Florida Steel Corp.

FLORIDA STEEL CORPORATION Florida Steel Corporation andUnited Steelworkers of America, AFL-CIO. Cases 11-CA-5943 and 11- CA-5946 September 23, 1976 SUPPLEMENTAL DECISION AND - CLARIFICATION OF ORDER On November 20, 1975, the National Labor Rela- tions Board issued a Decision and Order I in the above-entitled proceeding in which it found that the Respondent has engaged in unfair labor practices within the -meaning of Section 8(a)(1) and (3) of the Act. The Board ordered, inter alia, that the Respon- dent cease and desist from refusing to institute its new quarterly wage review policy (TEAM) and from refusing to grant wage increases thereunder pursuant to such review to bargaining unit employees at its Charlotte plant, Croft, North Carolina, and from withholding certain fringe benefit increases, listed in footnote 3 of the Decision, from these employees. Thereafter, on December 5, 1975, the General Counsel filed a motion for reconsideration and to modify the Decision and Order of the Board in which it contends, inter alia, that "it would appear" the Board has limited monetary recovery to the pay raises employees would have received from August 15, 1974, to April 19, 1975, when the complaint is- sued, without ordering ongoing implementation of the TEAM policy of quarterly wage reviews and in- creases, if applicable. The General Counsel similarly interprets the remedy for withholding of corporate- wide fringe benefits as impliedly limited to April 23, 1975, the date of the hearing when amendment was made to include then recent fringe benefit withhold- ings, and contends that the instant unfair labor prac- tice case warrants a broader remedial order. On December 12, 1975, the Charging Party (Unit- ed Steelworkers of America, AFL-CIO, herein called the Union) also filed a motion for reconsideration and/or clarification of the Decision and Order of the Board in which it suggests that the Board remove from the remedial language in its Decision reference to granting "the same" increases to unit and nonunit Charlotte employees, which tends to imply that the Board has found that nonunit employees traditional- ly receive the same TEAM increases as unit employees, when, in fact there is no evidence on the issue, and the history of such increases indicates, that produc- tion and maintenance employees "traditionally re- ceive increases considerably greater than those grant- ed to nonunit employees." It approves that part of '221 NLRB 554. 123 the Board language declining to set a specific hourly amount for the omitted TEAM increases. It also sug- gests the feasibility of the Respondent's conducting a wage survey to ascertain wages appropriate at an ear- lier point in time. Also received, on December 12, was Respondent's motion to strike the General Counsel's motion. It contends that "drastic" changes in the remedy are requested embracing matters not alleged or litigated; that the remedy here follows the appropriate remedy already considered and resolved in the earlier case reported at 220 NLRB,260 (1975), which is currently pending on review before the Court of Appeals for the District of Columbia. In its covering letter of De- cember 10, Respondent states that it is "operating on the assumption" that under the Board's Rules and Regulations, Section 102.48(d) and 102.49, no re- sponse on the merits by it would be acceptable.,unless directed by the Board, hence its motion to strike is directed solely to the "jurisdictional question" of whether the General Counsel's motion is proper at this time. In view of the foregoing, the Board, on February 11, 1976,_ issued to Respondent a Notice To Show Cause why the Decision and Order should not be modified to include certain of the changes requested by the General Counsel and the, Charging Party. In its response to the notice, the Respondent contends, inter alia, that it would be inappropriate to require it to grant the TEAM wage increases and benefit im- provements to the Charlotte employees who are rep- resented by a certified bargaining agent 2 because said increases are mandatory subjects of bargaining. Further, Respondent asserts that, as the Board de- nied the Motion for Summary Judgment and direct- ed a hearing 3 in Florida Steel Corporation,4 involving the same parties and the same issues as raised here- in,' it would be anomalous for the Board herein to change its Order as requested by the General Coun- sel because the purpose of the directed hearing is to decide those issues raised by the General Counsel's motion for reconsideration. The General Counsel has since filed an opposition to the Employer's response to theiNotice To Show Cause, emphasizing that "the need for an open-end- ed remedy" was not revealed until it became clear that the Respondent "had embarked upon a career of 2 The Union was certified on January 11, 1974 3 In fact, the Board denied the Motion for Summary Judgment because the Respondent, having originally admitted in its answer to the complaint to withholding wage and benefit increases from the Charlotte unit employees because they selected the Union, amended its answer to deny any withhold- ing for that reason 222 NLRB 586 (1976) 5 The issues are the same in the sense that the failure to institute the quarterly wage review has been asserted with respect to a new quarter No fringe benefits are involved 226 NLRB No. 25 124 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD continuing