Florida Steel Corp.

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florida Steel Corporation and United Steelworkers of America, AFL-CIO. Case I1-CA-5776 September 12, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 29, 1974, Administrative Law Judge Thomas S. Wilson issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order as modified herein. REMEDY Having found that the Respondent canceled its scheduled area wage survey for Charlotte, upon which a general wage increase was customarily based, and subsequently discriminatorily withheld from Charlotte its normal annual wage increase, the Administrative Law Judge recommended that the unit employees be made whole by a payment equal- ing what each would have earned beginning Febru- ary 1, 1974, at an increase of 40 cents per hour, with interest at 6 percent. As the Administrative Law Judge found, this amount was "about" the average wage increase given by Respondent at its 10 other facilities in 1974 (as shown by G.C. Exh. 34) and it was the amount given by Respondent with the Union's consent (retroactive to December 2, 1973) at the Indiantown facility, a steel mill similar to Char- lotte. Relying on H. K. Porter v. N. L. R. B., 397 U.S. 99 (1970), Respondent excepted to the Administrative Law Judge's granting of a monetary remedy when the increase should be the subject of negotiations. In addition it excepts to the rationale used to justify the choice of 40 cents per hour as a fair increase at Char- lotte and the choice of an effective date shortly after certification. In view of the record evidence that Re- spondent does not give the same general wage in- crease at all its 11 facilities , and its concern for main- 1 The Board does not adopt the Administrative Law Judge's gratuitous comments which characterize the Board's decisions as lacking uniformity and speculate on the trend of Board decisions. taining a competitive position in each labor market, we shall not set a specific hourly sum. Accordingly, we shall order Respondent to make whole all those employees in the appropriate unit at Charlotte for any loss of pay they may have suffered by reason of the discrimination practiced against them by Respondent's refusal to give them a general wage in- crease for 1974. If Respondent and the Union cannot agree on the amount of the general increase and/or the retroactive date, it shall be left to the compliance stage of these proceedings to determine such amounts and the proper date, or, if agreement cannot there be reached, to a backpay proceeding. Interest on the amounts found due shall be fixed at 6 percent per annum from the appropriate retroactive date. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Florida Steel Corpora- tion, Croft, North Carolina, its officers, agents, suc- cessors, and assigns, shall take the action set forth in that Order, as modified below: 1. Delete paragraph 2(c) and substitute the follow- ing: "(c) Make whole all those employees in the appro- priate unit at Charlotte for any loss of pay they may have suffered by reason of the discrimination prac- ticed against them by refusing to give them a general wage increase for 1974, as provided in the `Remedy' section of the Board's Decision." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. MEMBER FANNING, dissenting in part: Like my colleagues I would affirm the Administra- tive Law Judge's findings of 8(a)(1) and (3) viola- tions. However, contrary to my colleagues, I also would adopt the Administrative Law Judge's remedy in regard to the general wage increase. Respondent admittedly canceled, because of the Union, the an- nual area wage survey it had scheduled at Charlotte upon which a general wage increase was customarily based and, as we have found, discriminatorily with- held from its Charlotte employees the general wage increase granted its other facilities. A wage survey taken at this time would not, in my judgment, be an accurate or reliable tool for determining the amount of the wage increase improperly withheld in 1974. It also appears that Respondent, after the Union's cer- tification and the commencement of bargaining pur- suant to certification, declined at the Union's request to make a survey that would have been relatively 220 NLRB No. 57 FLORIDA STEEL CORPORATION 261 timely. That this may have been due to lack of coop- eration by area employers, as the Respondent con- tends, demonstrates the difficulty of substituting a later survey once the decision to cancel the annual survey and withhold the annual wage increase only at Charlotte was made. Thus, I view it as entirely reasonable for the Administrative Law Judge to have recommended a general wage-increase remedy of 40 cents per hour based on the average wage increase Respondent gave in 1974 to its 10 other facilities, as well as upon that given at Respondent's Indiantown 2 steel mill which is very similar to its Charlotte mill? I find no merit in the Respondent's contention that, in the absence of the results of an area wage survey, the amount of the general wage increase and its retroactive date cannot be set. The Board should not, by refusing to set a reasonable amount for the increase, permit the Employer to benefit from its own malfeasance in canceling the survey because of the Union and discriminatorily withholding the wage increase 4 I do not construe the holding in H.K. Porter v. N.L.R.B., 397 U.S. 99 (1970), urged by Respondent, to prohibit the Board from setting the specific amount of the general wage increase which, as the record clearly indicates, is a term and condition of employment, as Respondent has given this increase at Charlotte annually since 1966. Like the Adminis- trative Law Judge, I find no merit in Respondent's contention that the recommended remedy would jeopardize its bargaining position. In H.K. Porter, su- pra, the Supreme Court reversed a Board order in which the employer was required to establish a union dues checkoff system because it had bargained in bad faith as to this issue. In that case, the Court stat- ed at page 102 that the Board is "without power to compel a company or a union to agree to any sub- stantive contractual provision of a collective-bargain- ing agreement." In my view, the make-whole remedy recommended by the Administrative Law Judge is in no sense a contractual provision, but a reasonable attempt to redress past discrimination, well within the Board's authority to provide.' As it is also reasonable to assume that, but for the Union, the Charlotte employees would have received this general pay increase in a February payroll, and as the Indiantown increase was made retroactive to an earlier date (December 2, 1973), I see no reason to question the February 1 date the Administrative Law Judge recommended for Charlotte. 