Southwestern Steel & Supply, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1985

276 N.L.R.B. 1569 (N.L.R.B. 1985)

SOUTHWESTERN STEEL & SUPPLY 1569
Southwestern Steel & Supply , Inc. and International
Association of Bridge , Structural, Reinforcing
and Ornamental Iron Workers , Local Union
No, 75, AFL-CIO. Case 28-CA-6272
29 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 September 1982 Administrative Law
Judge William L. Schmidt issued the attached deci-
sion. The Charging Party filed exceptions and a
supporting brief and the Respondent filed cross-ex-
ceptions, a supporting brief, and a brief in response
to the Charging Party's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Southwestern Steel & Supply, Inc.,
Yuma, Arizona, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Delete paragraph 2(b), insert the following as
paragraphs 2(b) and (c), and reletter the subsequent
paragraphs.
"(b) Honor and abide by the terms and condi-
tions of employment provided for in the collective-
bargaining agreement which it terminated effective
1 August 1980, unless and until (1) the Respondent
and the Union agree otherwise; (2) the Respondent
and the Union reach a bargaining impasse; or (3)
the Union no longer represents or desires to repre-
sent the unit employees.
"(c) Reimburse any employees who performed
bargaining unit work, hiring hall applicants who
should have been employed, and the various funds
established under the collective-bargaining agree-
ment in effect from 1 August 1977 through 31 July
1 The recommended backpay Order is clarified to cover specifically
any employee applicants who were denied an opportunity to work for
the Respondent because of the Respondent's unlawful refusal to continue
using the hiring hall A determination of whether or not such employees
exist is best left to the compliance stage of this proceeding. See Clarence
R Yeager'Dsstr:buting, 261 NLRB 847, 849 fn 10 (1982)
We have modified the judge 's recommended Order to conform more
closely to his findings
1980 for any losses they may have suffered as a
result of the Respondent's unlawful unilateral
changes in the wages, hours, and other terms and
conditions of employment of said employees on
and after 1 August 1980, with interest, in the
manner prescribed in the section above entitled
`The Remedy."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to recognize and, on re-
quest, bargain with International Association of
Bridge, Structural, Reinforcing and Ornamental
Iron Workers, Local Union No. 75, AFL-CIO as
the exclusive representative of our employees in
the following appropriate bargaining unit:
All employees engaged in field fabrication
and/or erection and/or contracted mainte-
nance of structural, ornamental and reinforcing
steel work coming within the jurisdiction of
the International Association of Bridge, Struc-
tural, Reinforcing and Ornamental Iron Work-
ers Union.
WE WILL NOT change the wages, hours, or other
terms and conditions of employment of employees
employed in the above bargaining unit without first
notifying International Association of Bridge,
Structural, Reinforcing and Ornamental Iron
Workers, Local Union No. 75, AFL-CIO and pro-
viding it with an opportunity to bargain concerning
such changes.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
276 NLRB No. 174
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL honor and abide by the terms and con-
ditions of employment provided for in the collec-
tive-bargaining agreement which we terminated on
1 August 1980 until we reach a bargaining impasse
or agree otherwise with the Union, or the Union
no longer represents or desires to represent our em-
ployees.
WE WILL, on request, recognize and bargain col-
lectively with the above-named labor organization
as the exclusive representative of all the employees
in the bargaining unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment and, if agreement is
reached, embody such agreement in a signed docu-
ment.
WE WILL reimburse employees who performed
unit work, hiring hall applicants who should have
been employed, and any trust fund to which we
were obliged to contribute on behalf of the em-
ployees for any losses they may have suffered, to-
gether with any interest allowed by law, as a con-
sequence of any changes we made in the wages,
hours, or other terms and conditions of employ-
ment of employees on or after 1 August 1980.
careful consideration of the posthearing briefs submitted
by the General Counsel and the Respondent,' I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is an Arizona corporation engaged in
the fabrication and installation of structural and reinforc-
ing steel. It maintains its principal office and place of
business in Yuma, Arizona, where it serves primarily as a
subcontractor in the construction industry. During the
12-month period preceding the issuance of the complaint
(a representative period) the Respondent purchased and
received at its Yuma facility goods and materals valued
in excess of $50,000 directly from suppliers located out-
side the State of Arizona. The parties stipulated, and I
find, that the Respondent is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
or a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act. I further find that it will
effectuate the purposes of the Act to assert jurisdiction in
this dispute.
