American Steel Building Co., Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1974

208 N.L.R.B. 900 (N.L.R.B. 1974)

900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Steel Building Company, Inc. and Shop-
men's Local Union No. 694 of the International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO. Case 23-CA-4334
February 4, 1974
DECISION AND ORDER
By MEMBERS FANNING, KFNNEDY, AND
PENEI.1.0
On June 21, 1973, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, American Steel
Building Company, Inc., Houston, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule 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 Drv Wall Products.
Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A. 3, 1951) We have carefully
examined the record and find no basis for reversing her findings
DECISION
STA1EMENT OF FHE CASE
JOSEPHINE H. KLEIN , Administrative Law Judge: Upon a
charge filed against American Steel Building Company,
Inc. (Respondent) by Shopmen 's Local Union 694 of the
International Association of Bridge , Structural and Orna-
mental Iron Workers, AFL-CIO (the Union) on May 5,
1972, a complaint was issued on December 15, 1972,1
alleging that since November 17, 1971, and continuing
thereafter, Respondent , in contravention of Section 8(a)(5)
and (1) of the Act,2 has refused to bargain in good faith
with the Union, which is the duly certified collective-
I The delay between the filing of the charge and the issuance of the
complaint is accounted for by the fact that the Regional Director originally
refused to issue a complaint, but his decision was reversed on the Lmon's
bargaining representative of the production and mainte-
nance employees at Respondent's plant in Houston, Texas.
Pursuant to due notice, a hearing on the complaint was
held before me in Houston, Texas, on February 20 through
24 and 26, 1973. All parties were afforded full opportunity
to he heard, to present oral and written evidence, and to
examine and cross-examine witnesses. The parties waived
oral argument and thereafter briefs were filed on behalf of
the General Counsel, the Charging Party, and the Respon-
dent.
Upon the entire record, observation of the witnesses and
consideration of the briefs, I make the following:
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
The complaint alleges, the answer admits, and I find
that:
A. Respondent, a Texas corporation, with its principal
office and place of business in Houston, Texas, is engaged
in the manufacture and distribution of prefabricated metal
buildings, overhead cranes, and industrial pallet racks.
During the past 12 months, a representative period,
Respondent, in the course and conduct of its business,
shipped from its Houston, Texas, plant goods, wares, and
merchandise valued in excess of $50,000 to locations
outside Texas. Respondent is now, and 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.
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Issues
After an election held pursuant to a stipulation of the
parties, the Union was certified on September 14, 1971, as
the collective-bargaining representative of Respondent's
production and maintenance employees. (23-RC-3657)
Pursuant to the Union's bargaining request, contract
negotiations commenced on November 3, 1971. Between
that date and September 12, 1972, inclusive, some 27
bargaining sessions were held, several of them, during the
latter part of the negotiations, being attended by Federal
mediators. No agreement was reached on a contract. On
September 18, 1972, a strike commenced. However, a
relatively small number of employees participated in the
strike. So far as appears, the strike is still in progress but
the plant is still in full operation.
To round out the general background, the following
additional facts should be noted. At an unspecified time in
1972, a petition was filed seeking to have the Union
decertified. This decertification petition, however, was
dismissed because of the pendency of unfair labor practice
charges. It also appears that an unfair labor practice charge
was filed concerning a disciplinary suspension imposed on
appeal to the Board.
2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U.S.C. Sec 151 et seq )
208 NLRB No. 141
AMERICAN STEEL BUILDING CO., INC. 901
employee Paul Stephen, a member of the Union's negotiat-
ing committee. It is not clear what disposition was made of
that charge. Neither of these actions is directly the subject
of the present proceeding.
The basic issue raised by the complaint is whether
Respondent engaged in mere surface bargaining, i.e., in the
words of the complaint, whether Respondent "negotiated
with the Union in had faith and with no intention of
entering into any final or binding collective-bargaining
agreement." As subsidiary to that overall issue, the
complaint alleges specifically that Respondent refused to
negotiate on the subject of checkoff of union dues,
withdrew agreements reached on individual contract
provisions, and attempted to bypass the Union to deal with
individual employees.
Respondent contends that it bargained in good faith and
was willing to continue to bargain in good faith, but the
Union's unreasonable recalcitrance and the "inept bar-
gaining ability" of its representative precluded meaningful
bargaining directed toward reaching agreement.
As relevant to the remedy sought by the General
Counsel, the complaint alleges, and the General Counsel
requests a finding, that the strike which commenced on
September 18, 1972, is an unfair labor practice strike. In
addition to its basic contention that it was not guilty of any
unfair labor practices, Respondent demes that the strike
was related to any union claim that Respondent had
committed unfair labor practices.
B. "Tentative" Agreements
At the first bargaining session, on November 3, 1971, the
Union was represented by Carlos Garcia, general organizer
of the Union's International.3 At the sixth meeting, on
December 27, 1971, Garcia was replaced by John L.
Grayson, district representative of the International Union.
Thereafter Garcia personally attended only a few meetings.
At the first session , the Company was represented by
Chapman Smith, Esquire, Respondent's attorney at that
time, and John Garland, Respondent's president. At this
first meeting the Union presented a printed form contract,4
with wage rates and other economic matters left blank. The
form contract is prescribed by the International Union and
used as the basis of negotiation of contracts for all locals.
According to Garcia, all contracts entered into on behalf
of any local of the International are basically the national
form with modifications, generally pertaining to monetary
or other economic matters. Prefacing the form contract
was a typewritten statement addressed to the Wage-Price
Freeze, which was then in Phase II. In addition to 27
detailed sections, the form contract included a preamble,
setting forth the parties and the effective date, and a
signature section, calling for signature by the company and
by the local union, with an additional space for signature
by the International after the legend "Approved as to
Form." At the meeting of November 3, 1971, Garcia went
through the Umon's proposed contract section by section,
explaining each and answering questions of Respondent's
representatives as he went along . No agreements whatsoev-
er were reached, or apparently sought, at that time.
The next bargaining session was held on November 17,
1971, by which time Attorney Smith had been replaced by
Mr. Clifford G. Shawd as Respondent's chief negotiator
and only spokesman. Shawd has been an independent, self-
employed professional management consultant since 1944.
As such, he has represented numerous Texas employers in
labor negotiations. Shawd spoke for Respondent at all
subsequent meetings. He was accompanied by a company
official at all meetings .5
At meetings on November 17 and 18, 1971, the Union's
proposed contract was reviewed and discussed, item by
item. Although no actual agreements were reached at that
time, on a few relatively minor points Shawd indicated that
he had no serious objection to the Union's proposal. As to
many, Shawd expressed strong opposition.
The Company's first written proposal was presented on
December 1 or 2, 1971. It consisted of counterproposals to
or modified versions of several portions of the Union's
proposals The Company first made a "complete proposal"
on March 7, 1972. This proposal followed the format and,
in general, the section numbering of the Union's proposal,
except for minor changes resulting from the Company's
demand that sections 2 and 5, discussed in detail below, be
omitted.
During the 26 negotiating sessions between November
17, 1971, when Shawd took over on behalf of Respondent,
and September 12, 1972, the last meeting , agreement was
reached on only relatively minor matters , as follows:
(1) On March 15, 1972, the wording of the preamble was
agreed to after the Union acceded to Respondent's
insistence that reference to "successors or assigns" of
Respondent be deleted. Further, however, the date was left
blank, the Union requesting that the agreement be effective
as of the date of its certification and Respondent insisting
that the contract be effective only when finally signed.
(2) Section 1, defining the unit of employees covered,
was agreed to as requested by the Company. A union-
proposed additional provision designed to preserve unit
work (i.e., production and maintenance work) for unit
employees was entirely deleted. This revision is most
significant when coupled with the Company's insistence
that section 3, on union recognition , contain an express
provision that "The Union representation? is limited to the
3 Garcia was accompanied by employees Paul Stephen, Odell Givs. and
Manuel Rocha With minor exceptions, this employee committee attended
all the sessions but did not actively participate in the bargaining
4 Of the 27 numbered sections. a few were typewritten: section 4,
interview referral--union security, presumably a variation addressed to
Texas's being a right-to -work state ; section 10(A), classifications , presuma-
bly a matter necessarily tailored to individual companies; and section 13,
vacations, apparently also tailored to local customs.
Since Shawd was the only spokesman , it is unnecessary to burden this
Decision with identification of the company official accompanying Shawd
at each meeting . The company officers attending various sessions included
Vice President William D Lee; R. L. Crain , industrial labor relations office,
and Gene White, shop superintendent
6 The preamble and sections entitled "Bargaining Unit-Maintenance
Work." "Union Recognition," "Management Rights." "Seniority ," "Leaves
of Absence," "Griesance" and "Arbitration."
7 After having proposed the quoted language . Shawd subsequently
sought to substitute 'jurisdiction" for "representation " His explanation for
the proposed change was not clear Apparently Shawd followed the same
course in at least one other negotiation, and, so far as appears , did not
clearly explain there Longhorn Machine Works, Inc. Case 23-CA-3356, fn.
43
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees designated in Section 1 . . . and does not apply
or pertain to the work." See infra, pp. 15-16.
(3) On December 8, 1971, the Company agreed to the
Union's proposal in section 4B, with a modification
requested by the Company, that Respondent provide each
new employee with a written form setting forth his
classification, wage rate, and social security number, and
give a copy thereof to the chief steward the day following
the hire.8 The Company totally rejected the Union's
further proposal in section 4 that Respondent advise new
employees of a right to interview a union steward. The
Union agreed to delete its original proposal that a union-
security provision shall become effective if and when such
provisions might become legally permissible in Texas.
