United Steel Workers Of America, Local # 7807

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Steelworkers of America and its Local #7807 and ITT Abrasive Products Company, Division of International Telephone & Telegraph Co. Case 8- CB-2784 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 8, 1976, Administrative Law Judge John F Corbley issued the attached Decision in this proceeding Thereafter, Respondents filed exceptions and a supporting brief, to which the Charging Party filed an answering 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 briefs and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions 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 Respondents, United Steelworkers of America and its Local #7807, their officers, agents, and representatives, shall take the action set forth in the said recommended Order DECISION STATEMENT OF THE CASE JOHN F CORBLEY, Administrative Law Judge A hearing was held in this case on October 30 and 31, 1975, at Tiffin, Ohio, pursuant to a charge filed by ITT Abrasive Products Company, Division of International Telephone & Tele- graph Co , hereinafter sometimes referred to as the Em- ployer or Charging Party, on August 11, 1975, which was served on Respondents on or about August 14, 1975, and on a complaint and notice of hearing issued by the Acting Regional Director for Region 8 of the National Labor Re- lations Board on August 29, 1975, which was also duly served on Respondents The complaint alleges that Re- spondents have refused to bargain in good faith with the Employer in violation of Section 8(b)(3) of the Act by re- fusing since about August 5, 1975, to recommend and/or submit a collective-bargaining agreement for ratification to its membership unless the Employer provided Respondents with certain information concerning the identities of cer- tain individuals to be disciplined for alleged strike miscon- duct and the extent of the discipline and/or Respondents rejected this agreement pending receipt of this information The complaint further alleges that Respondents violated Section 8(b)(3) of the Act since the same date by condition- ing the instant submission or recommendation for ratifica- tion upon the Employer's abandonment of its decision to discipline the instant employees and, since August 8, 1975, by deferring a ratification vote until the Employer's aban- donment of its decision to discipline the instant employees Finally, the complaint alleges that Respondents violated Section 8(b)(3) of the Act by prolonging the strike and picketing in order to enforce the demands referred to in their other conduct complained of, supra, and to exert pres- sure on the Employer to accede to these demands In their answer to the complaint, which was also duly filed, Re- spondents denied the commission of any unfair labor prac- tices For reasons which appear hereinafter, I find and con- clude that Respondents violated Section 8(b)(3) of the Act essentially as alleged in the complaint At the hearing all parties were represented by counsel They were given full opportunity to examine and cross- examine witnesses, to introduce evidence, and to file briefs All parties waived oral argument at the conclusion of the hearing Briefs have subsequently been received from all parties and have been considered Upon the entire record in this case including the briefs and from my observation of the witnesses, I make the fol- lowing FINDINGS OF FACT 1 THE BUSINESS OF THE CHARGING PARTY The Employer is a division of International Telephone & Telegraph Co a Delaware corporation The Employer op- erates its only plant in Tiffin, Ohio, where it is engaged in the manufacture of abrasives Annually, in the course and conduct of its business it ships products valued in excess of $50,000 from its Tiffin, Ohio, plant to plants directly out- side the State of Ohio The complaint alleges, the answer admits, and I find that the Employer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 11 RESPONDENTS THE LABOR ORGANIZATIONS INVOLVED There are two Respondents herein-the United Steel- workers of America and its Local #7807 The complaint alleges, the answer admits, and I find, that the Respon- dents have been, and are now, labor organizations within the meaning of Section 2(5) of the Act 224 NLRB No 27 UNITED STEELWORKERS OF AMERICA, LOCAL #7807 79 III THE ALLEGED UNFAIR LABOR PRACTICES A Background The events in issue here occurred in 1975 near the con- clusion of bargaining negotiations between the Respon- dents and the Employer for a new collective-bargaining agreement covering the Employer's employees working at its facilities in Tiffin, Ohio The following employees of such facilities constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act All production and maintenance employees in the plant of the Employer at Tiffin, Ohio, but excluding office and plant clerical employees, inspectors and timekeepers, guards, technical employees, professional employees and supervisors, as defined in the National Labor Relations Act of 1947 as amended Since about June 4, 1972, as well as for many years prior thereto, and at all times material herein, the Respondents have been the joint representatives for the purposes of col- lective bargaining of the employees in the unit described above and by virtue of Section 9(a) of the Act, have been, and are now, the exclusive representatives of all employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other terms and conditions of employment Harold Price and George Ferguson are, and were at all times pertinent hereto, the president and vice president, respectively, of Respondent Local, as well as being mem- bers of Respondents' bargaining committee and represen- tatives of Respondent Local in bargaining negotiations at various times in August and September 1975 Walter Sledz has been the subdistrict director of Respondent Interna- tional since June 1, 1975 Robert Kemp is, and has been, a staff representative of Respondent International Both Sledz and Kemp represented Respondent International at bargaining sessions with the Employer in August and Sep- tember 1975 I accordingly conclude that, at all pertinent times herein, and particularly