Croft Metals, Inc.

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Croft Metals, Inc and Southern Council of Industri- al Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC. Cases 15-CA-8520 and 15-CA-9007 21 September 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 26 March 1984 Administrative Law Judge Leonard M Wagman issued the attached decision The Respondent filed exceptions and a supporting brief, the General Counsel filed a limited exception and a supporting brief and an answering brief to the Respondent's exceptions, and the Respondent filed an answering brief to the General Counsel's limited exception 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 to adopt the conclusions and recommended Order as modified We find merit in the General Counsel's limited exception which, in essence, requests a more specif- ic description of the unfair labor practice found Accordingly, we substitute the following for the judge's fourth Conclusion of Law, and insert a cor- responding provision in the Order "4 By failing and refusing to execute the collec- tive-bargaining agreement with the Southern Coun- cil and conditioning its execution of the agreement on the International's becoming a signatory to the agreement, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that Croft Metals, Inc , McComb, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(c) and re- letter the subsequent paragraphs "(c) Insisting in any collective-bargaining negoti- ations with the Southern Council upon the Interna- tional's becoming a signatory to any collective-bar- gaining agreements or insisting upon any other pro- posals not involving rates of pay, hours of employ- ment, or other conditions of employment as a con- dition precedent to executing a collective-bargain- ing agreement with the Southern Council" 2 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 re- garding wages, hours, and other terms and condi- tions of employment with the Southern Council of Industrial Workers, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO-CLC as the exclusive representative of the employees in the following appropriate unit All production and maintenance employees employed at Respondent's McComb, Magno- lia, and Osyka, Mississippi, facilities, including plant clerical employees, interplant drivers, leadmen and lead women, excluding over-the- road truckdrivers, office clerical employees, professional and technical employees, watch- men and guards, and supervisors as defined in the Act WE WILL NOT refuse to execute the collective- bargaining agreement with the Southern Council which was agreed upon on 10 November 1981, and which should have taken effect on 1 December 1981, on the ground that the United Brotherhood of Carpenters and Joiners of America, AFL-CIO- CLC is not a party to the agreement WE WILL NOT fail and refuse to give effect to the terms and provisions of the agreed-upon collec- tive-bargaining agreement with the Southern Coun- cil WE WILL NOT insist in any collective-bargaining negotiations with the Southern Council on the In- ternational's becoming a signatory to any collec- tive-bargaining agreement or on any other propos- als not involving rates of pay, hours of employ- ment, or other conditions of employment as a con- dition precedent to executing a collective-bargain- ing agreement with the Southern Council 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 272 NLRB No 30 CROFT METALS 209 WE WILL, upon request, bargain collectively with the Southern Council as the exclusive repre- sentative of the employees in the appropriate unit described above regarding wages, hours, and other terms and conditions of employment WE WILL, on request of the Southern Council, execute forthwith the collective-bargaining agree- ment with the Southern Council which was agreed upon on 10 November 1981, and give effect to the terms and conditions of the collective-bargaining agreement retroactively to 1 December 1981 WE WILL, on request of the above-named Union, rescind the unilateral changes in employer and em- ployee contributions to payment of group health insurance WE WILL make whole our employees for their loss of wages and other benefits which are provid- ed for in the agreement for the period on and after 1 December 1981, plus interest During the past 12 months, a period representative of all times material, the Company, in the course and con- duct of its business operations, purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Mississippi From these facts, I find the Company is, and has been at all times material, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED The Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act The United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC (the International Union) is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES CROFT METALS, INC DECISION STATEMENT OF THE CASE LEONARD M WAGMAN, Administrative Law Judge These cases were tried on August 1 and 2, 1983, at McComb, Mississippi Based on unfair labor practice charges filed on March 18, 1982, and June 6, 1983, by the Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC (the Southern Council), against Re- spondent, Croft Metals, Inc (the