Monterey /Santa Cruz Building Trades Council (National Refractories)

National Labor Relations Board - Board Decisions

Jul 30, 1990

299 N.L.R.B. 251 (N.L.R.B. 1990)

MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES) 251
Monterey/Santa Cruz Counties Building and Con-
struction Trades Council; International Brother-
hood of Electrical Workers, Local No. 234,
AFL-CIO; Laborers International Union of
North America Local No. 297, AFL-CIO;
International Association of Machinists and
Aerospace Workers, District Lodge No. 93,
AFL-CIO; International Union of Operating
Engineers, Local No. 3, AFL-CIO; Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No.
890, AFL-CIO; International Brotherhood of
Painters and Allied Trades, Local No. 272,
AFL-CIO; Cement, Lime, Gypsum and Allied
Workers Division of the International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local Lodge
D99, AFL-CIO; United Brotherhood of Carpen-
ters and Joiners of America, Local No. 925,
AFL-CIO; United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada,
Local No. 503, AFL-CIO 1 and National Re-
fractories & Minerals Corporation. Case 32-
CB-3222
July 30, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
On January 10, 1990, Administrative Law Judge
Gerald A Wacknov issued the attached decision
The Respondents filed exceptions and a supporting
bnef, and the Charging Party filed an answenng
bnef
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 bnefs and has
decided to affirm the judge's rulings, findmgs, 2 and
conclusionss and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The Respondent Unions have excepted to some of the judge's credi-
bility findings The Board's established policy is not to overrule an ad-
ministrative law judge's credibility resolutions unless the clear preponder-
ance of an the relevant evidence convinces us that they are Incorrect
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d
Or 1951) We have carefully examined the record and find no basis for
reversing the findings
3 We find It unnecessary to rely on the judge's discussion regarding eq-
uitable pnnciples and thew application to the facts of this case
judge and orders that the Respondents, Mont-
erey/Santa Cruz Counties Building and Construc-
tion Trades Council, International Brotherhood of
Electrical Workers, Local No 234, AFL-CIO, La-
borers International Union of North America,
Local No 297, AFL-CIO, International Associa-
tion of Machinists and Aerospace Workers, District
Lodge No 93, AFL-CIO, International Union of
Operating Engineers, Local No 3, AFL-CIO,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local No 890, AFL-CIO, International Brother-
hood of Painters and Allied Trades, Local No 272,
AFL-CIO, Cement, Lime, Gypsum and Allied
Workers Division of the International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, Local Lodge D99, AFL-
CIO, United Brotherhood of Carpenters and Join-
ers of America, Local No 925, AFL-CIO, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, Local No 503, AFL-CIO,
Moss Landing and Natividad, California, their offi-
cers, agents, and representatives, shall take the
action set forth in the Order
Jeffrey Henze, Esq , for the General Counsel
Eugene Miller, Esq , of Seaside, California, for Respond-
ent Unions
Michael P Burke, Esq (Bryan, Cave, McPheeters
McRoberts), of Phoenix, Arizona, for the Employer
DECISION
STATEMENT OF THE CASE
GERALD A WACKNOV, Administrative Law Judge
Pursuant to notice, a hearing with respect to this matter
was held before me in Salinas, California, on August 16
and 17, 1989 The initial charge was filed on May 17,
1989, by National Refractones and Minerals Corporation
(the Employer) Thereafter, on June 27, 1989, the Re-
gional Director for Region 32 of the National Labor Re-
lations Board (the Board) issued a complaint and notice
of hearing alleging a violation by the labor organizations
named above in the caption of this proceeding (the Re-
spondents) of Section 8(b)(3) of the National Labor Rela-
tions Act (the Act)
The parties were afforded a full opportunity to be
heard, to call, examine and cross-examine witnesses, and
to introduce relevant evidence Since the close of the
hearing, briefs have been received from the General
Counsel, counsel for the Employer, and counsel for tlie
Respondents
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
299 NLRB No 38
/
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION
The Employer is a California corporation with facili-
ties located in Moss Landing and Natividad, California,
and is engaged in the manufacture and nonretail distribu-
tion of fire brick and related products The Employer an-
nually ships goods valued in excess of $50,000 directly to
customers located outside the State of California
It is admitted, and I find, that the Employer is now,
and at all times material has been, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