in August and September 1975, Price and Ferguson were agents of Respondent Lo- cal, acting in its behalf, and Sledz and Kemp were agents of Respondent International, acting in its behalf, all within the meaning of Section 2(13) of the Act Since Respon- dents represent the employees in the unit jointly and since both supplied representatives to the bargaining committee which conducted negotiations in the unit in 1975, the con- duct of the agent of any one Respondent in these negotia- tions and related matters is chargeable to both Respon- dents 1 The Employer and Respondents were parties to a collec- tive-bargaining agreement which by its terms was in effect from June 7, 1972, until June 3, 1975, and contained provi- sions regarding rates of pay, wages, hours of employment, and other terms and conditions of employment of the em- ployees in the above-described unit Pursuant to the request of the Respondents, the Employ- er and the Respondents commenced collective-bargaining negotiations about April 18, 1975, in anticipation of the expiration of their then existing collective-bargaining agreement which remained in effect until June 3, 1975 2 From about April 18 until about September 4, the Em- ployer and the Respondents participated in numerous col- lective-bargaining sessions at which they negotiated con- cerning rates of pay, wages, hours of employment, and other terms and conditions of employment of the employ- ees in the instant collective-bargaining unit Since June 3, and continuously thereafter until at bast September 8, when they ratified a collective-bargaining agreement between Respondents and the Employer, the employees in this unit have concertedly engaged in a strike against the Employer in furtherance of their bargaining objectives 3 This strike was attended with certain acts of misconduct on the picket line and elsewhere These acts began in June and continued throughout the strike The first serious inci- dent occurred on or about July 7 The next day John Wells, the Employer's director of industrial relations, telephoned Harold Price, the president of Respondent Local and Rob- ert Kemp, a staff representative of Respondent Interna- tional, and advised them of this incident and informed them that the Employer would not tolerate any further in- cidents of violence 4 The most serious act of violence occurred on July 15 when a truck or trucks were damaged An injunction (ap- parently from a state court) resulted At the bargaining session between the Employer and Respondents about July 18 or 19 the Employer representatives pointed out these matters to the Respondents' representatives and advised them that any employees involved would be subject to dis- cipline No employees were named, however, nor were any specific disciplinary determinations discussed 5 At another bargaining session which took place on July 29, the Employer representatives advised the representa- tives of Respondents that certain other incidents had oc- curred which involved the breaking of windows and ac- cused the Respondents of a breach of good faith Sledz disclaimed any knowledge of these incidents and stated that Respondents did not condone them 6 On August 5, 1975, the Respondents and the Employer met for a bargaining session which resulted in a tentative agreement Representing the Employer at this meeting were Wells, Fenton Kelly (the Employer's director of man- agement), and James Maloney from the ITT staff in New York City The representatives of Respondent Internation- Z Unless otherwise noted all dates appearing hereafter occurred in 1975 3 The foregoing findings are based on the admissions in Respondents answer to the complaint as supplemented by undisputed facts of record except the findings as to the agency status of Price Ferguson Sledz and Kemp The latter findings variously are based on the uncontradicted tests mony of witnesses for both sides 4 These findings are based on the essentially corroborative testimony of Wells and Fenton Kelly the Employers director of management I find no prior inconsistent statement in this regard in the affidavit of either of these two witnesses 5 These findings are based on the essentially corroborative testimony of Wells and Walter Sledz the subdistrict director of the Respondent Interna- tional i Indeed Respondents concede in their brief that representatives of both 6 These findings are based on the undisputed testimony of Sledz in this Respondents took identical positions on all issues regard 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al were Bob Kemp and Walter Sledz Harold Price, the Local's president, George Ferguson, the Local's vice presi- dent, and Charles Stark, Pat Gillen, and Dean Nye repre- sented the Local Also present was Harold Webber, a Fed- eral mediator Inasmuch as Webber had missed a meeting, Sledz began the meeting around 1 15 or 1 30 p in by summarizing the progress of negotiations to date All matters had generally been agreed to except for a cost-of-living increase, the date of termination for the new contract, the matter of insur- ance premiums, and the question, introduced by Sledz, of amnesty for any employees allegedly involved in strike misconduct Agreement was eventually reached by about midafternoon on all matters except for the requested am- nesty 7 Sledz, when he introduced the subject, had suggested that there be no recriminations and he had pointed out that this result would restore a favorable atmosphere for the bargaining relationship in the future The Employer how- ever rejected this proposal Sledz stated that he would take the tentative contract to a ratification meeting of bargain- ing unit employees but that he would not recommend it because of the Employer's refusal to grant amnesty 8 7 For example, as Sledz admitted, the Employer agreed to pay the insur- ance premiums for August if the contract was ratified in August The findings in the paragraph are based on the credible testimony of Wells in this regard as generally corroborated by Sledz 8 Wells and Kelly credibly so testified Sledz for his part did not precisely deny that he made this statement He instead denied that he made the Employer's abandonment of recriminations a `condition of submitting the matter for ratification and he further denied that he ever took the `position' that, unless the Employer agreed to no recrimination, then the Union would not recommend the package for ratification He likewise denied that he or any other union official or member of Respondents' bargaining committee took the "position' that they would not recommend the acceptance of the tentative agreement because the Employer reserved the right to take disci- plinary action against some employees Each of the denials falls short of denying that he said he would not recommend the proposal because the Employer would not agree to take no reprisals In making these findings on the basis of the credible testimony of Wells and Kelly, and in reading the denials of Sledz literally, and in limiting the intrepretation of the denials to what they expressly contain, I am persuaded that the logic of events supports the testimony credited I have particularly noted in this regard the fact that it was Sledz who raised the amnesty matter at the meeting of August 5, insistently tried to make the Employer change its position on the matter and then, as will appear, he (along with other members of Respondents' bargaining committee) did in fact recommend to the membership on August 8 that a vote on the tentative agreement be postponed and the contract be rejected until the Employer ceased its claimed "unfair labor practices' in regard to discipline of employees alleg edly engaged in strike misconduct Sledz also admitted that he asked the Employer representatives at this meeting the question inter alia if the em- ployees were supposed to ratify the contract and then run the risk of being fired And he testified that he considered any such arrangement to be unac ceptable Price, who also testified in respect to the meeting of August 5 admitted that the union representatives told the Employer representatives that the former would not recommend the contract proposal to the unit employees He also admitted that Sledz stated to the Employer representatives that he did not feel the employees should be voting on a package without knowing whether they would be disciplined I attach no weight to Price s testimony as to the untruth of the allegations of the complaint that the recommenda- tion of the tentative agreement to the membership for ratification was con- ditioned upon a change in the Employer s decision to discipline or discharge employees Such a denial really adds little if anything to the Respondents denials in their answer to the complaint For this is one of the ultimate issues which we came to try and involves legal as well as factual ramifica tions Rather, what we are concerned with at this puncture is what was said Sledz then strenuously sought to obtain the names of the employees to be disciplined, the reasons for the discipline, and the degree of discipline intended, the balance of the meeting was primarily devoted to this effort The Employer representatives declined to provide names saying that they were not then in a position to determine which employees would be charged The Employer representatives did, how- ever, agree to submit all disciplinary actions to the contrac- tual grievance and arbitration machinery-indeed to ex- pedite such matters by beginning the action at the third step of the grievance procedure 9 Sledz, however, continued to insist on being provided with the names of employees to be disciplined In the face of the adamance of the Employer representatives in this regard, Sledz told them that his recommendation of the contract for ratification by the employees depended upon the Employer's capitulation on the matter of recrimina- tions or discipline or at least giving Respondents the names of the employees involved 10 Sledz with the aid of his attorney, Lackey, persisted in these efforts to obtain the desired information about em- ployees to be disciplined into the late evening but with no avail Maloney only told Lackey that about 11 unnamed employees were expected to be disciplined and that they did not include Price, the president of the Respondent Local l l On August 6, the Employer sent a letter to all employees advising them of the bargaining session of August 5 and informing them, inter aha, that "The [Union] committee indicated that they would not recommend the acceptance of the [Employer's] proposal because of the Company's re- serving the right to take disciplinary action against those few individuals who may have been involved in serious acts of misconduct and/or destruction of property " Unit employees were notified by means of announce- ments on the local radio and in the local newspaper that a union meeting would be held on August 8 The meeting took place, as scheduled, on that date and was attended by some 148 employees out of 250 in the bargaining unit Kemp, the staff representative of Respondent Interna- tional, began the meeting by reciting to those present the agreements reached between Respondents and the Em- ployer Sledz then explained that "there was one issue re- or done at the meeting of August 5 And Price did not precisely deny that Sledz made the statement which I have found that Sledz made, based on the credited testimony of Wells and Kelly Nor am I persuaded that Kelly's testimony on cross -examination alters my conclusions here This testimony adverted to in Respondents' brief was that Respondents did not `by word or substance indicate that ' they would not take the offer back to the membership unless the Employer stopped insisting on [its] right to discipline Kelly was a cautious and literal witness as the record shows Hence I read this and his other testimony literally He was not asked on cross to deny his testimony on direct that Sledz stated he would not recommend the contract `because Respondents couldn t tolerate no recrimination with respect to the disciplinary action ' Consequently I conclude that this last testimony which corroborates the credited testimony of Wells was not contradicted by Kelly in his above-mentioned testimony on cross 9 These findings are based on the credible testimony of Wells in this regard as corroborated or not denied by Sledz or Price 0 These