Fitzsimons Mfg. Co.

FITZSIMONS MANUFACTURING COMPANY Fitzsimons Manufacturing Company, West Branch Tube Division and International Union, United Automobile, Aerospace And Agricultural Imple- ment Workers of America, UAW, Local 1874. Case 7-CA-15846 August 21, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge duly filed on December 6, 1978, by International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW, Local 1874, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, on January 15, 1979, issued and served on the parties a complaint and notice of hearing. In substance, the complaint alleges that, beginning in or about late June 1978 and continuing to date, Fitzsimons Manufacturing Company, West Branch Tube Division, herein called Respondent, has vio- lated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to meet with Paul Mastos, the Union's duly designated ser- vicing representative, for the purpose of resolving grievances under the collective-bargaining agree- ment between Respondent and the Union. Subse- quently, Respondent filed a timely answer, admit- ting in part, and denying in part, the allegations in the complaint. Thereafter, on June 20, 1979, Respondent, the Union, and counsel for the General Counsel en- tered into a stipulation of facts and a motion to transfer the proceedings to the Board wherein they agreed that the charge, complaint, answer to com- plaint, and the stipulations of facts constitute the entire record herein, and that no oral testimony is necessary or desired by any of the parties. The par- ties further stipulated that they waive a hearing before an administrative law judge, the making of findings of fact and conclusions of law by an ad- ministrative law judge, and the issuance of an ad- ministrative law judge's decision, and that they desire to submit this case for findings of facts, con- clusions of law, and order directly to the Board. The parties expressly limited the stipulation of facts for the purpose of facilitating the processing of the instant proceeding and agreed that nothing set forth in the stipulation would constitute an admis- sion or concession for the purposes of any other proceeding. In addition, the parties reserved the right to object to the materiality, relevance, or competency of any of the facts stated in the stipu- lation. 251 NLRB No. 53 On July 18, 1979, the Board issued an order ap- proving the stipulation and transferring the pro- ceeding to the Board and advising the parties to file briefs with the Board in Washington, D.C. Thereafter, Respondent, the Union. and the Gener-- al Counsel filed 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. Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONI)DNT Respondent, a Michigan corporation, is engaged in the manufacture, sale, and distribution of metal tubes and related products. Respondent's plant lo- cated at West Branch, Michigan, is the only facility involved in this proceeding. During the year ending December 31, 1978, a representative period. in the course and conduct of its business oper- ations, Respondent purchased and caused to be de- livered to its West Branch plant goods and materi- als valued in excess of $50,000 directly from points located outside the State of Michigan. During this same period, Respondent manufactured, sold, and distributed at its West Branch facility products valued in excess of $50,000, which were shipped from said plant directly to points outside the State of Michigan. The complaint alleges, the answer admits, and we find that Respondent is, and has been at all. times material herein, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and that it will effectuate the poli- cies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOITI) The complaint alleges, the answer admits, and we find that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. A. The Stipulated Facts On November 23, 1973, the Union was certified as the exclusive bargaining representative of Re- spondent's production and maintenance employ- ees.' Since that time, Respondent and the Union I lit ipprrlit unIT Is A11 prouct ion ll l d Illillt llll l Ctllpo t' s m Tlln1g I e llhlp .,1d reccliXlg cnplIo ec, .illlnd fil Clor I:111r' c[t.pl cd h\\t-I JrIli il TIuhe )ix I sion .a1 i[cIr plI C t h r lSlTl',, I nI ,1 .'Ac t lir.tL h1 ( t 'l/!tltr I 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have entered into successive collective-bargaining agreements encompassing the production and main- tenance employees. The most recent agreement is dated July 14, 1977, and is effective until July 14, 1980. Section 9.07 of the current agreement states that the Shop Committee shall be permitted to have the assistance of an International servicing representative of the Union at the fifth step of the contractual grievance procedure and that the Inter- national servicing representative shall be permitted