Stackpole Components Co.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 723 (N.L.R.B. 1977)

STACKPOLE COMPONENTS COMPANY
Stackpole Components Company and International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, Local 187. Case I -CA-6593
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 27, 1977, Administrative Law Judge Anne
F. Schlezinger issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
cross-exceptions and a brief in answer to Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
herein modified.
The Administrative Law Judge found, and we
agree, that on February 19, 1976, the parties entered
into a collective-bargaining agreement with a March
1, 1976, effective date: that said agreement included
provisions for checkoff of union dues; and that
Respondent refused to execute or administer the
agreement for reasons which violated Section 8(a)(5)
and (1) of the Act. The Administrative Law Judge
ordered Respondent to execute and to give retroac-
tive effect to the agreement, but did not require it to
reimburse the Union for all dues properly authorized
to be deducted but which it failed to deduct and
transmit to the Union. The Union has excepted to
the Administrative Law Judge's failure to order
Respondent to comply with its dues reimbursement
obligation. We find merit in this exception and,
accordingly, shall require Respondent to comply
with the dues-checkoff provision of the contract and
remit to the Union the dues due and owing for each
employee who executed a dues-deduction authoriza-
tion, together with interest at 7 percent per annum.
The determination of valid authorizations is a matter
for the compliance stage of this proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
232 NLRB No. 117
modified below, and hereby orders that the Respon-
dent, Stackpole Components Company, Raleigh,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in said
recommended Order, as so modified:
1. Insert the following as paragraph 2(b) and
letter the remaining paragraphs accordingly;
"(b) Reimburse the Union for all membership dues
which, since March 1, 1976, Respondent has failed to
withhold and transmit to the Union pursuant to
signed dues deduction authorizations and in accor-
dance with the checkoff provision of the collective-
bargaining agreement, with interest computed there-
on in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). " 2
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established polic) not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drv Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 See, generally, Isis Phirmbing & Heating Co., 138 NLRB 716 (1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain by refusing to
execute a contract negotiated and agreed upon
with International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, Local 187, or
condition execution of an agreed-upon collective-
bargaining contract on the aforesaid Union's
withdrawal of unfair labor practice charges or
withdrawal of a lawsuit filed under Title VII of
the Civil Rights Act of 1964, or bargain to
impasse over withdrawal of that lawsuit, a
nonmandatory subject of bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL, upon request of the aforesaid Union,
execute and give retroactive effect to the collec-
tive-bargaining contract on which agreement was
reached on February 19, 1976, effective March 1,
1976, for a year, and to a I-year renewal effective
March 1, 1977, or, if the Union does not request
such execution or renewal, WE WILL bargain
collectively in good faith upon request with the
aforesaid Union as the certified exclusive collec-
tive-bargaining representative of our employees in
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit found appropriate, with respect to rates
of pay, wages, hours, and other terms and
conditions of employment, and embody in a
signed agreement any understanding reached.
The bargaining unit is:
All production and maintenance employees
employed at our Raleigh, North Carolina,
plant, excluding all office clerical employees,
technical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
WE WIIL reimburse said Union for all member-
ship dues which, since March 1, 1976, were
authorized by our employees to be deducted but
which we failed to deduct and transmit to said
Union.
STACKPOLE COMPONENTS
COMPANY
DECISION
STATEMENT OFr THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge and an amended charge filed respectively
on May 26 and July 9, 1976,' by International Union of
Electrical, Radio and Machine Workers, AFL-CIO-CLC,
Local 187, herein called the Charging Party or the Union,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 11, issued a
complaint and notice of hearing on July 20 and an
amendment to complaint on August 3. The amended
complaint, further amended at the hearing, alleges that
Stackpole Components Company, herein called the Re-
spondent, has since on or about February 26, 1976, refused
to bargain collectively with the Union, which was certified
on November 14, 1974, as the exclusive collective-bargain-
ing representative of the production and maintenance
employees in an appropriate unit, by refusing to execute an
agreed-upon contract, by conditioning execution of an
agreed-upon contract on the Union's withdrawal of unfair
labor practice charges filed against the Respondent, by
bargaining to impasse over a nonmandatory subject of
bargaining, to wit, the Union's refusal to withdraw a
lawsuit filed against the Respondent under Title VII of the
Civil Rights Act of 1964, and by conditioning execution of
an agreed-upon contract on the Union's withdrawal of the
lawsuit, and that the Respondent has thereby engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended. The Respondent, in its answer
and amended answer duly filed, admits certain factual
allegations of the complaint, but denies that it engaged in
conduct violative of the Act.
I All dates hereinafter refer to 1976 unless otherwise indicated.
2 The reporter announced at the November 5 hearing that the tapes of
the November 4 hearing had been stolen from the reporter's car. The
Pursuant to notice, a hearing was held before me in
Raleigh, North Carolina, on November 4 and 5 and
December 7 and 8.2 All the parties appeared at the hearing
and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce relevant
evidence. At the close of the hearing the parties waived
closing argument. Subsequent to the hearing, the General
Counsel, the Respondent, and the Charging Party filed
briefs on or about February 7, 1977, which have been fully
considered.
Upon the entire record in this case including the
testimony, the exhibits, and my evaluation of the credibili-
ty of the witnesses based upon their testimony, their
demeanor, and the inherent plausibility of the circum-
stances set forth in their testimony, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material herein has
been, a Delaware corporation with a plant in Raleigh,
North Carolina, where it is engaged in the manufacture
and distribution of electrical components. During the past
12 months, which period is representative of all times
material herein, the Respondent received at its Raleigh
plant products valued in excess of $50,000 directly from
points located outside the State of North Carolina, and
manufactured, sold, and shipped from its Raleigh plant
products valued in excess of $50,000 directly to customers
located outside the State of North Carolina. The complaint
alleges, the Respondent in its answer admits, and I find,
that the Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1I. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues herein are whether the Respondent, in
violation of Section 8(a)(1) and (5) of the Act, refused to
execute a contract on which agreement had been reached;
conditioned execution of a contract on which agreement
had been reached on withdrawal by the Union of unfair
labor practice charges it filed alleging various unfair labor
practices by the Respondent including refusal to bargain,
and thereafter conditioned execution of a contract on
which agreement had been reached on withdrawal of a
lawsuit filed by the International Union under Title VII of
the Civil Rights Act of 1964; and bargained to impasse
over the nonmandatory subject of withdrawal of the
lawsuit. There is no dispute that the conduct set forth in the
complaint would be violative of the Act, but there is
witnesses who were examined on November 4 were examined again when
the hearing resumed on December 7 as the missing tapes had not been
recovered.