Company) the Regional Director for Region 15 of the National Labor Relations Board (the Board) issued a complaint and notice of hear- ing on April 25, 1983, in Case 15-CA-8520, and an order and notice of hearing, consolidating that case with Case 15-CA-9007 on June 30, 1983 The complaints alleged that the Company violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act), by refusing to sign and execute an agreed-upon contract and insisting on the inclusion of the International Union as a signatory to such contract, and by unilaterally modifying said con- tract as it pertains to the percentage of employer and employee contributions to payment of group health in- surance costs By its answers, the Company denied com- mitting the alleged unfair labor practices On the entire record in this case, my observation of the witnesses, and on consideration of the General Coun- sel's and the Company's oral arguments and briefs, I make the following FINDINGS OF FACT I THE COMPANY'S BUSINESS Croft Metals, Inc is a Mississippi corporation with fa- cilities in McComb, Magnolia, and Osyka, Mississippi, where it is engaged in manufacturing and distributing various metal products A Issues Presented The primary issues presented are (1) Whether the Company violated Section 8(a)(5) and (1) of the Act on February 9, 1982, by refusing to exe- cute a collective-bargaining agreement unless the Inter- national Union, which was not the certified bargaining representative, also signed the agreement (2) Whether the Company violated Section 8(a)(5) and (1) of the Act on June 1, 1983, by unilaterally and with- out the consent of the Union, modifying the collective- bargaining agreement as it pertains to the percentage of employer and employee contributions to payment of group health insurance premiums B The Facts About July 1, 1971, in Case 15-RC-4641, a majority of the Company's employees in the appropriate unit,' se- lected the Southern Council as their representative for the purposes of collective bargaining with the Company About October 20, 1971, the Regional Director certified the Union as the exclusive collective-bargaining repre- sentative of the employees in the unit found appropriate Since its certification, the Southern Council has sought an executed contract covering the Company's production and maintenance employees In 1974, the Board, in two separate unfair labor practices proceedings, found that the Company had refused to bargain- with the Southern Council, and issued bargaining orders Bancroft Mfg Go, 210 NLRB 1007 (1974), enfd 516 F 2d 436 (5th Cir 1975), cert denied 424 U S 914 (1976), Bancroft Mfg Go, 210 NLRB 1019 (1974) The Company and the Southern Council began negotiations for a collective-bar- 1 The appropriate unit consists of all production and maintenance em ployees employed at the Company s McComb, Magnolia, and Osyka, Mississippi facilities, including plant clerical employees, Interplant drivers leadmen and lead women excluding over the road truckdnvers, office clencal employees, professional and technical employees, watchmen, and guards and supervisors as defined in the Act 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement at the McComb, Magnolia and Osyka, Mississippi facilities in late 1975.2 The Company and the Southern Council met for con- tract negotiations on December 30, 1975, in McComb, Mississippi. The Southern Council's representatives were: Floyd Q. Doolittle, executive secretary of the Southern Council, W. J. Smith, special assistant to the director of the International Union, acting as an advisor to the Southern Council for contract negotiations; Marvin Cov- ington, assistant to the executive secretary of the South- ern Council; Bobby Hamilton, Smith Warren, and Nancy Scott, the local union committee. Yelverton Cowherd, company attorney, Bobby Bellipanni, personnel manager, and Jean A. Kuyrkendall, vice president and director of finance, represented the Company. At this meeting, the Company and the Southern Coun- cil agreed on the ground rules for negotiations. One such rule provided that tentative agreements would not be to- tally binding on either party. Another rule was that either side would have the right to change language not to its liking. Also at this meeting, the Company sought explanation of the relationship between the Southern Council, the Local Union and the International Union. The Southern Council's executive secretary, Doolittle, explained that the International Union would not be party to the agreement. Instead, he advised, the Compa- ny would deal with the Local Union and the Southern Council regarding grievances and arbitration. The parties agreed that the contract's recognition clause would recite the certification, which designated the Southern Council as the exclusive bargaining agent. The Company also inquired as to who would sign the expected agree- ment. The Southern Council responded that the commit- tee from the Local Union and the executive secretary of the Southern Council or his representative would exe- cute the contract. The draft of the "Agreement" section, agreed to by the parties on December 30, 1975, read as follows: This Agreement, made and entered into this day of by and between