Mississippi Steel Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1968

169 N.L.R.B. 647 (N.L.R.B. 1968)

MISSISSIPPI STEEL CORP. 647
Mississippi Steel Corporation and United Steel
Workers of America, AFL-CIO. Cases 15-CA-
2772 and 15-CA-2858
February 5,1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 27, 1967, Trial Examiner Benjamin B.
Lipton issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the Respondent filed ex-
ceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following
modifications:
Although we agree with the Trial Examiner that
the unit employees should be made whole for the
loss they suffered as a result of the discriminatory
withholding of the 1965 Christmas bonus, we are of
the opinion that the record does not provide suffi-
cient evidence to support the Trial Examiner's con-
clusion as to the formula to be used in computing
how much each of the employees would receive.
The only evidence before the Examiner was to the
effect that the bonus had been paid every year for
7 or more years, with minor variations in the
amounts received each year. In these circum-
stances, we are of the opinion that the determina-
tion of the amounts due each employee could be
best determined in the compliance stage of these
proceedings, taking into consideration all pertinent
financial records of the Respondent which would
tend to bear on the amount of money that would
have been made available for the bonus but for the
employees' union activities.' Accordingly, The
Remedy section of the Trial-Examiner's Decision
is hereby modified by deleting that portion relating
to the use of the years 1962 through 1964 as a guide
toward determining the amount of bonus to which
each employee in the unit would be entitled.2 We
169 NLRB No. 96
are also of the opinion that it is not necessary to
pass on the finding that Respondent, in violation of
Section 8(a)(1) and (5), unilaterally paid Bishop, a
strike replacement, a higher sum of money than the
striking technicians who performed similar work,
prior to the strike.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, Mis-
sissippi Steel Corporation, Jackson, Mississippi, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Delete paragraph 1(h) of the Recommended
Order, reletter the following paragraphs ac-
cordingly, and delete the corresponding paragraph
in Appendix B, which reads as follows:
WE WILL NOT state or imply to our em-
ployees that striker replacements, or any other
employees, were or would be paid, higher
wages because they are nonunion.
2. Delete the names of Dave Anderson, James
Fisher, Roy Pendegrass, and James Spann, Jr.,
from Appendix A.
i American Fire Apparatus Company, 160 NLRB 1318, enfd 380 F.2d
1005 (C.A. 8).
2 The Trial Examiner erroneously ordered Respondent to offer rein-
statement to Dave Anderson, James Fisher, and Roy Pendegrass, three
employees who had resigned after having been reinstated shortly after the
end of the strike, and James Spann, Jr., who resigned during the strike and
who had apparently been rehired after the strike ended. As these em-
ployees are not entitled to an order of reinstatement, we shall modify the
Order by deleting their names from Appendix A. In addition, although the
Trial Examiner also found that the disposition of certain issues involving
several strikers (Trial Examiner's Decision, fn. 87) should be left to the
compliance stage of these proceedings, we would note that as of the time
of the hearing the record does not show that these employees have yet
abandoned the strike and that, therefore, absent other considerations, they
remain unfair labor practice strikers entitled to reinstatement upon proper
applications. As to the Trial Examiner's finding that the solicitation of in-
dividual strikers to abandon the strike was violative of the Act, we note
that the strikers were unfair labor practice strikers and that, in any event,
the solicitations were accompanied by unlawful threats and promises of
benefits.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: Upon a com-
plaint by the General Counsel of the National Labor
Relations Board,' a hearing in this proceeding was held
December 12 through 16, 1966, in Jackson, Mississippi.
1 The original charges by the Union were filed and served in Case
15-CA-2772 on or about January 21, 1966, and in Case 15-CA-2858 on
or about June 8, 1966. Amended charges in both cases were filed on
February 17 and September 29, respectively The consolidated complaint
was issued on October 14, 1966
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issues litigated involve allegations against Respond-
ent of various independent violations of Section 8(a)(l),
(3), and (5) of the National Labor Relations Act, as
amended. Respondent generally denies the commission
of any of the alleged unfair labor practices. At the hear-
ing, all parties were represented and were afforded full
opportunity to present relevant evidence, to examine and
cross-examine witnesses, and to argue orally on the
record. Comprehensive briefs filed by Respondent and
General Counsel have been given close and careful con-
sideration.
Upon the entire record2 in the cases, and from my ob-
servation of the demeanor of the witnesses on the stand,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Mississippi Steel Corporation, herein called the
Respondent, operates a plant at Flowood, Mississippi,
where it is engaged in the manufacture of steel products.
During the year preceding issuance of the complaint,
Respondent had a direct inflow in interstate commerce of
raw materials and supplies valued in excess of $50,000
and a direct outflow in interstate commerce of manufac-
tured products valued in excess of $50,000. Respondent
admits, and I find, that it is engaged in commerce within
the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
I Jnited Steel Workers of America. AFL-CIO, herein
called the Union or the Charging Party, is a labor or-
ganization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introductory Facts and Issues
On December 9, 1965, a Board election was con-
ducted, and on December 17, 1965, the Union was cer-
tified as exclusive bargaining representative in a produc-
tion and maintenance unit of about 160 eligible em-
ployees. Beginning on February 17, 1966,3 the parties
met in 10 appointed bargaining sessions , culminating on
October 20 ,4 at which time no agreement had been
reached on any of the major subjects except grievance
procedure. On the night of March 22, after the bargaining
session that day, a spontaneous work stoppage occurred
at the plant. The next morning, at 9:30, the Union advised
Respondent that the stoppage was unauthorized and the
employees would be instructed to return to work, which
result was accomplished after a union meeting convened
that afternoon. However, according to testimony of
Respondent's attorney, Leslie L. Inman , he informed the
Union that since the strike, Respondent had committed
itself to the purchase of finished products which would
last a month or two, and that many of the employees
would not be taken back until the purchased steel was
used up or the inventory was low enough. As a con-
2 Without opposition , Respondent's motion is granted to correct the
transcript in minor respects , the motion itself appearing in the formal
public files.
3 All dates are 1966 where not otherwise indicated.
4 Although Respondent stated the position at the hearing and in its brief
sequence, not all the employees engaged in the stoppage
were then restored to their jobs. Concerning this brief
stoppage, no specific contentions are made on either side,
except as it relates to the broad issue of bad-faith bargain-
ing in the course of negotiations.
Thereafter, from April 23 to August 8, an authorized
strike of employees took place at Respondent's plant.
During this period, new employees were hired and certain
of the 'strikers returned to work. On August 7, at a union
meeting, the strike was called off, and the strikers were
instructed to report back to work the following morning.
By letter from the Union dated August 6, Respondent
was advised in substance that the strike was terminated,
that the striking employees immediately available were
told to report to work on August 8, and that their return
to work was "not conditioned on any terms of agreement
with the Union." Detailed testimony was adduced con-
cerning the applications of strikers for reinstatement and
the status of their jobs at the end of the strike. Virtually
all who applied were told initially that no vacancies were
available, and they were not reemployed; at later dates,
certain of these strikers were reinstated.
General Counsel contends that the strike was caused
and prolonged by Respondent's unfair labor practices,
and that Respondent was therefore required to reinstate
the strikers, upon their unconditional application, to their
former or substantially equivalent jobs, discharging their
replacements, if necessary. On the theory that the
Union's August 6 letter to Respondent constituted a
blanket reinstatement application or, alternatively, that
individual applications were properly made, the General
Counsel alleges a discriminatory failure to reinstate 90 of
the strikers,5 in violation of Section 8(a)(3) and (5).
Respondent's position is that the strike was called and
continued for purely economic reasons, and that the
strikers who made proper application were entitled to
their same or similar jobs only insofar as such jobs were
available after the strike.
Other essential issues alleged and litigated are as fol-
lows: Under Section 8(a)(3) and (5) - unilateral action in
failing to pay Christmas bonus in 1965; unilateral change
in method of paycheck distribution; unilateral change in
method of scheduling overtime work; and unilateral wage
raise of lab technicians. Under Section 8(a)(1) and (5) -,
preelection threats of eliminating the Christmas bonus if
the Union won; soliciting strikers to return to work, using
reprisal threats and offers of benefits; ordering picketing
employees to get off property with threats of arrest;
threats of plant closure; engaging in surveillance of em-
ployees' union activities at meeting place; refusing to
supply the Union with data of names, job titles, and pay
rates of employees working during the strike, and data
relating to pensions and profit sharing. Under Section
8(a)(5) generally - bad-faith bargaining, e.g., by delaying
tactics and unavailability of attorney for negotiations;
failing to make proposals or counterproposals on major
issues, including certain existing benefits; unilaterally
raising wages; and offering to pay previously discon-
tinued 1965 Christmas bonus contingent on Union
dropping charges before Board.
dated February 19, 1967, that negotiations have not been broken off, it
does not appear that any further bargaining has taken place since October
20.
5 Named in Schedule A of the complaint, as amended at the hearing,
and listed in Appendix C attached hereto.
MISSISSIPPI STEEL CORP. 649
B. Unilateral Discontinuance of 1965 Christmas Bonus
A major source of controversy in the case concerns
Respondent's decision, shortly after the Union's certifi-
cation in 1965, not to pay the "gift" or bonus which had
been given the employees at Christmas for each of the
prior 7 years. The Union was not notified or consulted
with respect to the nonpayment.6
As already indicated, the General Counsel alleges that
Respondent acted unilaterally, in derogation of the
Union, by changing a term and condition of employment,
and that it unlawfully discriminated against the em-
ployees. At the hearing and in its brief, Respondent as-
serts that the annual Christmas payments to the em-
ployees lacked any formula, pattern, or relation to their
wages, that it was purely discretionary with Respondent,
and that it constituted a gift or gratuity not subject to bar-
gaining. Further, Respondent appears to argue that, in
any event, it fulfilled its obligation by offering during the
contract negotiations to bargain concerning the omitted
1965 "gift," and such offer was refused by the Union.
Abundant authority in Board and court cases provides
clear guidance on the instant subject of Christmas
bonuses. The oft-quoted language in an early Second Cir-
cuit opinion well defines the applicable tests:
It ... merely begs the question to call them "gifts"
and to argue, however persuasively, that gifts per se
are not a required subject for collective bargaining.
But if these gifts were so tied to the remuneration
which employees received for their work that they
were in fact a part of it, they were in reality wages,
and so within the statute.... Where, as here, the so-
called gifts had been made over a substantial period
of time and in amount had been based on respective
wages earned by the recipients, the Board was free
to treat them as bonuses, not economically different
from other special kinds of remuneration like pen-
sions, retirement plans or group insurance, to name
but a few, which had been held within the scope of
the statutory bargaining requirement.7
If such payments are truly gifts and not compensation to
employees for their work, the employer is free of the bar-
gaining obligation in making or omitting such an award."
The question is one of fact, determined by all relevant
considerations, including length of time and regularity of
payments in past; relation of amounts paid to position,
wage rate, seniority, or work performance of recipient;
and whether employees were led reasonably to rely on
payment as an incentive or compensation for their work.
Where the employer seeks to eliminate an existing condi-
tion of employment, in the form of a Christmas bonus, he
is under a statutory duty to notify the union and provide
it with an opportunity to negotiate on the proposed
change.9 The bargaining obligation is thus imposed, and
for obvious reasons, before any action is taken to imple-
ment the change. And, as repeatedly held in the cases, an
unlawful failure to bargain occurs at the time that a com-
pensatory bonus is unilaterally discontinued by the em-
ployer. "After the fact," the violation cannot be cured by
the employer's indicated willingness to bargain on the
subject.10
Evidence concerning the omitted 1965 Christmas
bonus was adduced for the General Counsel in the
testimony of certain employees. William E. Chunn was
given a bonus before Christmas of $25 after 3-1/2 months
of employment in 1959, and for each year thereafter, ex-
cluding 1965, he received such bonus in amounts ranging
to $152 and $166. In 1966, his normal take-home pay was
$72, and his hourly rate was $2.10. Sam O. States, Jr.,
and Jimmy C. Payne received Christmas bonuses every
year from 1958 to 1964. At the beginning, the bonus
came in the form of a separate check, but later it was
added to the regular payroll check. A card with a Christ-
mas greeting which accompanied the bonus check stated:
"This Gift is Evidence of our Appreciation of a Job well
done during the past Year."
The foregoing evidence, I find, is sufficient prima facie
to establish, inter alia, on the bases of length of time,
regularity , manner , and purpose of payment in relation to
work performed - that the Christmas bonus was part of
the compensatory wage structure of the employees and a
term or condition of employment, as distinguished from
a pure gift or gratuity.
The burden of going forward with the evidence for
Respondent was assumed entirely by Respondent's attor-
ney, Inman , on the witness stand. He commenced to tes-
tify materially as follows: After the Board election, he
discussed the bonus question with W. A. Caldwell, Jr.,
and in part with W. A. Caldwell, Sr., respectively, the
president and the chairman of the board of Respondent.
Caldwell, Jr., wanted to know, before a bonus decision
was made, whether it was necessary to negotiate with the
Union on the matter. Inman indicated the legal problems
involved and asked Caldwell, Jr., to get him more infor-
mation as to whether or not Respondent had "such a firm
or fixed pattern" that Respondent could give the "gift" as
part of its regular wage program without having to
negotiate with the Union. Caldwell, Jr., later advised him
that, after reviewing the amounts of the gift and grounds
on which it was given in the past, he found "variations in
it" and was uncertain they had enough information.
Inman said that he thought he should come to the plant
with the accountant and look at the figures and records;
he did not think it was satisfactory for Caldwell, Jr., to tell
him Respondent had a practice that was ' consistent.