5 Petrolane-Franklin Gas Service, Inc, 174 NLRB 594 (1969). See also cases where the Administrative Law Judge failed to provide a compensatory remedy. American Fire Apparatus Company, 160 NLRB 1318 (1966), enfd 380 F 2d 1005 (C.A 8, 1967), where the Administrative Law Judge failed to remedy the discriminatory withholding of a Christmas bonus because com- putation would be difficult , if not impossible , the Board gave a make-whole order for the monetary loss saying it was not required to decide upon a detailed formula ; the court enforced, noting that the difficulty in computing the precise amount due each employee was not a substantial reason for modifying the Board's order. Leeds & Northrop Company, 162 NLRB 987 (1967), enfd. 391 F.2d 874, 880 (C.A 3, 1968), where the Administrative Law Judge failed to remedy a respondent's unlawful unilateral change in computation of annual profit sharing , the Board did so in its order , noting that the record was not adequate to determine clearly whether there was a detriment-a matter more appropriate for compliance ; the court enforced, saying- The Board's back pay award in this case is supportable on the ground that the union might have successfully resisted all or a portion of the reduction in its share of profits had it been afforded an opportunity to bargain, and the employees should not be left in a worse position than they might have enjoyed if the union had been given the opportunity to bargain. While it is true that a retroactive order might afford the em- ployees a better position than the union 's bargaining might have achieved, the Board can hardly be said to be effectuating policies be- yond the purposes of the Act by resolving the doubt against the party who violated the Act Retroactive enforcement must always contain in it some element of hardship on the employer, but a failure to grant back pay imposes at least an equal hardship on the employees APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present evidence, the National Labor Relations Board found that we, Florida Steel Corporation, vio- lated the National Labor Relations Act, and has or- dered us to post this notice and we intend to carry out the order of the Board and abide by the follow- ing: 2 Respondent, after the Union lost the November 9, 1973, election at Indiantown, gave its employees there a wage increase retroactive to Decem- ber 2, 1973. 3 To be noted is the fact that there was no evidence presented to indicate that the hourly rate set by the Administrative Law Judge was unreasonable or burdensome for Respondent. 4 See National Licorice Co. v. N.L.R.B., 309 U.S 350, 364 (1940), where the Court states- The Board asserts [7 NLRB 537] a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices . The public right and duty extend not only to the pre- vention of unfair labor practices by the employer in the future, but to the prevention of his enjoyment of any advantage which he has gained by violation of the Act... . The Act gives you the right: To form, join, or help unions To choose a union to represent you in bar- gaining with us To act together for your common interest or protection To refuse to participate in any or all of these things. WE WILL NOT threaten to withhold all benefits if our employees select the Union as their repre- sentative, nor will we withhold any. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL grant to all the employees, past and present, in the appropriate unit at Charlotte (Croft) all the fringe benefits retroactive to the time such grants were made corporationwide. WE WILL make whole all those employees of the Charlotte (Croft) appropriate unit who qua- lified for merit pay increases on and after Janu- ary 14, 1974, for the merit increases we withheld from them because of the Union by payment to each of them of a sum of money equal to that which each lost by reason of our withholding the merit pay increase each had accrued, with inter- est thereon at the rate of 6 percent per annum. WE WILL make whole all the employees who worked in the Charlotte (Croft) appropriate unit for the 1974 annual wage increase which we withheld because of the Union with interest thereon at the rate of 6 percent per annum. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. FLORIDA STEEL CORPORATION DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Administrative Law Judge: Upon a charge and an amended charge filed on June 12 and Au- gust 6, 1974, respectively, by United Steelworkers of Amer- ica, AFL-CIO, herein referred to as the Union, the Gener- al Counsel of the National Labor Relations Board , herein referred to as the General Counsel I and the Board, re- spectively, by the Regional Director for Region 11 (Win- ston-Salem, North Carolina), issued its complaint dated August 9, 1974, against Florida Steel Corporation , herein referred to as the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain alle- gations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing on such issues was held before me in Gastonia, North Carolina , on September 18 and 19 and in Washington , D.C., on October 9, 1974. All parties were represented by counsel and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence and material pertinent to the issues. At the conclusion of the hearing, oral argument was 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. waived. Briefs were received from the General Counsel, Union, and Respondent on November 9, 1974. Upon the entire record in the case and upon my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I. BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I there- fore find that: Florida Steel Corporation is, and has been at all times material herein, a Florida corporation with a plant located at Croft, North Carolina, where it is engaged in the manu- facture of steel and reinforced rods. During the past 12 months, which period is representative of all times material herein, Respondent received goods and raw materials from points directly outside the State of North