Bethlehem Steel Corp.

254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bethlehem Steel Corporation and Industrial Union of Marine and Shipbuilding Workers of Amer- ica, AFL-CIO. Case 5-CA-16582 16' March 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT Upon a charge filed by Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO on 31 July 1984 and amended on 9 May 1986, the General Counsel of the National Labor Relations Board issued a complaint on 12 May 1986 against Bethlehem Steel Corporation (the Re- spondent) alleging that it has violated Section 8(a)(5) and (1) and Section 8(d) of the National Labor Relations Act by negotiating and implement- ing agreements with the National Union's affiliated Local 33, thereby changing terms and conditions of existing collective-bargaining agreements without bargaining with the National Union. On 23 May 1986 the Respondent filed an answer admitting in part and denying in part the allegations of the com- plaint, and raising certain affirmative defenses. On 12 August 1986 the General Counsel filed a Motion for Summary Judgment. On 14 August 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The General Counsel submits that the Board's prior Decision and Order in Shipbuilders (Bethle- hem Steel), 277 NLRB 1548 (1986), involving the same parties, contains specific factual findings which collaterally estop the Respondent from as- serting any contrary facts here and provides a com- plete basis for the Board to resolve the 8(a)(5) and (1) and 8(d) issues presented, so that there are no genuine issues of material fact requiring an eviden- tiary hearing before an administrative law judge. The Respondent's answer and response deny any unlawful conduct. The Respondent's denial is pre- mised on the contention that the National Union had notice of and consented to negotiation of the bargaining agreements at issue. The Respondent also asserts the affirmative defenses that: the Gen- eral Counsel is estopped from issuing the instant complaint because the Respondent reasonably relied on the General Counsel's actions against the National Union in the prior litigation; the prayer for -prospective remedial relief is moot by virtue of negotiation of a new -collective-bargaining agree- ment which became effective 17 March 1986; equi- table considerations require the tolling of backpay; and implementation of changes - from the- extant agreements with the National Union concerning traditionally local issues were privileged. We find no merit in the Respondent's arguments for the rea- sons set forth below. The prior case involved alleged 8(b)(1)(A) and (3) violations by the National Union in interfering with implementation of "Settlement Agreements" negotiated between the Respondent and Local 33. The Board adopted the administrative law judge's dismissal of the complaint as well as the following determinative findings: In 1981 the Respondent, the National Union, and Local 33 entered collective- bargaining agreements expiring 19 August 1984, which covered, inter alia, separate production and maintenance and salaried plant clerical units of em- ployees at the Respondent's Sparrows Point, Mary- land shipyard facility; Bethlehem obtained agree- ment from Local 33 for early negotiations to open and modify the 1981 agreements and attempted to negotiate a complete agreement with Local 33 de- spite a past practice of negotiating wage and bene- fit issues with a bargaining committee dominated by the National Union; Bethlehem and Local 33 concealed from the National Union the fact that plenary negotiations involving substantive terms were being conducted; in March 1984 the Re- spondent and Local 33 signed two "Settlement Agreements" which purported to set aside the ex- isting contracts between the Respondent, the Na- tional Union, and the Local; the Respondent imple- mented the settlement agreements on 1 April 1984, thereby freezing the wages of current employees, reducing the cost-of-living adjustment, reducing the wages and benefits of new hires, and instituting a profit-sharing program; the National Union did not clearly and unmistakably waive its rights under Section 8(d) of the Act to object to implementation of midterm changes in its agreements with the Re- spondent;1 the settlement agreements were not ne- 1 The Respondent mistakenly relies on the administrative law judge's fmdmg in an EAJA suit involving the same parties that the National Union did not stop the members' ratification vote after learning of negoti- ations between the local union and the Respondent, as support for its contention that the administrative law judge's factual analysis in the un- derlying 8(b)(3) case was flawed. Initially we note that this finding is not a departure from the judge's findings in the underlying case which the Board affirmed, in which the judge concluded from the overall circum- stances of the case that the National Union had made it clear to the local and the Company that it "did not intend to meekly step aside and allow its contractual existence with Bethlehem to be negotiated away " Ship- builders (Bethlehem Steel), supra, 277 NLRB at 1565 Secondly, the ad- mmistrative law judge's review of these facts in light of an EAJA suit in which the determination is whether the General Counsel had sufficient grounds upon which to issue complaint requires a different analysis which is simply not relevant to the case at hand 283 NLRB No. 38 BETHLEHEM STEEL CORP. 255 gotiated or approved by the National Union or by any of its actual or apparent