findings are based on the notes of Wells, as corroborated, in part by the admissions of Sledz 11 These findings are based on the undisputed testimony of Sledz and Price in this regard as partly corroborated by Wells UNITED STEELWORKERS OF AMERICA, LOCAL #7807 81 marning " That issue dealt with the matter of the Employer's decision to discipline strikers for alleged strike misconduct Respondents' bargaining committee then drafted a motion to defer voting on the contract proposals until the matter was cleared up Specifically, the motion recommended by the bargaining committee was as follows It is the recommendation of your committee that the ratification vote in the Economic and language Package that has been agreed on, be deferred , but that the contract should be rejected while the company ceases its unfair labor practices regarding discharge and disaphniers [sic] of workers Respondents' counsel, Lackey, then took the floor and explained the legal aspects of the statement in the motion that the Employer's conduct was an unfair labor practice A vote was taken on the motion and all, who voted, cast their ballots in favor of the above-quoted resolution At the conclusion of the meeting Sledz directed Lackey to file an unfair labor practice charge against the Employ- er This was done shortly thereafter and was docketed in Region 8 of the National Labor Relations Board on Au- gust 11 as Case 8-CA-9372 12 After the meeting Price gave a written and oral state- ment to the Tiffin Advertisor Tribune, a local mewspaper In this statement (prepared by Price , Sledz, Kemp, and Lackey) Price stated that the Employer's proposal had been rejected at the union meeting because "in a letter to employees dated August 6, 1975, the Company insisted that it was going to take disciplinary action against certain unnamed workers for unknown reasons "13 Also on August 8, subsequent to the conclusion of the ratification meeting, Kemp telephoned Wells to let him know that the Employer's proposal had been rejected at the meeting When Wells asked Kemp if there had been any specific objections to the proposal , Kemp told Wells that the employees had voted to set the proposal aside and voted instead to back the Union with regard to the issues on disciplinary actions and amnesty for picket line viola- tors 14 12 These findings as to what transpired at the union meeting of August 8 are based on the admissions of Sledz and Price and the minutes of the meetings 13 In his full testimony Price so admitted While he testified this item in the newspaper article could be misconstrued he did not testify that what he told the newspaper in his statement differed in any material respect from what was reported (and quoted above) More will be said however in re- spect to this vote in my `Concluding Findings 14 The findings are based on the credible testimony of Wells in this re- gard I see no essential conflict in the version of Kemp who explained the basis of the rejection as having to do with 'me (Kemp the Respondent International official) not knowing who or how many people would be subject to disciplinary action with this hanging over their heads there was no way of knowing when they were going back to work The inclusion of the ' me' in Kemp's version suggests in agreement with Wells version that the employee vote was in support of Kemp hence in support of the Respon- dents Kemp's additional comment in his version that he also told Wells that we view" the Employers refusal to provide the names as an unfair labor practice further suggests the accuracy of Wells version in all the circum- stances For the vote at the meeting of August 8 was taken after Lackey explained to the unit employees that it was Respondents' legal position that the Employers action in not providing names was an unfair labor practice Since the vote obviously supported this position the vote necessarily sup ported Respondents in taking that position That Kemp should mention Kelly, Employer's director of management, also received a telephone call on August 8 in respect to the vote at the union meeting The caller was Ferguson, Respondent Local's vice president and a member of the Respondents' bargaining committee After asking Kelly how Kelly liked "eating crow," Ferguson went on to tell Kelly that the em- ployees had set the Employer's contract offer aside and voted, instead, to support the Union 15 On September 4 the Employer's and Respondents' repre- sentatives again met Wells, Maloney, and Kelly were pre- sent for the Employer-for Respondents the representa- tives were Sledz, Kemp, Ferguson, Gillin, Nye, and Stark At this meeting the Employer's representatives provided Respondents with the names of the employees to be disci- plined and generally the reasons why There was also a discussion of insurance premiums for unit employees The Respondents agreed to pay the premiums for August and the Employer for September On September 8 a meeting of the employees in the bar- gaining unit was held Sledz gave the employees the infor- mation, provided him by the Employer on September 5 in respect to the employees to be disciplined There followed some discussion of the contract package wherein Sledz an- swered questions from the floor The package was eventu- ally put to a vote and a majority of the employees agreed to ratify it Within a few days after September 9, withdrawal of the charge in Case 8-CA-9372 was approved by the Regional Director The strike and picketing apparently ceased when the contract was ratified on September 8 B Concluding Findings As I have found, the Employer and Respondents reached agreement as of August 5, 1975, on all items ex- cept the matter of amnesty for employees allegedly in- volved in strike misconduct which, of course, includes such related elements as their identities, the discipline proposed, and the reason for the discipline While, as I have further found, some disagreement arose at the bargaining session of September 4, as to the Employer's claimed obligation to pay the insurance for August, this does not alter my con- clusion that a final agreement-except for the amnesty is- sues-had been struck on August 5 For, as Sledz admitted and Wells' notes show, the