Florida Steel Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1979

242 N.L.R.B. 1333 (N.L.R.B. 1979)

FLORIDA STEEL CORP.
Florida Steel Corporation and United Steelworkers of
America, AFL-CIO. Case I -CA-7046
June 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND TRUESDALE
On June 21, 1978, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed cross-exceptions and 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.
In addition to the remedies recommended by the
Administrative Law Judge, we shall grant the Charg-
ing Party's request for extraordinary remedies in or-
der to fuly remedy Respondent's rejection of the prin-
ciples of collective bargaining as evidenced by its
pattern of unlawful conduct in recent years.
The Board has had occasion to note the repetitive
and flagrant nature of Respondent's violations of the
Act. 2 In 16 separate decisions in the past 5 years,
some of which encompassed myriad instances of mis-
conduct, the Board has found that Respondent has
violated the Act in various ways. The earliest cases
evidenced Respondent's resolve to oppose, through
unlawful coercion, organizational efforts of its em-
ployees, and this pattern has continued in more re-
cent cases. Thus, in eight decisions, the Board has
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 As the Board observed at 226 NLRB 123, 124 (1976):
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 ser-
vice of designs inimical to the collective-bargaining process.
3 214 NLRB 264 (1974), enfd. in part 94 LRRM 2589. (4th Cir. 1977): 215
NLRB 97 (1974). enfd. in part 529 F.2d 1225 (5th Cir. 1976); 220 NLRB 225
(1975), enfd. in part 544 F.2d 896 (5th Cir. 1977): 223 NLRB 174(1976): 224
NLRB 587 (1976). enfd. 82 LC 1 10,147 (5th Cir. 1977): 231 NLRB 651
(1977). enforcement denied 586 F.2d 436 (5th Cir. 1978): 233 NLRB 491
1333
found that Respondent discriminatorily discharged
employees, in derogation of their rights under Section
7 of the Act, as a result of organizing campaigns at
Respondent's plants located in Croft. Tampa. and
Jacksonville.3 In five decisions, the Board has found
that Respondent engaged in surveillance and interro-
gated. threatened, reprimanded, or otherwise coerced
employees who engaged in lawful organizational ac-
tivity.4 Respondent also has withheld wage and bene-
fit increases at plants where organizational campaigns
were being conducted or where employees were rep-
resented by the Union. while simultaneously granting
them to employees at its unorganized plants5-and, in
one such instance, while informing employees at an-
other plant that the presence of the Union at the
Croft plant was the reason for withholding the benefit
increases, thereby utilizing its own unfair labor prac-
tice as a part of its campaign elsewhere in its corpo-
rate structure
Another persistent element in Respondent's labor
relations policy has been its refusal to bargain with
the Union where the Union has been certified as col-
lective-bargaining representative. Respondent unilat-
erally changed certain terms and conditions of em-
ployment at the Croft plant, to the detriment of unit
employees, without reference to its obligation to bar-
gain with the Union, while it improved similar terms
and conditions at an unorganized plant and, as it had
in the past, capitalized on its unlawful action by re-
minding employees that the detriment to employees
at the Croft plant was the result of their organization-
al activity.7 Respondent also has refused to furnsih
information relating to the rights of laid-off employ-
ees, refused to bargain concerning the effects of an
economic layoff, and made unilateral changes in the
work schedules of employees at Croft in derogation of
its duty to bargain with the Union.8 Respondent's
pattern of refusals to bargain also has spread to the
only other organized plant, the plant located in Indi-
antown, where Respondent refused to bargain con-
cerning changes in the rates of pay of employees re-
called from layoff.9
Thus, the pattern is clear. Respondent has used un-
lawful means to oppose employee organizational ac-
tivity at its Croft, Tampa. Indiantown, and Jackson-
ville plants. Having failed in its efforts to stifle
(1977). enforcement denied 587 F.2d 735 (5th Cir. 1979): 235 NLRB 941
(1978).
'214 NLRB 264. supra: 215 NLRB 974. supra. 223 NLRB 174. supra; 224
NLRB 45 1976): 224 NLRB 587. supra.
