Steelworkers, Locals 196, 6850, 7508, Etc.

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Steelworkers of America, AFL-CIO; United Steelworkers of America, Local No. 196, AFL- CIO; United Steelworkers of America, Local No. 6850, AFL-CIO; United Steelworkers of America, Local No. 7508, AFL-CIO; International Union of Operating Engineers, Local No. 428, AFL-CIO; Construction, Production and Maintenance Labor- ers', Local No. 383, AFL-CIO; and Construction, Production and Maintenance Laborers', Local No. 479, AFL-CIO (Duval Corporation and Duval Sier- rita Corporation) and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310. Case 28-CB- 900 November 4, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On March 26, 1976, Administrative Law Judge Earldean V. S. Robbins issued the attached Decision in this proceeding. Thereafter the Respondents and the General Counsel filed exceptions and supporting briefs. 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 only to the extent consistent herewith. 1. The Administrative Law Judge found that Re- spondent Unions, as members of a point representa- tive, breached their duty of fair representation to members of the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310, another member of the joint representative, in violation of Section 8(b)(1)(A) of the Act, by: (1) Excluding business representatives of the Charging Party from a joint ratification meeting; (2) denying members of the Charging Party an equal opportunity to vote on contract ratification; (3) ac- cepting the Employer's contract offer without allow- ing members of the Charging Party an equal voice in 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings contract ratification under circumstances which would subject them to discharge; and (4) negotiating a strike settlement agreement which by its terms would subject Charging Party members to discipli- nary action. The Administrative Law Judge also found that Respondents violated Section 8(b)(2) and (1)(A) of the Act by attempting to cause the Em- ployer to discharge or discipline members of the Teamsters because they were members of a dissident group.' We do not agree. As more fully set forth in the Administrative Law Judge's Decision, the relevant facts are as follows: Since approximately 1968, unions representing em- ployees in the nonferrous mining industry have coor- dinated their collective-bargaining activities on a na- tionwide scale and have centralized their negotiating efforts through the National Nonferrous Coordinat- ing Conference, a coalition of 26 unions. The Confer- ence has delegated to the steering committee-the members of which are selected by the Confer- ence-the responsibility for setting certain minimum goals as guidelines for impending negotiations. In ad- dition, any and all proposed agreements must be ap- proved by the steering committee before a contract can be finalized. While a number of the major com- panies negotiate through multiemployer bargaining units, other companies, including Duval Corporation (herein Company or Employer) handle their negotia- tions on a single-employer basis. For these negotia- tions employee interests are represented by two com- mittees: an economic committee and a local issues committee. As is the pattern throughout the nonferrous min- ing industry, the units involved herein are repre- sented by point representatives. Thus, the Charging Party and Respondents, in various combinations, act as joint bargaining representatives at Duval's three locations: the Sierrita, Esperanza, and Kingman properties. Dissension between the Teamsters and the Respondents has existed for a number of years, but did not result in an open rift until the 1974 nego- tiations. In February 1974, the Steering Committee con- ducted its initial meeting and set forth a wage in- crease guideline of 86.4 cents. Thus, contract ap- proval could be anticipated only if the proposals submitted met or exceeded this figure. Negotiations at Duval commenced in July or Au- gust 1974. On August 4, Duval's attorney, G. Rounds, sent a letter to the various members of the joint representative stating, in part, that, once the 2 In the absence of exceptions thereto, we adopt the finding of the Admin- istrative Law Judge that Respondents did not violate Sec 8 (b)(I)(A) of the Act by excluding members of the Charging Party from the October 2 Joint ratification meeting, since on October I these members had an equal oppor- tunity to vote at their own ratification meeting 226 NLRB No. 118 STEELWORKERS, LOCALS 196, 6850, 7508, ETC. spokesman for the unions had informed the Compa- ny that a collective-bargaining agreement had been accepted, a new agreement existed. Although the unions did not reply to Rounds' letter, Duval Repre- sentative Marsh Campbell's uncontroverted testi- mony was that this position was restated during the course of negotiations and agreed to by the unions. The negotiations included seven Teamsters pro- posals. By majority vote of the Steering Committee two of these proposals were withdrawn from the bar- gaining table. This action nettled the Teamsters. On September 30, the expiration date of the Duval contracts, the unions scheduled membership meet- ings to consider whether to extend the contracts on a day-to-day basis, or to stake. Because of the hostility existing between the Teamsters and the Respondents, the Teamsters held a separate meeting for its mem- bers; the Respondents conducted a joint meeting. The Teamsters voted to extend the contract for 24 hours. The Respondents voted to give the negotiating committee the authority either to call a strike or to extend the contract on a daily basis. Negotiations continued on October 1. Among sev- eral issues resolved was the Employer's concession on a key Teamsters proposal. At approximately 6:30 p.m., the negotiations recessed and the unions re- grouped to determine the question of contract exten- sion. Negotiations resumed later that evening with representatives of the Teamsters absent.' Although no agreement was reached, the Employer increased its wage offer to 86.4 cents. On October 1, at two separate meetings, Teamsters members voted to reject any additional extensions of the expired contract and to go on strike at 10:30 p.m. that evening. Between 10 and 11 p.m. that night Teamsters commenced picketing at the Company's Esperanza and Sierrita properties. On October 2 Respondents held morning and eve- ning joint ratification meetings to vote on the Company's most recent offer. Teamsters representa- tives and Teamsters members were not permitted to attend these meetings. At the morning meeting the employees were informed of the Company's 86.4- cent wage offer, but that there was still disagreement as to several other items. The membership at this meeting voted by secret ballots which were placed in a metal box but not counted. Between the morning and evening meetings the Company made conces- sions on the remaining items in dispute and these concessions were communciated to the employees who voted at the evening meeting. Employees at this meeting also voted by secret ballot and these ballots 3 There is a dispute, not resolved by the Administrative Law Judge, as to whether the Teamsters was notified of the evening meeting 773 were placed in the same box as those from the morn- ing meeting. The combined vote showed 474 ballots for, and 110 ballots against, accepting the Com- pany's proposal. Respondents then consolidated their vote count with that of the Teamsters conduct- ed on October 1 and determined that a majority of employees had voted to accept the Company's offer by a combined vote of 516 for, to 323 against. Smith, secretary of the joint representative's economic com- mittee and its spokesman, telephoned Teamsters Representative Logan to tell him that the employees had voted overwhelmingly to accept the Company's final offer, that they had a contract, and that the Teamsters picketing was "illegal." Later in the eve- rung, Smith notified the Employer's representative, Campbell, that they had a contract and requested a meeting to work out a back-to-work arrangement. On the afternoon of October 3, union and compa- ny representatives met and negotiated a strike settle- ment agreement. No representative of the Teamsters was present at the meeting. The settlement agree- ment contained the following clause: 4 [The Company] specifically reserves the right to seek redress and avail itself of its legal remedies against any individual union which continued to sanction a strike, maintain or sanction a picket line after 9:30 p.m. on October 2, 1974, and failed to abide by the provisions of Article V, Section 2, subsection 2, subsection 4 of the re- spective Agreements and the right to discharge or discipline any employee who continued to picket any of the Company's properties after 9:30 p.m. on October 2, or who failed to fulfill his obligation, as a Union representative or offi- cial, to exert a good faith effort to cause the ces- sation of such picketing. At or about midnight on October 2, Smith again 4 The "no strike" provision , in its entirety , states SECTION 2 No strike (1) The Union agrees that during the life of this Agreement there shall be no strike , work stoppage, or slowdown called , authorized, ap- proved , or sanctioned by the Union (2) Any employee who actively participates in, supports, or encour- ages any such strike, work stoppage , or slowdown shall be subject to discipline or discharge by the Company with right of appeal to the Grievance Procedure only as to the determination of the question of whether the employee so disciplined or discharged did actively partici- pate in, support, or encourage such strike , work stoppage, or slowdown (4) The Union shall immediately and publicly disavow as illegal any strike, work stoppage, or slowdown and will use all means within its power to end such strike, work stoppage, or slowdown at the earliest possible time. (5) If the Union has complied with provisions of this Section, then it shall not be liable in damages to the Company and the Company agrees that it will not institute a lawsuit against the Union to recover damages occasioned by such illegal strike, work stoppage, or slow- down 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD telephoned Logan and told him that the picketing was illegal and to "get it down." Logan refused. At or about 4 a.m. on October 3, Campbell called Logan and told him that the parties had reached agreement on a contract and asked Logan to remove the pick- ets. Logan replied he could not do anything until he knew what his members wished to do. On October 3, at approximately 12:15 a.m., Duval supervisor, Bill Tabor, informed the Teamsters picket captain, Ignacio Ortiz, of the contract settlement. Or- tiz, nevertheless, refused to remove the pickets until he received instructions from his leaders. Later that morning, Duval's general manager, Harry Shively, approached Ortiz at the picket line and stated that, in light of the finalization of the con- tract, Teamsters picketing should cease. For the rea- sons stated above, Ortiz refused to comply. On that same morning, Company Attorney Rounds telephoned Teamsters picket captain, James Broome, and informed him that the picketing was illegal because the Company had a contract and un- less the pickets were removed immediately they would be in trouble. Broome replied that absent Teamsters ratification of the contract, he had no au- thority to remove the pickets. In the afternoon of October 3, a company person- nel supervisor approached Broome, who was man- ning the picket line, and notified him that the picket- ing was in violation of the new contract and that all picketing should immediately be halted. Broome re- fused to do so. The same afternoon Broome tele- phoned Campbell. During the conversation Camp- bell told him that a contract was in effect and that disciplinary action would be taken unless the pickets were removed. On the evening of October 3, following a meeting of Teamsters members to vote on the ratification of the contract, the pickets were removed. On October 4, Broome and Randy Garrett, a chief steward, were notified that because of their picketing activities, in