Carolina valued in excess of $50,000. During the past 12 months, which period is representative of all times material herein, Re- spondent manufactured and shipped directly to points out- side the State of North Carolina products valued in excess of $50,000. Accordingly, I find that Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, is a labor organization admitting to membership employees of Re- spondent. Ill. THE UNFAIR LABOR PRACTICES A. The Facts Most of the facts here were stipulated. All of them could have been. Thus, the only disagreement between the par- ties arises in the law applicable to those facts. On this latter point the parties are poles apart. Respondent's corporate headquarters are located in Tampa, Florida. In all it operates a total of 11 plants and facilities located in the southern States. Its main steelmill or plant is also located in Tampa. It has other steelmills or plants located at Croft, North Carolina, herein referred to as the Charlotte plant, as was done throughout this hear- ing, and at Indiantown, Florida. The other facilities do not manufacture steel. No Union represented the employees at any of these II plants and/or facilities at least until the Union was certified as the representative of the production and maintenance employees at Charlotte on January 16, 1974. The facts here prove that, at least since 1966, it has been Respondent's custom to have its wage salary administrator, Charles E. Moore, conduct an area wage survey at each of Respondent's plants and facilities and, based on the find- ings of that area wage survey so conducted, Respondent has granted annual wage increases to the employees at each of these plants or facilities. Because of the time in- FLORIDA STEEL CORPORATION 263 volved in making these surveys and because of the condi- tions in each location surveyed, the time and the amount of the wage increase granted differed both in the time of the increase and frequently in the amount of the increase, at the individual plants. In short, the annual wage increase granted the employees of the individual plant or facility tended to differ both as to time and amount. There was no single corporatewide wage increase, although on occasions the amounts of increase so' granted were identical. On the other hand, having determined that fringe bene- fits were the same throughout Respondent's operating area, it was Respondent's customary practice for fringe benefits such as paid holidays, improvements in the paid vacation policy, improvements in the retirement plan and savings plan, and improvements in the Group Health In- surance plan to be granted toall its employees corporate- wide at one and the same time. The announcement of the improvements in fringe benefits to the employees was usu- ally made in Respondent's monthly magazine called the "Florida Steel Triangle" which Respondent sent to all company employees. 1 In February 1973; as a result of the area wage survey then completed, Respondent granted its Charlotte' employ- ees a wage increase amounting to 8.9 percent and ranging from 27 cents to 63 cents per hour. This was to prove to be the last annual wage increase at Charlotte to date. The_ record also proves that on January 14, 1973, the last merit pay increase to a Charlotte employee was granted in accordance with Respondent's corporatewide merit pay plan. Regarding the lack of merit increases thereafter, Joe M. Menendez, Respondent's Charlotte manager of industrial relations, testified as follows: Q. (By Mr. Clark) Mr. Menendez, for all merit in- creases which this document that you prepared, which this document indicates, the employee was rated eligi- ble for, since you have been here in '74, they were not awarded because of your instructions when you came not to award merit increases because of the Union's presence, is that correct? A. That is correct. Q. And, is it correct that irrespective of whatever the Company might have done, as you have speculat- ed, in the future with regard to the merit increase plan, had the Union not been there at all, the fact is that you were instructed not to give these increases because of the Union. A. The Union's presence, yes, sir. It was in this state of affairs that the Union began an organizational campaign among the production and main- tenance workers of Respondent at Charlotte which includ- ed the truckdrivers stationed there. On May 21, 1973, the Union filed an RC petition for certification in that unit at the Respondent's Charlotte plant. On August 26 Respondent announced corporatewide that it was increasing the meal allowance of its truckdrivers from $1.75 to $2 per day except for the drivers stationed at Charlotte. On August 30 the representational election was held at the Charlotte plant. The Union won. Respondent duly filed objections: On September I I the Union filed another RC petition involving the production and maintenance employees at the Indiantown plant. That same day, September 11, Respondent announced the addition of the Friday after Thanksgiving as a paid holiday corporatewide, except for the Charlotte unit em- ployees. In regard to the exception made regarding the Charlotte unit employees in this last grant James Hogue, Respondent's vice president of industrial relations, testified as follows: Q. (By Mr. Morgan) And the reason the employees at Charlotte did not receive that additional holiday in 1973 being the Friday after Thanksgiving, was be- cause they had selected the Union as their representa- tive, isn't that true? A. Let me cover that point if I may. As a matter of practice with us, when a petition is received and an election is pending, we do not increase the wages and hours or change the working conditions for them. Now the same thing is true if the employees elect a bargaining agent and are subject to collective bargain- ing, we do not make an improvement in the wages, hours, or benefits unilaterally after the Union is certi- fied. Q. So the reason they did not receive this extra paid holiday in 1973 in Charlotte was because they had in August of 1973 voted the Union as their representa- tive. A. Correct. That would be it. On November 9 the representational election at Indian- town was held. The Union lost. The Union filed objections. In December 1973, Moore who was in charge of the Respondent's area wage surveys submitted his proposed schedule for such surveys for the year 1974. He had