5 220 NLRB 260 (1975). enfd. 543 F.2d 1389 (D.C. Cir. 1976); 220 NLRB
1201 (1975). enfd. 538 F.2d 324 (4th Cir. 1976): 221 NLRB 371 (1975). enfd
93 LRRM 2018 (1975) (5th Cir. 1976): 221 NLRB 554 (1975). enfd. 562 F.2d
46 (4th Cir. 1977): 222 NLRB 955 (1976). enfd, 536 F.2d 1385 (5th Cir.
1976).
s 220 NLRB 260. 266 (1975).
7231 NLRB 923 (1977).
235 NLRB 941 (1978).
9 235 NLRB 1010 (1978).
242 NLRB No. 195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee free choice at the Croft and Indiantown
plants, Respondent next made the Union's victory a
hollow one by refusing to bargain concerning basic
decisions affecting the working conditions of unit em-
ployees. The instant violation is yet another step in
what can only be characterized as a corporate cam-
paign to chill employee organizational activity
throughout its facilities through unlawful conduct.
We therefore deem it essential to grant the Charging
Party's request for extraordinary remedies in order to
counteract the effects of this campaign of lawlessness.
Accordingly, as recommended by the Administra-
tive Law Judge, we shall order that Respondent cease
and desist from its unlawful conduct and, affirma-
tively, that Respondent furnish the Union the re-
quested information and other information relevant
to the Union's performance of its obligations as repre-
sentative of employees in any bargaining unit in any
of Respondent's plants. In addition, however, we
shall require Respondent to read and post the notice
in each of its plants, include it in appropriate com-
pany publications, and mail it to each and every em-
ployee throughout its corporate facilities. Addition-
ally, because of Resondent's history of interference
with employee rights during organizational cam-
paigns and even after employees have selected a
union to represent them, we shall order Respondent
to afford the Charging Party the right, at any of Re-
spondent's plants if a Board election is scheduled
within the next 2 years in which the Charging Party is
a participant, to deliver a 30-minute speech to em-
ployees on working time; and, for 2 years after entry
of the Order in this proceeding, afford equal time for
the Charging Party to respond to any address made
by Respondent to employees on the question of union
representation. These remedies will reassure Re-
spondent's employees at all plants that, should they
choose union representation, their choice will not be
frustrated due to Respondent's unlawful rejection of
the principles of collective bargaining."
1' These remedies, like similar remedies ordered in J. P. Stevens & Com-
pany, Inc., 240 NLRB 33 (1979). address Respondent's refusal to furnish
information in the context of its overall pattern of misconduct. Thus, al-
though these remedies might be considered punitive if applied to an isolated
instance of misconduct, they are essential to neutralize the effects of Respon-
dent's continuing pattern of unlawful conduct in recent years.
" Member Murphy does not agree with her two colleagues that equal
access is an appropriate remedy for the Board to provide here. Accordingly.
she would not require Respondent to afford the Union with equal access to
the employees on company time. By doing so her two colleagues are forcing
Respondent not only to support the Charging Party's campaign but also are
raising serious questions as to the validity of any election by limiting equal
access only to the Charging Party.
We are puzzled by our colleague's refusal to accord the Union equal ac-
cess to the employees here, inasmuch as she has agreed to give the Union
access to the Employer's bulletin boards on a companywide basis. See Flor-
ida Steel Corp., 233 NLRB 491, fn. 4 (1977). With respect to the possible
problem that Member Murphy foresees in the event that another union seeks
to participate in an election at a Florida Steel facility in which the Union is
on the ballot, and only the latter is accorded access to the plant to address
the employees, we need not consider the hypothetical situation at this time.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent. Flor-
ida Steel Corporation, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to promptly furnish United
Steelworkers of America, AFL-CIO, information rel-
evant to the performance of its obligations as bar-
gaining representative of employees in any bargaining
unit in any of Respondent's plants, including infor-
mation concerning the identity of employees offered
or not offered reinstatement, job placement of rein-
stated employees and any employees displaced by re-
instated employees, and rates of pay of unit employ-
ees.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request by the above-named Union, fur-
nish it information relevant to the performance of its
obligations as bargaining representative of employees
in any bargaining unit in any of Respondent's plants,
including information concerning the identity of em-
ployees offered or not offered reinstatement, job
placement of reinstated employees and any employ-
ees displaced by reinstated employees, and rates of
pay of unit employees.
