United Steelworkers Of America, Afl-Cio And Local 4754, United Steelworkers Of America, Afl-Cio

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1401 (N.L.R.B. 1986)

STEELWORKERS (WARRIOR & GULF)
United Steelworkers of America , AFL-CIO and
Local 4754, United Steelworkers of America,
AFL-CIO and Warrior and Gulf Navigation
Company . Case 15-CB-3105
31 July 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 5 May 1986 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondents filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed briefs in support of the judge's decision.
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, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, United
Steelworkers of America, AFL-CIO, and Local
4754, United Steelworkers of America, AFL-CIO,
Mobile, Alabama, its officers, agents, and repre-
sentatives, shall take the action set forth in the
Order.
' The Respondents have excepted to some of the judge 's credibility
findings The Board's established policy is not to overrule an admwstra-
hve law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d C,r.
1951) We have carefully examined the record and find no basis for re-
versing the findings
Charlotte N. White, Esq., for the General Counsel.
J. Allen Sydnor, Esq. (Cooper, Mitch & Crawford), of Bir-
mingham, Alabama , for the Respondents.
Frank McRight, Esq. (McRight, Jackson, Myrick &
Moore), of Mobile, Alabama, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HuTTON S. BRANDON , Administrative Law Judge.
This case was heard at Mobile, Alabama, on 6-7 January
and 18 February 1986. The charge was filed on 20 Sep-
tember 1985 ,1 and amended 21 October by Warrior and
Gulf Navigation Company (the Company). The com-
plaint issued on 5 November alleging that United Steel-
workers of America, AFL-CIO (the International), and
' All dates are in 1985 unless otherwise indicated
1401
Local 4754, United Steelworkers of America, AFL-CIO
(the Local), and with the International (jointly Respond-
ents), violated Section 8(b)(3) of the National Labor Re-
lations Act (the Act), in refusing to give full force and
effect to an agreement reached between Respondents and
the Company on drug testing of employees and conces-
sions to the Company for operations on the Yellow
Creek-Tombigbee Waterway . Respondents do not seri-
ously dispute arrival at an agreement with the Company
and admit Respondents ' refusal to effectuate such agree-
ment . Respondents ' defense , however, presents the sole
issue of whether Respondents ever effectively notified
the Company prior to reaching an agreement that any
agreement so reached was conditioned on ratification by
the Local's membership, a condition that was never met.
I find hereafter that there was no such effective notifica-
tion to the Company and ratification was never a condi-
tion of agreement.
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel, the Company, and
Respondents, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Company is a Delaware corporation licensed in
Alabama where it does business as a contract carrier en-
gaged in the operation of motor-driven towboats on the
Warrior-Tombigbee Water Systems . During the 12-
month period preceding issuance of the complaint herein,
the Company, in its business operations noted above, car-
ried cargo valued in excess of $1 million outside the
State of Alabama, and during the same period received
goods and materials valued in excess of $50 ,000 directly
from points located outside the State of Alabama. The
complaint alleges, Respondents admit , and I find that the
Company is an employer within the meaning of Section
2(2) of the Act and engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATION
The complaint also alleges , Respondents admit, and I
further fmd that Respondents are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Negotiations
Respondents admitted that since at least 1952 they
have been parties to a series of collective-bargaining
agreements with the Company, the most recent agree-
ment being effective from 10 October 1983 through 1
October 1986. Although the International has been the
certified collective-bargaining agent , it is clear that the
Local in addition to the International has executed the
bargaining agreements with the Company and participat-
ed in negotiations thereon. It is admitted that the current
collective-bargaining agreement covers employees repre-
sented by the Local and International in the following
appropriate unit:
280 NLRB No. 164
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maintenance men, harbor tug bargemen , mainte-
nance clerk, purchasing -clerk, stores clerk at the
Chickasaw terminal ; longshoremen leaders, lift
truck operators, front end loader operators, steve-
dores, and crane operators at the Port Birmingham
terminal and unlicensed vessel personnel employed
on the Company's line-hand tugboats operated on
the Warrior-Tombigbee rivers and the Intercoastal
Waterway and on other water ways for which the
Company rights apply.
