American Ship Building Co.

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Ship Building Company and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers Local Lodge No. 358, AFL-CIO. Cases 8-CA-8675, 8-CA-8676, 8- CA-8693, 8-CA-8740, 8-CA-8872, and 8-CA- 9126 November 5, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 30, 1976, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent 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 rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order as modified herein.' We do not agree with the Administrative Law Judge that Respondent's discharge of Harvey Krieg and the subsequent denial to Krieg of access to Re- spondent's yard are violations of Section 8(a)(5) and (1) of the Act. As set forth by the Administrative Law Judge, Krieg was employed by Respondent as a rigger in its shipyard from 1964 until his discharge on October 11, 1974. In July 1972, Krieg began serving as presi- dent of the Union. Like his predecessors, who spent an average of 1 to 4 hours a day on union business and the rest of the time working, Krieg began his term dividing his workday almost equally between production work and attendance to union business. Also like his predecessors, he reported to his foreman in the morning at the start of his workday. As time passed, however, Krieg spent less time working. For 2 years prior to his discharge, Krieg did no produc- tion work, spending all his time on union business while receiving full pay from Respondent. He also ceased reporting to his foreman. t Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and positions of the parties The Administrative Law Judge concluded that Krieg's nonwork for 2 years with full knowledge of the Employer rose to the level of an existing working condition, established through custom and practice, which could not be changed without bargaining with the Union . By this logic, Respondent would have had to bargain with the Union for Krieg 's services before ordering him to perform work for which he was being paid and before discharging him for failure to obey such an order. We disagree. No provision in Respondent's collec- tive-bargaining contract with the Union exempted Krieg from performing any but union work . It is true that for the 2 years preceding his discharge Krieg had spent all his worktime on union business. However, there is no evidence that during this period he had ever been directed and refused to work when his ser- vices as an employee were needed or that Respon- dent had anticipated that he would do so. Something more affirmative is needed to establish that an em- ployer has waived its right to require an employee to perform work for which he was hired and for which he was nominally being paid . That Respondent did not intend such a waiver is evidenced by the fact that 4 months before his discharge Krieg was ordered by Foreman Van Horn and Hull Superintendent Young to resume reporting to his foreman every morning. Krieg filed a grievance but did not follow up on the matter . He simply ignored the order to report. Krieg was therefore on notice well before his discharge that he was expected to work when ordered to do so. Moreover, when Krieg was ordered by his foreman to help unload steel from the gondola, he was not engaged in any form of union activity . Rather, he was found sitting in the dispatcher's office reading a newspaper . When Krieg told Foreman Van Horn that he wanted to see Van Horn about a grievance, Van Horn told him that he could process the griev- ance later, but first he must help with the unloading of the steel . There was no need for the immediate processing of the grievance since the subject matter had occurred several days earlier and under the con- tract the Union had 7 more days in which to press the grievance. Krieg refused the work assignment saying that he was involved in the grievance proce- dure and was going to continue in its pursuit. Van Horn thereupon escorted Krieg to the yard manager's office where they met Vice President of Operations Schermond, who told Krieg to do what Van Horn had ordered him to do . When Krieg re- fused and walked out, Schermond ordered his dis- charge. It is clear, as found by the Administrative Law Judge, that Krieg was not discharged for discimina- tory reasons in violation of Section 8(a)(3). It is also 226 NLRB No. 113 AMERICAN SHIP BUILDING CO. 789 clear that the collective-bargaining contract con- tained no provision which excepted Krieg from per- forming unit work. Further, we find that there ex- isted no oral understanding which rose to the level of an existing working condition that Krieg was to do only union work.' Under these circumstances, we find, contrary to the Administrative Law Judge, that Respondent was not required to bargain with Krieg before ordering him to perform the work of a rigger, which was his job classification and for which he was paid. As Krieg refused a lawful order to perform work, we find that his discharge did not violate Sec- tion 8(a)(5) and (1) of the Act.3 The cases relied on by the Administrative Law Judge to support her conclusion are not apposite. In Howmet Corporation, A ustenal Microcast Division, 197 NLRB 471 (1972), an 8(a)(5) violation was found where the company substantially increased its sub- contracting without first giving notice to, or bargain- ing with, the union. In Granite City Steel Company, 167 NLRB 310 (1967), an 8(a)(5) violation was found where a company, without first bargaining with the union, limited a union business agent's access to its blast furnace from what it had previously permitted. In Motoresearch Company and Kems Corporation, 138 NLRB 1490 (1962), and in Bethlehem Steel Company (Shipbuilding Division), 136 NLRB 1500 (1962), re- manded 320 F.2d 615 (C.A. 3, 1963), 8(a)(5) viola- tions were found where the companies made unila- teral changes in their grievance procedures. In none of these cases was an 8(a)(5) violation found for fail- ure to bargain with a union before ordering an em- ployee who was also a union representative to do needed work within his job classification. If Krieg believed that as union president he was not required by custom or practice to perform rigger's work, the procedure which he should have followed was to obey Van Horn's order and then process a grievance through the grievance-arbitration provision of the collective-bargaining contract. The Administrative Law Judge further found that Respondent also violated Section 8(a)(5) when it at- tempted to deny Krieg access to the yard on three occasions because it "was a direct outgrowth of the unlawful unilateral conduct which resulted in his dis- charge." As we find the conduct resulting in the dis- charge to have been lawful, we also find that the conduct which was an "outgrowth" thereof was simi- larly lawful.4 Finally, we also agree that Respondent did not vi- olate its bargaining obligation with respect to the movement of the union office. While we agree fully with the rationale discussed by the Administrative Law Judge concerning this issue, we note further that to the extent the office was used by nonemployee "outsiders" Respondent was not even under an obli- gation to bargain concerning its relocation. 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 as modified below and hereby orders that the Respondent, Amer- ican Ship Building Company, Lorain, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Delete the words "discharging or" from para- graph 1(a). 2. Substitute the following as paragraph 2(a): "(a) Make whole employees Lonnie Parrett, Da- vid Noonan, and Myron Lassen with interest in the manner described in the remedy section of this Deci- sion." 3. Substitute the attached notice for that of the Administrative Law Judge. The Administrative Law Judge found that Krieg was told by guards on three separate occasions that he could not enter the yard without first ob- taining permission from a company official, just as any nonemployee union representative was required to do Krieg ignored the warning of the guards and entered the yard to perform union work. He has since been permitted to enter the yard at will by signing the logbook APPENDIX 2 Member Jenkins in agreement with the rationale of his colleagues, notes additionally that normally " tolerated inefficiencies do not, by a relatively brief and unrecognized existence within an enterprise, thereby become `terms or conditions of employment ' " (See his dissent in Dixie Ohio Ex- press Company, 167 NLRB 573, 576-577 (1967), enforcement denied 409 F 2d 10 (C.A 6, 1969).) Here Respondent tolerated Krieg's total involve- ment in union affairs during the course of the workday for 2 years. How- ever, the custom and practice in existence for some 20 years prior to Krieg's ascendancy to the presidency was for employee union presidents to spend only half their day on union affairs and the other half working Krieg's encroachment upon this deeply rooted practice cannot eliminate what had existed for 20 years 3 Hoyt Motor Company, Inc, 136 NLRB 1042 (1962) NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally change the wages, hours, or working conditions of our employee union representatives or stewards established by practice, or threaten to discharge them, or dock or threaten to dock their pay in connection with or as a result of such unilateral changes. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in their exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL make Lonnie Parrett, David Noo- nan, and Myron Lassen whole, with interest at 6 percent, for the loss of pay suffered by them as a result of docking the pay of Parrett, Noonan, and Lassen. WE WILL restore the wages, hours, and work- ing conditions, and other terms and conditions of employment appertaining to the above- named union representatives and stewards at the time of the unilateral changes. WE WILL, upon request, bargain collectively in good faith with the certified joint representative, including International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 358, AFL-CIO, of our employees in the appropriate production and maintenance unit concerning any changes in wages, hours, working condi- tions, and other terms and conditions of the union representatives and stewards of our em- ployees established by practice. AMERICAN SHIP BUILDING COMPANY DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: A hearing was conducted in this consolidated proceeding at Lorain, Ohio, October 14-17, 21-23, 1975. Upon charges duly filed by the Charging Party Union and served on Re- spondent, a complaint was issued in Case 8-CA-9126 on May 30, 1975, and an order consolidating cases, consoli- dated complaint, and notice of hearing upon charges in the remaining cases was issued on June 12, 1975. The consoli- dated complaint was amended on June 18, amplified by additional particulars on June 27, and further amended at the hearing. Answers to the consolidated complaints were duly filed by Respondent and amended at the hearing The first issue in this proceeding is whether or not Re- spondent violated Section 8(a)(5), (3), and (1) of the Na- tional Labor Relations Act, as amended, by discharging Union President Harvey Krieg on October 11, 1974; and violated Section 8(a)(5) and (1) by unilaterally and in bad faith restricting him in the performance of his duties as president of the Union in the shipyard after his discharge. The second issue is whether or not Respondent violated Section 8(a)(5), (3), and (1) by unilaterally and in bad faith docking the pay of the following employees for time spent on union business during working time : Union Vice Presi- dent Bert Mucha , 53 specific occasions