It is admitted that the Respondent Unions named in
the caption of this proceeding, and each of them, are
labor organizations within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issue
The principal issue raised by the pleadings is whether
the Respondents have violated and are violating Section
8(b)(3) of the Act by repudiating and thereafter failing
and refusing to execute a document embodying the terms
and conditions of a defined benefit pension plan, which
were negotiated by the parties and thereafter ratified by
the Respondents
B The Facts
1 Background
Prior to 1984, the Kaiser Aluminum and Chemical
Corporation (Kaiser) owned major production facilities
located at Mexico, Missouri, Columbiana, Ohio, Nativi-
dad, California, and two facilities at Moss Landing, Cali-
fornia At all times material, the production employees at
the Mexico and Columbiana facilities and at one of the
two facilities at Moss Landing have been represented by
the Aluminum, Brick & Glass Workers Union, which
Union is not a respondent herein
The Respondents, jointly, have represented the em-
ployees at the other Moss Landing plant and at the Nati-
%/Wad plant The appropriate bargaining unit is described
as follows
All full-time and regular part-time production and
maintenance employees employed by the Employer
at its Moss Landing and Natividad, California facili-
ties, excluding office clerical employees, profession-
al employees, employees represented under separate
collective-bargaining agreements, guards, and super-
visors as defined in the Act
Under the terms of their collective-bargaining agree-
ments with Kaiser, the Mexico and Columbiana employ-
ees, who are represented by the Aluminum, Brick &
Glass Workers, were covered under separate but identi-
cal defined benefit pension plans The employees at the
California facility represented by the Aluminum, Brick &
Glass Workers were covered by a separate and signifi-
cantly different defined benefit pension plan, similarly,
the employees at the other two California facilities, rep-
resented by the Respondents, were also covered by this
plan Thus, the employees at all three of the California
plants were covered by separate but identical pension
plans, which plans differed significantly from the plans in
effect at Columbiana and Mexico
In 1984, the Employer took over the operation of
these five facilities In 1985, it negotiated new collective-
bargaining agreements with the Aluminum, Brick &
Glass Workers and with the Respondents Under the
terms of these new agreements, the old Kaiser pension
plans were termmated and were replaced by an employ-
ee stock ownership plan (ESOP) which was identical at
each of the five facilities During the terms of these 3-
year (1985-1988) collective-bargaining agreements, the
Employer was unable to meet the commitments it had
made to the Unions concerning its contribution rate to
the ESOP, and was forced by financial considerations to
reduce its contribution level from 10 percent to 5 percent
for the last 2 years of the contract term
The 1985-1988 collective-bargaining agreements cov-
ering the three California facilities expired on June 30,
1988' Negotiations for successor agreements began on a
local level sometime just prior to June Resolving the
dispute over the contribution rate to the ESOP was one
of the major issues, if not the major issue, for the Em-
ployer, the Respondents, and the Aluminum, Brick &
Glass Workers in these negotiations However, although
this issue was thoroughly discussed during the course of
these negotiations, no agreement was reached
The collective-bargaining agreements between the Em-
ployer and the Aluminum, Brick & Glass Workers co y
-enng the plants at Mexico and Columbiana were due to
expire on July 30 Negotiations for successor agreements
to these contracts were scheduled to take place in St
Louis, Missouri, beginning on July 11 Because the Cali-
forma negotiations had reached a stalemate, the Unions
involved in those negotiations decided to sit in on the St
Louis negotiations in order to acquire information which
would assist them when negotiations resumed in Califor-
nia, particularly since the aforementioned ESOP issue
was of major significance at each of the five facilities
Ken Mitchell, a service representative for the Interna-
tional Association of Machinists and Aerospace Workers,
District Lodge 93, one of the Respondents, served as the
chairman of the Respondents' negotiating committee and
was its chief spokesman during the local west coast ne-
gotiations Mitchell retained that title and authority
during the negotiations in St Louis Initially, the Re-
espondents intended only to act as observers at the St
Louis negotiations, however, at some point during the
negotiations the role of the west coast parties changed,
and the Respondents became active participants with the