II. LABOR ORGANIZATION
The parties stipulated , and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
SOUTHWESTERN STEEL & SUPPLY,
INC.
Denise M. Blommet, Esq., of Phoenix, Arizona, for the
General Counsel.
Larry W. Suciu, Esq., of Yuma, Arizona, for the Re-
spondent.
Michael J. Keenan, Esq. (Ward & Keenan), of Phoenix,
Arizona, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge.
This matter was heard by me in April 1982, at Phoenix,
Arizona. The complaint was issued on behalf of the Gen-
eral Counsel by the Regional Director of National Labor
Relations Board (Board) for Region 28. It alleges that
Southwestern Steel & Supply, Inc. (Respondent) violated
Section 8(a)(1) and (5) of the National Labor Relations
Act (Act). The charge in the case was filed by Interna-
tional Association of Bridge, Structural, Reinforcing and
Ornamental Iron Workers, Local Union No. 75, AFL-
CIO (Union) on January 30, 1981. The Respondent's
timely filed answer denied the commission of the alleged
unfair labor practices.
On the entire record made in this matter,' my observa-
tion of the witnesses who testified at the hearing, and my
i Following the close of the hearing, the General Counsel and the Re-
spondent filed a motion for the receipt of late filed exhibits-R. Exhs.
1(a) through 1 (q)-m accord with an agreement made at the hearing By
order dated May 11, 1982, the motion was granted.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence'
On August 6, 1962, the Respondent executed a collec-
tive-bargaining agreement titled "The Arizona Master
Labor Agreement by and between Arizona Contractors
and [the Union], Phoenix, Arizona" which, together with
its successors, is referred to hereinafter as the agreement.
The agreement was effective by its terms from August 6,
1962, until July 1, 1965, and it provided for the recogni-
tion of the Union as the exclusive representative of a unit
of employees engaged in the "field fabrication and/or
erection and/or contracted malntenanced of structural,
ornamental and reinforcing steel work coming within the
jurisdiction of the [Union's parent organization]."4 This
historically recognized, contractual unit is an appropriate
unit for purposes of collective bargaining within the
meaning of the Act. In addition it was stipulated that at
all relevant times since the Union was initially recog-
nized, it has been the exclusive representative of the Re-
spondent's ironworkers within the meaning of Section
9(a) of the Act. Moreover, from August 1962 until
August 1980, the Respondent was "signatory to and/or
2 By letter dated May 28, 1982, the Union advised me that it would
adopt the brief filed by the General Counsel.
3 The findings are a composite of the credited hearing testimony, the
factual stipulations of the parties, and the documentary evidence received
in this matter Where not specified, the dates refer to the 1980 calendar
year.
4 In addition to the unit employees (ironworkers) the Respondent also
employed a complement of inside or "shop" employees who have histori-
cally been excluded from the unit The Union's work jurisdiction is
spelled out in minute detail in the agreement.
SOUTHWESTERN STEEL & SUPPLY 1571
.. . fully complied with" the terms of the collective-bar-
gaining agreement and all successive agreements so that
it would be appropriate to find, as I do, that the Re-
spondent was estopped from asserting that it was not a
party to the successive agreements.5
To implement the obligations which it undertook
when it became bound by the agreement, the Respond-
ent executed a separate document on October 4, 1962,
designed to memorialize its participation in two trusts es-
tablished to provide certain benefits for ironworker em-
ployees. This latter agreement was known as the "Con-
tributing Employers Agreement with the California Iron-
workers Field Pension Trust" (Plan and Trust, respec-
tively).6 The contributing employers agreement provid-
ed, inter alia, as follows:
Contributions to the Plan and to the Trust by the
undersigned, as required, by said [trust documents]
and at the rates and in accordance with the [Agree-
ment] effective June 1, 1959, as amended, supple-
mented, modified, extended, renewed or superseded
from time to time . . . shall commence as of the
16th day of August, 1959, and shall continue for the
period provided in such [Agreement]„ including any
and all amendments, supplements, modifications, ex-
tensions, renewals or successor agreements thereto,
and from year to year thereafter unless written
notice revoking this [contributing employers agree-
ment] is given both to the Board of Trustees of the
Plan and the Board of Trustees of the Trust at least
sixty (60) days prior to any anniversary date.