between November 7, 1974, and June 8 , 1975; Burner Steward Lonnie Parrett, January 17 and April 2, 1975; Welder Steward David Noo- nan, January 22 and February 5, 1975; and alternate Welder Steward Myron Lassen , January 17, 1975. Closely related is the issue of whether or not Respondent violated Section 8(a)(5) and ( 1) by unilaterally and in bad faith threatening and harassing these union representatives and stewards in the performance of their duties. The remaining issue is whether or not Respondent vio- lated Section 8(a)(5) and ( 1) by unilaterally and in bad faith ( 1) relocating the office allocated to the unions on Respondent's premises and removing the telephone from and changing the locks on the office ; (2) insisting on using a dictaphone in third-step grievance meetings ; and (3) de- termining in advance Respondent's answers to grievances before discussing them at the third-step meeting on April 23, 1975. Upon the entire record , including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION Respondent is a New Jersey corporation with its princi- pal office located in Lorain, Ohio, where it operates the shipyard involved in this proceeding in the building, repair- ing, and servicing of ships. Respondent annually receives goods valued in excess of $50,000 from points located out- side the State of Ohio. Respondent admits, and I conclude, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II LABOR ORGANIZATIONS The record shows and I find that the Charging Party, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 358, AFL-CIO, herein referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act.' 1 The complaint alleges, the Respondent admits, and I find that the fol- lowing unions, affiliated with AFL-CIO, are also labor organizations within the meaning of Sec 2(5) of the Act International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers of America, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, United Brotherhood of Carpenters and Joiners of America, International Brotherhood of Elec- trical Workers, Brotherhood of Painters and Allied Trades, International Brotherhood of Firemen and Oilers, and International Union of Operating Engineers AMERICAN SHIP BUILDING CO. 791 111. THE UNFAIR LABOR PRACTICES 2 A. Introduction The following persons were admitted supervisors and agents of Respondent at pertinent times: Robert L. Dibble-vice president of personnel Rodger Knight-welding foreman assistant Joseph D. O'Keefe-manager of industrial relations Carl Plott-yard superintendent John Schermond-vice president of operations Robert E. Smith-assistant hull superintendent John C. Stuller-welding foreman William A. Van Horn-rigging foreman The parties stipulated that Jerry Przystulsky, Robert Saun- ders, Robert Rouse, Ted Almas, and Norman Shroeder were also supervisors. Paul Tietlen was president of Re- spondent, and Harold Young was superintendent of the Lorain shipyard.3 Since August 29, 1941, the International Unions named above have been the certified joint representative in the appropriate unit of production and maintenance employ- ees at Respondent's three locations, including the shipyard at Lorain, Ohio, here involved. For many years the Inter- national Unions have been parties to joint collective-bar- gaining agreements with Respondent covering the employ- ees in the certified unit, but each International Union or its local represents employees within its own agreed jurisdic- tion." The agreement involved in this proceeding was joint- ly executed and was effective from August 15, 1972, until August 15, 1975. The Charging Party Union represents by far the largest number of employees at the Lorain shipyard covered by the agreement, including the riggers, welders, and burners. Two articles of the agreement are relevant to this pro- ceeding. Article 21, which is entitled, "Access to Yards," provides as follows: 2 The factual findings rest on my best judgment as to what happened in light of the relative credibility of witnesses and the probabilities when viewed in the context of the entire record None of the major witnesses was wholly believable and none is totally relied on Although considerations relevant to specific factual findings are pointed out in certain instances, a few relative assessments ment comment I find Director of Security and Safety Roy Walker, Union Vice President Bert Mucha . and International Representative George Sepelak generally to be the least credible of the ma- jor witnesses-Walker because he was revealed to be inaccurate on the one important issue he testified about , and Mucha and Sepelak because of their unfavorable demeanor and their inconsistencies , plus in the case of Mucha his obvious attempts at evasion I rely on the testimony of Union President Krieg with caution because of his tendency to expand . withhold, and color the facts to support his cause Rigging Foreman William Van Horn , Assis- tant Hull Superintendent Robert Smith, Industrial Relations Manager Jo- seph D. O'Keefe, and Vice President John Schermond failed to stick to the truth always , but based on demeanor and review of their entire testimony I am convinced that they succeeded more often than the aforenamed witness- es The demeanor of Union Stewards David Noonan and Myron Lassen was more favorable, and their testimony withstands analysis better than that of Union Steward Lonnie Parrett who is credited only where supported by corroboration or the probabilities 7 Knight, Plott, Przystulsky, Saunders, Rouse, Shroeder, Almas, and Tietjen did not testify in this proceeding Machinists are covered by a separate collective-bargaining agreement with the International Association of Machinists , AFL-CIO The appropriate Union representative shall have ac- cess to the Company's property by securing permis- sion from the Company to obtain information relating to pending grievances and other matters pertaining to the proper application of this agreement. There will be no collection of dues by the Union on Company time and there will be no other Union activ- ity on Company time or Company property except that necessary in connection with the handling of grievances and the enforcement of this agreement. Article 25, entitled, "Machinery for Adjustment of Complaints," provides a three-step grievance procedure culminating in final and binding arbitration. Article 25 specifies that "The Union shall have committeemen and/ or stewards to handle grievances." The first step is verbal, to be taken up by "The aggrieved employee and/or his committeeman or steward" with the employee's immediate supervisor not more than 10 workdays following the occur- rence. If the verbal grievance is not settled within 24 hours, it is to be presented in writing "by the employee, his de- partmental steward and/or Union representative" within 5 workdays to the yard manager or his representative. The yard manager or his representative must hold a meeting with the employee, his departmental steward, and/or the union representative within 5 workdays from the date of presentation of the written grievance, and answer it within 3 workdays of the step-two meeting. The third step requires that, the Yard Committee (to be composed of one (1) desig- nated union representative of each Union signatory to this agreement, one (1) steward from the aggrieved Union, and the grievant or grievants) of the Yard shall take up the alleged grievance with representatives of top management. The International Representative of the Union representing the aggrieved employee may also be present in addition to the Yard Committee. This step of the grievance procedure shall be taken within five (5) work days of the answer of the griev- ance in the previous step; however, this time limit may be waived . .. . B. Discharge of Harvey Krieg The complaint alleges that the discharge of Krieg vio- lated Section 8(a)(5), (3), and (1) of the Act. Respondent contends Krieg was lawfully discharged for refusing to work. Harvey Krieg was hired by Respondent December 3, 1964, and thereafter qualified as a first-class rigger. He was elected president of Boilersmakers Local 358 in June, and took office in July 1972. The record shows that it was the practice of those who occupied the office of president of Local 358 for a period of more than 20 years before Krieg to report to their supervisors every morning at the begin- ning of their shifts. When summoned for union business, they requested, and invariably received, permission from their foremen to leave theirjobs for that purpose, occasion- ally being required to spend a short time finishing the job upon which they were engaged or until a replacement was summoned. Three of Krieg's predecessors testified that 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permission was always granted, and that they spent on the average of 1-4 hours a day on union business during work- ing hours, for which Respondent paid them. Krieg began his term as president of the Union reporting every morning to William A. Van Horn, rigging foreman, and working as a rigger about half his 8-hour shift. The other half of his shift he spent conferring with stewards and employees, investigating and "researching" grievances, presenting verbal and written grievances to foremen and management, and attending second- and third-step griev- ance meetings, after he informed Foreman Van Horn that he had to go on "union business." As time went by, Krieg spent less and less time on rigging and more and more time on union business. For a while he continued to report to Van Horn at the beginning of his shift every day, but even- tually he ceased to do even that.' Thereafter, Van Horn assigned other riggers to do Krieg's work, and eventually replaced him. For a period of almost 2 years Krieg spent his entire time on union business, at full pay, without doing any work for Respondent and without any remonstration by Van Horn or management, except on one occasion. That occasion was June 7, 1974, when after Van Horn complained to his superior, Hull Superintendent Harold Young, they both ordered Krieg to begin reporting again to Van Horn every morning. Krieg, however, filed a grievance against them for harassing him, and ignored their order to report. There the matter rested, no further action being taken against Krieg. On discharge day, October 11, 1975, Krieg went to find Foreman Van Horn for the purpose of complaining about the crew loading groceries on a recently built ship, work which Krieg claimed was riggers' work. Discovering that Van Horn was not in his office, Krieg asked the dispatcher where he was, and was informed that Van Horn was aboard the ship. Knowing that the ship had departed earli- er that morning on its trial run and assuming that Van Horn would soon return, Krieg elected to wait for Van Horn in the dispatcher's office. Meanwhile, early that morning Van Horn had assigned two riggers on the trial run of the departing vessel. At 7 a.m. Van Horn assigned his remaining men to other fobs, and then discovered that he had only three riggers available to unload steel from a gondola. As the unavailability of steel had delayed the start of new ship construction and caused substantial layoffs of employees, Van Horn decided to assign Krieg to complete the usual four-man gondola unloading crew complement in order to get the steel in the production process as fast as possible. Looking for Krieg, he returned to his office and then went to the dispatcher's office where he observed Krieg reading the newspaper. Krieg announced he wished to take up a grievance with Van Horn regarding the loading of groceries aboard the just-departed vessel. Van Horn told Krieg the grievance could be taken up