Employer only agreed to pay the August premiums if the contract was ratified in Au- gust-which, of course, it was not And, as Wells' notes further show, and I find, the Employer agreed that if there was no ratification at Respondents' meeting of August 8, then the Employer would pay premiums as they became due after the date of ratification There is no indication that the Respondents rejected this condition at the meeting of August 5 In sum, therefore, I conclude that the total and final agreement on this item was that the Employer would pay premiums as they came due after the ratifica- Respondents view in the context of telling Wells what the employees voted on clearly indicates Kemp's intention to convey to Wells Kemp's opinion that the employees voted to support Respondents 15 These findings are based on the credible and undisputed testimony of Kelly in this regard Ferguson did not testify 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion whenever ratification took place Since all other items were clearly agreed to on August 5, and since I have found there was also a final agreement on this item, this means that, as of August 5, there was final agreement in toto on a new contract except on the amnesty problem and issues directly related thereto But the matter of amnesty for employees engaged in strike misconduct with its related issues such as the identity of the alleged miscreants, the discipline proposed, the rea- sons for the discipline, and even the dates when all such information would be provided to Respondents is not a mandatory subject of bargaining I reach this conclusion based on the following The Em- ployer has the absolute right, as Respondents concede in their brief, to discipline employees who engage in strike misconduct 16 And, as Respondents further concede in their brief, the matter of discipline for strike misconduct is a permissive subject of bargaining and not a mandatory subject 17 This means, of course, that the Employer had no obligation to bargain with Respondents in respect to its right to exercise such discipline 18 Inasmuch as the subject is a permissive one and does not give rise to a bargaining obligation, it seems to me, consis- tently, that the Employer thus had no obligation to furnish information in respect to that subject-viz it was not re- quired to identify the strikers subject to discipline, the rea- sons for their selection, the nature of expected discipline nor the time when such details would be provided 19 This is not, however, to say that the act of discipline itself, if and when it is ever exercised will not then become a mandatory subject Rather it seems clear that such an act could become a mandatory subject at the time it takes place or when the machinery to effect it has begun opera- tion At such time the subject could become mandatory, for example, if it were shown that the real reason any given striker was being disciplined was a discriminatory one and that such employee was not truly being disciplined for claimed strike misconduct 20 But no such question had arisen at the time of the Au- gust 5 meeting between the Employer and Respondents No employee had been disciplined nor had those to be selected been sorted out 21 Consequently the demands of Respondents in this regard at that juncture were premature and the Employer was under no obligation to respond at that time The possibility of its later obligation to bargain 16 N L R B v Fansteel Metallurgical Corporation 306 U S 240 253 (1939) 17 National Carbon Division, Union Carbide and Carbon Corporation and National Carbon Company, Inc, 100 NLRB 689, 695 (1952), Local No 611 International Chemical Workers Union AFL-CIO (Purex Corporation Limit- ed), 123 NLRB 1507 (1959), Midwestern Instruments Inc 133 NLRB 1132 1141 (1961) is N L R B v Wooster Division of Borg Warner Corporation 356 U S 342 349 (1958) 19 Whereas, of course, had the subject been a mandatory one, the provi- sion of such information would be part and parcel of an employers duty to bargain See, e g , N L R B v Truitt Mfg Co, 351 U S 149 (1956) 2 National Carbon Division supra at 695, Kohler Co 128 NLRB 1062 1108 In 20 (1960) 21 Respondent makes much of the fact that most of those selected for discipline were involved in the truck incident of July 15 of which the Em player was well aware and in fact had a videotape But most are not all and the Employer was asked to identify all after disciplinary action would have commenced was, how- ever, clearly acknowledged by it at the meeting of August 5 when it agreed to submit all disciplinary determinations to the grievance machinery under its previous contract with Respondents At the time of any such submission the Em- ployer would, of course, also be required to provide suffi- cient information to Respondents to enable them to prose- cute any such grievance intelligently 22 But that requirement had not arisen at the time in question here, hence is not before me 23 Insistence to impasse on a permissive subject of bargain- ing and strike (or, as here, prolongation of a preexisting strike) by a labor organization or organizations constitutes an unlawful refusal to bargain in violation of Section 8(b)(3) of the Act 24 Here I conclude that, as alleged in the complaint, Re- spondents have insisted to impasse on this bargaining sub- ject, continued to strike and picket in support of their de- mands in respect to this subject, and have thereby violated Section 8(b)(3) of the Act The specific allegations of the complaint deal with the methods adopted by Respondents to carry out their unlawful insistence in respect to this non- mandatory subject More precisely, as I have found (par 12,B of the com- plaint) Sledz advised the Employer representatives on Au- gust 5-after they had declined to grant the requested am- nesty-that he would take the tentative contract to a ratification meeting of bargaining unit employees but that he would not recommend it for ratification because of the Employer's refusal to grant amnesty The obvious implica- tion of this statement when made was that, if the Employer would grant the requested amnesty, Sledz would recom- mend that the employees ratify the tentative agreement