violation of the October 1, 1974, contract's no-strike clause, they were being dis- charged. Following Broome's dismissal, Ortiz was appoint- ed chief steward at the Sierrita property. On October 17 Ortiz was notified that he was receiving a discipli- nary 1-day suspension as a result of his picketing ac- tivities of October 3. The Administrative Law Judge found that, while a union is not legally obligated to accord its members the right to ratify or reject a contract, once that right has been granted to employees it may not be dispa- rately applied to factions or members within the group it represents. The Administrative Law Judge concluded that the conduct of separate ratification meetings by the Teamsters and Respondents wherein Teamsters members were not aware of the Employer's final offer is indicative of such disparate and unlawful conduct. By this conduct the Adminis- trative Law Judge found that the Respondents breached their duty of fair representation in violation of Section 8(b)(1)(A) of the Act. We disagree with the Administrative Law Judge's conclusion. The Teamsters had itself determined to hold a separate ratification meeting on October 1 to pass on the Company's then final contract offer. It thus "beat the gun" by voting to reject the Company's offer and to call a strike while Respon- dents, who represented a majority of the employees in the unit, were still negotiating with the Company on behalf of the entire unit. If the Teamsters did not have the opportunity to vote on the Company's final offer, made on October 2, the fault was its own and not that of Respondents. Having decided to go its own way and call a strike without the approval of its associated unions comprising the joint representa- tive, Teamsters are not in a position to complain be- cause these other unions continued to negotiate until they reached a satisfactory agreement. Moreover, in determining that a majority of employees in the ap- propriate unit had ratified the Company's final (i.e., October 2) proposal, the Respondent included in the employee count the votes cast at the Teamsters sepa- rate October 1 meeting. Thus, the final vote count at the separate October 1 and 2 meetings was 516 for acceptance and 323 for rejection. This included a separate Teamsters vote of 42 for acceptance and 213 for rejection. Therefore, it is obvious that a second vote by the Teamsters could not have affected the outcome. At the October 2 ratification meetings of Respon- dents, members and representatives of the Teamsters were excluded. The Administrative Law Judge found that the denial of access to members of the Team- sters was lawful, but that the similar denial to repre- sentatives of the Teamsters was a violation of Section 8(b)(1)(A). The Administrative Law Judge' s rationale for the latter finding is that the representatives had a right to try to influence fellow unit employees and the denial of this right violated the joint representa- tives' duty of fair representation. We agree that, inas- much as Teamsters members had held a separate rat- ification meeting, Respondents were not required to permit them to participate in the Respondents' sepa- rate ratification meeting. For the same reason, we find no violation by denying access to Teamsters rep- resentatives. The Administrative Law Judge further found that by accepting the proposed contract on the night of October 2, prior to Teamsters reratification, the Re- STEELWORKERS, LOCALS 196, 6850, 7508, ETC spondents again breached their duty of fair represen- tation. While conceding that ratification was not a condition precedent for contract acceptance, the Ad- ministrative Law Judge found that the arbitrary and disparate treatment accorded Teamsters members during the entire ratification process indicates a clear violation of Section 8(b)(1)(A) of the Act. The record reveals that employee ratification was not a prerequisite for contract acceptance. The Con- ference had delegated to the Steering Committee the authority to set forth guidelines for contract negotia- tions. Once those guidelines had been met and pro- posals were approved by the Steering Committee, as was the case here, a local negotiating committee was empowered to accept the proposed offer. Member ratification was entirely an internal affair and played no operative role in the finalization of the agreement. The joint representatives and the Company had agreed that once the unions' spokesman informed the Company that its offer was accepted, the agreement was in effect, the presence or absence of membership ratification notwithstanding. Inasmuch as ratifica- tion was not necessary to the validation of the con- tract there was no violation of the duty of fair repre- sentation in Respondents' method of counting votes for and against ratification.' 2. Contrary to the Administrative Law Judge, we find that the discharge and discipline of employees Broome, Garrett, and Ortiz was not the result of a failure of the fiduciary obligation on the part of Re- spondents. The three men were disciplined not be- cause of the terms of the strike settlement, but be- cause they were in violation of the no-strike clause in the collective-bargaining contract which became ef- fective on October 2. Before disciplinary action was taken, the men were informed by company represen- tatives that a contract had been reached, that their picketing was "illegal" under the contract, and that they should discontinue the picketing. The men re- fused to do so without instructions from their union. Similarly, both the Company and Respondents noti- fied the Teamsters representative, Logan, soon after an agreement had been reached that the contract was in effect and that the pickets should be removed. Lo- gan refused to order their removal until his union could hold a separate meeting. Thus, the pickets were given the opportunity to comply with the contract by discontinuing their picketing and thereby avoiding discipline. They chose not to do so. If there was a failure of a fiduciary duty in this respect it was that of the Teamsters and not of Re- spondents. The Teamsters was the representative of the pickets. If, as the Administrative Law Judge fur- ther found, a duty was owed to the pickets to explain that under the agreement with the Company, a con- 775 tract was not contingent upon ratification, but rather became effective when Smith accepted the contract, the duty was again owed by the Teamsters which was the representative of its members and not by Re- spondents. Logan knew that the agreement with the Company was that when the spokesman for the unions informed the Company that a new collective- bargaining agreement had been accepted by the unions, the contract immediately became effective. It was his duty to inform Teamsters members of this fact. Each union was the conduit of information to its members. As we find that Respondents have not failed in their duty of fair representation to members of Teamsters, we further find, contrary to the Adminis- trative Law Judge, that Respondents did not attempt to cause the Company to discharge or otherwise dis- cipline picketing employees because they were mem- bers of the Teamsters, thereby violating Section 8(b)(1)(A) and (2) of the Act. We shall therefore dismiss the complaint in its en- tirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 5 We find that in any event the Teamsters vote count was included in the final tally resulting in the approval of the final contract Had the Teamsters members been made aware of the Employer's final concessions presumably more of their votes would have been cast in favor of ratification This would only have added to the vote approving ratification DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was heard before me in Pheonix, Arizona, on January 6-9, 1976. The original charge was filed by Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 310, and served on Respondents on October 21, 1974. The first amended charge was filed by the Teamsters and served on Respondents on March 31, 1975. The second amended charge was filed by the Teamsters and served on Respon- dents on April 3, 1975. The complaint which issued on April 29, 1975, alleges that Respondents violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. Posthearing briefs were filed by the parties on March 8 and 9, 1976. The principal issues herein are. (1) Whether Respondents violated their duty of fair rep- resentation by excluding employee-members of the Team- sters and a Teamsters business representative from a joint contract ratification meeting. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Whether Respondents violated their duty of fair rep- resentation by denying unit employees who were members of the Teamsters the same opportunity to vote on the ques- tion of contract ratification as accorded to other unit em- ployees. (3) Whether Respondents violated the Act by accepting the Employer's contract proposals which included, inter alia, a no-strike provision which would subject striking and picketing employees to discharge and other penalties and by negotiating and entering into a strike settlement agree- ment, without notification to the Teamsters, which by its terms would subject unit employee members of the Team- sters to the penalties under said no-strike provision at a time when Respondents knew that unit employee-members of the Teamsters had not voted on the question of contract ratification and that said employees were engaged in a strike and picketing against the Employer. (4) Whether Respondents' conduct warrants a remedial order requiring, inter alia, that the Respondents, jointly and severally, make employees James Broome and Vertis R. Garrett whole for any losses sustained by them as a result of their discharge, in accordance with the above- described no-strike provision and strike settlement agree- ment. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT I. JURISDICTION Duval Corporation, a Texas corporation, is engaged in mining and related operations at a site known as the Esper- anza property, located in Pima County, Arizona, and at a site known as the Mineral Park property, located in Mo- have County, Arizona, and also referred to herein as King- man. During the 12-month period preceding the issuance of the complaint herein, Duval Corporation, in the course and conduct of its business operations in the State of An- zona, mined, sold, and shipped products valued in excess of $50,000 directly to points located outside the State of Arizona. Duval Sierrita Corporation, a Texas corporation, is en- gaged in mining and related operations at a site known as the Sierrita property, located in Pima County, Arizona. During the 12-month period preceding the issuance of the complaint herein, Duval Sierrita Corporation, in the course and conduct of its business operations in the State of Ari- zona, mined, sold, and shipped products valued in excess of $50,000 directly to points located outside the State of Arizona. The complaint alleges, the answer admits, and I find that Duval Corporation and Duval Siernta Corporation, herein referred to collectively as Duval, the Company, or the Em- ployer, each is now, and each has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that each Respondent is now, and each has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Although the complaint does not allege, the undisputed evidence shows and I find that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 310, herein called interchangeably the Charging Party or the Teamsters, is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. BACKGROUND For a number of years, the unions representing employ- ees employed by employers in the nonferrous mining in- dustry have engaged in some type of nationwide coordinat- ed bargaining. Since at least 1968, this coordination has been accomplished through what is known as the National Nonferrous Coordinating Conference, a coalition of 26 In- ternational unions, herein called the Nonferrous Confer- ence. The Conference functions through a steering com- mittee consisting of representatives from all of the participating unions and various negotiating committees, herein called the Steering Committee. The