later, but first he must help unload the steel. Krieg refused the work assignment on grounds that he was "involved in the grievance procedure" and "was 5 Although I do not think it matters, I do not credit Krieg's testimony, which Respondent's vice president of personnel, Dibble, denied, that Dibble verbally acquiesced in Krieg's announced refusal to report to Van Horn any longer going to continue to pursue that." Van Horn thereupon escorted Krieg to the yard manager's office where they en- countered Vice President of Operations John Schermond. Van Horn asked Schermond "once and for all" whether Krieg was a rigger first or a union official only. Schermond replied that Krieg was a rigger first. When Van Horn com- plained that Krieg had refused to work, Schermond or- dered him to do what Van Horn told him to do. Krieg protested that he was acting under articles 21 and 25 of the collective-bargaining agreement, but Schermond repeated his order. Krieg turned his back, walked out, and went to the union office. Schermond directed Van Horn to give Krieg a reprimand for insubordination which under plant rule 19 called for discharge. Van Horn had the discharge slip prepared and delivered it to Krieg in the union office.' In my opinion the record fails to support the General Counsel's contention that Krieg's discharge was motivated by antiunion considerations. The record shows that Krieg was an aggressive union president from the start, and that he pushed through many improvements in conditions and benefits and filed and won many grievances. There is no evidence, however, that management built up any hostility towards Krieg or his union because of this. Krieg testified, without contradiction, to the effect that Respondent's board chairman, Steinbrunner, told him in 1973, after Krieg took an intractable position regarding work jurisdic- tion practices, "Those that cooperate with me, I cooperate with one hundred percent and those that don't, I take care of." This statement was made, if at all, a long time ago in a discussion of an issue apparently not thereafter pressed by the Company. I do not credit Krieg's testimony that only 3 or 4 days before his discharge Assistant Hull Superinten- dent Robert Smith charged that Krieg was not "in Mr. Steinbrunner's circle" and "that's why you are having trou- ble because the guy is after you." The providentiality of such an isolated revelation and the forcefulness of Smith's denial persuade me that it did not happen. Finally, Super- visor Ted Almas may have tipped Krieg to the possibility of an impending work assignment, but there was no hint of antiunion motive in Almas' remark. The record shows an association between the Company and several unions, including the Charging Party Union, which has existed for many years. Some of the supervision and management officials involved in this proceeding themselves have backgrounds of union affiliation and ad- vocacy.' Although the association doubtless has undergone periods of strain as it certainly did in late 1974 and early 1975, nevertheless collective-bargaining agreements have been negotiated, entered into, and administered. Griev- ances have been filed regularly and processed through the grievance procedure to and including arbitration. Other than expressions of disagreement and exasperation nor- 6 Where accounts vary as to what happened on October 11, 1 rely on Van Horn's Schermond supported Van Horn in much of his testimony but I believe Van Horn's recall of events was better I also believe that Krieg yielded a little more to the temptation to color events to his own advantage than Van Horn did ' Industrial Relations Manger O'Keefe has been president , member of the negotiating team, and steward of IBEW Local 1844 ; Assistant Hull Superin- tendent Robert Smith was welding steward for the Union, and Welding Foreman John Stuller has been steward , vice president, and president of the Union as well as financial secretary and business manager on its payroll AMERICAN SHIP BUILDING CO 793 mally characteristic of the arm's-length bargaining rela- tionship, there is no substantial probative evidence of any desire by Respondent to deprive its employees of represen- tation by the Union or unions of their choice to which they are entitled, or of other union animus. Van Horn disavowed any doubt that Kneg spent his time during the 2 years preceding his discharge as he said he did, in authentic union activity implementing the collec- tive-bargaining agreement. Van Horn said, however, that he did become frustrated because "I couldn't see why we had to pay him 8 hours a day when he was not doing 1 hour's work for us." In this testimony, I believe, is revealed the motivation for Van Horn's conduct toward Krieg on October 11. He was not particularly interested in forestall- ing the particular grievance which Krieg teed to present to him, or any other grievance. He only wanted to get some rigger's work out of Krieg. And he went about it by sud- denly confronting Krieg with a direct order to work, admit- tedly for the first time in 2 years. Vice President Scher- mond, who made the discharge decision, was, I am convinced, motivated by the same consideration plus a de- termination to back up his foreman's direct order and not to tolerate an employee's flat refusal to obey it. Under the law as I understand it, though, Van Horn and Schermond were not entitled to do this. Although the col- lective-bargaining agreement did not expressly provide that the president of the Union was privileged to spend his full working time, 8 hours a day, on union activities in imple- mentation of the agreement, it is undisputed that this had been the established practice for almost 2 years during which entire period Krieg did no work for Respondent, was not asked to do any, and yet was fully compensated for his time. Krieg's status thereby became an existing working condition at the Lorain shipyard, established through custom and practice, which could not be unilater- ally changed .8 This is not to say that the statute freezes Respon- dent to the existing practices . . . . It is to say that prior to effecting changes therein it is under a duty to give its employees' statutory representative an oppor- tunity to bargain concerning proposed changes. The bargaining representative is entitled to "an opportuni- ty to present arguments to the employer to dissuade him from effecting the change, and also an opportuni- ty to propose alternatives or compromises which might moderate the change so as to accommodate the interests of the employees as well as of the em- ployer." 9 This the Respondent totally failed to do. Management's abrupt order that Krieg perform rigger's work was tantamount to a unilateral change in an histori- cally established working condition maintained by the par- ties to the collective-bargaining agreement, regardless of Respondent's motive in doing so, 10 and its discharge of 8 See Howmet Corporation, Austenal Microcast Division, 197 NLRB 471 (1972), Granite City Steel Company, 167 NLRB 310 (1967), Motoresearch Company, et al, 138 NLRB 1490 (1962), Bethlehem Steel Company (Ship- building Division), 136 NLRB 1500 ( 1962), remanded 320 F 2d 615 (C A 3, 1963) 9 Granite City Steel Company, supra, 316 Krieg for refusing to obey such an unlawful order and thus acquiesce in Respondent's conduct, which he was entitled to refuse to do,ii constituted a violation of Section 8(a)(5) and (1) of the Act. The General Counsel contends that this conduct also violated Section 8(a)(3) of the Act. I am of the opinion, however, that viewed in the context of all the relevant facts this conduct 12 was not "so inherently destructive of em- ployee interests that it may be deemed proscribed [by Sec- tion 8(a)(3)] without need for proof of an underlying im- proper motive." 13 C. Harassment of Harvey Krieg The complaint alleges that Respondent further violated Section 8(a)(5) and (1) by harassing and imposing more restrictive rules on Krieg in the performance of his duties as president after his discharge. After he was discharged, Krieg remained president of the Union. On October 14, 1974, he addressed a letter to Yard Manager Norman Shroeder telling him so. Krieg ad- vised Shroeder that he intended to spend 4 hours a day in the yard and asked permission for access pursuant to arti- cle 21 of the collective-bargaining agreement for the pur- pose of performing his duties as president.14 The Respon- dent's president, Paul Tietjen, responded in a letter dated October 21, 1974, to the following effect: Since you are no longer in the employ of the American Ship Building Company, you will be extended every courtesy which would be afforded to International Representatives, and/or Business Agents of the Union. As a company policy, access to the yard is controlled. Therefore, you are requested to notify Mr. O'Keefe prior to any visitation by yourself, to obtain permis- sion to enter the premises Three reports dated November 4, 7, and 8, 1974, made out by guards at the gate show that Krieg was told by a guard on these three occasions that he could not enter the yard, the first time on instructions of Industrial Relations Direc- tor Joseph Danny O'Keefe, but that Krieg ignored the guards and drove in anyway.ls Krieg did not seek permis- sion from O'Keefe, as instructed by President Tietjen, and he had not at this time received permission from any man- 10 See N L R B v Benne Katz, etc, d/b/a Williamsburg Steel Products Co, 369 U.S 736 (1962). 11 See John Sexton & Co, a Division of Beatrice Foods Co, 217 NLRB 80 (1975) 12 Cf Local 374, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO [American Shipbudd- ing Co J v NLRB , 380 U S 300, 313 (1965) 3 N L R B v Great Dane Trailers, Inc, 388 U S 26, 33 (1967) 14 In this letter, Kneg also wrote, " In my absence , I will inform the Com- pany who is to assume the duties of Pres of Local #358 At no time is any Officer of Local #358 to assume the duties of Pres of Local # 358, unless the Company is so informed by myself " The significance of this statement is discussed below in connection with the alleged unlawful treatment of Union Vice President Mucha 15 1 find that all three witnesses who testified about Krieg's access to the yard after his discharge to be unreliable on this subject Industrial Relations Manager O'Keefe and Director of Security and Safety Roy Walker's testi- mony was not consistent with the documentary evidence, and Krieg was uncertain and inconsistent 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agement official to enter the premises. Subsequently, how- ever, he has been permitted to enter the yard at will by signing the logbook at the gate as other outside representa- tives do. Krieg agreed he had been going in and out of the yard, doing what he wanted to after signing in, for 10 months at the time of the hearing. In view of this testi- mony, I do not credit his subsequent assertion that he is still told, by someone unnamed, that he can only leave the conference room where second- and third-step meetings are held to see a steward or union officer. There has been no change in Boilermakers International Representative Sepelak's access to the yard.16 I have found no discriminatory motive in the discharge of Krieg, and I find that the credited facts do not show an intent on the part of the Respondent's docking of Vice President Mucha and the stewards for time spent discuss- ing union matters with him, discussed below. However, I find that the attempt to deny Krieg access to the yard on three occasions was a direct outgrowth of the unlawful unilateral conduct which resulted in his dis- charge, because if he had not been discharged, there would have been no