hereinafter referred to as the COMPANY and SOUTHERN COUNCIL OF INDUSTRIAL WORKERS, and its affiliated LOCAL UNION NO. UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA, AFL-CIO, hereinafter referred to as the UNION. At a subsequent meeting on February 16, 1976, Attor- ney Kerby Bowling also represented the Company. The Company and the Southern Council agreed at this meet- ing that the contract preamble would reflect the Compa- ny's correct name, and that the recognition clause would be copied from the certification. In response to the corn- 2 I base my findings concerning negotiations on the minutes of the bar- gaining sessions and the testimony of Floyd Q Doolittle, W. 1 Smith, and Jean A Kuyrkendall, Union Representative W J Smith cast some doubt on whether initials on the August 20, 1976, draft of art. I were those of Marvin Covington. He admitted that he had not seen those ini- tials affixed In contrast, Company Vice President Jean Kuyrkendall was present, initialed the draft, and credibly testified that he saw Covington initial art I on August 20, 1976 Accordingly, I have found that Coving- ton approved art. I as shown above pany questions about the legal name and affiliations, Smith, the Southern Council's advisor, explained that the complete and correct name was the Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America. At the February 26, 1976 bargaining session, the Com- pany informed the Southern Council that there had been a change in the company structure. Therefore, the agree- ment would be between Croft Metals, Inc., and the Southern Council of Industrial Workers. When asked by the Southern Council representatives if they had an agreement on this item, the Company replied, "Yes. We were to check certification and see what it read." In their bargaining sessions of March 31, April 1, and April 15, 1976, the Company and the Southern Council had extensive discussions about wages, hours, and terms and conditions of employment. At the April 1 session, both sides agreed again to the "Agreement and Recogni- tion" sections and that the recognition section would read the same as the certification. In further discussion of the No Strike No Lockout article, the Southern Council again stated that the International Union would not become a part of this agreement. When the Company representative asked "who will be responsible if we have problems," the Union representative replied, the South- ern Council. Following this exchange, the Company agreed to take out "International," "Trustees" and "Del- egates" and replace that language with "local Union, of- ficers, stewards, plant committeemen, and the Southern Council of Industrial Workers." The June 18, 1976 bargaining session continued discus- sion on the No Strike No Lockout clause. The Company agreed to change "International" to "Southern Council" in all places in the article. Despite these agreements to delete references to the International Union, drafts of ar- ticle I presented on April 1, and August 20, 1976, and on July 22, 1981, contained "and" instead of a comma after the Local Union number, thus appearing to make the International Union a party. One such draft was initialed by the Company Representatives Bellipanni and Kuyr- kendall and the Southern Council Representatives Marvin Covington on August 20, 1976. During 1976 and 1977, the Southern Council called a strike at Croft that lasted for almost 1 year. In May 1977, the Board instituted civil contempt proceedings in the U.S. Court of Appeals for the Fifth Circuit against the Company alleging that the Company had failed to bar- gain in good faith as required by the court's earlier decree. The court, on stipulation of the parties, entered a consent order on January 13, 1978. In June 1978, the Board again instituted civil contempt proceedings alleging that the Company had failed to abide by the 1978 consent order. The Fifth Circuit there- after found the Company, Joseph Bancroft, the chairman of its board, and Jean Kuyrkendall, executive vice presi- dent, to be in contempt. NLRB v. Bancroft Mfg. Co., 635 F.2d 492 (1981). The court directed the Company and the named officials to purge themselves of contempt by immediately returning to the process of bargaining in good faith with the Union as the exclusive representative of CROFT METALS 211 the Company's employees in the appropriate unit until there is a full agreement or it is clear that a bonafide impasse has been reached, embodying such understanding and all the terms thereof in a signed agreement, recognition not to be withdrawn from the Union without further order of the Court Id at 495 [Emphasis added ] The court also ordered the Company to "bargain for no less than 2 consecutive days per week during regular business hours until all contract proposals have been con- sidered and action taken in relation thereto" The court further required the Company to file sworn reports, signed by Bancroft and Kuyrkendall and the union repre- sentatives, with the Regional Director every 30 days showing in detail the nature and course of bargaining in- cluding minutes, proposals, counterproposals, and any communications between the Union and the Company with respect to such bargaining