Inman then studied the company records -for 2 or 3
hours. Thereafter, he had a meeting with Caldwell, Jr., at-
tended in part by Caldwell, Sr. He testified that "the
method" was for the executive board to select a gross
figure each year and then to permit Caldwell, Jr., "to dis-
tribute that bonus in the manner in which he thought was
most appropriate." He told the Caldwells that his "ex-
amination of the records of the past gifts indicated that
the gross amounts varied from year to year irrespective
or without relationship to the number of employees or ac-
crual of length of service of the employees as a group, or
6 General facts which are undisputed.
7 N L R.B. v. Niles-Bement-Pond Company, 199 F 2d 713, 714 (C.A.
2). To the same effect: N.L.R B. v. Exchange Parts Co, 339 F.2d 829
(C.A. 5), General Telephone Co. of Florida v N.L R B, 337 F 2d 452
(C.A. 5); N.L R.B. v. Electric Steam Radiator Corporation, 321 F.2d 733
(C.A. 6); Singer Manufacturing Company v. N L.R.B., 119 F.2d 131,
cert. denied 313 U.S. 595; N L R.B v. Crosby Chemicals , Inc , 274 F.2d
72 (C.A. 5), Citizens Hotel Co., d/bla Hotel Texas, 138 NLRB 706, enfd
in pertinent part 326 F 2d 501 (C A. 5); Stark Ceramics, Inc, 155 NLRB
1258; New Orleans Board of Trade, Ltd, 152 NLRB 1258, The Amer-
ican Lubricants Company, 136 NLRB 936
8 N.L R.B. v. Wonder State Manufacturing Company, 344 F.2d 210
(C.A 8).
1 N.L.R.B. v. Benne Katz, 369 U.S 736, May Department Stores v.
N.L.R.B., 326 U S. 376.
10 Stark Ceramics, Inc., 155 NLRB 1258, 1265
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
things like that. As a consequence of this and other fac-
tors, there was absolutely no pattern to it. It was true that
some employees got approximately the same amount in
more than 1 year ... but no formula applied to it....
The following colloquy then took place on the record:
TRIAL EXAMINER: You are not using this as fact?
This is just advice? I don't know how pertinent this
could be ... what your advice is and what your con-
ception is. As to the facts, of course, they will not
establish the facts. You would have to take them
from the records, as you know.
As to his advice, whether it was correct or erroneous
in law, it's not going to matter. If you want to indicate
that he advised the client and that the client could
withhold or give away [the bonus], whichever it is,
why do we need the lengthy discussion and what the
advice to the client is? Are you going to introduce
anything through Mr. Inman?
MR. STOUT (examining counsel for Respondent): In
other words, you are talking about in the way of
figures and records?
TRIAL EXAMINER: Yes.
MR. STOUT: Not through Mr. Inman, no.
Continuing his testimony, Inman advised the Cald-
wells, and it was agreed, that they could not go through
with the Christmas "gift" because "it was a subject of
negotiations." He told them the Union would approach
the Company very promptly about the excluded bonus
and that it would be "part and parcel of it and a large fac-
tor, perhaps, in the monetary package." Before negotia-
tions began, Caldwell, Jr., instructed him that he "did not
want to convert the Christmas gift into a fixed obligation
under the contract," though he had no intention of discon-
tinuing it, and "that he wanted to preserve it as a gift. But
that was subject to revision if the strategies and
economics of the negotiations should dictate."
Respondent's official records are, of course, the most
direct and best evidence as to the essential facts in deter-
mining whether the annual Christmas payments were in
the nature of compensatory wages, or were merely a
gratuity, as Respondent is contending. For Inman (who
was an actively participating counsel in the trial and in the
brief, and Respondent's principal negotiator in the con-
tract bargaining), it was a gross exploitation of improper
hearsay to attempt to introduce through his testimony the
findings and fact conclusions which he purportedly ob-
tained from examining the company records. It would
have entirely sufficed, for purposes of the allegation of
discriminatory motivation, for Inman or either of the
Caldwells" to indicate, as was in any case apparent, that
Respondent received or acted on legal advice.
Inman continued to testify, mainly in cross-examina-
tion, as to additional bonus facts. Each year the executive
board ("it could have been the Board of Directors")
looked into the figures that had been used in all previous
years and then selected a gross amount of bonus applica-
ble to all personnel, on up to the chairman of the board,
and it was up to Caldwell, Jr., to decide on the distribu-
tion. The gross amount varied from year to year; in 1964,
it was substantially less than in previous years. He "ex-
amined the figures of a substantial number of individual
employees on a year-to-year basis and determined that
" Caldwell, Jr., was not called to testify, and Caldwell, Sr., was not
questioned on the bonus subject.
there was simply no way that we could prove that we had
any fixed formula." Caldwell, Jr., told him in advance that
he considered the "length of service, wage level, job level,
performance, and those sort of things." Inman studied the
records along these lines to see if there was any con-
sistency; he found that "people of the same service and
the same rate got the same amount of money that year.
This usually varied, however, even if you applied a for-
mula to those people." The "exact procedure" followed
by Caldwell, Jr., was to go down the payroll list and de-
cide for himself what each employee was going to get.
One year Caldwell, Jr., gave a relatively new employee
$75, while most new employees got $25. There were
variations on whether the individual or department had
done a particularly good job. (Inman said he testified from
what he deduced from his investigation of the records and
later discussed with Caldwell, Jr.) The bonuses ranged
from relatively small figures to $175, and maybe a little
more. Q. "Pretty close to what an employee would make
every 2 weeks, would you say?" A. "It depends on the
employee, of course." Higher rated people got a higher
bonus than lower rated people, but it was not necessarily
in direct proportion, and length of service did play a part.
When questioned as to specific bonus data, Inman's
replies became vague and evasive. Asked, for example,
whether the executive board gave Caldwell, Jr., a figure
for 1965, Inman's eventual response was, "He did not tell
me ... but I don't believe they had." He (Inman) is "not
their General Counsel,"-does not think the executive
board action is a matter of record, and does not know if
there are minutes of the board meetings. In going over the
company records regarding the bonus, he made some cal-
culations and notations, but he assumes that he destroyed
them.
Q. (By Trial Examiner) Did you have any written
data on which to base a decision or offer on the sub-
ject [of bonuses]?
A. Well, I knew what the gross figures would be.
Q. What were the gross figures?
A. Well, I don't remember them right now. I
could get them for you, but I don't remember them.
My recollection is that the annual figure was plus or
minus $20,000 or something like that. I may be off
base, but I think somewhere in that vicinity.
At the outset of Inman's hearsay testimony concerning
the bonus data in the company records, the Trial Ex-
aminer questioned Respondent' s examining counsel
whether such records were going to be produced and was
told-"Not through Mr. Inman, no." An implication was
that the records, or pertinent extracts, would be in-
troduced before hearing concluded. In off-the-record
discussions, the Trial Examiner indicated his desire for
such official data, to be submitted preferably in the form
of a stipulation. No disagreement or objection was
voiced. However, by the close of the hearing (on Decem-
ber 16), the documentary material had not been produced
nor any position expressed of an unwillingness to do so.
At the conclusion , the following statement was made on
the record:
TRIAL EXAMINER: The parties have also discussed
off-the-record the submission after the hearing ad-
journs today of certain data with respect to company
records in connection with the payment of the gift or
bonus in prior years and will attempt to reach a stipu-
lation and to send it to the Trial Examiner when such
information is collected and agreed upon, and the
record will receive such information upon the stipu-
MISSISSIPPI STEEL CORP.
lation of the parties and will be admitted as Trial Ex-
aminer's Exhibit 2.
On March 10, 1967, not having received any communi-
cation on the subject,12 the Trial Examiner sent a tele-
gram to each of the parties requesting prompt advice as to
"what action was taken pursuant to TX statements off
record and at transcript pp. 907-8." (Quoted above.) On
March 13, 1967, the General Counsel's attorney wired
his response (with copy to Respondent) to the effect that
he had written and spoken to Inman to "compile what-
ever information he thought would satisfy the Trial Ex-
aminer's request," but without result. In a letter dated
April 3, 1967, from Attorney Inman,13 he states in sub-
stance that no ground for mutual agreement with the
General Counsel in regard to a stipulation could be
reached, and he is "unaware of any facts concerning
which a stipulation could be reached." While this is cer-
tainly not a case of having to edify an untutored novice,
I will nevertheless specify the pertinent bonus data- as
that available from company records from 1958 through
1964, such as lump sums allocated for yearly bonus,
names of recipient employees, with their classifications
(covered in unit), hourly rates, length of service, and
amount of annual bonus, together with personnel record,
if any, of performance of employee or department, or any
other recorded factor bearing upon amount of bonus paid
to employee. As these are matters of official record, there
should have been no difficulty in reaching a stipulation
with General Counsel for submission of reduced summa-
ries and extracts, or figures for representative classes of
employees or for typical years. On April 6, 1967,
General Counsel's attorney wrote to Inman disputing a
statement in his letter that he had suggested to General
Counsel "certain information to which Respondent
would readily agree to stipulate" - so far as it pertains in
any way to the method of formulating or computing the
Christmas bonus. 14
Upon close examination of the entire record, I find it
unnecessary to consider striking Inman's testimony in-
sofar as it relates to bonus data available from company
records and from either of the Caldwells as the primary
source of statements. I have been left with a definite con-
viction that Inman occupied the stand as an advocate,
concerned more with his conception of Respondent's in-
terests than with his responsibilities as an attorney-wit-
ness. He freely gave averments of his generalized conclu-
sions without supplying the probative facts, and was con-
veniently lacking in memory when confronted for specific
detail. He was, vague and evasive in significant areas, and
generally he displayed a preoccupation with gamesman-
12 General Counsel's brief asserted that Respondent chose not to in-
troduce appropriate records.
13 I cannot accept or believe Inman's apologia that "due to heavy press
of work," etc, it was " impossible" for him to comment sooner upon the
General Counsel's response to the Trial Examiner's telegram . My tele-
gram was addressed essentially to Respondent and not to Inman pro se,
and he does not comment upon Respondent's failure to respond directly
to my request
14 Trial Examiner's telegram to the parties and communications
received in response are admitted as Trial Examiner's Exhibits 3(a)-(d).
The telegraphic reniv from the Union is not included as it contains irrele-
vant matter.
is N L.R.B v. Wonder State Manufacturing Company, 344 F 2d 210
(C.A. 8), supra. However, the withholding of even a gift for discrimina-
tory reasons would violate Section 8 (a)(3).
651
ship and strategy. Additionally, in certain of his testimony
relating to the bargaining negotiations discussed infra, he
further demonstrated his unreliability as a witness. Ac-
cordingly, I do not credit his uncorroborated and hearsay
testimony pertaining to the facts and bases for Respond-
ent's payment of a Christmas bonus in the years preced-
ing 1965, excepting such admissions as he made against
interest.
Furthermore, a basic inconsistency pervades Inman's
testimony and Respondent's whole position on the 1965
bonus issue. Inman ostensibly advised Respondent in
substance that the bonus was a pure gift; and such has
been Respondent's position throughout. If the bonus
were indeed a bona fide gift, and not in fact compensa-
tion, Respondent was free to grant or withhold it without
any obligation to bargain.15 Yet Inman testified that the
bonus was not paid in 1965 because in his opinion it was
a required subject of bargaining with the Union. In the
contract negotiations, he insisted that it was a matter for
bargaining as part and parcel of the economic package.
And a similar stance is taken in Respondent's brief, which
also argues that Respondent never stated its refusal to
pay the bonus.16 These varying positions are mutually in-
compatible and reflect upon the sincerity of Respondent
in the entire issue.
As already in effect shown, Inman's testimony has not
operated to overcome, and indeed by certain admissio-
ns17 it supplemented, the General Counsel's prima facie
evidence that the Christmas bonus constituted compensa-
tory wages concerning which Respondent was obliged to
notify and consult with the Union regarding any change.
By canceling the 1965 bonus, Respondent unlawfully en-
gaged in unilateral action, without prior discussion with
the Union, which "does amount to a refusal to negotiate
about the affected conditions of employment ... and
must of necessity obstruct bargaining. ...X18
The elimination of 1965 bonus is also alleged as dis-
criminatory against the employees, in violation of Section
8(a)(3). Initially, it may be stated that,' irrespective of
such a separate finding, the remedial result would be the
same, in this instance.19 However, in my opinion there is
sufficient positive evidence here for a holding of dis-
criminatory action. A substantial motivating reason20 for
the bonus withholding, as shown and I find, was the
strategy of Respondent to use this "large monetary fac-
tor" as a bludgeon and economic weapon in the an-
ticipated contract negotiations. To accomplish this objec-
tive, Respondent unlawfully bypassed the employees'
bargaining representative by unilaterally instituting the
change of an employment condition before contract
16 As will be later described, no semblance of an offer to pay the ex-
cluded 1965 Christmas bonus was made in any of the bargaining sessions;
and in August, Inman telephoned Edwards with a proposition to pay that
bonus only if the charges against Respondent were dropped.
17 E g., that the bonus bore an approximate relation to 2 weeks' pay of
an employee, and was governed by such factors as length of service, rate
of pay, job level, and performance.
11 N.L R.B v. Benne Katz, 369 U.S. 736, 747.
19 N.L.R.B. v Exchange Parts Co, 339 F.2d 829 (C.A. 5), enfg. 139
NLRB 710, N L.R.B. v. Central Illinois Public Service Company, 324
F 2d 916 (C.A. 7), Stark Ceramics, Inc., 155 NLRB 1258, 1266-67, enfd.