attempt to keep him out of the yard. I there- fore conclude that this conduct constituted a further viola- tion of Section 8(a)(5) and (1). D. Union Vice President Mucha and Stewards The complaint alleges that Respondent violated Section 8(a)(5), (3), and (1) by docking the pay of Vice President Mucha, and violated Section 8(a)(5) and (1) by docking the pay, threatening, and harassing Stewards Parrett and Noo- nan and alternate Steward Lassen. The contract provisions set forth above do not spell out either the amount of time employee-union representatives may spend engaging in union activities on working time or whether they must receive permission from supervision to leave their work for this purpose.17 With regard to the prac- tice, the testimony is in agreement that no union officials or stewards were docked in pay or threatened with docking for time spent on union activities before November 7, 1974, approximately 3 weeks after President Krieg was dis- charged. I find that it was the general practice among union officials and stewards, except Krieg, to report to their foreman for work every morning, and when they were summoned on union business to inform their foreman they were leaving for that purpose, where they were going and, usually, whom they were going to see If the foreman was not present, it was the general practice to tell the leadman 16 Sepelak was the Boilermakers International representative who regu- larly serviced Respondent's employees, although Phillip Bartley (who did not testify) substituted for him occasionally 17 1 find that the applicability of art 21 of the collective-bargaining agree- ment to employee union representatives was never asserted before Krieg's discharge I note, however, that Yard Superintendent Carl Plott's answer to a grievance filed by Union Vice President Mucha November 27, 1974, ap- pears to concede its applicability In any event, art 21 does not spell out the matters referred to above or give stewards and union officials carte blanche to determine for themselves when they will leave their work for union busi- ness and be paid for it I also find that rule I of the company rules and regulations, providing progressive discipline for loafing or leaving work without permission, is not relevant as it has never been invoked by Respon- dent with regard to employee union representatives on union business or a fellow employee to inform the foreman on his return. I also find that permission to go on union business was seldom if ever denied or postponed. 1. Vice President Mucha Bert Mucha is a first-class welder whom Robert Smith, assistant hull superintendent in charge of welding and burning, considers an excellent welder. Mucha was as- signed to the pipe shop under the supervision of Foreman Larrimore, who did not testify in this proceeding. Mucha has been vice president of the Union since 1970. Based on Mucha's own testimony, I find that, prior to Union President Krieg's discharge, he spent 50 percent of his regular worktime on union business and that the Com- pany compensated him for the time so spent . Beginning on October 11, 1974, the time spent by Mucha on union busi- ness increased. He testified, albeit reluctantly, that every morning he appeared at Assistant Hull Superintendent Smith's office at 7 a.m., the start of the shift, and asked to go on union business. The record shows that during the 12 workdays from then until the end of October, Mucha weld- ed only 7 hours. Beginning on November 1, 1974, he per- formed no welding for Respondent, except on overtime at double pay, until April 7, 1975.18 Mucha appeared at a loss to explain this increase in union business. Thus, he testified more than once that Krieg's discharge had nothing to do with it. He also said, inconsistently and vaguely, that his duties increased because he was called upon to assume Krieg's duties "up to a point" or "to a certain extent." 19 Even though Krieg came into the yard every day regularly, Mucha said, Krieg spent his time in the union office, at second-and third-step meetings, and talking to Mucha about problems. Mucha had no recollection of the number of employees at various times during the period involved in this case, but he insisted that in any event there was no relationship between the size of the employee complement and the number of grievances filed. He could only say he spent more time on union business because "evidently we had problems in our rank-and-file," and because "with all the problems that were going in the yard, my duties dust is Mucha testified that the Union paid him for all the time he spent on union business during working hours for which Respondent did not pay him He finally went back to welding, he said, because "our Union was going broke" paying him 19 Mucha indicated he was unaware of Krieg's October 14, 1974, letter to Yard Manager Norman Shroeder, referred to above, which stated, "At no time is any Officer of Local #358 to assume the duties of Pres of Local #358, unless the Company is so informed by myself " Krieg testified that he never informed the Company in writing that anyone was to assume the duties of union president Although Krieg said he told Industrial Relations Manager O'Keefe and Yard Manager Shroeder that Mucha would take his place when he was not in the yard, he conceded he could be incorrect about this Krieg also said he told Assistant Hull Superintendent Robert Smith many times that Mucha would be acting president when he was away Smith denied it Mucha testified that Krieg never instructed him to assume the duties of president In these circumstances, I find that Krieg never gave such information to any member of management His and Mucha's suggestion that management should have taken for granted that Mucha would assume his duties because Mucha had acted as president in Krieg 's absence for years and years must be rejected as contrary to the specific instruction in Krieg's letter AMERICAN SHIP BUILDING CO 795 kept on increasing and increasing all the time . . . all the time." 20 It is clear that there was no discussion between the Union and management of any change in past practice and procedure either before Mucha began to spend more time on union business or before the first time his pay was docked November 7, 1974. Assistant Hull Superintendent Smith credibly testified that, shortly after Mucha began spending his entire regular working day on union business, Smith arranged for Mucha to report to him instead of to his regular foreman because Smith learned that Mucha was going from foreman to foreman trying to get permission to go on union business , ending up with Smith anyway. Mu- cha was a valuable welder and was needed on the job every day, and Smith felt that the only way to get any reasonable control over Mucha was to have him report directly to Smith . Smith said, although he believed that rule 1 of the company rules was applicable , he did not wish to apply it to Mucha, as Krieg had been discharged and Smith wanted to avoid further problems . It was Industrial Relations Manager O'Keefe's suggestion as an alternative that Mu- cha be docked for the time spent on unauthorized union business without permission. On November 7, 1974, Smith testified, Mucha was paid for 6 hours of authorized union business, but docked for 2 hours covering time spent in general discussion with Har- vey Krieg, without authorization. He was told that the Company would not pay for the time spent by him in advising the president of yard occurrences, when in fact the president was not here We did not feel this came under the structure of the contract with American Shipbuilding Company and under my responsibilities as Mr Mucha's supervisor.21 Thereafter, Mucha presented Smith with requests to go on union business throughout the day, as many as 11 times in a single day. On occasions when Smith docked Mucha's pay, it was because Mucha refused Smith 's order to work and insisted on engaging in union business immediately, without permission, Smith said. Mucha testified that, on most occasions , Smith told him he would not prevent Mucha's engaging in union business but if Mucha insisted on doing so at times when no permission was granted, his pay would be docked, and it was Although Smith testified to reasons for refusing to authorize company pay in specif- ic instances, he eventually indicated that he had no quarrel with the kind of activity in which Mucha asked to engage on those occasions when he was docked for not having permission . There appears to be no substantial difference between the kind of union activity for which Mucha was paid and the kind for which he was not, except that he was almost invariably docked for time spent in general discus- 20 Although Mucha testified, on redirect examination , that he was acting steward of three different departments at one time or another between Oc- tober 1974 and July 1975, I find this testimony unreliable because he was so vague about the periods covered and about how he received those assign- ments In any event, he did not attribute the increase in time spent on union business to these alleged assignments 21 i credit Smith as to what was said on this occasion , as it seems more likely than Mucha 's version , which was not corroborated by Krieg nor by the grievance filed on the incident, that Smith said, "I have just been in- formed that if anybody talks to Harvey Krieg or Harvey Krieg talks to a Union member in the yard, they will be docked " sions with President Krieg, helping stewards write griev- ances, and "researching Art. 21." 22 Much of the unauthor- ized time Mucha spent writing grievances protesting the docking of his own pay. Krieg estimated that 40 such griev- ances were filed. There is no evidence that any grievance was lost for union failure to meet the contract deadlines. The Respondent's records show the following with re- spect to Mucha during the period covered by the com- plaint.23 [The first column is the number of hours welded on regular time ; the second column , number of hours on authorized union business, for which he was compensated; the third column , hours docked for unauthorized union business ] 1974 ( 1) (2) (3) Nov. 91/2 1261/2 61/2 Dec. 14 101 71/2 1975 Jan. 0 90 491/2 Feb. 0 40 70 Mar. 0 931/2 541/2 Apr. 66 61 241/2 May 531/2 261/2 21/2 June 1/2 36 16 Totals 143 t/2 5671/2 231 Avg 18 71 29 The complaint contains a separate allegation that on April 23, 1975, the Respondent, contrary to past practice, threatened to dock Mucha's pay 3 hours for time spent at a third-step grievance meeting- 24 Smith testified that Mucha was docked 3 hours "for spending time on a third-step grievance , not authorized by Mr. O'Keefe." O'Keefe, whom I credit,25 testified that many burner grievances for "fume pay " for work aboard the vessel Steinbrunner were scheduled to be heard April 22 These findings are based on Smith 's testimony Mucha gave no testi- mony and had no notes or recall of the union business which was authorized and for which the Company paid him , and did not keep as careful a count as Smith of the time docked It is unlikely, therefore that his testimony as to what he told Smith he was going to do and what he did during the periods for which he was docked is as accurate as Smith's 23 Figures do not include absences or vacations Respondent's records show that Mucha 's pay was docked a total of 17- 1/2 hours during the period covered which the General Counsel does not claim On the other hand, the General Counsel claims 8 hours for March 13 and I hour for April 9 which the Respondent denies and is not shown on its records I find that Respondent's records are more reliable than Mucha's notes and testi- mony on which the