Florida Steel Corp.

National Labor Relations Board - Board Decisions

Aug 28, 1979

244 N.L.R.B. 395 (N.L.R.B. 1979)

Florida Steel Corporation and United Steelworkers of
America, AFL-CIO. Case 12-CA-6871
August 20. 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANt) TRUESDALE
On December 22, 1978, Administrative Law Judge
Ralph Winkler issued the attached Supplemental De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
Respondent filed a brief in support of the Administra-
tive Law Judge's Supplemental Decision.
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 Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Based on the Board's earlier decision in this pro-
ceeding,' the Administrative Law Judge concluded
that Respondent had violated Section 8(a)(5) and (1)
of the Act by unilaterally changing the pay rates of
two employees in the bargaining unit represented by
the Charging Party without first notifying and bar-
gaining with the Charging Party on the issue. The
Administrative Law Judge then found that the viola-
tion committed herein could be adequately remedied
through the use of the Board's usual cease-and-desist
and affirmative remedial orders for violations of the
type involved here. We disagree.
While the 8(a)(5) violation involved here would
not, under ordinary circumstances, appear to justify
extraordinary remedies, we have decided to grant cer-
tain additional remedies here for the reasons fully ex-
plicated in our decision in Florida Steel Corporation,
242 NLRB 1333, (1979). We indicated there that Re-
spondent's "pattern of unlawful conduct in recent
years" had evidenced a "rejection of the principles of
collective bargaining." We view this case as a con-
tinuation of that rejection. Moreover, in reaching our
conclusion, we note that Respondent's unlawful con-
duct here does not constitute its initial transgression
of employee rights at the Indiantown, Florida, facility
involved. In a prior Board decision, 220 NLRB 1201
(1975). enfd. 538 F.2d 324 (4th Cir. 1976), the Board
found that Respondent had violated Section 8(a)(3)
and (I) of the Act by withholding a wage increase in
retaliation for its employees' union activities. Accord-
'235 NLRB 1010 (1978).
FLORIDA STEEL CORPORATION
ingly, we believe that extra remedial relief is necessi-
tated by Respondent's proclivity to disregard the
statutory rights of its employees and their chosen bar-
gaining representatives. 2
In view of the above considerations and in addition
to that relief ordered by the Administrative Law
Judge, we will enter an order providing for the fol-
lowing: ( I ) issuance of a corporatewide cease-and-de-
sist order; (2) corporatewide posting of the notice: (3)
mailing of the notice to all of Respondent's employ-
ees; (4) reading the notice to all of Respondent's em-
ployees; (5) and publication of the notice in all appro-
priate company publications. In addition, if, within 2
years of the date of this Decision, a Board-conducted
election is scheduled at any of Respondent's plants
involving the Charging Party, we will require Respon-
dent to provide access to at least two union represen-
tatives for a 30-minute speech during worktime, the
date thereof to be not more than 10 working days, but
not less than 48 hours, prior to any such election. If
within the same 2-year period, any agent of Respon-
dent convenes and addresses employees at any of Re-
spondent's plants concerning union representation,
we will require Respondent to provide the Union
with equal time to respond to such speeches. As we
believe that the imposition of the foregoing measures
would remedy the present unfair labor practices, we
would not grant the additional remedies sought by
the Charging Party in its brief to the Board in the
initial proceeding.'
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, Indiantown, Florida, its offi-
cers. agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Unilaterally changing the pay rates of employ-
ees within the bargaining unit represented by United
Steelworkers of America at Indiantown, Florida,
without first notifying and consulting with United
Steelworkers of America.
(b) In any other manner refusing or failing to bar-
gain with the Union or interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them under the Act.
2. Take the following affirmative action:
(a) Make whole A. F. McCammon and B. W. Mc-
Donald for losses resulting from unilateral changes in
their pay rates upon their recall in 1975.
: For a list of Board decisions finding Respondent in iolation of the Act.
see Florida Steel Corporation. 242 NLRB 1333. upra.
3 In view of Respondent's proclivit to violate the Act. we shall also in-
clude a broad cease-and-desist order.
244 NLRB No. 61
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Mail a copy of the attached notice marked
"Appendix." 4 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 12, 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 conspicuous 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-
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 representatives,
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 12, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEFS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT change the pay rates of employ-
ees in the bargaining unit represented by United
Steelworkers of America, AFL CIO, without
first notifying and consulting with the Union.
WEI WIL. NOT in any other manner refuse to
bargain with the Union or interfere with, re-
strain, or coerce employees in the exercise of the
rights guaranteed them under the Act.
WE WILL make whole A. F. McCammon and
B. W. McDonald for losses in the unilateral
changes in their pay rates upon their recall in
1975.
WE WIl.L. send to all our employees copies of'
