Public Service Electric And Gas Co.

PUBLIC SERVICE ELECTRIC CO. Public Service Electric and Gas Company and Utili- ty Co-Workers Association. Case 22-CA-13172 18 June 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 19 November 1984 Administrative Law Judge Raymond P. Green issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Public Service Electric and Gas Compa- ny, Newark, New Jersey, its officers, agents, suc- i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We agree with the judge, for the reasons set forth by him , that the Respondent violated Sec. 8(ax5) and (1) of the Act by insisting on the modification or abrogation of the retroactivity clause contained in art. XX of the parties' 1982-1984 collective-barganung agreement . We further find, however, that the judge's recommended Order fails to fully remedy the violation found . As set forth in the judge's decision, art XX of the 1982-1984 collective-bargaining agreement provided that any "new or amended Agreement shall be retroactive to the date of expiration of this Agreement." Thus, prior to the 1984 negotiations, the parties had already bargained about and agreed on the retroactivity of a successor agree- ment. Further, it is undisputed that the Union's sole reason for not sign- ing the proposed successor agreement was the Respondent's refusal to make the general wage increase retroactive to I May 1984 as the Re- spondent was obligated to do under art. XX of the 1982-1984 agreement, and that the parties had agreed to all other terms of the successor agree- ment. Under the particular circumstances of this case , therefore, we find that it is appropriate to order the Respondent to execute a contract re- fiectmg the parties' agreement, including their previous agreement on ret- roactivity. Accordingly, we shall order the Respondent, on request by the Union, to execute a new contract embodying the terms of its 25 April 1984 final offer as modified to make the general wage increase effective 1 May 1984 It is likewise appropriate to order the Respondent to make whole the employees m the appropriate unit for any losses caused by the Respond- ent's refusal to make the wage increase retroactive pursuant to the 1982- 1984 agreement to be computed as prescribed in Ogle Protection Service, 183 NLRB 682 (1970) Interest on such amounts shall be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). We shall modify the Order and issue a new notice accordingly. 429 cessors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) On request, reduce to writing and execute a contract embodying the terms of the Company's 25 April 1984 offer as modified to make the general wage increase effective retroactively to 1 May 1984." 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) Make whole the employees in the appropri- ate unit for any losses suffered as a result of the Respondent's failure to make the wage increase ef- fective retroactively to 1 May 1984, with interest." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with the Utility Co-Workers Association by insisting to impasse or insisting as a condition of entering a new agreement on the modification or abrogation of article XX, section 2, of the 1982-1984 collec- tive-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL notify the Union that we will not insist to impasse or insist as a condition of reaching a new agreement on the modification or abrogation of article XX, section 2, of the 1982-1984 collec- tive-bargaining agreement. WE WILL, on request, reduce to writing and exe- cute a contract embodying the terms of our 25 April 1984 offer as modified to make the general wage increase effective retroactively to I May 1984. WE WILL make whole the employees in the ap- propriate unit for any losses suffered as a result of our failure to make the general wage increase ef- fective retroactively to 1 May 1984, with interest. PUBLIC SERVICE ELECTRIC AND GAS COMPANY William F. Grant, Esq., for the General Counsel. 280 NLRB No. 48 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francis A. Mastro, Esq. (Apruzzese & McDermott), of Springfield, New Jersey, for the Respondent. Victor J. Parsonne4 Esq. (Reitman, Parsonnet, Maisel & Duggan), of Newark, New Jersey, for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me in Newark, New Jersey, on Sep- tember 11, 1984. The charge was filed on April 10 and the complaint was issued on May 31, 1984. In substance, the complaint alleges that despite a provision in the 1982 to 1984 collective-bargaining agreement providing for retroactivity for any new agreement reached following the contract's expiration date, the Respondent insisted in effect, during the 1984 negotiations, that such provision be given no force or effect. On the entire record in this proceeding, including my observation of the demeanor of the witnesses,' and after considering the briefs filed, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation with an office and place of business in Newark, New Jersey, is engaged in the purchase, production, transmission, storage, sale, and distribution of natural gas and electricity. During the 12 months preceding the issuance of the complaint, Re- spondent's gross revenues were in excess of $250,000. Respondent admits that it is an employer, engaged in commerce, within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED Utility Co-Workers Association (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE OPERATIVE FACTS For many years, the Union has been the recognized collective-bargaining representative of certain employees of Respondent in the following