to enter Respondent's plant in order to resolve grievances. Since the inception of the first contract between Respondent and the Union, Paul Mastos has been the designated International servicing rep- resentative of the Union at the West Branch plant. Frank Vogel, from that time until November 1978, was Respondent's corporate personnel director at the West Branch plant. During the course of a strike which followed ex- piration of the parties' contract and preceded ex- ecution of the current contract, Mastos and various of Respondent's corporate personnel held a number of meetings in the absence of the bargaining com- mittee. Following the end of the strike, Respondent suspended the members of the bargaining commit- tee in connection with a petition requesting the ter- mination of a supervisor. Charges were filed with the Board alleging that the suspensions violated the Act. On October 31, 1977, Mastos met with Corpo- rate Personnel Director Vogel, Respondent's Plant Manager Phil Foltz, Respondent's Attorney Charles Keller, and Federal and state mediators. The bargaining committee was not present at the meeting, at which it was agreed that the issue of the suspensions would be resolved by giving full backpay to all members of the committee except the chairman of the committee, who would receive only partial backpay. The substance of this agree- ment was summarized in a handwritten memoran- dum of understanding dated October 31, 1977, and signed by Mastos and Foltz. A subsequent typed document, dated November 8, 1977, and signed by Foltz and Union President Joe Lademan, contained the same language as the October 31 handwritten agreement. Respondent and the Union met on May 18, 1978,2 to discuss grievances at a fifth-step meeting. Mastos used a tape recorder to record most of the meeting. After a break in the meeting, Foltz in- formed Mastos that he had been given legal advice not to meet and discuss grievances while a tape re- corder was being used. On June I and 9, Foltz and Michigan butl xcluding office clerical employees, salaried plant clerical cmployees, echnical employees, professional employees, confidential emploeecs, linekeepers. watchmen, guards and supervi- sors as defined in the Act Unless otherwise indicated, all dales herein refer to 1978. Vogel again met with Mastos and the bargaining committee in fifth-step meetings. Both of these ses- sions ended when the parties disagreed over the presence and use of a tape recorder. Prior to the June 9 meeting, Mastos called Foltz and com- plained that Foltz had referred to the October 31, 1977, memorandum of understanding, rather than the November 8, 1977, typewritten document, in a written answer to a grievance. Foltz was made aware that Mastos had not informed the entire bar- gaining committee of the details of the October 31 meeting concerning backpay and that Mastos re- garded that meeting as confidential. On June 21, Mastos requested a further fifth-step grievance meeting. On June 22, Foltz responded, requesting a list of the grievances to be discussed as the Union had provided in the past. On June 28, Respondent filed charges against the Union with the Board, alleging that the Union was refusing to meet and bargain in good faith on the pending grievances in violation of the Act. A fifth-step grievance meeting was held on June 29. Foltz, Vogel, and Brenner appeared for Re- spondent, and Mastos and the bargaining commit- tee for the Union. A discussion ensued between Vogel and Mastos concerning whether the Union was obligated to provide a list of grievances and whether Mastos had his tape recorder and/or in- tended to use it. Vogel then made a reference to the October 31, 1977, meeting. Mastos stopped the meeting, had the bargaining committee excused, and stated that the October 31 meeting was confi- dential. Vogel denied that it was confidential. Mastos stated that he had called the state mediator who had indicated that he also felt the meeting had been confidential. Mastos then said that he would punch Vogel in the mouth and knock him on his ass if the subject was brought up again. The bargaining committee then reentered the room, and Vogel said, "I have one comment to make about ... " Mastos interrupted Vogel, reached across the desk, grabbed Vogel by his tie, and pulled upwards. Vogel came to his feet. Foltz then separated Mastos and Vogel, and Mastos chal- lenged Vogel to come outside to the parking lot. The challenge was declined, and the meeting broke up. Mastos had not engaged in any other physical altercation with any of Respondent's management prior to this incident. By telegram dated the same day, June 29, Re- spondent requested that the Union remove Mastos as servicing representative at Respondent's West Branch plant, 3 and, on July 19, Respondent amend- :' he telegram stated, "Your agent,. Mr Paul Mastos, engaged in rtio- lent conduct owards