Local 1330, United Steel Workers of America, and Frank Georges v. United States Steel Corporation

This appeal represents a cry for help from steelworkers and townspeople in the City of Youngstown, Ohio who are distressed by the prospective impact upon their lives and their city of the closing of two large steel mills. These two mills were built and have been operated by the United States Steel Corporation since the turn of the century. The Ohio Works began producing in 1901; the McDonald Works in 1918. The District Court which heard this cause of action found that as of the notice of closing, the two plants employed 3,500 employees.

The leading plaintiffs 1 are two labor organizations, Locals 1330 and 1307 of the United Steel Workers of America. This union has had a collective bargaining contract with the United States Steel Corporation for many years. These local unions represent production and maintenance employees at the Ohio and McDonald Works, respectively.

In the background of this litigation is the obsolescence of the two plants concerned, occasioned both by the age of the facilities and machinery involved and by the changes in technology and marketing in steelmaking in the years intervening since the early nineteen hundreds.

For all of the years United States Steel has been operating in Youngstown, it has been a dominant factor in the lives of its thousands of employees and their families, and in the life of the city itself. The contemplated abrupt departure of United States Steel from Youngstown will, of course, have direct impact on 3,500 workers and their families. It will doubtless mean a devastating blow to them, to the business community and to the City of Youngstown itself. While we cannot read the future of Youngstown from this record, what the record does indicate clearly is that we deal with an economic tragedy of major proportion to Youngstown and Ohio’s Mahoning Valley. As the District Judge who heard this case put the matter:

Everything that has happened in the Ma-honing Valley has been happening for many years because of steel. Schools have been built, roads have been built. Expansion that has taken place is because of steel. And to accommodate that industry, lives and destinies of the inhabitants of that community were based and planned on the basis of that institution: Steel.

In the face of this tragedy, the steel worker local unions, the Congressman from this district, and the Attorney General of Ohio have sued United States Steel Corporation, asking the federal courts to order the United States Steel Corporation to keep the two plants at issue in operation. Alternatively, if they could not legally prevail on that issue, they have sought intervention of the courts by injunction to require the United States Steel Corporation to sell the two plants to the plaintiffs under an as yet *1266 tentative plan of purchase and operation by a community corporation and to restrain the piecemeal sale or dismantling of the plants until such a proposal could be brought to fruition.

Defendant United States Steel Corporation answered plaintiffs’ complaints, claiming that the plants were unprofitable and could not be made otherwise due to obsolescence and change in technology, markets, and transportation. The company also asserts an absolute right to make a business decision to discharge its former employees and abandon Youngstown. It states that there is no law in either the State of Ohio or the United States of America which provides either legal or equitable remedy for plaintiffs.

The District Judge, after originally restraining the corporation from ceasing operations as it had announced it would, and after advancing the case for prompt hearing, entered a formal opinion holding that the plants had become unprofitable and denying all relief. We believe the dispositive paragraphs of a lengthy opinion entered by the District Judge are the following:

This Court has spent many hours searching for a way to cut to the heart of the economic reality—that obsolescence and market forces demand the close of the Mahoning Valley plants, and yet the lives of 3500 workers and their families and the supporting Youngstown community cannot be dismissed as inconsequential. United States Steel should not be permitted to leave the Youngstown area devastated after drawing from the lifeblood of the community for so many years.

Unfortunately, the mechanism to reach this ideal settlement, to recognize this new property right, is not now in existence in the code of laws of our nation.

* * ⅜ # ⅜ *

This Court is mindful of the efforts taken by the workers to increase productivity, and has applauded these efforts in the preceding paragraphs. In view of the fact, however, that this Court has found that no contract or enforceable promise was entered into by the company and that, additionally, there is clear evidence to support the company’s decision that the plants were not profitable, the various acts of forebearance taken by the plaintiffs do not give them the basis for relief against defendant.

Plaintiffs-appellants claim that certain of the' District Judge’s findings of fact are clearly erroneous, that he has misconstrued federal and state contract law, and that he failed to grant a hearing on their antitrust claims.

With this introduction, we turn to the legal issues presented by this appeal.

