Monterey /Santa Cruz Building Trades Council (National Refractories)

MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES) 251 Monterey/Santa Cruz Counties Building and Con- struction Trades Council; International Brother- hood of Electrical Workers, Local No. 234, AFL-CIO; Laborers International Union of North America Local No. 297, AFL-CIO; International Association of Machinists and Aerospace Workers, District Lodge No. 93, AFL-CIO; International Union of Operating Engineers, Local No. 3, AFL-CIO; Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 890, AFL-CIO; International Brotherhood of Painters and Allied Trades, Local No. 272, AFL-CIO; Cement, Lime, Gypsum and Allied Workers Division of the International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D99, AFL-CIO; United Brotherhood of Carpen- ters and Joiners of America, Local No. 925, AFL-CIO; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, Local No. 503, AFL-CIO 1 and National Re- fractories & Minerals Corporation. Case 32- CB-3222 July 30, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT On January 10, 1990, Administrative Law Judge Gerald A Wacknov issued the attached decision The Respondents filed exceptions and a supporting bnef, and the Charging Party filed an answenng bnef 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 bnefs and has decided to affirm the judge's rulings, findmgs, 2 and conclusionss and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The Respondent Unions have excepted to some of the judge's credi- bility findings The Board's established policy is not to overrule an ad- ministrative law judge's credibility resolutions unless the clear preponder- ance of an the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings 3 We find It unnecessary to rely on the judge's discussion regarding eq- uitable pnnciples and thew application to the facts of this case judge and orders that the Respondents, Mont- erey/Santa Cruz Counties Building and Construc- tion Trades Council, International Brotherhood of Electrical Workers, Local No 234, AFL-CIO, La- borers International Union of North America, Local No 297, AFL-CIO, International Associa- tion of Machinists and Aerospace Workers, District Lodge No 93, AFL-CIO, International Union of Operating Engineers, Local No 3, AFL-CIO, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local No 890, AFL-CIO, International Brother- hood of Painters and Allied Trades, Local No 272, AFL-CIO, Cement, Lime, Gypsum and Allied Workers Division of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D99, AFL- CIO, United Brotherhood of Carpenters and Join- ers of America, Local No 925, AFL-CIO, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No 503, AFL-CIO, Moss Landing and Natividad, California, their offi- cers, agents, and representatives, shall take the action set forth in the Order Jeffrey Henze, Esq , for the General Counsel Eugene Miller, Esq , of Seaside, California, for Respond- ent Unions Michael P Burke, Esq (Bryan, Cave, McPheeters McRoberts), of Phoenix, Arizona, for the Employer DECISION STATEMENT OF THE CASE GERALD A WACKNOV, Administrative Law Judge Pursuant to notice, a hearing with respect to this matter was held before me in Salinas, California, on August 16 and 17, 1989 The initial charge was filed on May 17, 1989, by National Refractones and Minerals Corporation (the Employer) Thereafter, on June 27, 1989, the Re- gional Director for Region 32 of the National Labor Re- lations Board (the Board) issued a complaint and notice of hearing alleging a violation by the labor organizations named above in the caption of this proceeding (the Re- spondents) of Section 8(b)(3) of the National Labor Rela- tions Act (the Act) The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to introduce relevant evidence Since the close of the hearing, briefs have been received from the General Counsel, counsel for the Employer, and counsel for tlie Respondents On the entire record, and based on my observation of the witnesses and consideration of the briefs submitted, I make the following 299 NLRB No 38 / 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION The Employer is a California corporation with facili- ties located in Moss Landing and Natividad, California, and is engaged in the manufacture and nonretail distribu- tion of fire brick and related products The Employer an- nually ships goods valued in excess of $50,000 directly to customers located outside the State of California It is admitted, and I find, that the Employer is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED It is admitted that the Respondent Unions named in the caption of this proceeding, and each of them, are labor organizations within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Issue The principal issue raised by the pleadings is whether the Respondents have violated and are violating Section 8(b)(3) of the Act by repudiating and thereafter failing and refusing to execute a document embodying the terms and conditions of a defined benefit pension plan, which were negotiated by the parties and thereafter ratified by the Respondents B The Facts 1 Background Prior to 1984, the Kaiser Aluminum and Chemical Corporation (Kaiser) owned major production facilities located at Mexico, Missouri, Columbiana, Ohio, Nativi- dad, California, and two facilities at Moss Landing, Cali- fornia At all times material, the production employees at the Mexico and Columbiana