the company'S personnel director. Frank Vogel. at Continued FITZSIMONS MANUFACTURING C()MPANY 3 77 ed the charges it had filed with the Board on June 28 to include the incidents of June 29 as further violations of the Act. Thereafter, the Regional Di- rector for Region 7 approved a precomplaint uni- lateral settlement of those charges on August 17. Respondent's appeal of the Regional Director's ap- proval of the unilateral settlement was denied by the General Counsel on September 12. At sometime following the June 29 incident, Vogel was treated at a hospital for alleged back pains. Vogel filed a lawsuit against Mastos and the Union alleging assault and battery, negligence, and personal injuries. Mastos countersued Vogel for in- tentional and negligent infliction of emotional dis- tress and for breach of an oral contract of confi- dentiality. In September, Respondent advised the Union that, for the reasons stated in the June 29 telegram, it would not meet with the Union if Mastos was present as a designated representative. On Septem- ber 12, the Union's attorney, Charles Looman, wrote to Respondent's attorney, stating that, unless he heard from Respondent within 7 days of the letter, he would assume that Respondent's refusal to meet with Mastos extended to both inplant and out-of-plant grievance meetings. The Union did not receive an answer to Looman's letter. From Sep- tember through November, the parties' attorneys held discussions seeking to resolve the matter. Looman offered assurances that Mastos would not engage in such activity again and that severe action would be taken by Mastos' superior, Owen Bieber, the UAW's director of Region l-D, if any further incidents occurred. Respondent continued to refuse to meet with Mastos. At the end of November, Looman suggested that the issue be submitted to arbitration. Respondent refused. Also in November, Vogel left Respondent's employ for other employ- ment. As noted above, the charge in the instant case was filed on December 6. On December 18, Respondent's attorney com- plained to Region 7 that the Union had failed to comply with the notice-posting requirement of the August 17 settlement agreement which settled Re- spondent's June 28 charges with respect to the Union's good-faith bargaining and Respondent's July 19 charges with respect to Mastos' conduct at the June 29 grievance meeting. 4 Respondent's at- a meeting held this morning in the .VWest Branch Tube Division plant I personally request that you remove Mr Mastos as sericing representa- tive for the cmplosee.s at W'est Branch Tube Divisio n" The telegram was signed hby Respondent's presidentil 4 The settlement agreement required that the liion post at arlous places. including Respondent's plant. a notice which stated. intr alia, that the Union would not refluse to bargain collectlsels ith Rspotndenl h insisting upon the use of tape recorders a grie alciie s, iOils or general negotiatiolns, hy engaginig in conduct disruptiie of griesalice sessiotls or general ngotiatilons, or by aln ther improper conduct The Union had. torney also requested that the settlement agreement be set aside. On May 5, 1979, in accordance with Region 7's directive, the Union posted the required notice on its bulletin board at Respondent's plant and reposted the notice at its meeting hall and its subregional office. Respondent continues to refuse to meet with Mastos as the Union's representative and asserts that it has no legal obligation to do so, for the rea- sons stated in its June 29 telegram to the Union. The Union still wants Mastos as its representative for servicing employees at Respondent's West Branch plant. Since on or about January 1, 1979, in order to facilitate the processing of the backlog of grievances that resulted from the incidents referred to here and pending the outcome of this case, Owen Bieber has temporarily assigned his assistant to act as the servicing representative at Respon- dent's plant. Since on or about January 1, 1979, Re- spondent and the Union have met on more than one occasion and have resolved grievances. B. Contentions of the Parties The General Counsel contends that the stipulat- ed record establishes a prima facie violation of Sec- tion 8(a)(5) and (1) of the Act since Respondent has refused and continues to refuse to meet with the duly designated representatives of its employ- ees. Citing, inter alia, KDEN Broadcasting Co., 225 NLRB 25 (1976), General Electric Company v. N.L.R.B., 412 F.2d 512 (2d Cir. 1969), and Deeco. Inc., 127 NLRB 666 (1960), the General Counsel asserts that, in order to overcome the prima facie violation, Respondent must show that Mastos' pres- ence at the bargaining table would make bargaining and resolution of grievances impossible. The Gen- eral Counsel contends that the stipulated facts do not contain persuasive evidence that Mastos' pres- ence would make bargaining