By identical letters dated March 28, 1980, the Re-
spondent notified the respective boards of trustees of the
Plan and the Trust that it had "elected to revoke" its
participation in said trusts "effective as of the earliest
date provided in the agreement of 1962 or any supple-
mental agreements thereafter." Subsequently, by letter
dated April 10, 1980, the Respondent notified the Union
that ". . . henceforth, and as of July 31, 1980, our com-
pany will no longer feel obligated to comply with the
terms and conditions" of agreement in effect at that time.
This latter letter also advise the Union that it "may
treat" the letter as a "notification of termination pursuant
to Section 26 of the Agreement ... .
Thereafter, several items of correspondence were ex-
changed between the Respondent and the Union. Insofar
as this record shows, the Union consistently asserted that
the Respondent was: (1) bound by the agreement; and (2)
obliged to bargain. Thus, by letter dated June 10, 1980,
the Respondent asserted that it was not represented by
the multiemployer group which negotiated the Arizona
Master Labor Agreement; that no representation election
had ever been held involving the Respondent's employ-
ees; and that it would be "inappropriate to voluntarily
5 See, e.g., Paint Power, 230 NLRB 758 (1977). Although the Respond-
ent proferred no such defense in this proceeding, in the months prior to
August 1980, it asserted in correspondence with the Union that it had
never been bound to the agreement. I find such an assertion lacks merit.
6 The agreement and the contributing employers' agreement were both
executed by John A. Beltran, father of the Respondent's current princi-
pals, John T. Beltran and George Beltran.
recognize your union as the bargaining agent for [Re-
spondent's] employees." A subsequent letter dated
August 14, 1980 (in response to the Union's request for
bargaining information), was even more blunt. In that
letter, the Respondent's counsel, addressing the Union's
business manager, wrote, "I thought you were aware
that [the Respondent] gave . . . notification of its intent
to terminate its obligations under the Master Agreement
on April 10 ...." The letter continues, "It seems to me
that this closes the matter. " [Emphasis added.]
By letter dated September' 9, 1980, the Union's busi-
ness manager requested that the Respondent submit any
proposals it had for a new agreement; reminded the Re-
spondent that it was "legally responsible" to comply
with the agreement until an impasse was reached in ne-
gotiations for a new agreement; and requested the Re-
spondent to advise the Union "of times and a place" to
negotiate. There is no evidence that the Respondent ever
responded to this latter request until its March 16, 1982
letter which advised the Union that the Respondent was
interested in "getting underway with the collective-bar-
gaining process."7
In the meantime, the Respondent, commencing on
August 1, 1980, directly paid the employees who per-
formed unit work the sums it saved by not making con-
tributions for the employee benefit funds specified in the
agreement; ceased utilizing the hiring hall as required
under the agreement and utilized nonunion employees to
perform unit work; and ceased paying employees per-
forming unit work the wage rates specified in the agree-
ment. The Respondent stipulated that it took the forego-
ing actions without notifying or bargaining with the
Union and there is no evidence that the Union waived its
right to bargain about such matters in any manner.
The genesis of the foregoing actions by the Respond-
ent appears to lie in its dissatisfaction with the exclusive
hiring hall under the collective-bargaining agreement.
The Respondent's president, John Beltran, testified con-
cerning a running dispute with a variety of officials of
the Union. According to Beltran, the requirement that
the Respondent secure employees from the Union's
hiring hall hundreds of miles away in Phoenix often
leaves it in an uncompetitive position on small projects
which may require only a few hours of field installation
time. In these instances, the Respondent-for competitive
reasons-prefers to use its shop (nonunit) employees to
perform the field (unit) work. Beltran asserted that there
have been numerous instances where it would take less
time for someone to complete the job than it would for
an employee referred from the distant Phoenix hiring
hall to drive to Yuma. For this economic reason, Beltran
testified, the Respondent regularly used its shop employ-
ees in contravention of the contractual hiring hall re-
quirement.
