Burtman Iron Works

National Labor Relations Board - Board Decisions

Nov 30, 2000

332 N.L.R.B. 1313 (N.L.R.B. 2000)

BURTMAN IRON WORKS 1313
Burtman Iron Works, Inc. and Shopmen’s Local Un-
ion No. 501 of the International Association of
Bridge, Structural, Ornamental and Reinforcing
Iron Workers, AFL–CIO. Case 1–CA–36724
November 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On October 29, 1999, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs, the Respondent filed an answering brief to
the General Counsel’s exceptions, and the General Coun-
sel and the Charging Party filed answering briefs to the
Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order as modified and set
forth in full below.2
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act as alleged, we shall order the
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent unlawfully failed
and refused to execute the collective-bargaining agree-
ment it had reached with the Union, we shall order the
Respondent to execute the agreement and to make em-
ployees whole, with interest, for any losses of earnings
and benefits from the effective date of the contract. Such
amounts, if any, shall be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682, 683
1970), enfd. 444 F.2d 502 (5th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In the event that the agreement pro-
vides for contributions to pension and benefit funds, the
Respondent shall make all contractually-required contri-
butions to these funds that they have failed to make since
the effective date of the bargaining agreement, including
any additional amounts due to the funds on behalf of the
unit employees in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213 (1979). Further, the Respon-
dent shall reimburse unit employees for any expenses
ensuing from their failure to make the required contribu-
tions as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981), such amounts to be computed in the manner set
forth in Ogle Protection Service, supra, with interest as
prescribed in New Horizons for the Retarded, supra.3

1 In accord with the General Counsel’s exception we shall modify
par. 3 of the judge’s conclusions of law to read:
The Respondent violated Sec. 8(a)(1) and (5) of the Act by fail-
ing, since October 22, 1998, to execute the collective-bargaining
agreement it reached with the Charging Party Union on August
13, 1998.
2 We shall modify the recommended Order to conform to the judge’s
findings and with the Board’s standard remedial language. We shall
also add a remedy section.
ORDER
The National Labor Relations Board orders that the
Respondent, Burtman Iron Works, Inc., Readville, Mas-
sachusetts, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Failing and refusing from October 22, 1998, to
execute the collective-bargaining agreement it reached
with the Union on August 13, 1998.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Execute the collective-bargaining agreement
reached by the parties on August 13, 1998.
(b) Make employees whole, with interest, in the man-
ner set forth in the remedy section of this decision, from
the effective date of the contract for any losses of earn-
ings and benefits because of the Respondent’s failure to
execute that collective-bargaining agreement on October
22, 1998.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payments
records, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of back pay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at
its facility in Readville, Massachusetts, copies of the at-
3 To the extent that an employee has made personal contributions to
a fund that are accepted in lieu of the Respondent’s delinquent contri-
butions during the period of the delinquency, the Respondent will re-
imburse the employee, but the amount of such reimbursement will
constitute a setoff to the amount that the Respondent otherwise owes
the fund.
332 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent since October 22, 1998.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to execute the collec-
tive-bargaining agreement we reached with the Union on
August 13, 1998.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL execute the collective-bargaining agree-
ment we reached with the Union on August 13, 1998.

4 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL make our employees whole, with interest,
from the effective date of the collective-bargaining
agreement, for any losses of earnings and benefits be-
cause of our failure and refusal to execute the collective-
bargaining agreement we reached with the Union.

BURTMAN IRON WORKS, INC.

