Florida Steel Corp.

National Labor Relations Board - Board Decisions

Sep 12, 1975

220 N.L.R.B. 260 (N.L.R.B. 1975)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Steel Corporation and United Steelworkers of
America, AFL-CIO . Case I1-CA-5776
September 12, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On November 29, 1974, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and
to adopt his recommended Order as modified herein.
REMEDY
Having found that the Respondent canceled its
scheduled area wage survey for Charlotte, upon
which a general wage increase was customarily
based, and subsequently discriminatorily withheld
from Charlotte its normal annual wage increase, the
Administrative Law Judge recommended that the
unit employees be made whole by a payment equal-
ing what each would have earned beginning Febru-
ary 1, 1974, at an increase of 40 cents per hour, with
interest at 6 percent. As the Administrative Law
Judge found, this amount was "about" the average
wage increase given by Respondent at its 10 other
facilities in 1974 (as shown by G.C. Exh. 34) and it
was the amount given by Respondent with the
Union's consent (retroactive to December 2, 1973) at
the Indiantown facility, a steel mill similar to Char-
lotte. Relying on H. K. Porter v. N. L. R. B., 397 U.S. 99
(1970), Respondent excepted to the Administrative
Law Judge's granting of a monetary remedy when
the increase should be the subject of negotiations. In
addition it excepts to the rationale used to justify the
choice of 40 cents per hour as a fair increase at Char-
lotte and the choice of an effective date shortly after
certification. In view of the record evidence that Re-
spondent does not give the same general wage in-
crease at all its 11 facilities , and its concern for main-
1 The Board does not adopt the Administrative Law Judge's gratuitous
comments which characterize the Board 's decisions as lacking uniformity
and speculate on the trend of Board decisions.
taining a competitive position in each labor market,
we shall not set a specific hourly sum. Accordingly,
we shall order Respondent to make whole all those
employees in the appropriate unit at Charlotte for
any loss of pay they may have suffered by reason of
the discrimination practiced against them by
Respondent's refusal to give them a general wage in-
crease for 1974. If Respondent and the Union cannot
agree on the amount of the general increase and/or
the retroactive date, it shall be left to the compliance
stage of these proceedings to determine such
amounts and the proper date, or, if agreement cannot
there be reached, to a backpay proceeding. Interest
on the amounts found due shall be fixed at 6 percent
per annum from the appropriate retroactive date.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Florida Steel Corpora-
tion, Croft, North Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
that Order, as modified below:
1. Delete paragraph 2(c) and substitute the follow-
ing:
"(c) Make whole all those employees in the appro-
priate unit at Charlotte for any loss of pay they may
have suffered by reason of the discrimination prac-
ticed against them by refusing to give them a general
wage increase for 1974, as provided in the `Remedy'
section of the Board's Decision."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER FANNING, dissenting in part:
Like my colleagues I would affirm the Administra-
tive Law Judge's findings of 8(a)(1) and (3) viola-
tions. However, contrary to my colleagues, I also
would adopt the Administrative Law Judge's remedy
in regard to the general wage increase. Respondent
admittedly canceled, because of the Union, the an-
nual area wage survey it had scheduled at Charlotte
upon which a general wage increase was customarily
based and, as we have found, discriminatorily with-
held from its Charlotte employees the general wage
increase granted its other facilities. A wage survey
taken at this time would not, in my judgment, be an
accurate or reliable tool for determining the amount
of the wage increase improperly withheld in 1974. It
also appears that Respondent, after the Union's cer-
tification and the commencement of bargaining pur-
suant to certification, declined at the Union's request
to make a survey that would have been relatively
220 NLRB No. 57
FLORIDA STEEL CORPORATION 261
timely. That this may have been due to lack of coop-
eration by area employers, as the Respondent con-
tends, demonstrates the difficulty of substituting a
later survey once the decision to cancel the annual
survey and withhold the annual wage increase only
at Charlotte was made. Thus, I view it as entirely
reasonable for the Administrative Law Judge to have
recommended a general wage-increase remedy of 40
cents per hour based on the average wage increase
Respondent gave in 1974 to its 10 other facilities, as
well as upon that given at Respondent's Indiantown 2
steel mill which is very similar to its Charlotte mill?
I find no merit in the Respondent's contention
that, in the absence of the results of an area wage
survey, the amount of the general wage increase and
its retroactive date cannot be set. The Board should
not, by refusing to set a reasonable amount for the
increase , permit the Employer to benefit from its
own malfeasance in canceling the survey because of
the Union and discriminatorily withholding the wage
increase 4
I do not construe the holding in H.K. Porter v.
N.L.R.B., 397 U.S. 99 (1970), urged by Respondent,
to prohibit the Board from setting the specific
amount of the general wage increase which, as the
record clearly indicates, is a term and condition of
employment, as Respondent has given this increase
at Charlotte annually since 1966. Like the Adminis-
trative Law Judge, I find no merit in Respondent's
contention that the recommended remedy would
jeopardize its bargaining position. In H.K. Porter, su-
pra, the Supreme Court reversed a Board order in
which the employer was required to establish a union
dues checkoff system because it had bargained in
bad faith as to this issue . In that case, the Court stat-
ed at page 102 that the Board is "without power to
compel a company or a union to agree to any sub-
stantive contractual provision of a collective-bargain-
ing agreement ." In my view, the make-whole remedy
recommended by the Administrative Law Judge is in
no sense a contractual provision, but a reasonable
attempt to redress past discrimination, well within
the Board's authority to provide.'