375 F.2d 202 (C.A. 6); The American Lubricants Company, 136 NLRB
946.
20 "It is sufficient if it is a substantial reason, despite the fact that other
reasons may also exist." N.L.R.B v. Electric Steam Radiator Corpora-
tion, 321 F.2d 733,738 (C A. 6).
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations were sought or commenced . In the circum- 'were picketing near the plant entrance . Board said he was.
stances, Inman 's testimony provides no defense that Lois to put on another shift and needed a couple of men
Respondent's decision to withhold the bonus was based
upon his legal advice. Obviously, the employees suffered
a serious detriment in this failure to pay a substantial
economic benefit. Coming on the heels of the Union's
certification, and without notice or explanation to the
e added that he would try to make these employees into
melters - a higher paying job. Barnes testified that they all
smiled, and that he did not take the remark seriously.
Board is not credited in his denial of such conversation.
Though the offer was made with tongue in cheek, there
was a sufficient implication, and I find, that he was seek-Union or the employees, it had the inherent effect of
discouraging union membership.21 Other evidence of
Respondent's union animus in relation to the discon-
tinuance of the bonus is amply reflected herein. In sum,
I conclude that the cancellation of the 1965 Christmas
bonus was motivated substantially by unlawful reasons,
including reprisal against the employees for selecting the
Union, and was therefore in violation of Section 8(a)(3).22
C. Further Independent Violations
1. Supervisor Board
Employee Chunn testified that on the night before the
scheduled election (December 9), Paul A. Board,
assistant melt shop superintendent, spoke to James
Robinson and another employee in the melt shop office '23
while Chunn was present. Board said, "You boys better
vote right tomorrow if you want to get your Christmas
bonus. I'm looking forward to it myself." After the other
employees walked out, Board told Chunn, "I feel sure if
the Union goes in, we won't get a Christmas bonus this
time."
Employee Jimmy Payne testified that, after the election
but before Christmas, he had a conversation with Board
in the melt shop office. He asked if the employees were
going to get the Christmas bonus and Board replied, "No
... the man with the brief case left with it."
Board testified that Chunn had constantly questioned
him about the Christmas bonus before and after the elec-
tion, and in previous years as well. Similarly, everyone
under his supervision approached him concerning the
bonus. After Christmas in 1965, there were a "great
many" questions from the employees. "Practically
everybody had it spent they all told me." He had "one
standard answer for all the inquiries": they knew as much
about it as he did. He declared that such was in fact the
extent of his knowledge.
I seriously doubt that Board's "standard" reply was all
that he said and, despite his denials, I am disposed to
credit Chunn and Payne. As to Chunn's testimony, I find
an express threat, in clear violation of Section 8(a)(1).
Payne's testimony was not specifically alleged in the
complaint, although it was fully litigated. In the postelec-
tion context, it is a reasonable implication from Board's
cryptic remark about "the man with the brief case" that
the employees would not get the bonus. However, while
technically I find no violation, particularly in view of the
ambiguity, there is an element of union animus conveyed
by the remark which may be considered for background
purposes.
During the strike which commenced on April 23, infra,
Board spoke to Fred Barnes and James Harris while they
21 It is immaterial that the 1965 bonus was also withheld from nonunit
personnel.
22 E.g ., Electric Steam Radiator Corporation , 136 NLRB 923, enfd.
321 F.2d 733 (C.A. 6).
zJ In this area , candy and soft drink machines are made available to the
employees.
ing their abandonment of the strike and return to work.
The alleged violation is accordingly sustained.
2. Superintendent Dyas
On July 20 (during the strike), Plant Superintendent
William L. Dyas was observed with an unidentified com-
panion in a parked car across the street from the union
hall during a meeting of Respondent's employees. He had
a pencil and tablet and was in a position of writing. The
purpose of the meeting was to sign up some of the striker
replacements.24 Dyas denied that he had or wrote on a
pad, but stated that he knew which employees were going
in and out of the hall. I am unable to credit the explana-
tion offered by Dyas that, at the spur of the moment, he
stopped in front of the hall "just to see what [he] could
see in that respect, if [he] could get any clues." He was
referring to certain purported violence which had previ-
ously taken place, and as to which the Union nor the
strikers were shown to be implicated. He could not
answer whether he knew of this union meeting from a
handbill distributed in the plant.
While he was picketing in the fourth week of the strike
(about May 23), Roy W. Pendegrass was approached by
Superintendent Dyas and asked if he was ready to come
back to work. Pendegrass_ said, "No, not quite." Dyas
wanted to know what he meant, whether he would be'
ready to report on Monday, and the answer was negative.
Pendegrass was a lab technician, earning $1.80 an hour
before the strike. About July 20, he went to see Dyas at
the plant office. They discussed the pay and conditions at
Respondent's as compared with those on a job which
Pendegrass was then holding. Inter alia, Dyas stated:
Respondent was putting on a third shift in the melt shop
before long, and overtime would soon be available. The
Union had started a new sign-up campaign, trying to get
striker replacements. 25 He had about 200 people
presently working, and he thought that a few had joined
the Union. He did not understand why replacements
signed union cards and went on strike, because they
would have to be let go if a contract, with a seniority
clause, were signed with the Union. The Company would
not be going Union. "When they had a stockholders
meeting ... one stockholder throwed up his hands and.
.. all the rest of them ... throwed up their hands to keep
this plant the way it is.... This company had got money
and these stockholders have got money [and] they will
close this place down for 2 years to keep it like it is...
And they will do it, too."
On August 8, upon termination of the strike, Pen-
degrass applied for reinstatement. Kendall Ashley, per-
sonnel manager, told him there were no vacancies and he
24 The Union had earlier sent Respondent a letter containing , inter alia,
notification that the Union was embarking upon a campaign to organize
the striker replacements , infra.
25 Note such knowledge by Dyas in relation to his surveillance activity,
supra.
MISSISSIPPI STEEL CORP. 653
would be called if anything came up. On August 29, after
being summoned by Ashley, he was rehired as a lab
technician at the $1.80 rate he received before the
strike.26 He was given the same work that he did before
the strike, and he also prepared samples to go into a spec-
trograph, designed to analyze the quality and content of
the steel product.27 Dyas had told him on July 20 that
there were five good applicants for the job of lab techni-
cian, and he had hired a man (Charlie Bishop) with 15
years' lab experience. Pendegrass had been informed at
the unemployment office and also by Personnel Manager
Ashley that Respondent was paying lab technicians $350
a month. When Pendegrass returned to work, Bishop con-
firmed that he was being paid this salary. The following
week, Pendegrass went to see Dyas with a complaint. He
asked if the lab technicians were going to be called upon
to do the same work, and if they were all going to be paid
equally. He received an affirmative answer to both que-
ries. He then related his information that Respondent was
paying $350. Dyas explained that this salary was based
on a 22-day month, or at the rate of $2.05 an hour. Pen-
degrass then spoke about resigning, and Dyas indicated
he would see what he could do about the wage question.
A few days later, Dyas said that he had checked with
Respondent's attorney and was advised that $350 could
not be paid to Pendegrass because it would violate the
Act. Dyas stated that Respondent could not give him the
$350 without asking the Union, and remarked further: "If
you fellows get together and get a petition to petition this
Union out of here, we can do these things the way we
want to." Continuing, Dyas said that the boss did not care
whether replacements were started at $1,000 a month, or
"definitely more" than the strikers were getting- because
they never voted on the union issue and never went on
strike. Pendegrass resigned on September 25.
The foregoing is based upon the version given by Pen-
degrass. Dyas' uncorroborated testimony, to the extent
inconsistent, is not credited. Among other things'28 he
testified that Pendegrass was recalled at the end of Au-
gust after Respondent had added a third production crew
in the melt shop; that Bishop, hired during the strike as
lab technician, was doing a "different job entirely"; that
Bishop was experienced on the spectrograph and had to
be paid more money because of the difficulty in finding a
man with his qualifications. However, Dyas admitted that
the salary of $350 was given to the employment agency
before Bishop was hired; that when the spectrograph was
purchased prior to the strike, it was intended that Pen-
degrass be trained in its operation; and that Bishop per-
formed the usual work of lab technician before Pen-
degrass returned 29
My findings are as follows: The record does not bear
out that Bishop was doing a "different job entirely." It is
noteworthy here that, in the course of the bargaining
negotiations; the Union requested that Respondent
supply the names and pay rates of striker replacements
(issue discussed infra), and Respondent informed the
Union that the current employees were receiving no more
than the prestrike rates. Respondent was statutorily
obligated to bargain with the Union concerning any new
rates or changes in existing rates for employees in the bar-
gaining unit, including striker replacements . In the con-
duct described above, Respondent violated Section
8(a)(5) and (1) by unilaterally raising the wage rate for lab
technician, as pertained to Bishop, without notifying or
consulting with the Union;30 by stating that the Company
"would not be going Union," and that the stockholders
would close down the plant for 2 years "to keep it like it
is"; by suggesting that the employees "petition this Union
out of here"; and by implying that the replacements were
being paid more than were the strikers because they were
nonunion. And it independently violated Section 8(a)(1)
by soliciting a striker to return to work,31 and by
flagrantly engaging , in surveillance of employees' pro-
tected activities.32
3. Personnel Manager Ashley
Samuel Lester testified that on August 4, when he
inquired at the gate for his check, he was referred to
Ashley's office. Ashley said, "I don't know what you
hope to gain by walking the picket line out there." He ex-
plained that Lester was not going to get in after the strike,
despite what the Union told him, and that as a striker
replacement he would not have any job, even if the Com-
pany signed a contract. Ashley also stated that the people
that owned the Company had plenty of money and
"would shut this place down before they would sign a
contract with the Union."33
During his employment, Lester was absent 2 days for
sickness, and his immediate supervisor "made a big to do
over it," removing him from his particular job. To clarify
previous testimony, Lester indicated that he actually
went on strike July 13 , when he inquired about joining the
Union and was told to come to the union hall 2 days later.
On July 14 he was absent from work because he was sick,
and told his wife to call the plant. On July 15 he signed a
union card, but did not start picketing until 4 or 6 days
later, during which interval he did not communicate with
the plant. He was never informed that he was fired for
being absent.
Ashley stated that he terminated Lester about July 21
or 22, and saw him picketing a week or a week and a half
later. However, documentary evidence from Respond-
ent's official records of personnel actions during this
period do not reflect that Lester was terminated or
severed from the payroll. 34 No reason is stated by Ashley
for such termination: if, as vaguely implied, the purported
reason was absenteeism or failure to report sickness, the
pertinent absence occurred on July 13 ; and it was on July
21 or 22 that Lester actively commenced picketing.
Further, in his later conversation with Lester, on August
4, Ashley made no mention of the alleged termination.35
26 Some weeks later , the rate was changed to $1.85, retroactive to Au-
gust 29 , because Respondent had mistakenly failed to credit Pendegrass
with the 5-cent general wage raise made effective as of "the first of June."
29 The spectrograph was first put into operation some time in July or
August.
23 Dyas denied making any statements concerning the stockholders, a
threatened plant shutdown , and soliciting an antiunion petition.
29 Neither Bishop nor Joe Kellum (nominally superior to the lab techni-
cians on the job) was called to testify.
10 N.L.R.B. v. Bernie Katz, 396 U.S. 736.
31 E.g., N L.R B. v. Dubois Chemicals, Inc, 327 F.2d 494 (C A. 1),
enfg. 140 NLRB 103, 116; N.L.R B. v. Clearfield Cheese Co., Inc., 213
F.2d 70,72 (C.A_ 3); Stark Ceramics, Inc., 155 NLRB 1258, 1269.
32 All of these issues were fully litigated, and were sufficiently within
the compass of the complaint.
33 Denied by Ashley
34 He is listed as having applied on August 8, immediately after the
strike
35 Indeed, Respondent 's records show that Lester was promoted on
July 19 from "2nd Furnace Helper" to "Weighman " in the melt shop.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering both versions, I find Ashley's testimony un-
convincing and do not credit it. In result, I conclude that
violations were committed by Ashley on August 4 in so-
liciting Lester to return to work upon an implied threat
that he was not "going to get in" after the strike, and in
expressing a threat of a shutdown before Respondent
would sign a contract with the Union.
4. Chairman of the Board Caldwell, Sr.
Lee and L. C. Lewis, brothers, joined in the strike on
April 23 and engaged in picketing. The next day, Sunday,
Caldwell, Sr., drove up to Lee Lewis' home, bringing
'long their cousin, Danny Lee Lewis,36 who lived about ,
a mile away. The conversation took place in the front
yard. Caldwell said he would appreciate it if they would
come back to work and get him out of a jam. The two
brothers answered that they would not cross the picket
line. Danny Lewis said he was scared, and Caldwell as-
sured him that he would put a guard at his home around
the clock. Caldwell also stated , inter alia , that- "no out-
siders would tell him how to run that plant. If they did, he
would close it down." Before he left, he said if they de-
cided to come back to call him and meet him at Contrac-
tors Materials, Inc., in Jackson, Mississippi,37 and he
would take them in. The following week, Caldwell again
spoke to Lee and L. C. Lewis at the former's home. He
said he had been to the sheriff, and if they were scared to
come back he would talk to the sheriff, who would put on
deputies to escort them to and from work. They gave
Caldwell an indefinite answer, but made no attempt to go
back.38
Caldwell admitted to the visits and the requests that
they return to work. He explained that he went to see the
Lewises because he was told by one of his employees at
another company that the strikers did not want to return
because they were afraid. I find this explanation implausi-
ble, and immaterial in any event. His version was that the
Lewises said they wanted to work but were fearful of
violence to their families and homes, and he therefore of-
fered the protection of the sheriff. As found with respect
to similar violations above, Caldwell's repeated solicita-
tions of strikers to return to work and his threat to shut
down the plaint were clearly unlawful within Section
8(a)(1).
