Bethlehem Steel Corp.

National Labor Relations Board - Board Decisions

Mar 16, 1987

283 N.L.R.B. 254 (N.L.R.B. 1987)

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