(b) Mail a copy of the attached notice marked
"Appendix"' 2 to each and every employee throughout
its corporate facilities, post copies at each of its cor-
porate facilities, and include it in appropriate com-
pany publications. Copies of said notice, on forms
provided by the Regional Director for Region 11, af-
ter being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuus places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Convene during working time all employees at
each of its plants throughout its corporate facilities,
either by shifts or departments, or otherwise, and
have a responsible official of Respondent, at depart-
1' In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1334
FLORIDA STEEL CORP.
ment supervisor level or above, read to the assembled
employees the contents of the attached Appendix.
(d) If, within the next 2 years following entry of
this Order, the Board schedules an election in which
the Union is a participant at any of Respondent's
plants, then, upon request by the Union, afford at
least two union representatives reasonable access to
Respondent's said plant or plants to deliver a 30-min-
ute speech to employees on working time, the date
thereof to be within 10 working days before but not
within 48 hours prior to any such election.
(e) In the event that during a period of 2 years
following entry of this Order, any supervisor or agent
of Respondent convenes any group of employees at
any of Respondent's plants and addresses them on
the question of union representation, give the Union
reasonable notice thereof and afford two union repre-
sentatives a reasonable opportunity to be present at
such speech, and, upon request of said representa-
tives, permit one of them to address the employees for
the same amount of time as Respondent's address.
(f) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine wit-
nesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice. We intend
to abide by the following:
WE WILL NOT fail or refuse to bargain collec-
tively with United Steelworkers of America,
AFL-CIO, as the exclusive representative of em-
ployees in any bargaining unit in any of our
plants by failing or refusing to promptly furnish
the aforesaid Union with information relevant to
the performance of its obligations as bargaining
representative in such units, includng informa-
tion concerning the identity of employees offered
or not offered reinstatement, job placement of
reinstated employees and any employees dis-
placed by reinstated employees, and rates of pay
of unit employees at our Croft, North Carolina,
plant. The appropriate unit at our Croft, North
Carolina, plant is:
All production and maintenance employees,
truckdrivers, plant melt clerks and fabricating
shop plant clericals employed at our Croft,
North Carolina, steel mill and fabricating divi-
sion; excluding office clerical employees, first
aid attendant, draftsmen, utility employees
(messengers), fabricating shop leadmen, labo-
ratory technicians, guards and supervisors as
defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE WILL, upon request by the aforesaid
Union, furnish it information relevant to the per-
formance of its obligations as bargaining repre-
sentative of employees in any bargaining unit it
represents anywhere in our Company, including
information concerning the identity of employ-
ees offered or not offered reinstatement, job
placement of reinstated employees and any em-
ployees displaced by reinstated employees, and
rates of pay of unit employees at our Croft,
North Carolina, plant.
WE WILL send to all our employees copies of
this notice; WE WILL read this notice to all our
employees; and WE WILL grant the Union, as
ordered, speaking opportunities at any of our
plants.
FLORIDA STEEL CORPORATION
DECISION
STArEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: The
substantive question here is whether the Company unlaw-
fully refused to bargain by not giving to the Union informa-
tion about its reinstatement of discriminatees on the ground
it was handling those matters with the Board's compliance
officer. On this I find, as set out below, the Company was
obligated to supply the information to the Union.
There is also a question of whether the usual remedy is
adequate or whether something more is indicated for this
Company. I find additional measures are needed.
These particular proceedings originated May 23, 1977,
with unfair labor practice charges filed by United Steel-
workers of America, AFL-CIO (the Union), against Flor-
ida Steel Corporation (Respondent). These charges were
amended July 5, 1977. Bases on the charges, as amended,
the Regional Director for Region I I of the National Labor
Relations Board (the Board) issued a complaint on July 20,
1977, alleging that Respondent had engaged in unfair labor
practices within the meaning of Section 8(aXI) and (5) of
the National Labor Relations Act, as amended, by refusing
since December 7, 1976 (more specifically on December 7
and 20, 1976, February 24, 1977, and thereafter) to provide
the Union with information which it had requested con-
cerning the recall, job placement, and rate of pay for em-
ployees who previously had been found by the Board to
have been unlawfully discharged by Respondent. Respon-
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent answered on July 28, 1977, denying that its refusal was
unlawful and admitting other factual allegations of the
complaint. The case was tried before me at Gastonia, North
Carolina, on September 26, 1977.
