Trojan Steel Corp.

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