express intent of being bound by whatever agreement
was reached over the national issues, including the pen-
' All dates or time periods hereinafter refer to 1988 unless otherwise
indicated
MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES) 253
sion plan, subject to ratification by the Respondents'
local membership
The principal negotiators and spokesmen for the re-
spective parties at the St Louis negotiations were as fol-
lows Brooke Hall, for the Employer, Roy Brown, chief
negotiator for the Aluminum Brick & Glass Workers and
the Respondents, and as noted above, Ken Mitchell, also
for the Respondents
While all of the parties agree that the St Louis negoti-
ations concluded on July 16 with the signing of a memo-
randum of agreement which provided for a defined bene-
fit pension plan, the Respondents maintain that the
agreed-upon defined benefit pension plan covering the
California plants (including the plant represented by the
Aluminum, Brick & Glass Workers) which, was negotiat-
ed on behalf of the Respondents, is different than the de-
fined benefit pension plan covering the Columbiana and
Mexico plants, which was negotiated on behalf of the
Columbiana and Mexico employees represented by the
Aluminum, Brick & Glass Workers
The General Counsel and the Employer maintain that
the Respondents' position is clearly erroneous and that
the pension plan is to be identical at each of the five fa-
cilities, as evidenced by the plain language of the memo-
randum of agreement executed by all of the parties,
which constitutes irrefutable evidence as to the terms of
the pension plan and the employerwide extent of its cov-
erage The memorandum of agreement, in pertinent part,
is as follows
Pension Plan
Separate Pension Agreements will be prepared as
customary for the various locations (to be effective
8/1/88), all of which will be substantially identical
and will contain eisentially the same terms and con-
ditions as the 1982 Pension Agreement between
Kaiser Refractories, Division of Kaiser Aluminum
& Chemical Corporation and the Aluminum, Brick
& Glass Workers International Union at Mexico and
Columbiana (incorporating any changes required by
law), except as set forth below
Several days after the signing of the memorandum of
agreement the Employer and the Respondents resumed
local negotiations in California During such negotiations
the Respondents did not propose to modify the foregoing
language identifying the pension plan which was to
become effective upon ratification of the new 3-year con-
tract Thereafter the Respondents did, m fact, ratify the
entire contract package, and did so advise the Employer
By letter dated November 16, the Employer advised
Mitchell that three documents, embodying the entire
contract package, were almost completed and would be
sent to Mitchell for review prior to signing Regarding
the pension plan, the letter states as follows
The Pension Agreement is patterned after the
Mexico—Columbiana Plan as agreed at negotia-
tions The identical plan is being sent to Roy Brown
for signature
On November 18, Mitchell wrote to the Employer as
follows
You state in your letter that the Pension Agree-
ment is patterned after the Mexico—Columbiana
Plan as agreed to at negotiations I would like to
make it as clear as possible that we agreed that all
Pension Plans would be a clone of each locations
[sic] old 1982-1985 Plan Every location would be
just like their old plan there [sic] was never any
agreement or any talk about having one Pension
Plan to cover all locations [Emphasis in original ]
Please make up our Pension Plan as it was in 1982-
1985 with just the appropriate changes like the dates and
the per month changes from $17 50 to $18,00, $19 00,
$2000 we will then take a look at the Plan and get it
signed
Since that time the Respondents have refused to exe-
cute the pension agreement and, as a result, the Employ-
er filed the instant charge
2 The St Louis negotiations
Brooke Hall, the Employer's chief negotiator, testified
that when the discussions in St Louis regarding the
ESOP plan failed to be productive, the possibility of in-
stituting a defined benefit pension plan was explored by
the Employer and Roy Brown, on behalf of the Alumi-
num, Brick & Glass Workers At that particular juncture
the negotiations were limited to the Mexico and Colum-
biana plants, and the representatives - of the west coast
unions were not participants but were present for the
purpose of observmg the negotiations regarding the
ESOP, which similar discussions had not proved to be
fruitful during the earlier west coast negotiations How-
ever, when it became clear that the ESOP plan was no
longer under discussion, and a defined benefit pension
plan was being seriously considered, both the Respond-
ents and the west coast local of the Aluminum, Brick &
Glass Workers made it apparent that they, too, had
become parties to the negotiations and were no longer