impossible and do not justify Respondent's refusal to meet with Mastos. With respect to the facts, the General Counsel argues that Mastos' actions on June 29 were pro- voked by Vogel's reference to the October 31, 1977, meeting, which Mastos regarded as confiden- tial, and by Mastos' apparent belief that Vogel was again going to refer to the October 1977 meeting after the bargaining committee returned to the room. The General Counsel further contends that Respondent is not justified in refusing to meet with Mastos because Mostos did not strike or physically inl ()cthber. posted the required rlotice it ls lt'etlilg hall and its ,lhc'- gional office. hut had lot posted the It(Itce o the unollo bulleti hboaird it Resptndent's plantll In Nocmbehr. the L ll n poted l Responlltlllt plaint c pies t the settllml-t aigrcenitIi. .. t tilt 11 Ilitnlisil1l(l IltiC circled, nd copies f Rcspoidel'ii s i . plil l It tL RCg o1 ( [I)r ctlis ip- prosal of te s.ttlel enit .igremnctit .nild the (ii tu.r;al (Itli1lsc iLal l the appeal 37X I)[ CISI()NS OF NATIONAL I.ABOR RELATIONS BOARD touch Vogel's person; there has been no determina- tion as to what, if any, physical injury Vogel suf- fered; Mastos was never involved in any other physical altercation with any representative of Re- spondent; Vogel left Respondent's employ in early November; and the Union's attorney gave Respon- dent substantial assurances that there would not be a repetition of the June 29 incident. In addition, the General Counsel asserts that the unilateral precom- plaint settlement approved by the Regional Direc- tor for Region 7 on August 17 resolved the charges which Respondent had filed against the Union with respect to the June 29 incident and, thereby, elimi- nated the June 29 incident as a basis for a refusal to bargain. The Union contends that the circumstances of this case do not bring it within the exceptions to the general rule that employees may choose whom- ever they desire to represent them in formal negoti- ations. In support of this contention, the Union cites, inter alia, KDEN Broadcasting, supra; J. C. Penney Company, Inc., 205 NLRB 1043 (1973), and Kay Provision Company, 203 NLRB 707 (1973). The Union argues that Vogel openly challenged Mastos on a subject Vdgel knew Mastos was keenly sensi- tive about; that the June 29 incident was isolated and involved only heated words and minor phys- ical contact; and that whatever hostility existed be- tween Mastos and Vogel as a result of the incident will no longer affect labor-management relations between Respondent and the Union since Vogel has left Respondent's employ. In its brief, the Union emphasizes that it does not condone Mastos' conduct on June 29, and that it has attempted in good faith to ameliorate the situa- tion by entering into the August 17 settlement con- taining formal assurances that Mastos' conduct will not be repeated, and by giving Respondent further personal assurances that Mastos will be dealt with harshly if such an incident occurs again. Citing Cascade Corporation, 192 NLRB 533 (1971), and Union Nacional de Trabajadores and its agent Arturo Grant (The Carborundum Company of Puerto Rico), 219 NLRB 862 (1975), the Union argues that be- cause of these assurances, and in view of the fact that the Union has conducted itself consistent with the assurances, the Board should find that Respon- dent is not justified in continuing to refuse to meet with Mastos. The Union further asserts that Respondent's re- fusal to meet with Mastos and Respondent's de- fense to the instant 8(a)(5) allegations constitute a collateral attack on the Regional Director's ap- proval of the unilateral settlement agreement and his corresponding failure to issue a complaint and/ or institute formal settlement proceedings against the Union. In this regard, the Union asserts that Respondent is estopped from raising, as a defense to its refusal to meet with Mastos, conduct in- volved in the settlement agreement, which includ- ed assurances that Mastos' conduct would not occur again. Respondent argues that the complaint must be dismissed in its entirety. Although acknowledging the general rule that both unions and employers are vested with the right to select their own represen- tatives for collective bargaining, Respondent con- tends that under such cases as General Electric Co. v. N.L.R.B., 388 F.2d 213 (6th Cir. 1968), 5 N.L.R.B. v. Deena Artwave, Inc., 198 F.2d 645 (6th Cir. 1952),6 and Kentucky Utilities Company, 76 NLRB 845, enfd. 182 F.2d 810 (6th Cir. 1950), an employer has a right to refuse to bargain with a specific union representative under unusual circum- stances such as those here. Respondent asserts that it acted properly when, on June 29, it sent the tele- gram to the Union requesting that Mastos be re- moved as servicing representative at Respondent's plant, because Mastos had not only verbally