appropriate unit. All employees of the Company's District Offices, Customer Payment Processing Center and Custom- er Inquiry and Accounting Centers, except employ- ees in supervisory, confidential and Marketing Serv- ices Department positions. Since 1949, the Union and the Company have entered into successive contracts, the last of which, prior to the most recent negotiations, had a term from May 1, 1982, to April 30, 1984. All these contracts contained a provi- sion at article XX, section 2, which reads as follows- ' The only witness who testified was Peter Fiorini, the Union's presi- dent and chief spokesman during the 1984 contract negotiations. During negotiations following such written notice, this Agreement shall continue in effect; and such new or amended Agreement as shall result from such negotiations shall be retroactive to the date of expiration of this Agreement. In relation to the foregoing provision (the retroactivity clause), the record shows that from 1949 to 1980 the wage rate provisions of each new contract have been ap- plied retroactively to the expiration date of the preced- ing contract. However, in 1982 the Company took the position during negotiations that any new agreement on wages should not be made retroactive to the preceding contract's expiration date. At that time, although the Union took the position that the retroactivity clause was still in effect, it nevertheless executed a new contract which contained the following provision: A general wage increase of 7.5% effective May 1, , 1982 or date of ratification which ever is later. When, subsequent to the 1982 to 1984 contract's ratifi- cation and execution, the Company refused to make wage payments retroactive to the preceding contract's expiration date, the Union filed an unfair labor practice charge which was the subject of an adjudication by the Board at 269 NLRB 467 . In its decision, which issued on March 28, 1984 (right in the middle of the 1984 negotia- tions), the Board dismissed the complaint and disagreed with the administrative law judge's reliance on Henry T Siegel Co., 147 NLRB 594 (1964), enfd. 340 F.2d 309 (2d Cir. 1965). The Board stated (269 NLRB at 468): The instant case presents a different situation. The Respondent offered the Union a package which included a wage increase without retroactivity. The Union expressed its disagreement and insisted that the wage provisions be made retroactive to the ex- pired agreement. The Respondent, however, was as equally adamant that there would be no retroactiv- ity and maintained that position both before and after the parties reached accord on the terms of the new agreement. Significantly, that agreement specif- ically provided for no retroactivity and, in that form, was ratified by the membership and executed by the Union. The Union's execution of the new collective-bargaining agreement containing a provi- sion that specifically excluded retroactivity made article XX of the prior collective-bargaining agree- ment a nullity regarding that provision. Thus, the Union by ultimately accepting the contract bar- gained away its claim to retroactivity with respect to wages. Before discussing the 1984 negotiations, it is interesting to note that notwithstanding the Respondent's position vis-a-vis retroactivity in the 1982 negotiations, it did not object to a continuation of article XX, section 2, in the 1982 to 1984 contract. In fact this contract, as all con- tracts since 1949, continued to contain the retroactivity clause. PUBLIC SERVICE ELECTRIC CO. The 1984 negotiations commenced on February 27. (As noted above the existing contract was scheduled to expire on April 30.) The chief negotiator for the Union was its president, Joseph Fiorini, and the Respondent's spokesman was Roland J. Stickle . At the first session, Stickle announced, during an exchange of opening state- ments, that the Company unequivocally would refuse to pay retroactive wages if an agreement was not reached until after May 1. Fiorini did not respond at this time, feeling that he would wait until negotiations ensued in earnest. The record shows that at various times during the ne- gotiations the Company reiterated its position that it would not agree to have wages retroactive to the exist- ing contract's expiration date. In contrast, Fiorini, at sev- eral meetings in March and April, stated the Union's po- sition that it expected the Company to comply with the retroactivity clause and that the Company would be vio- lating the law if it insisted on forcing the Union to bar- gain about this subject. The evidence shows that in response to the Company's adamant position regarding the retroactivity issue, the Union filed its charge in the instant case on April 10 and requested that the Board seek injunctive relief pursuant to Section 10(j) of the Act. That request for 10(j) relief was denied. Thereafter, about April 22 or 23, Fiorini told Stickle that the Union would not sign any new agree- ment if the Company did not honor the retroactivity provision in the contract that was about to expire. Notwithstanding the Union's assertion that the Compa- ny could not insist on noncompliance with the existing contract's retroactivity clause, the Company on April 25, as part of its final offer, proposed a new contract where- in the wages would be retroactive to May 1 or to the date the contract was ratified, which ever occurred last. On April 30 Fiorini met with the Union's executive board to review the status of the negotiations. In this regard, the evidence shows that the executive board de- cided, inter alia, (1) not to appeal the Board's decision