sched- uled the area wage survey for the Charlotte plant during the month of January 1974. He was instructed by Hogue to omit from his schedule the area wage survey at Charlotte and did so. No other wage survey for the Charlotte area was made during the year 1974. Based on those surveys Respondent granted the customary annual wage increases at all its plants and facilities during 1974 except for the Charlotte employees. As to this, Vice President of Industrial Relations Hogue testified as follows: Q. (By Mr. Morgan) I am talking about the general increase right now, that the reason that they have not received their general increase is because they are cur- rently represented by the Union? A. In 1974, it would have been the logical time for us to review had they not been represented for a gen- eral increase; we did not survey or give a general in- crease at that time because we were subject to negotia- tions with the United Steelworkers.2 2 The facts show that actually Hogue canceled the area wage survey and increase for Charlotte in December 1973, prior to certification and while the Board was still considering Respondent's objections to the election at Char- Continued 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. My question is: Had the employees [at Char- lotte] not been represented by the Steelworkers, then the Company would have brought in their survey man and given that pay raise, isn't that true? A. Had we been able to move unilaterally, yes. On January 1, 1974, Respondent announced the grant- ing of increased benefits and improved vacation policy as well as improved retirement and savings plans corporate- wide except for the employees at Charlotte and at Indian- town. On January 16, 1974, the Board certified the Union as their exclusive bargaining representative for the unit em- ployees at Charlotte. On March 20 a hearing was held on the Union's objec- tions to the election at Indiantown. One week later Re- spondent by letter to the Union offered to grant the Indi- antown employees the already announced improvements in the vacation and retirement program as well as the an- nual wage increase. On April I I the Union accepted the Company's offer in that regard. On April 17 Respondent granted the Indiantown employees a 40-cent-per-hour wage increase retroactive to December 2, 1973, as well as the improvements in the aforementioned fringe benefits retroactive to January 1, 1974, the date of the grant. On April 18 Respondent announced the granting of in- creased hospitalization insurance benefits effective as of May 5, 1974, to its employees corporatewide except for the Charlotte employees and the Indiantown employees. On May 7 the decision to hold a rerun election at Indi- antown was made? On May 30 the second Indiantown election was held. The Union won. Respondent filed objec- tions to this election. These objections are still pending be- fore the Board as of the date of the hearing. Negotiations between Respondent and the Union relat- ing to the Charlotte employees began on April 24, 1974. Since then, other negotiation meetings have been held on June 20, July 2-3, July 23-24, August 7-8, and September 12. No collective-bargaining agreement has resulted there- from. Those are the undisputed facts of the instant case. B. Conclusions With the facts of the instant case either stipulated or undisputed, the issue here narrows down to a single legal one. Respondent's brief acknowledges: "For that reason, the Company had a fixed policy of not granting fringe bene- fits, increases (sic) where the Union had filed a petition." Amended to read: "The Company had a fixed policy of not granting any benefits [to unit employees] where the Union had filed a petition" and it rather adequately de- scribed this sole legal problem involved here. Respondent's brief also recognizes the present estab- lished case law on the subject when it states: lotte. Hence actually Respondent was not "subject to negotiations" in De- cember at the time the wage survey was canceled. 7 The stipulation states that the Regional Director made this decision but Respondent's bnef indicates that it was a Board decision The Company is aware of the general rule that an employer in deciding whether to grant benefits while a representation election is pending should decide that question as he would if the Union were not in the picture, Dan Howard Mfg. Co., and Dan Howard Sportswear, Inc., 158 NLRB 805 (1966). However by arguing the instant case as though it were a refusal-to-bargain case, which it is not, Respondent is able to conclude its brief with the following paragraph: The company respectfully submits that any benefits that may have been withheld from the employees were motivated by an attempt to comply with the Board's decision to not unilaterally grant changes in wages, hours and working conditions here pending a Board election or after a Union has been certified and for the reasons stated above the complaint should be dis- missed in its entirety. On the other hand , General Counsel and the Union ar- guing this matter as a coercion and discrimination case, which it is, conclude that the legal question above must be decided in accord with established law and thus adversely to Respondent's position. One of the arguments urged by Respondent is that, if Respondent granted the same benefits to the Charlotte unit employees as it was granting corporatewide to its nonunit employees in accordance with its long and well established customary practice, it would be jeopardizing its "bargain- ing position." Respondent also urges that, if a remedy were to issue in this case, the Administrative Law Judge and the Board would in effect be writing the terms of Respondent's collective-bargaining agreement (still not in existence) in violation of the rule of H.K. Porter, 397 U.S. 99 (1969). These arguments are not available to Respondent in the instant case because Respondent granted only one benefit from which the Charlotte unit employees were excluded, to wit, the improved group health insurance granted on May 5, 1974, after the Union had finally been certified at Char- lotte on January 16, 1974. All the other benefits the Char- lotte employees had been deprived of were granted by Re- spondent in the usual, normal, established course of business of Respondent prior to that certification and hence could not have affected Respondent's "bargaining position." The