Globe Metallurgical, Inc.

340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Globe Metallurgical, Inc. and United Steelworkers ORDER of America, AFL-CIO-CLC. Case 9-CA-24163 July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On December 29, 1987, Administrative Law Judge Thomas A. Ricci issued the attached deci- sion. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, supporting brief, and answering brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. i The Charging Party has excepted to some of the judge 's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings Additionally, we are satisfied that the Charging Party's contention that the judge was biased is without merit Thus , although the judge, albeit improvidently, stated at sec 111,5 , par. 2 of his decision, that "Sdvus' pur- pose was to lie at the hearing" and that "counsel for the [Charging Party] refused to answer the question on the record ," and further stated at sec. III, par. 7, that the Region "concluded that Weaver was not telling the truth in his signed charge," none of these isolated statements nor any other record evidence demonstrates judicial bias or the failure of any party to receive a full and fair hearing S The Charging Party excepts to the judge 's finding in sec III, 9, par 3, that its representative Rauch "had his daughter write up [the October 7] letter, and that she relied upon notes he had written " The Charging Party claims that its district director , Weaver, rather than Rauch, au- thored this employee letter Although we agree with the Charging Party that Weaver testified that he wrote the letter , and that Rauch disclaimed authorship, we find sufficient evidence to support the judge's finding that Rauch was actually responsible for the letter insofar as it stated that the Respondent intended to implement its final offer. Thus, Weaver testified that his negotiating notes reflect important discussions between the par- ties, and that he considered the Respondent 's announced intent to imple- ment its final offer important However, Weaver's October 7 bargaining notes make no mention of this statement . Conversely, Rauch's negotiating notes for the final bargaining session state that the Respondent intended to put its final offer into effect As Weaver instructed Rauch to prepare the employee letter from Weaver's notes, Rauch prepared the letter, and Rauch's notes were affixed to Weaver's affidavit and the employee letter at the hearing, the evidence is sufficient to conclude that Rauch inserted this statement into the employee letter In any event, a contrary conclu- sion would not affect our determination of the merits of the complaint In sec. III, par. 8, the judge found that the detailed record testimony of contract negotiations was irrelevant to these proceedings absent any alle- gation that the Respondent bargained in bad faith or refused to bargain with the Union . We disagree. The substance of the bargaining sessions is relevant to the issue of bargaining impasse, a complaint allegation in this case However, because we agree with the judge that the Respondent did not threaten to implement its final offer and, further, that the strike was economic, we need not reach the impasse issue. We expressly disavow the judge's statement in see Ill, par. 7, that "In other words, [the Region ] concluded that Weaver was not telling the truth in his signed charge " Neither we nor the judge knows the precise The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. basis for the Region's dismissal of Weaver's 8(a)(5) charge that the Re- spondent unlawfully implemented its final offer. Finally, we correct the following error of the judge (1) in sec. Ill. par. 3. the statement "Paul Gorman . . recalled that Eugene Weaver . asked him, twice . whether the Company intended to implement its last offer of settlement," is corrected to reflect Gorman*% testimony that Weaver once asked him this question; (2) in sec Ill , par. 4. the state- ment "But the Company at the same time also told the Union agents that it was willing to continue the collective bargaining process," is corrected to reflect that the Union told the Respondent that it was willing to con- tinue negotiations if the contract were extended : (3) in sec. Ill, 5. par 2. the statement "counsel for the Respondent" is corrected to state "counsel for the Charging Party." These corrections do not affect the outcome of this case. David Ness, Esq., for the General Counsel. H. Victor Hansen, Esq. and Lawrence S. McGoldrick, Esq. (Fisher & Phillips), of Atlanta, Georgia, for the Re- spondent. Steward Jaffy, Esq., of Columbus, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge . A hear- ing in this proceeding was held at Marietta, Ohio, on 30 September and 1 October 1987, on complaint of the Gen- eral Counsel against Globe Metallurgical , Inc. (Respond- ent). The complaint issued on 9 June 1987, based on a charge filed on 1 April 1987 by United Steelworkers of America, AFL-CIO-CLC (the Charging Party). The issue presented is whether the Respondent violated Sec- tion 8(a)(5) of the Act . Briefs were filed by all parties. On the entire record and from my observation of the witnesses, I make the following' FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Globe Metallurgical, Inc., a Delaware corporation, is engaged in the production and sale of ferroalloys at Bev- erly, Ohio. During the calendar year preceding 31 De- cember 1986, in the course of its business operations, it sold and shipped from its Beverly, Ohio facility prod- ucts, goods, and materials valued in excess of $50 ,000 di- rectly to points outside the State of