(4) By January 26, 1972, 7 of 11 paragraphs in the
Union's proposal concerning hours of work (section 7) had
been agreed to with modification requested by Respon-
dent.9 Included in these paragraphs was a provision that if
the Company operated three shifts, employees would
receive 40 hours' pay for 37-1/2 hours work on the shift
and 40 hours' pay for 35 hours work on the third shift. At
the time Respondent did not have and said it did not
contemplate a third shift. On February 3, 1972, Shawd in
effect withdrew an agreement on that paragraph and called
for deletion of any provision for a third shift. Except for a
provision for change of shift times "by mutual agreement
between the Company and the Union," 10 the terms
concerning hours agreed upon were essentially those
already existing in the plant. Respondent rejected union
requests for changes, such as liberalization of rest periods,
limitation of the mandatory workday and workweek,[[ and
the presence of a union steward whenever three or more
employees worked overtime.
(5) The Union had proposed (section 11 A) that employ-
ees laid off or discharged should be "paid off immediate-
ly." Respondent agreed, with the addition of the qualifica-
tion "or in any event not later than the end of the next
regular scheduled workday." 12 The Company rejected the
Union's request (section 11B) that the contract provide
that all compensation he at hourly rates, with "no piece,
bonus or contract work." 13 It does not appear that the
Company ever did pay on any basis other than hourly
wages, but Shawd insisted upon the Company's right to do
so if it should want to.
(6) After considerable discussion, the parties agreed on a
provision for 2 hours' reporting pay, in response to the
Union's original request for 4 hours'.14
(7) The Union agreed to withdraw its proposed provision
governing apprenticeship in favor of the Company's
agreement to meet with the Union before instituting any
8 Apparently Shawd later contemplated requesting a restriction of this
provision See infra, p 19
9 With Shawd's requested change of terminology form "regular work-
day" to "normal work-day," a change on which Shawd apparently spent
considerable time, although the Union's representatives do not appear to
have seriously objected
io On September 12, 1972, Shawd apparently intended to propose
addition of permission for the Company to change shifts hours by up to 2
hours without discussion with the Union See infra, p 20
11 The maximum mandatory workweek is discussed below.
12 Apparently Shawd later wanted to change this agreed upon language
See infra, p 21.
13 A prepared statement that Shawd testified he read at the negotiating
apprenticeship plan in the future. Presumably such course
would have been required without an express contractual
provision. Respondent's "complete proposal" of March 7,
1972, contains no relevant provision.
(8) On May 24, 1972, a portion of the grievance
procedure was agreed on. In addition to a provision for
union appointment of stewards, agreement was reached on
three grievance steps as proposed by the Union and
modified by the Company.
(9) Agreement was reached on a umon-proposed
provision, as modified pursuant to Respondent's request,
for plant visitation by union representatives.
(10) The parties agreed on a provision whereby Respon-
dent would make available to the Union space on the
Company's bulletin board, Respondent having rejected the
Union's proposal for a separate union bulletin board.
(11) The record is somewhat unclear as to the extent of
agreement, if any, on a provision concerning safety and
health. The Union apparently believed that on January 5,
1972, the Company had agreed to the Union's proposal,
which called for creation of a permanent committee calling
for two employees named by the Union and two named by
the Company. Respondent's proposal of March 15 called
for a committee of only two persons to be chosen by the
Company. Shawd also apparently maintained that agree-
ment on any safety and health provision was conditioned
upon further agreement on a provision, proposed by
Respondent in December 1971, rendering employees
subject to discharge for "willful or careless violation of the
safe, sanitary or healthful working conditions or the
creating of unsanitary or unhealthful conditions in the
shops or facilities or engaging in acts which tend to put the
Company in violation of the law."
(12) The Company also accepted the Umon's provision
for discussion of requests for interim amendment made by
either party, with disagreements on this score made
expressly not subject to grievance or arbitration.
C. Company "Concessions"
Toward the end of his cross-examination, Shawd was
asked to list any concessions or benefits which Respondent
had offered to the Union. At first, without his notes. he was
unable to think of any. Then, referring to notes, he
enumerated the following "benefits" he had offered:
(1) Shawd offered a shift differential of 15 cents per
hour, while he believed the Company's existing practice
was to pay a 10-cent shift differential. However, the
evidence establishes indisputably that the existing shift
differential was 15 cents.ii
(2) The Company offered to agree to a grievance and
session on March 15, 1972, said "Section I I had been agreed." However,
the Company's proposal of March 7 does not contain section I IB and there
is no testimony indicating that Respondent ever specifically retreated from
its opposition to the Union's section I I B.
14 In a written proposal presented on April 4, 1972, Shawd apparently
proposed adding the restrictive provision that reporting pay for time not
worked "shall not count in the computation of overtime."
i5 Employee Paul Stephen credibly testified that for a period when he
worked nights he received 20 cents per hour more than his regular daytime
wage rate However, this may not be a shift differential, since he was
working on a special plant repair job and the Company had no regular
second shift for production at that time.
AMERICAN STEEL BUILDING CO., INC.
arbitration procedure, whereas, according to Shawd, the
employees previously "didn't have a formal plan." The
narrowly restricted nature of Respondent's proposals as to
grievances and arbitration must be noted. Basically,
Respondent's proposals provided: "A grievance shall be
limited to a written specific complaint by an employee that
the Company has not complied with a specific, cited,
express provision or provisions of this Agreement as such
provision or provisions apply to such employees. . . . Any
complaint which is not specific in its allegation or which
does not allege violation of a specific, cited, express
provision of th's Agreement as the terms thereof are
expressly set forth shall be of no effect." Under Respon-
dent's proposal, disciplinary action, short of discharge,
"based upon a violation of a provision, work rule or
regulation in or provided for in this Agreement or upon
failure to comp,y with the terms and provisions of this
Agreement, shall not be subject to arbitration." Discharges
would be arbitrable if "the grievant denies his guilt and
presents a timely grievance . . . and in so doing and at the
same time presents his denial of guilt and the full and
complete evidence of his innocence." If the grievant meets
those conditions, "the sole question of whether the grievant
was guilty of the violation or failure on which the
disciplinary action was based may be submitted to
arbitration." If the employee surmounts these obstacles
(including overcoming a presumption of guilt), the pre-
scribed remedy is limited.16 And Respondent's proposal
apparently leaves open to the Company the right to refuse
to comply.17 It should be noted that, along with these
restrictive grievance and arbitration provisions, Respon-
dent was proposing a sweeping no-strike clause.'8
(3) Rejecting the Union's proposal that discharged or
laid-off employees be paid "immediately," Shawd agreed
to a commitment that payment would be made by the end
of the next day. This, according to Shawd, was a
"concession" because Texas law requires only that pay-
ment be made within 5 days. However, it appears that
Respondent has always paid off discharged or laid-off
employees as promptly as possible. Payment on the day
after discharge or layoff does not meet the problem of the
inconvenience and possible expense of an employee's
having to return to the plant for his pay.
(4) Shawd offered to provide that an employee would be
paid for time lost by visits to a doctor as a result of
industrial accidents.i9 He added a condition, however, that
such time would not be counted in computing overtime.
16 "[S]hould the arbitrator , basing his ruling on only such evidence as
had been timely received by the Company and on the evidence submitted
by the Company [apparently at any time], rule that the grievant did not
commit the violation alleged and/or had not failed to comply with such rule
or regulation or provision, he may be restored to his former position or at
the Company's option, a position of substantially equal compensation basis,
together with such compensation as he would have received (had he
worked) computed at his wage rate at the time of his termination for forty
(40) hours per week for the elapsed period dating from the third work day
following the receipt of the grievance and the grievant's supplied evidence
of his innocence by the Company and terminating on the last work day
prior to his re-assignment or the fifteenth day following the close of the
arbitration trial whichever date is earlier but less any amount received by
him or due him during such award period in wages, commissions or other
compensation from any source "
17 "Any grievance appealed to the arbitrator over which he has no power
to rule or which does not comply with the requirements set forth in this
903
Testimony established that Respondent was already
paying for such time; for about 2 years employees had
been allowed to go to the doctor without clocking out so
that the time so spent was used in computing eligibility for
overtime. According to Shawd and Vice President Lee,
such action had resulted from error of foremen and
Respondent proposed to correct such "erroneous" proce-
dure when a collective-bargaining agreement was executed.
(5) According to Shawd, the Company was "offering
some protection provisions" concerning seniority. Accord-
ing to Shawd, his proposal "sets forth the criteria for a
person to guide us in matters of promotion which would
protect the man's interest if he was an ambitious chap, and
demotion which would protect him in case-protect him
against some-I hate the word `discrimination,' but I'll use
that at the moment." The "protection" referred to was:
In case of promotion, demotion, transfer, lay-off and
recall the following factors shall be considered:
a. Ability to perform the contemplated work.
b. Physical fitness for the contemplated work.
c. Availability and potentiality.
d. Continuous uninterrupted service in the depart-
ment concerned.
When factors "a," "b" and "c" will be the determining
factor.