above is true even as to the annual wage increase, though that increase would not have appeared in the Char- lotte paychecks until sometime in February. The facts show that this annual wage increase procedure had existed throughout the corporation since at least 1966, and has resulted in annual wage increases every year thereafter. However, the facts also prove that it was in December 1973 when Hogue ordered Moore to cancel his already sched- uled area wage survey at Charlotte , and thus disrupted the usual and ordinary corporate procedures , which by 1974 at least constituted a condition of employment and, of course, was a condition precedent to the actual wage increase re- ceived at Charlotte, which occurred usually sometime in January or February. Thus, it was in December 1973, and prior to the certification , that Respondent deliberately and unilaterally eliminated a condition of employment affect- FLORIDA STEEL CORPORATION 265 ing the wages of the Charlotte unit employees , and thus interrupted its normal established procedures leading to the annual wage increase at Charlotte. Admittedly the De- cember change was made unilaterally by Respondent be- cause of the filing of the union petition. Nor would providing a "make whole" remedy for cor- recting a discrimination against the Charlotte employees constitute the writing of a portion of a collective -bargain- ing agreement. The same thing is true regarding Respondent's actions in regard to its long-established merit pay plan at Charlotte which also had become a condition of employment since the plan's establishment in 1966 . Originally in 1973 at Charlotte this merit plan was interrupted by the wage guidelines established by the cost of living council , but that interruption was removed on August 13, 1973. Regardless of that, however, Respondent thereafter unilaterally with- held merit pay raises from some 17 Charlotte employees (Respondent's estimate) who had qualified therefor under Respondent's plan, again because of Respondent's admit- ted policy of withholding benefits after the filing of an RC petition. In regard to this merit pay plan , Respondent also claimed that it had been phased out or abandoned in all of Respondent's plants, but had to admit that the plan had never been phased out in the Charlotte plant, and at the time of the hearing still provided a one-step wage increase for eligible employees. Thus these 17 unit employees lost a one-step wage increase which Respondent unilaterally withheld after they had qualified under the plan based on Respondent's policy after the filing of a petition. The facts show that both the annual wage increase and the merit pay plan had been in existence and operating at all of Respondent's plants as well as Charlotte, since 1966. Every year thereafter Respondent had had Moore make an annual area wage survey in the geographical areas of each plant, which was thereafter followed by a wage in- crease at each location within a few weeks of the comple- tion of the survey in the particular geographical area. Nat- urally the amount of the increase and the exact date thereof varied from plant to plant. But the procedures and resultant increase were long established and expected. It had become by 1974, at least, an established condition of employment at each plant as an integral part of Respondent's compensation policy. In 1974 at Charlotte Respondent unilaterally changed that condition of employ- ment as far as the Charlotte unit employees were con- cerned, because of the aforementioned company policy. The same thing holds true regarding the merit pay increas- es. They also had become a condition of employment, and were also unilaterally canceled by Respondent as regards the Charlotte unit employees, for the same reason. Respondent's grants of fringe benefits, on the other hand, had always been made applicable by Respondent at the same time to all employees corporatewide . Moore had found that, unlike the area wage rates , fringe benefits were the same throughout the geographical areas of the Respondent's plants. This condition of employment Re- spondent also changed due to the company policy regard- ing the filing of RC petitions, so that the employees at Charlotte and the Indiantown employees while the petition was pending there were excepted from the fringe benefits granted corporatewide by Respondent. Thus at the time Respondent unilaterally ended these customary longstanding procedures at Charlotte, it was in effect breaking with tradition at a time when it was, under the conditions existing there, under no obligation to bar- gain with the Union, and hence could not have been "jeop- ardizing Respondent's bargaining position." It would appear that Respondent's acknowledged policy of withholding benefits after the filing of an RC petition stems from Exhange Parts Company, 375 U.S. 405 (1964), where the Supreme Court found the employer to have vio- lated Section 8(a)(1) by conveniently granting its employ- ees a one-time wage increase just prior to the holding of an RC petition. Although that case was a case of granting benefits for antiunion purposes, the Supreme Court im- pliedly recognized the present problem of withholding ben- efits for the same purpose when it stated: The danger inherent in well-timed increases in bene- fits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is obligated. Exchange Parts represents the "velvet glove" whereas the instant case constitutes the "fist" inside. Thus the case con- stitutes no authority for Respondent's policy. An addition- al distinction between the cases is the fact that in Exchange Parts the increase was a one-time shot, whereas the bene- fits withheld from unit employees here were long-estab- lished, well-recognized annual or corporatewide ones, con- stituting, in fact, conditions of employment regarding compensation. As Respondent's brief recognized, supra, the present Board law on the subject has long been well establishes( by decisions of both the Board and the Courts. In McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1238 (1966), the Board held: 2. For the additional reasons set forth above, we also find in agreement with the trial examiner, that the Respondent violated Section 8(a)(3) and (1) of the Act by withholding the benefits which, it had led the em- ployees to believe, would be forthcoming but for the Union. The Board (at 1242) in the case also approved Trial Exam- iner Reel's decision therein that: An employer's legal duty in deciding whether to grant benefits while a representation case is pending is to determine that question precisely as he would if a union were not in the picture. If the employer would have granted the benefits because of economic cir- cumstances unrelated to union organization, the grant of those benefits will not violate the Act. On the other hand, if the employer's course is altered by virtue of the union's presence, then the employer has violated the Act, and this is true whether he confers benefits because of the union or withholds them because of the union. 