at 269 NLRB 467; (2) to notify the membership through its local chairman that the Union had filed an unfair labor practice charge regarding the Company's position as to retroactivity; and (3) to place the Company's final offer before the membership and to recommend its ratification. On May 2 the Union's membership, at meetings con- ducted by the Union's local chairmen, ratified the Com- pany's final offer. On the same day, Stickle was notified of the ratification vote. On May 4 Stickle indicated to Fiorini that he wanted to expedite the contract's signing. In response, Fiorini stated that the Union would not sign the contract unless the Company agreed to make the wage payments retro- active to May I or agreed to a statement to the effect that signing the contract would not preclude or preju- dice the Union from pressing its charge at the National Labor Relations Board. Since that date the contract has remained unsigned, although the Company has put into effect the wage and benefit provisions of the contract retroactive to May 2, the date of ratification. IV. ANALYSIS 431 Initially noted is that all parties to this proceeding agree that this matter should not be deferred to arbitra- tion. Accordingly their wishes will be respected in this regard. Secondly, contrary to Respondent's argument, it seems clear to me that the intent of article XX, section 2, of the 1982 to 1984 contract was to make the terms and condi- tions of any new agreement, including wages, retroactive to the expiration of the 1982-1984 contract. Section 8(d) of the Act sets forth the definition of good-faith bargaining, an obligation binding on employ- ers under Section 8(aX5) of the Act, and on unions pur- suant to Section 8(b)(3) of the Act. Section 8(d), along with Section 301(a) of the Act,2 also embodies the idea that once parties to a collective-bargaining relationship have made a contract, each side is bound to honor its re- spective contractual obligations during the lifetime of the agreement, absent the other side's consent to modify its terms. Thus, Section 8(d) states, inter alia: The duties so imposed [under Sec. 8(dX2), (3), and (4)] shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Therefore, under the provisions of Section 8(d), if one party to a contract wishes to modify an existing term during the life of the agreement, it must obtain the con- sent of the other side for such a modification. It is not enough that the party seeking the change is willing to bargain in good faith concerning the proposed alteration. The present case is somewhat unusual because the ret- roactivity provision in the 1982-1984 contract (art. XX, sec. 2) does not become operative until after that con- tract expires. This does not mean, however, that such a term is perforce unenforceable and void. In Capital City Lumber Co., 263 NLRB 784 (1982), the Board held that an employer who had made an agreement to pay moneys to certain funds beyond the expiration date of the con- tract was obligated to continue such payments notwith- standing the expiration of the rest of the agreement. Similarly, although the Board has held that interest arbi- tration clauses (agreements to arbitrate the terms of a new contract on expiration of an old contract) are non- mandatory subjects of bargaining, it has also stated that such clauses in an existing contract are enforceable except to the extent of perpetuating the interest arbitra- tion clause for subsequent contracts. Sheet Metal Workers Local 263 (Sheet Metal Contractors), 272 NLRB 43 (1984). That is, when a contract has an interest arbitra- tion clause, that clause will be enforceable, within limits, 2 Sec. 301(a) states, "Stuts for violation of contracts between an em- ployer and a labor organization . may be brought in any district court of the United States having jurisdiction of the parties , without respect to the amount in controversy or without regard to the citizenship of the parties 11 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD even though it would not normally become operative until the contract in which it is found has expired. In view of the above, it is my view that the retroactiv- ity clause in the 1982-1984 contract was an enforceable provision of that contract even though it was not to become operative until the contract in which it was con- tained had expired. Also, as it clearly was intended to govern the date on which wages and other benefits of a new contract were to become effective, it seems to me that the retroactivity clause can only be construed as a mandatory subject of bargaining. Therefore, as I view the clause as involving a mandatory subject and as it is embodied in an agreement for a fixed period , it would follow, under Section 8(d), that neither party to that agreement would be free to modify or abrogate the clause absent the consent of the other side. Further, I view consent as a manifestation of a voluntary agreement as opposed to an agreement brought about through the exercise of unlawful pressure by one party on the other. As noted above, the retroactivity clause has been em- bodied in successive collective-bargaining agreements since 1949. If either the Company or the Union wanted to eliminate that clause either could have, during con- tract negotiations, insisted to impasse that the clause be dropped. Yet the Company did not do so and the clause was continued in the 1982-1984 contract. The evidence shows that notwithstanding the contin- ued existence of the retroactivity clause, the Company at the commencement of negotiations for a new contract in 1984 took the position that it