Caldwell, Sr., was an officer and maintained a regular
office at Contractors Materials , Inc., in Jackson, Missis-
sippi, about 7 miles from the plant. From this location,
employees were loaded and transported by bus to work
at the plant during the strike. Early in May, Caldwell
spoke to three employees who were picketing in front of
Contractors Materials. He said, "Well, if you don't get
your damn ass off my property, I'm going to call the cops
and have your damn ass put in jail" The pickets left but
later' returned and continued to picket undisturbed for a
week or two, according to Sam O. States, Jr., "in about
the same place." When they were ordered off the proper-
ty, the pickets were standing inside the curb toward the
building; there was no sidewalk. Caldwell testified that
they were midway between the curb and the building, and
that the general public walked on the road. States said the
pickets were off the road, _on or close to the curb. The
question is whether the pickets were on private property,
as contended by Caldwell. It is not evidenced that a right
of way or easement existed on a strip inside the curb for
public thoroughfare. In the circumstances, it was incum-
bent upon the General Counsel, and he failed, to prove
that the pickets were not trespassing. The allegation is
therefore dismissed.
5. Paycheck distribution
The complaint alleges that, after the election, Respond-
ent changed its method of distributing paychecks, in
violation of Section 8(a)(5) and (1). The following
chronology was shown: In May 1965, paychecks were
given out to the employees during the day on Friday in
the personnel office, and the few remaining checks were
left to be picked up from the guard at the plant gate. On
October 21, 1965, a notice was posted on the bulletin
board which changed the procedure so that, in main ef-
fect, the foremen of each crew working on Friday would
distribute the paychecks at the end of the respective
shifts. Employees who were off from work that day would
pick up their checks on Friday at the personnel office
between 10 and 12 noon or at the guardhouse after 5 p.m.
The melt shop crew working until 1 a.m. on Saturday had '
to wait for their checks until the end of that shift. At the
first bargaining session on February 17, the Union raised-
a- complaint it received from some of the employees that
they had to make a second trip to the plant to get their
paychecks, and they wanted their checks in time for their
wives to pay bills. As a consequence, on February 24,
another notice was posted in which the melt shop crew on
the 5 p.m. to 1 a.m. shift were allowed to pick up their
checks from the guard any time after 10 a.m. on Friday.
The above evidence is set forth and argued by Re-
spondent as plainly showing that, after the advent of the
Union, no material change was made, except in pur-
suance of the Union's own request. However, the
General Counsel specifically relies on the testimony of
States and Pendegrass asserting that a change was made
by Respondent immediately after the election. States re-
lated that, before the election, the melt shop crew on the
5 p.m. to 1 a.m. shift were paid on Friday any time after
9 a.m., but after the election they could not get their
checks until they completed work at 1 a.m. on Saturday.
He did not see the change which was posted in October.
His testimony is too meager to warrant the finding that,
despite the October notice, a change in practice actually
took place following the election. Pendegrass testified:
Well, on Christmas, if a holiday came on Friday or
any other holiday that came on Friday, they would
pay us off on Thursday before we left. This past
Christmas they did not do that. They made you come
back either Friday and get your check or whenever
you came back to work following the holiday.
Respondent does not directly meet this testimony.
Literally, the practice at Christmas 1965, as described by
Pendegrass, was not in conflict with the prevailing
procedure posted in October 1965 providing for
paycheck distribution on or after Friday of the week. The
General Counsel did not establish that, after the October
posting, Respondent distributed paychecks before any
r
36 He did not testify sociated. See discussion of issue immediately below
37 Caldwell , Sr., maintained an office at this firm, with which he was as- - 31 Credited testimony of Lee and L. C. Lewis.
MISSISSIPPI STEEL CORP. 655
holiday which fell -on Friday.39 Accordingly, the allega-
tion is not sustained.
6. Overtime scheduling
The allegation here is that, after the election, Respond-
ent unilaterally and discriminatorily changed the method
of scheduling overtime work. However, Superintendent
Dyas testified that there has been no change in method,
and the General Counsel adduced no evidence to the con-
trary. The actual issue is best described in the notice
posted by Respondent on December 28, 1965.
shown. General Counsel's testimony that after the
notices were posted everyone "got scared and agreed to
work overtime" is not evidence of discrimination.
Finally, in the circumstances, I will not infer merely from
the timing of the announcements following the election
that Respondent's warnings of discipline were motivated
for reasons relating to the election. This allegation is
therefore dismissed.
7. Failure to supply data
On January 12 the Union sent Respondent a letter
requesting the following information:BULLETIN
TO ALL PERSONNEL:
IT HAS COME TO THE ATTENTION OF MANAGEMENT
THAT SOME EMPLOYEES HAVE REFUSED TO WORK
OVERTIME. IN LINE WITH OUR PRODUCTION NEEDS,
IT IS NECESSARY FROM TIME TO TIME THAT SOME
PEOPLE BE REQUIRED TO WORK OVERTIME BECAUSE
OF SICKNESS OR VACATIONS OF OTHER EMPLOYEES.
ALSO, AT TIMES, OUR PRODUCTION DEMANDS
REQUIRE THAT WE WORK ADDITIONAL HOURS.
BECAUSE IT APPEARS THAT THERE MAY HAVE BEEN
SOME MISUNDERSTANDING ABOUT RESPONSIBILITY
TO PERFORM OVERTIME WORK, IT HAS BEEN DECIDED
TO NOT TAKE DISCIPLINARY ACTION AGAINST THE
RECENT REFUSAL TO WORK OVERTIME. HOWEVER,
THIS IS NOTICE TO ALL THAT DISCIPLINARY ACTION,
INCLUDING DISCHARGE, WILL BE NECESSARY IN CASE
OF REFUSAL TO WORK OVERTIME IN THE FUTURE.
W. L. Dyas
Plant Superintendent
After the posting of this notice, Respondent continued to
have the same problems. About January 20, Dyas spoke
to the employees assembled on different shifts, and then
posted the text of his speech, which in substance but in
greater detail was similar to the bulletin of December 28.
Respondent did not consult with the Union concerning
this matter. Dyas' testimony is reasonable and believable
that it was always Respondent's policy that employees
who refused to work overtime were subject to discipline,
including discharge. Moreover, he stated without con-
tradiction that no disciplinary action was taken after the
bulletin of December 28 or after that of January 20.
That Respondent was entitled to require employees to
work overtime for production reasons does not appear to
be disputed. Even assuming that, prior to the election,
Respondent was lax in enforcing its legitimate overtime
requirements, the employees were not thereby vested
with a privilege and a condition of employment that such
laxity would continue. Respondent's decision to notify
employees of an intention to enforce an existing work
requirement, such as overtime, is not in my opinion a
mandatory subject of bargaining with the Union. Nor is
it contended that in any instance Respondent's request of
an employee to work'overtime was unreasonable or un-
necessary. No arbitrary or disparate treatment was
The name of each employee in the unit, job classifi-
cation, hourly rate and standing as either day worker
or incentive worker, all other benefits pertaining to
these employees such as premiums, bonuses,
holidays, sick leaves, vacations, insurance, overtime
and call in pay, all other information which may be
pertinent to hours or work, wages and conditions of
employment is also requested at this time.
Thereafter, by an exchange of correspondence, a bargain-
ing meeting was scheduled for February 17. Prior to the
meeting date, the Union received from Respondent by
mail compilations of data in response to its request.40 At
this first bargaining session , Union Representative Emer-
son F. Miller requested a more explicit outline of Re-
spondent's existing plans for group hospitalization
insurance and for pensions and profit sharing, because
data supplied by Respondent consisted only of employee
pamphlets. Respondent's attorney, Inman, said he would
see what he could do. In the complete contract presented
by the Union at this meeting, the Union sought a non-
contributory pension plan based upon a specified
'formula.
At the next meeting on March 22, William T. Edwards
took over as the Union's negotiator, Miller having been
permanently transferred out of the area. Respondent re-
jected the Union's pension proposal as too expensive.
Inman testified that Edwards asked for an explanation of
certain features of the existing pension plan and, accord-
ing to Inman's notes, "company explained eligibility,
vesting rights, noncontributory ... profit sharing plan,
Deposit Guarantee [Bank] as trustee." At the March 31
meeting'41 as part of a broad reduction in the Union's bar-
gaining demands, Edwards proposed to accept Respond-
ent's present pension and profit-sharing plan, to be in-
corporated in the contract. At the same time, he
requested that Respondent furnish the Union with data
concerning the plan and agreement which existed with the
trustee of the pension fund. He said the Union needed to
know the details, such as the terms of the trust agreement
and the amount of money in that fund; if his offer were ac-
cepted, the trust agreement would become part of the
labor contract, and the Union would have to have
knowledge of how it works to judge whether Respondent
was carrying out is provisions. Edwards testified as to the
inadequacy of the employee booklet which Respondent
ha supplied pursuant to the Union's original data
$9 It was not shown, and it does not appear, that there was any interven- Respondent, without explanation, failed to furnish any data with respect'
ing holiday between October 21 and Christmas in 1965 which fell on to bonuses, a subject specified in the Union's request. See discussion
Friday, relating to 1965 Christmas bonus, supra.
it is relevant to note, although no xpress violation is alleged, that 41 A previous meeting was held on March 25
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request . 42 In response , Inman indicated he would "see
about this." The requested data was never furnished, nor
reason given for such failure . In Respondent's own
complete contract proposal, which it submitted for the
first time at the April 13 meeting and to which it substan-
tially adhered throughout the negotiations , no provision
was made for the pension - profit-sharing plan, and no
agreement was ever reached on this issue. When the sub-
ject was broached on March 31, Inman , as he related,
took the position that Respondent had no intention of
eliminating the existing plan, but preferred not to tie it to
a contract. One of the reasons he gave was that the plan
also covered nonunit employees.
At the June 22 meeting, the Union asked for the
names, job titles , and rates of pay that Respondent was
currently paying employees during the strike. Edwards
stated that he had heard the Company was paying more
than the prestrike rates. Inman said he was very doubtful
that the Union was entitled to such information but he
would investigate and advise. At the meeting on June 30,
Inman told Edwards that he was not giving him the
names, as he felt the Union was just trying to find out how
Respondent was making out in the strike. However, he
submitted that the current rates were not greater than
those paid before the strike43 and in some instances they
were less because of differences in longevity pay.44
As a general proposition, the law is well established
that a union is entitled, upon reasonable request of the
employer, to be supplied with information which is rele-
vant and necessary to enable it intelligently and effective-
ly to carry out its statutory duties of representing the em-
ployees, not only in contract negotiations but in
processing grievances and administering an existing col-
lective-bargaining agreement .45 The requested informa-
tion which is supplied must be precise and as current as
available.46 Wage and related data, including names, job
classifications, and pay rates of employees in,the bargain-
ing unit , constitute the core of the employer-employee
relationship and are presumptively relevant.47
In response to the Union's January 12 request for data
on pensions and profit sharing, Respondent made the
necessary information available, only an employee
booklet, which falls far short of providing for intelligent
bargaining on the subject, e.g., the terms of the trust
agreement for basic understanding of the existing plan
and to incorporate the same in the contract, as well as
past contributions of Respondent and amounts credited
to the employees. Requests for more explicit information
were made by the Union at the February 17 and March
31 meetings . While Respondent did not agree, and did not
have to agree, to the Union's proposal to accept the exist-
ing pension plan as part of the contract, it was neverthe-
less a pending issue in the continuing bargaining negotia-
tions. Indeed, Inman volunteered in his testimony that he
did not "believe there was any difficulty in getting an
agreement on it." In all the circumstances of the case '48
I am impelled to conclude that Respondent consciously,
and in bad faith, refused to supply the pertinent pension
and profit-sharing data, and that, in any event, its failure
to do so violated Section 8(a)(5), as alleged.49
The employees working during the strike were within
the bargaining unit then in the process of being
represented by the Union. On June 22, when the Union
requested current information as to their names, job titles,
and rates of pay, the original data supplied by Respondent
was more than 4 months old. The Union was entitled to
know, among other things, whether the working non-
strikers and striker replacements were receiving wage
rates greater than those prevailing before the strike.50 At
the June 30 meeting, Inman refused to supply the names
and job titles, but orally informed Edwards that the cur-
rent employees were not receiving increased pay rates. I
cannot find, in the manner and form it was given, that this
was a sufficient compliance with the Union's reasonable
data request. Moreover, Inman's oral information was
not precise or accurate, as the record shows in Pen-
degrass' testimony, for example, that during the strike a
lab technician (Bishop) was hired at a higher rate. The
sole objection voiced by Inman against supplying the
names of current employees was that the Union was not
entitled to information as to how Respondent was making
out during the strike. I do not conceive such objection as
advancing a proper ground of confidentiality or privilege
in withholding the data.51 Accordingly, for the above
reasons, I find that Respondent further violated Section
8(a)(5) . 52
D. The Bargaining Negotiations
Testimony on both sides was given at length covering
each of the negotiating sessions as well as the invervening
discussions and communications. Particularly in light of
the findings already made, it is not deemed necessary or
useful, in terms of the ultimate conclusions to be reached
and remedies recommended, to delineate herein much of
this detail placed in the record. 53 As the chief negotiators
and spokesmen for their respective principals, the bulk of
the testimony was adduced by Staff Representative Ed-
wards for the Union and Attorney Inman for Respond
-ent. At the first meeting, Staff Representative a Miller
negotiated for the Union, and on June 30, Attorney
James E. Fulford appeared in place of Attorney Inman.