As it is also reasonable to assume that, but for the
Union, the Charlotte employees would have received
this general pay increase in a February payroll, and
as the Indiantown increase was made retroactive to
an earlier date (December 2, 1973), I see no reason to
question the February 1 date the Administrative Law
Judge recommended for Charlotte.
5 Petrolane-Franklin Gas Service, Inc, 174 NLRB 594 (1969). See also
cases where the Administrative Law Judge failed to provide a compensatory
remedy. American Fire Apparatus Company, 160 NLRB 1318 (1966), enfd
380 F 2d 1005 (C.A 8, 1967), where the Administrative Law Judge failed to
remedy the discriminatory withholding of a Christmas bonus because com-
putation would be difficult , if not impossible , the Board gave a make-whole
order for the monetary loss saying it was not required to decide upon a
detailed formula ; the court enforced , noting that the difficulty in computing
the precise amount due each employee was not a substantial reason for
modifying the Board 's order. Leeds & Northrop Company, 162 NLRB 987
(1967), enfd. 391 F.2d 874, 880 (C.A 3, 1968), where the Administrative
Law Judge failed to remedy a respondent's unlawful unilateral change in
computation of annual profit sharing , the Board did so in its order , noting
that the record was not adequate to determine clearly whether there was a
detriment-a matter more appropriate for compliance ; the court enforced,
saying-
The Board's back pay award in this case is supportable on the ground
that the union might have successfully resisted all or a portion of the
reduction in its share of profits had it been afforded an opportunity to
bargain, and the employees should not be left in a worse position than
they might have enjoyed if the union had been given the opportunity to
bargain . While it is true that a retroactive order might afford the em-
ployees a better position than the union 's bargaining might have
achieved, the Board can hardly be said to be effectuating policies be-
yond the purposes of the Act by resolving the doubt against the party
who violated the Act Retroactive enforcement must always contain in
it some element of hardship on the employer, but a failure to grant
back pay imposes at least an equal hardship on the employees
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present evidence, the National Labor Relations
Board found that we, Florida Steel Corporation, vio-
lated the National Labor Relations Act, and has or-
dered us to post this notice and we intend to carry
out the order of the Board and abide by the follow-
ing:
2 Respondent , after the Union lost the November 9, 1973, election at
Indiantown , gave its employees there a wage increase retroactive to Decem-
ber 2, 1973.
3 To be noted is the fact that there was no evidence presented to indicate
that the hourly rate set by the Administrative Law Judge was unreasonable
or burdensome for Respondent.
4 See National Licorice Co. v. N.L.R.B., 309 U.S 350, 364 (1940), where
the Court states-
The Board asserts [7 NLRB 537] a public right vested in it as a public
body, charged in the public interest with the duty of preventing unfair
labor practices . The public right and duty extend not only to the pre-
vention of unfair labor practices by the employer in the future, but to
the prevention of his enjoyment of any advantage which he has gained
by violation of the Act... .
The Act gives you the right:
To form, join, or help unions
To choose a union to represent you in bar-
gaining with us
To act together for your common interest
or protection
To refuse to participate in any or all of
these things.
WE WILL NOT threaten to withhold all benefits
if our employees select the Union as their repre-
sentative, nor will we withhold any.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL grant to all the employees, past and
present , in the appropriate unit at Charlotte
(Croft) all the fringe benefits retroactive to the
time such grants were made corporationwide.
WE WILL make whole all those employees of
the Charlotte (Croft) appropriate unit who qua-
lified for merit pay increases on and after Janu-
ary 14, 1974, for the merit increases we withheld
from them because of the Union by payment to
each of them of a sum of money equal to that
which each lost by reason of our withholding the
merit pay increase each had accrued, with inter-
est thereon at the rate of 6 percent per annum.
WE WILL make whole all the employees who
worked in the Charlotte (Croft) appropriate unit
for the 1974 annual wage increase which we
withheld because of the Union with interest
thereon at the rate of 6 percent per annum.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
FLORIDA STEEL CORPORATION
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge and an amended charge filed on June 12 and Au-
gust 6, 1974, respectively, by United Steelworkers of Amer-
ica, AFL-CIO, herein referred to as the Union, the Gener-
al Counsel of the National Labor Relations Board , herein
referred to as the General Counsel I and the Board, re-
spectively, by the Regional Director for Region 11 (Win-
ston-Salem , North Carolina), issued its complaint dated
August 9, 1974, against Florida Steel Corporation , herein
referred to as the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the Labor Management Relations Act,
1947, as amended , herein referred to as the Act.
Respondent duly filed its answer admitting certain alle-
gations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice , a hearing on such issues was held
before me in Gastonia, North Carolina , on September 18
and 19 and in Washington , D.C., on October 9, 1974. All
parties were represented by counsel and were afforded full
opportunity to be heard , to produce and cross-examine
witnesses , and to introduce evidence and material pertinent
to the issues.
At the conclusion of the hearing , oral argument was
1 This term specifically includes the attorney appearing for the General
Counsel at the hearing.
waived. Briefs were received from the General Counsel,
Union, and Respondent on November 9, 1974.