Ohio. I find that the Respondent is an employer within the meaning of the Act. ' Counsel for the Charging Party filed a posthearing motion to reopen the record for the purpose of offering into evidence two letters ex- changed between the Respondent and the Union in March 1987 The motion is denied 290 NLRB No. 44 GLOBE METALLURGICAL 341 11. THE LABOR ORGANIZATION INVOLVED I find that United Steelworkers of America, AFL- CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE This entire case turns on a very simple , very limited, and very plain question of fact. Did a spokesman for the Respondent, at the end of a 13-day long, fruitless collec- tive-bargaining session, utter the word "yep," when asked by the principal spokesman for the Union whether the Respondent intended to implement its last offer of contract renewal? The effective contract expired several hours after that word is alleged to have been uttered, and the Union called a strike of the 150 to 200 employ- ees in the bargaining unit at the very moment the con- tract expired-at exactly 12:01 a.m . on 8 October 1986. For some months thereafter the Respondent continued its reduced operations with its old salaried and manageri- al employees doing the reduced work of the striking em- ployees. And then, 7 or 8 months later, in 1987, it started to hire replacements for the strikers, about 50 all told. Throughout that entire period the Respondent did not change any of the conditions of employment of any of its employees in the bargaining unit as set out in the con- tract that had expired in October 1986. Indeed, in the summer of 1987 it asked the Union to send some of the strikers back to work . The Union refused to permit that, and the strike went on. The sole remedy asked by the General Counsel, if the complaint prevails, is a finding now-that is, at the time of the hearing-exactly 1 year after the strike started, that it was an unfair labor practice strike as distinguished from an economic strike. Paul Gorman, who led the Respondent's group throughout the long negotiation sessions through August, September, and October, recalled that Eugene Weaver, the district director of the United Steelworkers, asked him, twice, towards the end of the last bargaining ses- sion, on 7 October, whether the Company intended to implement its last offer of settlement. Gorman said at the hearing that he was uncertain at that moment as to what the Company would do next, given his knowledge that the Union was on the verge of calling a strike. But he did directly deny telling Weaver that the Company in- tended to make any unilateral changes or implement a new contract. The clearest reality shown on this record is that the reason the Union called the strike was because the con- tract expired and the Company refused to extend it fur- ther. Simply put, its decision was not to have its people work when there was not a binding contract in effect. At the last critical meeting on 7 October the Union repeated its request that the Company agree to extend the con- tract on a day-to-day basis; the Company refused. But the Company at the same time also told the union agents that it was willing to continue the collective-bargaining process. A better name for this kind of strike is a no- contract no-work strike . In plain words, an economic strike. As it happens, I do not credit Weaver against Gorman. In the light of all the testimony I credit Gorman's denial of having said he would implement his last offer. But even were I to find that an agent of the Respondent made such a statement on 7 October, I would still have to find that that statement was not the cause of the strike that immediately followed . If the reason for the strike was simply that, why did the Union refuse to send its people back when the Company asked for them several months later, and when the Union well knew nothing at all had changed in the conditions of employment of any of the employees in the bargaining unit? Why did it wait 6 months before filing its charge with the Board, a charge that does not even allege what now constitutes the heart of the complaint? In his testimony at the hearing Weaver said a reason for not permitting his people to go back to work in the summer of 1987 was because he did not know what the Company was paying the production and maintenance employees, or what it would pay the returning strikers. During that same period Weaver was again negotiating with the Respondent , as the Company had invited it to do in May 1987. In fact there were at least half a dozen such meetings between June and the time of the hearing in October. For a union agent so engaged to say he did not know what an employer was paying its people great- ly impairs the witness' credibility. His assertion as a witness conforms with the charge in this case, which Weaver personally filed, where he wrote that the Company had unilaterally implemented its demands for concessions on 8 October 1986. The Re- gional Office investigated that charge , of course, and found there was no merit in it, that the Company had not unilaterally changed any of the conditions of em- ployment. In other words, that office concluded Weaver was not telling the truth in his signed charge . That is why the complaint is limited merely to the word "yep." Weaver's notes of the critical meeting of 7 October say nothing about implementation. When Weaver contradict- ed Gorman regarding the use of the word "yep," I do not credit Weaver. More than half of the 2-day hearing was taken up with Weaver's detailed recital of all the minutiae that were discussed during the 13 bargaining sessions that took place from August to