would not agree to pay wages retroactive to the expiration date of the extant contract unless a new contract was ratified on or before that date. By taking this position throughout the negotia- tions from February through April 1984 over the objec- tions of the Union's negotiating team, it seems to me that the Respondent was seeking to modify or alter a term and condition (art. XX, sec. 2) of the 1982-1984 contract. By itself, of course, the fact that the Company was seek- ing to modify an existing contractual provision would not constitute an unfair labor practice . After all there is no harm in asking. However, the same cannot be said when the Respondent, on April 25, as part of its final offer in effect conditioned its agreement to any new col- lective-bargaining agreement on the Union's "consent" to the abrogation of an existing and enforceable contractual obligation. In my opinion, in so doing the Company's po- sition was tantamount to making any new collective-bar- gaining agreement hostage to the Company's insistence on abrogating an existing contractual commitment. What's more, the proposed abrogation was a matter which the Union, during these negotiations, was not even under obligation to discuss. Therefore, the Union could rightfully have insisted that it should not even be on the bargaining table. In viewing the facts up to and including April 25, 1984 (when the Company made its final offer ), it seems to me that the inescapable conclusion would be that as of that moment in time (April 25) the Company was in violation of Section 8(a)(5) of the Act. The problem for me arises from the fact that the Union's executive board agreed to place the Company's final offer before its membership with a recommendation that it be ratified . The Respond- ent urges that the Board's prior decision at 269 NLRB 467 is dispositive of the present case, as it contends that the facts herein are substantially the same . The General Counsel contends, however, that the facts in the present case are distinguishable . I agree with the General Coun- sel. Unlike the previously decided case, the Union this time did not merely object to the Company's attempt to abrogate the retroactivity clause . Rather, while the nego- tiations were still in progress, it sought to compel the Company to drop this matter by filing an unfair labor practice charge with Region 22 of the Board . Thus, in filing the unfair labor practice charge, the Union placed the matter before the appropriate legal forum. Unfortu- nately, the prosecution of an unfair labor practice case can take several years, and the filing of the charge (which cannot impose any immediate sanction) obviously did not convince the Respondent to withdraw its negoti- ation position vis-a-vis the retroactivity issue. Second, the evidence suggests that although the Union's executive board urged ratification of the Compa- ny's final offer, it also at the same time advised the mem- bership that it had filed the unfair labor practice charge. In this respect, it therefore cannot be said that either the Union's leadership or its membership unequivocally ac- cepted the Company's final offer with its negation of ar- ticle XX, section 2, insofar as wages. Third, unlike the prior case where the Union executed an agreement which did, in effect, supersede article XX, section 2, the Union in the present case refused to execute the agree- ment unless, pursuant to article XX, the Company paid the wages agreed to in the new contract retroactive to the expiration date of the old contract. Finally, even if one were to construe the act of ratifi- cation as evincing a form of agreement, I do not believe, in the circumstances of this case, that such agreement would constitute the requisite consent required for there to be a lawful modification of an existing contractual ob- ligation as required by Section 8(d) of the Act. As noted above, it seems to me that when the Respondent made its final offer on April 25 , it acted contrary to the provisions of Section 8(d) and Section 8(a)(5) by insisting as a con- dition of reaching a new agreement that a contractual obligation to which it then was legally bound be abrogat- ed. As such, it is my opinion that the Company unlaw- fully was holding any new collective-bargaining agree- ment hostage to its unlawful insistence on a current and binding contractual obligation. Therefore, as the ratifica- tion followed and as to some degree at least was a conse- quence of the Company's illegal conduct, I cannot view the membership's ratification of Respondent's final offer as constituting a voluntary consent on the part of the Union. V. THE REMEDY Having found that Respondent has violated the Act in certain respects and that such violation affects commerce within the meaning of Section 2(6) and (7) of the Act, it is recommended that it cease and desist therefrom and take certain affirmative action to effectuate the purposes and policies of the Act. PUBLIC SERVICE ELECTRIC CO. The General Counsel's brief does not suggest any par- ticular relief for the alleged violation .3 However the complaint, at paragraph 13, alleges that the Respondent has failed and refused to pay the retroactive pay in ac- cordance with article XX. I therefore assume from that allegation that the General Counsel seeks a backpay remedy which I shall not grant. It is my conclusion that the only violation in this case involves the Company's insistence on abrogating the ret- roactivity clause in the 1982-1984 contract as a condition of reaching a new collective-bargaining agreement. By its terms, the retroactivity clause in the 