Weirton Steel, Div. of Nat. Steel Corp. v. N.L.R.B.

• Decision Date: 19 October 1982
• Docket Number: No. 82-1026,82-1026
• Citation: 689 F.2d 504
• Parties: 111 L.R.R.M. (BNA) 2297, 95 Lab.Cas. P 13,817, 3 Employee Benefits Ca 2097 WEIRTON STEEL, DIVISION OF NATIONAL STEEL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 504

689 F.2d 504

111 L.R.R.M. (BNA) 2297, 95 Lab.Cas. P 13,817,

3 Employee Benefits Ca 2097

WEIRTON STEEL, DIVISION OF NATIONAL STEEL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 82-1026.

United States Court of Appeals, Fourth Circuit.

Argued July 20, 1982.

Decided Sept. 20, 1982.

Rehearing and Rehearing En Banc Denied Oct. 19, 1982.

Carl H. Hellerstedt, Jr., Pittsburgh, Pa. (Joseph Mack, III, Thorp, Reed & Armstrong, Pittsburgh, Pa., on brief), for petitioner.

Peter Winkler, Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Washington, D.C., on brief), for respondent.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

K. K. HALL, Circuit Judge:

Weirton Steel Division of National Steel Corporation (Weirton) seeks review of the order of the National Labor Relations Board (the Board) finding it in violation of §§ 8(a)(1), (3) and (5) of the National Labor Relations Act (the Act). Finding the Board's decision unsupported by substantial evidence, we deny enforcement of the order.

The controlling issue presented to the Board was whether Weirton bargained in good faith in regard to a stock investment plan (SIP), during collective bargaining negotiations with its salaried employees and the Independent Steelworkers Union. The administrative law judge (ALJ) found that Weirton had refused to bargain in good faith with the Union over the SIP, thereby violating § 8(a)(5) of the Act. Furthermore, the ALJ held that Weirton violated §§ 8(a) (1) and (3) of the Act by denying salaried employees the benefit of the SIP for the sole purpose of restraining and coercing them, and other employees of National Steel Corporation, from Union activity. The Board adopted the ALJ's findings and ordered Weirton to bargain in good faith over the SIP, to make its employees whole for the benefits denied them as a result of the discontinuance of the SIP, and to post an appropriate notice. On appeal, we must determine whether substantial evidence in the record supports the Board's decision.

I.

Weirton Steel is a subdivision of National Steel Corporation engaged in the manufacture and non-retail sale of steel and steel products in Weirton, West Virginia and Steubenville, Ohio. Weirton has two main categories of employees: (1) hourly workers who are involved in the direct production process and are represented by the Independent Steelworkers Union and (2) salaried office and technical workers who until 1978 were not represented by a union. Before unionization, the salaried employees had the option of participating in a stock investment plan, whereby as much as 71/2 percent of their gross pay could be used to purchase National Steel Corporation stock, with the company contributing a matching amount. Individual employees could alter the percentage they set aside each year or enter or withdraw from the plan as they chose. The plan was administered by a trustee of the company who could discontinue the matching aspect, if the economic condition of the company required such.

In 1978 the salaried employees of the Weirton division selected the International Steelworkers Union as their representative. Between January of 1979 and August of that year, collective bargaining negotiations were held between Weirton and the Union. Weirton's chief spokesman was John McCreary, Vice-President of Industrial Relations, while the Union was represented by a committee composed of nine employees. The Union's chief spokesman was David Robertson, a lawyer. In all, thirty-four negotiating sessions took place. All but one of the meetings were transcribed.

The Union initially presented approximately one hundred demands to Weirton. Only four of these demands specifically addressed the SIP.

The record reveals that it was not until the seventh meeting that the SIP was even discussed, at which time McCreary related that Weirton's position was not to offer such a plan to organized employees. During meeting nine, he elaborated upon Weirton's position, noting that the SIP was a fringe benefit not provided to organized salaried employees within the steel industry, as it was "prohibitively expensive." At meetings ten and eleven the Union withdrew all of its demands for improvement in the SIP and proposed continuation of the plan as it then existed, which was rejected by McCreary. During meetings twelve and thirteen the Union asked if Weirton's position in regard to the SIP had changed, and after being told that it had not, initiated no further discussion.

The SIP was not mentioned again by either party until meeting eighteen, when McCreary reported to the Union on his discussion of the SIP with National's management. He reiterated Weirton's position that the SIP could not be continued. He later testified that the Union was told at this time "that the company was losing a lot of money ... through the month of April, 1979, something in the excess of seventeen million dollars."

On May 31, 1979, at meeting nineteen, McCreary stated that "I didn't say I wasn't willing to talk about it," when asked about the stock program. He continued:

Somebody down at the end of the table asked me specifically about the stock plan, and I said I was willing to entertain union proposals. I am willing to entertain any union proposals, obviously, for alternatives to the stock plan. Whether or not I can do anything about them at this point, I can't say.

Over the next six sessions the parties negotiated over various other matters, not involving the SIP. On July 23, 1979, at meeting twenty-six, bargaining over "out-of-line differentials" (O.L.D.) became intense. ¹ The record reveals that McCreary presented the Union with three alternative solutions to the O.L.D., one of which was to accept the Union's proposal in exchange for the Union dropping its demand for the SIP. In response to a question concerning whether the company's position toward the SIP was negotiable, McCreary responded, "Certainly. Everything is negotiable." A compromise on the O.L.D., not involving the SIP, was reached two meetings later.

The next and most controversial negotiation session was unrecorded and occurred on August 8, 1979. It involved seven Union committeemen minus their attorney on the one side, and McCreary and two additional company negotiators on the other. The meeting was called by the Union members, who according to their testimony, were "fearful of union decertification and frustrated over the bargaining pace." Testimony by the committee members revealed that much confusion, conflict and memory lapse existed concerning the date of this meeting, the persons in attendance, the topics discussed, and the responses given by McCreary during the session. Several Union members testified that they clearly recalled McCreary stating that if the employees forgot about the Union they could retain the SIP. Others could remember no such statement, while three employees completely denied that such a promise was ever made. McCreary testified that he said nothing during that meeting about the SIP that had not been said on the record before. His statement was substantiated by the two other Weirton...