On 4 September, John A. Mixon, the general manager
of the Company, telephoned Billy W. McColeman, staff
representative of the International who serviced the
Local, and advised McColeman that the Company had a
proposal on some new work for the deckhands repre-
sented by Respondents. Mixon explained that he was
proposing to acquire work on the Yellow Creek-Tombig-
bee route (Yellow Creek), which connects the Tennes-
see-Tombigbee Waterway with the Tennessee River and
which had not previously been on the Company's route
system. Mixon explained that to be competitive in the
new route he was proposing a deckhand wage rate less
than the normal contract wage rates provided under the
current collective-bargaining agreement.2 Moreover,
Mixon proposed that there be no overtime on the new
route operations. McColeman suggested that Mixon put
his proposal in writing and it could be discussed further.
Mixon did so , sending a letter to McColeman dated 4
September and attaching a map of the proposed new
routes. The letter asked for a response by 13 September.
On 5 September, McColeman met with Mixon at the
Company in connection with a fourth-step grievance
meeting involving the disciplining of several unit em-
ployees under a drug testing program the Company had
initiated. Others attending the meeting were Johnny
Murphy, president of the Local, Orne Jackson, vice
president, and Joe Kelly, the Local's grievance commit-
tee chairman. Also attending on behalf of the Company
were Jeff Crocker, a personnel representative for the
Company, and R. S. Warren, whose position was not
stated on the record. No success was achieved on the
resolution of the grievances of five employees suspended
and three discharged under the Company's drug pro-
gram. However, it is clear that at the conclusion of the
meeting, the Yellow Creek proposal was raised. McCole-
man and the other union representatives either had or
were given the Company's Yellow Creek proposal and
map of the proposed route attached, but Murphy asked
for more details "to take to the members."
What transpired in subsequent negotiations on the
Yellow Creek agreement is subject to dispute between
the parties. However, the testimony of McColeman and
Mixon was generally consistent and will be set forth
below.
On 6 September, McColeman telephoned Mixon and
requested that Mixon and N. J. Barchie, president of the
Company, come to McColeman's office to discuss the
2 While it is arguable that the operation of the new route would have
been covered by the existing collective -bargaining agreement , McCole-
man conceded in his testimony that in practice if there was a question of
coverage the parties usually negotiated new agreements.
settlement of the drug testing grievance. The two went
to McColeman's office and there followed a discussion
regarding not only of the grievances but the Company's
drug testing program and the Yellow Creek proposal.
McColeman admittedly told Mixon and Barchie that he
was going to make them an offer they could not refuse
and added that he wanted to offer them a package deal.
More specifically, he sought to resolve all the outstand-
ing grievances, and establish a drug testing program ac-
ceptable to Respondents in return for which he promised
to do all he could to get the Yellow Creek agreement
proposal agreed to.3 At the conclusion of these discus-
sions, the Company agreed to resolve the grievances by
putting back to work those employees who had been sus-
pended or discharged under the drug policy, granting
them backpay at an agreed-on rate, and "clearing" their
employment records. Moreover, McColeman, Mixon,
and Barchie agreed on the principles of a new drug test-
ing policy, but did not reduce it to writing. They also
discussed the terms of the Yellow Creek agreement and,
based on Mixon's testimony, reached at least a tentative
agreement on it. In short, according to Mixon, all the
disputed issues were resolved.
On the afternoon of the same day, McColeman called
the Union's negotiating committee consisting of Murphy,
Kelly, and Jackson to his office where he discussed with
them the proposals discussed earlier that morning with
Mixon and Barchie. McColeman testified herein that he
further explained to the Local committee that the settle-
ment proposals represented an effort to solve all their
concerns at one time. During these discussions, it was
discovered that one grievant or one prospective grievant
had not been disposed of in the proposed agreement.
Consequently, McColeman telephoned the Company and
prevailed upon Mixon to resolve that problem to the
Union's satisfaction. When this was agreed to, McCole-
man admittedly told Mixon that they had an agreement
and arranged to meet with Mixon at the Company on 9
September to sign off on the matter.