1982-1984 agree- ment only becomes operable and can only be breached if and when a new contract is reached by the parties. Yet I also must conclude that no new contract was reached be- cause the Union never accepted the Company's final offer. That is, the Company's final offer contained a pro- vision which made wage increases retroactive to May 1, 1984, or the date of ratification, whichever is later. It is, in fact, this condition which the Union objected to and which the General Counsel contends is inconsistent with article XX of the 1982-1984 contract. Indeed, were I to find that the Union accepted the Company's final offer in toto, I could not find the violation of the Act as alleged by the General Counsel. It might be argued that as the Company's final offer contained a provision which, under Section 8(d), the Union did not have to discuss or consider the Company's offer should be construed as being subject to acceptance even if the Union rejected the objectionable provision on wage retroactivity. Thus, under this theory the Union might contend that it could legally ignore the wage ret- roactivity provision of the Company's last offer and accept the remaining portions thereof, whereupon a new agreement would come into existence and therefore make operable article XX of the 1982-1984 agreement. Under such a theory, backpay would be warranted be- cause the new contract would be retroactive to May 1, 1984, the date the old contract expired, rather than May 2, the date the employees ratified the Company's last offer. The above-noted theory seems to me, however, to be inconsistent with the facts as they stand and with pre- vailing legal precedent.4 The simple fact is that the Com- 8 The Union did not file a brief. 4 I view Nordstrom, Inc., 229 NLRB 601 (1977), as being analogous to the case herein In Nordstrom the company made a package contract offer that included both mandatory and nonmandatory subjects of bar- gaining The union accepted the company's offer, but only insofar as the mandatory subjects were concerned. Based on that acceptance, the union asserted that a contract had come into existence, which contract con- tained only the agreements on the mandatory items. The union therefore argued that the company violated the Act when the company refused to execute the union's version of the agreement. The Board disagreed and stated. That a party may not lawfully insist upon the inclusion of propos- als nonmandatory in nature is, of course, clear But the General Counsel's case moves, in our view, beyond that proposition to the extent that it negates the considerable relationships which may exist between both mandatory and nonmandatory subjects Certainly, non- mandatory subjects (for present example, a demand that reinstate- ment rights of certain discharges and, presumably, backpay for them be waived), can, as a function of cost, bear upon a party's wage-in- crease proposals. To say that the proponent of the reinstate- ment/backpay waiver cannot insist upon the inclusion of such a pro- 433 pany made an offer which the Union, by its leadership, refused. As article XX, section 2, of the 1982-1984 agreement could only become operative on the condition that a new contract be made, that condition not having been met, no backpay remedy can be justified. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- s ORDER The Respondent, Public Service Electric and Gas Company, Newark, New Jersey, its officers , agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with Utility Co- Workers Association by insisting to the point of impasse or as a condition of reaching a new collective-bargaining agreement on provisions which would, in effect, abro- gate or modify article XX, section 2, of the 1982-1984 collective-bargaining agreement. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify the Union that it will not insist to impasse or as a condition of entering into a new collective-bar- gaining agreement on the modification or abrogation of article XX, section 2, of the 1982-1984 collective-bar- gaining agreement. (b) On request, bargain collectively with the Union for the employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employ- ment and if agreement is reached embody such agree- ment in a written and signed collective -bargaining agree- ment. The appropriate unit is as follows: All employees of the Company's District Offices, Customer Payment Processing Center and Custom- er Inquiry and Accounting Centers, except employ- ees in supervisory, confidential and Marketing Serv- ices Department positions. (c) Post at its office in Newark, New Jersey, copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- posal means no more than that. It does not mean that once, out of necessity, the nonmandatory proposal is removed from the table, the proponent of the nonmandatory subject is not permitted to alter those proposals which are mandatory in light of the removal of the nonmandatory subject. See also Good GMC, Inc, 267 NLRB 583 (1983) 5 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses a If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thorized representative, shall be posted by the Respond- that the notices are not altered, defaced, or covered by ent immediately upon receipt and maintained for 60 con- any other material. secutive days in conspicuous places including all places (d) Notify the Regional Director in writing within 20 where notices to employees are customarily posted. Rea- days from the date of this Order what steps the Re- sonable steps shall be taken by the Respondent to ensure spondent has taken to comply.