Upon the entire record in the case and upon my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I there-
fore find that:
Florida Steel Corporation is, and has been at all times
material herein , a Florida corporation with a plant located
at Croft, North Carolina, where it is engaged in the manu-
facture of steel and reinforced rods. During the past 12
months, which period is representative of all times material
herein, Respondent received goods and raw materials from
points directly outside the State of North Carolina valued
in excess of $50,000. During the past 12 months, which
period is representative of all times material herein, Re-
spondent manufactured and shipped directly to points out-
side the State of North Carolina products valued in excess
of $50,000.
Accordingly, I find that Respondent is now and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor
organization admitting to membership employees of Re-
spondent.
Ill. THE UNFAIR LABOR PRACTICES
A. The Facts
Most of the facts here were stipulated. All of them could
have been. Thus, the only disagreement between the par-
ties arises in the law applicable to those facts. On this latter
point the parties are poles apart.
Respondent's corporate headquarters are located in
Tampa, Florida. In all it operates a total of 11 plants and
facilities located in the southern States. Its main steelmill
or plant is also located in Tampa. It has other steelmills or
plants located at Croft, North Carolina, herein referred to
as the Charlotte plant, as was done throughout this hear-
ing, and at Indiantown, Florida. The other facilities do not
manufacture steel . No Union represented the employees at
any of these II plants and/or facilities at least until the
Union was certified as the representative of the production
and maintenance employees at Charlotte on January 16,
1974.
The facts here prove that, at least since 1966, it has been
Respondent's custom to have its wage salary administrator,
Charles E. Moore, conduct an area wage survey at each of
Respondent's plants and facilities and, based on the find-
ings of that area wage survey so conducted, Respondent
has granted annual wage increases to the employees at
each of these plants or facilities. Because of the time in-
FLORIDA STEEL CORPORATION 263
volved in making these surveys and because of the condi-
tions in each location surveyed, the time and the amount of
the wage increase granted differed both in the time of the
increase and frequently in the amount of the increase, at
the individual plants. In short, the annual wage increase
granted the employees of the individual plant or facility
tended to differ both as to time and amount. There was no
single corporatewide wage increase, although on occasions
the amounts of increase so' granted were identical.
On the other hand, having determined that fringe bene-
fits were the same throughout Respondent's operating
area, it was Respondent's customary practice for fringe
benefits such as paid holidays, improvements in the paid
vacation policy, improvements in the retirement plan and
savings plan, and improvements in the Group Health In-
surance plan to be granted toall its employees corporate-
wide at one and the same time. The announcement of the
improvements in fringe benefits to the employees was usu-
ally made in Respondent's monthly magazine called the
"Florida Steel Triangle" which Respondent sent to all
company employees. 1
In February 1973; as a result of the area wage survey
then completed, Respondent granted its Charlotte' employ-
ees a wage increase amounting to 8.9 percent and ranging
from 27 cents to 63 cents per hour. This was to prove to be
the last annual wage increase at Charlotte to date.
The_ record also proves that on January 14, 1973, the last
merit pay increase to a Charlotte employee was granted in
accordance with Respondent's corporatewide merit pay
plan.
Regarding the lack of merit increases thereafter, Joe M.
Menendez, Respondent's Charlotte manager of industrial
relations , testified as follows:
Q. (By Mr. Clark) Mr. Menendez, for all merit in-
creases which this document that you prepared, which
this document indicates, the employee was rated eligi-
ble for, since you have been here in '74, they were not
awarded because of your instructions when you came
not to award merit increases because of the Union's
presence, is that correct?
A. That is correct.
Q. And, is it correct that irrespective of whatever
the Company might have done, as you have speculat-
ed, in the future with regard to the merit increase plan,
had the Union not been there at all, the fact is that
you were instructed not to give these increases because
of the Union.
A. The Union's presence, yes, sir.
It was in this state of affairs that the Union began an
organizational campaign among the production and main-
tenance workers of Respondent at Charlotte which includ-
ed the truckdrivers stationed there. On May 21, 1973, the
Union filed an RC petition for certification in that unit at
the Respondent's Charlotte plant.
On August 26 Respondent announced corporatewide
that it was increasing the meal allowance of its truckdrivers
from $1.75 to $2 per day except for the drivers stationed at
Charlotte.
On August 30 the representational election was held at
the Charlotte plant. The Union won. Respondent duly
filed objections:
On September I I the Union filed another RC petition
involving the production and maintenance employees at
the Indiantown plant.
That same day, September 11, Respondent announced
the addition of the Friday after Thanksgiving as a paid
holiday corporatewide, except for the Charlotte unit em-
ployees.
In regard to the exception made regarding the Charlotte
unit employees in this last grant James Hogue,
Respondent's vice president of industrial relations, testified
as follows:
Q. (By Mr. Morgan) And the reason the employees
at Charlotte did not receive that additional holiday in
1973 being the Friday after Thanksgiving, was be-
cause they had selected the Union as their representa-
tive, isn't that true?
A. Let me cover that point if I may. As a matter of
practice with us, when a petition is received and an
election is pending, we do not increase the wages and
hours or change the working conditions for them.
Now the same thing is true if the employees elect a
bargaining agent and are subject to collective bargain-
ing, we do not make an improvement in the wages,
hours, or benefits unilaterally after the Union is certi-
fied.
Q. So the reason they did not receive this extra paid
holiday in 1973 in Charlotte was because they had in
August of 1973 voted the Union as their representa-
tive.