I. THE CAUSE OF ACTION

Plaintiffs assert jurisdiction in the federal courts, pursuant to Section 301 of the National Labor Relations Act, as amended, 29 U.S.C. § 185 (1976). 2 They also assert *1267 diversity jurisdiction, pursuant to 28 U.S.C. § 1332 (1976). By so doing they claim that this action is brought under the fundamental labor law of the country and under the laws of Ohio which federal courts follow when a cause of action between citizens of one state is brought against citizens of another state.

The primary issue in this case is a claim on the part of the steel worker plaintiffs that United States Steel made proposals to the plaintiffs and/or the membership of the plaintiffs to the general effect that if the workers at the two steel plants concerned put forth their best efforts in terms of productivity and thereby rendered the two plants “profitable,” the plants would then not be closed. It is clear that this claimed contract does not rest upon any formal written document, either authorized or signed by the parties to this lawsuit.

Plaintiffs themselves recognize that they cannot rely upon any formal contract law. Nonetheless, in this section we shall discuss relationships between the parties which plaintiffs have not raised in order to place their issues in proper context.

As noted above, the steelworkers have a formal collective bargaining contract with the U.S. Steel Corporation. In this record there is no indication that there ever was any formal negotiation or amendment of that contract in relation to the issues of this case. .Further, there is no indication in this record that the contract alleged in this complaint could be the subject for arbitration under Section 8(A)(2) of the Steelworkers Agreement of August 1, 1977:

The Board shall have jurisdiction and authority only to interpret, apply, or determine compliance with the provisions of this Agreement and such local working conditions as may hereafter be in effect in the plants of the Company, insofar as shall be necessary to the determination of grievances appealed to the Board. The Board shall not have jurisdiction or authority to add to, detract from, or alter in any way the provisions of this Agreement.

Nor is there any indication in this appellate record that the claimed contract ever was made a subject for arbitration under Section 7(A)(8), which provides:

If the officers of the Company and of the Union shall so agree in writing, any request or complaint not a proper matter of grievance and thus not appealable to the Board, or other matter not covered by the procedures of Section 6—Adjustment of Complaints and Grievances, may be referred to the Board for determination upon such terms as the parties may mutually agree.

The collective bargaining agreement applicable in this period also contains three sections which management asserts bear directly upon its claim of unilateral right to close any plant. These provisions are two rather general paragraphs on page 15 of the contract entitled “Management” which recite as follows:

SECTION 3—MANAGEMENT

The Company retains the exclusive rights to manage the business and plants and to direct the working forces. The Company, in the exercise of its rights, shall observe the provisions of this Agreement.

The rights to manage the business and plants and to direct the working forces include the right to hire, suspend or discharge for proper cause, or transfer and the right to relieve employees from duty because of lack of work or for other legitimate reasons.

*1268 More directly applicable to the present case is Section 16 entitled “Severance Allowance.” This section provides in detail for severance allowances in terms of weeks of pay of employees with more than three years seniority, and concludes with the sentence which says, “Acceptance of severance allowance shall terminate employment and continuous service for all purposes under this Agreement.”

SECTION 16—SEVERANCE ALLOWANCE

A. Conditions of Allowance

When, in the sole judgment of the Company, it decides to close permanently a plant or discontinue permanently a department of a plant or substantial portion thereof and terminate the employment of individuals, an employee whose employment is terminated either directly or indirectly as a result thereof because he was not entitled to other employment with the Company under the provisions of Section 13—Seniority of this Agreement and Paragraph B-2 below shall be entitled to a severance allowance in accordance with and subject to the following provisions.

B. Eligibility

Such an employee to be eligible for a severance allowance shall have accumulated three or more years of continuous Company service as computed in accordance with Section 13—Seniority of this Agreement.

1. In lieu of severance allowance, the Company may offer an eligible employee a job, in at least the same job class for which he is qualified, in the same general locality. The employee shall have the option of either accepting such new employment or requesting his severance allowance. If an employee accepts such other employment, his continuous service record shall be deemed to have commenced as of the date of the transfer, except for the purposes of severance allowance under this Section and for purposes of Section 12—Vacations his previous continuous service record shall be maintained and not be deemed to have been broken by the transfer.

2. As an exception to Paragraph 1 above, an employee otherwise eligible for severance allowance who is entitled under Section 13—Seniority to a job in at least the same job class in another part of the same plant shall not be entitled to severance allowance whether he accepts or rejects the transfer. If such transfer results directly in the permanent displacement of some other employee, the latter shall be eligible for severance allowance provided he otherwise qualifies under the terms of this Section.