General Counsel's claims are based As indicated above, Mucha had no records of payments by the Company for working time spent on union activities but he conceded that 50 percent would be a conservative figure 24 1 note that the Respondent subsequently paid Mucha for one-half hour docked from his pay November 12, 1974, on the grounds that he had per- mission from Foreman Przystulsky although Mucha testified he had never sought permission He was also paid for one-half hour docked November 13, 1974, the record shows that a grievance based on this docking was settled at the second-step meeting b} Yard Manager Plott's concession that art 21 was applicable to Mucha in exchange for Mucha's agreement to obtain permission for engaging in union business Mucha 's notes indicate he was also reimbursed for 3 hours of pay docked March 31, 1975 2 5 Mucha did not testify to what was said on this date, and there is no grievance in evidence relating to it I do not credit Harvey Krieg 's testimony that O'Keefe told Mucha , "he would no longer pay him for attending third- step grievance meetings." as his version is not borne out by events and as I consider O 'Keefe and Smith more credible 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 23. The committee meeting did not get started on time that morning because Boilermakers International Representa- tive Philip Bartley was late, and all the burner grievants were off the job sitting in the lunchroom waiting to testify at the third-step meeting. When Bartley arrived, it was agreed to hear the burners' grievances that afternoon, sending for them individually. O'Keefe told the union offi- cials that as Bartley, Krieg, and Steward Parrett would be present, there was no need for Bert Mucha to be at the meetings, it was not in the contract. Bartley insisted he wanted Mucha there, and O'Keefe finally said he would not authorize it and would not pay. Mucha attended the meeting but was docked for the time. Although the con- tract did not provide for the vice president's attendance at third-step meetings, Mucha had frequently done so in the past and had been paid for his time Mucha was paid for 5 hours' authorized union business April 23. The General Counsel contends that because in the past union representatives did not have to seek permission to leave their work for union business, and because their pay had never been docked for doing so, the Respondent's im- position of a requirement that Mucha obtain permission to go on union business and the threat to dock and docking his pay on April 23 and other specified dates constituted a unilateral change in working conditions violative of Sec- tion 8(a)(5). He also contends that Respondent's conduct in this respect was motivated by a desire to curtail union activities in the yard, and was therefore violative of Section 8(a)(3). As found above, consideration of the entire record in this case does not reveal that Respondent's conduct was motivated by discriminatory or antiunion considerations. Based on the credited testimony of Robert Smith and Dan- ny O'Keefe and the absence of any probative evidence to the contrary, I find that these management officials were motivated, in their treatment of Mucha, solely by trying to obtain productive work from him26 It is my opinion that it was the Union, as represented by its vice president, Mucha, which attempted unilaterally to change working conditions, and not the Respondent. The established practice, which could not be changed unilater- ally, was that Mucha was permitted to spend 50 percent of his working time on union business at full pay. I believe the issue of whether or not he, and other union representatives, were required to obtain permission is merely semantical. That Mucha may have told his foreman that he was leaving his job to go on union business rather than asked his per- mission to do so, seems to me to merely reflect mutual 26 There is no evidence that management was aware that the Union was compensating Mucha for time spent on union business when the Company refused to pay before March 4, 1975, when Krieg told O'Keefe about it I do not credit the testimony of Harvey Kreig that O'Keefe told him, the day before a 5-day wildcat strike began February 19, 1975, that O'Keefe intend- ed to put Mucha on leave of absence or layoff O'Keefe flatly denied this Mucha suggested that this was a rumor spread by foremen and manage- ment, and he and Union Attorney Timothy Sweeney indicated the rumor was a factor behind the strike. Sweeney investigated the matter and con- cluded it was an unfounded rumor I do not believe that the rumor was spread by foremen or management See N L R B v Consolidated Diesel Electric Company, Division of Condec Corporation, 469 F 2d 1016 (C A 4, 1972) confidence that the permission which had almost invari- ably been granted would continue to be granted. More- over, under the law, the Respondent was required to con- tinue to grant such permission under the circum- stances-but only to the extent the Respondent had an established practice of doing so. And that established prac- tice was for only half of Mucha's working day. It did not entitle Mucha to suddenly begin devoting his entire work- ing day to union business and be compensated by the Company for the additional time so spent. This would be true even if Mucha's sudden increase in union activity had been caused by a commensurate increase in need, which Mucha's testimony failed to show. As held above with re- gard to Respondent's unlawful conduct toward Union President Krieg, such matters must be negotiated. That Respondent tolerated Mucha's expanded union- business activity for a few weeks did not establish a new practice of sufficient duration to prevent Respondent from asserting its rights in the matter, and that is what its dock- ing of his pay was designed to achieve. When Mucha re- vealed his determination to increase the time he was spend- ing on union business the Respondent was entitled to refuse to compensate him for the time so spent over and above what it had compensated him for in the past. Finally, the figures set forth above demonstrate that over the period covered by the complaint the Respondent not only fulfilled its obligation toward Mucha, it exceeded that obligation, by paying him for more than 50 percent of the time he spent during working hours on union business. Accordingly, I conclude that the Respondent did not vi- olate Section 8(a)(3), (5), or (1) by threatening to dock or docking Mucha's pay 27 2. Burner Steward Lonnie Parrett Parrett has been burner steward for 3 years. He spent an average of 2 to 4 hours of his working day on union busi- ness away from his job as burner, for which time the Com- pany compensated him. He was laid off in October and recalled in January 1975. Parrett was reprimanded January 9, 1975, for loafing on the job. He gave the following account of this matter: At or about 7:05 a.m. Parrett told Foreman Przystulsky he wished to investigate a complaint regarding "fume pay" at premium rates, and Przystulsky told him to report to his job and he could investigate the complaint after he "hooked up." Parrett saw no problem with that, and pro- ceeded to his workplace on the boat. About 7:20 another foreman named Dubosh arrived and asked Parrett why he had not hooked up yet. Parrett replied that there were no 27 See Charles H Poindexter v N L R B, 353 F 2d 524 (C.A 4, 1965), Stone & Webster Engineering Corporation, 220 NLRB 905 (1975), Columbus Coated Fabrics, Division of Bordon Chemical, Borden, Inc, 202 NLRB 932 (1973), Russell Packing Company 133 NLRB 194 (1961), McCulloch Corpo- ration, 132 NLRB 201 (1961 ) 1 have read with interest the cases brought to my attention in the General Counsel's brief, but I find them inapposite to the facts surrounding the docking of Mucha's pay Thus, those cases in- volved unilateral changes in grievance procedures or other working condi- tions by employers more similar to the Respondent's conduct toward Krieg than toward Mucha, and the disciplining of employees and union stewards in retaliation against them for exercising their right to file grievances instead of for the pretextual reasons advanced AMERICAN SHIP BUILDING CO hoses on the boat and he would have to get a hose from supply, and told Dubosh that Przystulsky had said he could go on union business. Dubosh said to get hooked up first and then he could go. Parrett said he would, got the hose from supply, and was connecting it up at 7:30 or 7:40 when Przystulsky arrived and told him again to get hooked up, and that Assistant Hull Superintendent Smith wanted to see him at breaktime. At breaktime, Parrett went to Smith's office where he found Smith, Dubosh, Mucha, and, he believed, Krieg. Smith issued Parrett the following disci- plinary reprimand: Loafing. At approx. 7:15 this man had not yet picked up his necessary equipment as directed in order to per- form his function as a burner. Was necessary to direct him to do so a second time. Was still engaged in hook- ing up at 7:40 a.m. Parrett was permitted to investigate the fume pay grievance at 11 o'clock that morning.28 Parrett filed a grievance requesting that the reprimand be rescinded, and Krieg subsequently advised Parrett that the reprimand was rescinded at the third step.29 On January 17, 1975, Parrett wrote a grievance on the Company's refusal to pay him time and a half for union business during washup time on January 16; wrote a griev- ance on the January 16 discharge of employee Kmgsley,30 and wrote two grievances on reprimands given to burners for abuse of breaktime on January 8.31 Parrett testified that Assistant Superintendent Smith told him he would be per- mitted to write the grievances at 3 p.m. but if he wrote them before that time he would have to go off the clock. Parrett then wrote a grievance on this docking, which amounted to 2-1/2 hours, for writing all five grievances before 3 p.m. on January 17.32 Although Parrett was subse- 28 Although Parrett claimed he was denied the right to investigate this same grievance January 8, 1975, there is no supporting probative evidence to that effect 291 do not credit Parrett's testimony that Przystulsky told him Dubosh complained to Smith about Parrett "going on union business again," even though Przystulsky and Dubosh did not testify. If Przystulsky had made such a remark, I am sure Parrett would have referred to it in the grievance he filed on the reprimand , which he did not do The bases for Parrett's grievance were that Dubosh "did not make himself clear to Mr Parrett", that "Mr Parrett was under the impression that all equipment was aboard the vessel", and that company rules state "it is not intended that men shall be penalized for honest mistakes " Moreover, I do not credit Parrett's testi- mony that Smith said during the second -step meeting on his grievance, in the presence of Krieg and Mucha, "that I was going to keep the reprimand because I asked to go on Union business too many times on January 9, 1975 " Parrett did not in fact "keep the reprimand," and the meaning of the remainder of this supposed statement is not clear Although Smith was not questioned about this alleged statement and therefore failed to deny it, by the same token Krieg and Mucha failed to corroborate it Parrett filed another grievance dated Janaury 13, 1975, containing general allegations of discrimination because he was the steward of the burning department, and asking that he be treated "like every other employee " That grievance was answered the same day at the second step to the effect that the Company would "comply with relief sought Supervisor will be in- formed " 30 i do not credit Parrett's testimony that he was