Steering Com- mittee, which is selected by the Conference, sets certain minimum bargaining goals which serve as guidelines for the various negotiating committees. Employer proposals are to be submitted by the negotiation committees to the Steering Committee for approval prior to concluding any collective-bargaining agreement . The negotiation commit- tees are composed of certain designated members of the Steering Committee and certain other representatives from local and International unions who are familiar with the particular property involved. Apparently, the major com- panies bargain together in multiemployer bargaining units. Negotiations are divided as to economic issues and local, or noneconomic, issues. The Steering Committee appoints a chairman and secretary for the independent nonferrous companies' negotiating committee. For each independent company, there is an economic negotiating committee and a local issues negotiating committee. The appointed chair- man and secretary for the independent companies' negotia- tions serve as the chairman and secretary of each economic negotiating committee at the various independent compa- nies. The members of the various local issues committees select their own chairman and secretary. Throughout the State of Arizona and parts of New Mex- ico there exists a pattern of joint representation in the non- ferrous mining industry by various Steelworkers locals, the Charging Party, and various other labor organizations, mostly Laborers, Operating Engineers, and Electrical Workers. This includes joint certifications at the Cyprus, Pima Mining Company, American Mining and Smelting Company, Anamax Mining Company, Duval Sierrita Cor- poration, Phelps Dodge Corp: Tyrone, and Duval Corpo- ration. Though separately certified, Charging Party, van- ous Steelworkers locals, and various other unions have a history of joint bargaining at Phelps Dodge Corp.-Ajo, STEELWORKERS, LOCALS 196, 6850, 7508, ETC. 777 Phelps Dodge Corp.-Bisbee, Miami Copper, Inspiration Consolidated Copper Company, Magma Copper, and Du- val Corporation. Specifically, Charging Party and various ones of Re- spondents are joint exclusive bargaining representatives in appropriate units as follows: International Union of Operating Engineers, Local No. 428, AFL-CIO, herein called the Operating Engi- neers, Charging Party and Construction, Production and Maintenance Laborers', Local No. 479, AFL- CIO, herein called Laborers Local 479, jointly, have been, and are now, the exclusive collective-bargaining representatives for all the employees in the Mine Op- erating Department and the Mine Maintenance De- partment at Duval Corporation's Esperanza Property. United Steelworkers of America, AFL-CIO, herein called the Steelworkers, for and on behalf of its Local No. 6850, and Charging Party jointly, are the exclusive collective-bargaining representative for all the hourly- rated employees in the Mill Department and the Plant Mechanical Department of Duval Corporation's Min- eral Park Property. The Operating Engineers, Charging Party and La- borers' District Council of Arizona, Local No. 383, herein called Laborers Local 383, AFL-CIO, jointly are the exclusive collective-bargaining representative for all the hourly-rated employees in the Mine Operat- ing Department and the Mine Maintenance Depart- ment at Duval Corporation's Mineral Park Property. At all times material herein, the Steelworkers, for and on behalf of its Local No. 7508, the Operating Engineers, Charging Party and Laborers', Local 479, jointly, have been, and are now, the exclusive collec- tive-bargaining representative for all production and maintenance employees of Duval Siernta Corporation in its operations at the Sierrita Property, excluding all office and clerical employees, technical employees, electricians, electrical equipment mechanics, electrical apprentices, utility men, warehousemen, watchmen, guards and supervisors as defined in the Act. Other participants in.joint bargaining are separately cer- tified as follows: Steelworkers, for and on behalf of its Local No. 196, is the exclusive collective-bargaining representative for all hourly-rated employees in the Mill Department and the Plant Mechanical Department at the Duval Corporation's Esperanza Property. The Steelworkers, for and on behalf of its Local No. 196, is the exclusive collective-bargaining representa- tive for all hourly-rated employees in the Metallurgi- cal Department at the Duval Corporation's Esperanza Property. The Steelworkers, for and on behalf of its Local No. 196, has been, and is now, the exclusive collective- bargaining representative for all hourly-rated employ- ees in the Warehouse Department at Duval Corpora- tion's Esperanza Property. The Steelworkers, for and on behalf of its Local No. 6850, is the exclusive collective-bargaining representa- tive for all the hourly-rated employees in the Metal- lurgical Department at Duval Corporation's Mineral Park Property. In early 1974, Dudley Killinsworth, sub-district 8 direc- tor for the Steelworkers, was appointed chairman of the independent copper company negotiations. James Smith, staff representative for the Steelworkers, was appointed secretary. By virtue of these appointments they became chairman and secretary, respectively, of the Duval eco- nomic issues committee. Billy G. Vanderpool, staff repre- sentative for the Steelworkers, was selected as chairman of the Duval local issues committee and George Logan, busi- ness representative for Charging Party, was selected as sec- retary. In February 1974,' the Steering Committee had its first meeting. At some point thereafter the Steering Committee set a wage guideline of 86.4 cents. Although not without exception, generally speaking, the Steering Committee could be expected to approve a proposal that met or ex- ceeded this minimum and to reject those that fell below. It is unclear from the record exactly when the independent companies' negotiations began, but it appears that the first of these was in July.' This case arises out of the friction caused by the Charging Party's attempts to break what it considered as Steelworkers domination of collective bar- gaining in the nonferrous mining industry in Arizona. Ac- cording to William McCollum, Charging Party's president and business manager, Charging Party has been dissatis- fied with the joint representation and joint bargaining since 1968 when he assumed his present positions with Charging Party.3 Admittedly, the Teamsters has followed an aggres- sive policy since 1968, at least in some companies, of soli- citing members from the ranks of the other unions," and the Steelworkers position as representative of approximate- ly 85 percent of the employees in the industry has given it a dominance in collective bargaining which Charging Party finds unpalatable. However, this friction did not break into an open rift until the 1974 Anamax negotiations. McCollum was chair- man of the local issues committee. According to Mc- Collum's undisputed testimony on July 19, during a negoti- ation session, the Employer and the union committee agreed to the terms of a collective-bargaining agreement. On July 22, at a joint meeting, the contract was ratified.5 1 All dates hereinafter will be 1974 unless otherwise indicated 2 Negotiations with the major companies preceded the independent com- panies' negotiations The contract proposals from the major companies were submitted to, and rejected by, the Steering Committee and the nonferrous conference A nationwide copper strike ensued 3 Duval, considered an independent company, has negotiated since 1971 with the joint representative on a multilocation basis covering the Siernta, Es,eranza, and Kingman properties. The extent to which this is possible is governed by the checkoff agree- ment in effect with the Employer At some companies , an employee can join any union he wishes at any time and can have his dues checked off accord- ingly At other companies, an employee may initially join any union he chooses, but once he joins he may not change his checkoff authorization unless he changes his job classification. In other companies , dues can be checked off only for the union in whose basic jurisdiction the employee's job classification falls In 1972 Charging Party's disagreement with this poli- cy at some of the Duval properties forced an arbitration which Charging Party lost 5 The other unions certified or recognized at Anamax are the Operating Engineers, the Steelworkers, and International Brotherhood of Electrical Continued 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, also on July 22, the Steering Committee rejected the contract as not meeting the minimum wage goal of 86.4 cents. Charging Party took the position that the ratification was determinative and an agreement had been concluded. The other unions took the position that the rejection by the Steering Committee was determinative and that a collec- tive-bargaining agreement had not been reached .6 McCol- lum gave notice on August 2 or 3 that he was resigning from the National Nonferrous Conference and its Steering Committee effective immediately. However, he continued to participate in joint negotiations.7 On August 1, upon the expiration of the old agreement, the Steelworkers, Electn- cal Workers, and Operating Engineers went on strike and set up a picket line. The Teamsters refused to honor the picket line. Thereafter a certain degree of open hostility was mani- fest, including violence involving Charging Party members and members of the other Unions! The Charging Party representative at an American Smelting and Refining Company negotiation session was asked to leave the ses- sion. Dunng negotiations at other companies, some repre- sentatives from the other Unions expressed displeasure at having to sit in negotiations with Charging Party represen- tatives, however, the total union committee rejected this sentiment. Also, according to James Broome's undenied testimony, certain small discourtesies were displayed at ne- gotiation sessions , such as refusals to answer questions put by Charging Party representatives and inexplicable short- ages of documents so that Charging Party representatives either received no copies or insufficient copies. On August 5, the Steelworkers filed a petition for an election at Inspiration Consolidated Copper Co in the unit represented by Charging Party. On August 12, Charging Party filed a petition for an election at Inspiration in a unit of powder crew, pit men, shovel operators, bulldozer oper- ators, and loader operators, and at Anamax Mining Com- pany in a production and maintenance unit. On August 16, Charging Party filed a petition for an election at American Smelting and Refining Company in a production and maintenance unit, and on September 3 at the same compa- ny for all electrical maintenance employees. On September 3, the other joint representatives filed a petition for an elec- tion at Cyprus Pima Mining Company in a production and maintenance unit. Workers, Local 570. The ratification vote was held in split sessions The first session was prior to the Steering Committee's rejection and the second after the rejection Staff representatives from the Teamsters , Electrical Workers, and Operating Engineers were present but none from the Steelworkers 6 A court proceeding ensued which resulted in a ruling that the parties had reached a collective -bargaining agreement and that any agreement be- tween the Unions as to approval by the Steering Committee not communi- cated to the Company was invalid r Between July 22 and the commencement of the Duval negotiations, Charging Party engaged in joint negotiations at American Smelting and Refining, Miami Copper, Inspiration , and Pima 8 The record is unclear as to how much of this violence occurred prior to the incidents involved herein , and how much occurred thereafter during the period when representation elections were being held Some violence and threats did occur during the Anamax incident 9 Another Teamsters representative was sent to San Francisco, apparently with the consent of the other joint representatives , but the negotiations had been concluded by the time he arrived On October 1, the Steelworkers filed petitions for elec- tions in Duval Corporation's production and maintenance units at Kingman and Esperanza. On that same date, Charging Party filed petitions for elections in the mine op- erating and mine maintenance departments at Kingman and Esperanza, and in the production and maintenance unit at Duval Sierrita. On January 29, 1975, Charging Par- ty filed a petition for an election at U. V. Industries in a production and maintenance unit. The Unions reached an understanding and withdrew the Duval petitions. All of these petitions involved previously represented units and, in general, were attempts by Charg- ing Party to oust the other Unions or by the other Unions to oust Charging Party. The elections were held in 1975. The Charging Party won one election, lost others, and some of the petitions were dismissed as raising no question concerning represen- tation As a result of their election losses, Charging Party lost several hundred members. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. July Through September Negotiations and Events Historically, the Duval negotiations, which covered the Sierrita, the Esperanza, and the Kingman properties, have culminated in separate contracts for each of the three prop- erties covering all of the units at the particular property. Individual union concerns and negotiation goals and strat- egies were discussed at separate meetings of the joint union negotiation committee in preparation for negotiations. Pro- posals were made, accepted, rejected, or withdrawn in ac- cordance with the majority wishes of the union committee. As chairman, Killinsworth was spokesman for the union economic committee . However, on September 28, Secre- tary Smith began acting as spokesman. Vanderpool was spokesman for the Unions' local or noneconomic issues committee; also on the union economic committee was McCollum. The participants in the local issues committee varied but the basic members of that committee for the Union were 11 members from the three Steelworkers Local Unions, Logan J. (Whitey) Wilkins, vice president of Oper- ating Engineers, Emmitt Hodges, business representative of Operating Engineers, Ermilio Torres, president of La- borers Local 479, and also Richard Cardrahall and a Mr. Riley from that Local, Arnold Thomas and Bud Williams from an unidentified Local out of Phoenix, George Logan, business representative for Charging Party, and the chief stewards for the various unions at each of the properties. The Teamsters chief stewards were Steve Toledo from Kingman, James Broome from Sierrita, and Vertis (Randy) Garrett from Esperanza. The Company's chief spokesman was Marshall H. Campbell, director of industrial relations for Duval Corporation and Duval Sierrita.10 It is unclear from the record just when the Duval negoti- ations commenced, but it was probably sometime in July or August. On August 7, Company Attorney G. Starr 10 The record does not reflect which company representatives participated in which of the two negotiation committees STEELWORKERS , LOCALS 196, 6850, 7508, ETC. 779 Rounds sent a letter to Charging Party, the Steelworkers, the Operating Engineers, and Laborers Local 479, stating inter aha In accordance with your July 3, 1974, letter to Mr. Bristol Maginnes, and further to a telegram received by Duval Corporation on August 2, 1974, concerning contract negotiations, it is the position of the Compa- ny that once all parties have agreed to negotiate the terms and conditions of a new Collective Bargaining Agreement jointly and when bargaining has, in fact, commenced on that basis, that no party may unilater- ally alter or withdraw from this agreement. Accord- ingly, all four Unions who were party to the July 3, 1974, letter must continue to be willing to meet at rea- sonable times and places in order to conduct such ne- gotiations. Regarding the telegram received by Duval on August 2 making reference to the National Nonferrous Steer- ing Committee, it is the Company's position that this committee is strictly related to the internal affairs of the Union and does not affect the Company. It is the Company's position that once the Spokesman for the Union informs the Company that a new Collective Bargaining Agreement has been accepted by the Union that a new agreement exists. The Unions never responded to this letter. However, Campbell's undenied testimony is that, during the course of the negotiations, he reiterated the Company's position as set forth in paragraph 2 and the Unions agreed. At the commencement of negotiations, Charging Party submitted seven items of prime concern to its members which included, inter alia, a pay increase on a small truck, air-conditioning in the haulage trucks, changes or clarifica- tions in the absentee policy and the subcontracting policy. Sometime in mid-September or prior thereto, by majon- ty vote of the union committee, certain items submitted by Charging Party, including absentee policy and subcon- tracting, were withdrawn from bargaining. However, these items continued to be of concern to Charging Party and were raised again by Charging Party representatives both at the bargaining table and in separate conversations with company representatives. Thus, about a week prior to Sep- tember 30, Harry Shively, general manager of the Siemta and the Esperanza properties, called Broome aside and in- quired if he thought they were making satisfactory progress in negotiations. Broome replied that the Teamsters had submitted only seven demands but had received nothing on any of them and unless there was some action on these issues he would do everything in his power to prevent con- clusion of a contract. On September 27, McCollum, participating for the first time in the Duval negotiation, was apprised by Charging Party representatives of their continuing concern with cer- tain of these seven items. Later that day, McCollum met with Campbell and related these problems to him. Camp- bell said it was his understanding that two of the items had been taken off the table. McCollum said they were impor- tant to Charging Party and he requested that the Employer reconsider them. According to McCollum, Campbell agreed to give him a letter of intent from the employer in regard to the absentee program and the subcontracting of work. As to the air-conditioning, Campbell said the Com- pany would not agree unless the employees agreed to work during lunch period for which they would be paid time and a half. Negotiation sessions were held on September 27, 28, 29, and 30. The Company first presented an economic propos- al on September 30. There is little or no dispute as to what occurred at these meetings and the record reflects nothing of critical importance to the issues herein as occurring dur- ing these sessions. Since the Duval contracts expired on September 30, the Unions had scheduled membership meetings for Septem- ber 30 to determine whether to extend the contract or strike. Because of the existing hostility and the possibility of violence, the Teamsters scheduled a separate meeting for its membership. The other Unions held a joint meet- On that same day, the Employer had made a propos- al in final settlement of all issues which was presented to the Unions' membership in morning and evening meetings. The Teamsters voted to reject the proposal but agreed to extend the contract for 24 hours. The other Unions voted to give the negotiating committee authority to call a strike or to extend the contract on a day-to-day basis. B. The Commencement of the Strike and Other Events of October 1 Negotiations continued throughout the day on October 1. Several issues were resolved including a company con- cession on the air-conditioning issue raised by the Team- sters. About 6.30 p.m the session was recessed when Wilkins interrupted seeking assistance from fellow repre- sentatives in conducting a membership meeting on the is- sue of whether to further extend the contract. Although it is undisputed that negotiations resumed later that evening, it is hotly disputed whether Teamsters representatives were aware that an evening meeting was scheduled. Teamsters representatives testified that they were not Campbell and representatives from the other Unions testified that the de- cision to resume negotiations that evening was made in Logan's presence. At the end of the day session on October 1, several issues were still unresolved. According to Camp- bell, they were wage increments, wage rate for laborers, the amount of the vacation bonus, a tenth holiday, and com- putation of overtime. On October 1, during morning and evening meetings, the Teamsters membership 12 voted to go on strike at 10:30 p.m. that day. About 9 p.m. McCollum and Logan notified the other Unions of the vote and informed them that pick- eting would commence that evening. McCollum testified that, during this conversation, he asked Smith if negotia- tions were scheduled for later that evening and Smith said 11 Although none of the witnesses appear certain whether they communi- cated the fact of the scheduled meeting to each other, it is clear that, in fact, they were all aware of the separately scheduled meetings and of the voting results It is also unclear who made the first move toward initiating separate meetings 12 This was employees at Esperanza and Sierrita Kingman employees did not vote until October 3 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no. Smith testified that he said yes and McCollum said to start without them. Torres admits that he did not hear the conversation clearly but that Smith asked if McCollum would be returning and McCollum said something like "I'll be back" or "take care of it." McCollum and Logan then went to the company suite and notified company representatives that the Teamsters had voted overwhelmingly to go on strike. Campbell asked if the members had been informed of the Company's con- cession on the air-conditioning. McCollum said yes but it was too late, apparently referring to the fact that the con- cession had not been made at the time of the morning membership meeting. McCollum said he had to go out and set up the picket line and asked if further negotiations were scheduled. Campbell replied, "No, if you are going to shut us down, I've got things to do and people to contact." Shortly thereafter, between 10 and 11 p.m.13 the Team- sters began picketing the Esperanza and Sierrita properties with signs which read "No Contract-Teamsters Local 310" and "Teamsters Local 310 on Strike. Duval No Con- tract." 