Joseph F. Griffin, Esq., for the General Counsel.
Harold N. Mack, Esq. (Phillips, Gerstein, Holber, & Channen), of Haverhill, Massachusetts,
for the Respondent.
Marc H. Rifkind, Esq. (Slevin & Hart P.C.), of Washington, D.C., for the Union.
DECISION1
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. This case involves a dispute between
the Respondent, Burtman Iron Works, Inc. (Burtman), and the Union, Shopmen’s Local Union
No. 501 of the International Association of Bridge, Structural, Ornamental and Reinforcing
Iron Workers, AFL–CIO, over a new collective-bargaining agreement following the old agree-
ment’s expiration on July 15, 1998. In a February 23, 1999 complaint, the General Counsel
alleged that the Respondent failed to sign the new contract, after agreeing on all the material
terms, thus violating Section 8(a)(1) and (5) of the National Labor Relations Act. In a March 5,
1999 answer, the Respondent claimed that it failed to sign because of a disagreement over the
“standard pension benefit.”
This case was tried on August 18, 1999, in Boston, Massachusetts, during which the Gen-
eral Counsel called two witnesses and the Respondent called one witness. Briefs were then
filed by the Respondent, the General Counsel,2 and the Union,3 on October 1, October 5, and
October 6, respectively.
II. FINDINGS OF FACT
Burtman is a material handling manufacturer located in suburban Boston (Readville), with
annual interstate sales and receipts of over $50,000 (G.C. Ex. 1(c)). The Company has had a
long-term collective-bargaining relationship with the Union. At the height of its operation, it
had 200 employees but that number shrank following its bankruptcy filing in November 1995,
following the last collective-bargaining agreement which was signed on July 16, 1995. A
Chapter 11 plan was then approved for the Company in 1997, from which it has not yet been
discharged, and the number of employees shrank to about 40 in mid-1999 (Tr. 146–48, 151).
The Union’s jurisdiction covers all of Massachusetts and there are four other companies whose
employees it represents (Tr. 27).
In 1983, Burtman’s employees became covered by the National Shopmen Pension Fund
(the Fund), which provided for their retirement, which event usually occurred after 25 years of
service. Over 100 union locals, across the United States, participate in the Fund. However,
Local 501 is the only local whose members did not receive the “standard level of benefits,”
which typically yields $160 a month more in retirement benefits per employee (Tr. 21, 25–26,
38, 53). Local 501’s secretary-treasurer, and chief contract negotiator, David Mortimer, was
aware of this shortfall (Tr. 15, 19, 31).
1 Upon any publication of this decision by the National Labor Rela-
tions Board, “stylistic” changes may have been made by the Board’s
Executive Secretary to the original decision of the Presiding Judge.
2 On October 7, the General Counsel filed a motion to correct its
brief, to include two missing lines. The unopposed motion will be
granted.
3 The Union was not represented by counsel at trial. On September
20, 1999, however, the Union’s lawyer sent a letter to the General
Counsel, with a copy to the presiding judge, giving notice that it “will
be appearing. . . .” The brief then followed. No party filed any respon-
sive pleading.
BURTMAN IRON WORKS, INC. 1315
The 1995 contract between the Company and the Union was set to expire on July 15, 1998.
This contract provided that the Company would pay 71 cents per hour into the Fund for each
hour of pay paid to each covered employee (G.C. Exh. 2). Mortimer drafted a new contract in
mid-1998 which proposed, among other things, that the Company’s contribution rate for the
Fund be increased to 81 cents per hour (G.C. Exh. 3). At the first negotiating session on June
30, 1998, Mortimer asked Philip Goodman and Harold Mack, the Company’s treasurer and
lawyer, respectively, whether the Company would agree to provide the standard benefit. This
was the first time that Goodman learned that the employees were receiving a lower benefit
under the Fund. Goodman said that the Company was still in precarious financial shape. Then,
both Goodman and Mack asked Mortimer if agreeing to provide the standard level would cause
any additional cost to the Company. Mortimer replied that there would be no additional cost to
the Company. So, Goodman and Mack said they would consider agreeing to the standard level,
provided there was no additional cost (R. Exh. 1; Tr. 18–19, 21, 40, 45–46, 135, 145–46, 149–
50).
The next bargaining session was July 7, 1998. Mortimer was on the verge of retirement but
he attended this session along with his successor in the negotiations, Anthony Rosaci, the
district representative for the Union’s International wing (Tr. 15, 22, 35, 37, 56–57). Rosaci
then presented the following separate document to the Respondent:

Collective Bargaining Agreement Proposal:
Pensions

The Employer shall enter into an agreement with the Trustees of the National Shopmen Pension
Fund (Trustees) in which the Employer expressly agrees and consents to allow the Trustees to
increase benefit accruals for its Employees who participate in the National Shopmen Pension
Plan (Plan) to the Plan’s standard rates for all years of credited pension service (i.e., both before
and after January 1, 1984). The agreement shall provide for such increase for all Employees
who work one or more hours of Covered Employment under the Plan on or after July 1, 1998.

(GC Exh. 4; Tr. 107–11). Mack reiterated the Respondent’s support for the standard benefit
level provided there was no additional cost to the Company. However, the Respondent rejected
the Union’s proposal for an increase in the Respondent’s current 71 cents per hour contribution
rate (Tr. 60–61). During the next session, on July 16, 1998, the Respondent presented a written
“final offer,” containing a 2 percent wage increase for each of the next three years, plus the
following provision:

Effective the first year of the agreement the “Standard Pension Benefit” available under the Na-
tional Shopmen Pension Fund will be applicable to bargaining unit employees provided there is
no additional cost to the Company and provided they meet the eligibility requirements. . . .

(GC Exh. 5; Tr. 63–64). Goodman thought it was odd that the employees could get higher
benefits without any additional cost borne by the Company. Moreover, he was particularly
concerned about cost increases because of the Company’s precarious financial condition. Yet
Rosaci repeated that the change would cost the Company nothing (Tr. 148, 152–53).
For reasons that had nothing to do with the pension fund, the employees rejected the Com-
pany’s proposal, on July 23, 1998. One day later, Goodman sweetened the Company’s offer
with, among other things, higher wage increases. The employees voted to accept these changes
on July 24 (Tr. 65–68). As negotiations continued, the Respondent suggested the following
language regarding the pension fund:

[t]he Employer shall not be deemed as a guarantor of any increase in benefit accruals, nor shall
said increase in benefit accruals affect the Employer’s Contribution Rate, as provided in Section
14A(D) of the Collective Bargaining Agreement.

(GC Exh. 7). In a conversation with Mack, Rosaci objected to this language. So, stating that it
“got into areas of ERISA and employer withdrawal liability,” Rosaci proposed eliminating the
first clause, thus leaving only the following:

Said increase in benefit accruals shall not affect the Employer’s Contribution Rate as otherwise
provided in Section 14A(D) of the Collective Bargaining Agreement.

Rosaci also suggested that Mack speak with the Fund’s lawyer if Mark had any questions (GC
Exh. 8; Tr. 74–79, 120–23).
On August 13, 1998, Goodman and Rosaci signed a “Settlement Agreement” constituting
“the understanding of the parties as to the collective-bargaining agreement in effect for the
period July 16, 1998 through July 15, 2001.” The agreement provided, among other things,
that:

5. The Employer shall enter into an agreement with the Trustees of the National Shopmen Pen-
sion Fund (Trustees) in which the Employer expressly agrees and consents to allow the Trustees
to increase benefit accruals for its Employees who participate in the National Shopmen Pension
Plan (“Plan”) to the Plan’s standard rates for all years of credit pension service (i.e., both before
and after January 1, 1984). The agreement shall provide for such increase in benefit accruals for
all Employees to whom the Collective Bargaining Agreement is applicable and who work one
or more hours of Covered Employment under the Plan on or after July 1, 1998.

Said increase in benefit accruals shall not affect the Employer’s Contribution Rate as otherwise
provided in Section 14A(D) of the Collective Bargaining Agreement.