denied permission to see Kingsley's immediate supervisor on January 16 If he had been, he would have included it in either the Kingsley grievance or his own, but he did not include it in either 3i The contract time limit was extended by agreement regarding filing of grievances for these and other breaktime reprimands given out on January 8 797 quently paid for the washup time spent on union business, the record does not reveal whether he was paid for the 2-1/2 hours docked on January 17. On February 11, Foreman Przystulsky sent for Parrett and handed him the second-step answers to some griev- ances he had previously filed. Parrett began to read the answers when Przystulsky told him if he was going to do that at that time he would go off the clock. On March 31, Parrett sought out Foreman Przystulsky and asked whether a grievance unrelated to these matters which he had previously filed was going to be honored by the Company. Foreman Przystulsky told Parrett "to get back on the job and he was giving me a direct order that I would be discharged it I didn't, and if he was wrong he would retract it later." Parrett returned to work under pro- test. I find no violation in the postponement of Parrett's in- vestigation of the fume-pay grievance on January 9. In my opinion, the reprimand he was given that day was not shown by credible evidence to be connected in any way with his request to investigate the grievance, but was based, unfairly as he may have viewed it, on a determination by supervision that it took him too long to hook up. Parrett conceded he saw no problem with being asked to do that job before he went on union business, and if he had done it with the dispatch required by supervision he could well have been authorized to go on union business sooner. In any event, there is no indication that any disadvantage re- sulted either to employees or the Union by this incident. However, the docking of Parrett's pay on January 17, the threat to dock his pay on February 11, and the threat to discharge him on March 31 were different matters. Parrett testified that on these occasions he was engaged in the kinds of union business which had been authorized and for which he had been compensated in the past, and I credit this testimony in the absence of any credible evidence to the contrary and because it is very probable in light of the entire record. Moreover, no evidence was offered to the effect that Parrett on these or any other occasions was spending or attempting to spend more paid time on union business than it was his established practice to do. I find that supervision was motivated, in this conduct toward Parrett, not by discriminatory considerations, but by the same considerations which motivated it in its conduct to- ward Krieg and Mucha, as well as others in this proceed- ing, to obtain more work from the union representatives during working time. As explained above, however, the Respondent was not entitled to change the grievance procedure unilaterally in this manner without affording opportunity for the Union to bargain concerning proposed changes. I conclude there- fore that this conduct was violative of Section 8(a)(5) and (1) of the Act. 3. Welder Steward David Noonan and alternate Welder Steward Myron Lassen Noonan has been welder steward for a year and a half. 32 Although Smith admitted both Parrett and Lassen were docked on January 17, Smith seems to have telescoped the events of that day See Lassen's testimony below about what happened to him 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He testified he spent 8 hours on union business some days, and 1-4 hours on other days. He was laid off from, appar- ently, October until December 9, 1974. Lassen was welder steward 2 years, until the spring of 1974. Since then he has been alternate steward and acts as steward when Noonan is absent. As steward, he spent an average of 4 hours a day, 20 hours a week on union business, at full pay.33 Lassen testified that on December 6, 1974, Superinten- dent Smith threatened, for the first time, to dock his pay. At 8:30 a.m., Lassen notified his immediate supervisor, As- sistant Foreman Robert Rouse, he wished to take care of a grievance, and Rouse said, "O.K." Lassen left his job and went to the welding department lunchroom, where he wrote most of his grievances, and found Vice President Mucha there When Lassen told Mucha he was there to write a grievance on holiday pay involving six employees, Mucha said he had to write holiday-pay grievances involv- ing five different departments. A total of 17 employees were involved. The two decided to write a single grievance without calling the 17 employees in individually, and began organizing their information to that end. Superintendent Smith came into the lunchroom and asked what they were doing. They explained. Smith told them both were not needed to write the grievance, and that Lassen could do so but Mucha would be docked if he remained. Smith re- turned 5 minutes later and told the two men, who were still in the lunchroom, that Mucha could stay and write the grievance but Lassen was not needed and would be docked if he stayed. When Smith left that time, Lassen followed and advised Smith he would file a grievance if he was docked. Lassen returned to the lunchroom and resumed work on the holiday-pay grievance Smith returned to the lunchroom for the third time and gave Lassen a direct or- der to return to work, as Smith had work for him to do. Upon consultation with Mucha, Lassen returned to work after protesting that he was in the process of the grievance procedure. Lassen added, on cross-examination, that he was offered an alternate time to write the holiday-pay grievance, and that the contract deadline was never in jeopardy. He said that on a few occasions in the past Las- sen and the superintendent had agreed on an alternate time for him to write grievances which happened only in emer- gencies. Lassen's pay was not docked on this occasion. On December 10,34 after Noonan returned from layoff, he and Lassen requested a conference with Smith about Smith's conduct toward Mucha and Lassen on December 6 After some discussion, Noonan asked if he could write a grievance on it, and Smith said, "If you wish." Noonan, Lassen, and Mucha then began talking over the grievance among themselves, and Smith asked who was writing it. When Noonan said Mucha was, Smith told Noonan to return to his job as "I don't need three welders sitting here on one grievance." It was Lassen who then wrote the griev- ance on the December 6 incident in Mucha's presence. Noonan filed the grievance on the December 10 incident. At the second step on January 7, the Company answered that a mistake had been made because of rigid production schedules and apologized, and Plant Manager Plott told Noonan it would not happen again. The one time Lassen claimed that his pay was docked was January 17. Sometime that morning two employees asked Lassen to write a grievance because they had re- ceived reprimands. At or about 8:40 a.m., Lassen told Foreman Rouse he wished to do so. When Rouse said he would let Lassen know about it, Lassen asked to see Assis- tant Superintendent Smith. The two of them went to Smith's office, and Lassen repeated his request. Smith re- sponded he did not think Lassen needed to go "at this time." Lassen summoned Mucha who was in the lunch- room nearby, and told him he wanted Mucha to hear Smith deny him the right to follow the grievance proce- dure. At that, Smith said he was not refusing permission but if Lassen went he would be docked. Lassen departed for the work area of the two employee complainants. After satisfying himself that the work on which they were en- gaged was not of an emergency nature, he asked their fore- man, Roger Knight, to release them so they could follow the grievance procedure. Knight refused to release them for the stated reason that he had work for them to do. Lassen went to Knight's superior, Welding Foreman Jo- seph Stuller. But Stuller told him the Union was not going to tell the Company when grievances would be written, the Company is going to tell the Union, and Lassen was not going to write the grievance at that time; he would be per- mitted to do so at 3 p.m. After protesting that it would not give him enough time, Lassen went on to other union busi- ness for which the Company paid him. The employees were not released at 3 o'clock, Lassen testified, and Lassen's pay was docked 2-1/2 hours Lassen and Noonan filed a griev- ance, and the Company withdrew its position at the third step.35 Noonan was docked twice, in mid-January, and on Feb- ruary 5. On January 21 or 22, Noonan wrote some 10 grievances on excessive-coffeebreak reprimands. Failing to get em- ployee signatures on all of them that day, Noonan asked Superintendent Smith the following day if he could get the remaining signatures. Smith told him he could go, but he would be off the clock. Noonan went and was docked one- half hour.36 With regard to February 5, Noonan testified as follows: After obtaining permission to investigate a problem re- garding welders' premium pay for dirty work, Noonan's verbal grievance was denied by the foreman concerned. He then told his own foreman, Rouse, he was going to prepare a written grievance on the issue. Rouse told Noonan he had 5 days within which to write the grievance. Noonan suggested he write it after lunch then, and Rouse said he 33 I do not rely on Foreman Stuller's testimony that historically Lassen spent 5 to 6 hours a day and longer on union business, more than Mucha, because I don't believe he had direct knowledge of the matter 34 Noonan and Lassen testified to this December 10 incident Where their accounts differ, I rely on Noonan who seemed to recall the details better than Lassen 3s Stoller did not testify about this particular incident, although he re- membered that he once told Lassen to write a grievance at 3 p m 36 Noonan was docked 1-1/2 hours later that day for time spent rounding up union officers and stewards for an afterhours meeting to discuss griev- ances There is no credible evidence, however, that it was the Respondent's practice or contract obligation to compensate stewards for time so spent, and I conclude that this dock was not unlawful AMERICAN SHIP BUILDING CO. 799 would see. After lunch, Rouse told Noonan he could write the grievance but he would be docked. Noonan protested it was raining and he could not work anyway. Noonan was docked one-half hour for writing the grievance, but was paid for the time spent obtaining the grievants' signatures on it. The next day Noonan asked Assistant Superinten- dent Smith to reconsider the dock but he refused, because, he testified, the foreman reported that Noonan was paid for the time spent investigating and getting signatures, he had 5 days to write the grievance, and his foreman needed Noonan on the job. Noonan filea a grievance on the dock of one-half hour. The record does not show the eventual outcome of this grievance. I find, based on the testimony of Noonan and Lassen, which is credited in this respect in the absence of any pro- bative evidence to the contrary, that they were engaged on the above-described occasions in the kind of union busi- ness for which they had been compensated in the past. Moreover, there is no evidence they spent more time on such business than it was their established practice to spend. I therefore conclude that by threatening to dock Lassen's pay on December 6, refusing to permit Noonan to write a grievance on December 10, and refusing to release grievants at Lassen's request on January 17, and by dock- ing the pay of Lassen on January 17 and of Noonan for one-half hour on January 