A. Correct. That would be it.
On November 9 the representational election at Indian-
town was held. The Union lost. The Union filed objections.
In December 1973, Moore who was in charge of the
Respondent's area wage surveys submitted his proposed
schedule for such surveys for the year 1974. He had sched-
uled the area wage survey for the Charlotte plant during
the month of January 1974. He was instructed by Hogue to
omit from his schedule the area wage survey at Charlotte
and did so. No other wage survey for the Charlotte area
was made during the year 1974. Based on those surveys
Respondent granted the customary annual wage increases
at all its plants and facilities during 1974 except for the
Charlotte employees.
As to this, Vice President of Industrial Relations Hogue
testified as follows:
Q. (By Mr. Morgan) I am talking about the general
increase right now, that the reason that they have not
received their general increase is because they are cur-
rently represented by the Union?
A. In 1974, it would have been the logical time for
us to review had they not been represented for a gen-
eral increase; we did not survey or give a general in-
crease at that time because we were subject to negotia-
tions with the United Steelworkers.2
2 The facts show that actually Hogue canceled the area wage survey and
increase for Charlotte in December 1973, prior to certification and while the
Board was still considering Respondent's objections to the election at Char-
Continued
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. My question is: Had the employees [at Char-
lotte] not been represented by the Steelworkers, then
the Company would have brought in their survey man
and given that pay raise, isn't that true?
A. Had we been able to move unilaterally, yes.
On January 1, 1974, Respondent announced the grant-
ing of increased benefits and improved vacation policy as
well as improved retirement and savings plans corporate-
wide except for the employees at Charlotte and at Indian-
town.
On January 16, 1974, the Board certified the Union as
their exclusive bargaining representative for the unit em-
ployees at Charlotte.
On March 20 a hearing was held on the Union's objec-
tions to the election at Indiantown. One week later Re-
spondent by letter to the Union offered to grant the Indi-
antown employees the already announced improvements
in the vacation and retirement program as well as the an-
nual wage increase. On April I I the Union accepted the
Company's offer in that regard. On April 17 Respondent
granted the Indiantown employees a 40-cent-per-hour
wage increase retroactive to December 2, 1973, as well as
the improvements in the aforementioned fringe benefits
retroactive to January 1, 1974, the date of the grant.
On April 18 Respondent announced the granting of in-
creased hospitalization insurance benefits effective as of
May 5, 1974, to its employees corporatewide except for the
Charlotte employees and the Indiantown employees.
On May 7 the decision to hold a rerun election at Indi-
antown was made? On May 30 the second Indiantown
election was held. The Union won. Respondent filed objec-
tions to this election. These objections are still pending be-
fore the Board as of the date of the hearing.
Negotiations between Respondent and the Union relat-
ing to the Charlotte employees began on April 24, 1974.
Since then, other negotiation meetings have been held on
June 20, July 2-3, July 23-24, August 7-8, and September
12. No collective-bargaining agreement has resulted there-
from.
Those are the undisputed facts of the instant case.
B. Conclusions
With the facts of the instant case either stipulated or
undisputed, the issue here narrows down to a single legal
one.
Respondent's brief acknowledges: "For that reason, the
Company had a fixed policy of not granting fringe bene-
fits, increases (sic) where the Union had filed a petition."
Amended to read: "The Company had a fixed policy of
not granting any benefits [to unit employees] where the
Union had filed a petition" and it rather adequately de-
scribed this sole legal problem involved here.
Respondent's brief also recognizes the present estab-
lished case law on the subject when it states:
lotte. Hence actually Respondent was not "subject to negotiations" in De-
cember at the time the wage survey was canceled.
7 The stipulation states that the Regional Director made this decision but
Respondent's bnef indicates that it was a Board decision
The Company is aware of the general rule that an
employer in deciding whether to grant benefits while a
representation election is pending should decide that
question as he would if the Union were not in the
picture , Dan Howard Mfg. Co., and Dan Howard
Sportswear, Inc., 158 NLRB 805 (1966).
However by arguing the instant case as though it were a
refusal-to-bargain case , which it is not, Respondent is able
to conclude its brief with the following paragraph:
The company respectfully submits that any benefits
that may have been withheld from the employees were
motivated by an attempt to comply with the Board's
decision to not unilaterally grant changes in wages,
hours and working conditions here pending a Board
election or after a Union has been certified and for the
reasons stated above the complaint should be dis-
missed in its entirety.
On the other hand , General Counsel and the Union ar-
guing this matter as a coercion and discrimination case,
which it is , conclude that the legal question above must be
decided in accord with established law and thus adversely
to Respondent 's position.
One of the arguments urged by Respondent is that, if
Respondent granted the same benefits to the Charlotte unit
employees as it was granting corporatewide to its nonunit
employees in accordance with its long and well established
customary practice , it would be jeopardizing its "bargain-
ing position ." Respondent also urges that, if a remedy were
to issue in this case , the Administrative Law Judge and the
Board would in effect be writing the terms of Respondent's
collective -bargaining agreement (still not in existence) in
violation of the rule of H.K. Porter, 397 U.S. 99 (1969).
These arguments are not available to Respondent in the
instant case because Respondent granted only one benefit
from which the Charlotte unit employees were excluded, to
wit, the improved group health insurance granted on May
5, 1974, after the Union had finally been certified at Char-
lotte on January 16, 1974. All the other benefits the Char-
lotte employees had been deprived of were granted by Re-
spondent in the usual , normal , established course of
business of Respondent prior to that certification and
hence could not have affected Respondent 's "bargaining
position."