14 Negotiations resumed between 10 and 11 p.m.15 and lasted until after midnight. However, no further issues were resolved except that, according to Smith, the Compa- ny increased its wage offer to 86.4 cents.16 The Company took the position that it would make no further concessions so no further meetings were scheduled. There was no repre- sentative from the Teamsters at this session. According to McCollum's undenied testimony, about 1- 1/2 to 2 hours after the picketing commenced, Wilkins ap- proached McCollum on the picket line and inquired why he was not in negotiations. McCollum said he was not aware there were any negotiations. At 8:30 a.m. McCollum telephoned Campbell and asked if there had been negotia- tions the preceding evening. Campbell did not answer. Mc- Collum then asked if negotiations were scheduled for that day. Campbell replied, "I'm not gonna run no goddam telegraph service for no Teamsters Union, especially when you got a picket line on me. You've got my operations shut down. I will direct my comments to the spokesman for the Union, Mr. Smith and when we get ready to go in negotia- tions I will notify Mr. Smith." However, later in the con- versation Campbell did say he would notify Logan if there were going to be further negotiations. C. The Events of October 2 On the morning and evening of October 2, the Steel- workers, Operating Engineers, and Laborers held a joint membership meeting of Esperanza and Siemta employees for the purpose of voting on the Company's final offer. Neither employee members of the Teamsters nor Team- sters representatives were permitted to attend these meet- ings. Logan testified that a Laborers business representa- 13 The graveyard shift begins at 11 30 p in The picket line was honored by, most employees 4 The pickets were stationed at a fork in the road, one side of which deadends into Sierrita and the other side into Esperanza 15 The delay was caused by company representatives' involvement in preparation for the expected shutdown to The company offer during the earlier session that day had remained at approximately 85-1/2 cents tive from Pima and Torres would not permit him, Tony Mendez, a Teamsters Western Conference Organizer, and Joe Bejarno, a business representative and organizer for Charging Party, to enter the meeting. Later when Logan asked Wilkins why they were refused entrance, Wilkins said they could get into the meeting under the same condi- tions as everyone else. Logan inquired what those were and Wilkins replied by signing an authorization card or a checkoff authorization card for the Steelworkers, Operat- ing Engineers, and Laborers. Logan then asked if the four Unions, including the Teamsters, were going to hold a joint ratification meeting in Kingman as they had in the past; whereupon Wilkins made a telephone call after which he told Logan he was sorry but they could not hold a joint meeting. Both Hodges and Torres admit that unit employ- ee members of Charging Party were asked to leave the meeting. The testimony is contradictory as to whether there was a negotiation session on October 2. Campbell testified that there was one during which the Company made additional concessions. Although the union witnesses agree that the concessions were made, they insist that there was no nego- tiation session but that the concessions were made in a telephone call from Campbell to Vanderpool at 10:30 a.m. just at the end of the morning ratification meeting. Vander- pool testified that Campbell said the Company would agree to several remaining items. According to Smith, a note was passed to him on the podium setting forth the Company's agreement to these issues. However, according to Smith and Vanderpool, these further concessions were made too late to be considered in the morning meeting but were part of the package presented to the joint membership at the evening meeting. In some manner which is not clear from the record, Logan first became aware of these modifi- cations in the Company's final offer later that day. Sometime thereafter, during the afternoon of October 2, the Company furnished written copies of the proposed contract to Logan as well as to the other Unions. Accord- ing to Logan, at or about 2 p.m. on October 2, he told Campbell that it was not possible to notify Teamsters members in time to have a ratification meeting that day, since they were not working and contact would have to be by telephone, newspaper, and television. Therefore, he told Campbell, the Teamsters ratification meeting had been scheduled for 8 p.m. on October 3. The combined vote of the morning and evening joint membership meeting, according to Torres, was 474 to 110 in favor of acceptance of the Company's final offer.17 Ac- cording to Campbell, at 9:30 p.m. on October 2, company representatives were first notified that its final offer had been accepted and that he met with Smith, Vanderpool, and other union representatives at or about 11 p.m. Smith places the time of first notification as at or about 11 p.m. According to him, he first called Logan and told him that the other members of the pact 18 "felt that the Company's 17 Hodges could not recall the vote tabulation He was asked a leading question which appears to indicate that in a prehearmg affidavit Hodges stated the vote was 450 to 119 However, the question did not refresh his recollection and it was never established on the record that the vote tabula- tion was, in fact, in his affidavit nor what it was 18 The joint representatives are sometimes referred to as "the pact" STEELWORKERS, LOCALS 196, 6850, 7508, ETC. 781 final offer was acceptable and that we had accepted it and the vote, as in the Anamax situation, was overwhelming and their vote as they had taken it, added together, we had a contract, that his pickets were illegal." Logan asked, "[W]ould you crash the picket line 19 and make it easier on me?" Smith said, "[N]o." Logan said, "[Y]ou have to do what you have to do." Following his conversation with Logan, according to Smith, he telephoned the Company,20 told them they had a collective-bargaining agreement, and they would like to meet to work out a back-to-work agreement. At some point prior to his conversation with Logan and a company repre- sentative, Smith spoke to the chairman of the Steering Committee who informed Smith that the contract was ac- ceptable. D. The Strike Settlement Agreement and the Events of October 3 On October 3, Jack Boland, company attorney, submit- ted a proposed strike settlement agreement to Smith. Smith said the proposal was not acceptable and during that af- ternoon, commencing at or about 3 p.m., a strike settle- ment agreement was negotiated . No Teamsters representa- tives participated in this negotiation session. According to Logan and McCollum, they were not informed of the ses- sion. According to Smith, he informed Logan. On the afternoon of October 3, the following strike set- tlement agreement was signed by Campbell and by Van- derpool, Smith, and Killinsworth on behalf of the pact unions:21 [p. 120] Employees will return to work only upon receipt of notice to do so. Any form of notice may be used by the Company in advising employees about returning to work. An employee will not be disciplined or discharged for failing to return to work for a period of seventy- two (72) hours after such notice. If pickets have not been removed prior to the time that an employee is scheduled to return to work, such employee shall re- port to work on his first scheduled shift occurring after the removal of such pickets. Employees who fail to return to work as provided herein will be deemed to have quit on October 1, 1974. Subject to the provisions of the previous paragraph, employees shall return to work only as needed by the Company. Until the lapse of seventy-two (72) hours subsequent to the removal of the pickets, the Compa- 19 Smith testified that he assumed Logan was requesting the other Unions to cross the Teamsters picket lines so he would have an excuse to remove theopickets 2 The person to whom he spoke is not identified in the record 21 According to Smith , Killinsworth and Smith signed as chairman and secretary of the union negotiating committee on economic issues Vander- pool signed as chairman of the local issues committee Smith does not ex- plain why no provision was made for the signature of Logan as secretary of the local issues committee . Campbell testified that these three signed the agreement because Kilhnsworth was chairman of the union negotiating committee and at various times dunng negotiation , in response to specific inquiries by the Company , the union committee, including McCollum, ac- knowledged that Smith and Vanderpool spoke for the pact ny may return people to work out of seniority order and, if sufficient represented employees do not re- spond to the return to work notices, may continue to have supervisory and unrepresented employees per- form duties normally performed by employees in the job classifications covered by the Agreements. The Company will not commence any legal action against joint representatives because of any act or omission of such joint representative during the period of the strike nor against the United Steelworkers of America, or International Brotherhood of Electrical Workers, Locals 570 and 640 in their capacity as sin- gle representatives of bargaining units, but specifically reserves the right to seek redress and avail itself of its legal remedies against any individual union which continued to sanction a strike , maintain or sanction a picket line after 9:30 p.m. on October 2, 1974, and [p. 121] failed to abide by the provisions of Article V, Section 2, sub-section 4 of the respective Agreements and the right to discharge or discipline any employee who continued to picket any of the Company's prop- erties after 9:30 p.m. on October 2, 1974, or who failed to fulfill his obligation, as a Union representative or official, to exert a good faith effort to cause the cessa- tion of such picketing. Each individual Union, whether a constituent of a joint representative or whether it represents bargain- ing units in its own right, and the Company, agree that the provisions of the labor Agreements which result from these negotiations will remain in effect until Sep- tember 30, 1977, irrespective of the outcome of any representation proceedings now pending before the National Labor Relations Board on petitions filed prior to October 2, 1974. Smith testified that the first six lines of the fourth para- graph through "bargaining unit" only was his proposal. However, his prehearing affidavit dated November 12, 1974, states "I proposed the last paragraph on Page 120, and all of the language on Page 121. I proposed the content of these paragraphs but did not write the language." Van- derpool first testified that he did not recall who proposed which paragraphs but after he was shown his prehearing affidavit, dated November 12, 1974, he testified that the statements therein were true, that the first two paragraphs and the fourth paragrpah of the strike settlement agree- ment were proposed by Smith and the Company proposed the third and last paragraph. Logan testified that he first learned of the strike settle- ment agreement on the afternoon of October 4, when he telephoned Campbell to inquire as to how employees would be returned to work. Campbell told him there was an agreement covering this which Logan could obtain by coming to the company suite. Logan testified that there was a copy of the agreement in the packet of materials he had received from the Company earlier but he had not realized this. Logan's testimony as to the date of this con- versation is unreliable. At various times he testified it was on October 2, 3, and 4. Logan did go to the company suite to pick up the agreement. His undenied testimony is that he asked Campbell how long he thought it would be before 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could have everyone back at work. Campbell replied, "Within 72 hours, with the exception of two guys." Logan asked, "Who are the two guys?" Campbell said, "James Broome and Randy Garrett." Campbell further said, "Well, they [Broome and Garrett] never did anything while they were out here, and I'll spend $50,000 to keep 'em off the property." On the evening of October 3, Charging Party held a meeting of its Esperanza and Sierrita membership. They voted to accept the Company's final offer. The pickets were removed shortly thereafter. Campbell testified that, at or about 10:30 p.m. on October 3, Logan telephoned him, informed him that the Teamsters had accepted the con- tract, and either that the pickets had been removed or would be. The Teamsters and the other Unions held sepa- rate ratification meetings at Kingman on October 3. E. The Discharges The discharges of James Broome and Vertis (Randy) Garrett and the 1-day disciplinary layoff of Ignacio Or- tiz arose out of their alleged violation of the no-strike clause of the new collective-bargaining agreement. Article V of this agreement provides in pertinent part: SECTION 2. No strike. (1) The Union agrees that during the life of this Agreement there shall be no strike, work stoppage, or slowdown called, authorized, approved, or sanctioned by the Union. (2) Any employee who actively participates in, sup- ports, or encourages any such strike, work stoppage, or slowdown shall be subject to discipline or discharge by the Company with right of appeal to the Grievance Procedure only as to the determination of the question of whether the employee so disciplined or discharged did actively participate in, support, or encourage such strike, work stoppage, or slowdown. (4) The Union shall immediately and publicly disa- vow as illegal any strike, work stoppage, or slowdown and will use all means within its power to end such strike, work stoppage, or slowdown at the earliest pos- sible time. (5) If the