Sledz did not obtain the sought after amnesty Although the later emphasis of his efforts at the meeting of August 5 was directed at obtaining the details of the discipline for alleged strike misconduct, he never withdrew his statement that he would not recommend the contract because of the Employer's refusal to grant the requested amnesty Fur- ther, Respondents' bargaining committee did not on Au- gust 8 recommend to the employees that they ratify the contract-the committee rather recommended against it And, as Price told the local newspaper, the contract was rejected because the Employer "insisted it was going to take disciplinary action against certain unnamed workers for unknown reasons " It follows that Respondents from August 5 to at least September 4 conditioned their recom- mendation for ratification of the contract, at least in part, upon the Employer's abandonment of its decision to disci- 22 E g Hawkins Construction Company 210 NLRB 965, 966 (1974) 23 In reaching my conclusion that the Employer was not bound to furnish the instant information herein at the time it was requested on August 5 1 do not deem myself bound by Administrative Law Judge Bisgyer s dictum opinion to the contrary which appears in Food Service Company 202 NLRB 790, 805 (1973) No precedent was cited by Judge Bisgyer in support of his view which exceeds the bounds, in my judgment, of National Carbon Divi sion and Kohler which I have discussed, supra 24 Portland Stereotypers and Electotypers Union No 48 and International Stereotypers and Electrotypers Union of North America, AFL CIO 137 NLRB 782 787 (1962) Detroit Resilient Floor Decorators Local Union No 2265 of the United Brotherhood of Carpenters and Joiners of America, AFL- CIO 136 NLRB 769 (1962), enfd 317 2d 269 (C A 6, 1963), see N L R B v Wooster Division of Borg Warner Corporation supra UNITED STEELWORKERS OF AMERICA, LOCAL #7807 pline employees for strike misconduct 25 (the other part being that the employees to be disciplined were unnamed and the reasons for their discipline was unknown to Re- spondents) Further (par 12,A of the complaint), as I have found, and as Sledz essentially admitted, Sledz told the Employer at the meeting of August 5 that he could not recommend the contract for ratification unless the Employer at least capitulated on Sledz' demand to provide him the names of the employees to be disciplined He also sought to learn the reasons for and extent of the discipline and the dates when this information would be forthcoming Respondents con- tinued to refuse their recommendation until the Employer provided the information sought on September 4 Hence it is clear, as the complaint alleges, that Respondents on Au- gust 5 and thereafter until at least September 4 refused to recommend the tentative contract for ratification until they received information from the Employer regarding the identities of the employees who were to be disciplined for alleged strike misconduct as well as the nature of and rea- sons for such discipline Also, as I have found (par 12,C of the complaint), the Respondents' bargaining committee proposed and recom- mended a motion at the meeting of unit employees on Au- gust 8 that voting on the contract be deferred until the Employer ceased its "unfair labor practices regarding [threatened, discharges and disapliniers [sic] of workers " And Respondents represented to the employees at this meeting that certain actions of the Employer in respect to the matter of discipline of employees for alleged strike mis- conduct were unfair labor practices These improper ac- tions, according to what Sledz and Lackey told the employ- ees, were the refusals to provide the names of the employees, the reasons for the discipline and extent of it, and the time when the information would be forthcoming In the face of Respondents' recommendation and the rep- resentation that the conduct of the Employer was an unfair labor practice, the employees, not unpredictably, voted to defer the ratification vote This also meant that until the Employer changed its position the contract stood rejected Inasmuch as Respondents led the employees to this vote, Respondents are responsible for it Hence, Respondents are correctly charged with having deferred a vote on ratifi- cation and rejecting the contract until the Employer aban- doned its decision to discipline or terminate employees for alleged strike misconduct While the testimony of Sledz suggests that the emphasis of Respondents' position at the employee meeting of Au- gust 8 was placed upon the Employer's failure to identify the alleged miscreants and to give the reasons for and ex- tent of the proposed discipline rather than on the decision to discipline per se, Respondents, as I have found, did not withdraw their initial demand (at the meeting of August 5 with the Employer) for a "no recriminations agreement" nor their condition that no recommendation for ratifica- 25 In making this finding, I am not unmindful that Sledz denied that he stated any such condition at the meeting of August 5 My finding as to the instant condition is based not on what he said explicitly but the implications of his remark that he would not recommend ratification because the Em- ployer refused to grant amnesty 83 tion would be made until Respondents obtained such an agreement Hence I conclude, at least as of August 8, that Respondents' intentions in regard to obtaining full amnes- ty had not changed-only the means that they used to ob- tain their way That is, they garnered employee support for rejecting the contract by means of their claim that the Employer's refusal to provide names, reasons, etc , was an unfair labor practice Moreover, the fundamental question whether the Employer would discipline is, at least to a de- gree, intertwined with the sought after details as to names, reasons, etc , with respect to the employees intended to be disciplined Certainly Price thought so when he told the local newspaper that the employees' rejection of the con- tract was because the Employer "insisted it was going to take disciplinary action against certain unnamed workers for unnamed reasons " Finally, as I have found, the Respondents and the