this notice; WE Wlln. read this notice to all our
employees; and WE WILL grant the Union, as or-
dered, speaking opportunities at any of our
plants.
FLORIDA STEEL CORPORATION
SUPPLEMENTAL DECISION
RALPH WINKLER, Administrative Law Judge: The com-
pliment in this matter alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by making unilateral changes
in the pay rates of nine employees without first notifying
and discussing these changes with the Union as their statu-
tory bargaining representative. These alleged changes were
purportedly made following a recall, and I recommend dis-
missal of the complaint in my original Decision in this mat-
ter. The Board, on review, reversed a 10(b) ruling as to two
employees. McCammon and McDonald, and determined
that Respondent had unilaterally changed their pay rates.
Florida Steel Corporation, 235 NLRB 1010 (1978). The
Board found additional error in an exclusionary ruling as to
a letter which the General Counsel sought to adduce and
also respecting a denial of the Union's request for a con-
tinuance to adduce additional evidence "on the pre- and
post-layoff work duties of the seven otherl employees." The
Board accordingly remanded the case for further hearing to
receive both the aforementioned letter and additional evi-
dence concerning the employees' work duties.
I shall not repeat the matters set forth in the original
Decision, for I assume the reader's familiarity in that re-
gard. In its Decision, the Board observed that the "very
essence" of the General Counsel's case was that "the em-
ployees had been purportedly] recalled to the same work at
differing rates of pay" (235 NLRB, supra at 1012) and the
Board stated that "the burden of proving that the employ-
ees were called back to the same work at different rates of
pay . . . was the General Counsel's" (Id. at 101 I1).
At the remanded hearing held on May 31, 1978, the
aforementioned letter was received in evidence, and the
General Counsel and the Union were given full opportunity
to call witnesses on the remanded issue as they had re-
quested. The General Counsel called but one witness. and
the Union called none.
W. F. Stratton, one of the aforementioned seven employ-
ees. was the witness called by the General Counsel. Stratton
testified that, at the time of his layoff in January 1975, he
was a yard helper and railcar loader in the shipping depart-
ment, and that his duties involved "loading rail cars: count-
396
FLORIDA STEEL. CORPORATION
ing rebar. moving trucks." Stratton testified that he was
recalled to the same position and did the same work in
April 1975. and that he remained in that position for a week
and then became a shear bundler. The company records
establish, and I find, that at his layoff Stratton was classi-
fied as a railcar loader in department 93 at $3.80 an hour,
that he was recalled as a yard helper in department 92 and
became a shear bundler I day later in department 93 at
$3.80 an hour. The record establishes that yard helper and
railcar loaders are separate classifications in separate de-
partments and that each has its own responsibilities and job
conditions. (The General Counsel claims that Stratton lost
$2.40 as a result of Respondent's purported unilateral
change in wage rate for the one day after his recall that he
worked as a yard helper.)
Respondent called three of the seven employees'. Nelson.
Hones, and Collins, and these employees respectively testi-
fied without contradiction--and as the record otherwise es-
tablishes that they were recalled and performed different
work from that which they had been laid off.
Conclusions
The Board has concluded that Respondent violated Sec-
tion 8(a)(5) and (I) by unilaterally changing the pa) rates of
McCammon and McDonald upon their recall. Further dis-
cussion is hardly necessary to find, as I do, that the record
does not establish that Respondent unilaterally changed the
pay rates of the seven other employees.
CONCLUSIONS OF LAW
I. Respondent is an employer within Section 2(6) and (7)
of the Act.
m Respondent sates that of the seven employees involved. only thew three
are still in its employ.
2. The Union is a labor organization within Section 2(5)
of the Act.
3. B unilaterally changing McCammon's and Mc[)on-
ald's pay rates, without first notifying and consulting with
the Union. Respondent has violated Section 8(a)(5) and ( I)
of the Act.
4. The aforesaid violation affects commerce within Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not engaged in any other violations
alleged in the complaint.
1t- RK It'I)Y
The General Counsel and the Union assert that Respon-
dent is no stranger to the Board (e.g.. Florida Sleel Corp..
222 NL RB 955, 956, fns. 2 and 4 (1976)) and they request
"the broadest remedy possible" and that notices should be
required to be posted on a "corporate-wide basis" (G.C. br..
pp. 6-7: Union hr.. pp. 13 17). The General Counsel states
that McCammon lost "approximately $145.44." and Mc-
Donald "155.96." as a result of the unilateral changes in
their pay scales.
Fully mindful of the remedial considerations urged by
the General Counsel and the Union. I nevertheless believe
it would be an abuse of discretion to grant the extraor-
dinary remedial requests in the circumstances of this case.
The violation found by the Board was an isolated one and
hardly egregious in the context of the total layofls and re-
calls and, as stated in the original Decision herein, was not
accompanied by even an allegation of animus. I shall there-
fore recommend only the conventional remedies for the vio-
lation found. including a make-whole order for monies lost
by McCammon and McDonald. with interest to be com-
puted thereon in the usual manner in these proceedings.
[Recommended Order omitted from publication.l
397