In September 1981, the Company submitted a final contract proposal to the Union which the unit employees rejected Two months later, after further negotiations, the Company again sought agreement on a contract The unit employees accepted the proffered agreement on No- vember 9, 1981 On November 10, 1981, the Union's representative Doolittle, called company attorney Cowherd, notified him of the employees' acceptance of the contract and sought its immediate implementation Cowherd suggested that immediate implementation was not feasible The Union responded that it would allow the Company ade- quate time to permit implementation of those provisions which required preparations, but wanted the rest of the contract to be effective immediately Cowherd said he would convey the Union's request to the Company and seek an answer On November 12, 1981, Cowherd sent a letter to the Union expressing the Company's pleasure at the unit em- ployees' ratification of the contract The letter explained the specific items which prevented immediate implemen- tation of the contract Cowherd chose December 1, 1981, as a target date for executing the contract, which would be effective December 1, 1981 In the same letter, Cowherd stated that he was preparing the contract for execution Company attorney Kerby Bowling sent a mailgram to the Union on November 13, 1981, reiterating the Compa- ny's reasons for a December 1 effective date for the con- tract Mentioning the Company's desire to avoid "piece- meal" implementation of the contract, Bowling wrote that he would notify the Union as soon as possible when the contract was prepared He requested that the Union "look it over for any corrections or additions" and notify him of any changes or corrections, which he would make They would then arrange "a mutually convenient time to sign and determine the effective date" Finally, Bowling requested that the Union send checkoff forms as soon as possible to help the Company establish the neces- sary procedures On November 27, 1981, the Union received a copy of the contract from Cowherd to be proofread The Union's representative, Doolittle, called Cowherd on November 29 or 30 to discuss corrections During this conversation, Cowherd asked Doolittle if he had received the new sig- nature page which Cowherd had sent Doolittle said he had not, adding that he saw nothing wrong with the one he had in hand The signature page in Doolittle's posses- sion showed the parties to be Croft Metals, Inc and Local Union 2280, with a signature space for approval by the Southern Council of Industrial Workers The Company's proposed change would include the Interna- tional Union as party to the contract Doolittle objected to the Company's proposed signature page He examined article I of the contract and discovered an "and" after Local Union 2280 instead of a comma, tfius showing the International Union as a party Doolit- tle advised Cowherd of his discovery and recommended substitution of a comma for "and," as the International Union was not a party to the contract Cowherd replied that the Company would not readily accept the change Doolittle and Cowherd agreed to meet on December 2 to proofread the contract On December 2, 1981, company officials Gerald Ab- dalla and Jean Kuyrkendall met with Union Representa- tives Floyd Doolittle and Steve Herrin After Abdalla distributed copies of the contract, the union representa- tives found that the "and" remained in article I after the Local Union's number The Union insisted on removal of the "and," stating also that the International Union could not sign the agreement as a party Company Vice President Abdalla contended that the International Union had been a party all along He insist- ed that before the Company would sign the contract, the International had to sign At this point, Doolittle tele- phoned the International Union's headquarters where he learned that he could not sign the contract unless the International Union had been certified as bargaining agent Doolittle relayed this to Abdalla, who repeated that the Company would not sign the agreement unless the International also signed as a party Abdalla and Kuyrkendall left the meeting, taking all copies of the contract with them, to look for a copy of the certification Thereafter, Abdalla found from the cer- tification that the "Southern Council of Industrial Work- ers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO" was the certified representative of the Company's production and maintenance employees Nevertheless, Abdalla adhered to his refusal to sign unless the International Union did so also, as a party The parties met again February 9, 1982, at a meeting arranged by a Federal mediator Doolittle again stated that, as a matter of its settled policy, the International Union would not sign the contract as a party Abdalla continued to insist that the Company would not sign unless the International signed as a party He also repeat- ed the Company's position that the International Union had been a party from the outset The Federal mediator met with Doolittle and Abdalla away from the rest of their respective committees, ex- plaining to Abdalla that international unions historically do not sign