4 To the same effect see also- Gates Rubber Company, 182 NLRB 95 Continued 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I also have to agree with the reasoning of the Fifth Cir- cuit Court of Appeals in N.L.R.B. v. Dothan Eagle, Inc., 434 F.2d 93, 98, 99 (1970) where the court said: At first glance it might appear that the employer is caught between the proverbial "devil and the deep blue sea." It is an unfair labor practice to grant a wage increase during the campaign and bargaining periods, but at the same time it may be an unfair labor practice to refuse to grant an increase during the same period. Indeed, the employer in this case has made just this sort of an argument, claiming that it could not grant the pressroom employees their normal progression raises since to do so would have been an unfair labor practice. We find little merit in such arguments. The cases make it crystal clear that the vice involved in both the unlawful increase situation and the unlawful refusal to increase situation is that the employer has changed the existing conditions of employment. It is this change which is prohibited and which forms the basis of the unfair labor practice charge. This policy was widely known and had been in effect for a considerable period of time. It had thus become part of the established scheme of compensation and could not be deviated from for purposes of influencing the vote during the union election. Nor could this poli- cy be changed without union consultation during the collective-bargaining period. In other words, the peri- odic increases were'such an integral part of the struc- ture of compensation that the refusal to continue these increases was in effect a denial of benefits which the employees had every reason to expect.' Here, of course, Respondent's determination to withhold the annual wage increase and corporatewide fringe benefits from unit employees only was admittedly due to the pres- ence of the Union and its having filed an RC petition. Hence this deliberate withholding of customarily granted benefits from unit employees because of the presence of the Union violated Section 8(a)(1) of the Act. Respondent cites the case of J. J. Newberry Co., Inc., v. N.L.R.B., 442 F.2d 897 (C.A. 2, 1971). The circuit there reversed a Board decision cited supra, which had followed the established general rule noted above. However a read- ing of this circuit court decision discloses that the circuit reversed the Board in this case upon the very narrow ground that the Board had failed there to make a finding of "discriminatory intent" on the part of the employer. In the event that it should be held that the Respondent's discriminatory intent here is not almost a per se finding by reason of the Respondent's singling out of the unit employ- ees at Charlotte, and subsequently excluding the Indian- town unit employees after the filing of an R petition there, (1970); May Department Stores Company d/b/a Famous-Barr Co, 174 NLRB 770 (1969); Safeway Stores, Inc., 186 NLRB 930 (1970); J. J New- berry, 183 NLRB 102 (1970); N L R.B. v. Dothan Eagle, Inc., 434 F.2d 93 (C.A. 5, 1970). 5 While not bound by the circuit's decision, as the Board has frequently emphasized, I agree fully with the court's reasoning and find it applicable to the instant case. as the only employees from which such customary and an- nual benefits were to be withheld, Respondent has still sup- plied further convincing evidence of its discriminatory in- tent. First, it refused the Union's request at Charlotte that Respondent grant these customary benefits to the Char- lotte unit employees even after assurances by the Union that it would file no unfair labor practices if such grants were made by Respondent to the unit employees. Yet after the Union lost the first election at Indiantown, it was the Respondent who requested permission from the Union to grant those benefits retroactively to the Indiantown em- ployees. The Union agreed. The result was that the Indian- town employees were promptly made whole by the Re- spondent by giving them the benefits theretofore withheld retroactive to the date the grants had been announced. There is only one explanation for Respondent's disparate attitude in these two cases : The Union had won the elec- tion at Charlotte but had lost the election at Indiantown. Quite obviously, therefore, the Respondent believed that the Indiantown employees should be rewarded for having defeated the Union whereas the Charlotte employees should be punished for voting for the Union. If such proof is still not conclusive of Respondent's dis- criminatory intent, the pamphlets distributed by Respon- dent at Indiantown prior to the election there must neces- sarily remove any doubt of the discriminatory intent. Prior to the election at Indiantown, Respondent circularized the Indiantown voters with a leaflet headed "Will History Re- peat Itself?" That heading was followed with a bargaining history at Charlotte from May 21, 1973, to May 9, 1974, when, according to the leaflet, "Union makes proposal on contract language plus 55 cents an hour to try to make up to its Charlotte members since they haven't had a raise since February 73 or benefit improvements since May of 73. " (Em- phasis supplied.) Respondent thereupon advised the voters "Don't get caught in a trap like this!!" and advocated a "No Vote." Another Respondent campaign propaganda leaflet distributed to the Indiantown employees ends up an account of the bargaining history at Charlotte with a pur- ported newspaper headline saying, "Union Asks Company to Give Wages and Benefits to Charlotte that Indiantown Has Already Received" and then, before advising a "Vote No," adds, "Will This Be Your Future?? Don't Go Down the Charlotte