Over the years, several of the Union's business agents
or managers have become aware of the Respondent's
practice of bypassing the hiring hall and have protested
to the Respondent. The most recent protest came in
' The Union rejected this offer to negotiate because, even then, the
Respondent sought to limit the scope of negotiations to a single benefit
plan
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
early March 1980, when Union Business Agent Jack Bal-
lard asserted that the Respondent was engaged in hiring
hall violations during the course of a routine jobsite in-
spection. According to Ballard, he "shut the job down."
Ballard's action precipitated an angry telephone ex-
change the following day between Beltran and Ballard
initially, and then between Beltran and Union Business
Manager Harry Steele, Ballard's superior. According to
Beltran's version, of his exchange with Steele, he com-
plained to Steele because the Respondent could not get
its work done with Ballard "stopping our jobs." Beltran
continued by telling Steele that the Respondent "just
can't go on like that." Steele expressed a lack of interest
saying that he had "too many problems now around
Phoenix" and that if the Respondent wanted to drop out
of the Union he did not care-he did not "care about
that rat hole town." Beltran's brother, George, who has
been a field superintendent for the Respondent for a
number of years, claimed to have overheard this conver-
sation on an extension telephone and, in general, cor-
roborated John's testimony.
Steele acknowledged that the March 1980 telephone
conversation occurred but recounted a story with a sub-
stantially different tone. According to Steele, Beltran
told Steele to keep Ballard from "harassing my iron-
workers." Steele asserted to Beltran that Ballard was
only enforcing the contract. In response, Beltran told
Steele that if he would not keep Ballard from harassing
his workers, the Respondent would go nonunion. Steele
said that he then told Beltran that in his own mind he
was already nonunion and that if the Respondent
planned to go nonunion, it would be "after a fight."
Steele said he then hung up. Steele denied that he told
Beltran that he did not care what went on in that "rat
hole" at Yuma. In Steele's words, "Why would I have a
business agent down there if I didn't want our jurisdic-
tion covered?"
B. The Contentions
The General Counsel requests that I infer from the Re-
spondent's actions after its April 10 "notice of termina-
tion" letter that its true object was to withdraw recogni-
tion of the Union as the representative of its ironwork-
ers. In this regard, the General Counsel called particular
attention to the fact that the Respondent "refused to ac-
knowledge the Union's repeated offers to bargain" until
more than a year after the complaint in this matter
issued . The General Counsel asserted that even though
the Employer may have recently withdrawn from a duly
established multiemployer, unit, the Union's majority
status could be presumed even as to a single employer
unit until rebutted by evidence that the Union no longer
represented a majority of the ironworkers. As the Re-
spondent admitted the Union's continuing majority
status, its refusal to bargain with the Union between
August 1, 1980, and March 16, 1982, violated Section
8(a)(1) and (5) of the Act.
In addition, the General Counsel alleged and argued
that the Respondent's conduct in discontinuing contribu-
tions on behalf of unit employees to various fringe bene-
fit funds, including the training fund program, the Cali-
fornia Health & Welfare Trust Agreement Fund, the
California Pension Trust Fund, the Supplemental Insur-
ance Fund, the Administrative Fund and the Vacation
Saving Plan, was unlawful. The Respondent readily ad-
mitted that it was lawful because it had terminated its
obligations under the various trust agreements in accord
with the terms of those trust agreements. In addition, the
Respondent claimed that the moneys formerly paid into
the trusts have been added to employees' pay-an action
which the General Counsel asserts is also unlawful. Fi-
nally, the General Counsel asserted that the Respondent
unlawfully discontinued its use of hiring hall-a fact
which the Respondent believes was justified by the
Union's actions over the years.
The Respondent contended that it was privileged in
discontinuing payments under the trust and the plan be-
cause it "elected to revoke the terms of the October 4,
1962, agreement in accord with the terms thereof." In
this connection, the Respondent argues that the terms of
the contributing employers agreement which obligated it
to make contributions to the plan and the Trust permit-
ted revocation and it merely exercised that available
option. More specifically, the Respondent's brief asserts:
Under the language of the Arizona Master Labor
Agreement, the Respondent's only obligation was to
make payments to the trust funds in accordance
with the trust agreements. Thus, if the Respondent's
obligation under the trust agreements terminated, its
corresponding obligation under the Master Labor
Agreement would also terminate since the Master
Labor Agreement makes specific reference to the
trust agreement and therefore by implication incor-
porates its terms by reference.