The above is true even as to the annual wage increase,
though that increase would not have appeared in the Char-
lotte paychecks until sometime in February . The facts
show that this annual wage increase procedure had existed
throughout the corporation since at least 1966, and has
resulted in annual wage increases every year thereafter.
However , the facts also prove that it was in December 1973
when Hogue ordered Moore to cancel his already sched-
uled area wage survey at Charlotte , and thus disrupted the
usual and ordinary corporate procedures , which by 1974 at
least constituted a condition of employment and, of course,
was a condition precedent to the actual wage increase re-
ceived at Charlotte , which occurred usually sometime in
January or February. Thus, it was in December 1973, and
prior to the certification , that Respondent deliberately and
unilaterally eliminated a condition of employment affect-
FLORIDA STEEL CORPORATION 265
ing the wages of the Charlotte unit employees , and thus
interrupted its normal established procedures leading to
the annual wage increase at Charlotte. Admittedly the De-
cember change was made unilaterally by Respondent be-
cause of the filing of the union petition.
Nor would providing a "make whole" remedy for cor-
recting a discrimination against the Charlotte employees
constitute the writing of a portion of a collective -bargain-
ing agreement.
The same thing is true regarding Respondent 's actions in
regard to its long-established merit pay plan at Charlotte
which also had become a condition of employment since
the plan's establishment in 1966 . Originally in 1973 at
Charlotte this merit plan was interrupted by the wage
guidelines established by the cost of living council , but that
interruption was removed on August 13, 1973. Regardless
of that, however , Respondent thereafter unilaterally with-
held merit pay raises from some 17 Charlotte employees
(Respondent's estimate) who had qualified therefor under
Respondent 's plan, again because of Respondent 's admit-
ted policy of withholding benefits after the filing of an RC
petition . In regard to this merit pay plan , Respondent also
claimed that it had been phased out or abandoned in all of
Respondent's plants, but had to admit that the plan had
never been phased out in the Charlotte plant, and at the
time of the hearing still provided a one-step wage increase
for eligible employees . Thus these 17 unit employees lost a
one-step wage increase which Respondent unilaterally
withheld after they had qualified under the plan based on
Respondent 's policy after the filing of a petition.
The facts show that both the annual wage increase and
the merit pay plan had been in existence and operating at
all of Respondent's plants as well as Charlotte , since 1966.
Every year thereafter Respondent had had Moore make
an annual area wage survey in the geographical areas of
each plant , which was thereafter followed by a wage in-
crease at each location within a few weeks of the comple-
tion of the survey in the particular geographical area. Nat-
urally the amount of the increase and the exact date
thereof varied from plant to plant . But the procedures and
resultant increase were long established and expected. It
had become by 1974, at least, an established condition of
employment at each plant as an integral part of
Respondent's compensation policy. In 1974 at Charlotte
Respondent unilaterally changed that condition of employ-
ment as far as the Charlotte unit employees were con-
cerned, because of the aforementioned company policy.
The same thing holds true regarding the merit pay increas-
es. They also had become a condition of employment, and
were also unilaterally canceled by Respondent as regards
the Charlotte unit employees, for the same reason.
Respondent's grants of fringe benefits , on the other
hand, had always been made applicable by Respondent at
the same time to all employees corporatewide . Moore had
found that , unlike the area wage rates , fringe benefits were
the same throughout the geographical areas of the
Respondent 's plants . This condition of employment Re-
spondent also changed due to the company policy regard-
ing the filing of RC petitions, so that the employees at
Charlotte and the Indiantown employees while the petition
was pending there were excepted from the fringe benefits
granted corporatewide by Respondent.
Thus at the time Respondent unilaterally ended these
customary longstanding procedures at Charlotte, it was in
effect breaking with tradition at a time when it was, under
the conditions existing there, under no obligation to bar-
gain with the Union, and hence could not have been "jeop-
ardizing Respondent's bargaining position."
It would appear that Respondent's acknowledged policy
of withholding benefits after the filing of an RC petition
stems from Exhange Parts Company, 375 U.S. 405 (1964),
where the Supreme Court found the employer to have vio-
lated Section 8(a)(1) by conveniently granting its employ-
ees a one-time wage increase just prior to the holding of an
RC petition. Although that case was a case of granting
benefits for antiunion purposes, the Supreme Court im-
pliedly recognized the present problem of withholding ben-
efits for the same purpose when it stated:
The danger inherent in well-timed increases in bene-
fits is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is obligated.
Exchange Parts represents the "velvet glove" whereas the
instant case constitutes the "fist" inside. Thus the case con-
stitutes no authority for Respondent's policy. An addition-
al distinction between the cases is the fact that in Exchange
Parts the increase was a one- time shot, whereas the bene-
fits withheld from unit employees here were long-estab-
lished, well-recognized annual or corporatewide ones, con-
stituting, in fact, conditions of employment regarding
compensation.
As Respondent's brief recognized, supra, the present
Board law on the subject has long been well establishes( by
decisions of both the Board and the Courts. In McCormick
Longmeadow Stone Co., Inc., 158 NLRB 1237, 1238 (1966),
the Board held:
2. For the additional reasons set forth above, we
also find in agreement with the trial examiner, that the
Respondent violated Section 8(a)(3) and (1) of the Act
by withholding the benefits which, it had led the em-
ployees to believe, would be forthcoming but for the
Union.