ex- pressed but had also physically exhibited hostility toward one of Respondent's representatives in the presence of the union bargaining committee. The effect of Mastos' conduct has not been alleviated, Respondent contends, and Mastos' presence at the bargaining table would create a clear and present danger to the overall collective-bargaining process. Respondent further argues that there is no con- tention or evidence that Respondent harbors any animus toward the Union and that the evidence shows, to the contrary, that Respondent is current- ly processing and resolving grievances with a qualified union representative whose presence does not disrupt the grievance machinery. Finally, Re- spondent argues that the ambiguous "assurances" given Respondent by the Union are inadequate. Respondent contends the Union's personal assur- ances that "severe action" will be taken by Mastos' superior if his conduct recurs are not a "firm and enforceable commitment" unlike the assurances made in Cascade Corporation, supra. Respondent notes there is no assurance that Mastos will be re- moved from his position if he again engages in such conduct, and that any disciplinary action is left solely to the Union's discretion. The provisions in the informal, unilateral settlement agreement, Respondent contends, are ineffective as assurances because the settlement agreement contains a nonad- mission clause which was highlighted to employees D Ien ying nforcernenl I of (;i',rral El, (ric Co'rnpar'y, I) N L.RB 1 ) (196) " tEnforcing as mdificd )ctiLa .-lwrr, Incorporutld. 8h N.RBI 732, Supplmceial DecNioln 95 NI R 9 (1951) FIITZSIMONS MANUFACTURING COMPANY when the settlement agreement was posted at Re- spondent's plant with the nonadmission clause cir- cled. Respondent further contends that the provi- sions in the settlement agreement are ineffective as assurances because they are specific only as to the use of tape recorders, but are otherwise general in nature. Finally, Respondent argues that, even if the assurances are held to be effective, they were not made until September, and therefore do not render unlawful Respondent's refusal to meet with Mastos prior to that time. C. Discussion and Conclusions We agree with Respondent that, in the circum- stances here, it did not violate Section 8(a)(5) and (1) of the Act by refusing to meet and bargain with Mastos for the purpose of resolving grievances under the collective-bargaining agreement between Respondent and the Union. We do so for the fol- lowing reasons. It is well established that each party to a collec- tive-bargaining relationship has both the right to select its representative for bargaining and negotia- tions and the duty to deal with the chosen repre- sentative of the other party. However, where the presence of a particular representative in negotia- tions makes collective bargaining impossible or futile, a party's right to choose its representative is limited, and the other party is relieved of its duty to deal with that particular representative. The test, as stated in KDEN Broadcasting, supra, is whether there is "persuasive evidence that the presence of the particular individual would create ill will and make good-faith bargaining impossible."7 In our view, Mastos' conduct was sufficiently egregious to make bargaining impossible under the above standard. Thus, the stipulated facts clearly show that Mastos physically assaulted Vogel, Re- spondent's corporate personnel director. Further, we find that Mastos' conduct was unprovoked. Thus, although Vogel and Mastos at the June 29 grievance session had engaged in a discussion con- cerning the October 1977 meeting in which it became clear that they disagreed about its possible confidential nature, Vogel had not announced an intention to discuss the matter further once the bar- gaining committee reentered the room. When Vogel began speaking, Mastos did not wait to learn the subject of Vogel's remarks, but physically as- saulted him as soon as he began. Mastos followed up his assault with an invitation to step outside to continue the altercation. In our view, nothing in the prior conversation justified Mastos in using physical force to prevent Vogel from speaking or, thereafter, in seeking a further confrontation out- '22 NI H t. IS side. Further, the disruptive effect of Mastos' con- duct on bargaining was aggravated by the fact that it took place in the presence of the employee bar- gaining committee, whose members looked to Mastos for leadership, and Respondent's high man- agement officials. Such conduct, which itself was directed at one of Respondent's higher corporate officials, weakened the fabric of the bargaining re- lationship and engendered such ill will as to legally entitle Respondent to refuse to meet with Mastos. Additionally, we note that Respondent. in re- sponse to Mastos' conduct, took reasonable steps to