Croft Metals, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1985

272 N.L.R.B. 208 (N.L.R.B. 1985)

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"