Florida Steel Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1976

226 N.L.R.B. 123 (N.L.R.B. 1976)

FLORIDA STEEL CORPORATION
Florida Steel Corporation andUnited Steelworkers of
America, AFL-CIO. Cases 11-CA-5943 and 11-
CA-5946
September 23, 1976
SUPPLEMENTAL DECISION AND
- CLARIFICATION OF ORDER
On November 20, 1975, the National Labor Rela-
tions Board issued a Decision and Order I in the
above-entitled proceeding in which it found that the
Respondent has engaged in unfair labor practices
within the -meaning of Section 8(a)(1) and (3) of the
Act. The Board ordered, inter alia, that the Respon-
dent cease and desist from refusing to institute its
new quarterly wage review policy (TEAM) and from
refusing to grant wage increases thereunder pursuant
to such review to bargaining unit employees at its
Charlotte plant, Croft, North Carolina, and from
withholding certain fringe benefit increases, listed in
footnote 3 of the Decision, from these employees.
Thereafter, on December 5, 1975, the General
Counsel filed a motion for reconsideration and to
modify the Decision and Order of the Board in
which it contends, inter alia, that "it would appear"
the Board has limited monetary recovery to the pay
raises employees would have received from August
15, 1974, to April 19, 1975, when the complaint is-
sued, without ordering ongoing implementation of
the TEAM policy of quarterly wage reviews and in-
creases, if applicable. The General Counsel similarly
interprets the remedy for withholding of corporate-
wide fringe benefits as impliedly limited to April 23,
1975, the date of the hearing when amendment was
made to include then recent fringe benefit withhold-
ings, and contends that the instant unfair labor prac-
tice case warrants a broader remedial order.
On December 12, 1975, the Charging Party (Unit-
ed Steelworkers of America, AFL-CIO, herein called
the Union) also filed a motion for reconsideration
and/or clarification of the Decision and Order of the
Board in which it suggests that the Board remove
from the remedial language in its Decision reference
to granting "the same" increases to unit and nonunit
Charlotte employees, which tends to imply that the
Board has found that nonunit employees traditional-
ly receive the same TEAM increases as unit employees,
when, in fact there is no evidence on the issue, and
the history of such increases indicates, that produc-
tion and maintenance employees "traditionally re-
ceive increases considerably greater than those grant-
ed to nonunit employees." It approves that part of
'221 NLRB 554.
123
the Board language declining to set a specific hourly
amount for the omitted TEAM increases. It also sug-
gests the feasibility of the Respondent's conducting a
wage survey to ascertain wages appropriate at an ear-
lier point in time.
Also received, on December 12, was Respondent's
motion to strike the General Counsel's motion. It
contends that "drastic" changes in the remedy are
requested embracing matters not alleged or litigated;
that the remedy here follows the appropriate remedy
already considered and resolved in the earlier case
reported at 220 NLRB,260 (1975), which is currently
pending on review before the Court of Appeals for
the District of Columbia. In its covering letter of De-
cember 10, Respondent states that it is "operating on
the assumption" that under the Board's Rules and
Regulations, Section 102.48(d) and 102.49, no re-
sponse on the merits by it would be acceptable.,unless
directed by the Board, hence its motion to strike is
directed solely to the "jurisdictional question" of
whether the General Counsel's motion is proper at
this time.
In view of the foregoing, the Board, on February
11, 1976,_ issued to Respondent a Notice To Show
Cause why the Decision and Order should not be
modified to include certain of the changes requested
by the General Counsel and the, Charging Party. In
its response to the notice, the Respondent contends,
inter alia, that it would be inappropriate to require it
to grant the TEAM wage increases and benefit im-
provements to the Charlotte employees who are rep-
resented by a certified bargaining agent 2 because
said increases are mandatory subjects of bargaining.
Further, Respondent asserts that, as the Board de-
nied the Motion for Summary Judgment and direct-
ed a hearing 3 in Florida Steel Corporation,4 involving
the same parties and the same issues as raised here-
in,' it would be anomalous for the Board herein to
change its Order as requested by the General Coun-
sel because the purpose of the directed hearing is to
decide those issues raised by the General Counsel's
motion for reconsideration.
The General Counsel has since filed an opposition
to the Employer's response to theiNotice To Show
Cause, emphasizing that "the need for an open-end-
ed remedy" was not revealed until it became clear
that the Respondent "had embarked upon a career of
2 The Union was certified on January 11, 1974
3 In fact, the Board denied the Motion for Summary Judgment because
the Respondent, having originally admitted in its answer to the complaint to
withholding wage and benefit increases from the Charlotte unit employees
because they selected the Union, amended its answer to deny any withhold-
ing for that reason
222 NLRB 586 (1976)
5 The issues are the same in the sense that the failure to institute the
quarterly wage review has been asserted with respect to a new quarter No
fringe benefits are involved
226 NLRB No. 25
124 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
continuing to violate the Act in the identical fashion
as it previously had...." It contends' that the
Board's reason for denying the Motion for Summary
Judgment in the later, Volume 222 case,. involves
only a factual dispute having no relevance to modifi-
cation of remedy in the instant case , and renews its
request for modification of the Order.