C. Scale of Allowance

An eligible individual shall receive severance allowance based upon the following weeks for the corresponding continuous Company service:

Weeks of Severance Continuous Company Service Allowance

3 years but less than 5 years

5 years but less than 7 years CO

7 years but less than 10 years I>

10 years or more 00

D. Calculation of Allowance

A week’s severance allowance shall be determined in accordance with the provisions for calculation of vacation pay as set forth in Section 12—Vacations.

E. Nonduplication of Allowance

Severance shall not be duplicated for the same severance, whether the other obligation arises by reason of contract, law, or otherwise. If an individual is or shall become entitled to any discharge, liquidation, severance, or dismissal allowance or payment of similar kind by reason of any law of the United States of America or any of the states, districts, or territories thereof subject to its jurisdiction, the total amount of such payments shall be deducted from the severance allowance to which the individual may be entitled under this Section, or any payment made by the Company under this Section may be offset against such payments. Statutory unemployment corn- *1269 pensation payments shall be excluded from the nonduplication provisions of this paragraph.

P. Election Concerning Layoff Status

Notwithstanding any other provision of this Agreement, an employee who would otherwise have been terminated in accordance with the applicable provisions of this Agreement and under the circumstances specified in Section 16-A may, at such time, elect to be placed upon layoff status for 30 days or to continue on layoff status for an additional 30 days if he had already been on layoff status. At the end of such' 30-day period he may elect to continue on layoff status or to be terminated and receive severance allowance if he is eligible to any such allowance under the provisions of this Section 16; provided, however, if he elects to continue on layoff status after the 30-day period specified above, and is unable to secure employment with the Company within an additional 60-day period; at the conclusion of such additional 60-day period he may elect to be terminated and receive severance allowance if he is eligible for such allowance. Any Supplemental Unemployment Benefit payment received by him for any period after the beginning of such 30-day period shall be deducted from any such severance allowance to which he would have been otherwise eligible at the beginning of such 30-day period.

G. Payment of Allowance

Payment shall be made in a lump sum at the time of termination. Acceptance of severance allowance shall terminate employment and continuous service for all purposes under this Agreement.

The contract from which we have been quoting is dated August 1, 1977, and provides for termination 60 days after written notice by either party, “but in any event shall not terminate earlier than August 1, 1980.” This agreement was formally executed by authorized officers of the U.S. Steel Corporation and the United Steelworkers of America and its various negotiating committees, including the presidents of the two local unions representing the production workers at the two plants concerned, namely Local Union 1307 and 1330.

We are unable to construe any claims set forth in the instant litigation as being based upon any language contained in this collective bargaining agreement. Indeed, plaintiffs make no claim in this case that the United States Steel Corporation has violated the provisions of this section (or any section) of the collective bargaining agreement.

The defendant company also claims that plaintiffs reliance upon any oral contract is defeated by Section 2-B of the contract entitled “Local Working Conditions.” Paragraph 5 thereof provides:

No local working condition shall hereafter be established or agreed to which changes or modifies any of the provisions of this Agreement, except as it is approved in writing by an International Officer of the Union and the Personnel Services Executive of the Company.

It is clear that the approvals called for in the just quoted paragraph never occurred. It is somewhat less clear that the extraordinary developments relied on by plaintiffs are properly termed “local working conditions.”

The District Judge’s rejection of any formal legal contract claims was clearly mandated by both state and federal contract law. The lack of such features as a written document, authorization by the corporate Board of Directors and the Executive Boards of the steelworkers national and local bodies, a stated contract period, specified mutual consideration, all serve to demonstrate that the minimum features of a formal legal contract are missing.

Appellants’ principal argument in this appeal is, however, that the District Court should have found a contract based upon the equitable doctrine of promissory estop-pel, which contract is enforceable in the federal courts under § 301 of the National Labor Relations Act.

II. PROMISSORY ESTOPPEL

The doctrine of promissory estoppel recognizes the possibility of the formation of a contract by action or forbearance on *1270 the part of a second party, based upon a promise made by the first party under circumstances where the actions or forbearance of the second party should reasonably have been expected to produce the detrimental results to the second party which they did produce. Restatement (Second) of Contracts § 90 (1932) states':

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

Restatement (Second) of Contracts § 90 (1932).