Em- ployer had reached a tentative final agreement on all items except the matter of employee discipline and issues related thereto Inasmuch as the Respondents were not entitled to insist to impasse on this nonmandatory subject-that is, permit nonagreement on it to stand in the way of a tenta- tive collective-bargaining contract covering mandatory items-Respondents' insistence thereon at the negotiation meeting of August 5 and their actions in support of that insistence (their refusals to recommend the tentative agree- ment for ratification, their condition that no recommenda- tion would be made unless the Employer recanted, and lastly their recommendation to defer ratification at the em- ployee meeting of August 7) necessarily blocked the ratifi- cation of the tentative agreement and prolonged the strike and picketing which began on June 3 and which were in support of Respondents' bargaining demands By thus pro- longing the strike Respondents' actions as alleged in sub- paragraphs 12,A, B, and C of the complaint had the effect of enforcing Respondents' unlawful demands in respect to the matter of employee discipline for alleged strike miscon- duct and exerted pressure upon the Employer to acquiesce in those demands IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth above, occurring in connection with the operations of the Employer de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, it will be recommended that Re- spondents be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act The affirmative action will include a requirement for the posting of appropriate notices by Re- spondents The loci of posting by Respondent Internation- al will be International offices in the same local geographi- 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal area as the Employer's plant here involved, where said offices (e g, subdistrict) have jurisdiction over Local #7807 and provided representatives for the 1975 collective negotiations with this Employer 26 CONCLUSIONS OF LAW 1 The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Each of Respondents is a labor organization within the meaning of Section 2(5) of the Act 3 The following unit of the Employer's employees is appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act All production and maintenance employees in the plant of the Employer at Tiffin, Ohio, but excluding office and plant clerical employees, inspectors and timekeepers, guards, technical employees, professional employees and supervisors, as defined in the National Labor Relations Act of 1947 as amended 4 At all times material herein the Respondents, jointly, have been and are now the exclusive bargaining represen- tatives within the meaning of Section 9(a) of the Act of all the employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other terms and conditions of employment 5 By engaging in the following conduct, as found here- in, Respondents have violated Section 8(b)(3) of the Act (a) From on or about August 5, 1975, to at least Septem- ber 8, 1975, refusing to recommend for ratification by its membership in the above-described unit an agreed-upon collective-bargaining contract until Respondents received from the Employer information regarding the identities of employees to be disciplined by the Employer for alleged strike misconduct, as well as the nature of and reasons for such discipline (b) Since on or about August 5, 1975, to at least Septem- ber 8, 1975, unlawfully conditioning their recommendation for ratification of said collective-bargaining contract upon the Employer's abandonment of its decision to terminate and/or discipline certain employees for allegedly engaging in strike misconduct (c) Since on or about August 8, 1975, to September 8, 1975, deferring a ratification vote of its membership on the aforementioned collective-bargaining contract and reject- ing such contract until the Employer abandoned its deci- zs I reject the Charging Party s requests in its brief that I recommend additional remedies Its request that I recommend that employees be com pensated for wages lost during the last month of the strike (the period occur- ring after the unfair labor practices) with a waiver of union dues for 6 months is, in my judgment, manifestly inequitable The employees by vot- ing to reject the contract for unlawful reasons thereby determined of their own volition to continue the strike during the period for which wages are now asked by the Employer As to the Employer's request for attorneys fees, I reject it for the same reasons cited by the Board in Heck's Inc 191 NLRB 886 889 (1971) Finally, as to the Charging Party s request that the Respondents be required at their expense to mail a copy of the Board notice to each employee in the unit, I do not find in this case anywhere near the same degree of massive and pervasive unfair labor practices which con- strained the Board to grant such a remedy in J P Stevens & Co 157 NLRB 869 (1966), enfd 380 F 2d 292 (C A 2, 1967), cert denied 389 U S 1005 (1967), the case on which the Charging Party relies Sion to terminate and/or discipline certain employees for allegedly engaging in strike misconduct (d) From August 5, 1975, to at least September 8, 1975, prolonging a strike and picketing at the Employer's facih- ties involved herein by employees of the Employer repre- sented by Respondents wholly or in part for the purposes of enforcing Respondents' unlawful demands described in subparagraphs a, b, and c, supra, and to exert pressure upon the Employer to accede to such unlawful demands 6 The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act Upon the foregoing findings of fact and conclusions of law, upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended ORDER 27 Respondents United Steelworkers of America and their Local #7807, their officers, agents, and representatives, shall 1 Cease and desist from (a) Refusing to bargain in good faith, upon request, with ITT Abrasive Products Company, Division of Internation- al Telephone & Telegraph Co, concerning the wages, hours, and other terms and conditions of employment of the employees in the following appropriate unit All production and maintenance employees of the