Based on the entire record, including my observation of
the witnesses and consideration of the briefs' filed by the
parties, I make the following:
FINDINGS OF FACT
I. THE EMPLOYER
Respondent, a Florida corporation, is engaged at Croft,
North Carolina, and various other States in the manufac-
ture of steel products. During the 12 months preceeding
issuance of the complaint it received directly from points
outside North Carolina goods and raw materials valued at
over $50,000 and shipped its manufactured products valued
at over $50,000 directly to points outside North Carolina. It
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE UNION
United Steelworkers of America, AFL-CIO (the Charg-
ing Party, hereinafter referred to as the Union), is a labor
organization within the meaning of Section 2(5) of the Act.
III. rHE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In March 1973 the Union commenced an organizing
campaign among Respondent's employees at Croft, North
Carolina. This resulted in a Board election held August 30,
1973, which the Union won. On January 16, 1974, the
Board certified the Union as the exclusive representative of
the Croft employees.' It is undisputed that since January
16, 1974, the Union has represented the employees in the
certified unit and by virtue of Section 9(a) of the Act is their
exclusive representative for the purpose of collective-bar-
gaining with respect to wages, hours and working condi-
tions, and other terms and conditions of employment.
During the Union's organizing campaign Respondent
strongly resisted and engaged in numerous and serious un-
fair labor practices. See Florida Steel Corporation, 214
NLRB 264 (1974), 221 NLRB 1008 (1975), enfd. in part 94
LRRM 2589 (4th Cir. 1977). In those proceedings the
Board found that 13 employees had been unlawfully dis-
charged and ordered their reinstatement. The Fourth Cir-
cuit Court of Appeals sustained the Board findings with
respect to 12 of these discriminatees.
The issue of remedy referred to herein is dealt with in the briefs.
2 The complaint herein alleges, the answer admits, and I find, that all
production and maintenance employees, truckdrivers, plant melt clerks and
fabricating shop plant clericals employed at Respondent's Croft, North
Carolina, steel mill and fabricating division, excluding office clerical employ-
ees. first-aid attendant, draftsman, utility employees, (messengers), fabricat-
ing shop leadman, laboratory technicians, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective bar-
gining within the meaning of Section 9(b) of the Act.
B. The Request for Information
Following the Union's certification and beginning about
April 24, 1974, the Union and Respondent began negotiat-
ing, and have since continued to negotiate, a collective-bar-
gaining agreement. As of the time of the hearing herein no
understanding had been reached between them.
Beginning on November 22, 1976, Respondent began of-
fering reinstatement to some of the discriminatees involved
in the Board's decisions referred to above. Thus, on that
date, Respondent's Manager of Industrial Relations James
S. Rogers wrote seven employees3 as follows:
You are hereby offered full, immediate and uncondi-
tional reinstatement to your former, or a substantially
equivalent position with this Company, without preju-
dice to your seniority or rights.
If you desire reinstatement, contact the undersigned
no later than Friday, December 3, 1976, for instruc-
tions as to when and where to report for work. If we
have not heard from you by the close of business on
December 3, it will be assumed you do not wish to be
reinstated to your former, or a substantially equivalent
position with the Company.
In the days that followed at least four of these employees
contacted Rogers and he confirmed their conversation by
sending each a letter, the texts of which were identical ex-
cept for variations in dates and rates of pay quoted. For
example on December 7, 1976, he wrote to Robert Early as
follows:
This letter will confirm our conversation of Monday,
December 6, 1976, at which time we established your
return to work date as Monday, December 13, 1976.
You should report to my office at 8 a.m. at which time
you will receive an appointment for your return to
work physical as well as your job assignment.
As we discussed previously, your rate of pay will be
$3.53 per hour.
After Respondent began sending out reinstatement let-
ters on November 22, 1976, Harold McIver, coordinator
and southeast area director of the AFL-CIO Industrial
Union Department and the Union's chief representative
representing Respondent, learned of some of them from
employees who called him seeking his advice. McIver also
had been in touch with the Board's compliance officer con-
cerning the offers of reinstatement to the discriminatees.
