Armco, Inc., Ashland Works

ARMCO INC Armco, Inc, Eastern Steel Division, Ashland Works and Oil, Chemical and Atomic Workers Inter national Union, AFL-CIO-CLC United Steelworkers of America, AFL-CIO-CLC, and its Local Union 1865 and Richard M Bank Cases 9-CA-18227 and 9-CB-5285 December 15 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 30 1986 1 the National Labor Relations Board issued its Decision and Order2 in this pro ceeding finding that Armco Inc Eastern Steel Di vision Ashland Works (Respondent Armco) en gaged in unfair labor practices in violation of Sec tion 8(a)(1) (2) (3) and (5) of the National Labor Relations Act and that United Steelworkers of America AFL-CIO-CLC and its Local Union 1865 (Respondent Steelworkers) engaged in con duct violative of Section 8(b)(1)(A) and (2) of the Act To remedy the violations the Board ordered inter alia that Respondent Armco cease recogniz ing Respondent Steelworkers and on the request of Oil Chemical and Atomic Workers Internation al Union AFL-CIO-CLC (OCAW) restore the status quo that existed prior to the implementation of various unilateral changes by Respondent Armco with respect to the rates of pay wages hours and other terms and conditions of employ ment of the unit employees reimburse such em ployees or former employees for any monetary losses they may have suffered as a result of the uni lateral changes with interest thereon and continue such payments until such time as Respondent Armco negotiates in good faith with OCAW or to impasse Thereafter Respondents Armco and Steelwork ers filed petitions for review with the United States Court of Appeals for the Sixth Circuit and the General Counsel filed a cross application for en forcement On November 3 1987 the court issued its decision enforcing the Board s Order except for the backpay award 3 On the same date the court entered its judgment enforcing the Board s Order The judgment entered by the court was not served on the parties at that time On November 16 1987 the Board filed with the court and served on the parties a copy of a proposed judgment The pro posed judgment provided inter alia that Respond All dates are in 1986 unless otherwise indicated 2 279 NLRB 1184 s Armco Inc v NLRB 832 F 2d 357 (6th Cir 1987) cert denied 108 S Ct 2034 (June 6 1988) 1171 ent Armco recognize and on request bargain with OCAW as the exclusive collective bargaining rep resentative of the Respondent s coke employees and embody in a signed agreement any understand ing that was reached the proposed judgment did not provide that Respondent Armco restore the status quo that existed prior to its implementation of the unilateral changes in the terms and condi tions of employment of the unit employees The mandate of the court was initially stayed by motions by Respondent Armco and Respondent Steelworkers to permit them to file petitions for re hearing en banc and for certiorari to the United States Supreme Court The court s judgment of November 3 1987 was entered as its mandate on June 30 1988 after the Respondents petitions for rehearing and certiorari were denied Following entry of the court s mandate Re spondent Armco filed with the court a motion to conform the judgment with the decision of the court In its motion Respondent Armco requested that the court withdraw the judgment that it en tered November 3 1987 substitute the judgment proposed by the Board on November 16 1987 and enter it as the court s revised mandate On July 19 1988 the court entered its amended judgment which states It is now here ordered and adjudged by this court that the decision of the said agency in this cause with the exception of the backpay award which is remanded for a factual deter mination of its extent be and the same is hereby enforced On July 25 1988 the Board advised the parties that it had accepted the remand of the court and that they might file statements of position with re spect to the issues raised by the remand The General Counsel OCAW and Respondent Armco filed statements of position and Respondent Armco filed a reply brief to the General Counsel s and OCAW s statements of position The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel As discussed above the Board s Order provided inter alia that Respondent Armco on OCAW s re quest restore the status quo ante that existed prior to the implementation of the unilateral changes made by Respondent Armco with regard to the rates of pay wages hours and other terms and conditions of employment of unit employees and reimburse the employees in the unit or former em ployees in the unit, for any monetary losses they may have suffered as a result of Respondent Armco s unilateral changes with interest until Re 291 NLRB No 149 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent Armco negotiates in good faith with OCAW to an agreement or to impasse Reimburse ment of monetary losses and restoration of the terms and conditions of employment that existed prior to unlawful unilateral changes is the tradition al remedy given by the Board in such cases In State Distributing Co 282 NLRB 1048 (1987) the Board similarly found that a successor employ er violated Section 8(a)(5) of the Act when it uni laterally implemented changes in terms and condi tions of employment including reducing wage rates, instituting a different health and welfare pro gram and discontinuing pension benefits The Board ordered a make whole remedy in accord with the remedy entered in Love s Barbeque Restau rant No 62 245 NLRB 78 (1979) enf granted in part and denied in part 640 F 2d 1094 (9th Cir 1981) In State Distributing the Board discussed the Ninth Circuits denial of enforcement of that por tion of the Board s Order in Love s Barbeque requir ing backpay at the contract rate until agreement or impasse The court had held that the Board s Order in effect bound the successor to its prede cessor s collective bargaining agreement when its duty under NLRB v Burns Security Services 406 U S 272 (1972) was limited to consulting with the union before altering terms and conditions of em ployment The court also held that the Board s backpay remedy acted as a penalty and it suggest ed that an appropriate backpay remedy might re quire a successor employer only to pay the higher contract rates for a reasonable time of bargaining because in all probability bargaining would have led to an impasse allowing the employer uni laterally to reduce wages In State Distributing however the Board rejected the court s analysis and held that it would continue to adhere to the view that in circumstances like those there and in Love s Barbeque [I]t is appropriate to calculate backpay on the basis of the contractual rates paid by the pred ecessor (in other words the existing terms and conditions of employment) because the succes sor s unlawful failure to recognize and bargain with the union has left us without an adequate or reasonable alternative basis for calculating what rates would have been arrived at through lawful bargaining [282 NLRB at 1049 ] The Board also held that any uncertainties con cerning questions about the outcome of bargaining had the parties bargained e g if and when an agreement might have been reached and the wage resolved against the one whose unlawful acts have created those uncertainties We continue to adhere to our view that the Love s Barbeque remedy would ordinarily be appro priate under circumstances similar to those in the present case We accept however on remand the court s decision as the law of this case The court s amended judgment enforces the Board s Order with the exception of the backpay award In its de cision remanding the proceeding to the Board for a factual determination as to the extent of backpay owed the court stated It has come to our attention that the remedy ordered against Armco may be too harsh for it would require the company to pay wages perhaps as much as three dollars per hour more than the coke workers have been receiv ing since the time of the plants purchase In Kallman v NLRB 640 F 2d 1094 (9th Cir 1981) the court set aside a similar remedial order and remanded the matter to the Board The court there found that [t]he function of the remedy is to restore the situation as nearly as possible to that which would have occurred but for the violation Id at 1103 citing Phelps Dodge Corp v NLRB 313 U S 177 194 61 S Ct 845 852 85 L Ed 1241 (1941) In Kallman the facts indicated that the employer would not have agreed to union de mands to pay the higher rate We believe that the same may be true in this case Thus we hold that the employer is re sponsible for the pay difference for the time which would have been required for bargain ing We will remand this matter to the Nation al Labor Relations Board however for the factual determination required to decide the extent of backpay As the court did in Kall man we will leave it to the Board s discretion whether the resolution of these issues should be left to bargaining between the parties Therefore with the exception of the back pay award we affirm the findings of the Na tional Labor Relations Board and we grant enforcement of its order 4 In their statements of positions the parties dis pute whether the scope of the courts remand is limited to the extent of the backpay award or whether it encompasses the entire status quo ante provision of the Board s remedy The General Counsel takes the position that the court s remand is limited to a determination of the amount of the backpay award and that there is no basis for con rates that would have been negotiated should be 4 832 F 2d 357 365 ARMCO INC 1173 cluding that the court s remand affects the remain der of the status quo ante remedy which requires Respondent Armco to restore the rates of pay wages hours and other terms and conditions of employment of the unit employees that existed prior to the unlawful unilateral changes implement ed by Respondent Armco OCAW argues that the court s decision allows the Board to restore the status quo ante with respect to all terms and condi tions of employment and that the court s remand is limited to a factual determination of the extent of backpay liability with respect to wages only Respondent Armco asserts that the Sixth Cir curt s decision refusing to enforce the Board s back pay order had the effect of eliminating the status quo ante remedy contained in the same paragraph of the Board s original Order Thus Respondent Armco asserts that in limiting its monetary expo sure to the time which would have been required for bargaining the Sixth Circuit recognized that had the company in fact bargained with OCAW in January 1982, the status quo under the predecessor employers terms and conditions of employment would have disappeared with the signing of a new contract providing an economic package compara ble to the Steelworkers contract or through the implementation of such terms on impasse Respond ent Armco argues that there is a fundamental in compatibility between the Sixth Circuits backpay decision and restoration of status quo ante in 1988 6 years after the unfair labor practices occurred In resolving this dispute among the parties we note that the court in its amended judgment did not specifically delete the status quo ante language contained in the Board s Order even though such a deletion had been proposed for the court To rec oncile the language of the court s amended judg ment enforcing the Board s Order (except for the backpay award) with the court s discussion in its decision limiting Armco s monetary liability at the predecessors wage rate to the time that would have been required for bargaining we conclude that the court s decision and amended judgment should reasonably be interpreted to mean that Re spondent Armco must abide by the terms and con ditions established by the predecessor employer s expired contract, with the exception of those mat ters traditionally encompassed within backpay until the parties reach agreement or impasse As to those matters traditionally encompassed within backpay the following shall apply This case will be remanded for reopening of the record and further hearing before an administrative law judge for the limited purpose of taking evi dence on the extent of Respondent Armco s back pay liability i e, the time which would have been required for bargaining 832 F 2d at 365 A remand hearing is necessary to determine whether Respondent Armco would have agreed to the mon etary provisions of the predecessor employers col lective bargaining agreement with OCAW wheth er a good faith impasse in negotiations would have been reached as of a certain date and whether Re spondent Armco would have lawfully implemented its own monetary terms as of that date Because it is uncertain whether Respondent Armco would have agreed to the monetary terms of the prior contract between OCAW and the predecessor em ployer the burden of proof must be placed on Re spondent Armco to establish that it would not have agreed to the terms of the prior contract the date on which it would have bargained to agreement and the terms of the agreement that would have been negotiated or to establish the date on which it would have bargained to good faith impasse and implemented its own monetary proposals The Board has consistently held that such uncertainties should be resolved against the one whose unlawful acts created them 5 ORDER It is ordered that this proceeding is remanded to the administrative law judge for reopening the record for further hearing for the purpose of making specific factual and legal findings concern ing the extent of Respondent Armco s backpay li ability The administrative law judge shall prepare a supplemental decision containing credibility reso lutions findings conclusions and recommendations as deemed necessary consistent with this remand Order Following service of the supplemental deci sion on the parties the provisions of Section 102 46 of the Board s Rules and Regulations shall apply 5 State Distributing Co supra