prevent a recurrence of this disruptive behavior. Thus, Respondent did not engage in a general re- fusal to bargain with the Union, but rather declined to meet only with the particular offending repre- sentative. Indeed, Respondent has met and bar- gained with other union representatives designated to act in place of Mastos in the interim. Accordingly, in view of the circumstances here, we conclude that Respondent did not violate Sec- tion 8(a)(5) and (1) of the Act when it refused to meet and bargain with Mastos following his June 29 misconduct. Contrary to our dissenting colleague, we do not find that a different conclusion is warranted here because of the Union's later assurances against re- currence of Mastos' misconduct, the fact that Mastos previously had not assaulted Respondent's officials, or Vogel's later departure from Respon- dent's employ. With regard to the Union's assurances, we note that those assurances took two forms. First. in mid- August, the Union signed an informal settlement agreement. Other than that agreement, the Union took no steps to disavow Mastos' actions between June 29, when Mastos' conduct occurred, and Sep- tember. Thereafter, the Union assured Respondent that "severe action" would be taken against Mastos if his violent conduct recurred. Assuming, ar- guendo, that there can be adequate assurances against conduct such as that engaged in by Mastos, we find that neither the informal settlement agree- ment nor the Union's assurances are sufficient to dissipate the effect of Mastos' conduct. In this regard, we note that the settlement agreement. which contained a nonadmissions clause, did not refer specifically to Mastos' violent conduct. Fur- ther, as noted by Respondent, the Union's other as- surances were ambiguous, gave no specific assur- ance that Mastos would be removed from his posi- tion if he again engaged in violent conduct, and provided Respondent with no avenue by which to seek enforcement of the Union's assurances. Similarly, Vogel's departure from Respondent's employ does not alter our conclusion that Respon- , 70 380 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD dent lawfully could refuse to meet with Mastos. Thus, Mastos' conduct was not prompted by per- sonal animosity towards Vogel. Rather, Mastos re- sponded as he did because he believed that Vogel would refer to matters previously resolved through collective bargaining. In these circumstances, Re- spondent could reasonably fear that similar attacks might occur if other of Respondent's officials men- tioned the October 1977 meeting or any other sub- ject of collective bargaining as to which Mastos might be or become sensitive. Nor are we able to agree with our dissenting col- league that a different result is required here in view of the fact that Mastos previously had not as- sualted and battered Respondent's officials. While a pattern of assaults also may justify a refusal to meet with a particular representative, 8 that is not the only manner in which a party may engender such ill will that good-faith bargaining becomes impossi- ble. The nature of the attack involved here- sudden, unprovoked, and in the presence of both management and union officials-is a sufficient foundation for concluding that the presence of Mastos in future bargaining sessions would create such an atmosphere as to render good-faith bar- gaining impossible. 9 In view of our findings herein, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER TRUESDALE, dissenting: Unlike my colleagues, I do not find that Mastos' isolated outburst justified Respondent's refusal to meet with him as collective-bargaining representa- tive for Respondent's employees. Further, I am unable to conclude that Mastos' presence at the bargaining table would create such ill will as to make good-faith bargaining between Respondent and the Union impossible. Accordingly, I would find that Respondent has violated Section 8(a)(5) and (1) of the Act. The record shows that Mastos had been the Union's International servicing representative at Respondent's West Branch plant since the first col- lective-bargaining agreement between Respondent and the Union, which followed the Union's certifi- Scce, c.g, Iftuonl .