On December 7 Mclver telephoned Rogers to inquire if
Respondent in fact was recalling the discharged discrimi-
natees. He also inquired which of them were being offered
reinstatement and when, what jobs they were being offered
and what rate of pay was being offered. Rogers did not give
him the information but instead replied that he had sent out
letters to some employees and that those letters were self-
explanatory. McIver endeavored to keep his foot in the
door by saying some of the discriminatees were confused
and had sought his advice because it had not been clear to
them from the reinstatement letter whether they were being
3 The seven employees were James W. Ashcraft, Robert Early, Charles
Frazier, Henry Huey, Bruce N. Lemond, Lorend Theordore, and John
Wells.
1336
FLORIDA STEEL CORP.
reinstated to the job from which they had been discharged.
He wanted to set up a meeting to discuss the matter with
Rogers but Rogers held to his position that the letters were
self-explanatory.
Not having obtained the information he sought, Mclver
that same day put his request in the form of a letter which
in substance asked that the Union be advised as to the
identity of the employees being reinstated, what jobs they
were being recalled to, the rate of pay for each job, the
identity of the employees they would be replacing, and
what seniority system was being used in connection with
the reinstatements.
Rogers did not himself respond to the letter but instead
referred it to Respondent's attorney, Robert Lanquist. On
December 14 Rogers and Mclver had two more telephone
conversations in one of which McIver asked for a response
to his letter. Rogers still did not respond. On December 16
Lanquist replied by letter on behalf of Respondent stating,
in pertinent part,
Please be advised that recent additions to the work
force at Charlotte have not resulted in the displace-
ment of any employees or otherwise have any known
effect upon the terms and conditions of employment of
persons in the bargaining unit.
Thus, Lanquist answered McIver's question about employ-
ees replaced at that time and by inference his question
about the seniority system, that none was being used. But
he failed to answer the other requests, namely, who was
being offered reinstatement, the dates of reinstatement, to
what jobs, and at what pay.
On December 20 the parties met for contract negotia-
tions and other matters of mutual concern. Mclver again
asked Lanquist whether Respondent had called back the
employees involved in the prior case. He also asked to have
a list of those offered reinstatement, the dates of reinstate-
ment, the jobs which were offered to them, and the rates of
pay offered. Lanquist replied that some were being reinstat-
ed but he did not identify them nor did he provide the other
information requested. Mclver endeavored to justify his in-
terest by telling Lanquist that several of the employees in-
volved in the prior case, particularly Henry Huey, had con-
tacted him saying they were not being reinstated and others
had stated they were offered jobs different from those they
had formerly held. McIver asked Lanquist what was going
on and again requested the information as to who had been
offered reinstatement, the nature of the jobs offered, and the
rates of pay. Lanquist then flatly refused on the ground that
these matters were being handled by the compliance officer
of the Board's Regional Office, a defense which Respondent
continues to urge.
In addition, McIver asked Rogers what seniority system
Respondent was using, indicating the Union wished to ne-
gotiate with Respondent over the return employees as well
as any displacement of other employees resulting from the
reinstatements. Lanquist stated that Respondent was will-
ing to discuss any impact which the reinstatements would
have on the existing workforce. Lanquist asked McIver
what he would suggest by way of a seniority system. Mc-
Iver suggested job seniority. As a result of their discussion
respecting seniority, Rogers on January 3, 1977, sent to the
Union a list of all 147 employees employed in the bargain-
ing unit as of December 29, 1976, showing the name, job
title, rate of pay, and continuous service date of each. The
list included two of the discriminatees, Robert Early and
Henry Huey. Although the list is not limited to the discrim-
inatees to which reinstatement was offered, it contains most
of the information Mclver requested on December 7, and
again on December 14 and 20, but it was still not clear
whether as of December 29 anyone had been replaced, nor
were the dates of reinstatement given.
On January 21, 1977, the same representatives of the par-
ties met for another negotiating session. During this meet-
ing Mclver asked Lanquist for an explanation as to why
one of the reinstated discriminatees was receiving a particu-
lar rate of pay. Lanquist was evasive and did not give Mc-
Iver an explanation.