merely observers, further, Brown became the chief
spokesman for their interests as well as for the locals rep-
resenting the Mexico and Columbiana plants
At some point thereafter, Hall understood that Brown,
on behalf of all the unions at each of the five plants, was
proposing that the defined benefit pension plan then
being negotiated be made retroactive to January 1, 1985,
the date the old Kaiser plans had been terminated by the
Employer, that the old pension plans at each of the five
plants be, according to Hall's notes, "clon[ed] as they
exist", and that the ESOP shares to which the employees
had become entitled since 1985 remain in their accounts
or be paid to the employees in the form of cash
In response to this proposal, Hall explained that the
Unions' proposal would amount to "double-dipping" as
the employees would be receiving the benefits of both a
pension plan and an ESOP plan for the same 3-year
period of tune (1985-1988), and that this was not accept-
able to the Employer
The Kaiser pension plans at Mexico and Columbiana
included language providing that employees, upon retire-
ment, would continue to receive full pay for an initial
period of 13 weeks, after which period they would begin
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
receiving a greatly reduced sum—the normal monthly
retirement amount Hall proposed that the old Kaiser
plans at Mexico and Columbiana be modified by deleting
the aforementioned 13-week full pay provision, further,
knowing that the old Kaiser plans on the west coast had
no similar 13-week provision but provided substantially
greater benefits, Hall proposed that the west coast facili-
ties accept the same plan as Mexico and Columbiana
Hall explained that these changes which he was propos-
ing were designed to offset the "double-dipping" advan-
tage to the Unions
After the Unions caucused, Brown presented what the
Unions' negotiating minutes characterize as "counter
proposals" It is clear that some of the matters advanced
by Brown were truly "counterproposals" in the sense
that the parties continued to disagree on such items as
holidays, medical insurance, life insurance, and wage in-
creases But on the issue of the defined benefit pension
plan, the Unions' bargaining notes are as follows
1 Clone old Pension Plan Put special language
in
2 $7 00 increase in factor 2 This would jump the
factor to $23 00, $24 50 in California
3 Agree to ESOP shares as proposed
4 Litigation withdrawn 3
Hall's bargaining notes contain the following entry re-
garding the pension "Agreement on everything except
factor" Hall testified that he understood that the Unions
were accepting the Employer's aforementioned pension
proposal except for the factor amounts which, under the
old Kaiser plans had been greater at the west coast
plants Thus, the Unions "counter proposal" included not
only an increase of $7 in the factor amount, but also that
the west coast differential be maintained However, ac-
cording to Hall, no other pension matters were in con-
tention Thus, Hall believed that the Unions had agreed
that the modified Mexico/Columbiana pension plan
would be substituted for the old west coast plan and
would be identical for each of the five facilities, that the
Unions had agreed to the Employer's proposal to discon-
tinue funding the ESOP plan, and, in addition, that the
agreement included the Unions' commitment to with-
draw all litigation then pending regarding the ESOP
plan which the Unions had instituted because of the Em-
ployer's alleged failure to contribute the requisite
amounts to the employees' ESOP accounts
As a result of further negotiations, according to Hall,
the parties agreed on the amount of the factor for the 3-
year term of the contract and, in addition, agreed that
the amount would be the same at Mexico/Columbiana as
well as the west coast facilities Moreover, all other con-
tract items were agreed to Thereafter, the aforemen-
2 The "factor" is a set dollar amount which is multiplied by an eligible
employee's total years of credited service in order to arrive at the month-
ly pension amount which the employee is to receive upon retirement
2 As noted above, the Unions had instituted a lawsuit against the Em-
ployer in order to compel It to provide additional funding for the ESOP
plan, and during the St Louis negotiations the parties agreed that, as part
of the understanding reached regarding the new pension plan, this litiga-
tion would be withdrawn
toned memorandum of agreement was prepared and
signed by the parties, as discussed above, on July 16
Mitchell candidly testified that when the parties began
negotiating about a defined benefit pension plan rather
than a continuation of the ESOP plan, he was not aware
that the old 1982-1985 Kaiser defined benefit pension
plan was not the same at each of the five facilities,' he
testified that as far as he knew they could have been