Although Shawd testified that alleged company violations
of that provision would be subject to the grievance and
arbitration provisions of the contract, that opinion does
not seem warranted by the wording of Respondent's
proposed provisions.20
(6) Shawd then referred to a provision governing leaves
of absence as "something of value to the employees that
they didn't already have." Rejecting the Union's proposal
that "Leaves of absence, without pay, shall be granted by
the Company to any employee for reasonable cause .. ,
the Company offered a provision that the Company may
grant leaves of absence. Shawd conceded that the Compa-
ny had always had the right to grant leaves of absence and
that: "As best I recall, I have heard of people who have
been on leave of absence."
(7) Shawd also mentioned his proposed "no lockout"
provision as a "concession" or "benefit" to the employees,
but volunteered that he "would call it a negative thing,
perhaps." 21 This provision was, of course, combined with
Agreement shall be null and void Any violation of or deviation from the
express terms of this Agreement shall render the arbitrator 's decision null,
void and of no effect."
N "The Union agrees that neither it nor its members individually or
collectively will, during the term of this Agreement , cause, permit , or take
part in any strike , picketing, sit-down , or curtailment or restriction of
production or interference of work in or about the Company's plants or
premises, or of it's [sic] vehicles or of a supplier or supplier's vehicles,
further that any employee violating this Agreement shall be subject to
discharge without recourse "
in See analysis of September 12 memorandum , infra, p 22
20 This is implicit in Shawd 's eventual testimony that, "I maintain
that if the company appeared to utterly disregard the real value of these
factors, that there would he a case where the union could step in and say,
you did not live up to this "
21 He later contemplated adding a restrictive definition of the term
"lockout "See discussion of his September 12,1972, memorandum, infra, p.23.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the -broad no-strike and restrictive grievance and arbitra-
tion provisions discussed above.
(8) Shawd also testified that he had offered to reduce the
maximum mandatory workweek from 72 to 68 hours. The
Union's initial proposal called for a maximum mandatory
workweek of 48 hours. Respondent requested retention of
its existing 72-hour practice. In a revised proposal
presented on March 15, 1972, the Union raised its figure to
58 hours. The Company still insisted on 72 hours,
maintaining that it often needed such long hours, particu-
larly in the shipping department at the end of the month.
On April 27, the Union said it would agree to the
Company's figure if the Company would agree to pay time-
and-a-half for hours between 40 and 55 and double time
for those in excess of 55. The Company refused. On May 5,
the Union offered to accept 58 hours, with 72 hours
permitted only in the last week of each month, with a 5-day
limit on the consecutive 12-hour days which could be
demanded. The Company refused. The Company's last
written proposal on this matter, dated April 27, 1972,
contained no maximum workweek provision.
William D. Lee, Respondent's vice president, who
attended about 12 of the sessions , testified that in the
course of negotiations Respondent offered the following
changes from its existing practices:
(1) Two hours' call-backpay;
(2) Two hours' show-up pay:
(3) Time-and-a-half for work on Sunday;
(4) Time-and-a-half for work on Saturday;
(5) Jury pay;
(6) Regular pay for time spent visiting a doctor in
connection with industrial accidents.
Shaw testified that he believed Respondent had previ-
ously granted showup pay, but Lee indicated that was not
so. The written proposals in the record do not reveal the
"concessions" as to time-and-a-half for Sundays and
holidays. The Umon had requested time-and-a-half for all
time beyond 8 hours any day, and double time for work on
Sundays and holidays in addition to straight time holiday
pay. It is not clear whether the time-and-a-half that Lee
testified the Company agreed to for holidays was to be in
addition to straight time pay. Shawd testified that on
February 3, 1972, "The company agreed to paragraph [8 ]C
with this modification, that Sunday work shall be paid at
time and one-half" instead of the Union's proposal for
double time. However, according to Shawd's testimony, on
March 15, 1972, he read to the meeting a prepared
statement summarizing the situation at that time. In that
statement he said: "Company does not agree to premium
time for holidays, Saturdays, Sundays, and such-as such."
In none of its written proposals did Respondent ever
retreat from its initial position that overtime premium pay
22 Section 2 of Union's form contract reads "The International ... is
not a party to this agreement and assumes no responsibility or liability
under this agreement and similarly shall have no right of redress thereunder
against the Company for the breach hereof However, before this agreement
and any amendments thereto may become binding and effective, the
International must approve this agreement and/or such amendment as to
form. Such approval by the International as to form shall not be construed
to make the International a party of this agreement or any amendment
would be granted only for work in excess of 40 hours per
week, as required by law.
As previously noted, Respondent's purported "conces-
sion" as to pay for time lost in connection with industrial
accidents was a reduction in the benefit already enjoyed as
a matter of practice.
D. The Union's Principal Demands
Throughout the negotiations the Umon made clear that
two provisions of its proposed contract were of great
importance to it; namely section 2, expressly stating that
the International Union was not a party to the contract,22
and section 5, calling for a checkoff of union dues.
1. International union
From the inception Shawd expressed his opposition to
Section 2. At first he maintained that the International was
and must be retained as a party responsible and liable for
any breach of the agreement. Interestingly, according to
Garcia's uncontroverted testimony,23 initially Shawd want-
ed to make express provision for inclusion of the
International at the same time that he objected to the final
provision of the union proposal that the agreement was to
be "approved as to form" by the International. Garcia's
testimony was:
Their primary objection was the escape clause that
had been proposed for both parties. The Company took
the position that if [there] was a violation within the
rank-and-files that the International should be held
liable regardless of what the violation night be.
Further, the Company took the position that the
International should be sued for any illegal action of its
members.
I also explained to the Company that the
International wanted the right to approve as to form
the agreement before it was signed by the parties. To
this the Company objected because they told me that
this was a contract to be negotiated between the
Company and the Local Union.
Respondent thereafter withdrew its request for an express
provision making the International a party but Shawd
refused to agree to provide that it was not a party.
According to Grayson, Shawd wanted to preserve the
Company's right to sue the International "if the right
circumstance arose," leaving it to the courts to decide
whether the International could be held liable for violation
of the agreement or other misconduct by the Local Union
and/or any employees. Although in December 1971 Shawd
said he was "not too firm" in his opposition to section 2, in
June he rejected it firmly because "it could be the indirect
cause of future problems for the company." Shawd
thereto or make said International , or any of its officers or agents,
responsible or liable for any breach of this agreement or any amendment
thereto, and similarly such approval as to form shall not be construed to
give the International , or any of its officers or agents, any right of redress
against the Company for breach hereof." The Union later offered to delete
all of this section except the first sentence. However, it apparently did not
specifically offer to eliminate the International 's approval "as to form."
23 In its brief Respondent concedes that Garcia was a credible witness
AMERICAN STEEL BUILDING CO., INC.
maintained that, not being a lawyer, he did not know
whether the International could be held responsible. He
also conceded that he had never sought a legal opinion on
this matter. He testified that sometime after the negotia-
tions ended he heard, but did not seek, a legal opinion. He
was not asked aid did not volunteer to say what that
opinion was.
2. Checkoff
Shawd repeatedly asserted numerous reasons for his
objection to checkoff of union dues. He said that it was a
nuisance and an additional burden to the Company's
overworked accounting department. He suggested that it
would require reprogramming of the Company's computer-
ized payroll operation. He provided no evidence or
estimate as to the cost to the Company and could not say
whether it would require additional accounting help,
although it was suggested that it might entail overtime
work by clericals. He expressed concern about the 1-year
period in which employees would be "locked in." He
argued that good employees might actually leave the
Company's employ as the only means of being relieved of
paying union dues after they had signed checkoff authori-
zations. He said, vaguely and without any attempt to
provide specifics, that he had known of employees in other
companies to do so. He also expressed fear that employees
might be "coerced" into signing checkoff authorizations.
He maintained that dues collection was the Union's
obligation and the Company should not be in the position
of doing the Union's job. He said that, by administering
the checkoff, the Company might appear to be sponsoring
or supporting the Union. This was apparently the basis for
his expressed opinion that the checkoff was illegal, or, at
least , that it should be illegal and that the Supreme Court
might so declare in the future.24
Fairly early in tae negotiations Shawd suggested that the
Company's opposition to the checkoff was not necessarily
total and it might consider a modified form. He repeated
such statements frequently, at least as late as March 22,
1972. However, although asked to specify, he never
indicated the type of modification Respondent might
possibly consider palatable and made no counterproposal.
Even at the hearing he was unable to suggest a possibly
acceptable checkoff provision, saying that "there could be
various proposals that the [the Union] could make-some-
thing that I wouldn't have dreamed of." 25
E. Other Major Issues
Although, as set forth below, the Union ultimately
offered to recede on all unresolved issues other than its
sections 2 and 5, just discussed, in view of the allegations of
the complaint and the nature of Respondent's defensive
contentions, it appears in order to outline the parties'
position on a few of the major issues.
24 Shawd's "negotiation" as to the Union's request for a checkoff in the
present case was virtually identical to that in Longhorn Machine Works, Inc,
supra
25 The closest he came was. "I should think if one could be set up that
would be completely free from any opportunity for intimidation, coercion,
or restriction of an employee's independence to continue or discontinue it, it
would approach the area that I would say possibly you couldn't object to
905
1. Wages
The Union's original contract proposal specifically
indicated the terms subject to Executive Order No. 11615,
the Price-Wage Freeze and stated that any such "improved
benefits" agreed upon "shall not become effective until the
first day following the day Executive Order No. 11615 is
rescinded, changed or amended, or when legally permissi-
ble to put such benefits into effect . . . ; and until such
time, all economic benefits shall remain the same as they
were prior to the signing of the agreement." Despite the
presence of this proposal, by agreement of the parties,
express or tacit, in the early phases of the bargaining
economic issues were in the main bypassed.