724
STACKPOLE COMPONENTS COMPANY
considerable conflict in the testimony as to whether
positions were taken at certain sessions during the
prolonged negotiations that constitute the violations
alleged.
B. The Witnesses
The General Counsel called as witnesses Michael
Giardino, secretary-treasurer of the International Union's
District 1, whose office is in Philadelphia, and Willis
Robinson, a field representative of the International
Union, whose office is in Raleigh. Both have duties that
encompass assisting Local 187, the Charging Party, which
represents the Respondent's employees, and both partici-
pated with other union representatives in negotiations with
the Respondent. Both testified about negotiation sessions
at which they were present on the basis of their recollec-
tion. Giardino took no notes at the negotiation sessions he
attended. Robinson took a few sketchy notes which he
brought to the hearing at the request of counsel for the
Respondent, who examined them. None were placed in
evidence.
The Respondent called as its witnesses Norman Bender,
president and chief executive officer, John Bezek, manager
of industrial relations, and James Miles, one of the
Respondent's attorneys. The Respondent's representatives
had minutes or notes of telephone conversations, meetings,
and negotiation sessions. The Respondent was permitted to
place many of these notes or minutes in evidence over the
objections of counsel for the General Counsel and counsel
for the Charging Party. Creech, one of the Respondent's
attorneys, took notes at some meetings. Bezek testified that
he was unable to interpret Creech's notes. Others also took
notes for the Respondent at times, and at times no one did,
but for the most part the notes were taken by Bezek, who
was the Respondent's chief negotiator. Bezek referred at
times in his testimony to his "notes" and to his "minutes,"
and explained that minutes were those taken physically at a
negotiation session, whereas notes might refer to a writeup
of what occurred at meetings where he did not take official
minutes but wrote up what occurred after the session.
Bezek took notes during negotiation sessions in long-
hand, later made changes to clarify and correct the
language, sometimes rewrote the notes to make them
legible, had them reviewed at times by Bender or one of the
Respondent's attorneys who made revisions, and then had
them typed in the office or on occasion typed them himself,
sometimes days later. Miles, who attended certain negotia-
tion sessions with Bezek, testified that Bezek took some
notes at these sessions but "I had made just scribble notes.
In fact, I don't think I made many because I had done
most of the talking." Bezek's notes covered negotiation
sessions at which he was the only Respondent representa-
tive. The notes or minutes were not shown to the union
representatives.
There was a reference in Bezek's notes on one of the
negotiation sessions that he testified he did not understand
and could not explain. It did not appear in the typewritten
I John Zink Compannv, 196 NLRB 942 (1972). enfd. C.A. 10. June 22,
1973 {unpublished). and 551 F.2d 799 (C.A. 10, 1977). (apital Rubber d
Specialr Co., 198 NLRB 260(1972): O'Land. Inc.. d h a Ramada Inn South,
206 NLRB 210 (1973); Oil, (hemical and Altomi Workers International
version. None of the notes or minutes purported to be
verbatim or complete accounts of the meeting in question.
Some of Bezek's notes were far more detailed than his
testimony about the particular meeting. As to one meeting,
Bezek testified that "there is no way, that I, in my humble
mind, could ever determine who said what, when and
where." And as to his remembering certain issues, he stated
"again, specifically, I don't-but that would be almost
impossible to pinpoint that."
Giardino and Robinson impressed me as forthright and
believable witnesses, testifying candidly to the best of their
recollection as to numerous negotiation sessions and
conversations with the Respondent. On the other hand, I
found Bender, Bezek, and Miles evasive and unconvincing
witnesses, whose testimony and notes appeared contrived
not to show what was said but to establish and document a
defense to a charge by the Union of refusal to bargain.3
Accordingly, where the testimony is in conflict. I credit
that of Giardino and Robinson.
C. The Negotiations
Following an election held on October 11, 1973, the
Union was certified on November 14, 1974, as the exclusive
collective-bargaining representative of a unit of all produc-
tion and maintenance employees employed at the Respon-
dent's Raleigh, North Carolina, plant, excluding all office
clerical employees, technical employees, professional em-
ployees, guards and supervisors as defined in the Act.
Bezek testified that the parties entered into a settlement
agreement on May 22, 1975, agreeing to bargain collective-
ly.
The parties at the hearing stipulated that formal contract
negotiations began on August 4, 1975;4 that they contin-
ued periodically until May 18, 1976, and thereafter; and
that, as of February 4, 1976, there were three outstanding
issues to be resolved through the negotiations: grievance
procedure, wages, and dues checkoff. The negotiation
sessions were held at a motel. At the first session, Bender
designated Bezek as the Respondent's chief spokesman in
the negotiations, said an attorney would be present at some
negotiations as the Respondent's representatives were
inexperienced in such matters, and made a statement about
the Respondent's financial condition, then left. At meet-
ings thereafter, agreement was reached on a number of
provisions, which were sometimes in writing and initialed,
but in other instances the agreement was verbal.
Bezek testified that at a meeting on January 14, 1976,
Robinson said checkoff was a critical matter to the Union,
and that he or Miles responded that "checkoff must have a
price somewhere." Checkoff was discussed also at later
meetings. Bezek testified that Robinson at an early date
showed him as an example a page of a contract at the
Scovill plant, represented by an IUE local, but denied that
the Union proposed a checkoff provision like that in the
Scovill contract.
Bender testified that Carmichael, president of the
International Union's District 1, whose office is in
Union and its Local 7-507. 212 NLRB 98, 106 (1974): Schuvikill Metals
Corporation. 218 NLRB 317, 320(1975).
4 Bezek testified that the Respondent has for years improved wages and
employee benefits on or about August I.
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburgh, telephoned in early January, expressed dissatis-
faction with the progress of the negotiations, mentioned the
three outstanding issues, and asked for a meeting;5 that
Carmichael telephoned again on January 23; that Bender
said he was tied up but would ask Bezek to meet with
Carmichael, and Bezek did so; that Carmichael called after
meeting with Bezek, said they were unable to conclude
anything and were to meet again the next day, a Saturday,
and Carmichael would like to have an agreed-upon
package to present to the membership at a meeting that
evening; that he told Carmichael he did not believe that
was possible; and that he later told Bezek they might in
that time agree on a wage package but could not resolve
the other issues.