22 and for one-half hour on Feb- ruary 5, the Respondent unilaterally changed the grievance procedure in violation of Section 8(a)(5) and (1). E. Union Office The complaint alleges unilateral action in violation of Section 8(a)(5) and (1) in requiring the relocation of the union office, removing the telephone, and changing the locks.37 More than 20 years ago the Union requested, and the Respondent granted, office space on company premises for the use of all unions because the work force was expanding and a checkoff provision had been incorporated in the col- lective-bargaining agreement. A telephone was installed, with the number listed in the yard directory, and the same office was at the disposal of the unions free of rent for over 20 years. It was located in the company employment office building which has entrances directly from both the ship- yard and the street. The union office is off the lobby which is frequented by job applicants, hirees, employees seeking information from the Company about fringe benefits, long- shoremen making claims, and persons having business with the industrial relations director and corporate officers. The other unions have rarely used the office, and were not issued keys to it. Before Harvey Krieg became presi- dent of the Union, the office was used primarily by union financial secretaries before and after work, during the lunch hour, and on Saturday mornings to sign up new members and conduct business related to the checkoff and 37 Much of the testimony on this issue is mutually consistent Where ac- counts vary, I rely on Vice President Schermond and Industrial Relations Manager O'Keefe based on their greater accuracy and truthfulness and on the probabilities in the light of the entire record collection of dues. The union presidents were seldom there during working time, and employees practically never. When Krieg became president, he received keys to both the union office and the employment building. He reorga- nized the Union's files, and kept letters, grievance forms, books on labor statutes, typewriters, and a copy machine in the office. As his activities increased, he used the office more and more and employees began to go there more and more during working hours. For the last 2 years Kneg used the office any time he wished, apparently as a full-time base of operations, researching grievances, discussing mat- ters with stewards, and writing grievances. After the credit union was established in 1973, it shared the office with the Union. In the spring of 1974, Vice President Schermond decided that the Union and the credit union should vacate the of- fice and that the Company would use it for a storage area. He told Krieg the Union and the credit union would have to get out. Kneg asked whether another location would be provided for the Union, and the two of them walked to another site, located inside the yard, and Schermond of- fered it to the Union. Krieg rejected the offer, however, and asked for another location with an entrance from the street and suggested the second floor of the employment building. Schermond said no to this on the ground that there was no sprinkler system there. Schermond showed Krieg a second location in the yard but said it could be used only before and after work and during the lunch hour by union secretaries for the checkoff system and not by other officers, as had been done in the past. Krieg rejected this location also, because it had no street entrance with access for the Union's nonemployee members, and because he would not be allowed to get materials needed during the day. About 2 weeks later, on June 6, Schermond and Person- nel Director Dibble met with International Representative Sepelak, Krieg, and Mucha to discuss the matter. Scher- mond said the office was being abused by the number of employees going there and the amount of time spent there, and complaints had been received from management and other unions about it. The matter was not resolved. Four months later, on October 7, Schermond and Dibble again notified Kneg that the Union would have to vacate the office and suggested still another location. After Mu- cha observed and reported to Krieg that a schedule of the new nonworktime hours was posted at the proposed new location, Krieg found the suggestion "untenable," and re- fused to move. President Tietjen notified all unions by memo dated October 21 that the office should be vacated by October 28, and that a new facility was available "on a limited schedule other than normal working hours." The Union refused to vacate, and about October 15 or 16 the telephone was taken out; on October 22 and 23 the locks were changed on the employment building; and at the end of October the locks were changed on the union office it- self The Union filed grievances on October 25 and Novem- ber 7, which were denied at the second step. At a third-step meeting held on March 20, 1975, Industrial Relations Manager O'Keefe asked why the Union did not like the yard location which had been offered, and was told by 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union officials it had no street entrance for the Union's outside members to pay dues and because the Company was setting limited hours for its use. O'Keefe had put the sign up listing the limited hours on that location. Although he never said the office could not be used during working hours, he did say permission had to be obtained if the Union expected the Company to pay. At a subsequent meeting, held March 24, O'Keefe offered the space on the second floor of the employment building with a separate entrance from the street which Krieg had originally sug- gested. The Company had refurbished the office, which was near the credit union's new location. O'Keefe specified that permission would have to be obtained to use the office during working hours. Union officials looked at the new site March 31, but insisted on using it any time they want- ed. This office is still available to the Union. It has not been accepted, Krieg still using the old office but only after getting the key from the director of security. The reasons given by Vice President Schermond and In- dustrial Relations Manager O'Keefe for desiring changes in the union office setup (obtain storage space and reduce traffic in the employment-building lobby, as well as reduce or eliminate working time spent by employees and union representatives in the union office as had been the prior practice) are credited in the absence of any hint to the contrary, and are found to be legitimate business, and not discriminatory, reasons. The location and the use of the office by Krieg and other employees during working hours, established by practice, could not be unilaterally changed by the Respondent. But the changes were not unilaterally made. On the contrary, the Respondent served notice on the Union in the spring of its intent to make the changes. Two meetings were held, during which the Respondent's reasons were explained and alternate sites were offered, and several months elapsed before action was taken. After grievances were filed, at least two meetings were held at the last of which the Re- spondent accepted the only counterproposal made by the Union by offering the space originally requested. The Union continues to refuse all offers of new locations in- cluding that originally counterproposed by it. The grounds stated are the restriction on use during working hours, but the Union has never made any counterproposal on this issue. I find, therefore, that the Respondent fulfilled its obligation to bargain, and was entitled to make the changes proposed. Accordingly, I conclude that no viola- tion of Section 8(a)(5) or (1) occurred and recommend that this allegation of the complaint be dismissed.38 F. Dictaphone The complaint alleges bad-faith bargaining with the ob- jective of frustrating the grievance procedure in violation of Section 8(a)(5) and (1), by unilaterally insisting on using a dictaphone in third-step grievance meetings contrary to past practice over the objection of the Union, from Octo- ber 15, 1974, through February 19, 1975, and refusing to 38 See Medicenter, Mid-South Hospital, 221 NLRB 670 (1975) Cf Howmei Corporation, A ustenal Microcast Division, supra, Granite City Steel Company, supra hold third-step grievance meetings without using a dicta- phone.39 On October 14, 1974, Joseph Danny O'Keefe was ap- pointed manager of industrial relations by the Respondent. An employee of 13 years, O'Keefe had been the Respon- dent's director of safety and security. Before that, O'Keefe had been an electrician, a member of IBEW Local 1844, of which he was a steward for 2 years, and president from 1965 through 1971 in which capacity he was a member of that Local's negotiating team and attended third-step grievance meetings. On the morning of O'Keefe's appointment,40 Vice Presi- dent of Personnel Robert Dibble gave O'Keefe the files on 28 grievances which were scheduled for consideration at a third-step meeting the next day, October 15, and told O'Keefe that all participants had been notified of the meet- ing. After being unable to reach Union President Krieg, O'Keefe got in touch with Vice President Mucha and told him he had just received the files. O'Keefe requested that the International representative, Krieg, and Mucha meet with him half an hour before the third-step meeting to go over the grievances as well as a change in seating arrange- ments and a dictaphone setup O'Keefe would like to use. International Representative Philip Bartley, Krieg, and Mucha met with O'Keefe the next day as requested. Dur- ing the conference, O'Keefe informed the union officials he would like to use the dictaphone in order to facilitate his meeting the 3-day contract deadline for answering third- step grievances. The union officials took the matter under advisement, and at the opening of the scheduled meeting objected to the use of a dictaphone for the stated reasons that their witnesses might be reluctant to testify, the tapes could be erased and changed, and such tapes might be used against the Union in arbitration proceedings. O'Keefe said he wished to use the dictaphone only for third-step meetings and promised not to use the tapes in arbitration proceedings, and offered to provide tapes or transcripts upon request. The Union refused these offers , as well as O'Keefe's alternate suggestion that a stenographer be called in to take minutes. O'Keefe then asked that the Union's objections be noted and the meeting begin, using the dictaphone and the Company giving the Union a copy of the tape or a transcript. The Union canceled the meet- ing, however, announcing that it would not meet if a dicta- phone was used. Immediately after that meeting broke up, O'Keefe met separately at Mucha's request with Mucha, Krieg, and Bartley. Krieg's discharge was discussed, and O'Keefe showed the dictaphone to the union officials and explained its operation. Thereafter, the Union canceled the third-step meeting scheduled for the following day, October 16. On October 17, 1974, Union President Krieg filed the unfair labor practice charge upon which this issue is based. O'Keefe telephoned International Representative Sepelak that day. In that and a subsequent telephone conversation Sepelak reiterated that the Union would not meet with the 39 The relevant facts respecting this issue are based on an amalgam of the testimony of all witnesses judged on their relative credibility and the proba- bilities 4° O'Keefe was asked 5 or 6 weeks before October 14 if he was interested in the position and he said yes, but he was not told in advance when the job was to be his AMERICAN SHIP BUILDING CO dictaphone. He