[I]t must follow that in availing itself of the provi-
sions of the trust agreement, the Respondent was
doing nothing more than taking an action which
was specifically authorized under the terms of the
Master Labor Agreement. Taking action which is
authorized by the contract cannot . . . constitute a
unilateral change in terms and conditions of em-
ployment.
Citing 29 U.S.C. § 186, Respondent further argues that
Federal law prohibits payments to trust funds of the
nature involved here absent a written agreement. Al-
though the Respondent acknowledges that an "expired"
collective-bargaining agreement has been held sufficient
for purposes of meeting the written agreement require-
ment of 29 U.S.C. § 186, it contends that a "revoked"
agreement is not sufficient for that purpose.
Finally, the Respondent contends rather surprisingly
that the evidence presented at the hearing is not suffi-
cient to establish that there have been any unilateral
changes since August 1, 1980.
C. Conclusions
The Respondent's actions following the angry tele-
phonic exchange between Beltran and Steele in March
1980, including the termination notices sent to the boards
of trustees of the plan and the trust,, the termination
notice sent to the Union, the unilateral changes which it
SOUTHWESTERN STEEL & SUPPLY
made on or after August 1, its unwillingness to meet to
negotiate anything with the Union prior to March 1982,
and its choice of words that the notice terminating the
agreement "closed the matter" in response to a request
by the Union for pertinent bargaining information, war-
rant to the conclusion (which I have made) that the Re-
spondent intended to and did discontinue dealing with
the Union as the representative of its ironworkers. This
conclusion is also consistent with Beltran's threat to
Steele over the telephone to go nonunion unless he re-
strained Ballard from enforcing the hiring hall provisions
of the agreement vigorously and its June 10 letter.
The Respondent's actions were obviously grounded on
the mistaken assumption that it could lawfully terminate
its statutory obligation to bargain with the Union as the
representative of its ironworkers by terminating the
agreement. Although this action sufficed insofar as the
Respondent's contractual obligations were concerned, its
statutory obligations were another matter. In Cartwright
Hardware Co., 229 NLRB 781 (1977), enfd. as modified
600 F.2d 268 (10th Cir. 1979), the Board summarized the
general legal premise applicable here in the following
manner:
It is well settled that the existence of a prior con-
tract, lawful on its face, raises a dual presumption of
majority-a presumption that the union was the ma-
jority representative at the time the contract was
executed, and a presumption that its majority con-
tinued at least through the life of the contract.2 Fol-
lowing expiration of the contract, as here, the pre-
sumption continues and, though rebuttable, it is suf-
ficient to establish, prima facie, a continuing obliga-
tion on the part of the employer to bargain with the
Union.3 Following expiration of a collective-bar-
gaining agreement, therefore, by repudiating its col-
lective-bargaining relationship with the union unless
it can show a reasonably based doubt as to the con-
tinuing majority supporl for its employees' repre-
sentative.4
Z Bartenders, Hotel, Motel and Restaurant Employers Bargaining
Association of Pocatello, Idaho and its Employer-Members, 213
NLRB 651, 652 (1974), citing Shamrock Dairy, Inc., et al., 119
NLRB 998 (1957), and 124 NLRB 494 (1959), enfd. 280 F.2d 665
(C.A.D.C.), cert. denied 364 U S. 892 (1960).
S Bartenders Association of Pocatello, supra; Barrington Plaza and
Tragniew, Inc., 185 NLRB 962, 963 (1970), enforcement denied on
other grounds sub nom . NLRB v. Tragniew, Inc. and Consolidated
Hotels of California, 470 F.2d 669 (C A 9, 1972); Terrell Machine
Company, 173 NLRB 1480, 1480-81 (1969), enfd. 427 F.2d 1088,
1090 (C.A. 4, 1970), cert. denied 398 U.S. 929 (1970).
4 United States Gypsum Company, 221 NLRB 530, 537 (1975);
Salina Concrete Products, Inc., 218 NLRB 496, 498 (1975); Cantor
Bros, Inc., 203 NLRB 774, 778 (1973).