contracts and that this policy was no differ- ent from policies of other international unions Doolittle again asked Abdalla to sign the contract, which he re- 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fused to do Following some discussion about errors in the merit increases and seniority list, the meeting ad- journed The Company has continued to refuse to sign the agreement unless the International Union signs as a party to the contract The unsigned contract included the following provi- sion The Company further agrees to continue in effect during the term of this Agreement the group health, life, accidental death and disability plans covering the bargining unit employees It is understood be- tween the parties that the Company will continue to pay two-thirds of the premium for the group health plan with the employee paying one-third Doolittle next heard from Abdalla in April 1982, re- garding a change of insurance carrier The two met that month to discuss the change of carrier from Blue Cross to Connecticut General, and the increased rates At the time of this meeting, the Company was paying 66-2/3 percent of the health insurance premium and the unit employees were paying the remaining 33-1/3 percent Doolittle approved the change of carrier and the new rates In May 1983, Doolittle received a letter from Abdalla informing him that the Company was going to change the percentage that the Company and employees would pay for insurance coverage The Company contribution would be reduced from 66-2/3 percent to 55 percent and the employee contribution would be increased from 33- 1/3 percent to 45 percent The letter said these changes would be implemented as of June 1, 1983, with the change in employees' rate being effective with their June 3, 1983 checks On May 23, 1983, Union Representative Doolittle and the employees' committee met with Doolittle, Abdalla, Kuyrkendall, Personnel Manager Frank Waters, and At- torney John Waldrip to discuss the health insurance pre- miums Doolittle requested a breakdown in information as it pertained to the bargaining unit as the Company had combined bargaining unit employees with salaried employees and other nonunit employees in compiling in- surance information Doolittle stated that the Union was definitely opposed to the increase of employee contribu- tion from 33-1/3 percent to 45 percent but wanted fur- ther information to determine if the bargaining unit em- ployees were paying more than their fair share The company representatives left the Meeting to con- sult the insurance carrier regarding the requested infor- mation On the same day, the Company notified the Union that the carrier was unable to provide information limited to the bargaining unit The Union again objected to the change in percentage contributions, although it agreed that the employees would contribute one-third of the increase in premiums The Company declared its in- tention to implement the changes in insurance contribu- tions, and did so in June 1983 C Analysis and Conclusions Under settled law, an employer violates Section 8(a)(5) and (1) of the Act by conditioning its execution of a col- lective-bargaining agreement upon the inclusion of a nonmandatory subject of bargaining NLRB v Borg- Warner Corp, 356 U S 342, 349 (1958) The court in Borg-Warner also pointed out that a "recognition clause does not come within the definition of mandatory bargaining" Id at 350 Consistent with these principles, the Board has held that an employer violated Section 8(a)(5) and (1) of the Act by insisting that an internation- al union became a signatory to a contract, when a local union was the certified bargaining representative of a unit of employees Kit Mfg Co, 150 NLRB 662, 672 (1964), enfd 365 F 2d 829 (9th Cir 1966) The holding in Kit is controlling in the instant case Thus the record makes clear that by November 10, 1981, the Company and the Union had reached accord on a collective-bar- gaining agreement and that on December 2, 1981, and again on February 9, 1982, the Company was prepared to execute the agreement if the International Union would sign it as a party I find no merit in the Company's contention that the parties had not reached a full agreement on November 10, 1981 The facts show that the parties met and bar- gained extensively concerning terms and conditions of employment, over a 6-year period Their efforts culmi- nated in the Company's proposal which the unit employ- ees accepted on November 9, 1981 By their subsequent actions, conversations, and letters, representatives of the Company and the Union affirmed their understanding that an agreement had been reached Thus on November 10, the Union informed Company at- torney Cowherd of their employees' acceptance of the contract, and requested immediate implementation Cow- herd responded citing difficulties preventing immediate implementation of the contract, but did not question the existence of an agreement Indeed, Cowherd's letter of November 12, 1981, expressed the Company's pleasure at the employees' ratification of the contract The letter went on to mention specifics concerning the logistics of putting the contract into effect More importantly, Cow- herd set a December 1 target date for a meeting to sign the contract which would become effective on that date Company attorney Kerby Bowling's mailgram of No- vember 13 is further evidence of agreement He restated the December 1 target date and the Company's desire to set up a mutually convenient time to sign the contract and fix an effective date for implementation Bowling also asked for checkoff forms as soon as possible to help the Company establish the necessary procedures On December 1, 1981, and February 9, 1982, the only issue which the Company raised was the International's signature On both occasions, the Company's representa- tive, Vice President Abdalla declared that the Company would sign the contract only if the International Union did so as a party Under Borg-Warner and Kit, Abdalla's insistence on that condition amounted to an unlawful re- fusal to bargain That the Union in 1976 and 1981 inadvertently sig- naled agreement that Local 2280 and the International Union would be parties to the contract did not assist the Company's case For as shown above, on each occasion when the subject arose in discussion during the 6 years CROFT METALS 213 of negotiations, the International Union's officials, who were present to assist the Union, stated unequivocally that the International Union would not be a party to the contract Such serious and consciously considered re- sponses are entitled to acceptance over a quick initialing without careful examination or discussion of the lan- guage In any event, on December 2, 1981, and again on February 9, 1982, the Union and the International Union stated that the International Union would not be a party to the collective-bargaining agreement The Company re- fused to sign the contract and continues to refuse, insist- ing, at all times, that it would do so if the International Union agreed to sign as a party There is no suggestion in the controlling cases that the Union's conduct justified the Company's insistence that the International Union sign the contract as a party Nor has the Company cited any authority to sustain its position The Company designated December 1, 1981, as the ef- fective date of the contract which was to expire on No- vember 30, 1982 There was no showing that the Union had rejected that date when it met with the Company on December 2, 1981, or February 9, 1982 I find, therefore, thk the effective date of the contract was December 1, 1981 However, assuming that the parties had not agreed on an implementation date, that omission would not excuse the Company's unlawful refusal to sign the con- tract Georgia Kraft, 258 NLRB 908, 911 (1981) In sum, I find that by refusing to execute (since Febru- ary 9, 1982) the collective-bargaining agreement reached by the parties on November 10, 1981, the Company has violated Section 8(a)(5) and (1) of the Act The terms of the agreement require the Company to continue paying two-thirds (2/3) or 66-2/3 percent of the health insurance premium and the employees pay one- third (1/3) or 33-1/3 percent of the premium By terms of the agreement, it continues in effect from year to year after November 30, 1982, unless one party "notifies the other in writing at least sixty (60) days prior to any expi- ration date, of its desire to terminate, amend or revise the Agreement" Under this clause, the Company was not free to make unilateral changes, even after November 30, 1982, without the consent of the Union, absent the speci- fied notice The Company did not give such notice The Board has held that an employer violated Section 8(a)(5) and (1) of the Act when it changed an element of a health insurance provision which intimately affected the employees, and was thus a mandatory subject of bar- gaining, during the term of the collective-bargaining agreement, without the approval of their employees' col- lective-bargaining representative and without complying with Section 8(d)(3) of the Act 3 3 Section 8(d)(3) of the Act provides, inter alia That where there is in effect a collective bargaining contract cover mg employees in an industry affecting commerce, the duty to bar gain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such ter mination or modification— (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simul taneously therewith notifies any State or Territorial agency estab lished to mediate and conciliate disputes within the State or Tern- In the instant case, the Company without the Union's approval and without complying with the notice provi- sions of Section 8(d)(3) of the Act, increased the unit em- ployees' health insurance premiums contribution from 33- 1/3 percent to 45 percent In so doing, the Company failed to bargain in good faith with the Union and there- by violated Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 Respondent Croft Metals, Inc , is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC and the United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO-CLC, respec- tively, are labor organizations within the meaning of Sec- tion 2(5) of the Act 3 At all times material, the Southern Council has been and continues to be the exclusive representative of Re- spondent's employees in the following bargaining unit found appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act