Following this, the Company on 6 September took
steps to immediately recall the suspended and terminated
employees. On the Union's behalf, McColeman agreed to
attempt to contact some of the discharged employees.
Some of the suspended or terminated employees reported
to work on 9 September.
On 9 September, the parties met as arranged and exe-
cuted the written grievance settlements. Further, Mixon,
Crocker, and McColeman executed the Yellow Creek
proposal, which inadvertently, according to Mixon's tes-
timony that was uncontradicted in this regard, was dated
10 September. Although fully agreed to, the drug testing
program was not at that time reduced to writing and
ready for signatures.
S To the extent that Respondents rely on this statement as indicating to
the Company that McColeman 's negotiations were subject to approval of
the Local membership, it need only be noted that McColeman 's commit-
ment to persuade more likely referred only to the Union's negotiating
committee, Murphy , Jackson , and Kelly, who were not present at the
time I conclude that this was in fact what McColeman meant in view of
the absence of any evidence that McColeman personally attempted to
persuade the membership to any agreement in this case prior to 9 Sep-
tember
STEELWORKERS (WARRIOR & GULF)
McColeman testified that he specifically asked the
Union's committee at the 9 September meeting if they
had any problems with the Yellow Creek agreement.
They responded that they saw no problem, but added
they had to carry it back to the membership. McCole-
man explained that he was going ahead and signing the
agreement because he would not be available to do so
later in the day. Both Mixon and Crocker for the Com-
pany also signed. McColeman testified he then told
Murphy that after the members "ratify" the agreement to
return it to the Company. In his testimony herein,
McColeman was equivocal about whether Murphy had
said at the meeting that he was going to take the agree-
ment to the members "just as a formality." Mixon, on the
other hand, testified that Murphy said his committee was
not going to sign the Yellow Creek agreement at that
point because they wanted to have the opportunity to go
down and talk to the deckhands about it and make them
aware of the agreement rather than have them hear it
from the Company.4 Mixon asked Murphy if they were
not going to sign and Murphy, still according to Mixon,
replied that he just wanted to go through the "formality"
of reporting the agreement to the deckhands that after-
noon.
The Company made arrangements with the Union's
committee to meet with unit employees on company
premises during the afternoon of 9 September. Murphy
reported to the Company later that afternoon that the
employees had rejected the Yellow Creek agreement and
the Local would not sign the agreement.
The drug testing program agreement was subsequently
reduced to writing and, on 16 September, the agreement,
which all parties agree was consistent with what was ne-
gotiated on 6 September, was executed by Respondents
but not until the agreement had been presented at a
membership meeting of the Local and approved by the
membership. Mixon testified that at this meeting McCo-
leman told him that as far as he was concerned they had
an agreement (on Yellow Creek) and the Company could
implement it. McColeman was equivocal in his testimony
on this point, but claimed he just made a statement to the
effect that Mixon could put the agreement in effect and
McColeman would sue him or not put it in effect and the
Company could sue the Union. It was also at this meet-
ing that McColeman concedes that the Company was
first officially advised that any further agreements be-
tween it and the Union were subject to ratification of the
membership.
Although the Company made subsequent concessions
regarding the Yellow Creek proposal after it was initially
rejected on 9 September in an effort to achieve an agree-
ment with Respondents, such efforts were unsuccessful.
The Company never implemented the Yellow Creek pro-
posal, which it claims the Union had agreed to on 6 Sep-
tember because to do so, as McColeman also agreed in
his testimony, would create an administrative nightmare
4 In May 1984, the Company and the Local agreed to some wage rate
changes The announcement of the agreement was made to the employ-
ees by the Company rather than the Union, which resulted in dissension
among the membership Thus, it was reasonable for the Company to per-
ceive Murphy 's desire to relate the agreement to employees only as an
effort to avoid this "problem "
1403
for all parties regarding crew assignments in view of the
dispute. Nevertheless, consistent with the commitment
made prior to 9 September,5 the Company began oper-
ations for a customer on the Yellow Creek route on 10
September applying in all respects its current collective-
bargaining agreement with Respondent . Such compliance
is claimed by the Company to be at its serious economic
detriment.