Thus, appellants’ contract claim depends essentially upon oral statements and newspaper releases concerning the efforts of the company to secure increased productivity by enlisting the help of the workers of the plant and upon the employee responses thereto. The representations as set forth in the steelworkers’ complaint include many oral statements made over the “hotline” employed by management in the plants 3 to advise U.S. Steel employees of company policy. They began in the Fall of 1977 in the midst of much public speculation that the Ohio and McDonald works at Youngstown wére to be closed. 4 In general they follow the very first statement made by William Ashton, then superintendent of Youngstown works of U.S. Steel, on September 1, 1977, which said:

In response to many rumors, I want to tell you that there are no immediate plans to permanently shut down either the Ohio Works or McDonald Mills.

However, steps will have to be taken to improve these plants’ profitability. These steps, which have been and are currently under study, will require the suspension and consolidation of some operations in the months ahead.

Ohio Works and McDonald Mills are faced with very serious profit problems caused by a combination of heavy imports of foreign steel, higher energy costs, higher taxes and, of course, environmental expenditures.

The continued operation of these plants is absolutely dependent upon their being profit-makers.

In the months ahead, we will be calling for the full support of each and every one of you. Your cooperation and assistance is absolutely necessary if our facilities are to continue to operate.

Many similar statements were made by the company and were responded to by the employees. As 1977 and 1978 went by, there began to be statements over similar facilities and sometimes by company press releases indicating improvement in productivity at the two Youngstown facilities. Some of these included reference to “a complete turnaround” and reference to the Youngstown plants as “profitable” and once again viable.

The opposite side of the contract bargain alleged by plaintiffs consists of performance claimed by plaintiffs to have been induced by the sort of promises recited above and actions taken by them “in detrimental reliance” upon said promises.

Our examination of this issue requires much fuller recital of the promises and the actions they are alleged to have induced than we have quoted thus far. Plaintiffs’ second amended complaint states the promises as follows:

“a. After a visit to the Ohio and McDonald Works by David Roderick, then President of Defendant United States Steel, in August 1977, William Ashton, then Superintendent of the Youngstown District for Defendant, on September 1, 1977, made the following statement over the intra-com-pany or ‘hot line’ telephone to Defendant's Youngstown employees:

“Hello, this is Bill Ashton.

In response to many rumors, I want to tell you that there are no immediate plans to permanently shut down either the Ohio Works or McDonald Mills.

*1271 However, steps will have to be taken to improve these -plants’ profitability. These steps, which have been and are currently under study, will require the suspension and consolidation of some operations in the months ahead.

Ohio Works and McDonald Mills are faced with very serious profit problems caused by a combination of heavy imports of foreign steel, higher energy costs, higher taxes and, of course, environmental expenditures.

The continued operation of these plants is absolutely dependent upon their being profit-makers.

In the months ahead, we will be calling for the full support of each and every one of you. Your cooperation and assistance is absolutely necessary if our facilities are to continue to operate.”

“Mr. Ashton also released this statement to the press. At 3 P.M. on September 1, 1977, Mr. Ashton convened the grievance committees of Locals 1330 and 1307 in the conference room of the Youngstown District headquarters on Salt Springs Road and read them the- press release.

“b. On or about September 14, 1977, Randall Walthius, an agent of Defendant, stated to the press that studies were under way

“aimed at making the Youngstown facilities profitable and it is on the basis of the plants’ profitability that they will continue to operate.”

“c. On or about January 3, 1978, Edgar Speer, then Chairman of the Board of United States Steel, was asked by a NEW YORK TIMES reporter whether at some point the Ohio and McDonald Works would have to be closed, and answered, ‘Yup.’

“d. On or about January 4, 1978, Andrew Starsky, an agent of Defendant, clarified Mr. Speer’s comment by stating to the press: ‘There has been no decision made in regard to closings in the Youngstown area.’ Mr. Starsky added: T don’t think the situation is any different today than in September, when our people in Youngstown began a reorganization and consolidation of operations.’