The wage matter was first injected on March 7, 1972,
when Respondent made its first full contract proposal. At
that time, apparently as an attachment to the contract,
Respondent submitted its existing classification and wage
schedules, dated October 6, 1969. However, so far as
appears, Shawd did not specifically call attention to these
schedules and the matters therein were not discussed.
There was no discussion of wage rates whatsoever until
May 24, 1972, when, as more fully discussed below, the
Union made a "package" offer which included a request
for an across-the-board wage increase of 5 1/2 percent.
The Union's "package deal" was rejected, with Respon-
dent making no counterproposal or any wage offer.
According to Grayson's undisputed testimony, Shawd
rejected the 5-1/2 percent wage demand, saying that it
"would not be appropriate and that the Company much
prefers to recognize the individual merit rather than a
blanket increase." In this connection, it should be noted
that Respondent's contract proposal would have expressly
provided that any wage increase "applying to an individual
or to a group shall not be construed to be discrimination."
There is no evidence that Respondent ever claimed
economic inability to grant wage increases . In April 1972
the Company did furnish to the Union an "auditor's
report" for 1971. Undisputed evidence, however, shows
that the report was furnished solely to justify the
Company's not having paid a Christmas bonus in 1971.
The report was identified at the hearing, but was not
offered in evidence. Thus, while there was testimony that
the report showed that the Company suffered a "loss" in
1971, there is no evidentiary basis for appraising this
conclusion. Many factors might cause a loss in 1971, for
accounting purposes, without affecting the Company's
ability to increase wage rates for the future. Indeed,
according to Respondent's evidence, operations were
increasing, to the extent that a second shift was instituted
in the latter part of 1971.
2. Work retention
As noted above, Shawd insisted upon an express
provision in the recognition clause that "[t]he Union
from the standpoint that we're discussing " Shawd did not suggest how he
thought such goal might be achieved . It might be added that removal of any
"locked -in" period , which Shawd apparently might consider a short step in
the right direction , would tend to increase the possible "administrative
burden" on Respondent , thus presumably reinforcing one of Shawd's stated
objections Shawd refused to suggest a lock-in period he would consider
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation [or jurisdiction] . . . does not apply or
pertain to the work."26 In addition, Respondent's pro-
posed management rights clause included a blanket
reservation of "the right to subcontract any work or a job."
Shawd conceded that under his proposals unit employees
could be laid off while other persons performed work for
Respondent.
In December 1971 the Company made some written
proposals of language which would give the employees a
modicum or semblance of some protection of the right to
production and maintenance work.27 However, no such
provisions were incorporated in Respondent's entire
contract proposal submitted in March 1972. Although
Shawd conceded that it was "technically possible" that his
proposal "could" result in the displacement of unit
employees, he rejected a union-proposed compromise to
the effect that work could be performed by others than unit
employees provided such assignments did not result in the
layoff of unit employees.
3. Other economic matters
As previously indicated, Shawd and/or Lee maintained
that Respondent made concessions on premium pay for
Sundays and holidays and on its demand for a maximum
mandatory workweek of 72 hours. However, Respondent's
written proposals reflect no such concessions. Its last
written proposal (the only complete contract it proposed)
called for overtime pay only for any hours over 40 worked
in any week. And the only restriction on the number of
hours an employee could be required to work was a limit of
12 hours in any 24-hour period.
Respondent rejected the Union's request for a liberaliza-
tion of its break policy, which allowed "a 10 minute rest
period during the first four (4) hours of each shift" with an
additional 10 minutes when a shift was scheduled for 9
hours or more and a 5-minute wash up period.
Similarly, Respondent refused to increase the number of
holidays, which was six. On May 17, 1972, after having
submitted his contract proposal in March, Shawd present-
ed an additional restriction requiring that in order to
qualify for holiday pay an employee must work his
scheduled shift the day before and the day after the
holiday.
Respondent would not agree to any liberalization of its
vacation policy, which called for I week after 1 year's
employment and 2 weeks after 2 years'. Appended was a
provision that in order to qualify for vacation an employee
must have worked 1,600 straight time hours during the
year. It is not clear that such requirement had previously
existed.
26 Shawd's position in this connection was virtually identical to his
position as set forth in Longhorn Machine Works, Inc., supra
21 "The Company confirms that employee-, hired, assigned or re-assigned
to production or maintenance work .. may reasonably expect to continue
in that work subject to such work being available in such amount as to be
feasible to warrant such continuation of assignment . their satisfactory job
performance, the practicability of their being recalled from layoff as
determined by the Company The above provision shall not be construed to
limit or prohibit the assignment of any employee to any employee to any
task or assignment or construed to supersede any provision of Section
Management Right-, "
Supervisors "normally shall not perform production and maintenance
As previously noted, Respondent would not consider the
Union's welfare proposals. On the contrary, Respondent
suggested maintenance of its existing welfare and insur-
ance plan only until the insurer announced either an
increase in rates or a reduction in benefits , when "the
Company shall have the right to terminate the insurance
program effective immediately," subject only to the
obligation (statutorily required in any event) to notify the
Union and "attempt to negotiate a substitute insurance
program." Significantly, Respondent would expressly
provide that "No provisions of the insurance program shall
be subject to the grievance or arbitration provisions."
F. The Union's "Package Deals"
As sketched above, the progress of the negotiations was
slow, with minor areas of agreement reached, but disagree-
ment prevailing on virtually all major issues and the basic
matter of wages never even discussed.
On April 27, 1972, at the 25th bargaining session, in an
attempt to "make some headway toward a contract,
because [they] hadn't made a whole lot," Grayson offered
to accept Respondent's proposals as to section 3 (union
recognition), 4 (referral) and 6 (management Rights), all
major company demands, if the Company would agree to
the Union's proposals on section 2 (international union not
a party) and 5 (checkoff). According to Grayson's
uncontradicted and credited testimony, Shawd simply
rejected the offer, saying "that they just didn't negotiate in
that sort of fashion."
On March 7, 1972, the Company had made its first
complete counterproposal. Essentially this proposal fol-
lowed the Union's format and index , omitting sections 2
(international not a party), 5 (checkoff), 10 (classification,
work assignments , rates of pay), 15 (erection and field
fabrication) and 16 (apprentices).
On May 24, 1972, Grayson asked if Shawd would sign a
contract "if [the Union] took all of [the Company's]
proposals except what we already agreed to, adding
Sections 2 and 5 of the Union's proposal, adding 5 1/2
percent to the wages." Shawd's reply was negative. Asked
if there had been any expatiation on the Company's
rejection, Grayson testified that Shawd "said no, and he
stated he didn 't see no reason for a contract, period."
Although Shawd denied having said he saw no reason for a
contract, he did not suggest what he had done other than
reject Grayson's proposal out of hand, without explanation
or discussion.28
On June 1, 1972, Grayson repeated his package proposal,
eliminating the request for a wage increase . As shown by
work, except for the purpose of instructing employees , demonstrating
proper methods and procedures of performing work operations (discovering
or proving or establishing procedures of work operations , training in work
operations or to obtain job knowledge of production materials, techniques
and/or practices,) uncovering and/or correcting sources of material or
production difficulties , or supplement the then actively employed and
assigned work force,"
211 Shawd first maintained that he understood Grayson's word as simply
a question rather than a proposal or offer However, after further
examination , Shawd conceded that Grayson' s remarks were, in practical
effect, a contract offer
AMERICAN STEEL BUILDING CO., INC.
the following excerpt from Shawd's testimony, the Union's
offer was flatly rejected:
Q. At a later point, pretty much the same proposi-
tion was put to you with no reference to the five and a
half percent wage increase, was it?
A. It was.
Q. So then at least at one point in the contract
negotiations Sections 2 and 5 were the only hangup.
A. We thought it had been an oversight when the
five and a half had not been mentioned. In fact, we had
to check among ourselves afterwards about did he say,
did he include the five and a half? And we found
among our notes that he hadn't done it. So we had the
question before us of the two and the five, which we
definitely dic not want.
There is no suggestion that Shawd attempted to ascertain
if, in fact, the Union's no-wage increase proposal "had
been an oversight."
H. The September 12, 1972, "Proposal"
Apparently because Shawd was in Mexico most of the
summer of 1972, there were no meetings between June 1
and September 12, when a meeting was convened by
Federal mediators. According to Grayson, the representa-
tives of the two parties never met face to face that day, all
communication being carried on through two mediators.
Shawd, on the other hand, testified that he spoke to
Grayson before the actual bargaining began through the
intervention of the mediators. He testified that he offered
to give Grayson a set of new proposals on behalf of the
Company, but Grayson put him off, hostilely saying that it
was'more important that Grayson first inform Shawd that
the employees would go on strike if a contract was not
signed by September 21. In cross-examining Grayson,
Respondent's counsel had produced a memorandum by
Shawd dated September 12. Grayson was unable to
identify it, saying Shawd had not attempted to present it on
September 12. Shawd later confirmed that, contrary to
what he had ear.ier told his counsel, he had not attempted
to give the memorandum to Grayson. The memorandum
was then offered in evidence by the Union's counsel.29
The General Counsel emphasizes the wording of the
memorandum to suggest Respondent's lack of good faith.