Carmichael tried to reach Bender again on January 26
and on February 6, but Bender was not at the plant.
Carmichael did reach Bender on February 9 and, as
Bender testified, said the membership had rejected the
proposals on wages and certain other matters, and
Carmichael urged a meeting to "try to resolve some of
these things, if there was any way-or at least talk about
them. And I had indicated to him that I was willing to talk.
I was willing to talk, but I was not willing to negotiate."
Bender testified further that he agreed to meet with
Carmichael on February 19; that he urged that this was to
be "only on the basis of an exploratory type of meeting,"
and should be limited to the two of them; that Carmichael
objected on the ground that Bender was more familiar than
Carmichael was with the details of the negotiations; and
that he then recommended, and Carmichael agreed, that it
would be a two-on-two meeting.
1. February 19 meeting
Carmichael and Giardino met on February 19 with
Bender and Bezek. Other union representatives were
excluded at Bender's demand. Giardino testified that he
told the Respondent they would have a contract when the
three issues, grievance procedure, wages, and checkoff,
were settled; that after some discussion Bender said he
could live with certain proposed changes in the grievance
procedure; and that, in the discussion on wages, Bender
explained that he could not increase the wage offer, but
proposed, on the assumption of a contract for a year
beginning March I, adding a provision for a wage reopener
on August 1, which the Union accepted. Giardino testified
further that he had, throughout the prior negotiations and
at this meeting, referred to checkoff as contained in a
contract with Scovill, and that, when he stated that the next
issue to be discussed was the checkoff provision, Bender
said, since wages were settled, there would be no problem
as to that type of checkoff. Giardino testified that "We
shook hands. We had a collective bargaining agreement."
The Respondent's representatives accepted the invitation
to lunch at the motel with the two union representatives
who were at the meeting and the two who were excluded.
Both Giardino and Robinson testified that during the
luncheon Carmichael said he was glad agreement had been
reached because he did not want a strike, and Bender
expressed the same sentiments; that Carmichael also said
that, as agreement was reached, he did not have to be
present at the next meeting but would have Giardino
handle the final negotiations, and Bender said there was
also no need for him to be present; and that the next
meeting was scheduled for February 26 to reduce the three
issues to writing and sign the collective-bargaining agree-
ment.
Robinson, who was not at the two-on-two discussion,
testified that Carmichael told him agreement was reached
on the three issues, including checkoff based on the Scovill
contract, which the Union had proposed in negotiations at
various times since August 1975.
Bender testified that, at the February 19 meeting, he
spoke again of the Respondent's financial problems; that,
prior to any discussion of the issues, he insisted that this
had to be a two-on-two meeting, and the union representa-
tives other than Carmichael and Giardino left the room;
that he reminded the Union they were there to "explore,"
not to negotiate, and any position found to have merit had
to go to a negotiation session; and that he said he viewed
checkoff as a major problem that it was unlikely they could
resolve at that time. Bender agreed to certain changes in
the grievance procedure, and Bezek testified that, at this
time, "The grievance procedure was pretty well put to
rest." Bender testified that Giardino commented at this
point that "we were making progress, and hopefully, if we
continued, we could wrap this thing up." Bezek testified
that, when Giardino expressed satisfaction with the
progress being made and said "let's go on to the next thing;
we're not going to have any problems. Mr. Bender said,
you know, remember we are here to discuss; all of this
must be taken to the negotiating table. But, you know,
things may not be so easy in regard to checkoff."
Bender testified that, during the discussion of the next
issue, wages, he suggested an August I wage reopener,
assuming an agreement reached as of March 1; that
Giardino accepted this suggestion enthusiastically and
"said that if we could continue again and make this kind of
progress that we could get this thing wrapped up . . .";
that he said this would have to be taken up at a negotiation
session; and that he pointed out repeatedly they had "a
sticky wicket to worry about," but no one asked what that
meant. Bezek also testified that Bender made the "sticky
wicket" references.
Both Bender and Bezek testified that they discussed a
date for a negotiation session at which Giardino and
Bezek, but not Carmichael and Bender, would be present;
and that Bender wanted then to return to his office but was
persuaded to accept the Union's invitation that he and
Bezek lunch with the union representatives at the motel.
Bender denied that anyone said they had an agreement.
Bezek testified that he did not hear Carmichael say he was
glad they had agreement as they did not need a strike, and
did not hear Bender agree with this.
Bender denied that the Union made any proposal, and
that there was any discussion at any time during this
meeting, as to checkoff. He admitted, on cross-examina-
tion, that in January there were three major issues and
5 Bender kept notes of all his telephone conversations with Carmichael.
726
STACKPOLE COMPONENTS COMPANY
many minor ones, and that the February 19 meeting was to
try to reach understanding on the three major issues as well
as others. He maintained, however, that only two of the
three major items were discussed, and that the only
references to the third, checkoff, were his comments "that
it was a problem to the company" and, as he later recalled,
Carmichael's statement that the three major issues included
checkoff. Bender testified that Bezek kept him informed as
to the negotiations but never spoke of a Scovill checkoff,
and that he never heard of the Scovill checkoff before the
hearing herein.
Bezek testified that "There were two to three references
to checkoff, by Mr. Bender, indicating that this may
present a problem. But there were no discussions per se.
Checkoff was mentioned by Mr. Carmichael as being one
of the three areas left, to resolve." Bezek also denied that
Scovill was mentioned at this meeting. He recalled that it
was previously mentioned "Several times. Particularly
early in negotiations, I would say. August, September
1975," but he could not recall that it was mentioned at any
time in 1976.
Bender testified that, when he returned to his office, he
reported by telephone to Miles, who "recommended that
notes be made of the meeting; that it be documented"; and
that Bezek wrote up the notes, and he reviewed them and
had an opportunity to change them "in any material
respect." This was Bender's last meeting with the Union.
Bezek also testified that, when he and Bender returned to
the plant, they made a conference call to Miles and
"reported the events that transpired. Personally indicated
to Mr. Miles my complete disbelief that checkoff had not
been discussed, or raised for discussion. And Mr. Miles
instructed me to make sure that I sat down and wrote up
my recollection of the events of the meeting. Which I did."
The meeting was on Thursday. Bezek typed his notes on
Saturday morning.