Road" with a picture of a highway sign in between the two sentences proclaiming a "roadblock." Thus by its own actions Respondent has conclusively proved its antiunion motivation in its withholding of bene- fits from the Charlotte unit employees. Nothing could be clearer. Finally, since the hearing in the instant case closed, the Board itself (Members Fanning, Kennedy, and Penello) has applied the sockdolager to the instant case. It agreed with the decision of Administrative Law Judge Seff in a prior Florida Steel case involving the same events in the same plant of the same company.6 In that case the Board found Respondent violated Section 8(a)(1) by threatening its Charlotte employees "to take away all benefits if our employees select the Union as their representative" and 6214 NLRB No. 59 (1974) FLORIDA STEEL CORPORATION 267 required a notice to be posted by Respondent stating that Respondent would not thus threaten its employees. The only difference between Administrative Law Judge Seff's case and the instant one is that in his case only the threats to withhold benefits were litigated whereas here the effectua- tion of those threats is the issue. Obviously, if the threat to withhold benefits violated Section 8(a)(1) of the Act, then the effectuation of those threats to the unit employees only must also violated Section 8(a)(1). Also being bound by Board decisions , I also must find that the admitted statements of supervisors of Respondent that the unit employees would receive no benefits because of the Union, as stipulated in the instant case also, violates Section 8(a)(1) of the Act. I so find. A study of the Board decisions in the 3-4 years last past makes it perfectly clear that the old, established principles and rules of labor law firmly entrenched in Board and court precedent of longstanding are at the present point in time subject to change without notice. This same study discloses that today the decision as to whether a case is found or dismissed all too often depends more on the com- position of the Board panel making that decision than upon the facts of the law of the case itself . This complete lack of decisional uniformity is well recognizable and rec- ognized. This phenomenon not only jeopardizes the de- sired end of a stable national labor policy but also the very effectiveness of the agency itself. Uniformity must be achieved if only so that the private practitioner may cor- rectly advise the client as to what the law actually is and thereby bring stability back to labor relations. This would also tend to reduce the Board's well-advertised "burgeon- ing case load" by eliminating the many cases being tried today on the gamble that a favorable panel will decide the particular case. Thus the very recent case of Bancroft Whitney Co., Inc., 214 NLRB No. 12 (1974), is of interest here as an indica- tion that the rules of law applied in the instant Decision are not yet subject to change. In the cited case Administrative Law Judge Stanley Gilbert found that "Respondent violat- ed Section 8(a)(5) and (1) by its action in withholding the 1973 wage dividend from the bargaining unit employees" but had not violated Section 8(a)(3) thereby due to a total lack of "discriminatory intent" on the part of the employer. The majority on the panel (Members Kennedy and Penel- lo) agreed that there was no discriminatory intent in with- holding the dividend and on that basis only sustained the dismissal of the 8(a)(3) allegations. The majority then dis- missed the 8(a)(5) findings of the Administrative Law Judge as follows: "This discontinuance of the bonus pay- ment to the unit employees without bargaining would be a violation of Section 8(a)(5) unless, in the circumstances de- scribed above, the Union is deemed to have waived its right to require such bargaining. Contrary to the Adminis- trative Law Judge, we find such waiver ." In his dissent Member Jenkins , indicating that the majority had changed the old rules regarding waiver, also disagreed with the find- ing that there was no "discriminatory intent" and thus would have found the 8(a)(3) violation. Thus, theoretically at least, all three members of this panel appear to agree with the law followed here. This is especially so as there can be no question here as to the Respondent's "discrimi- natory intent" and there is still no "zipper clause" waiver involved. Consequently, I find that Respondent by threatening to withhold all benefits from the unit employees in Charlotte "because of the Union" violated Section 8(a)(1) of the Act, and further that by actually withholding the numerous benefits mentioned above from the Charlotte unit employ- ees with a discriminatory intent caused by the presence of the Union also violated Section 8(a)(3) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, and occurring in connection with the Respondent's operations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative actions designed to effectuate the policies of the Act. It has been found that Respondent illegally discriminat- ed against the employees in the appropriate unit at Char- lotte by refusing to give them the customary and estab- lished annual wage increase in 1974, excepting them from the fringe benefits granted all other employees of Respon- dent corporatewide after May 21, 1973, and depriving some 17 employees who had qualified under Respondent's established plan of merit pay increases. In order to remedy these unfair labor practices I will order that Respondent make whole all of the Charlotte employees so deprived ret- roactive to the date the benefits were actually granted, or should have been granted, to the affected Charlotte em- ployees with interest thereon at 6 percent per annum. The above remedy is satisfactory as far as the fringe benefits and the merit pay plan increases are concerned as all of the facts necessary to such a determination are pres- ently known and available. However, that remedy as it applies to the annual wage increase in 1974 for the Charlotte unit employees is some- what more complicated. This complication results from the fact that Respondent canceled its usual procedures leading to that increase in December 1973 so that the usual area wage survey upon which the increase was to be determined was never made. In fact Respondent subsequently refused a request by the Union, after bargaining had commenced, to make that customary survey. Hence the facts necessary for an exact determination of the amount of the increase which would have been made by Respondent are unavail- able in the usual form as well as the exact date on which the increase would have become effective, due exclusively to Respondent's own actions. Further Respondent has en- joyed the use of the money of which it deprived the em- ployees for the whole period since December 1973, when Respondent canceled the wage increase procedure for Charlotte. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances Respondent contends that the Board cannot grant a remedy as the matter is now the "subject matter of negotiations" and further that, if it should provide a remedy, it would be illegal under the doc- trine of H.K. Porter, supra. No so, for this is a proposal to remedy an unfair labor practice already committed, and not a term of a collective-bargaining agreement still in the process of negotiations. General Counsel's brief suggests that the amount and the date of the 1974 increase be left to negotiations be- tween the Union and the Respondent or, if no agreement can be reached in those negotiations, left to a Board com- pliance proceeding. It would seem, judging from the lengthy period of time the Charlotte negotiations have al- ready taken without discernible results to date, that this proposed procedure might never achieve any results. In addition such a delay would tend only to continue the peri- od of Respondent's effective discrimination against the af- fected employees and with apparent Board approval there- of. Nor today could Respondent obtain money for its own use at such a low rate of interest. Thus this type of remedy would permit Respondent to profit by its own wrongdoing with apparent Board consent. So this suggestion hardly makes sense as a remedy even though acknowledging that the facts upon which such a remedy should be based are somewhat imprecise. But on the other hand Respondent's own actions and the chart of the annual wage increases of Respondent's plants (G.C. Exh. 34) since 1966 provide rather accurate facts upon which a definitive remedy may be fashioned now. Respondent's chart proves that the annual wage increase given the employees at Respondent's various plants aver- aged in 1974 about 40 cents per hour and were granted by Respondent at approximately the same time as in 1973. In fact, before canceled, the area wage survey at Charlotte had been scheduled for January 1974. Also, with the Union's consent, Respondent changed its "company poli- cy" after having won the election in Indiantown, a mill like the one at Charlotte, and granted the Indiantown employ- ees a 40-cent-per-hour increase retroactive apparently, strangely enough, to December 2, 1973, whereas the previ- ous 1973 increase had been granted in April of that year. Accordingly, in order not to further penalize the employ- ees to whom this money is now due and owing, due to Respondent's discrimination against them and acknow- ledging that the determination may not be as "accurate" as the wage survey procedure might have been, even with the many variables from that survey which the previous in- creases here were shown to have included, I am going to order Respondent to pay each of its employees who worked in the appropriate unit in Charlotte a sum of mon- ey equal to 40 cents per hour for each hour worked by him from on and after February 1, 1974, together with interest thereon at 6 percent per annum.? Because of the type and extent of the unfair labor prac- tices engaged in by Respondent, I sense an opposition by Respondent to the policies of the Act in general and I 7 If perchance this 40 cents per hour can be proved to be slightly inaccu- rate, I feel confident that this matter will be worked out during the negotia- tions between Respondent and the Union deem it necessary to order Respondent to cease and desist from in any manner interfering with the rights guaranteed its employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record herein I make the following: CONCLUSIONS OF LAW 1. By threatening to withhold all benefits from Respondent's employees in the appropriate unit at its Charlotte plant and by actually withholding all such bene- fits from these employees on and after May 21, 1973, when the Union filed a petition for certification in that unit, Re- spondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 2. By interfering with, restraining, and coercing its em- ployees in the rights guaranteed them in Section 7 of the Act, Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions 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' Respondent Florida Steel Corporation, Tampa, Florida and Charlotte, North Carolina, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Threatening to withhold all benefits from the Respondent's employees in the appropriate unit at Char- lotte and actually withholding all such benefits from these employees on and after May 21, 1973, because of the Union or because the Union filed a petition for certifica- tion in such unit. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Grant to all employees in the appropriate unit at Charlotte all the fringe benefits granted to the employees of Respondent corporatewide except for those at Charlotte retroactive to the time that such grants were made. (b) Make whole all those employees in the appropriate unit at Charlotte who had qualified for merit pay increases on and after January 14, 1973, by paying each of them a sum of money equal to that which he would have earned at the new rate each would have been paid if Respondent had not withheld his merit increase with interest thereon at the rate of 6 percent per annum. 6 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. FLORIDA STEEL CORPORATION 269 (c) Make whole all the employees in the appropriate unit at Charlotte by paying each of them a sum of money equal to that which he would have earned on and after February 1, 1974, at an increase of 40 cents per hour for the hours each worked thereafter with interest thereon at the rate of 6 percent per annum in accordance with the recommendation set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its Charlotte, North Carolina, plant copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9In 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 by 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 "