On January 28 Rogers sent out two more letters offering
reinstatement to two additional discriminatees. On Febru-
ary 4 he sent out similar letters to three more of the discrim-
inatees. The Union was not directly informed of these of-
fers.
On February 24 the parties held another contract negoti-
ating session. Rogers denied such a meeting occurred, but
Mclver described what took place in a believable manner,
and I credit him. By then Mclver had learned from employ-
ees attending a union membership meeting that some of
those offered reinstatement had not been offered the jobs
they formerly held. On February 24 he again asked Re-
spondent's representatives the identity of those they had
reinstated as well as a description of the jobs to which they
had been reinstated and their rates of pay. He stated the
union wanted to negotiate with Respondent respecting the
return of these employees as well as those they might dis-
place and the nature of any seniority system Respondent
was using in the reinstatements. Again Lanquist took the
position that Respondent was handling the matter with the
Board's compliance officer and that the Respondent had no
obligation to negotiate with the Union respecting the rein-
statement of the discriminatees.
On March 1, 1977, Lanquist wrote to William McGarry,
one of the Union's representatives, as follows:
I have been reminded that I neglected to mention in
my February 28 letter' the fact that several of the em-
ployees who were discharged back in 1973 are being
reinstated to their former or substantially equivalent
position, as requested by the recent Court Order. The
resulting displacement of employees currently in these
positions is being handled on the basis of job seniority,
as agreed at our December or January meeting.
From this it is apparent that in the December or January
meetings the parties did negotiate respecting a rule of job
seniority for employees displaced by the reinstatements.
The specifics respecting the identity of the employees in-
volved, the jobs and the rates offpay, however, were not
supplied.
At the hearing McIver explained why he requested the
information which is the subject of this litigation. He was
4 This letter of February 28 was not offered in evidence.
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receiving inquiries from discriminatees who had received
offers of reinstatement asking whether the offers were
proper and whether they should accept. Second, certain
other discriminatees had notified him of their current
whereabouts in case they were awarded reinstatement and
backpay in the litigation, and he wished to keep them in-
formed. Third, he had received some concerned inquiries as
to whether the reinstatements would result in demotions for
other unit employees and he desired to negotiate with Re-
spondent respecting the placement of employees so dis-
placed.
On July 21, 1977, union negotiator William McGarry re-
quested further information respecting Respondent's com-
pliance with the Board Order in the prior case. On August
23 Respondent's attorney replied by letter describing steps
which had been taken to reimburse affected employees re-
specting holiday pay and vacation pay with interest thereon
and also respecting amounts deducted from pay for insur-
ance premiums. The letter concluded by reasserting Re-
spondent's legal position respecting the issues in the present
matter to the effect that such did not involve mandatory
subjects of bargaining and that compliance with the prior
Board Order continued to be the subject of attention from
the Board's compliance officer. The letter went on to sug-
gest that the details of compliance be left to that officer but
also indicated Respondent's willingness to answer through
its attorney the Union's questions from time to time. Thus,
it appears that at that time, although Respondent continued
to assert its legal position, it was willing to provide the
Union with information on matters which are the subject of
this case. Such information as was supplied, however, ap-
pears to have been only partial. Mclver testified that at the
time of the hearing he had never been supplied with the
information he originally requested. And Respondent
makes no claim that it has complied with the Union's re-
quests.
C. Summary
There is no serious dispute as to the facts. Beginning De-
cember 7, 1976, the Union endeavored to learn from Re-
spondent the identity of those discriminatees being reinstat-
ed and those not being recalled, a description of the jobs to
which reinstatement was being offered, the rates of pay of
those jobs, and the dates of reinstatement. These requests
were in substance repeated on December 14 and 20. The
Union also sought to learn the identity of working employ-
ees who would be displaced by reinstatements, some indica-
tion of the jobs to which they would be bumped, the rates
of pay they would receive, and what seniority consider-
ations would be involved. On these latter requests Respon-
dent substantially answered on December 16 by indicating
no one was displaced. Finally on January 3, 1977, a list of
employees as of December 29 was furnished which as of
then answered most of the Union's request except that the
list did not indicate whether displacements had occurred by
then. It is clear that all of the information requested was
not supplied and none of it was supplied promptly.