Having -carefully considered the matter, we have
decided to issue this supplemental decision for the
purpose of eliminating possible ambiguity to the ap-
plication of our original order of November 20, 1975,
though, as it stands, it represents an on-going man-
date to "cease and desist from refusing to institute"
in the Charlotte unit the corporatewide wage review
policy and wages thereunder, and to grant the fringe
benefits normally applied to all facilities.
By its Decision and Order, the Board intended Re-
spondent to fully implement at Charlotte its new
quarterly wage review policy and give wage increases
thereunder to Charlotte unit employees in the appro-
priate amount but not necessarily the same as that
given nonunit employees at Charlotte, and to grant
to those -employees all the fringe benefit improve-
ments granted corporatewide to Respondent's other
employees. These wage and benefit increases are to
be granted without further delay, even though,'Re-
spondent is engaged in bargaining with the Charlotte
employees' certified bargaining representative, unless
the Union now objects.6
Contrary to the Respondent's assertions , this order
does not substitute the Board's judgment on a specif-
ic wage policy for the judgment of the bargaining
parties. The parties are free to vary this policy by
agreement arrived at, through good-faith collective
bargaining. In the meantime, however, in the context
of this case where the certified Union in an atmo-
sphere charged with hostility to unionization has re-
quested that the wage policy be implemented, the
Respondent may not refuse to provide unit employ-
ees with the benefits of a wage policy which they
would receive but for their selection of the Union as
their collective-bargaining representative, nor may
Respondent refuse to provide them with the fringe
benefits granted on a corporation wide basis.
In reaching our Decision, we are mindful of the
principal that an employer "in a context of good-
faith bargaining, and absent other proof of unlawful
motive," is priviledged to withhold from organized
6 Our original decision noted at fn. 5 that the Union at a bargaining
session on November 7, 1974, requested that the r s wage policy be imple-
mented.
employees wage and benefit increases granted to un-
organized employees or to condition their grant-upon
final contract settlement 7 However, Respondent's
history of unfair labor practices similar to those com-
mitted herein,' and its recent history of other types of
flagrant violations,' indicate a course of unlawful
conduct taken by Respondent in the service of de-
signs inimical to the collective-bargaining process. As
we find Respondent's withholding action to be a part
of its unlawful conduct, we view said withholding as
repugnant to statutory policy, not to be justified as
conduct serving legitimate interests of the Respon-
dent.
Accordingly, we hereby clarify our order by pro-
viding that the Respondent's obligation to pay fringe
benefits granted corporatewide and to implement the
TEAM wage policy corporatewide, which obligation
was specifically made retroactive, continued during
the period that has intervened from the date of the
original Decision (November 20, 1975) until the date
of this Supplemental Decision. In addition, Respon-
dent in the future is to notify the bargaining repre-
sentative of the imminent implementation of sched-
uled TEAM increases , and corporatewide fringe
benefits and offer to, place said benefits into effect
for unit employees at Charlotte unless the Union as
bargaining representative objects.10
Further, as Respondent's course of unlawful con-
duct has the foreseeable consequence of frustrating
the bargaining process,'' we order as part of the rem-
edy for this conduct that the Respondent furnish the
Regional Director of Region 11 with a sworn report
within 15 days following each notification to the bar-
gaining representative that a TEAM or fringe benefit
has been offered to unit employees through their bar-
gaining representative, of the fact of that offer and its
action with respect thereto.
It is hereby ordered that the original Decision and
Order, shall be read in the light of the above discus-
sion, including the specific additions of the three sen-
tences immediately, above.
7 Shell Ohl Company, Incorporated and Hawaii Employers' Council, 77
NLRB 1306 (1948); Chevron Oil Company, Standard Oil Company of Texas
Division, 182 NLRB 445 (1970).
8 See Florida Steel Corporation cases at 220 NLRB 260 (1975); 220 NLRB
1201 (1975), enfd. 538 F.2d 324„ (C A. 4, 1976 ), 221 NLRB 371 (1975); 221
NLRB 554 (1975)
9 See Florida Steel Corporation cases at 214 NLRB 264 (1974); 215 NLRB
97 (1974), 220 NLRB 225 (1975); 222 NLRB 955 (1976), 223 NLRB 174
(1976).
10 Nothing contained in this Decision is intended to operate in derogation
of the rights and obligations of the parties to recast their relationship with
respect to such matters through good- faith collective bargaining.
We note that the Union herein has been certified for nearly 2-1/2 years
and there is no evidence that any meaningful bargaining has taken place.