B. Contentions of the Parties
It is the contention of the General Counsel and the
Company that ratification of the agreement by the
Union's membership had never been a condition of
agreement and that the Company had never been advised
to the contrary prior to Respondents' rejection of the
Yellow Creek agreement . The Yellow Creek agreement
was only one part of a three-part agreement reached on
6 September with Respondents, the other two being the
grievance settlements and the drug testing program. In
essence, all three were a "package deal" and Respond-
ents reneged on the Yellow Creek agreement to the
Company's detriment. Respondents' refusal under these
circumstances to execute and implement the Yellow
Creek agreement reached on 6 September is said to have
breached Respondents' duty to bargain in good faith and
that in doing so Respondent violated Section 8(b)(3) of
the Act. Moreover, the General Counsel and Company
contend that in any event the Yellow Creek agreement
was fully executed on 9 September when McColeman, as
the representative of the International (the certified col-
lective-bargaining agent), signed it.
Respondents' defense is based on the contention that
ratification to the Company's knowledge has become a
condition of agreement on any deviations from the pri-
mary bargaining agreement . According to Respondents,
the Company's knowledge of this condition is based on
not only past experience described below but also on re-
marks of Murphy at the meetings on 6 and 9 September
about taking the Yellow Creek agreement back to the
membership. Thus, Respondents contend that since the
membership rejected the Yellow Creek agreement, it was
not obliged to execute the agreement and therefore it did
not breach its bargaining obligations.
C. Conclusions
Of the witnesses who testified in this proceeding,
Mixon impressed me as the most straightforward and re-
liable. Moreover, Mixon's testimony received substantial
support from several admissions by McColeman that
were extracted, at times, somewhat begrudgingly. Al-
though McColeman exhibited good recall and testified
with detail, he occasionally was strangely equivocal. In
view of this equivocation and the distinct impression left
that he was not telling everything he knew on the issues
herein, I find Mixon more reliable and credit Mixon over
McColeman.
On the other hand, McColeman was far more convinc-
ing and reliable than the three local committeemen. At
5 When the parties convened on 9 September , Mixon announced that
the Company had in fact secured some Yellow Creek business
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
critical points, all three were confused and occasionally
contradictory. Murphy was defensive, evasive, and con-
tradictory, particularly concerning discussions with
McColeman on the afternoon of 6 September. While ini-
tially conceding that the union committee discussed the
Yellow Creek agreement with McColeman that day, he
subsequently denied that the Yellow Creek agreement
was explained by McColeman and insisted all they talked
about was drug testing . And while Murphy contended
that the meeting on 9 September was to be in part for
further negotiations on the Yellow Creek proposal, he in-
credibly raised no objections to it when presented with
the agreement for signing . Nor did he object to McCole-
man signing the agreement. I found Murphy generally
and totally unconvincing. Kelly was no more convincing
than Murphy. Jackson, in particular, exhibited a poor
recollection making his testimony as a whole unreliable.
Lastly, all three appeared to have taken office in April
and were novices in collective bargaining with no prior
experience in this regard reflected on the record. The
more experienced McColeman was more likely reliable
regarding subjects discussed and positions taken . Accord-
ingly, McColeman is credited where he contradicts
Murphy, Kelly, and Jackson.
Having credited Mixon, I find that on the afternoon of
6 September, the Company and Respondents reached an
agreement on the discharge and suspension grievances,
the drug testing policy, and the Yellow Creek proposal.
It is an unfair labor practice for a party to a fully negoti-
ated agreement to refuse to sign it . H. J. Heinz Co. v.
NLRB, 311 U.S. 514 (1941).