The Board (at 1242) in the case also approved Trial Exam-
iner Reel's decision therein that:
An employer's legal duty in deciding whether to
grant benefits while a representation case is pending is
to determine that question precisely as he would if a
union were not in the picture. If the employer would
have granted the benefits because of economic cir-
cumstances unrelated to union organization, the grant
of those benefits will not violate the Act. On the other
hand, if the employer's course is altered by virtue of
the union's presence, then the employer has violated
the Act, and this is true whether he confers benefits
because of the union or withholds them because of the
union.
4 To the same effect see also- Gates Rubber Company, 182 NLRB 95
Continued
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also have to agree with the reasoning of the Fifth Cir-
cuit Court of Appeals in N.L.R.B. v. Dothan Eagle, Inc.,
434 F.2d 93, 98, 99 (1970) where the court said:
At first glance it might appear that the employer is
caught between the proverbial "devil and the deep
blue sea." It is an unfair labor practice to grant a wage
increase during the campaign and bargaining periods,
but at the same time it may be an unfair labor practice
to refuse to grant an increase during the same period.
Indeed, the employer in this case has made just this
sort of an argument, claiming that it could not grant
the pressroom employees their normal progression
raises since to do so would have been an unfair labor
practice. We find little merit in such arguments. The
cases make it crystal clear that the vice involved in
both the unlawful increase situation and the unlawful
refusal to increase situation is that the employer has
changed the existing conditions of employment. It is
this change which is prohibited and which forms the
basis of the unfair labor practice charge.
This policy was widely known and had been in effect
for a considerable period of time. It had thus become
part of the established scheme of compensation and
could not be deviated from for purposes of influencing
the vote during the union election. Nor could this poli-
cy be changed without union consultation during the
collective-bargaining period. In other words, the peri-
odic increases were'such an integral part of the struc-
ture of compensation that the refusal to continue these
increases was in effect a denial of benefits which the
employees had every reason to expect.'
Here, of course, Respondent's determination to withhold
the annual wage increase and corporatewide fringe benefits
from unit employees only was admittedly due to the pres-
ence of the Union and its having filed an RC petition.
Hence this deliberate withholding of customarily granted
benefits from unit employees because of the presence of
the Union violated Section 8(a)(1) of the Act.
Respondent cites the case of J. J. Newberry Co., Inc., v.
N.L.R.B., 442 F.2d 897 (C.A. 2, 1971). The circuit there
reversed a Board decision cited supra, which had followed
the established general rule noted above. However a read-
ing of this circuit court decision discloses that the circuit
reversed the Board in this case upon the very narrow
ground that the Board had failed there to make a finding of
"discriminatory intent" on the part of the employer.
In the event that it should be held that the Respondent's
discriminatory intent here is not almost a per se finding by
reason of the Respondent's singling out of the unit employ-
ees at Charlotte, and subsequently excluding the Indian-
town unit employees after the filing of an R petition there,
(1970); May Department Stores Company d/b/a Famous-Barr Co, 174
NLRB 770 (1969); Safeway Stores, Inc., 186 NLRB 930 (1970); J. J New-
berry, 183 NLRB 102 (1970); N L R.B. v. Dothan Eagle, Inc., 434 F.2d 93
(C.A. 5, 1970).
5 While not bound by the circuit 's decision , as the Board has frequently
emphasized , I agree fully with the court's reasoning and find it applicable to
the instant case.
as the only employees from which such customary and an-
nual benefits were to be withheld, Respondent has still sup-
plied further convincing evidence of its discriminatory in-
tent.
First, it refused the Union's request at Charlotte that
Respondent grant these customary benefits to the Char-
lotte unit employees even after assurances by the Union
that it would file no unfair labor practices if such grants
were made by Respondent to the unit employees. Yet after
the Union lost the first election at Indiantown, it was the
Respondent who requested permission from the Union to
grant those benefits retroactively to the Indiantown em-
ployees. The Union agreed. The result was that the Indian-
town employees were promptly made whole by the Re-
spondent by giving them the benefits theretofore withheld
retroactive to the date the grants had been announced.
There is only one explanation for Respondent's disparate
attitude in these two cases : The Union had won the elec-
tion at Charlotte but had lost the election at Indiantown.
Quite obviously, therefore, the Respondent believed that
the Indiantown employees should be rewarded for having
defeated the Union whereas the Charlotte employees
should be punished for voting for the Union.
If such proof is still not conclusive of Respondent's dis-
criminatory intent, the pamphlets distributed by Respon-
dent at Indiantown prior to the election there must neces-
sarily remove any doubt of the discriminatory intent. Prior
to the election at Indiantown, Respondent circularized the
Indiantown voters with a leaflet headed "Will History Re-
peat Itself?" That heading was followed with a bargaining
history at Charlotte from May 21, 1973, to May 9, 1974,
when, according to the leaflet, "Union makes proposal on
contract language plus 55 cents an hour to try to make up to
its Charlotte members since they haven't had a raise since
February 73 or benefit improvements since May of 73. " (Em-
phasis supplied.) Respondent thereupon advised the voters
"Don't get caught in a trap like this!!" and advocated a
"No Vote." Another Respondent campaign propaganda
leaflet distributed to the Indiantown employees ends up an
account of the bargaining history at Charlotte with a pur-
ported newspaper headline saying, "Union Asks Company
to Give Wages and Benefits to Charlotte that Indiantown
Has Already Received" and then, before advising a "Vote
No," adds, "Will This Be Your Future?? Don't Go Down
the Charlotte Road" with a picture of a highway sign in
between the two sentences proclaiming a "roadblock."