\'J(iClonal d Irauhajadore , pra ! A. noted ahoe. tihe Uilnll asserts Ihal Rclpolidcll niay not rely til Mast,' ondlic' is .1 deferse to the illnsalln refutsail-to-bargain charge be- caulse such ul s wonld conrlsitute a collalral attack on the Regional )Di- rector's apprioal iI the IllI;ltcral sellcinlent greemcnt and the GCielral Couisel's denial 1 Respoinden s ', appeal Front the Regional I)irector's action 'e fiind tl ii crit ii this crllerltioln cation in 1973. Prior to June 29, Mastos had not engaged in any physical altercations with any of Respondent's management personnel, and the record indicates that several labor-management problems, including the strike in 1977 and the sus- pension of the bargaining committee members which followed the strike, had been resolved through negotiations between Mastos and Respon- dent. A review of the incident on June 29 indicates that Mastos' conduct resulted from momentary anger at the possibility that Vogel, Respondent's corporate personnel director, was again going to raise the subject of the October 1977 grievance meeting, a subject about which Mastos was particu- larly sensitive. Indeed, Mastos' sensitivity about this subject was well known, as evidenced by his remarks to Vogel prior to the bargaining commit- tee's return to the negotiation room and by his ear- lier telephone conversation with Plant Manager Foltz, in which he complained about Foltz' refer- ence, in response to a grievance, to the October meeting. Furthermore, from September, when Respondent advised the Union that it would not meet with the Union if Mastos was present as designated repre- sentative, through November the Union's attorney met with Respondent's attorney and attempted to resolve the matter. During these meetings, the Union's attorney offered assurances that severe action would be taken by Mastos' superior if any further incidents occurred. Finally, it is clear that whatever hostility existed between Mastos and Vogel as a result of the June 29 incident ceased to affect labor-management relations between Mastos and Respondent when Vogel left Respondent's employ in November. In view of the foregoing facts, I find that Re- spondent was not justified in refusing to meet with Mastos, as the designated representative of Respon- dent's employees, for the purposes of resolving grievances under the collective-bargaining agree- ment between Respondent and the Union.10 In so doing, I emphasize that I do not condone Mastos' conduct on June 29. However, it must also be stressed that the Board consistently has expressed in the strongest terms its concern in protecting the fundamental rights of employees to select their rep- resentatives for collective-bargaining purposes. In furtherance of this concern, the Board has imposed "' AlthoIgh the record rnflcts that Respondent, h it Jn 2 Icle- gram to the Unionr. requested that the lnlion rcmoe Masho, as its seric- ing representative for the West BIrallch plant. the record does IIot rellect is relulal in hargainl swilh Mls IIIntil Septemnher Accordlngl. I "sould finld Ia RCspondrll lt's refucsal to nltl aIlld hargain ,ith Masot corm- irlriced irl Septenbher FITZSIMONS MANUFACTURING COMPANY 381 a high standard on a party which refuses to deal with the selected representative of the other party to a collective-bargaining relationship. My col- leagues have accurately stated that test-that good- faith bargaining must be impossible. Unlike my col- leagues, however, I am unable to conclude that Re- spondent has met this standard in the circumstances of the case. In this regard, I particularly note the history of harmonious collective bargaining for several years prior to the June 29 incident, the ab- sence of any evidence that Mastos had a proclivity to engage in such conduct, the Union's personal as- surances coupled with the assurances contained in the settlement agreement, and the fact that Vogel has left Respondent's employ. 1 In these circum- '' Contrary to m colleagues. I do not find it appropriate to assess each of these factors i olalioll For example. in ealuating the sufficcin- cy of the Union's assurances here, I believe one must hear in mind that the parties' relationship appears to have been a harmonious one for some stances, I cannot find that Respondent has demon- strated by persuasive evidence that Mastos' pres- ence at the bargaining table would be such a dis- ruptive force as to make any attempt at good-faith bargaining impossible, or that Mastos' conduct cre- ated such underlying hostility as to warrant reliev- ing Respondent of its duty to deal with the Union's chosen representative. Accordingly, I would find unlawful Respondent's refusal to meet and bargain with Mastos. 12 Sears and that he Union Vi.L x11td not likely i pirdic that rlatlilniship \ lightly promising "scxerc acltlon" l the eenl thilt at,' ilcoduLct r- curred Further. it seems clear to me that 'Vogel's departure fromn Rc- spoiNldcIt's emplo) must be Ilev cd ll ight of the absence f antl suggCs- tin here that Masto, had tengaged in similar condlctl tlotx ards LanI other tif Respondent's representatlcs during his prexclous 5 'elar, as thi U[nion's International scrsclling repreeitratlxe 12 Respondernl did nolt pcCtlf'all irltcld that It iisa, relieCed of IIt duty to meet and bargalltn a ith the tini', choserl rpresrlaltix hc beause, of Mastos' comments during the Jlc 2 mtleeltig In airl) tcr11t. I tlJ notl ind thatl such corlmlenls relivet Resporidlllt of it, bargaitnig Ohlga- tiln See. e g , A Proiitort Cmtrxp.tlr. 20t3 Nl RB 707 (1)71)