facilities and at one of the two facilities at Moss Landing have been represented by the Aluminum, Brick & Glass Workers Union, which Union is not a respondent herein The Respondents, jointly, have represented the em- ployees at the other Moss Landing plant and at the Nati- %/Wad plant The appropriate bargaining unit is described as follows All full-time and regular part-time production and maintenance employees employed by the Employer at its Moss Landing and Natividad, California facili- ties, excluding office clerical employees, profession- al employees, employees represented under separate collective-bargaining agreements, guards, and super- visors as defined in the Act Under the terms of their collective-bargaining agree- ments with Kaiser, the Mexico and Columbiana employ- ees, who are represented by the Aluminum, Brick & Glass Workers, were covered under separate but identi- cal defined benefit pension plans The employees at the California facility represented by the Aluminum, Brick & Glass Workers were covered by a separate and signifi- cantly different defined benefit pension plan, similarly, the employees at the other two California facilities, rep- resented by the Respondents, were also covered by this plan Thus, the employees at all three of the California plants were covered by separate but identical pension plans, which plans differed significantly from the plans in effect at Columbiana and Mexico In 1984, the Employer took over the operation of these five facilities In 1985, it negotiated new collective- bargaining agreements with the Aluminum, Brick & Glass Workers and with the Respondents Under the terms of these new agreements, the old Kaiser pension plans were termmated and were replaced by an employ- ee stock ownership plan (ESOP) which was identical at each of the five facilities During the terms of these 3- year (1985-1988) collective-bargaining agreements, the Employer was unable to meet the commitments it had made to the Unions concerning its contribution rate to the ESOP, and was forced by financial considerations to reduce its contribution level from 10 percent to 5 percent for the last 2 years of the contract term The 1985-1988 collective-bargaining agreements cov- ering the three California facilities expired on June 30, 1988' Negotiations for successor agreements began on a local level sometime just prior to June Resolving the dispute over the contribution rate to the ESOP was one of the major issues, if not the major issue, for the Em- ployer, the Respondents, and the Aluminum, Brick & Glass Workers in these negotiations However, although this issue was thoroughly discussed during the course of these negotiations, no agreement was reached The collective-bargaining agreements between the Em- ployer and the Aluminum, Brick & Glass Workers co y -eng the plants at Mexico and Columbiana were due to expire on July 30 Negotiations for successor agreements to these contracts were scheduled to take place in St Louis, Missouri, beginning on July 11 Because the Cali- forma negotiations had reached a stalemate, the Unions involved in those negotiations decided to sit in on the St Louis negotiations in order to acquire information which would assist them when negotiations resumed in Califor- nia, particularly since the aforementioned ESOP issue was of major significance at each of the five facilities Ken Mitchell, a service representative for the Interna- tional Association of Machinists and Aerospace Workers, District Lodge 93, one of the Respondents, served as the chairman of the Respondents' negotiating committee and was its chief spokesman during the local west coast ne- gotiations Mitchell retained that title and authority during the negotiations in St Louis Initially, the Re- espondents intended only to act as observers at the St Louis negotiations, however, at some point during the negotiations the role of the west coast parties changed, and the Respondents became active participants with the express intent of being bound by whatever agreement was reached over the national issues, including the pen- ' All dates or time periods hereinafter refer to 1988 unless otherwise indicated MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES) 253 sion plan, subject to ratification by the Respondents' local membership The principal negotiators and spokesmen for the re- spective parties at the St Louis negotiations were as fol- lows Brooke Hall, for the Employer, Roy Brown, chief negotiator for the Aluminum Brick & Glass Workers and the Respondents, and as noted above, Ken Mitchell, also for the Respondents While all of the parties agree that the St Louis negoti- ations concluded on July 16 with the signing of a memo- randum of agreement which provided for a defined bene- fit pension plan, the Respondents maintain that the agreed-upon defined benefit pension plan covering the California plants (including the plant represented by the Aluminum, Brick & Glass Workers) which, was negotiat- ed on behalf of the Respondents, is different than the de- fined benefit pension plan covering the Columbiana and Mexico plants, which was negotiated on behalf of the Columbiana and Mexico employees represented by the Aluminum, Brick & Glass Workers The General Counsel and the Employer maintain that the Respondents' position is clearly erroneous and that the pension plan is to be identical at each of the five fa- cilities, as evidenced by the plain language of the memo- randum