Union has complied with provisions of this Section, then it shall not be liable in damages to the Company and the Company agrees that it will not institute a lawsuit against the Union to recover dam- ages occasioned by such illegal strike, work stoppage, or slowdown. Ortiz, employed at Duval Siernta for 6 years and 3 months as a haulage truckdriver, was a member of Charg- ing Party who participated in the picketing on October 1, 2, and 3 and who was shift captain of the pickets.22 Broome, employed by Duval Sierrita since 1968, had been chief steward for Charging Party since December 1969. When the strike commenced Logan assigned Broome as picket 22 There were three shifts of pickets captain responsible for seeing that pickets were on duty around the clock. Broome in turn appointed three shift captains. Garrett, employee at Esperanza since July 1967, had been chief steward for Charging Party at Esperanza since March 1970. Broome picketed on October 1, 2, and 3; Garrett picketed on October 2 and 3. Both Broome and Garrett were very active in implementing Charging Party's policy of soliciting members from the ranks of the other unions as well as soliciting unrepresented employees. They were both aggressive as to processing grievances. They both participated in the 1971 and 1974 Duval negotiations and during the 1974 negotiations they were both vocal in opposition to a checkoff plan which would restrict employ- ees to executing checkoff authorizations only to the union whose traditional jurisdiction encompassed the employee's job classification. They both continued to bring up the items Charging Party considered of prime importance even after some of the items had been withdrawn in accordance with a majority vote of the pact. Logan testified that on October 2 "at about midnight, James Smith called me on the telephone and told me that I had an illegal picket out there and told me I better get it down. And I gold [sic] him that I didn't think I did. And I'd do whatever I had to do." Logan further testified that Campbell telephoned him at or about 4 a.m. on the morning of October 3. According to Logan, "He [Campbell] told me they had a contract, and he wanted me to take the pickets down, and I told him that until I could get my people together and vote 'em and find out just exactly where we were at, I just can't make a deci- sion at 4:00 in the morning to take the picket down, till I could find out what my people wanted to do." Logan does not recall whether he specifically protested or denied Campbell's statement that they had a contract. Ortiz' undemed testimony is that on October 3 at 12:15 a.m. Bill Taber, senior safety supervisor for the Company, approached him on the picket line. Taber said the Compa- ny had advised him that there was an agreement, that the strike was over. Ortiz said he could not remove the pickets until he received instructions from his leaders. Ortiz told Taber he had to telephone Logan. He then telephoned Lo- gan and inquired if an agreement had been reached. Logan replied that the agreement was not going to be in effect until the Teamsters had their ratification vote. Ortiz then informed Taber what Logan had said and Taber replied, "what can I do." At 6:30 or 7 a.m. on October 3, Harry Shively, Duval's general manager, approached Ortiz at the picket line. Ac- cording to Ortiz' undenied testimony Shively told him they had a collective-bargaining agreement effective as of Octo- ber 2, that the pickets were illegal, and the Union was going to be held liable for any loss of production. He also told Ortiz that he should move the pickets back to their original position at the boundary of the properties. Ortiz replied that he could not answer for the Union as far as the legality of the agreement and that he had no power to re- move the pickets but he would move them back to their original position at the boundary of the properties. On the morning of October 3, while having breakfast with Garrett, Logan, and several other persons at a hotel, Logan informed Broome that the other Unions had voted STEELWORKERS, LOCALS 196, 6850, 7508, ETC. to accept the contract. During the course of that breakfast, there was a page for Jim Broome or Randy Garrett to go to the telephone. Broome answered. The caller identified him- self as Starr Rounds, a company attorney. Rounds told Broome the pickets were illegal and unless they were re- moved immediately that Broome and the other pickets were in trouble. Broome said he did not have authority to remove the pickets, that he was just following instructions from Logan and McCollum, and that he thought Rounds should contact Logan and McCollum and explain the posi- tion to them. Rounds repeated that the picketing was ille- gal and should cease. Broome again told him he had no authority to remove the pickets. Broome further stated that the Teamsters ratification vote was scheduled for that eve- ning and, if the vote in the aggregate was in favor of settle- ment, the pickets would be removed shortly thereafter. Rounds then asked to speak to Hilley or Logan. Rounds did not testify nor did Logan testify as to this conversation with Rounds. About noon on October 3, Chris McGinnis, personnel supervisor at Duval Sierrita, approached Broome on the picket line. According to Broome's undenied testimony, McGinnis said, "We have a contract. You're in violation of the law. Remove your pickets." Broome replied that he did not have authority to remove the pickets, that Charging Party had a ratification meeting scheduled for that evening and, if he was ordered to, he would remove the pickets. McGinnis said, "I hate to do this to you" and took a photograph of Broome. Campbell testified that, on the afternoon of October 3, Broome telephoned him. During this conversation, Camp- bell told Broome that a contract was in effect and that disciplinary action would be forthcoming unless the pickets were removed. Garrett testified that no one from the Company ever told him the picketing was illegal or that continued picketing would subject him to disciplinary action. His sole conver- sation with any supervisor or management personnel as to the picketing was on the afternoon of October 2 or 3 when McGinnis asked him how the picketing was going and were there any problems. Garrett replied that everything was fine. Garrett did testify, however, that on October 3 Broome told him Rounds said the picketing was illegal. On October 4, Broome was sent a telegram signed by H. L. Shively, general manager of Duval Sierrita Corp., which states. TO MR JAMES BROOME THIS IS TO NOTIFY YOU THAT YOU ARE HEREBY DISCHARGED FROM EMPLOYMENT WITH DUVAL SIER- RITA CORPORATION FOR VIOLATION OF ARTICLE 5, SECTION 2 NO STRIKE OF THE COLLECTIVE BARGAINING AGREEMENT EF- FECTIVE OCTOBER 1 1974 FOR YOUR MISCONDUCT OCCURRING ON OCTOBER 2 AND 3 1974 On the same day, Garrett received a telegram signed by H. L. Shively, general manager, Duval Corp., stating. TO RANDY GARRETT THIS IS TO NOTIFY YOU YOU ARE HEREBY DISCHARGED FROM EMPLOYMENT WITH DUVAL CORPORATION FOR VIOLATION OF ARTICLE 5, SECTION 2 NO STRIKE OF THE COL- LECTIVE BARGAINING AGREEMENT EFFECTIVE OCTOBER 1 1974 FOR YOUR MISCONDUCT OCCURRING ON OCTOBER 2 AND 3 1974 783 Sometime between October 4 and 7, grievances were filed by Charging Party concerning these discharges. A third-step grievance meeting was scheduled for October 10. Present at the scheduled meeting were Broome, Garrett, McCollum, and Logan, and for the Company, Campbell and Jerry Fortson. Despite the normal practice of all four chief stewards attending any grievance involving their spe- cific properties, the chief stewards from the other three Unions were not present.23 According to McCollum, upon observing that none of the other Unions were represented, one of the Teamsters asked what was going on. Campbell said they were not going to have a normal grievance ses- sion unless Charging Party would agree that the collective- bargaining agreement became effective on October 2. Mc- Collum said Charging Party was not in any position to agree that there was a contract during the period that they were on strike and that the Teamsters did not ratify the contract until October 3. Campbell said the other Unions had ratified the contract, that with that vote and the Team- sters vote of October 1, they had a contract. McCollum explained that the other Unions had voted on provisions that had not been offered on October 1 and that Charging Party took the position that the vote could not be tabulated until after the Teamsters voted on the Company's final of- fer After a 20- to 30-minute discussion on these points, Campbell and McCollum, at Campbell's request, went to Campbell's office Campbell asked, "[W]hat can we do to settle this grievance9" McCollum said, "[P]ut those guys back to work and give them pay for lost time." Campbell said, "Well, I'll put Mr. Garrett back to work but, I'll go through hell before I put Jim Broome back to work." Mc- Collum said they were not going to trade one off for the other, that both would have to be reinstated or there was no deal. McCollum then requested that the grievance be submitted for arbitration, to which Campbell replied, "If you don't have a contract during this period and won't admit to a contract during this period of time which these guys were discharged, then we're not gonna arbitrate the case." McCollum said he needed time to confer with Charging Party's attorney and the meeting ended. The written answer of the grievance, dated October 10, was sent to McCollum with a cover letter stating: Enclosed is the Company's reply to grievances submit- ted by Mr. James W Broome and Mr. Vertis R. Gar- rett. We are in agreement with your request to extend the time limit regarding your response to the Company's position. Notwithstanding any extension regarding the time limits provided in the Collective Bargaining Agree- ment, it remains the Company's position that there can only be arbitration regarding these grievances if you are in agreement that there was a contract at the time the misconduct referred to in the notice of termi- nation occurred. 23 The normal procedure is for the Company to send each of the Unions a letter prior to the grievance meeting listing each grievance, the grievance number, and what the grievance concerns 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The reply to the two grievances were identical and read: 3. Answer to Resident Manager: You were dis- charged for violation of Article V, Section 2; No Strike, for actively participating, supporting, and en- couraging an illegal strike on October 2 and October 3, 19T4, and for your failure and refusal to immedi- ately and publicly disavow such strike and to use your authority as a Union representative to end such illegal strike at the earliest possible time. If it is the Union's contention that no new Agreement existed on October 2 and October 3 until the Company was notified by your Union that Agreement was reached, this griev- ance can only be processed through the Third Step of the Grievance Procedure since the Union did not ex- tend the Agreement on October 1, 1974, and the Com- pany specifically informed the Union that there was no provision for arbitration in the absence of a con- tract. If you are in agreement that a new Collective Bargaining Agreement was in effect on October 2 and 3, 1974, the matter is arbitrable. After Broome's discharge, Ortiz became chief steward at Duval Sierrita.24 On October 17, Ortiz was notified that he would receive a 1-day disciplinary layoff effective October 18. The reason given in the notice of personnel action was: Reason for Personnel Action: You are being issued this disciplinary layoff for participation in illegal Union activities on October 3, 1974. Further viola- tions of this nature may result in more severe discipli- nary action including the possibility of discharge. When he handed the notice to Ortiz, Pit Superintendent Larry Dykers said he did not know why this action was being taken but he had to obey orders. On that same day, Ortiz asked McGinnis why he was disciplined. McGinnis said because he was chief steward and he had picketed illegally on October 3 Ortiz said he was not chief steward. McGinnis replied, "Well, you were a picket leader, anyway." Sometime in November or December, after the charge herein was filed, Ed Little, president of Steelworkers Local, asked Ortiz to sign a submission agreement to submit the discharge grievances to arbitration. 