“e. Also on January 4, 1978, William Kirwan, Superintendent of the Youngstown District for Defendant, made the following statements on the ‘hot line’:

“Hello, this is Bill Kirwan talking, and I want to set the record straight on what you read in the paper concerning our facilities. Mr. Speer’s comments yesterday, are essentially the same as the announcement made last September when the Company said there were no immediate plans to shut down the Youngstown operations. At that time United States Steel said that continued operation in Youngstown would depend on the plant’s ability to become profitable. Since that time some. progress has been made in reducing our losses. With your help, this effort will continue and if and when there will be a phase-out depends on the plant’s profitability, but no time table has been set. I intend to give this my best effort and I am confident you will too.” (Emphasis in original.)

“f. On January 11, 1978, Mr. Kirwan also stated on the ‘hot line’:

“Hello. This is Bill Kirwan and I want to bring you up to date on where we stand after that misleading news story last week.

Rube Perin, who is our Vice President of Sales, sent a letter on Tuesday to every one of our customers that I will read in part. He says, quote, T want to assure you that no decision has been made to close these facilities and they continue to be an integral part of the company’s plans,’ end quote. . . . ”

“g. At an undetermined date during the winter of 1977-78, J. Hepplewhite, an agent of Defendant, stated on the ‘hot line’:

“The future of our continued operations at Youngstown is dependent upon our ability to be a profit maker. To achieve this end each of us must accept the challenge to be innovative and continue to produce quality products for our customers.”

“h. On or about April 7, 1978, Mr. Kir-wan stated on the ‘hot line’: .

“Hello, this is Bill Kirwan.

*1272 I want to share the good news with all of you.

In the month of March, for the first [time] in a long long time, the Youngstown Works earned a profit for the United States Steel Corporation.

We didn’t make a bundle, and we are still in the hole for the year, but this is the first indication that the changes in our operations, and our attitudes are turning the place around.

While one month’s profits doesn’t solve our problems, it sure shows U. S. Steel, our customers and our families that the goal set for us is attainable.

We got the orders and the opportunity to make April even a better month. Keep up the momentum—our future is what we make it.”

“(Emphasis in original.)

“i. On or about April 17, 1978, Mr. Kir-wan stated to the press about the Youngstown District facilities, ‘We’ll be doing business here for some time to come.’

“j. On or about April 17, 1978, Mr. Wal-thius stated to the press about the Youngstown District facilities:

“Company management has repeatedly said that the works will stay open if they become profitable. Well, now they are profitable.”

“k. On November 8, 1978, Mr. Kirwan stated on the ‘hot line’:

“Hello, this is Bill Kirwan.

As you already know, by the grapevine, the chopper was in yesterday with the top executives of Eastern Steel. Visits are being made to all the plants to discuss problems facing us in 1979. On the basis of your performance so far this year our outlook is pretty good. .

Improved productivity is almost entirely up to you. I am asking each of you to consider how you may help in keeping Youngstown the going plant it is today.”

“1. On December 21, 1978, Mr. Kirwan stated on the ‘hot line’:

“Hello, this is Bill Kirwan.

You will recall that early in 1978 we initiated significant changes in our operations in order to make Youngstown Works profitable and once again a viable plant. Our efforts took many turns, but we have attained our 1978 goal which was ‘survival’ and now we embark on the 1979 goal which is ‘revival.’

I want to express my thanks to every man and woman employed at McDonald Mills and the Ohio Works for your efforts and contributions to this success. Ed Speer has always said that Youngstown Works has the best bunch of steelworkers in the business. I couldn’t say it any better myself. . . . ”

“m. On April 26, 1979, William Kirwan, C. I. Richards, Jr., an agent of Defendant, and R. M. Greer, an agent of Defendant, wrote a letter to the WALL STREET JOURNAL which was printed shortly thereafter. The letter stated:

“Dear Sir:

Regarding your report on United States Steel Corporation First Quarter, 1979 earnings, which appeared on Page 3 of the April 25th, 1979 edition, it is deeply concerning that the Wall Street Journal has resorted to reporting ‘hearsay’ when you make reference to the fact that steel making facilities at Youngstown are not efficient and should be closed. You imply by this statement that Youngstown is eroding U.S. Steel Corporation’s profit. Factually, this is nonsense and reflects the opinions of someone who doesn’t know the facts and never bothered to get them.

Your paper should be reminded of the following:

1. A complete turn-around has been achieved at Youngstown in the past year due to an aggressive management effort, streamlining of operations, and hard work on the part of all employees.

2. Youngstown Works is creating a tremendously favorable impact that is sorely needed in the Mahoning Valley economy by keeping 3500 people working. This is also being done without any governmental assistance or handout.