Thereafter the Union on January 21, 1977, sought infor-
mation concerning the pay of reinstated employee Huey
which has never been furnished.
On January 28, 1977, Respondent began recalling addi-
tional discriminatees without directly informing the Union.
On February 24 the Union again requested information as
to these recalls, specifically the identity of those being of-
fered reinstatement, a description of the jobs being offered
them, and the rates of pay being offered. The Union re-
stated its desire to negotiate respecting placement of return-
ing discriminatees, any employees they displaced, and the
seniority rule to be applied. These requests were refused at
that time. Then on March I Respondent wrote the Union,
in terms so general as to be devoid of usefulness to the
Union in fulfilling its representative obligations, stating that
"several" unnamed employees were "being recalled to their
former or substantially equivalent positions" and the result-
ing displacement of employees already working was being
handled on the basis of job seniority. Although the March 1
letter appears to be in response to the February 24 request,
it did not furnish the Union any hard information.
On July 21, 1977, the Union requested further informa-
tion respecting compliance with the Board's prior order,
and on August 23 Respondent's attorney made a detailed
response. The complaint does not allege an unlawful refusal
to respond to that request.
D. Discussion
Respondent has maintained throughout that it has no
legal duty to provide the requested information, and in any
case reinstatement of discriminatees pursuant to a Board
Order is a matter between Respondent and the Board's
compliance officer. This is a specious defense.
The Union has a statutory duty to represent all employ-
ees in the bargaining unit. That duty extends to discrimi-
natees entitled to reinstatement as well as those employees
who are working. See American Beef Packers, Inc., 193
NLRB 1117 (1971); Sundstrand Heat Transfer, Inc., 221
NLRB 544 (1975), affd. 538 F.2d 1257 (7th Cir. 1976); Gen-
eral Electric Co., 199 NLRB 286 (1972).
Section 9(a) of the Act provides in pertinent part, "Rep-
resentatives designated or selected for the purposes of col-
lective bargaining by the majority of the employees in a
unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of em-
ployment .... " It is patent that the matters about which
the Union sought information fall well within these statu-
tory definitions. General Electric Co., supra.
The Union's statutory duty to represent these employees
and the reciprocal statutory duty of Respondent, as their
employer, to bargain with the Union respecting them can-
not be diminished by the parallel duty of Respondent to
comply with Board Orders respecting reinstatement of dis-
criminatees and to satisfy the Board's compliance officer
respecting the steps it is taking in that regard.
Accordingly, I find that by not supplying some informa-
tion and by not promptly supplying other requested infor-
mation, as mentioned above, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)() and
(5) of the Act.
1338
FLORIDA STEEL CORP.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of Respondent set forth in sec-
tion II1, above, occurring in connection with the operations
described in section 1, above, have a close and substantial
relation 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.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, by refusing to promptly provide the
Union with information which it requested concerning
identity of employees offered or not offered reinstatement,
job placement of reinstated employees and of those they
displaced, and rate of pay of bargaining unit employees,
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(aX1) and (5) of the Act.
4. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act, including certain addi-
tional remedies in view of Respondent's proclivity for en-
gaging in unfair labor practices. See Florida Steel Corpora-
tion, 231 NLRB 651 (1977). The legal defense which
Respondent urges in the present matter, and which I find
lacks merit, could easily be invoked in any of Respondent's
plants where it has committed or might in the future com-
mit unfair labor practices. In the circumstances it seems
likely this same specious defense will be asserted elsewhere
to the detriment of employee rights. Accordingly, I recom-
mend that Respondent be ordered to promptly furnish the
Union, upon its request, information about the reinstate-
ment, job placement, and rate of pay for employees in the
bargaining unit at its Croft plant, as well as whether infor-
mation the Union requests that is relevant to the perform-
ance of its obligations as the bargaining representative of
employees in any bargaining unit in any of Respondent's
plants. In order to alert Respondent's employees to their
rights in this regard, I recommend that Respondent be or-
dered to post an appropriate notice in all its plants where
the Union represents bargaining units, read the notice to all
employees in bargaining units represented by the Union,
mail a copy of the notice to all employees in those units
and, include the notice in appropriate company publica-
tions such as employee newsletters.
[Recommended order omitted from publication.]
1339