identical Bargaining negotiation notes taken by the Alu-
minum, Brick & Glass Workers show that the Employ-
er's initial proposal regarding the defined benefit pension
plan, as enunciated by Hall, included the following en-
tries
No 13 weeks special payment because of double
dip on ESOP Present ESOP equal to 13 week spe-
cial payment
However, Moss Landing, no 13 week special
payment in theirs [Employer's] proposal is to make
Moss Landing basically into the same pension as the
others
While Mitchell testified that he did not recall Hall
making such a proposal, Mitchell's personal notes of the
meeting in question show that Hall's "complete propos-
al" included the following "Moss Landing no double dip
to same plan as Mexico Same benefit level" Mitchell
testified that although he "may have known at the time
he wrote the notes" what was meant by Hall's "no
double dip" statement, he could not recall the meamng
of this statement at the time of the hearing
Following the presentation of the Employer's propos-
als, the negotiations were recessed for several hours, and
on the resumption of the negotiations, according to
Mitchell, Brown stated on behalf of the Aluminum,
Brick & Glass Workers and the Respondents that "we
were proposing to clone the old pension plans at each lo-
canon" (Emphasis added ) However, as set fourth above,
the bargaining notes of the Aluminum Brick & Glass
Workers show that Brown said "Clone old pension
Plan" (Emphasis added ) Mitchell's personal bargaining
notes, however, contain the entry "M L Pension," the
initials "M L" referring to Moss Landing
Thereafter, according to Mitchell, the aforementioned
memorandum of agreement was drafted by representa-
tives of the Employer and the Aluminum, Brick & Glass
Workers Mitchell elected not to participate in the draft-
ing of the memorandum of agreement because it was late
in the evening and he relied on the representatives of the
Aluminum, Brick & Glass Workers to represent the Re-
spondents' interests in that endeavor When he was pre-
sented with the memorandum of agreement at 430 a m
the following morning he read "parts" of the memoran-
dum but did not read it thoroughly Mitchell's testimony
on this point is as follows
Well, I read the thing and it says that pension
agreements will be prepared as customary for vari-
ous locations
That tells me that there were going to be differ-
ent plans because that's what was prior to this
MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES)

255
thing In '85 there were different pfahs, and it says
they'll be prepared as customary There were differ-
ent plans so that's what I read
It said they will be substantially identical and
contain essentially the same stuff and they do And
that's all I read because that's all we talked about
Brown, who was the chief negotiator for both the Re-
spondents and the Aluminum, Brick & Glass Workers at
the St Louis negotiations did not testify in this proceed-
ing Further, in addition to Mitchell, who represented
the Respondents, there were some 15 representatives of
the Aluminum, Brick & Glass Workers who attended the
St Louis negotiations Only one of these individuals was
called as a witness by the Respondents, namely Edward
Lucente, an International representative for the Moss
Landing local of the Aluminum, Brick & Glass Workers
Lucente testified that he did not remember the discussion
regarding the issue of double dipping and 13-week spe-
cial payment He further testified that he did not begin
servicing the Moss Landing Local until after the ESOP
plan had been established by the Unions and the current
Employer, and did not know any of the details of the old
Kaiser defined benefit pension plan Rather, he relied on
Mitchell's expertise regarding the specifics of the discus-
sion about the pension plan
At the hearing Lucente was asked to read the above-
quoted paragraph of the memorandum of agreement, and
testified that he understood the memorandum of agree-
ment to mean that all the pension plans were to be mod-
eled after the Mexico and Columbiana plans When asked
why he did not raise a question about the significance of
this language, Lucente testified that he "didn't think
there was a need for a question because I didn't see the
problem" According to Lucente, the Employer's pro-
posal to make the Moss Landing pension plan basically
the same plan as the others was not inconsistent with the
Unions' initial proposal to reinstitute the old Kaiser de-
fined benefit pension plan at Moss Landing because
"There wasn't a whole hell of a lot of difference in the
two plans" Lucente further clarified his understanding
of the language as follows
So to use the word basically, it could simply
mean they're basically going to be the same pro-
gram, the names are going to be different The
name is going to be different at the top of the page
The Local numbers are going to be different [Em-