3. As long as a plant can generate an acceptable return, and the facilities are *1273 being poorly [sic] [properly?] maintained, facility age need not be a significant factor.

Your organization should also be reminded of the morale problems that can be caused amongst people that have worked long and hard to achieve a goal when they read fiction in a publication that built its reputation on reporting of facts. Your article was a disservice to every employee at Youngstown Works, and represents the epitome of reportorial irresponsibility. Absent a retraction, the credibility of your publication is extremely questionable.

W. H. Kirwan C. L. Richards, Jr. R. M. Greer.”

“(Emphasis in original.) The sending of this letter was discussed with representatives of Locals 1330 and 1307, and the published letter was widely read by Defendant’s Youngstown employees, as it was intended to be.

“n. On or about May 2, 1979, Mr. Kir-wan stated to the press about the Youngstown District facilities:

“Ten years down the road that may be different, maybe even three years. . But we currently have an operation here that’s been going profitably since the early part of 1978.' ...”

“o. On or about June 5, 1979, the press attributed to Mr. Kirwan the statement that the Youngstown District finished 1978 in the black and even managed to win a profitability contest against U.S. Steel’s much-newer plant in Baytown, Texas, which produces many of the same kinds of products.

“p. On or about June 18, 1979, David Roderick, Chairman of the Board of United States Steel, stated to the press and on ABC television:

“Simply stated, we have no plans for shutting down our Youngstown operation.

Only two things would result in a Youngstown shutdown: [massive expenditures to meet environmental requirements of [sic] [or?] an unproductive plant operation.]

The Youngstown plant is profitable. We’re operating in the black there.”

“q. On or about November 1 and 2. 1979, Frederick Foote, an agent of Defendant, stated to a public meeting in Cleveland, Ohio convened by Clergy and Laity Concerned, and to the press:

“We’ve said all along the Ohio Works has been profitable and there are no plans for a shutdown.”

“The responses and actions which steelworkers alleged were induced by these promises, and which represented detrimental reliance thereon, were as follows: —

“Plantwide Issue 11 (attendant at main canteen was promised on 24-hour basis but has been provided no more than 9 hours a day during week and even less on weekends when needed more; 40" canteen has been closed instead of renovated)

“Plantwide Issue 17 (instead of improving janitorial service for welfare stations, company has reduced janitors from 26 to 16-18)

“Issue 34 (work on welfare station on 3d floor of Sinter Plant has not been done)

“Issue 35 (ventilation at Screening Station was not improved during outage as promised)

“Issue 41 (Open Hearth Mixer Crane has not been air conditioned)

“Issue 47 (Jib Cranes in back of furnaces have not been maintained)

“Issue 49 (paint on designated walkways in Open Hearth has worn off creating safety hazard)

“Issue 50 (stretcher containers have not been painted with fluorescent paint)

“Issue 54 (overhead doors have not been installed in Open Hearth and existing doors have not been maintained)

“Issue 56 (there are still holes in the Crane Shop)

“Issue 57 (new heaters have not been provided in Crane Shop)

“Issue 63 (wooden beams in roof of Diesel Shop have not been replaced)

*1274 “Issue 65 (holes around Diesel Shop have not been filled and new shop has been left half finished)

“Issue 70 (fumes have not been removed from garage)

“Issue 73 (switches have not been properly repaired and maintained)

“Issue 77 (sufficient extermination service has not been provided)

“Issue 80 (better lighting in Paint Shop has not been provided)

“Issue 82 (pressure in Carpenter Shop shower has not been corrected)

“Issue 83 (two-way radios are not available to riggers, creating safety hazard) “Issue 89 ■ (insulated gloves used by Ohio Edison employees have not been provided)

“Issue 90 (roof of No. 33 welfare station still leaks)

“Issue 144 (electric operated steam valve on # 23 and # 15 flying shear does not work and men are still operating manually, creating safety hazard)

“Issue 103 (two-way radios and walkie-talkies have not been provided for crane operator and motor inspector in 40" mill, creating safety hazard)

“Issue 129 (door in Met Lab has not been relocated)

“Issue 132 (fumes from Open Hearth Lab Alloy cut-off machines are ventilated into rest room).