It is well established that a principal may limit its
agent's negotiating authority by affirmative, clear, and
timely notice to the other party that any agreement is
contingent on subsequent ratification . Ben Franklin Na-
tional Bank, 278 NLRB 986 (1986). A union may not
rely on membership ratification as a condition to execut-
ing and effectuating a collective-bargaining agreement if
such condition has never been revealed to the other
party to the agreement prior to arrival at the terms of
the agreement . A union in doing so breaches its statutory
bargaining obligation in violation of Section 8(b)(3) of
the Act. See Painters Local 52 (South Central Bd. of
Painting Contractors), 223 NLRB 748 (1976); Teamsters
Local 100 (Duro Paper Bag), 216 NLRB 1070 (1975),
enfd. 532 F.2d 569 (6th Cir. 1976); Elevator Constructors
Local 8 (National Elevator), 185 NLRB 769 (1970), enfd.
465 F.2d 974 (9th Cir. 1972); Painters Local 1385 (Associ-
ated Building Contractors), 143 NLRB 678 (1963); Sheet
Metal Workers Local 65 (Inland Steel), 120 NLRB 1678
(1958). The essential issue here is whether the Union had
revealed to the Company, or the Company otherwise
knew , that ratification of the agreement was a condition
of its execution and effectuation . I find no credible evi-
dence that the Company was told prior to arrival at the
terms of the 6 September agreement that ratification was
a condition of agreement.
It is clear that neither the constitution nor the bylaws
of either the International or Local provides for member-
ship ratification as a condition of agreement on collec-
tive-bargaining contracts . It is also clear that collective-
bargaining agreements negotiated nationally by the Inter-
national with "basic steel employers" were never submit-
ted to membership of the Local Union's ratification but,
rather, were submitted for approval to representatives of
the locals. There was, therefore, no national practice that
required ratification as a condition of agreement. And
there appears to be no contention that either the 1983
primary contract or preceding contracts with the Com-
pany were conditioned on ratification to the Company's
knowledge.
Respondents here rely on more recent experience to
establish the creation of the ratification requirement ap-
plicable to the agreement in dispute and to establish the
Company's knowledge of that requirement. Thus, McCo-
leman cited an instance in May 1984 involving a request
by the Company to allow pilots (nonunit employees) to
roll back into the unit upon layoff. The matter, with the
Company's knowledge and even assistance, was put to a
vote by mail ballot to the deckhands who were affected
by rollbacks and who refused to agree to any such roll-
backs . However , it is not clear that the issue was submit-
ted to the full membership of the Local for ratification
rather than just the deckhands. It is clear, however, that
Respondents had not agreed to the rollbacks prior to its
submission to the deckhands for a vote. Accordingly, I
find this instance serves as no precedent for establishing
ratification as a condition of agreement. If anything, this
instance would serve to show that if ratification was a
general condition of agreement , mail ballots would have
been discussed here prior to agreement , because the
Yellow Creek proposal like the 1984 rollback proposal
applied essentially to deckhands.
Respondents also rely on a 1982 wage freeze requested
by the Company that was submitted to the membership
for a vote. The Company does not deny being aware of
the submission of this issue to a vote by the membership.
However, its awareness in this instance of specific ap-
proval of a proposed agreement does not establish its
awareness of the establishment of a ratification require-
ment in future negotiations. On the contrary, the record
reflects that the parties negotiated a rate and classifica-
tion change in December 1983 but does not show that
this matter was submitted with company knowledge to
the membership for ratification. And McColeman and
the union committee in May 1984 negotiated an exten-
sion to the December 1983 agreement, admittedly with-
out submitting the agreement for membership ratifica-
tion . It is true that this extension agreement resulted in
considerable membership dissatisfaction and unrest.
McColeman testified that he communicated the trouble
he had encounted with the membership on the agreement
to Mixon and even suggested that the agreement be
"torn up." Mixon refused this suggestion and the agree-
ment remained in effect.
Although McColeman testified that subsequent to 29
May 1984, he had several discussions with Mixon regard-
ing ratification of further agreements, he conceded he
had never informed the Company in writing or other-
wise that membership ratification would thereafter be a
condition of agreement. Moreover, when asked about the
content and date of these prior discussions with Mixon,
McColeman was uncharacteristically vague. Under these
STEELWORKERS (WARRIOR & GULF)
circumstances, I do not credit McColeman' s claims in
light of Mixon's credible denials of any notice of ratifica-
tion requirements and even though Mixon acknowledged
the Local's dissatisfaction with the May 1984 extension
agreement.