Regularly attending the bargaining meetings was a
negotiating committee of three or four employees for the
42 The booklet , in evidence , states that it ". . . contains only a brief sum-
mary of the important features of the Plan ... it is neither a reprint nor a
substitute for the Plan or the Trust Agreement . Copies of the original
Trust Agreement are on file in our office with the Trustee."
4' Compare , however, the rate offered and paid to lab technicians,
supra.
44 To the extent that the testimony is in conflict , Miller and Edwards are
credited.
45 E.g ., J. I. Case Company v. N.L.R.B., 253 F.2d 149, 152 (C.A. 7);
Boston-Herald Traveler Corporation v. N.L.R.B., 223 F.2d 58,62 (C.A.
1); N.L.R.B. v. Whitin Machine Works, 217 F.2d 593, 594 (C.A. 4), cert.
denied 349 U.S. 905.
46 John S. Swift Company, Inc., 133 NLRB 185, 188, enfd . 302 F.2d
342 (C.A. 7).
47 Curtiss-Wright Corporation v. N.L.R.B., 347 F.2d 61, 65 (C.A.3).
48 N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149, 153.
48 N.L.R.B. v. Toffenetti Restaurant Co., Inc., 311 F.2d 219 (C.A. 2),
cert. denied 372 U.S. 977; The Electric Furnace Co., 137 NLRB 1077.
-su It is noted, for example, that at the July 26 meeting Respondent an-
nounced its decision unilaterally to grant a general wage increase retroac
-tive to June 1 (discussedinfra).
51 Cf., Midwestern Instruments , Inc., 133 NLRB 1132, 1135; The Lit-
tle Rock Downtowner, Inc., 145 NLRB 1286, 1308.
52 See Lasko Metal Products, Inc., 148 NLRB 976, 979, enfd. 363 F.2d
529 (C.A. 6), involving a request for similar data which the Board found
the employer was legally obliged to make available to the Union.
s' Nor will the fact recitation below repeat those matters in thebargain-
ing meetings which have already been described.
. MISSISSIPPI STEEL CORP.
Union, and Plant Superintendent Dyas for Respondent
- none of whom testified on the subject.
After the election and certification, the first communi-
cation was made by Union Representative Miller on
January 7, when he telephoned Caldwell, Jr., requesting,
that the Union be supplied with specified data. Advised
to contact Respondent's attorney, Miller sent the letter of
January 12 listing the data sought, as earlier described
herein. On January 21, the Union filed with the Board a
charge, signed by Miller, alleging an unlawful refusal to
pay the 1965 Christmas bonus. On January 25, not hav-
ing heard from Respondent, Miller again wrote, and
requested a bargaining meeting. By mutual agreement the
first meeting was set for February 17. Before the meet-
ing, the Union received by mail Respondent's submission
of data in response to the Union's January 12 letter.
Reflected in this data were certain of the existing em-
ployee benefits.
At the bargaining meeting on February 17, the Union
submitted at the outset a complete contract proposal.
This entire proposal was then systematically reviewed,
and questions were raised and answered on particular
clauses, e.g., checkoff, union security, wages, wage dif-
ferential, seniority, grievances, and duration of contract.
Although Inman critically commented on certain of the
provisions, no definite positions were taken, and no
agreement was reached on any subject. Miller stated that
as part of the contract the Union desired that all existing
benefits be continued, and mentioned in particular the ex-
cluded 1965 bonus. He said that they were there for the
purpose of bargaining and the Union would expect
Respondent to make counterproposals on any measure
with which they did not agree.
Miller testified that this meeting was "short." The next
meeting was to be arranged by telephone or a letter after
Inman consulted his date book.
On February 25, Miller was permanently transferred
from the district, and had not received any word from
Inman before he left. In Miller's place, Union Represen-
tative Earl E. Flous was ready to meet and to continue
the negotiations. On March 2 a letter from Flous to
Inman indicates that the latter had offered a meeting date
for March 8, which Flous then confirmed. On March 7
Union Agent Edwards was assigned to take over the
negotiations, but learned upon his arrival that the March
8 meeting was canceled by Respondent. A few days be-
fore March 8, a tornado had struck the area, although,
Respondent's plant itself was not affected. However,
Inman testified that he could not reach anyone at the
plant on March 6 or 7 because communications were
busy or disrupted by the tornado; that, as he learned,
Caldwell, Jr., had to be away from the plant because cer-
tain other Caldwell property was damaged by the tor-
nado; that it was essential for Superintendent Dyas to
stay at the plant and he could not be spared for negotia-
tions; and that it was therefore decided to postpone the
scheduled meeting for March 8. Thereafter, Inman
telephoned Edwards and arranged to meet on March 22
as the earliest date he could come. Edwards wanted an
earlier meeting, but Inman said his schedule would not
permit it.
At the March 22 meeting, Edwards asked Inman if he
had brought any offer to the bargaining table, and Inman
said he preferred to work from the Union's proposal, as
657
he had questions about it. Following the same procedure,
of the February 17 meeting, the Union's proposed con-
tract was reviewed article by article. Certain language
changes and minor clauses, e.g., recognition and military
service, were agreed upon. The Union dropped its de-
mand for a union shop after objections by Respondent
that it was illegal in the State. The Union indicated it
would rewrite the clauses on seniority and grievance
procedure.54 Respondent referred to the Union's wage
request as "ridiculous" or too high, and rejected the wage
evaluation program as "too rigid and inflexible." Re-
spondent "could not afford" the expense of the proposals
on pensions and group insurance, and characterized
these items as "part of the economic package"; similarly,
the clauses relating to jury service, holidays, and
vacations.
Edwards asked whether Respondent was going to pay
the 1965 Christmas bonus, and suggested that the Union
would drop the charge if payment was made. Inman's
response was that sometimes it was to the Company's ad-
vantage to litigate such matters rather than pay the bonus.
Inman stated a willingness to bargain concerning the
omitted 1965 bonus as part of the economic package, but
Edwards maintained that charges had been filed on it and
there was no area for bargaining. As to future bonuses,
the Union's written proposal was "To continue as is and
be made part of this Agreement." Inman's position was
that this was negotiable, with the distinct understanding
that Respondent would consider such payments purely as
a discretionary gift.
At the end of the meeting, Inman made an economic
offer of " '5, 5 and 5,"-or 5 cents for each year in a 3-year
contract. Edwards wanted a 1-year term, and rejected the
amount of the offer as too little. He requested proposals
from Respondent for the next session, which was ar-
ranged for March 25. The March 22 meeting lasted from
10:30 a.m. until after 4 p.m., with a luncheon recess.
As previously described, an unauthorized work stop-
page occurred on the night of March 25, and terminated
the next day after the intercession of the Union. Edwards
credibly testified that, in the afternoon bargaining session
of March 25, Inman remarked that "all he could hear
about was that our people in the plant were talking about
strike and the company didn't give a damn if they did
strike, let them go ahead and strike." Edwards said that
he would appreciate it if Inman would not make such re-
marks in the presence of the employee negotiating com-
mittee - that he was having enough difficulty with these
people who were in a strike mood "because of their disap-
pointment about the Christmas bonus," and other mat-
ters. The foregoing is set forth as part of the general nar-
rative of the bargaining meetings , as no particular issue is
raised thereon, no finding is made or implied that Inman's
remarks precipitated the work stoppage.
The "arch 25 meeting lasted from 10:30 a.m. until
noon, Inman advising that he had other commitments.
Part of the time was consumed in discussion of the
unauthorized stoppage, which Inman sharply criticized.
Respondent submitted a proposal on grievance
_procedure, and the Union presented a revised clause on
seniority. In another brief review of the Union's proposed
contract, there were a few minor areas of agreement. The
Union again raised the question of the excluded 1965
51 On grievances, the parties eventually reached agreement, infra.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christmas bonus, as to which Edwards testified he "al-
ways mentioned" in the bargaining meetings. Respondent
was asked if it could improve its economic offer, and the
answer was "No." A date was set for the next meeting.
At the March 31 meeting, Inman early advised that it
would have to be short, a couple of hours, and it was over
about noon. There was discussion on seniority and on
written proposals presented by the Union with regard to
grievances and rest periods. The Union verbally offered
substantially to reduce its "economic package." It
dropped its demand for supplemental unemployment
benefits; proposed the present group insurance plan and
that the Company pay the premiums'55 with a major
medical option to be paid for the employees; proposed to
accept the existing pension - profit-sharing plan as part of
the contract; and proposed to spread over a term of 2
years instead of 1 year its present wage demand, which
carried a base rate of $2.50 an hour. 56 In general, Inman
countered that the Union was "still out in left field."
The April 13 meeting, was another short meeting, a
"couple of hours," as Inman said his schedule was tight.
For the first time, a complete written contract was
brought in by Respondent. The subjects encompassed
were substantially less comprehensive than those
covered in the Union's proposal and in the prior discus-
sions. Included in Respondent's proffered contract was
a clause stating that it constituted the complete agreement
and that during its term there would be no obligation to
engage in further negotiations. In a broad management
rights clause, the right was reserved to subcontract work.
Inman suggested that the Union's objection could be
resolved by stating that subcontracting would not be used
to discriminate against employees; this was never
reduced to writing. A wage increase of 5 cents was of-
fered for 1 year, to be effective on the date of agreement,
and with full discretion in the Company to grant further
increases to any employee or employees. Inman stated
that Respondent was not thereby abandoning its original
offer of "5, 5 and 5," but it was not insisting on a 3-year
term. The Union particularly objected to allowing
Respondent such unilateral power in the vital area of
wages. The proposed contract did not offer the existing
plan of longevity increases of 10 cents after 30 days, 10
cents after 1 year, and 10 cents after 2 years of employ-
ment. Other existing benefits were not mentioned in the
proposal, e.g., shift differential, incentive pay, pension -
profit sharing, and Christmas bonus. In response to the
Union's request that a sick leave provision be incor-
porated in the contract as an assurance that sick em-
ployees would be granted leave, Inman replied that
Respondent allowed sick employees to be off without ter-
minating them and he saw no purpose in putting this into
writing. At the conclusion of this meeting, the parties
were still in disagreement on all major issues.57
In setting the date for the next session, Inman said he
might be able to meet for an hour or two on April 19, but
he could be sure of April 26; these were the only dates he
had available. The Union urged speed in proceeding with
the negotiations. In a letter dated April 19 Inman stated
as Under the present plan, Respondent paid a fixed amount of $1 per
week on the premiums.
56 The minimum rate then being paid was $1.35, but to only one em-
ployee, the night cleanup man. Most of the other rates were in the vicinity
of $1.65.
that the April 19 date could not be worked out, and he
confirmed April 26.
As of Saturday , April 23, the Union struck . At a union
meeting on April 22, a report to the members was made
of the bargaining proposals and counterproposals that
day, as was the Union 's practice after each negotiating
session . Among other things, employees raised questions
as to the excluded Christmas bonus and excessive over-
time. A strike vote was taken and carried.
The bargaining meeting on April 26 lasted from 10:30
a.m. to 1 p.m., with Federal Mediator Robert Berman
present . The issues were reviewed for the mediator. The
Union then further reduced its economic offer to a base
rate of $2 an hour , retaining its request for a job evalua-
tion program (which involved increments within the labor
grade). Inman said that it was "still out of the ball park."
Edwards again brought up the 1965 bonus question.
Inman stated that there was no agreement on the
economic package, that the Company would litigate the
matter , and that- "They had offered five cents and that
was it." Other subjects were discussed. Essential accord
was reached on grievance procedures, and also on such
items as payment to injured employees and use . of bulletin
board , consistent with the Company 's proposals . Previ-
ously, the Union had requested proposals from Respond-
ent on the subjects of report allowance and callout pay,
which Inman said he would submit, but these were not in
fact submitted at this or any subsequent meeting.
The mediator requested the parties to continue bargain-
ing at this meeting; however, Inman stated that the Union
"had not made enough concession that he could see any
profit in further bargaining that day." It was understood
that the mediator would arrange for further meetings. Ed-
wards was called to Pittsburgh for 3 weeks, and in his
absence Union Representative Richard Davidson, Jr.,
was prepared to continue negotiations , as the mediator
was advised . Edwards returned about June 7 or 8. He
learned that no meeting had been held or scheduled; he
tried and failed to reach Inman ; and he telephoned the
mediator indicating his anxiety to resume negotiations.
On June 10 Edwards wrote to Superintendent Dyas that
he had "tried unsuccessfully to arrange for further
meetings ," and requested Dyas to advise Inman of the
"need to meet." On June 11, Inman wrote Mediator
Leslie:
I am sorry that I didn 't get to call you on Friday. I
was not able to get in touch with the necessary com-
pany officials in time. As I told you on the phone the
other day , I am leaving this weekend for my vaca-
tion . We simply don't have another person in the of-
fice who can fill in in the negotiations . As soon as I
get back, I am going to be in heavy preparation for
the trial of an unfair labor practice case.
We are perfectly willing to meet with the union at any
time there appears to be a hope of progress . We sug-
gested in the past that if the union had a further
proposal to make that it submit it to us in writing so
that we could have the company consider it. Again,
I think that would be the best course . If they could
57 Somewhat unrelated to the contract terms, the parties also discussed
the Union's complaints concerning a smoke problem and improper ven-
tilation in the plant, and its objections to alleged unreasonable require-
ments for overtime and weekend work. Explanations were given on
Respondent's part.
MISSISSIPPI STEEL CORP. 659
do this, I will take up such a proposal with the com- him had been unsuccessful. The meeting was adjourned,
pany as soon as I return and will promptly discuss with the understanding that Fulford would call at the
with you or the union the advisability of our schedul- hotel at 1:30 p.m. with the Company's answer. At 2 p.m.
ing some further meeting. it was reported to Leslie that Caldwell, Sr., could not be
On June 14 Edwards called Inman's office and was in- located. In the afternoon of the next day, Edwards
formed by Frederick S. Kullman of the firm that Inman reached Inman, who said he would have Fulford call him
was on vacation and could not be reached,58 that no other back. Later Fulford called and informed Edwards that
attorney was then available to take over the negotiations, Respondent's answer was negative on all points.
and that he would have to await Inman's return.59 On
On July 19 Edwards sent a letter to Caldwell, Sr., interJune 20 Inman telephoned Edwards and a meeting was alia, commenting on the strike and the bargaining, andscheduled for June 22.
urging that the Caldwells enter directly into the negotia-The meeting of June 22 began in the afternoon and tions at an early date. The letter set forth the "salient"didn't last long." Federal Mediators Joseph Pierce and
points" of the Union's terms, which specified a wage in-Roger Leslie were present, and the issues were reviewed
crease of 25 cents, plus checkoff, Christmas bonus,for their benefit. The Christmas bonus was again seniority, and reinstatement of all strikers.discussed, without change in position. The Union further
reduced its economic proposal to 25 cents across-the- About July 22 Edwards telephoned Inman concerning
board, which would include the cost of an additional a further bargaining meeting. Inman was` critical of Ed-
holiday. On the continuation of the Christmas bonus, the wards for going around him as Respondent's negotiator
Union would accept 7 cents an hour as an alternative.
Other issues were taken up, including a further proposal
of the Union on seniority. Inman offered to make changes
in the management rights clause. On hospitalization in-
surance, the Union objected to Respondent's position
that the employees bear the full cost of any increase in
premiums. Respondent rejected the Union's request that
hours of work or schedule of shifts be written into the
contract. And Respondent stated it was adhering to its
offer of 5 cents.
The mediators divided the parties and asked the Union
delegation to wait in the motel lobby. Alter about an hour,
Inman approached Edwards and said that he had to leave
but the mediators wanted to see the Union.60 The next
meeting date was arranged.
At the June 30 session, attended by Mediator Leslie,
Respondent's negotiators were Attorney James E.
Fulford61 and Superintendent Dyas. The meeting lasted
from 10:30 a.m. to 12:30 p.m. With the parties separated,
Leslie told the Union he had ventured to Respondent his
belief that he could get a settlement for 10 cents an hour,
checkoff, seniority, Christmas bonus, and the return of 35
strikers with the remainder on preferential hiring. Ed-
wards authorized such an attempt. Thereafter, Leslie re-
ported a rejection on all items: "there was no more money
than that nickel," and the Company would not agree to
continue the Christmas bonus. After further efforts,
Leslie told the Union that on his own initiative he had
suggested' to the Company a settlement offer of "8 cents
an hour- the 3 cents being considered a piece of the
Christmas bonus," plus the return of strikers to available
jobs, checkoff, and something on seniority and insurance.
The Union consented, but on clear condition that Leslie
could obtain agreement that day; otherwise, the Union
would not stand by that offer any longer than it took the
Company to respond. Both sides were then brought
together.62 The Union was advised that the offer had to
be checked with Caldwell, Sr., and that attempts to reach
by sending the July 19 letter to Caldwell, Sr. He also
charged the Union with bad faith in receding from the set-
tlement offer made to Fulford at the June 30 meeting. Ed-
wards asked Inman to reduce to writing and submit
Respondent's most recent bargaining position. Inman
refused on the ground that the Union was aware of its
position. Edwards repeated that he would like to see it in
writing because there were too many marginal notes and
too many "maybe's." Regarding the next meeting, Inman
said he would send a letter listing the days he was availa-
ble. The date was later set for July 26.
The meeting on July 26, with Meidator Leslie in at-
tendance, consumed not over an hour. After talking with
the Company the mediator said it was apparent to him
that the only way the Union could get an agreement "was
total capitualtion, just surrender and sign whatever they
put before us." Thereafter, Inman and Dyas came to the
table. Inman stated that Respondent had a wage of S-
cents before the Union since March 22 which the Union
had seen fit to refuse; consequently, Respondent was
going to put this raise into effect immediately and make it
retroactive to June 1.63 The Union objected that it was a
unilateral raise and an unfair labor practice'. Inman
replied that this was what they were going to do, and left
without scheduling a further meeting.
As earlier shown, the strike was terminated as of Mon-
day, August 8, following such notice to Respondent in a
letter dated August 6, and' after a union meeting on Au-
gust 7. At the union meeting, the strikers were instructed
to report bck to Edwards in the union office the result of
their applications at the plant if they were not put back to
worK.
Some time thereafter in August, Inman telephoned Ed-
wards in Greenville, Mississippi. Inman offered to pay
the Christmas bonus if the Union would drop the charges
against Respondent before the Board. Edwards declined,
stating that the Union wanted to bargain and get a con-
58-j- he was on vacation from June 11 to 19 at aState park
and was "incommunicado."
59 In a memorandum of the conversation written by Kullman, it is stated
that he told Edwards to send Inman any new proposals so that Inman
could look them over before the next meeting, but Edwards replied that
they did not negotiate by mail.
so Inman testified that the mediators told the company representatives
that they could go,
81 No reason appears for this substitution in the place of Inman.
Respondent's brief remarks that Inman was "unable to attend."
62 Fulford testified that in discussing the proposed settlement terms,
Edwards started by asking Respondent "to give consideration" to putting
the principal officers of the Union back to work immediately.
s8 In Inman's version , he also said , inter alia , that while Respondent
was willing to negotiate on it further, he saw no hklihood at that point that
any progress was going to be made on the wage issue, and he did not wish
to delay the raise any longer
350-212 0-70-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract. Inman then said Respondent was willing to
bargain.64
On September 28 Edwards wrote Inman asking for a
further meeting, and suggesting a date between October
3 and 7. After a later telephone call by Edwards, the
meeting was arranged for October 20.
On October 20 the meeting lasted about 10 minutes.
Edwards told Inman that the mediator had said that the
only way the Union could get an agreement was to capitu-
late. Inman asked if they were there to capitulate. Ed-
wards said no. Edwards reviewed the bargaining requests
listed in the Union's July 19letter. He indicated that the
Union wanted a contract, and based on the last stock-
holders'- report in which "they had made twelve and a
half percent or more profit," Respondent could well
afford to pay the 25 cents in the Union's proposal. Inman
replied that Respondent' s position had not changed at
all and that Edwards could have determined that on the
telephone.
As of the hearing date, there had been no further con-
tacts-or meetings between the parties, although Respond-
ent states as previously noted, that negotiations have not
been broken off.
The status of the bargaining as of October 20, and 10
months after certification, appears in essence to be as fol-
lows: The only major subject agreed on covers the
grievance procedure. The Union withdrew or substan-
tially reduced many of its original proposals. Significant
issues which were unresolved include, e.g., wages, shift
differential, Christmas bonus, overtime, checkoff,
management rights, hours of work, vacations, holidays,
seniority, hospitalization insurance, pension-profit shar-
ing, leave of absence, sick leave, and callout pay.
Conclusions
1. Further credibility considerations
The above findings in regard to the bargaining and
negotiations are predicated on the testimony of Union
Representatives Edwards and Miller, supplemented by
the admissions of Attorney Inman and the corroborations
elsewhere in the record. So far as any material conflicts
exist, they are resolved against Inman.
As already described, Inman extraordinarily relied
upon his memory of company records in attempting to
establish aafactual basis for his own conclusion that the
Christmas bonus was a pure gift, rather than a form of
wage compensation as found. However, he had at the
hearing detailed notes which he had written in respect to
each of the bargaining meetings. While testifying, he was
permitted to view his own annotated copies of the
complete contract proposals of both sides. Particularly
after his testimony covering the first meeting of February
17, Inman's power of recall faltered and failed to a con-
siderable extent,66 and his recollection needed constant
refreshing by means of his written notes. In a number of
instances he merely read into the record from his notes.
These notes could not, of course, serve as a substitute for
his testimony. Almost a ritualized pattern developed of
Inman coming quickly to testify from his notes on a given
meeting. I do not believe that Inman's memory was so
weak or exhausted in each of these instances, but rather
I am of the distinct impression that he used this technique
as a device to testify from his notes.
In pointed degree, Inman's testimony is found evasive,
changing, and self-contradictory during a series of
questions by the Trial Examiner, as the following illus-
trates.
Concerning his August telephone offer to Edwards,
Inman was asked but could "not recall" whether he had
made any proposal to pay the 1965 bonus during the
course of the negotiations. Most obviously he had not. He-
had no idea that the Company would go for his August
proposal to Edwards "because their position had been all
along that we were going to negotiate the bonus as a part
of the package and this was part of it. 1166 Did he know
how much the "total economic package" of "5, 5 and 5"
would cost the Company? He "had probably discussed
it" but does not "specifically recall" that he knew the
figure, and does not know it now. Asked whether it in-
cluded the 1965 bonus, he answered that they were not
trying to wipe out all the other items with the "5, 5- and
5." They were seeking to bargain for a package which
"might very well have included that bonus." Respondent
"never said they would not pay it," and he does not as-
sume that the end has been reached. The 5 cents was the
total economic package "up to the point which negotia-
tions have presently progressed" (i.e., the date of the
hearing). Whether the "total economic package" included
various other "cost items,"67 Inman's response was that
Respondent had put a ``firm wage offer" on the table,"
fully anticipating other economic factors that might result
in an additional holiday, or change in the insurance pro-
gram, or "something like an additional cost factor."68
Shifting at this point, he flatly stated that the 5 cents
covered wages alone, and denied that it contemplated any
other cost items. Whether the company contract proposal
included the pension and profit-sharing plan, he replied at
first, "I don't know. Maybe it is there." Then the inquiry
OF
64 Inman's testimony that he made this offer entirely on his own without
discussing it with Respondent is wholly implausible and is not credited.
The more elaborate version of Inman was that, if the 1965 Christmas
bonus could be resolved , "this might relieve the pressure somewhat ...
and lead us to a contract," that the fiscal year figures were in (but he knew
not what they were) and the Company had done better than anticipated
despite the strike, that there was sentiment in management for a fiscal year
bonus instead of a Christmas bonus, and that he might very well be able to
work out the payment of such a gift and persuade Respondent to increase
the amount in view of the time lapse between Christmas and the present.
When Edwards asked if it meant that the Union would give up the
charges , he answered, "of course it did. " But later in his testimony, Inman
denied that the offer was made contingent on withdrawal of the charges.
65 For example , he could not freely remember important items , e.g., that
on March 25 the Union had requested payment of the 1965 bonus and it
would agree to drop its pending charge, or that on March 31 and April 26
the Union had made major reductions in its bargaining demands.
ss At the outset , Respondent followed Inman's recommendation in this
regard, supra.
69 At the bargaining sessions , in rejecting the Union 's clauses, e.g., on
pensions, insurance, jury service, holidays, and vacations, Inman's posi-
tion was that these items were part of the economic package.
se Other cost items would clearly embrace incentive pay, wage dif-
ferential, profit sharing, longevity raises, or even in providing the em-
ployees with copies of the contract (as Inman pointed out). Indeed, apart
from the preamble and recognition clause, almost every condition of em-
ployment and subject of negotiation theoretically involved a "cost item."
Obviously, if in this sense bargaining were limited to the "total economic
package" and pending agreement thereon separate proposals on the com-
ponents of the package were withheld, the effect could only be to prolong,
if not frustrate , the negotiation of a collective -bargaining agreement.
MISSISSIPPI STEEL CORP.
was whether, by its omission from the contract, the Com-
pany wanted the option to discontinue the pension plan at
any time. Inman said that such was not their purpose, but
that the Company desired a free hand to make adjust-
ments in the plan for other classes of employees. And he
volunteered that while the parties were not in agreement
on the pension plan "at that point," he does not "believe
there was any difficulty in getting an agreement on it."
Continuing, he stated that, as Respondent's negotiator "I
had to make a decision as to when the time was that I
could throw these various little elements at Mr. Edwards
and get the contract that we wanted." (But such
testimony does not comport at all with Inman's actual
conduct of the negotiations, and the time of decision to
make such proposals was late indeed as of the hearing on
December 16, a year after certification.)
2. Failure to meet and negotiate at reasonable times6s
The above recital of facts on the bargaining meetings
fairly well bespeaks the conclusion of this issue. To a sub-
stantial degree, the record reflects a clear pattern of
delays, dilatory tactics, and unavailability of Respond-
ent's chief negotiator, Attorney Inman, in the scheduling
and attending of bargaining sections with the Union.
About a month had transpired before Respondent,
without prior communication to the Union, undertook to
supply certain of the requested data, of basic importance
in the initial preparation of bargaining proposals.70
Among others, a further factor was Respondent's delays
in submitting its own proposals or counterproposals on
specific subjects, to the extent such submissions were
made. Following the election and certification on
December 9 and 17, 1965, there were 10 bargaining
meetings held through October 20, 1966,-with none
further scheduled at least as of the receipt of the briefs on
February 20, 1967. More significantly, the total amount
of time devoted in all of these meetings was not in excess
of 20 hours. Virtually the entire responsibility, I find, is
attributable to Respondent.
In the instant respect, the law has been well covered by
the Board, with judicialapproval. At a minimum, the fol-
lowing is here pertinent:
The record here quite clearly supports a finding that
the Respondent, in arranging meetings with the
Union, failed to display the degree of diligence that
proper performance of its bargaining obligations
required- This is so whether or not-the-ot the delays were
inspired by a deliberate scheme to engage in the dila-
tory tactics. One may sympathize with the problems
of the Respondent's negotiator in fitting the negotiat-
ing meetings into the schedule of his busy law prac-
tice, but this provides the Respondent with no legal
excuse for the consequent inordinately long delays
tending to impair employees' statutory rights. Labor
relations are'urgent matters too. If [counsel's] other
activities made it impossible for him to devote
69 Section 8(d) of the Act. And see Section 204(a)(2), which reflects the
statutory policy that each party make prompt arrangements for con-
ferences and "expeditiously" endeavor to settle disputes over contract
terms.
7° While reasonable time is necessary to compile such data, in my
opinion an inordinate amount of time was taken by Respondent which
necessarily delayed the commencement of negotiations.
71 "M" System, Inc., Mobile Home Division Mid-States Corp., 129
NLRB 527, 529. And see, e.g., N.L.R.B. v. Exchange Parts Company,
661
adequate time to reasonably prompt and continuous
negotiations, it was the Respondent's obligation to
furnish a representative who could. The duty to bar-
gain in good faith includes the duty to be available for
negotiations at reasonable times as the statute
requires. That duty is not discharged by turning over
the conduct of negotiations to one whose other ac-
tivities make him not so available. 71
Further, it has repeatedly been held that a collective-bar-
gaining agreement, envisaged by the good-faith require-
ments of the statute, "is stifled at its source if opportunity
is not accorded for discussion or is so delayed as to invite
or prolong unrest or suspicion."72 Indeed, the urgency of
expedition is accentuated during the course of a strike'73
as was here the case from April 23 to August 8.74 By
open admission as well, Respondent's chief negotiator
revealed that his guiding philosophy was at odds with the
positive legal duty which is an essential part of each par-
ty's bargaining obligation.75 During the negotiations on
June 30, Edwards complained to Inman that it had al-
ways been the Union initiating these meetings and having
great difficulty, that the Company had not in one instance
initiated a meeting. As Inman testified, he responded,
"Well, Bill, it's the Union that is seeking the agreement
and making the demands. We are not out to volunteer to
give you things. I think the burden is on you to demand
and not for us to try to find the common ground unless we
think it is to our advantage."
The totality of the conduct is of course considered on
the general issue of good-faith bargaining. In the course
of Respondent's dealings with the Union, as already
shown, and to be shown - there are many particular
aspects of conduct which independently violate Section
8(a)(5). Even apart from subjective intent, the delays and
attenuation of the bargaining by Attorney Inman would
constitute a failure to meet and confer with the Union in
the manner contemplated by the Act. However, much
more is evidenced here, upon all of which I cannot but
conclude that Respondent's and Inman's actions were
calculated to obstruct and frustrate any eventual execu-
tion of a collective-bargaining agreement.
3. Particular bargaining refusals
The testimony indisputably reveals, and there can be
no issue, that Respondent deliberately disregarded the
Union's bargaining status in announcing the grant of a
general wage raise on July 26. There was no suggestion
of an impasse in the, bargaining then, or at any time
thereafter in Respondent's stated view. The announce-
ment itself, in the form it was made during the negotia-
tions, was tantamount to a direct refusal to bargain on this
crucial subject. From the corroborative testimony of Pen-
degrass, and there being no contrary evidence, it is
reasonably to be inferred and found that Respondent, as
it announced, placed in effect the wage increase, retroac-
tive to June 1. While the complaint does not specify this
339 F.2d 829 , 832, enfg. 139 NLRB 710; Radiator Specialty Company,
143 NLRB 350; Bartlett-Collins Company, 140 NLRB 202.
72 Exchange Parts Company , 139 NLRB 710, 713; J. H. Rutter-Rex
Manufacturing Company, Inc ., 86 NLRB 470,506
73 N.L.R.B. v. Pecheur Lozenge Co ., Inc., 209 F.2d 393, 403 (C.A. 2),
cert. denied 347 U S. 953.
74 During this strike, only about 6 hours in total were consumed in the
three bargaining meetings.
71 Exchange Parts Company , supra at 713.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unilateral wage action as a separate violation, there was
full litigation of the issue. The net result is the same
whether the conduct is cited herein as independently
unlawfu176 or as manifestation of a general refusal to bar-
gain. I find both.
In August, Inman's telephone proposition to Edwards
that Respondent would pay the omitted 1965 Christmas
bonus, and possibly increase the amount, if the Union
would withdraw the pending unfair labor practice charges
constituted an offer based upon an unlawful condition,
and thereby violated Section 8(a)(1)and (5).77
4. The general refusal to bargain
"` [T]here is a duty on both sides ... to enter into
discussion with an open and fair mind, and a sincere pur-
pose to find a basis of agreement ...."73 The record is
replete with evidence that at best Respondent was engag-
ing in mere surface or disguised motions of collective bar-
gaining, while its true purpose, as vividly revealed in the
entirety, was to delay, frustrate, and avoid the consum-
mation of a contract.
The broad Section 8(a)(5) allegation is well made out,
particularly in the manner and method of Respondent's
conduct, in unilaterally discontinuing the 1965 Christmas
bonus, in unilaterally changing wage rates, in refusals and
failures to supply relevant data, and in seeking to un-
dermine the Union's representative status by means of
threats and solicitations, all as heretofore described.
Within this context, consideration is also given to illus-
trate factors in the bargaining negotiations which serve to
bolster the ultimate finding of violation.
Attorney Inman testified that Respondent did not
propose or intend to eliminate any of the employee
benefits already in existence. Certain existing benefits,
e.g., pension - profit sharing, Christmas bonus, longevity
raises, and incentive pay, were omitted from the complete
contract which Respondent submitted and to which it ad-
hered throughout. Respondent's proposed contract ex-
pressly provided that it constituted the entire agreement
and foreclosed further bargaining during the contract
term. There is, of course, no duty on the part of an em-
ployer to agree to continue any or all existing benefits.79
However, in collective-bargaining principle, he is obliged
to express his proposals or rejections with reasonable
clarity so that, by anology with the statutory duty to
supply relevant data, a frank and intelligent basis is pro-
vided for negotiating an agreement without undue delay.
In the circumstances here, I find Respondent's position
untenable, and not taken in good faith. If Respondent was
bargaining to, eliminate the existing benefits aforemen-
tioned, it should have made this clear at an appropriate
point in the long negotiations. If by its oral assurance of
continuation of such benefits, it was offering in effect to
76 N.L.R.B v. Benne Katz, supra.
77 E.g., Lion Oil Company v. N.L R.B., 245 F.2d 376, 378 (C.A 8);
American Laundry Machinery Co. v. N.L.R B., 174 F.2d 124 (C A. 6),
enfg. 76 NLRB 981, 983.
78 N.L R.B. v. Herman Sausage Company, Inc., 275 F.2d 229, 231
(C.A. 5). And see, e.g., N.L.R.B. v. Insurance Agents' International
Union [Prudential Insurance Co.], 361 U.S. 477, 485; L. L. Majure
Transport Company v. N.L.R.B., 198 F.2d 735 (C.A. 5); N.L R.B. v.
Reed & Prince Manufacturing Company, 205 F 2d 131 (C A. 1), cert. de-
nied 346 U.S. 887.
71 E g., Cranston Print Works Company, 115 NLRB 537, 559.
grant these benefits as a weight or counterweight in the
bargaining scale, it should have been willing, as it was not,
to embrace the same in its proposed all-inclusive con-
tract. If its actual purpose was to retain full discretion
during the contract term unilaterally to drop or change
any of these benefits, thus seeking a vital concession from
the Union, it could not consistently assert the intention to
continue the benefits, and should have, moreover, made
such a proposal explicit beyond misunderstanding.
In its proposed written contract, Respondent sought
the unilateral right to increase wages. Especially when
viewed in conjunction with the general wage raise which
it unilaterally instituted on July 26, in derogation of the
Union, and other similar conduct as shown, such wage
proposal - basically offensive to any self-respecting union
- cannot reasonably be regarded as having been advanced
with a good-faith desire to reach ultimate agreement.
E. The Discriminatory Refusals to Reinstate Strikers
Unquestionably, Respondent's unlawful discon-
tinuance of the 1965 Christmas bonus was a grave and
pervasive grievance of the employees and the Union. A
charge was promptly filed with the Board in January,
preceding by a month the commencement of bargaining
negotiations. As detailed, many other violations of seri-
ous import were committed by Respondent preceding and
during the strike from April 23 to August 8. It is thus
amply shown, and accordingly found, that the strike was
caused and prolonged by Respondent's unfair labor prac-
tices, albeit there were also economic issues in disagree-
ment.80
Respondent was therefore under a legal obligation to
reinstate the strikers to their former or substantially
equivalent jobs upon their unconditional application at
the end of the strike, and to discharge, if necessary, all
replacements hired on or after April 23.81 The Union's
letter of August 6, supra, clearly notified Respondent
that the strike was terminated and that the bulk of the
strikers immediately available would return to work un-
conditionally on August 8, as they were instructed. So far
as it went, such blanket unconditional application for
reinstatement on behalf of the strikers was fully
authorized and legally sufficient.82 However, there is no
basis for finding, as contended without explication by the
General Counsel, that the Union's letter was a proper
blanket application for all strikers without further need
for their individual appearance or application for work,83
particularly as the Union explicitly advised Respondent
that the strikers would personally report to the plant. Ac-
cordingly, it is found that the strikers who reported or ap-
plied for their former or substantially equivalent jobs dur-
ing the period of the strike, or on and after August 8, and
who were refused such reinstatement within 5 days of
8° It is scarcely determinative of the issue that , as contended by
Respondent, one of the picket signs (revealed in Respondent 's photo-
graphs) carried the legend, "On Strike More Money43etter Working'Con-
ditions." E.g., N.L.R.B v. Fitzgerald Mills Coiporation, 3131x' 2d 260,
269 (C.A. 2).
81 E.g., Mastro Plastics Corp. v N.L.R.B , 35Q 0.S. 270.
82 Lasko Metal Products, Inc., 148 NLRB 976, 994, enfd. 363 F.2d
529 (C.A. 6).
83 Cf., Brown and Root, Inc., 99 NLRB 1031, 1038, et seq., enfd. as
modified 203 F.2d 139 (C.A. 8); Elmira Machine & Specialty Works,
Inc., 148 NLRB 1695, 1696.
MISSISSIPPI STEEL CORP.
their application, were discriminated against in violation
of Section 8(a)(3).84
A list of the 90 alleged discriminatees named in the at-
tached complaint is incorporated herein as Appendix C,
with annotations indicating such evidence as was taken
from Respondent's official records and from the
testimony or stipulations. In some respects , as is ap-
parent, there are discrepancies or ambiguities in this
evidence. The more precise questions and computations
pertaining to reinstatement and backpay pursuant to the
remedial order recommended hereinafter are matters
properly to be determined in the compliance stage of this
proceeding. The record is sufficient, however, to support
the following definite conclusions.
1. The complaint is dismissed as to those employees
who are shown to have returned to work during the strike
and who were employed on August 7, at strike termin-
ation.85
2. The complaint is dismissed as to those strikers who
made application during or after the strike and were rein-
stated by Respondent within a period of 5 days.86
3. There are strikers who are not shown as having ap-
plied for return to work during or after the strike.87 Also
shown are strikers who were reinstated on dates sub-
sequent to August 8 but with no indication in company
data submitted that they had made application. While the
names of these strikers, as footnoted, do not appear on
the list of discriminatees in Appendix A, the disposition
as to them is reserved for compliance investigation to
conform with the holdings herein as to other strikers and
with existing Board law, depending upon the particular
circumstances revealed in the investigation.
4. Those strikers who are shown as having applied
during or after the strike are found, on review of all the
evidence, to have made proper applications.""
5. Respondent's evidence is not disputed that Eddie
Lee Burch was discharged in January 1966; that Warren
Crain was injured on the job on April 22, as a result of
which he has since been absent on leave; and that Elijah
Prewitt, by reason of an injury on the job, was absent dur-
ing the period of the strike and first returned to work on
September 12. As to these three, the allegations are
dismissed.
6. Certain strikers are indicated as having resigned
from their jobs after having been reinstated or after failing
to apply subsequent to strike termination. The resignation
dates shown for these employees are found to be valid for
the purpose of cutting off backpay in the Recommended
Order. However, a different finding and disposition is
84 Listed (to the extent of this record) in the attached Appendix A.
85 Bousley, Boykin , Buckner, Johnnie Burton, Davis, James Harris,
and Obadiah Jenkins, Clarence Jones, David Lewis, McInnis, and Suther-
land. Despite the ambiguity of Enoch's indicated employment on June 21,
I find in any event that thereafter he applied on August 8 and was hired on
August 22.
86 Coleman, Mason, W A. McCoy, McLaurin, Travis, Wilson, and
Williamson
87 Booker, Calendar, Chaney, W Elmer Chunn, Hubbard, Louis Jones,
Nash, Sandifer, Curtis Lee Smith, John Henry Smith, Shelby Lee Smith,
Tommie Smith, Tucker, Walker, and Williams.
88 Arthur Thompson is credited with having made application by
telephone on August 10, which I find sufficient in view of the unfair labor
practice strike, notwithstanding Respondent 's asserted policy of requiring
personal appearance at the plant. W Ernest Chunn applied during the
strike in a telephone call to Superintendent Dyas , and was refused. Those
strikers identified in Jimmie Payne's testimony as having appeared for
work at the plant gate on the morning of August 8, where they were wait-
663
made as certain other strikers who resigned. Charles
Hubbard and W. Elmer Chunn resigned during the strike;
Otis Woodley and W. Ernest Chunn resigned after they
failed to receive reinstatement upon their timely applica-
tion, respectively on August 8 and during the strike. As
previously indicated, the employees have sums of money
posted to their individual credit under the existing pen-
sion - profit sharing plan controlled by the trustee.
Respondent requires a written resignation of any em-
ployee before it advises the trustee of the plan to pay the
employee his accrued profit-sharing funds. In particular
view of the unfair labor practice nature of the strike and
the undoubted economic hardship endured by the
strikers, it may be fairly inferred that these four strikers
submitted their resignations for the purpose of obtaining
their profit-sharing money, and not needlessly to abandon
their job rights.89 From Respondent's standpoint, it did
have a right to rely on the resignations in order to fill the
vacancies thus created. The requirement of a resignation
presumably stemmed from the terms of the pension trust
agreement, which surely was not written as a means of
reprisal in contemplation of a future strike. As a balance
of the equities, my findings are that backpay is tolled as of
the date of resignation of the four named employees, but
that their reinstatement rights as unfair labor practice
strikers are not forfeited.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section I,
above, occurring in connection with Respondent 's opera-
tions described in section III, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. A broad cease-and-de-
sist order is recommended in view of the discriminations
and the extensive and serious character of the other viola-
tions committed , all of which indicate a propensity
generally to violate the Act.90
ing to be admitted by the guard to the personnel office, are found to have
made sufficient application . This finding particularly affects Charles En-
glish and Jasper Harper; evidence elsewhere corroborates the others
identified by Payne.
89 Then Personnel Manager Charles M. Cohn testified that W Elmer
Chunn telephoned him during the strike and said he had another job, was
quitting , and wanted his profit sharing. Chunn was required to sign a letter
of resignation , which he subsequently submitted. I do not find this
testimony establishes that Chunn's reason for resigning was because he
had another job during the strike. Lois Harrell testified that Charles Hub-
bard telephoned him during the strike that he was quitting and had another
job. Harrell informed Personnel Manager Cohn. It is noted that Hubbard
was not requested to submit his resignation in writing , and nothing is
shown concerning Hubbard's withdrawal of profit-sharing money Nor is
Hubbard reported in Respondent 's data as having resigned
so N L.R.B. v. Express Publishing Company, 312 U.S. 426; N.L.R.B.
v. Entwistle Mfg. Co, 120 F.2d 532 (C.A. 4)
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found in detailed respects that Respondent
engaged in unilateral actions, in derogation of the Union,
by discontinuing the 1965 Christmas bonus and by in-
stituting general and specific increases in wages. It will
therefore be recommended that Respondent cease and
desist from such unilateral conduct, and from unilaterally
changing any other conditions of employment in disre-
gard of the Union's bargaining status.
Affirmatively, it will be recommended that Respondent
pay to the employees the excluded 1965 Christmas bonus
in the amounts computed according to the standards used
by the Respondent in the years 1962-64, whichever
results in the highest overall bonus to the employees, to
be determined in the compliance stage of this case, with
interest at 6 percent per annum from the last payroll date
preceding Christmas 1965.
It will also be recommended that Respondent bargain
collectively with the Union, upon request, concerning
any changes in terms and conditions of employment prior
to effectuating such changes; to meet with and bargain
collectively with the Union, upon request, with reasona-
ble frequency and promptness, and generally to engage in
good-faith bargaining with the Union, as .the exclusive
representative of the employees in the appropriate unit,
and embody in a signed agreement any understanding
reached.
It will be further recommended that Respondent offer
to all the strikers named in the attached Appendix A91
immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging, if
necessary, any replacements in order to provide work for
the strikers, and to make whole all strikers named in Ap-
pendix A for any loss of earnings they may have suffered
by reason of the discrimination against them, by payment
to each a sum of money equal to that which each normally
would have earned as wages from 5 days after the
strikers' unconditional request for reinstatement, as noted
in the attached Appendix C, to the date of their reinstate-
ment or Respondent's offer of reinstatement, less the net
earnings of each during such period, with backpay com-
puted on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289.
Backpay shall carry interest at the rate of 6 percent per
annum, as set forth in Isis Plumbing & Heating Co., 138
NLRB 716. Further, it will be recommended, that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful in determining the
amounts of bonus and backpay due, and the rights of rein-
statement under the terms of these recommendations.
Upon foregoing findings of fact, and upon the entire
record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees at the
Flowood, Mississippi, steel mill, including detail men,
tally clerks, testers, and melters, but excluding sales en-
gineers, all office clerical employees, guards, watchmen
and supervisors as defined in the Act - constitute an ap-
propriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The strike, which was in progress from April 23 to
August 8, 1966, was caused and prolonged by the unfair
labor practices of Respondent, and was therefore an un-
fair labor practice strike.
5. By failing and refusing to reinstate unfair labor prac-
tice strikers upon their unconditional requests, thereby
discriminating in regard to their hire and tenure of em-
ployment and discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
6. By failing to pay the 1965 Christmas bonus for the
purpose of discouraging membership in the Union, and by
acting unilaterally, without prior notice to or bargaining
with the Union, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(3) and (5) of the Act.
7. By engaging in bargaining negotiations without a
sincere desire to reach agreement with the Union; by uni-
laterally granting wage increases to its employees; by fail-
ing and refusing to meet and confer with the Union at
reasonable times; by failing and refusing to supply the
Union, upon request, with relevant wage data pertaining
to pensions and profit sharing, and to the names, classifi-
cations, and pay rates of employees working during the
aforementioned strike, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
8. By the foregoing, and other independent acts and
conduct interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and upon the entire record in the cases, it is
recommended that Respondent , Mississippi Steel Cor-
poration , Flowood , Mississippi , its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Steel Workers
of America , AFL-CIO, or any other labor organization
of its employees , by refusing to reinstate unfair labor
practice strikers upon their unconditional requests, or by
failing to pay a Christmas bonus or other wage compensa-
tion , or in any other manner discriminating in regard to
hire or tenure of employment or any term or condition of
employment.
(b) Engaging in surveillance of the employees' union
or protected activities.
(c) Threatening to withhold a Christmas bonus, or
other benefits, to dissuade employees from selecting a
bargaining representative.
(d) Soliciting strikers to return to work and particu-
larly when accompanied by reprisal threats or offers of
benefit.
91 The showing that certain of these strikers were subsequently rein- of America, AFL-CIO (Wright Line Division of Barry Wright Corpora-
stated does not obviate the need for a remedial order. United Steelworkers tion), 146 NLRB 71, 72.
MISSISSIPPI STEEL CORP.
(e) Soliciting or suggesting antiunion petitions among
the employees.
(f) Threatening plant closure to defeat union represen-
tation or to avoid signing a collective-bargaining contract.
(g) Stating to employees that Respondent would not
be going union or accept union representation.
(h) Stating or implying to employees that striker
replacements, or any other employees, were or would be
paid higher wages because they are nonunion.
(i) Refusing to bargain collectively with the above-
named Union by failing to meet for contract negotiations
with reasonable promptness and frequency.
(j) Discontinuing a bonus, or other benefits, or chang-
ing any term or condition of employment of employees in
the bargaining unit, without notifying, consulting, and
bargaining with the above-named Union, as the exclusive
representative of its employees in the appropriate unit
described hereinabove.
(k) Refusing to furnish the above-named Union, upon
its request, with information pertaining to pensions and
profit sharing, with information of the names, classifica-
tions, and pay rates of any employees in the appropriate
unit, or with any other, relevant data necessary and useful
for the purposes of collective bargaining.
(1) Refusing to bargain in good faith with the above-
named Union as representative of its employees in the ap-
propriate unit.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively and in good
faith with the above-named Union as the exclusive
representative of its employees in the appropriate unit,
and embody in a signed agreement any understanding
reached.
(b) Upon request, meet and bargain collectively with
the above-named Union with promptness and frequency
concerning the negotiation of a contract.
(c) Notify and consult the above-named Union, and
afford it an opportunity to bargain collectively, with
respect to any changes inwages, bonuses, or other terms
and conditions of employment before effectuating such
changes.
(d) Make whole all employees in the appropriate unit
the amount of the Christmas bonus which was unlawfully
omitted in 1965, in the manner set forth in the section of
the Trial Examiner's Decision entitled "The Remedy."
(e) Offer to all unfair labor practice strikers whose
names are listed in the attached Appendix A, immediate
and full reinstatement to their former or substantially
equivalent positions, and make them whole for any loss
of pay each may have suffered because of the discrimina-
tion against him, in the manner set forth in the latter por-
tion of the Trial Examiner's Decision and in the section
entitled "The Remedy."
(f) Notify the employees whose names are listed in the
attached Appendix A, if presently serving in the Armed
Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces.
(g) Preserve and make available to the Board or its
agents, all payroll records, as set forth in the section of
the Trial Examiner's Decision entitled "The Remedy."
665
(h) Post at its Flowood, Mississippi, plant, copies of
the attached notice marked "Appendix B."92 Copies of
said notice, on forms provided by the Regional Director
for Region 15, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(i) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 93
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
,specifically found herein.
92 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
99 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 15 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX A
Anderson, Dave
Anderson, Hosie
Barnes, Fred
Berry, Robert Lee
Brown, Herman
Burch, Lee Vertis
Burton , Cal Curtis
Chunn, W. Ernest
Drone, A. J.
English, Charles
Enochs, Excell
Fisher, James
Fletcher, Ruben
Green, Marcellus
Hamblin, Emanuel
Hamblin, McKinley
Harper, Jasper
Hobson, Roy
Jenkins, Henry
Jones, Kermit
Lefler, Edean
Lester, Samuel L.
Lewis, Danny
Manning, David
McCoy, Frank
Millsaps, Wyatt
Payne, Jimmy
Pendegrass, Roy
Richardson, Jerrell (or Gerrell)
Spann, James, Jr.
Spann , Sidney
States, Sam O.
Thompson, Arthur
White, Arthur
Wince, Earl
Wince, Melvin
Wright, Charlie
Wright, John
Woodley, Otis
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in United
Steel Workers of America , AFL-CIO, or any other
labor organization of our employees , by refusing to
reinstate unfair labor practice strikers upon their un-
conditional requests, or by failing to pay a Christmas
bonus or other wage compensation , or in any other
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner discriminating in regard to hire or tenure of
employment or any term or condition of employ-
ment.
WE WILL NOT engage in surveillance or our em-
ployees' union or protected activities.
WE WILL NOT threaten to withhold a Christmas
bonus, or other benefit, in order to dissuade em-
ployees from selecting a bargaining representative.
WE WILL NOT solicit strikers to return to work,
and particularly when accompanied by reprisal
threats or offers of benefit.
WE WILL NOT solicit or suggest antiunion petitions
among the employees.
WE WILL NOT threaten to close the plant in order
to defeat union representation or to avoid signing a
collective-barganing contract.
WE WILL NOT tell our employees that we will not
be going union or will not accept union representa-
tion.
WE WILL NOT state or imply to our employees that
striker replacements, or any other employees, were
or would be paid higher wages because they are
nonunion.
WE WILL NOT refuse to bargain collectively with
the above-named Union by failing to meet for con-
tract negotiations with reasonable promptness and
frequency.
WE WILL NOT discontinue a bonus, or other
benefit, or change any term or condition of employ-
mento of our employees in the bargaining unit,
without notifying, consulting, and bargaining with the
above-named Union, as the exclusive representative
of our employees in the appropriate unit set forth
below.
WE WILL NOT refuse to furnish the above-named
Union, upon its request, with information pertaining
to pensions and profit sharing, with information of
the names, classifications, and pay rates of any em-
ployees in the appropriate unit, or with any other
relevant data necessary and useful for the purposes
of collective bargaining.
WE WILL NOT refuse to bargain in good faith with
the above-named Union as representative of our em-
ployees in the appropriate unit.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in any other activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL, upon request, bargain collectively and
in good faith with United Steel Workers of America,
AFL-CIO, as the exclusive representative of our
employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
WE WILL, upon request, meet and bargain collec-
tively with the above-named Union with promptness
and frequency concerning the negotiation of a con-
tract.
WE WILL notify and consult the above-named
Union, and afford the above-named Union an oppor-
tunity to bargain collectively, with respect to any
changes in wages, bonuses, or other terms and condi-
tions of employment before effectuating such
changes.
WE WILL make whole all employees in the ap-
propriate unit set forth below the amount of the
Christmas bonus which was unlawfully omitted in
1965.
WE WILL offer to all unfair labor practice strikers
whose names are listed in Appendix A attached to
the Trial Examiner's Decision, immediate and full
reinstatement to their former or substantially
equivalent positions, and make them whole for any
loss of pay each may have suffered as a result of the
discrimination against them.
WE WILL notify any of the employees whose
names are listed in Appendix A to the Trial Ex-
aminer's Decision, if presently serving in the Armed
Forces of the United States of the right to full rein-
statement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
The bargaining unit is:
All production and maintenance employees at,
the Flowood, Mississippi, steel mill, .including
detail men, tally clerks, testers, and melters, but
excluding sales engineers, all office clerical em-
ployees, guards, watchmen and supervisors as
defined in the Act.
MISSISSIPPI STEEL
CORPORATION
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, T6024 Federal
Building, 701 Loyola Avenue, New Orleans, Louisiana
70113, Telephone 527-6361.