phasis added ]
In actuality, the plans were different in many major re-
spects, and the old west coast Kaiser plan provided sig-
nificantly better retirement benefits and conditions than
the Mexico/Columbiana plan Hall testified that the
plants at Mexico and Columbiana had a total employee
complement of 560 employees at the time of the hearing,
and the 3 west coast plants had a total employee comple-
ment of 346 Nevertheless, despite the fact that the west
coast plants employed some 214 fewer employees, it
would have cost the Employer between $150,000 and
$250,000 per year more to fund a pension plan identical
to the old Kaiser west coast pension plan because of the
more favorable benefits
As discussed above, Mitchell did not understand the
significance of the interrelationship between double dip-
ping and the pension plan that the Employer was offer-
ing the Respondents Similarly, Lucente, who was rely-
ing on Mitchell's comprehension of the parties' bargain-
ing positions, was not conversant with the matters being
discussed Therefore, Hall's testimony on this matter
stands unrebutted
3 Local west coast negotiations
Local negotiations on the west coast resumed on July
19, and continued on July 20, and August 4 and 10
Dunng the course of these meetings the west coast locals
proposed that the pension plan factor be increased for
the west coast plants, but agreement was not reached on
this proposal and the matter was dropped Agreements
on local issues were signed by the parties on July 20 and
August 10 Neither of these agreements contains any lan-
guage pertaining to the pension plan
The Respondents maintain that Hall, in response to
questions asked by Respondents' representatives dunng
the course of the local negotiations, acknowledged that
the operative pension plan for the west coast locals
would be the same as the old west coast plans under
Kaiser Mitchell testified that on four separate occasions
during the local negotiations, various union representa-
tives asked Hall what the changes in the pension plan
would be, or what pension the west coast locals would
have and, according to Mitchell, Hall responded to each
of these inquiries by stating that the locals would have
the same plan they had prior to January 1, 1985 Lucente
corroborated Mitchell's testimony in this regard
Patrick Cotter, a shop steward at one of the west coast
plants, testified that he asked Hall something to the effect
of whether the new plan was going to be the same as the
old plan they had before Hall, according to Cotter, an-
swered that it would be the same pension plan
Thomas Scardina, business manager for Laborers
Local 297, one of the Respondents, corroborated Cot-
ter's testimony
Donald Carpenter, business manager for IBEW Local
234, one of the Respondents, testified that he asked Hall
whether the people would have their old pension plan
back, and Hall said yes
Marc Martinez, president of Local D-99 of the
Cement, Lime, Gypsum, and Allied Workers, one of the
Respondents, testified that he asked Hall whether they
were going to have the same pension Hall replied, ac-
cording to Martinez, "The pension that we are getting is
the exact clone pension of Kaiser Natividad, Moss Land-
ing, and the Brick Plant" On cross-examination, howev-
er, Martinez testified as follows
No, my question was basically to Mr Hall there,
"Is our pension the same7" He said yes He an-
swered my question so I didn't need to go any fur-
ther That was my major concern, the pension
Are we going to get—what are we going to get
back, in other words Are we going to stay with the
ESOP or are we going to get a regular pension like
we had7
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All I was interested in was getting a regular pen-
sion back
Martinez testified that at the time he asked Hall the
question, he believed that the old Kaiser plan at Mexico
and Columbiana was the identical pension plan that the
west coast unions had under Kaiser Thus, he was not
aware that the plans were substantially different
Roland Nom, business representative for Painters
Local 272, one of the Respondents, testified that he
always assumed that there was only one old pension plan
which was the same at all the Kaiser facilities
Hall testified that he recalled no discussion at any
point during the local west coast negotiations regarding
the pension plan, and recalled no questions from either
Cotter or Martinez regarding the pension plan Hall testi-
fied that during the August 4 and August 10 negotiations
there were no questions regarding the pension plan by
Carpenter or anyone else, although a brief colloquy oc-
cui led when the Respondents requested an increase in
the west coast pension factor, and Hall replied that the
factor amounts had been agreed on during the St Louis
negotiations and were no longer negotiable Hall testified
that he did not make any statement to Carpenter or any