It cannot be disputed that problems within the Local
had arisen in the past over the ratification issue. Thus,
John Lewis, former president of the Local, had been the
subject of internal union charges based on his failure to
allow members to ratify agreements . The charges were
ultimately found to have no merit. Although the record,
through McColeman's testimony, may support a finding
that the Company was aware generally of the fact that
Lewis was the subject of some internal union charges, I
conclude that it does not support a finding that Respond-
ents were aware of the basis of the charges. Moreover,
even if the Company were aware of the basis of the
charges, Lewis' acquittal would have suggested to it the
absence , rather than the presence, of any membership
ratification requirements in the Local.
It is also true as Murphy, who took office i1 April,
testified that he ran for office in the Local against Lewis
on a platform that included submission of agreements to
the membership for ratification. Again, however, there
was no evidence that the Company was aware of Mur-
phy's campaign platform, or that he intended to impose a
ratification requirement.
That there was in fact no historical ratification require-
ment was demonstrated by McColeman's admission that
he had told a membership meeting of the Local in July
1984 that he had every right to enter into contract nego-
tiations and change the contract at any time he saw fit.
Even as late as 6 September 1985, Thurmon Phillips, di-
rector of District 36 of the International and in whose ju-
risdiction the Local exists, in a letter to the International
president, stated:
In the past, negotiations with Warrior and Gulf, it
has been the policy that the contract would be set-
tled in the same manner as the Basic Steel agree-
ment. In other words, their agreement was ap-
proved or disapproved by the negotiating commit-
tee, and not by a vote of the membership.
However, because of the unrest in the Local over the
ratification issue, Phillips' letter added:
I have informed the president of the local union
[Murphy] when the next agreement is negotiated, I
had no problems with such agreement being voted
on by the membership, if that in fact was a desire of
the membership.
There is no evidence the Company was aware of this
letter or Phillips' position. Even McColeman does not
contend that he was aware of the letter prior to 6 Sep-
tember when the terms of the "package deal" were
reached with the Company.
Considering all the foregoing, I find there was no his-
torical practice known to the Company that would serve
to put it on notice that any agreement reached with
McColeman and the negotiating committee was subject
to ratification. Admittedly, the record reveals unrest and
1405
concern among the membership and its officers about
membership approval of agreements but such unrest and
concern does not establish the historical requirement of
ratification. Minutes of past Local meetings , received in
evidence, reflecting votes on various proposals also do
nothing to establish the existence of voting as a condition
to agreement. If these prior votes were a condition of
agreement , there is nothing in the record to show the
Company was aware of it.
Moreover, I find that credited evidence fails to estab-
lish specific notice to the Company of any ratification re-
quirements prior to the agreements reached on 6 Septem-
ber. It may well have been the intention of the negotiat-
ing committee to seek approval of the membership prior
to agreement, but the testimony of Mixon, here credited,
does not show that such intent was communicated to the
Company prior to the agreement reached on 6 Septem-
ber when McColeman admittedly told the Company that
they had an agreement. On the contrary, the actions of
both McColeman and the Company fully demonstrate
that a full agreement was in fact reached on 6 Septem-
ber. By McColeman's admission, the three parts of the
agreement were a "package deal." Implementation of
one portion of the agreement, recall of the suspended
and discharged employees, was begun immediately upon
arrival at agreement with Respondents giving assistance
in contacting the discharged employees involved in the
settlement. It is inconceivable that the Company, to Re-
spondents' knowledge and even assistance, would under-
take implementation of a significant part of the agree-
ment including the outlay of substantial backpay if it had
any basis for believing that the total agreement was in
any way conditioned on membership ratification. McCo-
leman's failure to suggest either delay or caution in im-
plementation of any portion of the "package deal" tends
to confirm the absence of any notice to the Company
that the agreement reached was in any way conditional.
McColeman apparently would excuse such silence as his
resolution of grievances was not independently subject to
membership ratification. However, because the resolution
of the grievances were part of the "package deal,"
McColeman's authority regarding grievances could not
justify his silence if the other portions of the package
were subject to a condition, particularly in light of
McColeman's assurance to the Company that they "had
an agreement."