of agreement executed by all of the parties, which constitutes irrefutable evidence as to the terms of the pension plan and the employerwide extent of its cov- erage The memorandum of agreement, in pertinent part, is as follows Pension Plan Separate Pension Agreements will be prepared as customary for the various locations (to be effective 8/1/88), all of which will be substantially identical and will contain eisentially the same terms and con- ditions as the 1982 Pension Agreement between Kaiser Refractories, Division of Kaiser Aluminum & Chemical Corporation and the Aluminum, Brick & Glass Workers International Union at Mexico and Columbiana (incorporating any changes required by law), except as set forth below Several days after the signing of the memorandum of agreement the Employer and the Respondents resumed local negotiations in California During such negotiations the Respondents did not propose to modify the foregoing language identifying the pension plan which was to become effective upon ratification of the new 3-year con- tract Thereafter the Respondents did, m fact, ratify the entire contract package, and did so advise the Employer By letter dated November 16, the Employer advised Mitchell that three documents, embodying the entire contract package, were almost completed and would be sent to Mitchell for review prior to signing Regarding the pension plan, the letter states as follows The Pension Agreement is patterned after the Mexico—Columbiana Plan as agreed at negotia- tions The identical plan is being sent to Roy Brown for signature On November 18, Mitchell wrote to the Employer as follows You state in your letter that the Pension Agree- ment is patterned after the Mexico—Columbiana Plan as agreed to at negotiations I would like to make it as clear as possible that we agreed that all Pension Plans would be a clone of each locations [sic] old 1982-1985 Plan Every location would be just like their old plan there [sic] was never any agreement or any talk about having one Pension Plan to cover all locations [Emphasis in original ] Please make up our Pension Plan as it was in 1982- 1985 with just the appropriate changes like the dates and the per month changes from $17 50 to $18,00, $19 00, $2000 we will then take a look at the Plan and get it signed Since that time the Respondents have refused to exe- cute the pension agreement and, as a result, the Employ- er filed the instant charge 2 The St Louis negotiations Brooke Hall, the Employer's chief negotiator, testified that when the discussions in St Louis regarding the ESOP plan failed to be productive, the possibility of in- stituting a defined benefit pension plan was explored by the Employer and Roy Brown, on behalf of the Alumi- num, Brick & Glass Workers At that particular juncture the negotiations were limited to the Mexico and Colum- biana plants, and the representatives- of the west coast unions were not participants but were present for the purpose of observmg the negotiations regarding the ESOP, which similar discussions had not proved to be fruitful during the earlier west coast negotiations How- ever, when it became clear that the ESOP plan was no longer under discussion, and a defined benefit pension plan was being seriously considered, both the Respond- ents and the west coast local of the Aluminum, Brick & Glass Workers made it apparent that they, too, had become parties to the negotiations and were no longer merely observers, further, Brown became the chief spokesman for their interests as well as for the locals rep- resenting the Mexico and Columbiana plants At some point thereafter, Hall understood that Brown, on behalf of all the unions at each of the five plants, was proposing that the defined benefit pension plan then being negotiated be made retroactive to January 1, 1985, the date the old Kaiser plans had been terminated by the Employer, that the old pension plans at each of the five plants be, according to Hall's notes, "clon[ed] as they exist", and that the ESOP shares to which the employees had become entitled since 1985 remain in their accounts or be paid to the employees in the form of cash In response to this proposal, Hall explained that the Unions' proposal would amount to "double-dipping" as the employees would be receiving the benefits of both a pension plan and an ESOP plan for the same 3-year period of tune (1985-1988), and that this was not accept- able to the Employer The Kaiser pension plans at Mexico and Columbiana included language providing that employees, upon retire- ment, would continue to receive full pay for an initial period of 13 weeks, after which period they would begin 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD receiving a greatly reduced sum—the normal monthly retirement amount Hall proposed that the old Kaiser plans at Mexico and Columbiana be modified by deleting the aforementioned 13-week full pay provision, further, knowing that the old Kaiser plans on the west coast had no similar 13-week provision but provided substantially greater benefits, Hall proposed that the west coast facili- ties accept the same plan as Mexico and Columbiana Hall explained that these changes which he was propos- ing were designed to offset the "double-dipping" advan- tage to the Unions After the Unions caucused, Brown presented what the Unions' negotiating minutes characterize as "counter proposals" It is clear that some of the matters advanced by Brown were truly "counterproposals" in the sense that the parties continued to disagree on such items as holidays, medical insurance, life insurance, and wage in- creases But on the issue of the defined benefit pension plan, the Unions' bargaining notes are as follows 1 Clone old Pension Plan Put special language in 2 $7 00 increase in factor 2 This would jump the factor to $23 00, $24 50 in California 3 Agree to ESOP shares as proposed 4 Litigation withdrawn 3 Hall's bargaining notes contain the following entry re- garding the pension "Agreement on everything except factor" Hall testified that he understood that the Unions were accepting the Employer's aforementioned pension proposal except for the factor amounts which, under the old Kaiser plans had been greater at the west coast plants Thus, the Unions "counter proposal" included not only an increase of $7 in the factor amount, but also that the west coast differential be maintained However, ac- cording to Hall, no other pension matters were in con- tention Thus, Hall believed that the Unions had agreed that the modified Mexico/Columbiana pension plan would be substituted for the old west coast plan and would be identical for each of the five facilities, that the Unions had agreed to the Employer's proposal to discon- tinue funding the ESOP plan, and, in addition, that the agreement included the Unions' commitment to with- draw all litigation then pending regarding the ESOP plan which the Unions had instituted because of the Em- ployer's alleged failure to contribute the requisite amounts to the employees' ESOP accounts As a result of further negotiations, according to Hall, the parties agreed on the amount of the factor for the 3- year term of the contract and, in addition, agreed that the amount would be the same at Mexico/Columbiana as well as the west coast facilities Moreover, all other con- tract items were agreed to Thereafter, the aforemen- 2 The "factor" is a set dollar amount which is multiplied by an eligible employee's total years of credited service in order to arrive at the month- ly pension amount which the employee is to receive upon retirement 2 As noted above, the Unions had instituted a lawsuit against the Em- ployer in order to compel It to provide additional funding for the ESOP plan, and during the St Louis negotiations the parties agreed that, as part of the understanding reached regarding the new pension plan, this litiga- tion would be withdrawn toned memorandum of agreement was prepared and signed by the parties, as discussed above, on July 16 Mitchell candidly testified that when the parties began negotiating about a defined benefit pension plan rather than a continuation of the ESOP plan, he was not aware that the old 1982-1985 Kaiser defined benefit pension plan was not the same at each of the five facilities,' he testified that as far as he knew they could have been identical Bargaining negotiation notes taken by the Alu- minum, Brick & Glass Workers show that the Employ- er's initial proposal regarding the defined benefit pension plan, as enunciated by Hall, included the following en- tries No 13 weeks special payment because of double dip on ESOP Present ESOP equal to 13 week spe- cial payment However, Moss Landing, no 13 week special payment in theirs [Employer's] proposal is to make Moss Landing basically into the same pension as the others While Mitchell testified that he did not recall Hall making such a proposal, Mitchell's personal notes of the meeting in question show that Hall's "complete propos- al" included the following "Moss Landing no double dip to same plan as Mexico Same benefit level" Mitchell testified that although he "may have known at the time he wrote the notes" what was meant by Hall's "no double dip" statement, he could not recall the meamng of this statement at the time of the hearing Following the presentation of the Employer's propos- als, the negotiations were recessed for several hours, and on the resumption of the negotiations, according to Mitchell, Brown stated on behalf of the Aluminum, Brick & Glass Workers and the Respondents that "we were proposing to clone the old pension plans at each lo- canon" (Emphasis added ) However, as set fourth above, the bargaining notes of the Aluminum Brick & Glass Workers show that Brown said "Clone old pension Plan" (Emphasis added ) Mitchell's personal bargaining notes, however, contain the entry "M L Pension," the initials "M L" referring to Moss Landing Thereafter, according to Mitchell, the aforementioned memorandum of agreement was drafted by representa- tives of the Employer and the Aluminum, Brick & Glass Workers Mitchell elected not to participate in the draft- ing of the memorandum of agreement because it was late in the evening and he relied on the representatives of the Aluminum, Brick & Glass Workers to represent the Re- spondents' interests in that endeavor When he was pre- sented with the memorandum of agreement at 430 a m the following morning he read "parts" of the memoran- dum but did not read it thoroughly Mitchell's testimony on this point is as follows Well, I read the thing and it says that pension agreements will be prepared as customary for vari- ous locations That tells me that there were going to be differ- ent plans because that's what was prior to this MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES) 255 thing In '85 there were different pfahs, and it says they'll be prepared as customary There were differ- ent