to violate the Act in the identical fashion as it previously had...." It contends' that the Board's reason for denying the Motion for Summary Judgment in the later, Volume 222 case,. involves only a factual dispute having no relevance to modifi- cation of remedy in the instant case, and renews its request for modification of the Order. Having -carefully considered the matter, we have decided to issue this supplemental decision for the purpose of eliminating possible ambiguity to the ap- plication of our original order of November 20, 1975, though, as it stands, it represents an on-going man- date to "cease and desist from refusing to institute" in the Charlotte unit the corporatewide wage review policy and wages thereunder, and to grant the fringe benefits normally applied to all facilities. By its Decision and Order, the Board intended Re- spondent to fully implement at Charlotte its new quarterly wage review policy and give wage increases thereunder to Charlotte unit employees in the appro- priate amount but not necessarily the same as that given nonunit employees at Charlotte, and to grant to those -employees all the fringe benefit improve- ments granted corporatewide to Respondent's other employees. These wage and benefit increases are to be granted without further delay, even though,'Re- spondent is engaged in bargaining with the Charlotte employees' certified bargaining representative, unless the Union now objects.6 Contrary to the Respondent's assertions, this order does not substitute the Board's judgment on a specif- ic wage policy for the judgment of the bargaining parties. The parties are free to vary this policy by agreement arrived at, through good-faith collective bargaining. In the meantime, however, in the context of this case where the certified Union in an atmo- sphere charged with hostility to unionization has re- quested that the wage policy be implemented, the Respondent may not refuse to provide unit employ- ees with the benefits of a wage policy which they would receive but for their selection of the Union as their collective-bargaining representative, nor may Respondent refuse to provide them with the fringe benefits granted on a corporation wide basis. In reaching our Decision, we are mindful of the principal that an employer "in a context of good- faith bargaining, and absent other proof of unlawful motive," is priviledged to withhold from organized 6 Our original decision noted at fn. 5 that the Union at a bargaining session on November 7, 1974, requested that the r s wage policy be imple- mented. employees wage and benefit increases granted to un- organized employees or to condition their grant-upon final contract settlement 7 However, Respondent's history of unfair labor practices similar to those com- mitted herein,' and its recent history of other types of flagrant violations,' indicate a course of unlawful conduct taken by Respondent in the service of de- signs inimical to the collective-bargaining process. As we find Respondent's withholding action to be a part of its unlawful conduct, we view said withholding as repugnant to statutory policy, not to be justified as conduct serving legitimate interests of the Respon- dent. Accordingly, we hereby clarify our order by pro- viding that the Respondent's obligation to pay fringe benefits granted corporatewide and to implement the TEAM wage policy corporatewide, which obligation was specifically made retroactive, continued during the period that has intervened from the date of the original Decision (November 20, 1975) until the date of this Supplemental Decision. In addition, Respon- dent in the future is to notify the bargaining repre- sentative of the imminent implementation of sched- uled TEAM increases , and corporatewide fringe benefits and offer to, place said benefits into effect for unit employees at Charlotte unless the Union as bargaining representative objects.10 Further, as Respondent's course of unlawful con- duct has the foreseeable consequence of frustrating the bargaining process,'' we order as part of the rem- edy for this conduct that the Respondent furnish the Regional Director of Region 11 with a sworn report within 15 days following each notification to the bar- gaining representative that a TEAM or fringe benefit has been offered to unit employees through their bar- gaining representative, of the fact of that offer and its action with respect thereto. It is hereby ordered that the original Decision and Order, shall be read in the light of the above discus- sion, including the specific additions of the three sen- tences immediately, above. 7 Shell Ohl Company, Incorporated and Hawaii Employers' Council, 77 NLRB 1306 (1948); Chevron Oil Company, Standard Oil Company of Texas Division, 182 NLRB 445 (1970). 8 See Florida Steel Corporation cases at 220 NLRB 260 (1975); 220 NLRB 1201 (1975), enfd. 538 F.2d 324„ (C A. 4, 1976), 221 NLRB 371 (1975); 221 NLRB 554 (1975) 9 See Florida Steel Corporation cases at 214 NLRB 264 (1974); 215 NLRB 97 (1974), 220 NLRB 225 (1975); 222 NLRB 955 (1976), 223 NLRB 174 (1976). 10 Nothing contained in this Decision is intended to operate in derogation of the rights and obligations of the parties to recast their relationship with respect to such matters through good-faith collective bargaining. We note that the Union herein has been certified for nearly 2-1/2 years and there is no evidence that any meaningful bargaining has taken place.