Finally, McColeman's own execution of the Yellow
Creek agreement prior to submission to the membership
for ratification is clearly consistent with his position that
an unqualified agreement had been reached. He was rep-
resentative of the certified collective-bargaining repre-
sentative. He imposed no condition on his signing. In
agreement with the General Counsel and the Company, I
find the International was bound to the agreement when
McColeman signed it.
The fact that the Company failed to effectuate the
Yellow Creek agreement does not detract from the con-
clusion that a full agreement had been reached. The
Company's contention that unilateral effectuation of the
agreement would create administrative nightmares was
supported by McColeman and makes understandable the
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failure to effectuate the agreement . Even the Company's
further concessions after notification by Murphy that the
Local was not going to sign the agreement in the late
afternoon of 9 September does not detract from the exist-
ence of an agreement . Such concessions were an effort to
avoid any dispute and do not serve to prejudice its right
to insist on the bargain previously reached . Clearly,
under the circumstances here , the further offer of the
Company does not reflect a disbelief in the earlier arrival
at an agreement.
In light of the foregoing , it is clear, and I conclude,
the agreement on the Yellow Creek operation proffered
for Respondents' execution on 9 September was, as
McColeman admits , in accord with the agreement
reached on 6 September . Respondent International exe-
cuted but refused to effectuate and Respondent Local re-
fused to execute and effectuate the agreement thus estab-
lishing the General Counsel 's prima facie case . I further
find that Respondents have not demonstrated that they
made clear to the Company that any portions of the
"package deal" agreed to between the Company and the
Union on 6 September 1985 was conditioned on ratifica-
tion of the agreement by the Local's membership. I con-
clude therefore that Respondents have not rebutted the
General Counsel's prima facie case . Accordingly, I find
that Respondents violated Section 8(b)(3) of the Act as
alleged in the complaint.
CONCLUSIONS OF LAW
1. Warrior and Gulf Navigation Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL-CIO and
Local 4754, United Steelworkers of America , AFL-CIO
are each labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. The following constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
Maintenance men, harbor tug bargemen , mainte-
nance clerk, purchasing clerk, stores clerk at the
Chickasaw terminal ; longshoremen leaders, lift
truck operators, front end loader operators , steve-
dores, and crane operators at the Port Birmingham
terminal and unlicensed vessel personnel employed
on the Company's line-hand tugboats operated on
the Warrior-Tombigbee rivers and the Intercoastal
Waterway and on other water ways for which the
Company rights apply.
4. Respondents have been, and are now, the duly rec-
ognized exclusive collective-bargaining representative of
all employees in the unit described above for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing about 9 September 1983, and at all times
thereafter, to execute and effectuate the terms of the col-
lective-bargaining agreement with the Company relative
to the Company 's Yellow Creek-Tombigbee operation to
which Respondents had previously agreed , Respondents
have engaged in, and are engaging in, unfair labor prac-
tices within the meaning of Section 8 (b)(3) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, it will be recommended that they be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
It has been found that Respondent refused to bargain
collectively with the Company by refusing to execute
and effectuate the collective -bargaining agreement re-
garding the Company's Yellow Creek-Tombigbee Water-
way operations negotiated between the Company and
Respondents on 6 September 1985. Accordingly, it will
be ordered that, on request of the Company, Respond-
ents execute and effectuate the terms of the agreement
regarding Respondents' Yellow Creek-Tombigbee oper-
ations reached with Respondents on that date.
The General Counsel and the Company, citing, inter
alia, Longshoremen IL WU Local 17 (Los Angeles By-Prod-
ucts Co.), 182 NLRB 78.1 (1970), enfd. 451 F.2d 1240 (9th
Cir. 1971), contend that a make-whole remedy is appro-
priate under the circumstances of this case as the Compa-
ny incurred expenses it would not have incurred had Re-
spondents executed and implemented the agreement
reached on 6 September . I find merit in this contention.