October . He kept repeating pro- posals and counterproposals, arguments and counterargu- ments, without end. The General Counsel placed into evidence Weaver's notes made concurrently with the talking that went on; they total over 250 sheets of lengthy, finely written words. In turn the Respondent of- fered as exhibits the simultaneous notes made by one of the management representatives who attended all the meetings for that very purpose . They total over 220 pages. In addition there are copies of many written pro- posals offered back and forth throughout the period. There is no allegation of bad-faith bargaining by the Re- spondent. There is no allegation that the strike was caused by any refusal to bargain. Because of the objec- tive evidence showing beyond a doubt that this was an economic strike and not an unfair labor practice strike, I see no purpose in repeating in this decision all the irrele- 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vant data about what the parties said to one another throughout all those bargaining sessions. The following facts, clear on the record, suffice to dis- pose of the entire proceeding. Chronologically: 1. On 29 September 1986 the Union asked the Compa- ny to agree to extend the contract-due then to expire at 12:01 on 1 October-on a day-to-day basis. The Compa- ny refused. As an inducement to prevail on the Company to agree to that arrangement, the Union said it would-if the contract became binding only from day to day-not strike without giving the Company 2 days' notice in ad- vance. In that very offer is shown the Union's state of mind to strike the moment the contract expired.2 The parties did agree that day to extend the contract for 1 week, to 12:01 a.m., 8 October. 2. The parties met and discussed the issues again on 30 September and 2 October. At the 2 October meeting Weaver told the company agents he could not meet with them the next day because he had to meet with the em- ployees. The following is his testimony regarding what he told the Company that day. We had not had an opportunity to meet with the membership and we were telling the Company that on the 3rd we needed to meet with the membership the following day. . . . To get authorization from the membership giving the committee the authority to make a decision in future meetings whether as to a right to strike or a right to extend this contract, whichever was necessary. I can only read this statement of the Union's district director as an admission that the Union's position was that very day that there would either be a strike or an extension of the contract. It was a paraphrase of the old cliche: No contract, no work. 3. The next meeting took place on 6 October. This time Weaver had a letter with him when he arrived and handed it to Gorman. It again requested an extension of the contract on a day-to-day basis. It reads in part: If the Company accepts this proposal and the Union should later decide to strike, the Union will provide the Company with 48 hours notice of its intent to strike. We propose to use the 48-hour period for the purpose of meeting with Company representatives to assure that arrangements are in place for an or- derly and safe shutdown of the Company's facilities. The Company again refused. This was the Union, on 6 October, again making clear that absent an extension of the old contract a strike was already decided on. But Weaver's story is that the word "yep" did not come from Gorman until the next day. If strike action had al- ready been decided on, how could the word "yep"- even assuming it was uttered the next day-have had anything to do with this case? 2 This finding, which I make, is supported by a statement in the Gener- al Counsel's posthearing brief where he says "It is clear that the Union's strike was prompted by Respondent's refusal to further extend the 1983- 1986 contract." 4. At the stroke of midnight on 7 October the employ- ees walked off the job. Knowing this would happen the managers had the employees turn in their safety equip- ment before leaving. The very timing of the strike, of course, is the most convincing proof that the two facts were precisely related-contract expiration and strike. If the word "yep," allegedly uttered a few hours earlier, had really disturbed the Union into thinking about strike action, surely it would have waited a day or two to see if the Respondent really meant to change the employees' pay. 5. The Union's position in this entire picture is badly damaged by the testimony of David Silvus, a union com- mitteeman who attended all the bargaining sessions. The General Counsel called him only to testify that he heard Gorman answer "yep" to Weaver's insistent questioning about whether the Company intended to implement its last offer. Questioning was then taken over by counsel for the Union. The lawyer led Silvus into agreeing with him that the employees did not strike that night, but that they were ordered out of the plant by management, in short, locked out against their will: Q. And were those people permitted to work who were scheduled to work on the midnight shift? A. No. They weren't. The complaint says the employees engaged in a strike that night. Throughout Weaver's testimony he kept talk- ing about the Union's strike action. Asked was the pur- pose of his questioning to prove the Union did not strike and that the men were sent home against their will, counsel for the Respondent refused to answer the ques- tion on the record.3 Silvus' purpose was to lie at the hearing, and his testimony about the word "yep" makes even Weaver's testimony less credible. 