asked the Company to hold all third-step grievances in abeyance and not penalize the Union for fail- ure to meet within 5 days of the second-step meeting as provided in the contract, and the two of them agreed to meet to discuss the matter further October 24. On October 24, Sepelak presented O'Keefe with a letter dated October 23 to the following effect: In reference to our telephone conversation on Oct. 22, 1974, the International requested that all 3rd step Grievances that were to be discussed on Oct. 15, 1974 and any future Grievances that go into 3rd step be put into abeyance until the issue is resolved concerning the Company using a dictaphone at the 3rd. step Grievance meetings. As we agreed, the 5 day limitation as outlined in the 3rd step Grievance Procedure will be waived by the Company. No progress was made at this meeting On November I, 1974, O'Keefe addressed the following letter to Sepelak: In reference to your letter of October 23, 1974, and the meeting held October 24, 1974, concerning the compa- ny using a dictaphone in the grievance procedure. The company's position is firm in regarding the dicta- phone, and we cannot abide by your request. We will continue to schedule grievances by our normal proce- dure and use the dictaphone as we feel it is not in violation of any agreement. The company will furnish the Union with a copy of the transcript, if they so desire.41 No third-step meetings were held until March 19, 1975, on grievances filed by employees represented by the Union. All third-step grievances were held in abeyance dunng that period and the contract time limit was waived by the Respondent. After failing in several attempts to contact Sepelak, O'Keefe met with Sepelak, Krieg, and Mucha on January 16 to discuss 58 excessive-coffeebreak reprimands which had been issued January 8. After that issue was discussed at length , the use of the dictaphone was brought up again, O'Keefe offering to drop the dictaphone issue if Union would drop the unfair labor practices charges, but Sepelak elected to await a decision by the Board on whether to issue a complaint. On February 18, O'Keefe informed the General Counsel he had withdrawn his position on the dictaphone because his staff had become familiar with grievance procedure and he no longer had any need for it,42 and the information was 4i The General Counsel's witnesses testified that O'Keefe demanded that the Union pay for copies of tapes or transcripts requested I am inclined to discount this because such testimony was not in harmony and no reference to such a demand appears in O'Keefe's testimony or in his November I letter to Sepelak in any event , the cost of such copies was not given by any of the union officials as a reason for their objection to the use of a dicta- phone Cf N LR B v Southern Transport, Inc, 355 F 2d 978 (C A 8, 1966) 42 O'Keefe testified he had told the Carpenters president , at a meeting with that union on February 13, "Very probably, Bob, we won 't need a tape recorder, but I still feel I have a right and there is a charge on us, and if we didn't use it, would we be admitting that we were guilty as charged" 801 conveyed to the Board's Regional Office in a letter from the Respondent's attorney dated February 20, 1975. The complaint incorporating this allegation was issued on June 12, 1975. As indicated, third-step meetings were resumed, without a recording device, on March 19. There is no doubt that O'Keefe was firm in his insistence on using a dictaphone to record third-step grievance meet- ings from the time he became industrial relations director. No persuasive argument has been advanced, however, to support the General Counsel's contention that O'Keefe took the position he did in bad faith. Thus there is no indication that there was any relationship between the tim- ing of Krieg's unlawful discharge in which O'Keefe was not involved and O'Keefe's appointment as industrial rela- tions manager 3 days later, or any relationship between any of the unfair labor practices found and O'Keefe's mo- tive in insisting on using a dictaphone at third-step griev- ance meetings. Moreover, it is clear that his appointment to the position of industrial relations manager occurred only the day before a third-step meeting was scheduled, that the grievances to be considered at that meeting were numerous and thereafter increased in number It is therefore reason- able to believe that his objective was to expedite, and not to delay, the processing of grievances, as he testified. Fur- ther, O'Keefe did not call off the third-step meetings over the issue and, when the Union refused to meet with the dictaphone, O'Keefe agreed not to attempt to invoke the contract penalty of forfeiture. No doubt the Union's rea- sons for objecting to the use of a recording device seemed equally valid to its officials. Speaking of this kind of dis- pute, the Board has said:43 It is wholly consistent with the purposes of the Act that the parties be allowed to arrive at a resolution of their differences on preliminary matters by the same methods of compromise and accommodation as are used in resolving equally difficult differences relating to substantive terms or conditions of employment. In neither case will we presume to pass upon which is the preferable position or to dictate terms of an agree- ment, but will, rather, concern ourselves only with whether the parties are acting in good faith. In the aforesaid circumstances and in the context of this entire case, I find that the Respondent did not act in bad faith by insisting on the use of a dictaphone in third-step grievance meetings for the purpose of avoiding, delaying, or frustrating the grievance procedure, and I conclude that this allegation should be dismissed.44 G. Alleged Answered Grievances The complaint alleges that the Respondent violated Sec- tion 8(a)(5) and ( 1) by determining its answers to griev- 43 Si Louis Typographical Union No 8, affiliated with International Typo- graphical Union, AFL-CIO (Union Employers' Section of the Graphic Arts Association of St Louis, Inc), 149 NLRB 750, 752 (1964) 44 See Inter-Polymer Industries, Inc, 196 NLRB 729, 762 (1972) Cf West Coast Casket Company, Inc, 192 NLRB 624, 638 (1971), enfd as modified 469 F 2d 871 (C A 9, 1972), Architectural Fiberglass-Division of Architec- tural Pottery, 165 NLRB 238 (1967), Southern Transport, Inc, 150 NLRB 305 (1965), enforcement denied 355 F 2d 978 (C.A. 8, 1966) 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ances before discussing them with the Union at the third- step meeting on April 23, 1975. The testimony on this issue is not in substantial dispute. Union officials noticed that O'Keefe arrived at the third- step meeting April 23 with what appeared to be company third-step answers already typed in the space provided on the forms. Krieg asked if O'Keefe had preanswered the grievances before they were discussed. O'Keefe replied that those were only his notes, that he was there to negotiate his answers; and if the Union had any information other than what O'Keefe had, he would consider it and could change the answers. At the hearing, O'Keefe explained that he cus- tomarily typed his notes himself. His answers to these par- ticular grievances were eventually provided on separate sheets of paper which had seldom if ever been done be- fore and was not done after that. There is no evidence that the Respondent refused to hear the Union's evidence or arguments in support of these grievances, or that it in any other way failed to give them fair consideration. I do not believe that the above facts justify the conclu- sion that O'Keefe intended to subvert or undermine the grievance procedure, or that his conduct on this occasion was motivated by bad faith. Accordingly, I conclude that this allegation is not supported by a preponderance of the evidence and recommend that it be dismissed. IV. REMEDY Having found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I recommend that it cease and desist therefrom and from any like or related unfair labor practices, and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent violated Section 8(a)(5) and (1) by discharging Union President Harvey Krieg, I recommend that it offer him immediate and un- conditional reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges; and to make him whole for any loss of pay he may have suf- fered as a result of his discharge on October 11, 1974, in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest as provided in Isis Plumbing & Heating Co, 138 NLRB 716 (1962). Hav- ing found that the Respondent violated Section 8(a)(5) and (1) by docking the pay of Lonnie Parrett and Myron Las- sen on January 17, 1975, and of David Noonan on January 22 and February 5, 1975, I recommend that it make them whole, to the extent it has not already done so, for the loss of pay suffered by them thereby in the manner, and with interest, described above. I further recommend that the Respondent restore the wages, hours, and working conditions appertaining to the above-named union representatives and stewards at the time of its unilateral changes, and if the Respondent still desires such changes, to bargain in good faith with the Union with respect thereto 45 45 See Granite City Steel Company, supra, 316-317, and cases cited therein There is no dispute as to the appropriate unit Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 46 Respondent American Ship Building Company, Lorain, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally changing the wages, hours, or working conditions of its employee union representatives or stew- ards established by practice, including discharging or threatening to discharge them, or docking or threatening to dock their pay in connection with or as a result of such unilateral changes. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer Harvey Krieg immediate and unconditional re- instatement to his former job and make him, Lonnie Par- rett, David Noonan, and Myron Lassen whole, with inter- est, in the manner described in the Remedy section of this Decision. (b) Restore the wages, hours, working conditions, and other terms and conditions of employment appertaining to the above-named union representatives and stewards at the time of the Respondent's unilateral changes. (c) Upon request, bargain collectively in good faith with the certified joint representative, including International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers and Helpers, Local Lodge No. 358, AFL- CIO, of its employees in the appropriate production and maintenance unit concerning any changes in the wages, hours, working conditions, and other terms and conditions of the union representatives and stewards of its employees established by practice. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (e) Post at its shipyard in Lorain, Ohio, copies of the attached notice marked "Appendix." 47 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 8, after being duly signed by an authorized represen- tative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places 4' 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 47 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" AMERICAN SHIP BUILDING CO 803 where notices to employees are customarily posted. Rea- 20 days from the date of this Order, what steps the Respon- sonable steps shall be taken by Respondent to insure that dent has taken to comply herewith. said notices are not altered, defaced, or covered by any IT ►s FURTHER ORDERED that the complaint be, and it other material. hereby is, dismissed insofar as it alleges violations of the (f) Notify the Director for Region 8, in writing, within Act not found herein.