The parties agree the Company could not have effective-
ly implemented the agreement unilaterally. Thus, the
Company was compelled to incur losses in operation on
the Yellow Creek route that it would not have incurred
had Respondents upheld their end of a bargain reached.
The Board has previously held make-whole remedies ap-
propriate against unions in similar albeit not identical sit-
uations. See Plumbers Local 420, 254 NLRB 445 (1981);
Graphic Arts International Local 280, 235 NLRB 1084
(1978), enfd. 596 F.2d 904 (9th Cir. 1979); Longshoremen
Local 17, supra. The rationale for compensatory damages
in these cases is that it precludes the offending party
from retaining the fruits of its unlawful action. Respond-
ents argued here that it would be inequitable for them to
be required to make the Company whole at the rates
reached in the 6 September agreement since the Compa-
ny subsequently offered concessions in the rates. I find
no merit in this argument for it would allow Respond-
ents to negate the terms of the agreement reached with
the Company and would allow Respondents to retain at
least a portion of the fruits of their unlawful actions. I
find compensatory damages appropriate here and the
recommended Order will provide for such a remedy.
The General Counsel's brief argues also for the inclu-
sion of a "visitatorial clause" in the recommended Order.
The Board has previously indicated that visitatorial
clauses will not be indiscriminately included in remedial
orders . See, e .g., O. L. Willis, Inc., 278 NLRB 203
(1986); United Cloth Co., 278 NLRB 538 (1986). See also
Hilton Inn North, 279 NLRB 45 (1986). No special cir-
cumstances were shown in this case to warrant inclusion
STEELWORKERS (WARRIOR & GULF)
of a visitatorial clause. Accordingly, such a clause will
not be provided.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondents, United Steelworkers of America,
AFL-CIO, and Local 4754, United Steelworkers of
America, AFL-CIO, Mobile, Alabama, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing , on request, Warrior and Gulf Navigation
Company to execute and effectuate the collective-bar-
gaining agreement relative to the Company's Yellow
Creek-Tombigbee Waterway operation agreed to about 6
September 1985.
(b) In any like manner refusing to bargain with the
Company in accordance with the requirements of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) If requested to do so by the Company, forthwith
sign and effectuate the collective-bargaining agreement
relative to the Company's Yellow Creek-Tombigbee Wa-
terway operation reached with Respondents on 6 Sep-
tember 1985
(b) Make the Company whole for any financial ex-
penditures made by it subsequent to 6 September 1985 in
operation of the Yellow Creek route of the Tombigbee
Waterway, which it would not have been obligated to
make under the agreement reached with Respondents on
that date.
(c) Post at Respondents' offices and meeting places
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Regional
Director for Region 15, after being signed by the Re-
spondent'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 members are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for Region 15 signed
copies of the notice for posting by the Company, the
Company being willing , at all locations where notices to
members are customarily posted.
6 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.
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 Nation-
al 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 "
1407
(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.
APPENDIX
NOTICE To MEMBERS
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with War-
rior and Gulf Navigation Company concerning employ-
ees in the unit set forth below by refusing to sign and
effectuate a collective -bargaining contract fully agreed
upon.
WE WILL, on request by Warrior and Gulf Navigation
Company , execute the agreement reached on 6 Septem-
ber 1985. The bargaining unit is:
Maintenance men, harbor tug bargemen , mainte-
nance clerk, purchasing clerk, stores clerk at the
Chickasaw terminal; longshoremen leaders, lift
truck operators, front end loader operators, steve-
dores, and crane operators at the Port Birmingham
terminal and unlicensed vessel personnel employed
on the Company's line-hand tugboats operated on
the Warrior-Tombigbee rivers and the Intercoastal
Waterway and on other water ways for which the
Company rights apply.
WE WILL make Warrior and Gulf Navigation Compa-
ny whole for any financial expenditures made by it sub-
sequent to 6 September 1985 in operation on the Yellow
Creek route of the Tombigbee Waterway, which it
would not have been obligated to make under the agree-
ment reached with us on that date.
UNITED STEELWORKERS OF AMER-
ICA, AFL-CIO AND LOCAL 4754,
UNITED STEELWORKERS OF AMER-
ICA, AFL-CIO