2. February 26 meeting
At the opening of the February 26 meeting, Giardino
requested, and Bezek agreed, that a notice would be posted
in the plant about a membership meeting that evening to
ratify the agreement. Giardino and Robinson testified that
Giardino also said they were there to finalize and put the
agreement on the three major issues in writing; that Bezek
agreed; that Robinson wanted to discuss checkoff first but,
at Bezek's request, they took up grievance procedure,
wages, and checkoff in that order; that they agreed to the
grievance procedure with certain changes and to the wage
provisions with the August I reopening: and that Bezek
then rejected the Scovill checkoff, but offered to permit the
Union to have a booth to collect dues on the parking lot for
a couple of hours once a month. The Union, after a caucus,
said it had to agree on this checkoff method or risk a claim
being made by the Respondent that it was interested only
in dues, but it would reinstitute its earlier wage proposal
based on the rates in a contract at the main plant of
Stackpole Carbon Company in St. Marys, Pennsylvania.6
Bezek asked for this wage proposal in writing, and
6 Bender testified that the Respondent is "an entirel independent
operation. It is a wholly-owned subsidiary of the Stackpole Carbon
Company"
Giardino had Robinson type it up and furnished it to
Bezek. The membership meeting was postponed as there
was no agreement to ratify. Giardino and Robinson
admitted, on cross-examination, that no one on February
26 was writing the language of the provisions on which
agreement was reached.
Bezek testified that the union representatives opened this
meeting by saying "they were very hopeful that we could
wrap everything up"; that they asked his help in scheduling
an employee meeting the next day "for the purpose of
ratification"; and that he said he would schedule the
meeting so all three shifts could attend without loss of pay.
Bezek testified that the union representatives then stated
they were there "to wrap up three areas: grievances, wages
and checkoff'; that he interrupted to state that "we spent a
great, great deal of time at our meeting on 2-19 discussing
grievance and wages. But that we had not discussed
checkoff'; that Giardino said "he did not bring up
checkoff, because he felt there was no need to waste any
more time on something that the company had no interest
in. And it would not cost the company any money."
Bezek testified that they then discussed and agreed on
certain revisions as to grievance procedure, that "I
believed, then, that that pretty well took care of the
wording changes on grievance procedure. And this was
pretty acceptable to everybody involved. So we went on to
wages." Bezek testified that he restated the Respondent's
wage proposal with the August I reopener; that they
discussed and agreed on notice and strike provisions with
reference to the August wage reopener, "So that in essence,
that pretty well wrapped up the wage proviso"; that the
parties then worked out the contract termination language;
and again that "in essence, we had an agreed-upon wage
proposal."
Bezek testified that he was then asked about checkoff,
and restated the position that the Respondent could not
grant mandatory checkoff as this "was an internal union
matter . . . in a right-to-work state, checkoff seems to be
against that freedom of individual employees to the-the
threat of coercion that check off does present to an
employee for membership in a union . . . checkoff dues
represents another deduction from employees' take-home
pay-and in essence, we would wind up being basically as
having to provide that, somewhere along the line. And,
four, that this mandatory checkoff does not provide a
system of checks and balances for services rendered, on the
part of a union, to an individual employee."
Bezek testified further that the union representatives
were upset by his position on checkoff; that Giardino said
"we had thrown the union a curve, and there were other
statements made which I can't recall, all of them"; that,
when the union representatives returned from a caucus,
they asked him some questions, including what the
Respondent's best position was as to dues collection; and
that he answered that it was willing to provide space in the
plant to collect dues during nonworking time. Bezek also
testified that, after a luncheon recess, Giardino said the
Union would accept the Respondent's dues collection
proposal and all the other proposals on which they had
727
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed except that the Union was making a new wage
proposal which Giardino read to him. At Bezek's request,
the Union had this proposal typed and gave him a copy.
He told the Union he considered it unacceptable but would
present it to management.
3. March 17 meeting
The membership, at a meeting on February 28, rejected
the Respondent's checkoff proposal, voted a March 22
strike deadline, and approved bringing a mediator into the
negotiations. The mediator set up a meeting with the
parties on March 17 at the Union's request. Giardino and
Bezek informed the mediator of what had taken place from
the viewpoint of each of the parties. Giardino and
Robinson testified that the mediator suggested a different
checkoff provision, that the Union accepted it, but that the
mediator said Bezek would check with management and
report on it later. Giardino and Bezek both signed a notice,
prepared by the mediator to be posted in the plant, stating
that, at the mediator's request, the parties agreed to extend
the deadline for an agreement from March 22 to April 19,
and were to meet with the mediator on April 13. The
membership at a meeting on March 17 extended the strike
deadline to April 19.
4. April 13 meeting
There was a meeting with the mediator on April 13.
Giardino and Robinson testified that the mediator in-
formed the Union that the Respondent rejected his
checkoff proposal. Bezek testified that the mediator at this
meeting proposed a 90-day withdrawal and other checkoff
provisions; that he said he would discuss them with
management; and that the mediator later informed him
that the Union rejected the proposal for an employee vote
on checkoff. The mediator did not schedule another
meeting as he was leaving shortly on vacation.
5. April 19 meeting
Carmichael was present at the meeting on April 19
because of the strike deadline, and Miles accompanied
Bezek. Giardino testified that he brought Miles, with whom
he was negotiating for the first time, up to date on the
negotiations; that they discussed the issues, mainly check-
off, at some length; that, at his suggestion, he and
Carmichael met with Bezek and Miles, in the absence of
the other union representatives; that he then asked Miles
what the Union had to do to get a contract signed, and
Miles said Bender was very upset because Robinson had
filed charges with the Board; that he asked if withdrawing
the charges would mean signing a contract, and Miles said
it would, the charges were the stumbling block; and that he
stated he would have Robinson withdraw the charges, to
which Miles responded that Bender would then be in a
different frame of mind and the contract would be signed.
Robinson testified that Miles said, before the separate
meeting, that the Union "had filed charges that certainly
clouded the atmosphere" but did not prevent agreement.
Giardino testified, on cross-examination, that Miles was
the only one who mentioned the charges to him; that Bezek
never mentioned them although charges were filed on
March II and amended charges on March 22; that he told
Miles at the opening of the meeting that he understood
there was agreement by all parties on February 19 on
certain provisions but the Respondent on February 26
reneged as to checkoff; and that Miles said if the charges
were withdrawn he would sign the agreement of February
19. Giardino also testified that Bezek proposed the Union
get new checkoff cards signed and start collecting dues on
August I, and that he rejected this proposal on the ground
the parties had an agreement on checkoff and the Union
already had signed checkoff cards.