It is dated September 12, 1972, and the first two
paragraphs contain the words: "The Company proposed"
-the past tense. The General Counsel refers to "the
spurious nature of the document itself," suggesting that it
was written after September 12 "for the purposes of the
hearing." He argues alternatively: "If, in fact, Shawd really
intended to submit the proposal . . . at the September 12
meeting , General Counsel suggests that his most likely
motive was to present the appearance of bargaining
without actually doing anything of substance." Examina-
tion of the memorandum, particularly in light of Shawd's
zs At that point, Respondent 's counsel said : "Frankly , at the beginning
of the trial I thought it had been presented to the union on that day Now, I
don't think it has any probative value at all It wasn't presented , it wasn't
considered , it wasn't discussed And Mr Shawd has testified he isn't sure he
was going to present it in that form . I think it's irrelevant and
immaterial I'm not that opposed to it, though "
907
attempts to place the onus of declaring an impasse on the
Union rather than on the Company, appears to support the
second of the General Counsel 's suggestions.
The following summary analysis shows that the majority
of the "proposals" included in the September 12 memoran-
dum are restrictive ( i.e., increasing the Company's self-
interested demands) and the rest are, so far as appears,
insubstantial pettifoggery:
(1) "Section 4, the Company proposed to notify the
Union Chief Steward once a month concerning new
employees." The Company had previously agreed that
within I day after an employee was hired it would give the
Union a copy of the new employee form given to the
employee. Thus, this new proposal was apparently intend-
ed as a withdrawal of agreement, since a monthly report
would have been superfluous under the prior agreement.
(2) "Section 6, [Management Rights], Paragraph No. 2,
4th line, insert `may' after `and'." This change appears to
have been made by Shawd when he presented his version
of the clause on April 4, 1972. In any event, its reason and
effect are not apparent.30
(3) Respondent's proposed provision of its April 4
proposal on Management Rights would be changed by
adding the underscored language , as follows:
The direction of its personnel, including the right to
hire or re-hire, including the determination of the
procedures, techniques, and requirements to be observed in
the employment process, suspend, discharge for cause or
relieve employees from duty or terminate because of
lack of work or for other reasons, to promote, assign,
transfer, discipline for cause, to assign any person to
conduct study and/or to research, methods, materials,
processes equipment or products in the plant, and other
matters involved in the operation of the business and
the plant are the exclusive rights of the Company.
(4) Section 7, Paragraph F. the Company proposes'
that a change of shift time not exceeding 2 hours can be
made without requiring mutual agreement between the
parties.
The parties had previously agreed on the Union's proposal
that "The starting and quitting time of the various shifts, as
herein provided for, may be changed from time to time by
mutual agreement between the Company and the Union."
The September 12 proposal, therefore, would have been a
partial withdrawal of a prior agreement.
(5) Section 9, In paragraph B. new sub-paragraph:
To qualify for holiday pay for a holiday not worked an
employee must work his last full schedule preceding
and his first full schedule following the holiday and
must work the holiday if scheduled to do so.
Shawd had requested such a provision as early as
December 1971, and submitted it in writing on May 17,
1972. The May proposal had used the words "scheduled
30 The provision involved was: "Nothing in this agreement shall be
construed to limit the Company's sole and exclusive right to take any action
it deems appropriate in the management of the plant and the direction of
the work force and of all employees , except as the provisions hereof
expressly set forth and may so provide and expressly apply to the matter
then being considered or questioned."
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day" in place of the noun "schedule." Shawd's testimony
that the change represented a substantial benefit to the
employees was less than persuasive.
(6) "Section 10, Classification: Next to last line of
paragraph (new) D, add to third line `or'." I have been
unable to determine the location or effect of this proposed
modification.
(7) Shawd's proposal would modify section 11 A, already
fully agreed upon, by adding the underlined words, as
follows:
. . . When an employee is laid off or discharged, he
or she shall be paid off no later than the end of the next
regular scheduled work day for his shift in cash or its
equivalent.
The modification would constitute no concession but, if
anything, a restriction on a provision already agreed to.
(8) On May 3, 1972, the parties had previously agreed on
a provision for 2 hours' reporting pay, after the Union
requested 4 hours'. The September 12 memorandum would
have curtailed the guarantee by the addition of the word
"or," as follows:
... except where failure to so put such employees to
work is occasioned by non-operation of the plant, or a
substantial part thereof, or as a result of fire, Act of
God, failure or power or major break down of
equipment..... 31
(9) Shawd's proposal of September 12 would add the
underscored matter to the following provision in its prior
proposal:
An employee injured at the Company's plant, who is
sent to a doctor and returns to work during his or her
regular working hours the same day, shall be paid by
the Company the applicable wage rate for such time
thereby required to be lost on such day by such
employee . . . . The hours thus paid but not worked shall
[sic] be counted in the computation of over time.
The phrase "required to be" had been previously added
and apparently agreed to by the Union. The final sentence
is apparently an error, since Respondent had previously
proposed adding to the Union's proposal the negative of
the underscored sentence, allegedly to "correct" a practice
mistakenly permitted by some foremen.
(10) Shawd's September 12 proposal would have added
the underscored words m the following portion of the
provision for vacations:
... An employee who has served six months or more
toward qualifying for a subsequent vacation, if quali-
fied in the proportionate number of straight time hours
worked, and who resigns giving the Company 2 weeks
work notice or is discharged [for a reason other than
stealing] shall be given one-half the vacation for which
he qualified in his last previous employment year.
Again, this was no boon to the employees.
31 No similar restriction was to be proposed m the provision for callback
pay The record does not disclose Shawd's reason either for the
(11) The September 12 proposal would have added the
following new paragraph to the vacation provision previ-
ously offered:
If a vacation is permitted to be taken in advance of the
eligibility date and the employee then resigns or is
discharged before qualifying for such vacation, an
"unearned" vacation payment will be deducted from
any monies owed to the employee by the Company.
As with the other items, this was hardly calculated to make
Respondent's proposal more palatable to the Union.
(12) Respondent had rejected the Union's detailed
proposal for welfare benefits. Under Shawd's September 12
memorandum, Respondent's proposed counterproposal on
welfare would have read (underscored material added at
that time):
The Company agrees to continue the present
insurance program existing in effect at the time of the
execution of this Agreement on the continuing basis for
Company-employee participation until the day preced-
ing the effective date of an increase in cost or a
reduction in benefits by the insurance carrier, on which
preceding day the Company shall have the right to
terminate the insurance program effective immediately;
provided, in such event the parties shall meet within
thirty (30) days of the receipt by the Company notice of
such change and shall attempt to negotiate a substitute
insurance program. No provisions of the insurance
program shall be subject to the grievance provisions of
this Agreement. In the event that the Company and the
Union fail to negotiate a substitute insurance program as
provided above, the Company, at its option, may provide a
measure of insurance protection as it deems to be
appropriate under the circumstances for its employees. In
such event, the action of the Company shall not be subject
to grievance procedure.
Suffice it to point out that, absent any contractual
provisions, Respondent could not have changed its existing
welfare program without negotiating with the Union.
(13) The Company had proposed a detailed 12-para-
graph provision for the circumstances under which an
"employee shall lose seniority and be removed from the
Company payroll." Under the September 12 memoran-
dum, Shawd would have added, as an additional ground,
absence for more than 12 months as a result of an
occupational accident.
(14) Shawd would have amended the no-strike, no-
lockout provision he had previously proposed by adding
the underscored words, as follows:
An employee while on strike shall accumulate no
service credit toward seniority or toward any benefit
provided wholly or in part by the Company.
(15) Finally, to his no-lockout proposal, Shawd would
have added the following restrictive definition:
contemplated restriction on reporting pay or for the difference between
reporting and callback pay
AMERICAN STEEL BUILDING CO., INC. 909
"Lockouts" shall be limited to applying to a voluntary
cessation of operations by the Company for the sole
purpose of preventing employees from working.
G. The Company's Overall Approach
Grayson, Stephen, and Givs testified concerning a
conversation between Grayson and Lee during a break in
negotiations when Shawd left the room. According to the
General Counsel's witnesses, Lee at that time said "the
Company didn't want a contract." Respondent maintains
that Lee did not say the Company did not want to sign any
contract, but on,y that it did not want the Union's
proposed form contract. Although all three of the General
Counsel's witnesses quoted Lee as having said the
Company did not want "a" contract, the evidence as a
whole indicates, and I find, that at the time Lee was
referring specifically to the Union's proposal, the only
proposal that had been made at that time. I base this
finding largely on Stephen's amplified testimony that Lee
explained that "if we agree to everything in that contract it
would seem like the Union would be running the shop,
instead of Management."
Grayson also quoted Shawd as having said that the
Company did not intend to execute any agreement or
make any commitments containing any terms other than
those already existing. Grayson and Stephen both said that
on May 24, 1971, after rejecting the Union's "package"
proposal, Shawd said flatly that Respondent did not want
a contract. According to Shop Superintendent White, who
accompanied Shaved at some of the negotiating sessions, it
was Grayson who said "that Shawd said he did not see any
reason for a contract." I credit Stephen and Grayson and
find that Shawd did say that the Company did not want a
contract and did not intend to agree to any terms other
than those already maintained by the Company. But this
finding of express statements by Respondent's representa-
tives is not crucial. Respondent's conduct in the negotia-
tions and its positions on specific items, as discussed
above, speak louder than words.
In a prepared statement he read at the outset of the
meeting on March 22, 1972, Shawd concluded: "The
Company's position, it is understood that as negotiations
develop and the agreement takes form, other clauses may
be needed, and the Company reserves the right to propose
such clauses." This followed Respondent's having present-
ed a purportedly complete "counterproposal" on March 7.
At one point, in discussing the union "package" offers,
Shawd testified that the Union's positions or agreements
were "tentative." However, when prodded on cross-exami-
nation, Shawd ccnceded that the Union's "tentative"
agreements on specific items were "fairly reliable."
Grayson credibly testified that his referring to specific
agreements as "tentative" referred only to the need of
membership ratification of any complete contract agreed
on. There is no evidence of the Union's having retreated in
any way, major or minor, from any agreement reached as
to substance or language.
Shawd's attitude throughout was inflexible. For example,
32 For example, concerning the February 9, 1972, meeting, Shawd
testified- "[Grayson] said, I think we're at pretty much of a bypass [i.e.,
impasse] on it, referring to the contract I said, I don't think so There are
on April 27, 1972, when the Union offered, in effect, to
accede to the Company's proposals on provisions govern-
ing union recognition, interview referral and management
rights in exchange for Respondent's agreeing to a union
dues checkoff and an express provision that the Interna-
tional Union was not a party to the contract, Shawd
summarily rejected the, offer saying that he "didn't
negotiate that way." He rejected the Union's later even
more conciliatory package offers equally summarily,
saying in each instance that he felt no obligation to make
any counterproposal.
Although Shawd professed his willingness to continue
bargaining, and was at apparent pains not to declare an
impasses, he expressed at least equal willingness to have
Grayson declare an impasse 32 Shawd's "willingness" to
continue negotiations never went so far as to lead him
affirmatively to seek further meetings. When asked if he
had attempted to negotiate after September 12, he replied:
"I have had things to think about without that, so I
assumed when they 33 wanted to talk to me they would call
me."
H. Direct Dealing
The Union called a strike commencing September 18,
1972. Among the strikers was employee Odell Givs, a
member of the Union 's negotiating committee. For a short
time there were three or four pickets, but soon picketing
was down to only Givs.
On October 24, 1972, during the lunch period, C. J. Ivins,
Respondent's shipping supervisor, left the plant and
crossed the street , where he spoke to Givs, who was then
sitting in his car. According to Givs, Ivins said that "he was
holding [Givs'] job but he didn't know how long he could
hold it." Givs further testified that Ivins offered to pay
Givs $4 per hour, rather than his previous rate of $3.40.
Givs refused to return.
The next day fellow employee Wilbert Davis, who had
not gone on strike, spoke to Givs during the lunch hour.
According to Givs, Davis said he had been sent by Ivins to
urge Givs to return to work because he was needed and
"because there was no point in [Givs'] staying out there
because we was going to lose the strike." Givs testified that
Davis also "said he'd give me some more clothes to wear if
I'd come on back."
Ivins testified that when Givs went on strike, he was
replaced as machine operator by Robert Corley. Corley
proved unsatisfactory and was discharged on October 23,
1972. The next day Ivins went out to see Givs "and told
him that his job was open if he wanted to come back to
work." According to Ivins, Givs said "he wanted to stick it
out about two more weeks, and something would break,
and he would let me know." So far as appears, there was
no followup and Givs had not attempted to return to work
as of the time of the hearing. Ivins specifically denied
having offered Givs a wage increase , although he conceded
that he could effectively recommend raises.
Davis acknowledged that he had gone out and "told
[Givs] he should come back to work and get off the strike."
some things we should be able to work out. You have your views, too.
Meaning if he thought we were, we were."
33 Referring to Grayson and the Federal mediators.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis denied having said that he had been sent by Ivins
and also denied having referred to "more clothes " if Givs
returned . Davis testified that he knew Givs' job was open
but denied that Ivins had told him that Respondent
wanted Givs back because Corley had been discharged.
Davis did not explain why he had gone to talk to Givs at
that time. Some explanation would appear called for in
view of Davis' testimony that he "figured [Givs] would
come back to work if he would get off the strike ." If, as
Davis testified , he and Givs were friends , it is not apparent
why he made the trip across the street for the sole purpose
of giving Givs personal advice.
On all the • evidence , and careful appraisal of the
demeanor of the witnesses , I find that Respondent , through
Ivins, offered Givs a wage increase if he abandoned the
strike and returned to work.
1. The Strike
As previously stated, on September 12, 1972, about a
year after the certification and over 10 months after the
first bargaining session, Grayson announced that, unless
an agreement was reached forthwith, the employees would
strike by September 21. On September 15 a union meeting
was held. After the course of the negotiation was reviewed,
the membership voted to strike.
The strike began on Monday, September 18. Only
around 15 34 of the approximately 120 production and
maintenance workers joined the strike. At first there were
around three or four pickets carrying signs reading "On
Strike," with no amplification. The strike is still in progress,
but picketing is apparently slight and sporadic. The record
does not disclose how many employees are still on strike.
So far as appears, the plant is in full operation.
Discussion and Conclusions
1. Bad faith to bargaining
The underlying legal principles are well established. As
recently said by the Court of Appeals for the Ninth Circuit
in N.L. R. B. v. Holmes Tuttle Broadway Fora Inc., 465 F.2d
717, 719 (1972):
Sections 8(a)(5) and (d) do not require that a party
make concessions or yield any position fairly main-
tained . . . . This does not mean , however , that the
Board is prohibited from examining the contents of the
proposals put forth. The Board "must take some
cognizance of the reasonableness of the position taken
by an employer in the course of bargaining negotia-
tions" if it is not to be "blinded by empty talk and by
the mere surface motions of collective bargain-
ing. . .." N. L.R.B. v. Reed & Prince Mfg. Co., 1 Cir.,
1953, 205 F .2d 131 , 134... .
In judging a party's compliance with Section 8(a)(5)
and (d), the "Board has been afforded flexibility to
determine . . . whether ... conduct at the bargaining
table evidences a real desire to come into agreement."
N.L.R.B. v. Insurance Agents' Union, supra . 361 U.S.
34 In addition , about 15 or 16 employees working for Respondent under
the Texas released-prisoner program left, since by law they are prohibited
[4771 at 498. This determination is made by "drawing
inferences from the conduct of the parties as a whole."
Id.....
Or, as said by the Fifth Circuit in N.L.R.B. v. Herman
Sausage Co., 275 F.2d 229, 231-232:
The obligation of the employer to bargain in good
faith does not require the yielding of positions fairly
maintained....
On the other hand while the employer is assured
these valuable rights, he may not use them as a cloak.
In approaching it from this vantage, one must recognize
as well that bad faith is prohibited though done with
sophistication and finesse. Consequently, to sit at a
bargaining table, or to sit almost forever, or to make
concession here and there, could be the very means by
which to conceal a purposeful strategy to make
bargaining futile or fail. Hence , we have said in more
colorful language it takes more than mere "surface
bargaining," or "shadow boxing to a draw," or "giving
the Union a runaround while purporting to be meeting
with the Union for purpose of collective bargaining."
[Footnotes omitted.]
Especially pertinent to Respondent's conduct in this case
is the oft-cited opinion of Chief Judge Magruder's in
N.L.R. B. v. Reed & Prince Mfg. Co., 205 F.2d 131 (C.A. 1),
cert. denied, 346 U.S. 887. It is there said (205 F.2d at
134-135):
... while the Board cannot force an employer to
make a "concession" on any specific issue or to adopt
any particular position, the employer is obliged to
make some reasonable effort in some direction to
compose his differences with the union , if § 8(a)(5) is to
be read as imposing any substantial obligation at all.
As seen above , in the present case Respondent made no
significant concession toward granting the employees any
job security or economic benefit. While Respondent's
representatives denied having verbalized a determination
not to agree to any significant changes in existing terms
and conditions of employment, the course of their
bargaining eloquently and unmistakably conveyed that
message. Under Respondent's purported contract propos-
als, the employees would have secured no substantial
benefit. On the contrary, in some major respects they
would have been worse off with Respondent's proposed
contract than without any contract. For example, while the
employees would have renounced all right to strike,
Respondent would have retained "the unrestricted right
and privilege to suspend , transfer, cease, relocate or
resume , at its discretion, the operation of its business, or
any part thereof" and "the right to subcontract any work
or job." Without a contract, the Union would have been
entitled to negotiate on such matters and if necessary to
strike. Without a contract, the Union could strike for
higher wages, whereas Respondent offered no general wage
increases and proposed a contractual agreement that
from working at a struck plant.
AMERICAN STEEL BUILDING CO., INC.
individual increases could not be considered "discnmma-
tory" i.e.. that wage increases would be effectively within
the employer's unrestricted control . Shovel Supply Compa-
ny, 162 NLRB 460,472; "M" System, Inc., 129 NLRB 527,
551.
That Respondent was determined not to reach any
agreement is perhaps conclusively demonstrated by its
summary rejection of the Union 's offer to accept Respon-
dent 's proposal ^.s to all issues then outstanding if the
Company would agree to the Union's provisions for a dues
checkoff and an express statement that the International
Union was not a party to the contract . In its brief,
Respondent describes the Union 's package proposals as
"muddled ." Shawd , however, conceded that he understood
that he could have a contract on the Company's terms
(except for the minor respects in which the Union's
proposals had already been agreed to) if he agreed to the
Union's sections 2 and 5. The proposals thus appear not to
have been "muddled ." In any event , had they been
"muddled ," Respondent presumably would have sought
clarification if i : had had any interest in reaching
agreement . Instead , Shawd rejected the offers because, as
he testified, the Company did not want either a checkoff or
an express provision declaring that the International
Union was not a aarty to the contract . Respondent made
no attempt to negotiate a possible compromise on either of
these issues , although Shawd had repeatedly stated that he
was not unalterably opposed to such provisions and that he
might agree to a modified version of a checkoff.
In its brief Respondent says: "Although the Union saw
fit to make package proposals which the Union in its hard-
nosed bargaining stance used as a tactic to forestall further
negotiations on the many subjects upon which agreement
had not yet been reached, it is clear that the Union insisted
upon most if not all of its master form contract throughout
the negotiations ." This statement is manifestly untenable.
Agreement had been reached on several provisions
different in both substance and form from those in the
standard contract . The Union's second and third package
proposals clearly abandoned its demand for any other
provisions of its form contract except section 2 (apparently
in the shortened form it had previously offered) and
section 5. Respondent does not explain why it might
possibly object to Union 's "forestall[ing] further negotia-
tions" by capitulation . The only apparent explanation is
that Respondent desired to continue negotiations for
appearance sake , but had no desire to reach agreement.
Respondent concludes its brief as follows:
In the twenty-seventh (27th) and final bargaining
session on September 12, the Union refused to accept
some new Company proposals and told the Company
that the Union would strike if the Company did not
agree to the Union's proposed Sections 2 and 5. The
Union then abandoned the negotiations and engaged in
a strike in order to force the Company to agree to its
unyielding and adamant demands.
Shawd testified that he had not attempted to give Grayson
his "new" proposals on September 12 and , as stated above
(p. 19), Respondent 's counsel maintained at the hearing
that the September 12 memorandum was therefore
911
irrelevant . However , since Respondent now refers to the
September 12 proposals as evidence of its willingness to
negotiate their content should be noted. Shawd conceded
that most of them had been made previously . And, as
shown in detail above (pp. 19-23), some of the proposals
were insignificant and the majority were restrictive , moving
away from rather than toward any rapprochement with the
Union . In themselves they are cogent evidence of Shawd's
desire to "negotiate" but not to reach any agreement.
The major burden of Respondent 's argument is that the
failure of the negotiations was caused by the Union's
recalcitrant insistence on its sections 2 and 5 "in haec
verbs. " There is no evidence that the Union ever insisted
on its wording or refused to discuss alternatives . Indeed,
the Union itself eventually offered an abbreviated version
of section 2. To be sure , the Union never did suggest an
alternative version of the checkoff provision, but Shawd
himself was unable to suggest any form of checkoff
provision which might meet his multitudinous objections,
actual or conjectural . All Shawd suggested was that
possibly the Union could present something that he had
been unable to "dream" of. Although he testified that he
had negotiated agreements with checkoff provisions, he did
not disclose their terms.
Respondent maintains that its panoply of specific
objections to the checkoff exemplifies good faith, as
contrasted with the Union 's failure to give any affirmative
reasons for a checkoff . There is no evidence that Shawd
ever requested any explanation of the Union 's request.
With his 30 years of experience as a management
consultant in labor relations matters, Shawd could hardly
claim ignorance of the self-evident reasons for union
demands for dues checkoff.
Respondent 's opposition to the Union 's proposed section
2 in itself smacks of bad faith. It was a matter of record,
well known to Shawd , that the Local Union alone had
been certified as the employees ' bargaining representative.
It was apparently in recognition of this indisputable fact
that Shawd , in February 1972, withdrew his insistence that
the International be expressly named as a party to the
contract. But he refused to clarify the matter , insisting
upon retaining the ambiguity of silence . Thus, the
International Union would be under the coercive threat of
litigation , necessarily inconvenient and expensive whether
warranted or not . In taking his position , Shawd did not
even seek an opinion of counsel as to whether Respondent
would have any colorable claim against the International.
Shawd's insistence on maintaining ambiguity on this
subject was in marked contrast to his excessive care to
avoid even the most minor areas of possible dispute in
other parts of the contract. For example , Respondent had
proposed a provision that a union steward "shall not
interrupt his work" to process a grievance "without the
permission of his supervisor ." Shawd rejected the sugges-
tion of a Federal mediator that there be added a statement
that "such permission shall not be unreasonably [or
capriciously ] withheld." Shawd's professed reason for
objecting was "because there could be an argument ... we
didn 't want there to be an argument whether something
was reasonable or unreasonable ." His changing "regular
workweek" to "normal workweek" and insistence that the
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
address of the plant be included in the contract (although
the Company had only one plant) are further examples of
his generally punctilious care to avoid the remotest
possibility of any ambiguity which he feared might permit
future controversy.
In brief, the record establishes without question that
Shawd was determined not to give an inch. As the Union
receded from its original proposal, Shawd consistently
came up with some new matter predictably undesirable to
the Union and predictably extending the negotiations.
After rejecting or totally ignoring the Union's package
proposals, Shawd made no attempt to continue negotia-
tions and stated that he felt under no obligation to make
any counterproposals. He testified that he felt that if the
union representatives wanted to pursue negotiations they
would get in touch with him, thus confirming the
conclusion that, whether or not Shawd expressly so stated,
Respondent did not want a collective-bargaining agree-
ment and felt any agreement had to be wrested from
Respondent by the Union. This attitude is fully reflected
by the contention in Respondent's brief that the failure of
the negotiations was due, at least in large part, to
Grayson's "inept bargaining ability." 3.5
Respondent further maintains that the Union refused to
bargain on the Company's proposals. As noted above, the
Respondent adopted the general outline of the Union's
original proposal, substituting the Company's demands for
various sections. As each provision was considered, the
Union's and Respondent's alternatives were discussed. On
March 15, 1972, Shawd accepted as satisfactory the
summary of the negotiations and the statement "of where
the different sections stood at that point" which Grayson
gave to the Federal mediator. Shawd said he had nothing
to add. At the next meeting, on March 22, the Mediator
passed the ball to Shawd, who was satisfied to "present
[his] reaction to the union proposal of 3-15." It thus clearly
appears that at no time did the Union refuse to consider
the Company's "counterproposals."
On all the evidence, I find and conclude that the totality
of Shawd's conduct manifests "a predetermination not to
reach agreement, or a desire to produce a stalemate, in
order to frustrate bargaining and undermine the statutory
representative." Stuart Radiator Core Mfg. Co., 173 NLRB
125. See also, e.g., Florida Machine & Foundry Corp., 190
NLRB No. 109; Rhodes-Holland Chevrolet Co., 146 NLRB
1304; Big Three Industries, Inc., 201 NLRB No. 105.
The complaint specifically alleges that Respondent
violated Section 8(a)(5) by refusing to bargain over the
checkoff of union dues. Respondent went through the
motions of bargaining on this issue on many occasions,
stating in great and repetitious detail its numerous
objections thereto. It also repeatedly purported to keep the
door open for relaxation of its position, stating that it
might consider some modified provision. But, as shown
above, it made no effort to reach agreement on this issue
35 Without passing judgment on the bargaining ability of any of the
representatives, I suggest that if Grayson was subject to a charge of
"ineptness," the charge could reasonably be leveled only by the employees
for his inability to obtain a contract despite his offering to waive important
employee protections and even to forego any increase in wage rates
established in 1969.
and gave no suggestion as to a possibly acceptable
provision, even though requested to do so.
On all the evidence, I find that, despite its "seeming
reasonableness," Respondent actually refused to engage in
meaningful bargaining concerning the checkoff of union
dues, a mandatory subject for bargaining. Roanoke Iron &
Bridge Works, Inc., 160 NLRB 175, enfd. sub nom. United
Steel Workers v. N.LR.B., 389 F.2d 295 (C.A.D.C.), cert.
denied, 391 U.S. 904.
The complaint further alleges that Respondent had
"negotiated ... in bad faith by withdrawing agreement on
contract provisions which had been reached in previous
bargaining sessions ." In his brief, the General Counsel
does not press this contention as such. The course of the
negotiations was such that the record is confused as to the
point. It is clear that Shawd did attempt to make some
changes in provisions previously agreed upon. However,
since very little, if anything, of major substance was ever
agreed on, and Shawd's later changes were generally
insubstantial,36 it cannot be said that his conduct in this
regard would of itself establish a refusal to bargain or
demonstrate bad faith. Accordingly, I make no specific
finding in this connection, but have considered the
evidence in reaching my conclusion as to the totality of
Respondent's conduct.
2. Direct dealing
The General Counsel maintains that Ivins' solicitation of
Givs to "abandon the strike" and return to work was
violative of Section 8(a)(5). In a somewhat similar situation
it has been held that an employer violated Section 8(a)(5)
by offering individual strikers wage increases to return to
work to perform emergency work. Thompson Brothers Coal
Co., 192 NLRB 24. On the other hand, Respondent
contends that Ivins' conduct cannot be found violative of
the Act "[i In the absence of evidence that such solicitation
was an integral part of a pattern of illegal opposition to the
purposes of the Act or was reasonably calculated to
undermine the umon or to demonstrate that the Company
sought individual rather than collective bargaining."
The Board has held that noncoercive solicitation of
individual strikers to return to work is not per se violative
of the Act. American Manufacturing Co. of Texas, 98
NLRB 226, 260; Webb Wheel Division, American Steel and
Pump Corp., 121 NLRB 1410, 1411, fn. 2. However, the
Board has also clearly indicated that where the solicitation
is accompanied by a promise of benefit it does contravene
the Act. Cf. The Texas Company, 93 NLRB 1358, 1360-61:
Absent a threat of benefit designed to coerce the
strikers into returning ..., the Respondent's individual
solicitation of the strikers must be determined against
the background in which the solicitation was done. For,
although the Board has, in the past, found individual
solicitation of strikers violative of the Act, in all such
l6 While I agree with Respondent's contention that the "withdrawals"
were "relatively minor and inconsequential," I specifically reject the
argument that withdrawals from specific agreements were permissible
because the parties "had agreed in the negotiations that all agreements
made during the negotiations were tentative , subject to alteration,
modification or change prior to effectuation of a complete agreement"
AMERICAN STEEL BUILDING CO., INC.
cases one or both of the following two factors has been
present : (1) The solicitation has constituted an integral
part of a pat tern of illegal opposition to the purposes of
the Act as evidenced by Respondent 's entire course of
conduct , or (2) The solicitation has been conducted
under circumstances , and in a manner , reasonably
calculated to undermine the strikers ' collective -bargain-
ing representative and to demonstrate that the Respon-
dent sought individual rather than collective bargain-
ing.... [Fns. omitted.]
It has been found that Ivins did promise Givs an
economic benef t in the form of a wage increase. It has
further been found that for over 10 months Respondent
had followed an overall pattern of unlawful refusal to
bargain with the Union in good faith. While Ivins may
have been subjectively motivated solely by an economic
need for Givs' services after his replacement proved
unsatisfactory, the surrounding circumstances were such as
to increase "the likelihood that the individual solicitation
of [Givs] would demonstrate a propensity to resort to
individual rather than collective bargaining." The Texas
Company, supra at 1361. In other words, largely as result of
Respondent's entire course of unlawful conduct, the
situation was such that there probably was no way in
which Respondent could solicit individual employees to
return to work without creating the natural and reasonable
inference that it was set on continuing its previously
established course of unlawful conduct. Accompanying the
solicitation of Givs by an offer of a wage increase was
inherently destructive of employee rights,37 particularly in
view of Respondent's failure to offer the Union any wage
increases or to engage in any meaningful bargaining
concerning wage rates. As part and parcel of its total
course of conduct, the solicitation of Givs to abandon the
strike and return to work was violative of Section 8(a)(5)
and (1) of the Act.
3. The strike
The complaint seeks a finding that the strike which
began on September 18, 1972, is an unfair labor practice
strike. It had been unanimously voted at a meeting held on
September 15, after Respondent had rejected the Union's
last-ditch offer to capitulate on all unresolved issues except
for its sections 2 and 5. At the union meeting "the status of
negotiations [was] reviewed and presented to the union
membership" before the strike vote was taken.
Respondent maintains that it is purely an economic
strike, engaged i,i for the purpose of enforcing the Union's
contract demands. In support of its position, Respondent
relies on the fact that the picket signs did not charge
Respondent with unfair labor practices, but said simply
that the employees were "On Strike."
There is no doubt that the strike was dictated solely by
the lack of success or progress in the contract negotiations.
The Union had riled a charge alleging a refusal to bargain
37 Although not the result of Respondent 's conduct , Givs' positions as a
member of the Union's negotiating committee and as the only picket
913
more than 4 months before voting to strike . The strike vote
followed a review of the bargaining history. Since, as
found , the course of the bargaining was dictated largely by
Respondent 's unlawful refusal to bargain in good faith, it
necessarily follows that the strike was an unfair labor
practice strike . That result is not altered by the fact that the
strike may also have been calculated to enforce bargaining
demands which the Union might not have achieved
without a strike even if Respondent had bargained in good
faith . Stuart Radiator Core Mfg. Co., supra at 126.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) of the Act by
failing to bargain in good faith with the Union on and after
November 17, 1971, as the exclusive bargaining representa-
tive of its employees in the following appropriate bargain-
ing unit: All hourly paid production and maintenance
employees at the American Steel Building, Inc. plant in
Houston, Texas, excluding field erection employees, all
other employees, clerical employees, guards, watchman,
and supervisors as defined in the Act.
2. By bypassing the Union and soliciting an individual
employee to abandon a strike and return to work on
October 24, 1971, Respondent has failed and refused to
bargain, in violation of Section 8(a)(5) and (1) of the Act.
3. The strike which began on September 18, 1972, is,
and has been since its inception, an unfair labor practice
strike.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that Respondent be
ordered to cease and desist therefrom and take affirmative
action of the type customarily ordered in such cases.
Because the evidence indicates that Respondent has been
"stalling" with the purpose of dissipating the Union's
support, apparently in the hope that a successful decertifi-
cation petition will be forthcoming at the end of the
certification year, I shall also recommend that the
certification year be extended through 1 year after
Respondent commences to bargain in good faith. Big
Three Industries, Inc., 201 NLRB 763.
Also, having found that the strike which began on
September 18, 1972, is an unfair labor practice strike, I
shall recommend an appropriate provision concerning
reinstatement of strikers . Stuart Radiator Core Mfg. Co.,
supra at 126 ; Federal Pacific Electric Co., 203 NLRB No.
93.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act , I hereby issue
the following recommended:
heightened the coercive potential of Respondent's conduct
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER-38
Respondent , American Steel Building Company, Inc., its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning wages, hours, and other terms and conditions
of employment with Shopmen 's Local Union No. 694 of
the International Association of Bridge , Structural and
Ornamental Iron Workers , AFL-CIO, as the exclusive
representative of all hourly paid production and mainte-
nance employees at the American Steel Building Company,
Inc., plant in Houston , Texas, excluding field erection
employees , all other employees , clerical employees , guards,
watchman , and supervisors as defined in the Act.
(b) Bypassing the Union and dealing directly with
employees on matters subject to collective bargaining or in
any other manner refusing to bargain with the Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
right to self-organization, to form , join , or assist any labor
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or
all such activities.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Bargain collectively in good faith with Shopmen's
Local Union No. 694 of the International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, as the exclusive representative of all the
employees in the appropriate unit defined above, and
embody in a signed agreement any understanding reached.
Regard the Union as exclusive agent as if the initial year of
certification has been extended for an additional year from
the commencement of bargaining pursuant hereto.
(b) Upon application , offer immediate and full reinstate-
ment to their former or substantially equivalent positions,
if jobs are available , without prejudice to their seniority or
other rights and privileges , to all those employees of the
Respondent in the certified unit who were on strike on or
after September 18, 1972, and who have not already been
reinstated , dismissing , if necessary , any persons hired as
replacements by Respondent on or after September 18,
1972. If sufficient jobs are not available for these
employees , they shall he placed on a preferential hiring list
in accordance with their seniority or other nondiscrimina-
tory practices theretofore utilized by the Company and
they shall be offered employment before any other persons
are hired . Make whole these employees for any loss of
earnings they may have suffered , or may suffer . by reason
of Respondent's refusal , if any, to reinstate them by
payment to each of a sum of money equal to that which he
normally would have earned during the period from 5 days
after the date on which he applied, or shall apply, for
reinstatement to the date of Respondent 's offer of
reinstatement to him, absent a lawful justification for
Respondent 's failure to make such offer . Backpay shall be
computed on the basis of calendar quarters , in accordance
with the method prescribed in F W. Woolworth Company,
90 NLRB 289 . Interest at the rate of 6 percent per annum
shall be added to the net backpay and shall be computed in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
(c) Post at its facility in Houston, Texas, copies of the
attached notice marked "Appendix." 39 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous place, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to assure that said
notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of the receipt of this
Decision what steps the Respondent has taken to comply
herewith.
38 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in See.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
39 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a Trial in which all parties had the opportunity to
present their evidence, it has been found that we violated
the law and we have been told to post this notice about
what we are committed to do.
The Act gives all employees these rights:
To organize themselves;
To form, join, or help unions;
To bargain as a group through a representative
of their own choosing;
To act together for collective bargaining or
other mutual aid or protection;
To refuse to do any or all of these things.
We assure all our employees that we will not do
anything that interferes with these rights.
WE WILL in good faith bargain collectively with
Shopmen's Local Union No. 694 of the International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, for the unit described below in
respect to rates of pay, wages , hours of work, and other
terms and conditions of employment, and, if an
understanding is reached, reduce it to writing and sign
it. The bargaining unit is:
All hourly paid production and maintenance
employees at the American Steel Building Com-
pany, Inc. plant in Houston, Texas; excluding
field erection employees, all other employees,
AMERICAN STEEL BUILDING CO., INC.
clerical employees , guards, watchmen and super-
visors as defined in the Act . Specifically excluded
as superviso -s are the Chief Inspector, Leadman
Maintenance , Foreman-Sheet Metal, and all
other employees classified as foremen.
WE WILL NOT bypass said Union and attempt to deal
directly with any employees on matters subject to
collective bargaining or in any other manner refuse to
bargain with said Union.
WE WILL NOT refuse to recognize or bargain
collectively with the said Union as the exclusive
representative of our employees in the unit described
above for a period of at least I year after we commence
to bargain in good faith pursuant to the Board's Order
and this notice.
WE WILL, upon application , offer all employees who
went on strike on September 18, 1972 , or thereafter,
immediate and full reinstatement to their former jobs,
or, if those positions no longer exist , to substantially
equivalent jobs , without prejudice to their seniority or
other rights and privileges.
915
WE WILL make the above-mentioned employees
whole for any loss of pay they may suffer as a result of
our refusal to reinstate them or employ them upon their
application.
Dated By
AMERICAN STEEL BUILDING
COMPANY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office , Dallas-Brazos Building,
1125 Brazos Street , Houston, Texas 77002 , Telephone
713-226-4296.