plans so that's what I read It said they will be substantially identical and contain essentially the same stuff and they do And that's all I read because that's all we talked about Brown, who was the chief negotiator for both the Re- spondents and the Aluminum, Brick & Glass Workers at the St Louis negotiations did not testify in this proceed- ing Further, in addition to Mitchell, who represented the Respondents, there were some 15 representatives of the Aluminum, Brick & Glass Workers who attended the St Louis negotiations Only one of these individuals was called as a witness by the Respondents, namely Edward Lucente, an International representative for the Moss Landing local of the Aluminum, Brick & Glass Workers Lucente testified that he did not remember the discussion regarding the issue of double dipping and 13-week spe- cial payment He further testified that he did not begin servicing the Moss Landing Local until after the ESOP plan had been established by the Unions and the current Employer, and did not know any of the details of the old Kaiser defined benefit pension plan Rather, he relied on Mitchell's expertise regarding the specifics of the discus- sion about the pension plan At the hearing Lucente was asked to read the above- quoted paragraph of the memorandum of agreement, and testified that he understood the memorandum of agree- ment to mean that all the pension plans were to be mod- eled after the Mexico and Columbiana plans When asked why he did not raise a question about the significance of this language, Lucente testified that he "didn't think there was a need for a question because I didn't see the problem" According to Lucente, the Employer's pro- posal to make the Moss Landing pension plan basically the same plan as the others was not inconsistent with the Unions' initial proposal to reinstitute the old Kaiser de- fined benefit pension plan at Moss Landing because "There wasn't a whole hell of a lot of difference in the two plans" Lucente further clarified his understanding of the language as follows So to use the word basically, it could simply mean they're basically going to be the same pro- gram, the names are going to be different The name is going to be different at the top of the page The Local numbers are going to be different [Em- phasis added ] In actuality, the plans were different in many major re- spects, and the old west coast Kaiser plan provided sig- nificantly better retirement benefits and conditions than the Mexico/Columbiana plan Hall testified that the plants at Mexico and Columbiana had a total employee complement of 560 employees at the time of the hearing, and the 3 west coast plants had a total employee comple- ment of 346 Nevertheless, despite the fact that the west coast plants employed some 214 fewer employees, it would have cost the Employer between $150,000 and $250,000 per year more to fund a pension plan identical to the old Kaiser west coast pension plan because of the more favorable benefits As discussed above, Mitchell did not understand the significance of the interrelationship between double dip- ping and the pension plan that the Employer was offer- ing the Respondents Similarly, Lucente, who was rely- ing on Mitchell's comprehension of the parties' bargain- ing positions, was not conversant with the matters being discussed Therefore, Hall's testimony on this matter stands unrebutted 3 Local west coast negotiations Local negotiations on the west coast resumed on July 19, and continued on July 20, and August 4 and 10 Dunng the course of these meetings the west coast locals proposed that the pension plan factor be increased for the west coast plants, but agreement was not reached on this proposal and the matter was dropped Agreements on local issues were signed by the parties on July 20 and August 10 Neither of these agreements contains any lan- guage pertaining to the pension plan The Respondents maintain that Hall, in response to questions asked by Respondents' representatives dunng the course of the local negotiations, acknowledged that the operative pension plan for the west coast locals would be the same as the old west coast plans under Kaiser Mitchell testified that on four separate occasions during the local negotiations, various union representa- tives asked Hall what the changes in the pension plan would be, or what pension the west coast locals would have and, according to Mitchell, Hall responded to each of these inquiries by stating that the locals would have the same plan they had prior to January 1, 1985 Lucente corroborated Mitchell's testimony in this regard Patrick Cotter, a shop steward at one of the west coast plants, testified that he asked Hall something to the effect of whether the new plan was going to be the same as the old plan they had before Hall, according to Cotter, an- swered that it would be the same pension plan Thomas Scardina, business manager for Laborers Local 297, one of the Respondents, corroborated Cot- ter's testimony Donald Carpenter, business manager for IBEW Local 234, one of the Respondents, testified that he asked Hall whether the people would have their old pension plan back, and Hall said yes Marc Martinez, president of Local D-99 of the Cement, Lime, Gypsum, and Allied Workers, one of the Respondents, testified that he asked Hall whether they were going to have the same pension Hall replied, ac- cording to Martinez, "The pension that we are getting is the exact clone pension