All production and maintenance employees em- ployed at Respondent's McComb, Magnolia and Osyka, Mississippi, facilities, including plant clerical employees, interplant drivers, leadmen and lead women excluding over-the-road truckdnvers, office clerical employees, professional and technical em- ployees, watchmen and guards, and supervisors as defined in the Act 4 By failing and refusing on February 9, 1982, to exe- cute the collective-bargaining agreement with the South- ern Council, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 5 By unilaterally, and without the consent of the Union, modifying the collective-bargaining agreement as it pertains to the percentage of employer and employee contributions to payment of group health insurance costs, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be or- dered to cease and desist from such conduct and take such affirmative action as I find necessary to remedy the effects of the unfair labor practices and to effectuate the policies of the Act Having found that Respondent unlawfully refused to bargain with the Union by failing and refusing to sign a tory where the dispute occurred, provided no agreement has been reached by that time, and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement, I shall recommend that Respondent be required to execute that agreement and give retroactive effect to its terms from December 1, 1981. I shall also order that Respondent make whole its employees for any loss of wages or other employees ben- efits they may have suffered as a result of Respondent's failure to sign the collective-bargaining agreement. In ad- dition, I shall also order that Respondent, on the Union's request, rescind the changes in employer and employee contributions to the payment of group health insurance costs and reimburse those employees who were required to make excess health insurance payments. Interest on all wages or benefits due herein shall be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).4 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 ORDER The Respondent, Croft Metals, Inc., McComb, Missis- sippi, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively regarding wages, hours, and other terms and conditions of employment with the Southern Council of Industrial Workers, United Brotherhood of Carpenters, and Joiners of America, AFL-CIO-CLC, as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees em- ployed at Respondent's McComb, Magnolia and Osyka, Mississippi, facilities, including plant clerical employees, interplant drivers, leadmen and lead women excluding over-the-road truckdrivers, office clerical employees, professional and technical em- ployees, watchmen and guards, and supervisors as defined in the Act. (b) Refusing to execute the collective-bargaining agreement with the Southern Council, which was agreed upon on November 10, 1981, and which should have taken effect on December 1, 1981, on the grounds that the United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC is not a party to the agree- ment. (c) Failing and refusing to give effect to the terms and provisions of the agreed-on collective-bargaining agree- ment with the Southern Council by unilaterally changing the percentage of employees' contribution to payments of group health insurance. 4 See Ogle Protection Service, 183 NLRB 682, 683 (1970), and see gener- ally Isis Plumbing Co, 138 NLRB 716 (1962) 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. (d) 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, which is nec- essary to effectuate the policies of the Act. (a) On request of the Union, sign the collective-bar- gaining contract agreed on between the Union and Re- spondent on November 10, 1981, the agreement to be ef- fective from December 1, 1981. On request of the Union that the foregoing contract be executed, give retroactive effect to its terms, and compensate any employee cov- ered by the contract for any material disadvantage they may have suffered as a consequence of Respondent's re- fusal to sign the agreement, in the manner set forth in the section of this Decision entitled "The Remedy." If no such request is made by the Union, bargain, on request, with the Union as the exclusive bargaining representative of the employees in the previously described appropriate unit, and, if an understanding is reached, embody such untlerstanding in a signed agreement. (b) Reimburse employees for payments of health insur- ance premiums in excess of the percentage agreed to in the contract, that they were required to make as a result of Respondent's unilateral change in the payment of pre- miums, with interest. (c) Make whole its employees for their loss of wages and other benefits which are provided for in the agree- ment for the period on and after December 1, 1981, plus interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) On request of the Southern Council, rescind the unilateral changes in employer and employee contribu- tion to payments of group health insurance. (0 Post at its facilities in McComb, Magnolia, and Osyka, Mississippi, copies of the attached notice marked "Appendix." 6 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"