above-named company at its plant in Tiffin, Ohio, but excluding office and plant clerical employees, inspec- tors and timekeepers, guards, technical employees, professional employees and supervisors as defined in the National Labor Relations Act of 1947, as amend- ed (b) Refusing to recommend an agreed-upon contract for ratification by the employees in the above-described unit, until Respondents receive from the above-named Compa- ny information regarding identities of employees to be dis- ciplined for alleged strike misconduct and the nature of and reasons for such discipline (c) Conditioning a recommendation for ratification by their membership in the above-described unit upon the abandonment by the above-named Employer of any deci- sion to terminate or discipline employees for allegedly en- gaging in strike misconduct (d) Deferring or obtaining a deferral of a ratification vote of their membership in the above-described unit on an agreed-upon contract until such time as the above-named Employer abandoned any decision to terminate and/or discipline employees for allegedly engaging in strike mis- conduct (e) Prolonging a strike or picketing at the business prem- ises of the above-named Employer by employees repre- 27In the event no exceptions are filed as provided by Sec 10246 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 UNITED STEELWORKERS OF AMERICA, LOCAL #7807 sented by Respondents in the above-described unit where said prolongation is wholly, or in part, for the purposes of enforcing unlawful demands such as those proscribed in subparagraphs 1,b, c, and d, supra, of this Order 2 Take the following affirmative action which is deemed necessary to effectuate the policies of the Act (a) Upon request, bargain collectively in good faith with the above-named Employer in respect to the wages, hours, terms, and conditions of employment of the employees in the above-descnbed collective-bargaining unit without re- fusing to recommend an agreed-upon contract for ratifica- tion by their membership, conditioning such recommenda- tion or deferring a ratification vote where said refusal to recommend, condition, or defer is for the purpose in whole or in part of exerting pressure on the above-named Em- ployer to abandon any decision to discipline employees for allegedly engaging in strike misconduct or to provide Re- spondents with the names of such employees and the na- ture of, and reason for, discipline proposed to be visited upon them (b) Post at Respondents' business offices and meeting places copies of the attached notice marked "Appendix "28 Copies of such notice on forms to be provided by the Re- gional Director for Region 8, after being duly signed by Respondents' representatives, shall be posted by Respon- dents immediately upon receipt thereof and maintained by them for a period of at least 60 consecutive days thereafter including all places where notices to their members are customarily posted which in the case of Respondent Inter- national will be those places described in the "Remedy" section of the Administrative Law Judge's Decision herein Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material (c) Forward to the above-named Employer for posting at its premises, the Employer willing, copies of such notices duly signed by Respondents' representatives (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith 25 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence it has been decided that we, United Steelworkers 85 of America and our Local #7807, have violated the Na- tional Labor Relations Act and we have been ordered to post this notice WE WILL NOT refuse, upon request, to bargain in good faith with ITT Abrasive Products Company, Di- vision of International Telephone & Telegraph Co, concerning the wages, hours, and other terms and con- ditions of employment of the employees in the follow- ing appropriate unit All production and maintenance employees in the plant of the above-named Employer at Tiffin, Ohio, but excluding office and plant clerical employees, inspectors and timekeepers, guards, technical em- ployees, professional employees and supervisors, as defined in the National Labor Relations Act of 1947, as amended WE WILL NOT refuse to recommend for ratification by our membership in the above-described unit an agreed-upon collective-bargaining contract until we receive information from the Employer regarding the identities of employees to be disciplined by the above- named Employer for alleged strike misconduct, as well as the nature and reasons for such discipline WE WILL NOT condition our recommendation for rat- ification of an agreed-upon contract upon the aban- donment by the above-named Employer of its deci- sion to discipline or terminate employees for allegedly engaging in strike or picket line misconduct WE WILL NOT defer, or recommend deferral of, a rati- fication vote on an agreed-upon contract nor will we reject such contract until such time as the above- named Employer abandons his decision to terminate or discipline employees for alleged strike misconduct WE WILL NOT prolong a strike and picketing at the above-named Employer's premises in Tiffin, Ohio, to enforce our demands that the Employer abandon any decision to discipline employees for allegedly engaging in strike misconduct or to provide us the names of employees so involved along with the nature and rea- sons for the discipline to be imposed, nor to exert pres- sure upon the employer to acquiesce in such demands WE WILL, upon request, bargain in good faith with the Employer in respect to the wages, hours, terms, and conditions of employment of employees in the above-described unit without refusing to recommend an agreed-upon contract for ratification or condition- ing such recommendation upon the Employer's aban- donment of any decision to terminate or otherwise dis- cipline employees for allegedly engaging in strike misconduct or upon the Employer's acquiescence in our demand that the Employer furnish us the identites of employees to be disciplined for alleged strike mis- conduct along with the nature and reasons for such discipline UNITED STEELWORKERS OF AMERICA LOCAL # 7807, UNITED STEELWORKERS OF AMERICA