Bezek testified that on April 13 the mediator called and
told him the Union requested another meeting and
suggested May 7 as "part of postponing strike action on
May 19," and that he agrees as the Respondent "certainly"
did not want a strike. He also testified that Giardino called
later to say the membership would not delay action until
May 7 and asked for a negotiation meeting on April 19,
and that he said he would let Giardino know; that
Giardino called again on April 15, said the Union did not
want a strike, and asked if he would attend an April 19
meeting, and he again said he did not know; that Giardino
said the Union would be there; and that he did attend with
Miles, whom he asked to come and do the talking as he had
never faced a strike.
Bezek also testified that Miles said, as they walked in,
"we're ready to sign the contract. Let's go. Mr. Carmichael
and Mr. Miles stated that, fine, if that's the way it is let's
sign the contract. Mr. Giardino raised the objection that,
you know, some way, somehow, somewhere, somebody has
missed the point. That in essence he, Mr. Giardino, had
been at the 2-19 meeting. The company agreed to
checkoff; striking; for the whole thing. Mr. Miles replied to
those statements, that the company isn't interested in
strikes. He indicated that we're willing to negotiate any
provisions. He made reference to the fact that filing unfair
labor practice charges didn't help the bargaining process,
in his mind. And there really wasn't much more said at this
point." Bezek testified further that Giardino said the Union
would rather lose at the picket line as signing a contract
without checkoff would hurt the organizational efforts at
Westinghouse; that Miles said the plant would operate
during a strike and he hoped there would be no violence;
and that Giardino said there would be no threats, violence,
or damage to property. Bezek testified that, in a later
discussion, Carmichael said that there had to be a way to
work things out, and that the union representatives were
not interested in the dues but had to have a proposal the
membership would accept; that Giardino agreed to a
checkoff to begin after the August I reopener; but that he,
Bezek, proposed that new checkoff cards be obtained after
August 1, and there was no agreement on this.
Bezek testified that at this point he believed Carmichael
asked Miles how much of an objection the charges were,
and Miles "stated that, well, the unfair labor practices are
your business. I'm not here to tell you what to do, or how
to do it. They do provide some obstacles to good faith
bargaining. And said that, you know, what you do with
those charges-Mr. Giardino indicated that Willis Robin-
son may have been a little hasty in filing the charges, but he
indicated that he perhaps would take care of that. There
728
STACKPOLE COMPONENTS COMPANY
really wasn't much if anything else to discuss." He also
testified that he and Miles left expecting a strike, and so
reported to Bender by telephone.
Miles testified that he walked into the April 19 meeting,
with a strike deadline at midnight that night, and said he
was there to negotiate in good faith on any proposal the
Union wished to present: that Carmichael said the Union
found the Respondent's positions unacceptable but that
"checkoff didn't mean anything to the union," whereupon
"I said, well, great, I said, well, let's sign the contract"; that
Giardino stated that the Union had an understanding with
Bender and Bezek about checkoff; and that he replied that,
while he was not at that meeting, he was in close touch by
telephone with Bender and Bezek, who called him as soon
as they got out of the meeting and said they were
"flabbergasted . . . they told me that checkoff was not
even mentioned ... that the union had not brought up the
request for checkoff." He also asserted that the charges
claiming Bender and Bezek agreed to something they did
not "in effect called them a liar," and "when you call the
chief executive officer of this company and the industrial
relations manager of this company a liar, you've got a
problem." He testified that he explained that he was "not
saying that the charges are going to hold up . . . the
signing of the contract" but that "when you call Bezek and
Bender a liar ... that presents a problem for you" and was
a "dumb" thing to do. He testified further that during the
meeting Carmichael told Giardino that Miles said the
charges "are causing us a problem.... I says, wait a
minute, Mike, I says-I didn't say that they were causing
you a problem. I said, the way you run your railroad is up
to you. But, I said it was stupid. Then I said, as a matter of
fact, Mike, I think it was dumb, dumb, dumb. That's
precisely what I said." Miles admitted Giardino said he
would have the charges withdrawn.
Miles testified that he also told the Union it would be
"silly" to strike over checkoff; that he said Giardino and
Carmichael could "sell anything" they wanted to the
employees, and should sell them on the package that the
Respondent put on the table, with everything "agreed to,
except for in the checkoff," and as to that Bezek had
offered to let the Union "come in the plant, one day a
month, and collect union dues"; but that Giardino said the
Union "would rather lose this on the picket line, because if
we sign the contract without checkoff, it would ruin our
organizational efforts at Westinghouse." Miles testified
that, in discussing various checkoff proposals, he argued
that, as the negotiations had taken so long, the employees
should have an opportunity to sign new cards and to
choose whether they wanted, after the August I wage
reopener, to have their dues checked off; that the Union
refused to get new cards; and that "that's where it bogged
down." Miles also testified that he left this meeting
expecting a strike.
6. Events later on April 19
Giardino and Robinson testified that, when they were on
the way to the membership meeting after the April 19
negotiation session, Giardino said that, as the parties were
"so close" to an agreement, Robinson should withdraw the
charges and the contract would be signed, they should
postpone strike action indefinitely until the mediator
returned, and they should notify Bezek and get his thinking
on this, and the other union representative agreed.
Giardino also testified that he tried to reach Bezek by
telephone; that Bezek received his message and called him
back; that he told Bezek the charges were to be withdrawn
as the parties were "so close" to agreement; that Bezek also
said they were close to agreement but Bender was upset by
the charges; that he told Bezek the strike would be
postponed indefinitely and they would meet further with
the mediator; and that Bezek called later to report he had
been unable to reach Miles but saw no problem in the
program outlined by Giardino. The membership on April
19 agreed to an indefinite strike postponement. Robinson
withdrew the charges in writing on April 20.
Bezek testified that Giardino notified him by telephone,
after the April 19 meeting, that the parties had made
progress and the Union did not want to strike, and asked
for agreement on more meetings with the mediator and
postponement of a strike; that he discussed this with
Bender and Miles; that Miles called Giardino and agreed
to more meetings; and that he heard Miles say also, "I'm
not telling you to dismiss the charges, that's your business.
And, whatever you do with those charges is up to you. I
can't tell you what to do."
Giardino called Bezek again to report that the member-
ship had been persuaded by Carmichael not to strike
pending further meetings with the mediator. They agreed
to postpone such meetings until the mediator who had
been involved in the negotiations returned from vacation.
Bezek testified that Giardino then stated that he had
instructed Robinson to withdraw the charges and that "I
questioned him on all of them. And he had said, yes, all of
them."