of Kaiser Natividad, Moss Land- ing, and the Brick Plant" On cross-examination, howev- er, Martinez testified as follows No, my question was basically to Mr Hall there, "Is our pension the same7" He said yes He an- swered my question so I didn't need to go any fur- ther That was my major concern, the pension Are we going to get—what are we going to get back, in other words Are we going to stay with the ESOP or are we going to get a regular pension like we had7 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All I was interested in was getting a regular pen- sion back Martinez testified that at the time he asked Hall the question, he believed that the old Kaiser plan at Mexico and Columbiana was the identical pension plan that the west coast unions had under Kaiser Thus, he was not aware that the plans were substantially different Roland Nom, business representative for Painters Local 272, one of the Respondents, testified that he always assumed that there was only one old pension plan which was the same at all the Kaiser facilities Hall testified that he recalled no discussion at any point during the local west coast negotiations regarding the pension plan, and recalled no questions from either Cotter or Martinez regarding the pension plan Hall testi- fied that during the August 4 and August 10 negotiations there were no questions regarding the pension plan by Carpenter or anyone else, although a brief colloquy oc- cui led when the Respondents requested an increase in the west coast pension factor, and Hall replied that the factor amounts had been agreed on during the St Louis negotiations and were no longer negotiable Hall testified that he did not make any statement to Carpenter or any other person at that meeting that the Moss Landing facil- ity was going to get its old Kaiser pension plan back again Torn Mathis, works manager who as for the Moss Landing and Natividad operations, Fred Sutton, who oc- cupied the position of assistant comptroller for the Em- ployer at the time of the local negotiations, and Don Vorwork, superintendent of industrial relations for the Moss Landing area plants, corroborated Hall's testimony Analysis and Conclusions Mitchell and Lucente, as the sole representatives of the west coast Locals, were not prepared to participate in the St Louis negotiations but were initially in attend- ance only as observers Clearly, they were at a distinct disadvantage when those negotiations took an unexpect- ed turn and they became active participants in the nego- tiation of the terms of a defined benefit pension plan as a substitute for the ESOP plan which the parties had theretofore unsuccessfully attempted to negotiate The record evidence is clear, and I find, that Mitchell and Lucente simply did not understand the complexities of the pension plan negotiations Nor, it appears, did they believe it was necessary to do so, as they were proceed- ing under the misapprehension that the old Kaiser pen- sion plan was the same at each of the five facilities, and that therefore, by signing the memorandum of agreement providing for the old Mexico/Columbiana pension plan, they were agreeing to the return to the old west coast plan There is no record evidence that the Employer knew or should have known that Mitchell and Lucente were not privy to the same information as Brown, who became the chief spokesman for each of the unions in- volved in negotiations, moreover, there is no record evi- dence that Brown was at all in doubt about precisely what bargaining proposals each of the unions, includmg the Respondents, were willing to abandon in exchange for the pension package proposed by the Employer I credit the testimony of the various representatives of the employer and find that at no time during the course of the local west coast negotiations did Hall either state or confirm that the memorandum of agreement, which was negotiated, reduced to writing, and executed by each of the parties during the St Louis negotiations, pro- vided that the west coast locals were to retain their old west coast pension plan The clear and plain language of the memorandum of agreement is unambiguous and leaves no room for misinterpretation Further, the testi- mony of the various witnesses for the Respondents strongly indicates that the pertinent language in the memorandum of agreement would not have alerted any of Respondents' members or representatives to the possi- bility of a misunderstanding, since it was uniformly, but mistakenly, believed that all the old Kaiser pension plans at each of the five plants were identical with the excep- tion of, as Representative Lucente testified, the identifi- cation of the various plants and of the various local unions Thus, it is probable that no questions were asked regarding the pension plan as there was no confusion among the the various union representatives in this regard Further, assuming arguendo that one or more of Re- spondents' representatives did believe that the memoran- dum of agreement was inconsistent with what the repre- sentatives had been told by Mitchell and others, namely that they would be receiving the same benefits that they had previously enjoyed under the old west coast plan, this would most certainly have compelled someone to make the simple and obvious observation that the memo- randum of agreement did not correctly reflect the agree- ment of the parties Under these posited circumstances, it is clear that the various union