Thus by its own actions Respondent has conclusively
proved its antiunion motivation in its withholding of bene-
fits from the Charlotte unit employees. Nothing could be
clearer.
Finally, since the hearing in the instant case closed, the
Board itself (Members Fanning, Kennedy, and Penello)
has applied the sockdolager to the instant case. It agreed
with the decision of Administrative Law Judge Seff in a
prior Florida Steel case involving the same events in the
same plant of the same company.6 In that case the Board
found Respondent violated Section 8(a)(1) by threatening
its Charlotte employees "to take away all benefits if our
employees select the Union as their representative" and
6214 NLRB No . 59 (1974)
FLORIDA STEEL CORPORATION 267
required a notice to be posted by Respondent stating that
Respondent would not thus threaten its employees. The
only difference between Administrative Law Judge Seff's
case and the instant one is that in his case only the threats
to withhold benefits were litigated whereas here the effectua-
tion of those threats is the issue. Obviously, if the threat to
withhold benefits violated Section 8(a)(1) of the Act, then
the effectuation of those threats to the unit employees only
must also violated Section 8 (a)(1).
Also being bound by Board decisions , I also must find
that the admitted statements of supervisors of Respondent
that the unit employees would receive no benefits because
of the Union , as stipulated in the instant case also , violates
Section 8(a)(1) of the Act . I so find.
A study of the Board decisions in the 3-4 years last past
makes it perfectly clear that the old, established principles
and rules of labor law firmly entrenched in Board and
court precedent of longstanding are at the present point in
time subject to change without notice. This same study
discloses that today the decision as to whether a case is
found or dismissed all too often depends more on the com-
position of the Board panel making that decision than
upon the facts of the law of the case itself . This complete
lack of decisional uniformity is well recognizable and rec-
ognized. This phenomenon not only jeopardizes the de-
sired end of a stable national labor policy but also the very
effectiveness of the agency itself . Uniformity must be
achieved if only so that the private practitioner may cor-
rectly advise the client as to what the law actually is and
thereby bring stability back to labor relations. This would
also tend to reduce the Board's well-advertised "burgeon-
ing case load" by eliminating the many cases being tried
today on the gamble that a favorable panel will decide the
particular case.
Thus the very recent case of Bancroft Whitney Co., Inc.,
214 NLRB No. 12 (1974), is of interest here as an indica-
tion that the rules of law applied in the instant Decision are
not yet subject to change. In the cited case Administrative
Law Judge Stanley Gilbert found that "Respondent violat-
ed Section 8(a)(5) and (1) by its action in withholding the
1973 wage dividend from the bargaining unit employees"
but had not violated Section 8(a)(3) thereby due to a total
lack of "discriminatory intent" on the part of the employer.
The majority on the panel (Members Kennedy and Penel-
lo) agreed that there was no discriminatory intent in with-
holding the dividend and on that basis only sustained the
dismissal of the 8 (a)(3) allegations . The majority then dis-
missed the 8(a)(5) findings of the Administrative Law
Judge as follows: "This discontinuance of the bonus pay-
ment to the unit employees without bargaining would be a
violation of Section 8(a)(5) unless , in the circumstances de-
scribed above, the Union is deemed to have waived its
right to require such bargaining. Contrary to the Adminis-
trative Law Judge , we find such waiver ." In his dissent
Member Jenkins , indicating that the majority had changed
the old rules regarding waiver, also disagreed with the find-
ing that there was no "discriminatory intent" and thus
would have found the 8(a)(3) violation. Thus, theoretically
at least , all three members of this panel appear to agree
with the law followed here. This is especially so as there
can be no question here as to the Respondent's "discrimi-
natory intent" and there is still no "zipper clause" waiver
involved.
Consequently, I find that Respondent by threatening to
withhold all benefits from the unit employees in Charlotte
"because of the Union" violated Section 8(a)(1) of the Act,
and further that by actually withholding the numerous
benefits mentioned above from the Charlotte unit employ-
ees with a discriminatory intent caused by the presence of
the Union also violated Section 8(a)(3) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section III,
above, and occurring in connection with the Respondent's
operations described in section I, above, have a close, inti-
mate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative actions
designed to effectuate the policies of the Act.
It has been found that Respondent illegally discriminat-
ed against the employees in the appropriate unit at Char-
lotte by refusing to give them the customary and estab-
lished annual wage increase in 1974, excepting them from
the fringe benefits granted all other employees of Respon-
dent corporatewide after May 21, 1973, and depriving
some 17 employees who had qualified under Respondent's
established plan of merit pay increases. In order to remedy
these unfair labor practices I will order that Respondent
make whole all of the Charlotte employees so deprived ret-
roactive to the date the benefits were actually granted, or
should have been granted, to the affected Charlotte em-
ployees with interest thereon at 6 percent per annum.
The above remedy is satisfactory as far as the fringe
benefits and the merit pay plan increases are concerned as
all of the facts necessary to such a determination are pres-
ently known and available.