Miles testified that he was present with Bezek when
Giardino telephoned Bezek and said progress was made as
to checkoff, the strike should be delayed, and they should
meet further; that Bezek replied that he would discuss it
with Miles; that he, Miles, later called Giardino; that in
their conversation Giardino said, "I'm going to get rid of
those unfair labor practice charges, for you. I said ... I'm
not asking you to withdraw the unfair labor practice
charges. I said, the way you run your railroad is entirely up
to you"; that Giardino said, "Well, I know all that. I know
all that. And just-just dismissed it"; and that they agreed
on another meeting.
7. May 18 meeting
The parties met with the mediator, after he returned from
vacation, on May 18. Miles and Bezek were present for the
Respondent. Giardino and Robinson testified that Giardi-
no said Robinson withdrew the charges so they should sign
the contract; that Miles was in a rage at the Union for
filing a lawsuit; that Giardino said he knew nothing of a
lawsuit and asked what it had to do with the negotiations;
that Miles said it could cost the Respondent millions of
dollars, and the lawsuit nullified the agreement; that
Giardino telephoned union counsel, who told him the
lawsuit was filed against Stackpole Carbon Company
seeking sick benefits for pregnancy, and it could not be
withdrawn as to the Respondent, as it was a class action
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suit, when Giardino requested this in order to get a
contract signed; 7 that he told Miles and Bezek he had been
advised that the lawsuit had nothing to do with the
contract, but Miles repeated that the lawsuit nullified the
agreement and he would not sign the contract; and that the
union representatives asked Miles to point out in what
respect the lawsuit nullified the agreement, but Miles
merely repeated that the lawsuit nullified the agreement.
Giardino also testified, on cross-examination, that he
offered to sign a contract with no checkoff provision, but
Miles repeated that the contract was nullified; and that he
and the mediator indicated they were willing to meet
further, but Miles repeated that the contract was nullified.
Bezek testified that Giardino stated that as of April 19
they were close to agreement on checkoff, and that the only
thing left was the August I provision and then signing the
contract; that Miles said a lawsuit had been filed which the
"IUE was-I don't recall the word, foolish or dumb, to
pursue"; that he, Bezek, also raised objections to the
lawsuit as the parties spent hours negotiating on the issue
of pregnancy benefits and the "current coverage did not
include this provision"; that Giardino stated he knew
nothing of the lawsuit, telephoned to ask counsel about it,
and returned to say what he negotiated was binding and
the Union was ready to sign the contract; that Miles said
that in his opinion the lawsuit nullified certain provisions
of the contract which he was prepared to sit down and
negotiate; that Robinson argued that the lawsuit did not
nullify any part of the agreement, and Giardino said,
"We're ready to sign the contract, without a dues checkoff,
we'll sign it. We have no interest in checkoff"; that Miles
replied that they first had to renegotiate the provisions
affected by the lawsuit; and that the session ended with
Giardino saying the Respondent was not willing to sign a
contract and would, if it were not the lawsuit, find some
other reason for not signing. Bezek admitted, on cross-
examination, that the only issue pointed to on May 18 as
precluding execution of a contract was the lawsuit; that
checkoff was also an unresolved contract issue but, after
the Union offered to sign without checkoff, the only issue
was renegotiation of the leave provisions nullified by the
lawsuit; and that the Respondent therefore would not, on
May 18, sign the contract as previously negotiated, because
of the lawsuit.
Miles testified that the next meeting he attended with the
mediator was on Tuesday, May 18, and that he learned on
the previous Friday, from counsel for Stackpole Carbon
Company at St. Marys, of a lawsuit alleging sex discrimina-
tion and seeking certain sickness benefits. Bezek testified
that he learned of the lawsuit about May 14. Miles
described what occurred at the May 18 meeting, in part, as
follows:
And I responded to that, I said, well, I recall, Mike,
the problem that we had was that the company felt that
the employees, because of the length of the negotia-
tions, should have the opportunity to decide for
themselves, now, after the August I wage reopener, as
to whether or not they want to have their dues checked
off.
And I said, but-I said, we've got another problem. I
said,-and I used some profanity at this point in time,
as I recall-and I said, it's absolutely incredible to me,
the way this union operates. I said, here we sat, through
several sessions, trying to work out the leave of absence
provisions, maternity leave provisions, the sickness and
accident provisions-- said, and we had numerous
conversations concerning the question of disability pay
for pregnancy leaves of absence; and I said, and the
company even went to the point of agreeing that, if the
Supreme Court, in the G.E. case, rules against the
company, that we would make the holding of that
decision retroactive to the signing of the contract. And
I said, we agreed to this months ago. I said, and signed
it off. And I said, and now, I find out that this union is
suing this company and in effect, through their request
of the remedy, nullifying the agreement that we had
reached on leave of absence and sickness and accident,
disability benefits. That we had agreed to in this
contract. Had signed off. And I said, I just absolutely
cannot imagine that. I said, I do not understand how
y'all operate.
And at which time, Mr. Giardino says, I don't know
anything about any lawsuit. And I said, well, I-I said,
I can tell you right now, that your legal department
knows something about that lawsuit, because they filed
a lawsuit, and they included the Raleigh plant in that
lawsuit.
is * *
And so, as I recall, Giardino says, I don't know
anything about a lawsuit. And Robinson said, Willis
Robinson said, I didn't sign that off. I didn't sign off
those provisions. And I didn't remember, to be honest
with you. I looked at John Bezek and said, didn't he
sign those provisions off?. And John Bezek said, well, he
didn't, but Rick Fiore did. Rick Fiore was one of the
negotiators who had come in, to relieve Willis Robin-
son, while he was down working on a case down at
Wilmington.
* is
A. That meeting opened up with Mr. Giardino
saying, that at our last meeting, I thought we were real
close to getting the whole thing worked out, he says.
And as I understand it, the only problem we got is. ..
whether they've got to sign new cards.
I The lawsuit was filed by the International Ulnion against Stackpole
Carbon Company in the United States District Court for the Western
District of Pennsylvania.
And I said, we-the company and the union had
agreed that the present company benefits with regard to
disability pay and sickness and accident would con-
tinue, and by "continue," means that it's excluding
maternity leave disability.
730
STACKPOLE COMPONENTS COMPANY
* *
So at that point in time, Giardino was very upset
about it. Said, I don't know anything about this lawsuit.
This is ridiculous.