representatives would not have merely accepted Hall's alleged assurances that, in effect, they should disregard the plain but erroneous lan- guage of the memorandum of agreement and rely on Hall's verbal assurance to the contrary For the forego- ing reasons, I am constrained to credit the testimony of Hall, as corroborated by the various witnesses for the Employer, and find that Hall made no representations re- garding the pension plan during the west coast negotia- tions Contrary to the apparent position of the Respondent, I find that the record evidence does not support the con- tention that the Employer engaged in deception or inten- tionally sought to misrepresent the facts or confuse the issues in order to subvert the bargaining process Nor was the Employer's negotiating stance premised upon a basic misunderstanding of the issues being negotiated Indeed, in the absence of any contrary testimony from Brown, the chief negotiator for each of the Unions, in- cluding the Respondent, Hall's credible testimony re- garding the specifics of the bargaining process is consist- ent with the overwhelming record evidence To the extent that Mitchell's recollection and/or personal bar- gaining notes differ from those of both Hall and the Alu- minum, Brick & Glass Workers, I find that Mitchell's recollection and notes are inaccurate and do not reflect the positions of the parties MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES) 257 There is no doubt that Hall specifically obtained from the Respondent the forfeiture of the old west coast pen- sion plan as a quid pro quo for the 1985-1988 ESOP ben- efits and the Columbiana/Mexico pension plan I there- fore find that there was no mutual mistake of fact or un- derstanding which would operate as a vehicle for nullify- ing the agreement reached As discussed above, a combi- nation of factors may have caused the Respondents to mistakenly assume that they had successfully negotiated a return to their old west coast pension plan, but it has not been shown that the Employer knew or should have known, or was in any way responsible for, the Respond- ents' mistaken understanding of the negotiating process and the ultimate agreement resulting therefrom In Apache Powder Go, 223 NLRB 191 (1976), the Board stated "that recision for unilateral mistake is, for obvious reasons, a carefully guarded remedy reserved for those instances where the mistake is so obvious as to put the other party on notice of an error" In the instant case the Respondents initially attempted to negotiate a return to their old west coast pension plan, but appeared to abandon that position at the insistence of the Employer's spokesman, Hall, that the employees at all five plants be covered by the old Columbiana/Mexico plan as modified by agreement of the parties As noted above, there is no record evidence to support the argument that, under these circumstances, the Respondents' mistaken belief that the old west coast pension plan was identical to the old Columbiana/Natividad plan was "obvious" to the Employer See Pete O'Dell & Sons Steel, 277 NLRB 1358, 1366 fn 12 (1985) The Respondents' reliance on Waldon, Inc , 282 NLRB 583 (1986), is misplaced In that case the respondent em- ployer erroneously executed a contract which contained language (in the form of a wage classification system) different from what the administrative law judge found had been proposed by the employer during negotiations In the instant case, however, the memorandum of agree- ment reflects language that had in fact been proposed by the Employer and agreed to by all parties to the negotia- tions Thus, unlike the situation in Waldon, which in- volved a dispute regarding whether the parties had agreed to certain contract language, the dispute in the in- stant case arises from the Respondents' failure to com- prehend the language it agreed to Nor, on equitable principles, is the result reached herein unconscionable Indeed, it is far from clear that the Respondents would not have knowingly traded their old west coast pension plan for the ESOP benefits and the pension package contained in the memorandum of agreement, particularly as a lawsuit over this matter had been instituted and the negotiations regarding the fund- ing of the ESOP had reached a stalemate Moreover, the Columbiana/Mexico employees, who comprise well over 50 percent of the employees affected by the outcome of this case, are receiving the pension package they know- ingly negotiated, and certainly, under these circum- stances, recision of the Employer's pension agreement with the Respondents alone would be disruptive of the Employer's relationship with the Columbiana and Mexico bargaining units In view of the foregoing, it would appear unjust to disrupt the contractual relation- ships which have been established after such extensive and intense negotiations by, in effect, permitting the Re- spondents to commence negotiations anew Having reached an agreement on behalf of the em- ployees whom its represents, the Respondents' duty to bargain includes the requirement that it execute "the written contract incorporating the agreement reached 4 On the basis of the foregoing, I conclude that the Re- spondents did agree to and thereafter ratify the pension plan which the Employer has submitted for the Respond- ents' signature, and that by failing to execute the docu- ment, the Respondents have violated and are violating Section 8 (b)(3) of the Act as