The Respondent has never disputed the Union's majority
standing and has raised no other legally cognizable de-
fense for its failure to meet its statutory obligation to bar-
gain with the Union concerning a successor agreement,
Cartwright Hardware, supra, or before making unilateral
changes in working conditions. NLRB v. Williamsburg
Steel Products Co., 369 U.S. 736 (1962); Bay Area Sealers,
251 NLRB 89 (1980). Even assuming that the Respond-
ent was correct in its belief that the Union was complete-
1573
ly unreasonable in shutting down its jobs for failing to
use the hiring hall to man minor jobs, such matters are
grist for the bargaining mill and not a legal justification
for resorting to self-help.8 Cartwright Hardware Co.,
supra at 783. Accordingly, I find that the Respondent's
actions after March 1980 were tantamount to withdraw-
ing recognition from the Union effective August 1, 1980,
and that after August 1, 1980, the Respondent failed and
refused to bargain with the Union, both as alleged in the
complaint. By such actions the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act. Antonino's Restaurant, 246
NLRB 833 (1979), enfd. 648 F.2d 1206 (9th Cir. 1981).
By the further action of unilaterally altering certain con-
tractually specified employee benefits without notifying
the Union or providing it with an opportunity to bargain
concerning such changes, the Respondent further violat-
ed Section 8(a)(1) and (5) of the Act, as alleged in the
complaint. NLRB v. Katz, supra. Bay Area Sealers,
supra.9
In reaching the foregoing conclusions, I have carefully
considered the arguments put forth by the Respondent.
Those arguments deserve limited comment. The Re-
spondent's contention that no unilateral action occurred
with respect to the termination of its contributions to the
plan and trust because it followed the procedure speci-
fied in the contributing employer agreement is intriguing
but lacks merit . Thus, a careful reading of the literal
terms of contributing employer agreement shows that the
procedure relied on by the Respondent pertains only to
its obligation to make contributions to the respective
trusts and does not deal at all with its basic obligation
arising under the Agreement to provide its employees
with the benefits provided by the fringe benefit package
provided by the trusts such as those found here is a sepa-
rate matter subject to negotiation in the collective-bar-
gaining realm. In this realm , the Respondent totally ig-
nored its statutory obligations and simply began paying
the amount of its contribution directly to its employees.
Similarly, the Respondent's assertion that there is a dis-
tinction between a collective-bargaining agreement
which expires and one which is "revoked" for purposes
of applying the expired contract rule in cases such as
Wayne's Dairy, 223 NLRB 260 (1976), is a distinction
without a difference and it should remain that way. See,
e.g., Antonino's Restaurant, supra. Concerning the Re-
spondent's contention that the General Counsel "failed to
prove" any unilateral changes occurred since August 1,
1980, I am puzzled by this argument in view of the Re-
spondent 's stipulation concerning a variety of alterations
it made in its ironworker's terms and conditions of em-
ployment "commencing August 1, 1980.. . without no-
tifying or bargaining with the Union."
8 This assumes, of course, that the Union's action in striking over such
matters was not prohibited by the agreement If it was, the Respondent's
remedy would lie under Sec. 301 of the Act
9 The record is not specific about the purpose of each of the contrac-
tual funds . In some instances, the purpose is obvious but in others (such
as the "Administrative Fund") the purpose is not at all obvious. Accord-
ingly, my finding here and the remedy specified below is limited solely to
those funds which involve matters that would constitute a mandatory
subject of bargaining . See Fox Painting Co., 263 NLRB 437 (1982).
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unlawful activities of the Respondent described in
section III, occurring in connection with the operation of
the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that the Respondent
be ordered to cease and desist therefrom and to take the
affirmative actions described below which is designed to
effectuate the polices of the Act.
