or Guazzo to have so apprised Colavito. The fact that they failed to disclose any such reason to him at the time, but, instead, parried his insistent demands for an explanation with vague and equivocal responses, is persuasive that at that time they recognized that Respondent had no valid reason for refusing to execute the contract nor any reason that they could afford to disclose. In view of these circumstances, as well as demeanor considerations, Colavito's testimony is credited insofar as it conflicts with Palatnik's, and it is found that on May 21 Palatnik undertook to sign a contract embodying the terms then proposed by Colavito, subject to agreement by the parties' counsel on appropriate language; that by June 1 counsel had agreed on such language; and that on that date Palatnik reviewed the draft prepared by counsel and acknowledged that it reflected the understanding reached by the parties on May 21, but refused to sign it at that time, proposing instead a meeting with his counsel on June 5. As to subsequent events, the record shows that on June 5 Colavito was notified of cancellation of the scheduled meeting and on June 6 he was informed by Palatnik that he was upset by an incident that had occurred on June 2, involving alleged surveillance of Respondent's operations by Leggio, and Palatnik insisted that he would not sign any contract until the Union got rid of Leggio. On June 28, when the matter was next discussed by the parties, Palatnik, at first, reiterated his refusal to sign a contract unless the Union ousted Leggio as shop steward, but, when the Union indicated its willingness to consider a change in shop stewards if he would accept the proposed contract, Palatnik declared he still would not sign the contract because of the high wage scale. On July 16, after the other area employers in the industry had reached agreement on the terms of a new contract and Colavito again appealed to Respondent It is thus clear that there was nothing novel about such reimbursement provision and that it was one routinely included by the parties in clauses dealing with authorized strikes 13 All the findings made in the preceding paragraph are based on Colavito's testimony, which was not disputed except in the two respects noted in the next paragraph KEVIN STEEL PRODUCTS, INC. Palatnik to sign the contract, he answered that he preferred the existing situation. There have been no further discus- sions of the contract. Respondent contends that, even if there was an agree- ment reached on the terms proposed by the Union, it was not legally binding because it was too vague and indefinite. Respondent relies on the fact that the Union's proposal did not, itself, specify the wage rates and other terms that would apply to Respondent after the Union reached an accord with the other, area employers, but provided only that Respondent would be bound by whatever terms and conditions were negotiated with such other employers. The clearest expression of the Board's position on that point is contained in Sheet Metal Workers' International Association, Local Union No. 270 (General Sheet Metal Co.).14 There an employer had executed an "interim agreement," stipulating that it would be superseded by whatever contract was negotiated by the union with a multiemployer association, of which the employer was not a member. However, after such contract was negotiated, the employer refused to comply with the requirement therein for contributions to a fund to be used to promote the interests of his industry. In alleging that the union's insistence on compliance by the employer with that provision was unlawful, the General Counsel relied on Board ruling that the establishment of such a fund was not a mandatory subject for bargaining and a union's insist- ence thereon violated Section 8(b)(3) of the Act. However, the Board affirmed the Trial Examiner's dismissal of the complaint, which dismissal was predicated on the rationale that the employer's agreement to be governed by whatever terms might be negotiated in the future by the multiem- ployer association was legally binding, so that, in insisting on the employer's contributing to the industry fund, the union was merely demanding that he honor a valid, contractual commitment. With respect to the contention that the interim agreement was void for uncertainty, the Trial Examiner quoted the following: It is not necessary that a promise should within itself be certain if it contains a reference to some document, transaction, or other extrinsic facts from which the meaning may be made clear . . . . An offer or agreement may also refer to another agreement for a definition of terms, even to a contract to be made subsequently.15 The foregoing ruling is deemed to be controlling here, and it is therefore found that the instant, extension agreement was not void for uncertainty. Upon consideration of all the foregoing matters, it is found that by June 1 the parties had reached agreement on the terms of an interim contract but Respondent refused on and after that date to execute a contract embodying those terms, thereby violating Section 8(a)(5) and (1).16 14 144 NLRB 773 15 Williston on Contracts, 3d ed , Sec 47 16 In view of this finding, there is no need to pass on the General Counsel's alternative contention that Respondent has refused to bargain since June 4 17 Mor Paskesz, 171 NLRB 116, enfd 405 F 2d 1201 (CA 2, 1969), CONCLUSIONS OF LAW 499 1. The following unit is appropriate for collective bargaining: All production and maintenance employees and plant clericals of Respondent, employed at its plant, exclud- ing office clericals, watchmen, guards and supervisors as defined in the Act. 2. At all times material herein, the Union has been the statutory representative of the employees in the above unit. 3. Respondent has violated Section 8(a)(5) and (1) of the Act by refusing on and after June 1, 1973, to sign a document embodying the agreement of the parties. 4. Respondent has violated Section 8(a)(3) and (1) of the Act by discriminating against employees because of the insistence of their shop steward on strict enforcement of the provisions of the Union's contract, and it has violated Section 8(a)(1) by offering an employee an inducement to abandon the Union. 