6. The day after the strike started Carl McMannis, the Union's president, was interviewed by a reporter. He was quoted as follows in the local press of 9 October. The parties stipulated that he was correctly quoted. But McMannis said the Company's 11:30 p.m. shift did report to work. The workers left at mid- night because they had no contract under which to continue working. The Company's final offer came at 10: 15 a.m. Tuesday. It included a total reduction in wages and benefits of about $4.90 per hour as well as elimina- tion of some jobs to save another $1.43 cents per hour. Total cost savings to the Company would be $6.33 cents per hour. 3 Obviously, the Charging Party's lawyer is in disagreement with his client, the district director of the United Steelworkers In his brief he re- peats-in conflict with his client's testimony as well as with the General Counsel's complaint-that on the night of October 7, 1986, the Respond- ent "sent them [the employees] home and locked the gates." His position is not enhanced by the fact-also asserted in his brief-that somebody in the Ohio Bureau of Employment Services expressed the opinion that when a work stoppage is a result of an employer's "refusal to extend the expired agreement," against a union's desire, the result is a lockout The decision in this case will rest , as it must , on the credible testimony of the witnesses. GLOBE METALLURGICAL The Union's negotiating team didn 't accept that offer, McMannis said . When the Company refused to grant another extension of the old contract so that negotiations could continue , union workers had no choice but to go home as of midnight Tuesday. If this statement does not call for the dismissal of the complaint in this case, I do not speak English. 7. Picketing went on for a year-from October 1986 to October 1987, when the hearing in this case took place. Not once did any picket sign mention unfair labor prac- tice as having provoked the strike. 8. In April 1987 the Company asked the Union to come in and attempt to reach an agreement so that the entire problem could be resolved . A number of meetings did take place; the parties talked six or seven times, but no agreement was reached . At the start of these bargain- ing sessions the Company asked the Union to send some of the strikers back, for there were some jobs to be filled. The Union refused to do that. On 29 April 1987, Union President McMannis was again correctly quoted in the local newspaper: "It would be my wish that they wouldn't go back because we have no contract," McMannis said. Again, the union president calls for dis- missal of the complaint. 9. Finally, on 30 May 1987 the Union held an outdoor mass rally of about 1000 members . Weaver was the master of ceremonies and the principal speaker. His total speech to the members was recorded and placed in evi- dence. After detailing the Company's demands for eco- nomic concessions, and after explaining the reasons for the Union's refusal to agree to lesser pay or to any agreement for reductions, one of the statements he made to all those people was that the strikers were "just simply conducting an economic strike." Weaver tried to talk away this clearest admission that alone defeats the complaint by saying , as a witness, that it was a poor choice of words, that although he said the strike was economic he did not really believe it, and that, anyway, all those people present at the rally did not know the difference between the two concepts. His at- tempted explanation only serves all the more to discredit him in this case. All this talk by Weaver also helps one to understand a letter the Union wrote to some of the strikers on the day 343 after the strike started back in October 1986. In that letter they were told, among other things, that the Com- pany "intended to implement their final offer at midnight October 7." The letter was offered in support of the tes- timony of Paul Rauch, a union representative, as further proof that Gorman had used the word "yep." Rauch tes- tified he had his daughter write that letter, and that she relied on notes he had written about the last meeting after it had ended. The note Rauch made to himself-also received in evi- dence-was prepared long after the meeting had ended, indeed after the strike had started at midnight . The note starts with the statement "locked out midnight October 7." This means he wrote the note on October 8, whereas the meeting be says he quotes from had ended at 10:30 a.m. the day before. Significantly, however, the notes written during the bargaining session by the union repre- sentative charged with that responsibility contain no ref- erence to implementation or intent to implement any- thing. This means, of course, that what Rauch wrote in his note, the day after the meeting-that Gorman had said he would implement the contract , as well as the letter he had written to the strikers , represent only a fig- ment of his imagination . The next phrase in his purport- ed notes of the meeting reads : "Company made final offer and intended to put it in effect." To me, this writ- ing was no more than the union officer's fabrication, as an afterthought, in support of the charge later filed ac- cusing the Respondent of having put its last offer in effect. If there is one thing a district director of this Union would put down in his notes of a bargaining ses- sion, it is the statement by a company of an intent to commit an unfair labor practice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER It is recommended that the complaint be dismissed. 4 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations . the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.