Affirmatively, I recommend that the Respondent be
required to recognize and bargain, on request, with the
Union as the exclusive bargaining representative of its
ironworker employees in the unit specified above. In ad-
dition, I recommend that, if the Union so requests, the
Respondent restore and maintain in effect the terms and
conditions of employment specified in the agreement
which it terminated effective August 1 , 1980, unless and
until: (1) the Respondent and the Union agree otherwise;
(2) they reach a legitimate bargaining impasse; or (3) the
Union no longer represents, or desires to represent, the
unit employees. To the extent that the changes imple-
mented by the Respondent from August 1, 1980, were
economically detrimental to individuals who performed
unit work or to any trust fund established under the
agreement in furtherance of an obligation to bargain
about mandatory subjects, I recommend that the Re-
spondent be required to make such individual or trust
fund whole for all losses suffered as a consequence of the
Respondent's changes. t ° In the event it is determined in
the compliance stage of this proceeding that backpay is
due under the Order entered herein, the amount of back-
pay due shall be computed in the manner provided by
the Board in F W. Woolworth Co., 90 NLRB 289 (1950),
with interest on any amounts due as specified in Olympic
Medical Corp., 250 NLRB 146 (1980), and Florida Steel
Corp., 231 NLRB 651 (1977). And see generally Isis
Plumbing Co., 138 NLRB 716 (1962). To the extent that
it is determined in the compliance stage of the proceed-
ings that reimbursements are due any trust fund under
the terms of the Order entered, interest on such amount
shall be determined in accord with the Board's decision
in Merryweather Optical Co., 240 NLRB 1213 (1979). Fi-
nally, it is recommended that the Respondent be required
to post the attached notice to employees at its offices and
any jobsite where individuals performing unit work are
employed.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce or a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times material herein the Union has been des-
ignated as the exclusive collective-bargaining representa-
tive of the Respondent's employees in an appropriate
unit. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees engaged in field fabrication and/or
erection and/or contracted maintenance of structur-
al, ornamental and reinforcing steel, work coming
within the jurisdiction of the International Associa-
tion of Bridge, Structural, Reinforcing and Orna-
mental Iron Workers Union.
4. By withdrawing recognition of the Union and refus-
ing to bargain with the Union as the exclusive represent-
ative of its employees in the unit specified in paragraph 3
above, the Respondent has refused to bargain with the
Union within the meaning of Section 8(a)(1) and (5) and
Section 8(d) of the Act.
5. By altering the terms and conditions of employment
of the employees specified in the unit in paragraph 3,
above, from those contained in the collective-bargaining
agreement in effect between the Repsondent and the
Union from August 1, 1977, through July 31, 1980, with-
out notice to the Union or providing the Union with an
opportunity to bargain concerning such changes, the Re-
spondent has refused to bargain collectively with the
Union within the meaning of Section 8(a)(1) and (5) and
Section 8(d) of the Act.
6. The unfair labor practices specified in paragraphs 4
and 5, above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edit
ORDER
The Respondent, Southwestern Steel & Supply, Inc.,
Yuma, Arizona, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and, on request, bargain with
International Association of Bridge, Structural, Reinforc-
ing and Ornamental Iron Workers, Local Union No. 75,
AFL-CIO as the exclusive collective-bargaining repre-
sentative of its employees in the following appropriate
unit described as follows:
10 The determination whether or not any of the various funds under
the agreement involve nonmandatory subjects of bargaining is left to the
compliance stage of the proceeding to be resolved in accord with the dis-
cussion in fn. 9.
11 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
SOUTHWESTERN STEEL & SUPPLY 1575
All employees engaged in field fabrication and/or
erection and/or contracted maintenance of structur-
al, ornamental and reinforcing steel work coming
within the jurisdiction of the Internalional Associa-
tion of Bridge, Structural, Reinforcing and Orna-
mental Iron Workers Union.
(b) Refusing to bargain collectively with the above-
named labor organization by changing the wages, hours,
or other terms and conditions of employees employed in
the aforesaid bargaining unit without notifying said labor
organization and providing it with an opportunity to bar-
gain concerning such changes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
(b) Reimburse any employees who performed bargain-
ing unit work, and the various funds established under
the collective-bargaining agreement in effect from
August 1, 1977, through July 31, 1980, for any losses
they may have suffered as a result of Respondent's un-
lawful unilateral changes in the wages, hours, and other
terms and conditions of employment of said employees
on and after August 1, 1980, with interest, in the manner
prescribed in the remedy section.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its office and jobsites in and about Yuma,
Arizona, copies of the attached notice marked "Appen-
dix."12 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."