5. The foregoing violations are unfair labor practices affecting commerce within the meaning of the Act. THE REMEDY It having been found that Respondent violated Section 8(a)(1), (3), and (5), it will be recommended that it be required to cease and desist therefrom and take appropri- ate, affirmative action. With regard to the 8(a)(5) violation, it will be recom- mended that Respondent be ordered to execute the draft agreement submitted on June 1 and give it retroactive effect to July 1, making its employees whole for any loss of wages or other benefits suffered as a result of its failure to sign the agreement, together with interest at the rate of 6 percent per annum.17 With regard to the layoff of February 15, and the subsequent "discharge" of the laid-off employees, while it has been found that after the termination of the strike Respondent would have recalled six or seven of those employees but for its opposition to Leggio as shop steward, and that the refusal to recall them for such a reason was unlawful, the present record does not permit a determina- tion of the exact number or identity of such employees. That issue will therefore have to be relegated to the compliance stage of this case, as will the issue of the amount of backpay due such employees. Interest at the rate of 6 percent per annum will be added to any such backpay (Isis Plumbing & Heating Co., 138 NLRB 716), and the formula stated in F. W. Woolworth Company, 90 NLRB 289, shall govern the computation thereof. No backpay shall be awarded to any employee for such time as he participated in the strikes that began on February 15 and July 1.18 Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) Shamrock Systems, Inc, 155 NLRB 1121 18 With respect to the February 15 strike, no backpay is due until February 21, when the Union notified Respondent of the conclusion of the strike and, in effect, requested reinstatement of as many employees as Respondent needed at that time' With respect to the July I strike, it is necessary to consider what effect to give to the fact that the employees were (Continued) 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act, there is hereby issued the following recom- mended: ORDER19 Respondent, Kevin Steel Products, Inc., West Haver- straw, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist: (a) Discriminating against employees because of their insistence, or the insistence of their representative, on strict enforcement of the provisions of a collective-bargaining contract covering the following unit: All production and maintenance employees and plant clericals employed in Respondent's plant, excluding office clericals, watchmen, guards and supervisors as defined in the Act. (b) Offering employees inducements to defect from the Shopmen's Local Union No. 455, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other union. (c) Refusing to bargain in good faith with the afore- named Union as the representative of the employees in the unit described above, by refusing, upon request, to sign the contract submitted by said union on June 1, 1973.20 (d) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective-bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request by the aforenamed Union, execute the contract submitted by it on June 1, 1973, and give retroactive effect thereto from July 1, 1973. (b) In the manner and to the extent prescribed in the "Remedy" section of the Administrative Law Judge's Decision, make employees whole for any loss of earnings suffered as a result of Respondent's discrimination against them, and offer them immediate reinstatement to their former jobs or, if they no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its place of business in West Haverstraw, New York, copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms to be provided by the Regional Director for Region 2, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. discriminatorily terminated before that strike began Had it been caused by such discrimination, the loss of wages during the strike would necessarily have been attributable to Respondent's discriminatory conduct and would, therefore, properly enter into the computation of backpay However, that strike was admittedly called only to protest Respondent's refusal to sign a contract and it is inferrable therefrom that the employees would have struck even if there had been no discriminatory terminations. Under those circumstances, the loss of wages during the period of the July I strike may not be imputed to such terminations but to a supervening factor-the Respondent's refusal to sign a new contract 19 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 20 See American Needle & Novelty Company, 206 NLRB No 61 21 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection; and To refrain from any or all these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT discriminate against employees by laying them off or discharging them because they or their representatives insist on strict compliance by us with the terms of our contract with Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, or any other union. WE WILL NOT offer employees inducements to abandon the above-named Union or any other union. WE WILL, upon request, sign the contract submitted to us on June 1 , 1973, by the above-named Union on behalf of the employees in the following unit: All production and maintenance employees and plant clericals employed in our shop, excluding office clericals, watchmen, guards and supervisors as defined in the Act. KEVIN STEEL PRODUCTS, INC. WE WILL offer reinstatement to their former or substantially equivalent positions to all employees whom we have refused to recall , or whom we have terminated, because of the insistence of their represent- atives on strict enforcement of our contract with the above-named Union, and we will make such employees whole for any loss of wages suffered as a result of our discrimination against them. All our employees are free to join or not to join Shopmen's Local Union No. 455, International Associa- tion of Bridge , Structural and Ornamental Iron Workers, AFL-CIO. Dated By 501 (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0330. KEVIN STEEL PRODUCTS, INC. (Employer)