“b. Because of Defendant’s promise and in detrimental reliance thereon, Defendant Youngstown employees immediately began to work harder and to increase their productivity. The results were evident as early as October 1977, when, for the first time in 1977 according to the method of accounting employed by Defendant, the Youngstown District made a monthly profit. Defendant’s Manager of Accounting for the Youngstown District reported:

“In October, Youngstown made a profit of $34. The importance of this profit can only properly be comprehended if the odds against it, at this level of operations, are clearly understood. The break-even point on October’s fixed expenses of $3828 ($3178 Fixed and $650 SG & A) is 74,400 tons based on an M.O.V. of $51.48. October’s shipments of 51,283 tons were 23,100 tons below the break-even point, and therefore, only extraordinary performance variance achievements from hot metal through primary rolling drove the actual variable cost (standard variable cost [plus or minus] cost variances) to $273 per ton below the Standard variable cost of $297. .

“. . . The Ohio Works variance is the most favorable variance performance achieved since May, 1975. .

“. . . If Youngstown is judged strictly on its own fixed expense, October’s profit would have been $1,408, and the year to date loss would be reduced from the Profit Contribution reports’ $19,421 to $4,947.”

“(Emphasis in original.)

“c. In further illustration of the action and forbearance induced by Defendant's promise, in detrimental reliance thereon, on March 8,1978 Mr. Kirwan stated on the ‘hot line’:

“The Ohio Works is hosting the Corporation’s Steel Producing Conference on March 9th and 10th. Representatives from other U.S. Steel Plants will be here to discuss new steel producing projects and to look at our operations. Many-improvements have been made to our Open Hearth and through the outstanding efforts of our personnel, Youngstown’s productivity gains are second to none... .”

“(Emphasis added.)

“d. In further illustration of the action and forbearance induced by Defendant’s promise, in detrimental reliance thereon, on May 12, 1978 Mr. Kirwan stated on the ‘hot line’:

“Hello, this is Bill Kirwan.

Congratulations! For the second month in a row, I am happy to report that, due to your outstanding performances, Youngstown Works has, again, been a profitable steel plant.

In April the Blast Furnace Department set a new monthly record and the crews on # 51 Open Hearth did the same. All of you kept on top of your individual assignments and the result is most gratifying. ...”

*1275 “e. In further illustration of the action and forbearance induced by Defendant’s promise, in detrimental reliance thereon, on June 1, 1978 Norm Waite, an agent of Defendant, stated on the ‘hot line’:

“Hello, this is Norm Waite.

I’m very happy to report that for the second month in a row my crew in the Blast Furnace Department has set a monthly production record. This has been accomplished primarily through an improvement in the burden and some innovative operating techniques on their part.

We’re trying everything to keep Youngstown District and U.S. Steel profitable.”

“f. In further illustration of the action and forbearance induced by Defendant’s promise, in detrimental reliance thereon, on September 18, 1978, A1 Tkatch, an agent of Defendant, stated on the ‘hot line’:

“Hello, this is A1 Tkatch.

I’m pleased to announce that the sinter plant at the Ohio Works came back into operation last Sunday after being shut down for ten weeks.

Art Mazarakis and all the hard working guys in Engineering and Central Shops did an outstanding job completing this major project right on schedule and for less than the original estimate.

This is the kind of team effort that produces winning results. Penn State, the Steelers and the Browns all won big last week end. So did Youngstown Works.”

“g. Because of Defendant’s promise and in detrimental reliance thereon, Plaintiff Locals agreed to combine into one seniority list the machinists at the Ohio and McDonald Works. This negotiated understanding was embodied in a “Special Seniority Agreement Covering Craftsman Of McDonald Mills Machine Shop,” signed by Charles L. Richards, Superintendent-Employee Relations for Defendant, and Marvin Weinstock, Staff Representative, United Steelworkers of America, and dated December 14, 1978. A similar understanding was negotiated for Boiler Shop employees in the two mills.

“h. As previously alleged in Paragraph 10 k of this Complaint on November 8, 1978 Mr. Kirwan stated on the ‘hot line’: ‘Improved productivity is almost entirely up to you. I am asking each of you to consider how you may help in keeping Youngstown the going plant it is today.’ Because of Defendant’s promise and in detrimental reliance thereon, Defendant’s Youngstown employees worked in such a manner that at an undetermined date subsequent to March 31, 1979 and before June 30, 1979, Mr. Kir-wan stated on the ‘hot line’:

“Thanks to the efforts of most of you, we had a profitable first quarter in Youngstown.”