agents; the settlement agreements purporting to modify or terminate the National Union's agreements with the Respondent were null and void;, and the actions of the National Union challenged in the consolidated complaint were lawful. With respect to the instant Motion for Summary Judgment, a review of the complaint's allegations, the Respondent's answer, and the Board's prior de- cision reveals that the Board's prior decision con- tains specific factual findings which are directly contrary to each of -the points the Respondent's answer places in issue. Specifically, contrary to the Respondent's position that it negotiated the settle- ment agreements with the knowledge and consent of the National Union, the Board has found that the National Union was not aware of and did not consent to the negotiations of the settlement agree- ments, nor did the National Union or any author- ized agent approve the agreements. Also contrary to the- Respondent's position, Respondent's imple- mentation of the settlement agreements was found by the Board to be an abrogation and midterm modification of the existing 1981-1984 collective- bargaining agreements, in violation of the repre- sentative status of the National Union and its rights under Section 8(d) of the Act. Finally, contrary to the Respondent's contention here, determinative findings in the earlier case establish that the Re- spondent failed to give the requisite notice and op- portunity to bargain to the National Union prior to the Respondent's implementation of the settlement agreements. These factual findings unequivocally establish the Respondent's violation of Section 8(a)(5) and (1) and Section 8(d) in the instant case. Because these findings of fact were fully and fairly litigated and necessarily decided in the Board's prior decision, the Respondent is collaterally estopped from reliti- gating the facts supporting the allegations of the complaint in the instant proceeding.2 The Respondent's affirmative defenses likewise raise no genuine issue of material fact warranting an evidentiary hearing. With respect to the Re- spondent's equitable estoppel contention, we note that the Respondent actually engaged in the al- leged unlawful conduct prior to any action by the General Counsel. Thus, it cannot now allege detri- mental reliance on the General Counsel's decision to hold the instant charge in abeyance pending, res- 2 Generally, a-factual finding which was necessary to support the judg- ment to a prior proceeding will bar relittgation on that issue in a subse- quent proceeding involving the same parties. See Montana v. US, 440 U.S 147, 153 (1979); Parklane Hosiery Co. Y. Shore, 439 U.S 322, 326 and fn. 5 (1979); Sabine Towing & Transportation Co, 263 NLRB 114, 120-122 (1982) olution of the prior case when the Respondent's violative conduct clearly preceded the General Counsel's decision in - this regard. The Respondent's remaining contention that the complaint should be dimissed because a remedial order is inappropriate does not raise any material factual issue on the question of whether the Respondent violated the Act. The Respondent's representation that a new contract with the National Union and Local 33 was negotiated effective 17 March 1986 raises no issue of fact regarding the Respondent's premature termination of the 1981-1984 collective-bargaining agreements and concomitant obligation to make employees whole for its failure to bargain with the National Union. The degree to which negotiations of any successor agreements has satisfied the Re- spondent's affirmative remedial obligation to bar- gain with the National Union and to make whole unit employees is an issue properly left to compli- ance proceedings. Furthermore, we perceive no special factors or equitable considerations in this case sufficient to toll backpay. We therefore find that the Respondent has not raised any, issue that is properly litigable in this unfair, labor practice pro- ceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, Bethlehem Steel, is a Delaware corporation with ' an office and place of business in Sparrows Point, Maryland, where it is engaged in the business of shipbuilding. The Respondent annu- ally purchases and receives at its facility goods and materials valued in excess of $50,OOD directly from points outside the State of Maryland . We rind that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that both Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO and its affiliate, Local 33, are labor or- ganizations within the meaning of Section 2(5) of the Act.. II. ALLEGED UNFAIR LABOR PRACTICES Since at least 1972, the Respondent, the National Union, and Local 33 have executed a series of na- tional collective-bargaining agreements covering, inter alia, the Respondent's Sparrows Point, Mary- land shipyard facility. The most recent agreements were effective from 14 August 1981 through 19 August 1984 and covered, inter alia, separate units appropriate for the purpose of collective bargaining 256 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD within the meaning of Section 9(b) of the Act, con- sisting of certain salaried and hourly paid `employ- ees employed at the Respondent's Sparrows Point, Maryland shipyard facility. At all times material herein, the National Union and Local 33 have been the designated exclusive -collective-bargaining rep- resentative of the employees in such units and have been recognized as such by the Respondent. During the months of February and March 1984, the Respondent and Local 33 negotiated conces- sionary "Settlement Agreements" covering the em- ployees in the foregoing units at the Respondent's Sparrows Point, Maryland shipyard facility. About 2 April 1984, the Respondent abrogated and failed to continue in full force and effect all the terms and conditions of the existing collective-bargaining agreements by placing into effect "Settlement Agreements" negotiated with Local 33, without af- fording prior notice to the National Union or an opportunity to negotiate and bargain as the exclu- sive representative of the Respondent's employees. We find that by negotiating agreements with Local 33:covering the employees in the appropriate bargaining units at the Respondent's, Sparrow's Point, Maryland shipyard facility, and by imple- menting those agreements about 2 April 1984 with- out affording prior notice to or an opportunity to bargain with the National Union, the Respondent abrogated and failed to continue in full force and effect all of the terms and conditions of the extant 1981-1984 collective-bargaining agreements, there- by violating Section 8(a)(5) and (1) and Section 8(d) of the Act. CONCLUSIONS OF LAW By engaging in the conduct -described in section II, above, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section '8(a)(5) and (1), Section 8(d), and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of the Act, we shall order it to cease and desist and, if it has not already done so, to bargain on re- quest with the National Union and embody any un- derstanding reached in a signed agreement, and to take affirmative action designed to effectuate the policies of the Act. The Respondent shall ' make unit employees whole for losses suffered as a result of its unlawful midterm modification of contractual wages and benefits from about 2 April 1984 until such time as a new agreement is negotiated with the National Union or until the parties have bargained in good faith to impasse. Such sums shall be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682, 683 (1970), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Bethlehem Steel Corporation, Bal- timore, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully bypassing Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO (the National Union) as an exclusive collective-bargaining representative of its unit em- ployees. (b) Unilaterally, and without the consent of the National Union, modifying the wages and benefits of employees covered by the collective-bargaining agreements between the Respondent and the, Na- tional Union; provided that nothing in the Order shall be construed to require the Respondent to re- scind any increase in wages or benefits of unit em- ployees. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the National Union as an exclusive representative of separate produc- tion and maintenance and salaried plant clerical units of employees at the Respondent's Sparrow's Point, Maryland shipyard facility with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if it has not already done so, embody any understanding reached in a signed agreement. (b) Make whole all employees in the foregoing appropriate units for any loss of earnings and other benefits suffered as a result of the unlawful mid- term modification of the existing 1981-1984 'collec- tive-bargaining agreements, in the manner set forth in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in check- ing compliance with this Order. (d) Post at its Sparrows Point, Maryland ship- yard facility copies of the attached notice marked BETHLEHEM STEEL CORP. "Appendix."3 Copies of the notice, on forms pro- vided by the Regional Director for Region 5, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this -Order what steps the Respondent has taken to comply.4 ' 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." 4 The General Counsel has requested that the Order include a visita- torial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Proce- dure under the supervision of the United States court of appeals enforc- ing this Order. Under the circumstances of this case, we find it unneces- sary to include such a clause. Accordingly, we deny the General Coun- sel's request 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. 257 WE WILL NOT bypass Industrial Union of Marine and Shipbuilding Workers of America, AAFL--CIO as an exclusive collective-bargaining representative of our unit employees by directly dealing with Local 33. WE WILL NOT unilaterally, and without the con- sent of the National Union, modify the terms of our collective-bargaining agreements with the Na- tional Union, provided, however, that nothing herein shall be construed as authorizing or requir- ing the Employer to withdraw or eliminate any compensatory benefits presently enjoyed by the Employer's employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the National Union as an exclusive representative of unit em- ployees with respect to rates of pay, wages, hours, and other terms and conditions of employment and put in writing and sign any agreement reached on terms and conditions of employment for our em- ployees in the bargaining units. WE WILL restore the unit employees' terms and conditions of employment to those existing prior to our unilateral modification of our collective-bar- gaining agreements with the National Union. WE WILL make whole all unit employees for losses suffered as a result of our unilateral modifi- cation of our collective-bargaining agreements with the National Union, with interest. BETHLEHEM STEEL CORPORATION