(GC Exh. 9). And on August 24 and 31, 1998, Goodman and the National Shopmen Pension
Fund, respectively, signed an agreement, which provided, in pertinent part:

1. Pursuant to Section 2.02(b) of the Merger Agreement between the Trustees of National
Shopmen Pension Fund and Shopmen Iron Workers Pension Fund, the Employer hereby ex-
pressly agrees and consents to allow the NSPF Trustees to increase benefit accruals for its Em-
ployees who participate in the Plan to the Plan’s standard rates for all years of credited pension
service.

2. The Trustees agree that they shall increase the benefit accruals, subject to paragraphs 3, for
the active employees of the Employer covered by the Plan to the standard rate(s) provided by
the Plan.

3. Increases in rates of benefit accruals shall be made only with respect to employees of the
Employer to whom the Collective Bargaining Agreement is applicable and who work one or
more hours of Covered Employment under the Plan with the Employer on or after July 1, 1998.

4. This Agreement shall not obligate the Employer to increase the contribution rate provided for
in the applicable Collective Bargaining Agreement between the Employer and Shopmen Local
Union 501.

(GC Exh. 12).
Sometime in late August or September 1998, Rosaci drafted the new collective bargaining
agreement (GC Exh. 13). Rosaci sent it to the International Union for approval as to form, and
to the Respondent for signature (Tr. 86–87). Before he could sign, Goodman received a phone
call, sometime in October 1998, from Matt Sisson, of American Architectural, a Massachusetts
employer which was also negotiating a contract with Local 501. Sisson told Goodman that the
National Shopmen Pension Fund was substantially underfunded and that Burtman might incur
substantial liability if it withdrew from the Fund. So, Goodman called Mack and another
lawyer specializing in pension law. Because Goodman was concerned that the Fund might
terminate, he sent the following letter to the Union on October 22, 1998 (Tr. 136–38, 154–56,
166):

In the course of our recent contract negotiations, Local 501 made certain representations regard-
ing its proposal that future retirees be eligible for standard benefits as provided by the National
Shopmen’s Pension Fund. As a result of questions that have arisen regarding these representa-
tions, Burtman Iron Works, Inc. must put on hold its tentative agreement regarding said pro-
posal.

Subject to further analysis the company must also decline to execute the collective bargaining
agreement recently forwarded to me.