However, that remedy as it applies to the annual wage
increase in 1974 for the Charlotte unit employees is some-
what more complicated. This complication results from the
fact that Respondent canceled its usual procedures leading
to that increase in December 1973 so that the usual area
wage survey upon which the increase was to be determined
was never made. In fact Respondent subsequently refused
a request by the Union, after bargaining had commenced,
to make that customary survey. Hence the facts necessary
for an exact determination of the amount of the increase
which would have been made by Respondent are unavail-
able in the usual form as well as the exact date on which
the increase would have become effective, due exclusively
to Respondent's own actions. Further Respondent has en-
joyed the use of the money of which it deprived the em-
ployees for the whole period since December 1973, when
Respondent canceled the wage increase procedure for
Charlotte.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances Respondent contends that
the Board cannot grant a remedy as the matter is now the
"subject matter of negotiations" and further that, if it
should provide a remedy, it would be illegal under the doc-
trine of H.K. Porter, supra. No so, for this is a proposal to
remedy an unfair labor practice already committed, and
not a term of a collective-bargaining agreement still in the
process of negotiations.
General Counsel's brief suggests that the amount and
the date of the 1974 increase be left to negotiations be-
tween the Union and the Respondent or, if no agreement
can be reached in those negotiations, left to a Board com-
pliance proceeding. It would seem, judging from the
lengthy period of time the Charlotte negotiations have al-
ready taken without discernible results to date, that this
proposed procedure might never achieve any results. In
addition such a delay would tend only to continue the peri-
od of Respondent's effective discrimination against the af-
fected employees and with apparent Board approval there-
of. Nor today could Respondent obtain money for its own
use at such a low rate of interest. Thus this type of remedy
would permit Respondent to profit by its own wrongdoing
with apparent Board consent. So this suggestion hardly
makes sense as a remedy even though acknowledging that
the facts upon which such a remedy should be based are
somewhat imprecise.
But on the other hand Respondent's own actions and the
chart of the annual wage increases of Respondent's plants
(G.C. Exh. 34) since 1966 provide rather accurate facts
upon which a definitive remedy may be fashioned now.
Respondent's chart proves that the annual wage increase
given the employees at Respondent's various plants aver-
aged in 1974 about 40 cents per hour and were granted by
Respondent at approximately the same time as in 1973. In
fact, before canceled, the area wage survey at Charlotte
had been scheduled for January 1974. Also, with the
Union's consent, Respondent changed its "company poli-
cy" after having won the election in Indiantown, a mill like
the one at Charlotte, and granted the Indiantown employ-
ees a 40-cent-per-hour increase retroactive apparently,
strangely enough, to December 2, 1973, whereas the previ-
ous 1973 increase had been granted in April of that year.
Accordingly, in order not to further penalize the employ-
ees to whom this money is now due and owing, due to
Respondent's discrimination against them and acknow-
ledging that the determination may not be as "accurate" as
the wage survey procedure might have been, even with the
many variables from that survey which the previous in-
creases here were shown to have included, I am going to
order Respondent to pay each of its employees who
worked in the appropriate unit in Charlotte a sum of mon-
ey equal to 40 cents per hour for each hour worked by him
from on and after February 1, 1974, together with interest
thereon at 6 percent per annum.?
Because of the type and extent of the unfair labor prac-
tices engaged in by Respondent, I sense an opposition by
Respondent to the policies of the Act in general and I
7 If perchance this 40 cents per hour can be proved to be slightly inaccu-
rate, I feel confident that this matter will be worked out during the negotia-
tions between Respondent and the Union
deem it necessary to order Respondent to cease and desist
from in any manner interfering with the rights guaranteed
its employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record herein I make the following:
CONCLUSIONS OF LAW
1. By threatening to withhold all benefits from
Respondent's employees in the appropriate unit at its
Charlotte plant and by actually withholding all such bene-
fits from these employees on and after May 21, 1973, when
the Union filed a petition for certification in that unit, Re-
spondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the rights guaranteed them in Section 7 of the
Act, Respondent has interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER'
Respondent Florida Steel Corporation, Tampa, Florida
and Charlotte, North Carolina, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to withhold all benefits from the
Respondent's employees in the appropriate unit at Char-
lotte and actually withholding all such benefits from these
employees on and after May 21, 1973, because of the
Union or because the Union filed a petition for certifica-
tion in such unit.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Grant to all employees in the appropriate unit at
Charlotte all the fringe benefits granted to the employees
of Respondent corporatewide except for those at Charlotte
retroactive to the time that such grants were made.
(b) Make whole all those employees in the appropriate
unit at Charlotte who had qualified for merit pay increases
on and after January 14, 1973, by paying each of them a
sum of money equal to that which he would have earned at
the new rate each would have been paid if Respondent had
not withheld his merit increase with interest thereon at the
rate of 6 percent per annum.
6 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
FLORIDA STEEL CORPORATION 269
(c) Make whole all the employees in the appropriate
unit at Charlotte by paying each of them a sum of money
equal to that which he would have earned on and after
February 1, 1974, at an increase of 40 cents per hour for
the hours each worked thereafter with interest thereon at
the rate of 6 percent per annum in accordance with the
recommendation set forth in the section of this Decision
entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(e) Post at its Charlotte, North Carolina, plant copies of
the attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
9In the event that the Board's Order is enforced by a Judgment of a
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 Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "