Steelworkers, Locals 196, 6850, 7508, Etc.

National Labor Relations Board - Board Decisions

Nov 4, 1976

226 N.L.R.B. 772 (N.L.R.B. 1976)

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