(GC Exh. 15). However, to date, the Respondent has complied with all other changes in the
unsigned contract, including wage increases to the employees (Tr. 94). On November 13,
1998, Goodman wrote to Rosaci requesting certain information about the Fund, including the
Respondent’s actual or estimated withdrawal liability based on the standard and non-standard
benefit levels (R. Exh. 2). A representative for the Fund responded on December 1, 1998 that
there would be a $1500 charge for such estimates (R. Exh. 3). Finally, on February 25, 1999,
Goodman wrote Rosaci that the Union should pay for this estimate because “this is requested
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
information that Local Union 501 is obliged to supply us under the National Labor Relations
Act . . .” (R. Exh. 4). The Company never received these estimates (Tr. 179).
III. ANALYSIS
The General Counsel alleges that Goodman’s refusal to sign the collective bargaining
agreement violated Section 8(a)(1) and (5) of the Act. But the Respondent counters that its
willingness to sign “was conditional on there being no costs of any nature. . . .” And when
Goodman learned at the eleventh hour of a potential cost regarding withdrawal liability, he
refused to sign.
The Respondent’s argument, however, is untenable. First, while it is clear that the Respon-
dent was genuinely worried throughout the contract negotiations about incurring additional
costs by agreeing to the standard benefits provision, the written documents effectuating that
pension change were only conditioned on the maintenance of the Respondent’s 71 cents per
hour contribution rate to the Fund. Specifically, the August 13, 1998 Settlement Agreement
between the Respondent and the Union, which embodied the parties’ agreement on the yet-to-
be-drafted collective bargaining agreement, said nothing about future withdrawal liability (GC
Exh. 9). Likewise, the August 1998 agreement signed by the Respondent and the Fund was
silent about any conditions regarding any future withdrawal liability to be incurred by Burtman
(GC Exh. 12). Also, the collective-bargaining agreement, signed by the Union and sent to the
Respondent, was likewise silent on this matter (GC Exh. 13).4 Moreover, a draft proposal
containing the condition “there is no additional cost to the Company” was rejected by the
Union on July 23, and on August 13 Goodman acceded to the Union’s suggestion deleting
language that “the Employer shall not be deemed as a guarantor of any increase in benefit
accruals. . .” (GC Exhs. 7,8). Thus, the written documents pertaining to the parties’ actual
agreement on the pension issue do not establish any conditional approval of the standard
pension benefit by the Respondent other than maintaining the Respondent’s per hour contribu-
tion rate. Second, even if the parties’ negotiations could be interpreted as establishing any
broader condition, there is simply no credible evidence that there would in fact be any addi-
tional cost to Burtman based on future withdrawal liability. Rather, all that is present in this
case is a rumor, transmitted by another employer to Goodman, that the fund was underfunded
and that Burtman might incur liability if it withdrew from the fund. But this rumor was purely
speculative, without any supporting evidence. Further, that fund never provided any estimate
on the question of withdrawal liability. Thus, “no useful purpose is served by conjuring up
abstruse concepts” such as phantom conditions in the collective-bargaining agreement. R.E.C.
Corp., 277 NLRB 1107, 1111 (1985). And because there was a meeting of the minds on all
substantive issues and material terms of the contract, as evidenced by the parties’ signing of the
August 1998 settlement agreement, the presiding judge concludes that a valid collective-
bargaining agreement was indeed reached in August 1998. See Intermountain Rural Electric
Assn., 309 NLRB 1189 (1992).
The presiding judge also rejects the Respondent’s next argument that the Union “misrepre-
sented . . . the absence of costs” to the Respondent during contract negotiations. Suffice it to
say that there is not one whit of evidence that union negotiators Mortimer or Rosaci misled
Goodman or Mack on the pension issue at all. Indeed, in late July or early August, Rosaci
invited Mack to speak with the fund’s lawyer about any concerns relative to ERISA or with-
drawal liability, an invitation Mack apparently never accepted. Finally, although not argued by
the Respondent, this is also not a case where a unilateral mistake by one party should void the
contract. Compare Carpenters Local 405, 328 NLRB 788 (1999) (rescission is a remedy
reserved for instances where the mistake is “so obvious”).

4 The Respondent suggests in its brief that Goodman might not have
received GC Exh. 13—the collective-bargaining agreement—from the
Union, thus explaining why he didn’t sign it. The presiding judge does
not take this argument seriously. The parties apparently exchanged
documents before trial and Goodman was definitely presented with GC
Exh. 13 at trial. He still did not sign the agreement.
In sum, it is well-settled that when parties reach agreement as to all the terms of a collec-
tive-bargaining agreement, each party is required by Section 8(d) of the Act to execute that
contract when it is reduced to writing. Moreover, a failure to do so constitutes a violation of
Section 8(a)(5) of the Act. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). Here, notwithstand-
ing the Respondent’s generalized concern about increasing its costs during its current sojourn in
bankruptcy, the Respondent and the Union agreed on an increase in the employees’ pension
benefits, provided that the Respondent’s per hour contribution rate into the pension fund not be
increased. The parties did not condition this increase in benefits on anything else, including
any future withdrawal liability to be incurred by the Respondent. Thus, the Respondent’s
failure to sign the contract violates Section 8(a)(1) and (5) of the Act. Accordingly, the Re-
spondent will be ordered to sign it and to take other ancillary remedial action.
CONCLUSIONS OF LAW
1. The Respondent, Burtman Iron Works, Inc., is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Shopmen’s Local Union No. 501 of the International Association of Bridge,
Structural, Ornamental and Reinforcing Iron Workers, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the Act by failing, since October 22,
1998, to execute the July 16, 1998, contract negotiated between the Union and the Respondent.
4. The unfair labor practice of the Respondent, described in paragraph 3, above, affects
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]