* nn
. . . And when I got there, I says, listen, Mike, I
going to make it very clear to you. I said, we have got to
negotiate these provisions out. We've got to work them
out. And I said, I'm willing to do it right now. So what
are you going to do? I said, we can either do it today-
or, if you'd rather, if you'd rather contact your legal
department, find out just exactly what your position is,
and get back a week from now, that'll suit me fine. I
said, we have got to get you and the local and the
international keyed in, and agreed, and make sure that
y'all understand what you're agreeing to down here in
Raleigh, North Carolina. And I says, I'm willing to
negotiate it out right now.
And so, at that point in time, Giardino says, he said
something to the effect-what I say, goes. I'm telling
you, we got a contract, and says, if I tell you we've got a
contract, then we've got a contract. And I said, well,
that's all fine and good, Mike. Said, but we sat in here
through several negotiating sessions, working out this
sickness and accident question and this leave of
absence provision; and I said, we've pointed out to you,
said we were not interested in signing a contract and
being turned around, and have your union sue us on
that contract that you agreed to. I said, we're not
interested in doing that, I said, we pointed that out to
you months ago. I said, that's precisely what we've
wound up with. And I said, we've just got to work this
out. And I said, I'm willing to do it right now, or I'm
willing to do it later. If this suits you.
And so, then he became very upset, and he says,
accused us of stalling. And says, you're just stalling; he
says, you don't want to sign a contract. And he says, I'll
show you what I think about checkoff. He says, I'll sign
the contract right now without checkoff.
I said, well, that's great. I said, that's terrific. I said,
but we've got to work out these other problems. That
involve this lawsuit. And I pointed out to him, I said,
I'm not asking you to withdraw your lawsuit. But I'm
telling you, we've got to work out this thing and get an
agreement on it.
He says, you're not interested in a contract. Says, I'll
see you in court.
I said, wait a minute, now, Mike. I said, now let me
tell you. I said, we want a contract. We want to sign a
contract. I said, but it's senseless to sign a contract
when we're being sued over this disability thing, and
this leave of absence thing. And I said, I'm willing to sit
down here right now, today, and work this out.
On cross-examination by the General Counsel, Miles
testified further that:
Q. In the meeting of May 18th, the only issue that
was discussed there concerning contract negotiations
was the lawsuit and its effect on the sickness and
accident provisions that had been signed off on, is that
correct?
A. Well, that, and if you recall, that I said that Mr.
Giardino, he said, that y'all think we're so concerned
about checkoff. He said, we'll just sign the contract
without checkoff. At which time I said, well, that's fine,
great. But I said, we've got this other problem, too.
Q. But checkoff did not pose an obstacle to signing
a contract?
A. It didn't, after he said, fine, we'll sign without
checkoff.
The Respondent at times read to employee meetings or
posted in the plant statements as to the negotiations. The
notice as to the May 18 meeting states in part:
This lawsuite [sic] in effect completely nullifies the
agreement we had reached with the union here in
Raleigh on September 24, 1975. .... We pointed out to
the union this morning our shock and disbelief that
they would engage in such behavior.... the union
then said that they would sign the contract as
previously negotiated and without checkoff. We have
been, and continue to be, willing to sign the negotiated
contract. However, the contract the union is willing to
sign contains the maternity leave proposal we outlined
above, which because of the lawsuit really means
nothing.
Concluding Findings
I find, on the basis of the credited testimony and the
record as a whole, that the February 19 meeting was a
negotiation session, that the parties at that session reached
agreement on the provisions in substance of the three
outstanding contract issues, and that they agreed also that
these provisions would be reduced to writing and signed at
the next session. I find unbelievable, in all the relevant
circumstances, the Respondent's contentions that this was
an off-the-record meeting and that there was no discussion
as to checkoff. The record, including admissions in the
testimony of Bender and Bezek, shows that the union
representatives repeatedly expressed gratification at the
progress made at the February 19 meeting, that Carmicha-
el, who had come from Pittsburgh to try to conclude an
agreement, announced there was no need for him to attend
the next meeting, that checkoff was admittedly one of the
three major issues to be resolved, and that checkoff was
mentioned several times at this meeting by Bender as well
as by Carmichael. I therefore credit Giardino's testimony
that verbal agreement was reached on all three major issues
including checkoff.
I find further that the February 26 meeting was
scheduled to finalize these provisions as agreed to in
substance on February 19, and to sign the contract
concluded thereby, and that both parties agreed according-
ly, as Bezek testified, to post notice of an employee meeting
to be held that evening "for the purpose of ratification." I
find that Bezek reneged, however, as to the February 19
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement on checkoff. Giardino was, as Bezek admitted,
visibly upset at Bezek's checkoff proposal, said the Union
had been maneuvered into a position at this point in the
negotiations where it had to accept Bezek's proposal or be
accused of caring only about dues, but countered with a
renewal of a previous wage demand.
At the April 19 meeting, Miles said, as he and Bezek
testified, he was willing to sign "the contract." I find that
this expressed willingness to sign was thwarted, not by
Giardino making demands as to checkoff, but by Miles
objecting to the Union's "dumb, dumb, dumb" action in
filing unfair labor practice charges against the Respondent.
That this was the issue at the time is shown by the
testimony of both parties, including the testimony of Miles
and Bezek that Giardino promised to have the charges that
had been filed by Robinson promptly withdrawn. As Bezek
admitted, when Giardino called to report the charges had
been withdrawn, he asked Giardino if that meant all the
charges.
On May 18, after the charges were withdrawn and the
union representatives were prepared to sign the contract,
Miles asserted that the lawsuit filed by the International
Union for maternity leave benefits could cost the Respon-
dent millions of dollars and nullified the agreement, and he
refused to sign the contract until certain provisions were
renegotiated. When the union representatives argued that
the lawsuit did not nullify any part of the agreement and
asked how or in what respect any provision of the
agreement was nullified by the lawsuit, Miles merely
repeated that the lawsuit nullified the agreement. And
when Giardino stated that the Union would sign a contract
with no checkoff provision, Miles repeated his statement
that the lawsuit nullified the agreement and his offer to
renegotiate certain contract provisions.
The evidence in its entirety shows, and I find, that the
Union, after an election held on October 11, 1973, a
certification issued on November 14, 1974, a settlement
agreement to bargain collectively entered into on May 22,
1975, contract negotiations beginning on August 4, 1975,
and numerous votes by the membership rejecting proposals
of the Respondent and postponing scheduled strike action,
was willing and anxious, by May 18, 1976, to make
concessions, including elimination of the checkoff provi-
sion, in order to achieve a first contract with the
Respondent, whereas the Respondent was meeting and
negotiating, but was evidently raising obstacles, not in
order to resolve contract issues, but to delay execution of
any contract with the Union.8 The Respondent argues in
its brief that Miles, an attorney with considerable experi-
ence in negotiating collective-bargaining contracts, would
not have refused to bargain until the charges were
withdrawn, or until the lawsuit was withdrawn, knowing
that would be a violation of the Act. I find, however, that,
even if Miles avoided so stating explicitly, this was clearly
implicit in what he did say, and this, as the Respondent's
representatives were aware, was the message conveyed to
the Union.9
8 N.L.R.B. v. Herman Sausage Company, Inc.. 275 F.2d 229 (C.A. 5,
1960); N. L.R.B. v. Pacific Southwest Airlines, 550 F.2d 1148 (C.A. 9, 1977);
Transport Inc. of South Dakota. 225 NLRB 854(1976).
9 O'Land. Inc., d/b/a Ramada Inn South. 206 NLRB 210 (1973).
The Respondent concedes, as stated in its brief, that "It
is bad faith to condition bargaining or execution of a
collective bargaining agreement upon the withdrawal of a
lawsuit, a grievance, or an unfair labor practice charge,"
but argues that no complete agreement had ever been
concluded. I find, however, on the record as a whole, that
all the contract terms were agreed to in substance, in
writing or verbally, on February 19, and, further, that the
Respondent on February 26, when the parties met to write
up and sign the terms of the February 19 agreement,
reneged on the agreement as to checkoff and refused to
sign the contract on which agreement had been reached;
on April 19 refused to sign the contract on which
agreement had been reached on the ground that unfair
labor practice charges had been filed; and on May 18
bargained to impasse over the demand for withdrawal of a
lawsuit filed by the International Union, and refused to
sign the contract on which agreement had been reached
until such withdrawal.
In conclusion, therefore, I find that the Respondent, on
and after February 26, refused to execute an agreed-upon
collective-bargaining contract; on April 19 conditioned
execution of an agreed-upon collective-bargaining contract
on the Union's withdrawal of unfair labor practice charges
it filed against the Respondent; on May 18 bargained to
impasse over the Union's refusal to withdraw a lawsuit
filed against the Respondent under Title VII of the Civil
Rights Act of 1964, a nonmandatory subject of bargaining;
and on May 18 conditioned execution of an agreed-upon
collective-bargaining contract on the Union's withdrawal
of that lawsuit, and that the Respondent thereby, on and
after February 26, has refused to bargain collectively in
good faith with the Union as the exclusive collective-
bargaining representative of the Respondent's employees
in an appropriate unit, in violation of Section 8(a)(5) and
(1) of the Act.io The Respondent's motions to dismiss,
made at the hearing and in its brief, are accordingly hereby
denied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(5)
and (I) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
like or related manner infringing upon its employees'
"I See N.L. R. B v. Greensboro Printing Pressmen andAssistants' Union No.
319, 549 F.2d 308 (C.A. 4. 1977); N.LR.B. v. Midwesr Hangar Co. 550 F.2d
1101 (C.A. 8, 1977); Ramada Inn South, supra; John Zink Company, supra;
SchuYlkill Merals Corporation, supra.
732
STACKPOLE COMPONENTS COMPANY
Section 7 rights, and to take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent unlawfully refused on
and after February 26, 1976, to execute an agreed-upon
contract which was to become effective on March 1, 1976,
for a year, and thereby refused to bargain in good faith
with the certified exclusive collective-bargaining represen-
tative of its employees in the appropriate unit. I shall
therefore recommend that the Respondent be ordered,
upon request by the Union, to execute that contract for the
I-year period it was to be in effect, and for a I-year renewal
effective March 1, 1977, and, upon request by the Union
for such execution and for such renewal, to give retroactive
effect to the terms of that contract," or, if the Union does
not request such execution or renewal, that the Respondent
be ordered to bargain collectively in good faith, upon
request, with the Union, as the certified exclusive collec-
tive-bargaining representative of its employees in an
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, Stackpole Components Company,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, Local 187, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Union is, and has been at all times since
November 14, 1974, the certified exclusive collective-
bargaining representative of the Respondent's employees
in an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By refusing on and after February 26, 1976, to
execute an agreed-upon collective-bargaining contract; by
conditioning execution on April 19, 1976, of an agreed-
upon collective-bargaining contract on the Union's with-
drawal of unfair labor practice charges filed against the
Respondent; by on May 18, 1976, bargaining to impasse
over the Union's refusal to withdraw a lawsuit filed against
the Respondent under Title VII of the Civil Rights Act of
1964, and conditioning execution of an agreed-upon
collective-bargaining contract on the Union's withdrawal
of that lawsuit, the Respondent, since on and after
February 26, 1976, has refused to bargain collectively in
good faith with the Union, and has interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act.
1 Trade Mart, Inc. 204 NLRB 1 (1973).
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 1'2
The Respondent, Stackpole Components Company,
Raleigh, North Carolina, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain by refusing to execute a contract
negotiated and agreed upon with the Union, conditioning
execution of an agreed-upon collective-bargaining contract
on the Union's withdrawal of unfair labor practice charges
filed against the Respondent or on the Union's withdrawal
of a lawsuit filed against the Respondent under Title VII of
the Civil Rights Act of 1964, or bargaining to impasse over
withdrawal of the said lawsuit, a nonmandatory subject of
bargaining.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request of the Union, execute and give
retroactive effect to the collective-bargaining contract on
which agreement was reached on February 19, 1976, to be
effective March I, 1976, for a year, and to a I-year renewal,
if requested by the Union, effective March 1, 1977, and, if
the Union does not request such execution or renewal,
bargain collectively in good faith, upon request, with the
Union, as the certified exclusive collective-bargaining
representative of its employees in a unit found appropriate,
with respect to rates of pay, wages, hours, and other terms
and conditions of employment, and embody in a signed
agreement any understanding reached. The bargaining unit
is:
All production and maintenance employees employed
at the Respondent's Raleigh, North Carolina, plant,
excluding all office clerical employees, technical em-
ployees, professional employees, guards and supervi-
sors as defined in the Act.
(b) Post at its plant in Raleigh, North Carolina, copies of
the attached notice marked "Appendix." 3 Copies of the
notice, on forms provided by the Regional Director for
Region II, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained for 60
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted hb
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
733
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region II1, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
734