“i. In further illustration of the action and forbearance induced by Defendant’s promise, in detrimental reliance thereon, on or about June 5, 1979 Mr. Kirwan stated to the press that anxiety about the future of the Youngstown District had generated what he termed ‘a nonadversarial relationship’ between management and the work force.

“j. Because of Defendant’s promise and in detrimental reliance thereon, in August 1979 President Reno DePietro of Plaintiff Local 1307 and grievance committeeman Michael Mignogna met with David Houck, an agent of Defendant, to consider how to improve the profitability of the 12 mill at the McDonald Works. Defendant shut down the 12 mill so that DiPietro and Mig-nogna could meet the crews in the company conference room. DePietro and Mignogna relayed the message from management that if the mills could be kept profitable, they would stay open, and urged the men to work more efficiently. The men told their union representatives about problems in the 12 mill which impeded their work. In September 1979, DePietro and Mignogna met with Will McCorckle and George Benkey, agents of Defendant to discuss the status of the 12 mill. Benkey reported that attitudes were better and production was up.

“k. In October 1979, Robert Griffin, an agent of Defendant, convened the grievance committeeman of Plaintiff Local 1307 and told them that the 18 mill was going *1276 from two turns to one. He asked if management could depart from the previous practice of rotating layoffs among the men in the department, because it would save the company money to lay off the men at the bottom of the seniority list and keep the men at the top of the list at work full time. Defendant’^ proposal had the effect of reducing the income of Plaintiff Local because fewer men would work the one day per month which requires them to pay union dues. However, because of Defendant’s promise and in detrimental reliance thereon, the union representatives agreed to Defendant’s proposal.

“1. In further illustration of the action and reliance induced by Defendant’s promise, in detrimental reliance thereon, representatives of Plaintiff Locals agreed to a ‘power schedule’ in the scheduling of turns for the Ohio Works, the 7-17 mill at the McDonald Works, and the 18 mill at the McDonald Works. The purpose of the ‘power schedule’ was to decrease Defendant’s energy cost by shifting personnel from day turn to afternoon turn (3-11 P.M.) so as to equalize the energy consumption of the mills throughout the two turns. This proposal was unpopular with employees because it required them to give up time with their families. Plaintiff Locals could have protested this proposal through the grievance procedure as a departure from normal schedule pattern.

“m. Plaintiff Locals permitted Defendant to combine jobs so as to reduce Defendant’s costs, although the previously existing jobs were well established by past practice and Plaintiff Locals could have grieved the changes had management imposed them unilaterally. Such job combinations included: The job of Pump Tender Helper at the Bessemer in the Ohio Works was combined with a job in the blast furnace pumphouse; coal handlers in the 9 Boiler House at the Ohio Works were put into the millwright gang as helpers and thereafter handled coal on an ‘as needed’ basis; the second man on the Topper Turbine at the Ohio Works was combined with a job at the Boiler House; and the job of inspector of narrow-gauge locomotives in the Diesel Shop was abolished and performed thereafter on an ‘as needed’ basis by other workers.

“n. Action and forbearance as described, supra, was continuously induced by Defendant through social occasions sponsored by Youngstown District management. In May 1979, newly elected officers of Plaintiff Locals and Youngstown District supervisors were convened at the Mahoning County Country Club, 700 E. Liberty Street, Girard, Ohio, for an affair known as ‘A Beer With The Boss.’ Mr. Kirwan addressed the group. He described planned improvements in the Sinter Plant and the installation of a new coder in the 18 mill. He predicted a steel shortage in the mid-1980’s and an opportunity at that time for the Youngstown District to make the capital investment needed for longterm viability. In answer to a question from President Vasquez of Plaintiff Local 1330, Mr. Kir-wan stated that the investment he had in mind was $250 million for electric furnaces and a continuous caster at the McDonald Works. He also stated that the mills were presently profitable and that the men should keep up their good work. In September 1979, Burning Yard employees were invited to dinner at Sokol Center Restaurant, 850 E. Midlothian Avenue, Youngstown, Ohio, where Mr. Kirwan and Mr. Tkatch congratulated them and told them they had saved their jobs.

“12. Also in detrimental reliance on Defendant’s pro