5 Ortiz consulted with Broome, who consulted with McCollum, and upon advice of counsel McCollum instructed him not to sign the agree- ment inasmuch as the Company's position was that Charg- ing Party had no standing to arbitrate so long as its posi- tion was that no agreement was in effect at the time of the conduct on which the discharges were based. Charging Party was unwilling to permit the Steelworkers to arbitrate the grievances. There has been no subsequent attempts to arbitrate these grievances and at all times it has been the Employer's position that arbitration required both a sub- mission signed by the joint representatives and an ac- 24 The record does not reflect the exact date 25 A matter cannot go to arbitration unless all four unions sign a submis- sion agreement The usual practice is that the signing of the submission by the disinterested unions is routine and the union that initiates the request for arbitration bears the cost and the burden of presenting the case to the arbitrator knowledgement by Charging Party that the collective-bar- gaining agreement became effective at 9:30 p.m. on Octo- ber 2. V. CONCLUSIONS The General Counsel argues that Respondents breached their duty of fair representation toward employee members of Charging Party in certain respects specifically alleged in the complaint and that the discrimination against Broome, Garrett, and Ortiz resulted from such breach. Respondents deny that they have engaged in such misconduct. It is well settled that a union which enjoys the status of exclusive collective-bargaining representative has an obli- gation to fairly represent employees. Vaca v. Sipes, 386 U.S. 171 (1966). This is true whether the representative is one union or one of several joint representatives, for all of the point representatives constitute a single statutory repre- sentative of all the employees in the unit and the duty of fair representation devolves on them jointly and separately. The duty of fair representation requires that a union serve the interest of all bargaining unit employees fairly and in good faith, and without hostile discrimination against any of them on the basis of unfair, arbitrary, irrele- vant, or invidious distinctions. Vaca v. Sipes, supra; Local Union No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO [Goodyear Tire & Rubber Co ] v. N L.R.B., 368 F.2d 12 (C.A. 5, 1953), cert. denied 389 U.S. 837 (1967); Miranda Fuel Company, Inc., 140 NLRB 181 (1962); Barton Brands, Ltd, 213 NLRB 640 (1974). Mere negligence or poor judgment is insufficient to establish a breach of the duty of fair representation for the Act does not guarantee the quality of representation and "[a] wide range of reasonableness must be allowed a statu- tory representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion." Ford Motor Companies v. Huffman, 345 U.S. 330, 338 (1963); Bazarte v. United Transportation Union, 429 F.2d 868, 872 (C.A. 3, 1970). However, in some circumstances, inaction amounts to such gross negligence that it must be considered arbitrary. Mumford v. Glover, 503 F.2d 878 (C.A. 5, 1974); King Soop- ers, Inc., 222 NLRB 1011 (1976). The test is whether the union's conduct toward a unit employee is arbitrary, dis- criminatory, or in bad faith. A union has violated its duty of fair representation and Section 8(b)(1)(A) of the Act only if this question can be answered in the affirmative. Miranda Fuel Company, Inc., supra, General Truck Drivers, Warehousemen, Helpers and Automotive Employees, Local 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Rhodes & Jamieson, Ltd), 217 NLRB 616 (1975). A union's breach of its duty of fair representation may also violate Section 8(b)(2) of the Act, when, for arbitrary or irrelevant reasons, or upon the basis of an unfair classifi- cation, the union causes, or attempts to cause, and em- ployer to derogate the employment status of an employee. Miranda Fuel Company, Inc., supra; Barton Brands, Ltd., supra STEELWORKERS, LOCALS 196, 6850, 7508, ETC. 785 A. The Motion to Dismiss as to Steelworkers Local 196 and Laborers Local 381 Respondents argue that the complaint should be dis- missed as to Steelworkers Local 196 and Laborers Local 383 inasmuch as neither union is a joint representative with Charging Party in any unit involved herein. I agree. The duty of fair representation is a fiduciary obligation which arises out of the statutory grant of authority to a union to function as the exclusive bargaining representative of all the employees in the appropriate unit. If a union does not enjoy the status of exclusive bargaining representative in a particular unit, it has no duty of fair representation toward the employees in that unit. General Counsel apparently bases his contention of a violation on the participation of Local 196 and Local 383 in joint bargaining. I find this reliance misplaced. The privileges, responsibilities, and obligations of joint representatives cannot be accorded to mere participants in joint bargaining. Accordingly, I find that the General Counsel has failed to establish that Local 196 and Local 383 violated their duty of fair representation in violation of Section 8(b)(1)(A) and (2) of the Act. B. The Conduct of the October 2 Joint Contract Ratification Meeting A union has no duty under the Act to accord to employ- ees the right to approve or disapprove a proposed collec- tive-bargaining agreement However, once this right is granted to employees, its duty of fair representation de- mands that all unit employees be accorded an equal oppor- tunity to participate in such decisions. Respondents Oper- ating Engineers, Laborers Local 479, Steelworkers Local 6850, and Steelworkers Local 7509, hereinafter referred to collectively as Joint Representative Respondents, failed in this obligation. At an October I meeting the Teamsters voted on a contract offer which did not include the Employer's final wage offer. Smith testified that Duval in- creased its wage offer during the late evening session of October 1 subsequent to the Teamsters meeting. Also the contract submitted to the Teamsters at that time did not contain the final employer concessions of October 2. In sum, the Teamsters, on October 1, did not vote on the Employer's final offer. They voted on the same offer sub- mitted to the other Unions on October 1. The other Unions also rejected this offer. Yet, Respondents accorded their members an opportunity to vote on the sweetened offer. In defense of their actions, Respondents argue that by com- bining the Teamsters October 1 vote and the October 2 vote it determined that.the majority vote was to accept the contract. I find this argument specious. You cannot add apples and oranges. Even Smith admits his failure to un- derstand this reasoning. Respondents further argue that the employees at the October 2 morning meeting did not have the Company's final concessions which were submit- ted to Respondents' membership at the evening meeting. This is immaterial. They did have the increased wage offer and the duty of fair representation to those employees is not at issue here. Furthermore, establishing that the treat- ment accorded the Teamsters was not totally disparate makes it none the less disparate and arbitrary. Accord- ingly, I find that the Joint Representative Respondents vio- lated Section 8(b)(1)(A) by denying unit employee mem- bers of the Teamsters the same opportunity to vote on the question of contract ratification accorded other unit em- ployees. As to the exclusion of unit employee members of the Teamsters from the October 2 joint ratification meeting, I find no violation of the Act in this conduct. The evidence establishes that during all of the years of joint bargaining in the nonferrous mining in Arizona, including Duval, the Employer's final offer has always been submitted to em- ployees for a ratification vote. However, the pattern has varied . Sometimes joint meetings were held and sometimes separate meetings were held. Where the meetings were sep- arate, participation by staff members of the various unions has not been limited to those whose members attend the meeting, and the decision to accept or reject the offer was, in the past, always determined by combining the votes cast in all of the meetings. Although the record is unclear as to who initiated the separate meetings, it is clear from Logan's testimony as to why he scheduled a separate meet- ing and as to Wilkins rejection of the idea of a joint meet- ing, including the Teamsters, at Kingman, that the pact Unions were agreed that separate meetings were best. There is no inherent reason why separate meetings would deprive employees of an equal opportunity to vote on con- tract ratification and, if separate meetings are held, the in- tegrity of the ballot demands that steps be taken to prevent dual voting. Excluding Teamsters employee-members in not an unreasonable method of achieving this goal, where a separate meeting was scheduled for Teamsters. Accord- ingly, I find that Respondents did not violate Section 8(b)(1)(A) by excluding from the October 2 Joint ratifica- tion meetings unit employees who were members of the Teamsters. I reach a different conclusion, however, as to the exclu- sion of the Teamsters business representatives. Here what is involved is not the right to cast a ballot nor the integrity of the balloting process. Rather, it is the right to attempt to influence the decision that is at stake. A contract ratifica- tion meeting is not a static affair of merely casting a ballot; rather, the pros and cons of an offer are discussed and attempts are made to sway opinion. This is an integral part of the ratification process which, in large measure, is deter- minative of the outcome of the vote. By excluding Team- sters business representatives as well as unit employee members of the Teamsters, Respondents effectively denied the Teamsters employees an opportunity to influence the vote of their fellow unit employees. This is no small matter, from a practical as well as a philosophical point of view, for the Teamsters members are in the minority and the realization of those goals which affected only Teamsters may be absolutely dependent upon their ability to sway other unit employees. Accordingly, I find the joint repre- sentative Respondents violated their duty of fair represen- tation in violation of Section 8(b)(1)(A) of the Act by ex- cluding Teamsters business representatives from the October 2 joint ratification meetings. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Acceptance of the Collective-Bargaining Agreement, the Negotiation and Execution of the Strike Settlement Agreement, and the Discharges and Suspension Pursuant Thereto The complaint alleges that Respondents violated their duty of fair representation by accepting the Employer's contract proposals without affording unit employee mem- bers of the Teamsters an opportunity to vote as to contract ratification and under circumstances which would subject said employees to discharge or other disciplinary action, and by negotiating and entering into a strike settlement agreement without notification to the Teamsters, which would, by its terms, subject unit employee members of the Teamsters to discharge and other disciplinary action I have concluded above that the joint representative Re- spondents failed in their duty to fairly represent Teamsters unit employees by denying them the opportunity, in the circumstances, of voting to accept or reject the Employer's final offer. In my opinion a corollary of this conclusion is a finding that these Respondents also failed in their duty of fair representation by accepting the contract prior to the Teamsters ratification meeting, and I so find. I further find that the joint representative Respondents thereby violated Section 8(b)(1)(A) of the Act.26 The above finding, however, does not affect the validity of the contract which Respondents accepted, nor does the prior bargaining history or the intraunion decisions as to when an employer offer would be deemed acceptable. In its August 7 letter, the Employer set forth the conditions under which a new collective-bargaining agreement would become effective. The union negotiating committee agreed to these conditions. Ratification of the contract was not such a condition.27 The parties agreed that, when the union spokesman accepted the Employer's offer, that acceptance finalized the contract. The contract provides for an Octo- ber 1 effective date. Accordingly, I find that the collective- bargaining agreement became effective on October 2 when Smith accepted the Employer's offer. The issue herein arises from the no-strike clause of the new contract. The Teamsters was picketing at the time the contract became effective, and Respondents and the Com- pany knew it was picketing. Yet, when negotiating the strike settlement agreement, Smith not only agreed to, but actually proposed, those portions of the agreement which subjects to discharge any employee picketing after 9:30 p.m. on October 2.2 From the location of the picket line, it was impossible for the pickets to have knowledge as of 9:31 p.m. that the contract had been accepted. Thus it was un- 26 In reaching this conclusion, I have considered Respondents' argument that contract ratification is an internal union affair which falls within the proviso to Sec 8(b)(l)(A) and conclude that, while the mechanics of in- traunion decisionmaking may not fall within the ambit of the Act, the dispa- rate and arbitrary nature of the treatment accorded a class of unit employ- ees is within the ambit of the Act where the decision involved, as here, affects their rights as employees as opposed to their rights as union mem- bers 27 Communicating to the employer that ratification meetings would be held does not make such ratification a condition precedent to an agreement 28 I do not credit Smith's testimony that this was a company proposal In his prehearing affidavit of November 12, he admitted that this was his pro- posal and I found his testimony to be generally unreliable reasonable to expect that picketing would have ceased at that time, and a foreseeable consequence of proposing and entering into such an agreement would be that some em- ployees might be discharged who picketed without knowl- edge that they were in violation of the no-strike clause of a new contract. The joint representatives had a fiduciary obligation to notify the picketing employees that the contract was in ef- fect and to take steps to protect them from the effects of the no-strike provision in the interval until such notifica- tion could be made. Certainly they were obligated not to propose, and enter into, an agreement which subjected em- ployees to discharge based on their unknowing miscon- duct. Any agreement that failure to consider the effect of the no-strike clause at the time the collective- bargaining agreement was accepted was a mere oversight is negated by the terms of the strike settlement agreement . Further, con- sidering that past action and the current conduct of the joint representative could reasonably be expected to lead employees to the conclusion that the contract would not be effective until the ratification vote was completed, Respon- dents had an obligation under the circumstances to explain to employees that, under its agreement with the Employer, a contract was not contingent upon ratification but, rather, became effective when Smith accepted the contract. This Respondents did not do. Any such notification undertaken by the Employer does not relieve Respondents of their obligations. Under the circumstances the employees could be expected to be suspicious of statements by the Em- ployer. The failure to notify the Teamsters of the scheduled strike settlement negotiations,29 coupled with the proposals made and accepted by Smith which operated to the detri- ment of Teamsters employees,30 particularly in the circum- stance of Respondents' animus toward Charging Party,31 indicates something far beyond mere negligence . Actually, Respondents' conduct had the effect of inviting company reprisals against the picketing employees. Certainly it sig- naled that the Employer could expect no protest from Re- spondents if it engaged in such reprisals. Accordingly, I find that Respondents violated their duty of fair represen- tation and Section 8(b)(1)(A) of the Act by entering into the collective-bargaining agreement and the strike settle- ment agreement under circumstances which subjected em- ployees to discharge for picketing at a time when they could not be expected to know that a collective-bargaining agreement containing a no-strike clause had been conclud- ed. I also find that, by its conduct in the above circumstanc- es, the Joint Representatives attempted to cause the Em- ployer to discharge or otherwise discipline picketing em- ployees because, as members of Charging Party, they were part of a dissident group within the Joint Representatives,32 29 1 do not credit Smith's testimony that he notified Logan of the meeting 30 Although most employees honored the picket line, only Teamsters em- plo'ees were assigned to picket duty 3 Respondents' animus toward Charging Party and its members is shown by the treatment accorded them during negotiations, the violence and ver- bally expressed hostility during and following the Anamax incident, and the treatment accorded Teamsters members as to contract ratification 32 1 have considered and rejected what appears to be an argument by Respondents that its conduct was permissible because the picketing was STEELWORKERS , LOCALS 196, 6850, 7508, ETC. 787 thereby violating Section 8(b)(l)(A) and (2) of the Act.33 I further find that, but for this breach of the joint repre- sentative Respondents' duty of fair representation, Broome, Garrett, and Ortiz would not have been in the posture of engaging in activity in violation of the no-strike clause which subjected them to the penalties of the strike settlement agreement .34 Accordingly, I find that the con- duct of the .joint representative Respondents directly con- tributed to the loss of employment by Broome, Garrett, and Ortiz. CONCLUSIONS OF LAW 1. Duval Corporation and Duval Sierrita Corporation, each, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Each of Respondents is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents United Steelworkers of America, AFL- CIO, and its Local No. 6850 and Local No. 7508; Interna- tional Union of Operating Engineers Local No. 428, AFL- CIO; and Construction Production and Maintenance La- borers Local No. 479, AFL-CIO, at all times material herein have been, jointly with Teamsters Local 310, the exclusive representative of certain employees of the Em- ployer for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 4. Respondents United Steelworkers of America, Local No. 196, AFL-CIO, and Construction Maintenance La- borers' Local No. 383, AFL-CIO, at all times material herein, each has been either jointly or solely the exclusive representative of certain employees of the Employer for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondents United Steelworkers of America, Local No. 196, AFL-CIO, and Construction Maintenance La- borers Local No. 383, AFL-CIO, have not engaged in un- fair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, as alleged in the complaint. 6. By excluding unit employees who are members of Teamsters Local No. 310 from a joint contract ratification meeting, the Respondents named in paragraph 3 hereof have not engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act. 7. By denying unit employee-members of Teamsters Lo- cal No. 310 the same opportunity to vote on the question of contract ratification accorded other unit employees; by excluding business representatives of Teamsters Local No. 310 from ajoint contract ratification meeting ; by accepting the Employer's contract proposals without affording unit employee-members of Teamsters Local No. 310 an oppor- tunity to vote as to contract ratification and under circum- stances which would subject said employees to discharge or other disciplinary action, and by negotiating and entering into a strike settlement agreement, without notification to Teamsters Local No. 310, which by its terms would subject unit employee-members of Teamsters Local No. 310 to dis- ciplinary action; the Respondents named in paragraph 3 hereof each has breached its duty of fair representation and has engaged in unfair labor practices within the mean- ing of Section 8(b)(1)(A) of the Act. 8. By entering into a collective-bargaining agreement and a strike settlement agreement with the Employer under circumstances which violated its duty to represent all unit employees in a fair and impartial manner and constituted an attempt to cause the Employer to discharge or otherwise discipline employees who are members of Teamsters Local 310 in violation of Section 8(a)(3) of the Act, the Respon- dents named in paragraph 3 hereof each has violated Sec- tion 8(b)(1)(A) and (2) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. minority action in derogation of the bargaining activities of Joint Represen- tatives However, the record is insufficient to establish that their activity was minority action, for there is no evidence as to the result of the total October I vote. Furthermore, there is no evidence in the record that, at the time. Respondents took the position that the strike was unprotected minority action in derogation of the Union's bargaining activities and there is no contention or evidence that the discharges and the suspension were based on such a contention 73 In reaching this conclusion, I have considered and rejected Respon- dents' argument that i cannot find a violation of Sec 8(b)(2) because the Regional Director dismissed the companion charge that the discharges and the suspension were violative of Sec 8(a)(3) of the Act In Miranda Fuel Company, Inc, supra, the Board concluded that, to the extent an employer participates in a union's arbitrary action against an employee, the employer himself violates Sec 8(a)(I) and (3) of the Act Thus, if at, employer accedes to the union's efforts, it may violate Sec 8(a)(3) of the Act even though its own motive is nondiscriminatory, for by so acceding it incidentally encour- ages union membership Consequently, a union's attempt to secure em- ployer participation in its arbitrary action against an employee may be vio- lative of Sec 8(b)(2) of the Act even though the employer's conduct is not violative of the Act either because it had other legitimate reasons for its conduct aside from the union 's desires or because it acceded to what ap- peared to be a legitimate union position unaware of circumstances consti- tuting union action on the basis of unfair, arbitrary, irrelevant, or invidious distinctions 34i have considered and rejected Campbell's contention that the dis- charges were not also pursuant to the strike settlement agreement The rea- son for discharge notes the failure as union representative to disavow and attempt to end the picketing-conduct specifically referred to in par 4 of the no-strike agreement THE REMEDY Having found that certain of Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirma- tive actions designed to effectuate the policies of the Act. Since I have found that these Respondents have breached their duty of fair representation and that such breach has directly contributed to the loss of employment by Broome, Garrett, and Ortiz, I shall recommend that Respondents United Steelworkers of America, AFL-CIO, and its Local No. 6850 and Local No. 7508; International Union of Operating Engineers, Local No. 428, AFL-CIO; and Construction, Production and Maintenance Laborers Local No. 479, AFL-CIO, jointly and severally make James Broome, Vertis R. Garrett, and Ignacio Ortiz whole for any loss of pay they may have suffered as a result of their discharge or suspension for picketing on October 2 and 3, 1974. All backpay shall be with interest at the rate of 6 percent per annum and shall be computed in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co, 138 NLRB 716 (1962). [Recommended Order omitted from publication.]