alleged CONCLUSIONS OF LAW 1 National Refractories and Minerals Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Respondents, collectively and individually, are labor organizations within the meaning of Section 2(5) of the Act 3 By failing and refusing to execute the agreement reached, the Respondents have violated and are violating Section 8(b)(3) of the Act as alleged THE REMEDY Having found that the Respondents have failed to bar- gain in good faith with the Employer by failing and re- fusing to execute the agreement reached, the Respond- ents shall be required to execute the agreement Further, the Respondents shall be required to post an appropnate notice attached hereto as "Appendix" Based on these findings of fact and conclusions of law and the entire record, I issue the following recommend- ed5 ORDER The Respondents, Monterey/Santa Cruz Counties Building and Construction Trades Council, International Brotherhood of Electrical Workers, Local No 234, AFL-CIO, Laborers International Union of North America, Local No 297, AFL-CIO, International Asso- ciation of Machinists and Aerospace Workers, District Lodge No 93 AFL-CIO, International Union of Operat- ing Engineers, Local No 3, AFL-CIO, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 890, AFL-CIO, International Brotherhood of Painters and Allied Trades, Local No 272, AFL-CIO, Cement, Lime, Gypsum and Allied Workers Division of the International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D99, AFL-CIO, United Brotherhood of Carpenters and Joiners of Amer- ica, Loc al No 925, AFL-CIO, United Association of 4 Sec 8(d) of the National Labor Relations Act 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 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No 503, AFL-CIO, Moss Landing and Natividad, Cali- fornia, their officers, agents, and representatives, shall I Cease and desist from (a) Refusing to bargain in good faith with National Re- fractories & Minerals Corporation by failing and refusing to execute the agreement reached regarding the terms and conditions of a defined benefit pension plan covering the employees in the following appropriate unit All full-time and regular part-time production and maintenance employees employed by the Employer at its Moss Landing and Natividad, California facili- ties, excluding office clerical employees, profession- al employees, employees represented under separate collective bargaining agreements, guards, and super- visors as defined in the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Execute the pension plan agreement submitted by the Employer to the Respondents (b) Post at their respective offices and meeting halls copies of the attached notice marked "Appendix "6 Copies of notice, on forms provided by the Regional Di- rector for Region 32, after being signed by Respondents' representatives, shall be posted by them immediately upon receipt, and be maintained by them for 60 consecu- tive days, in conspicuous places, including all places where notices to members are customarily posted Rea- sonable steps shall be be taken by the Respondents to ensure that the notices are not altered, defaced, or cov- ered by any other material (c) Furnish the Regional Director sufficient signed copies of the notice for posting by the Employer, if it be willing, to be posted in all places where notices to the Employer's Moss Landing and Natividad employees are customarily posted (d) Notify the Regional Director in writing, within 20 days from the date of this Order what steps have been taken to comply ° 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" APPENDIX NOTICE To MEMBERS POSTED BY ODRER 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 or- dered us to post and abide by this notice WE WILL NOT refuse to bargain in good faith with Na- tional Refractories & Minerals Corporation in the appro- priate unit described below by refusing to execute an agreement embodying the terms and conditions of the defined benefit pension plan which we negotiated on behalf of the employees in the following collective-bar- gaining unit All full-time and regular part-time production and maintenance employees employed by the Employer at its Moss Landing and Natividad, California facili- ties, excluding office clerical employees, profession- al employees, employees represented under separate collective-bargaining agreements, guards, and super- visors as defined in the Act WE WILL execute the agreement embodying the terms and conditions of the defined benefit pension plan which the Employer has submitted to us for signature MONTEREY/SANTA CRUZ COUNTIES BUILDING AND CONSTRUCTION TRADES COUNCIL, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No 234, AFL-CIO, LABORERS INTERNATION- AL UNION OF NORTH AMERICA, LOCAL No 297, AFL-CIO, INTERNATIONAL As- SOCIATION OF MACHINISTS AND AERO- SPACE WORKERS, DISTRICT LODGE No 93 AFL-CIO, INTERNATIONAL UNION OF OP- ERATING ENGINEERS, LOCAL No 3, AFL- CIO, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, LOCAL No 890, AFL-CIO, INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES, LOCAL No 272, AFL-CIO, CEMENT, LIME, GYPSUM AND ALLIED WORKERS DIVISION OF THE INTERNATION- AL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL LODGE D99, AFL-CIO, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMER- ICA, LOCAL No 925, AFL-CIO, UNITED ASSOCIATION OF JOURNEYMEN AND AP- PRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL No 503, AFL-CIO