other person at that meeting that the Moss Landing facil-
ity was going to get its old Kaiser pension plan back
again
Torn Mathis, works manager who as for the Moss
Landing and Natividad operations, Fred Sutton, who oc-
cupied the position of assistant comptroller for the Em-
ployer at the time of the local negotiations, and Don
Vorwork, superintendent of industrial relations for the
Moss Landing area plants, corroborated Hall's testimony
Analysis and Conclusions
Mitchell and Lucente, as the sole representatives of
the west coast Locals, were not prepared to participate
in the St Louis negotiations but were initially in attend-
ance only as observers Clearly, they were at a distinct
disadvantage when those negotiations took an unexpect-
ed turn and they became active participants in the nego-
tiation of the terms of a defined benefit pension plan as a
substitute for the ESOP plan which the parties had
theretofore unsuccessfully attempted to negotiate The
record evidence is clear, and I find, that Mitchell and
Lucente simply did not understand the complexities of
the pension plan negotiations Nor, it appears, did they
believe it was necessary to do so, as they were proceed-
ing under the misapprehension that the old Kaiser pen-
sion plan was the same at each of the five facilities, and
that therefore, by signing the memorandum of agreement
providing for the old Mexico/Columbiana pension plan,
they were agreeing to the return to the old west coast
plan There is no record evidence that the Employer
knew or should have known that Mitchell and Lucente
were not privy to the same information as Brown, who
became the chief spokesman for each of the unions in-
volved in negotiations, moreover, there is no record evi-
dence that Brown was at all in doubt about precisely
what bargaining proposals each of the unions, includmg
the Respondents, were willing to abandon in exchange
for the pension package proposed by the Employer
I credit the testimony of the various representatives of
the employer and find that at no time during the course
of the local west coast negotiations did Hall either state
or confirm that the memorandum of agreement, which
was negotiated, reduced to writing, and executed by
each of the parties during the St Louis negotiations, pro-
vided that the west coast locals were to retain their old
west coast pension plan The clear and plain language of
the memorandum of agreement is unambiguous and
leaves no room for misinterpretation Further, the testi-
mony of the various witnesses for the Respondents
strongly indicates that the pertinent language in the
memorandum of agreement would not have alerted any
of Respondents' members or representatives to the possi-
bility of a misunderstanding, since it was uniformly, but
mistakenly, believed that all the old Kaiser pension plans
at each of the five plants were identical with the excep-
tion of, as Representative Lucente testified, the identifi-
cation of the various plants and of the various local
unions Thus, it is probable that no questions were asked
regarding the pension plan as there was no confusion
among the the various union representatives in this
regard
Further, assuming arguendo that one or more of Re-
spondents' representatives did believe that the memoran-
dum of agreement was inconsistent with what the repre-
sentatives had been told by Mitchell and others, namely
that they would be receiving the same benefits that they
had previously enjoyed under the old west coast plan,
this would most certainly have compelled someone to
make the simple and obvious observation that the memo-
randum of agreement did not correctly reflect the agree-
ment of the parties Under these posited circumstances, it
is clear that the various union representatives would not
have merely accepted Hall's alleged assurances that, in
effect, they should disregard the plain but erroneous lan-
guage of the memorandum of agreement and rely on
Hall's verbal assurance to the contrary For the forego-
ing reasons, I am constrained to credit the testimony of
Hall, as corroborated by the various witnesses for the
Employer, and find that Hall made no representations re-
garding the pension plan during the west coast negotia-
tions
Contrary to the apparent position of the Respondent, I
find that the record evidence does not support the con-
tention that the Employer engaged in deception or inten-
tionally sought to misrepresent the facts or confuse the
issues in order to subvert the bargaining process Nor
was the Employer's negotiating stance premised upon a
basic misunderstanding of the issues being negotiated
Indeed, in the absence of any contrary testimony from
Brown, the chief negotiator for each of the Unions, in-
cluding the Respondent, Hall's credible testimony re-
garding the specifics of the bargaining process is consist-
ent with the overwhelming record evidence To the
extent that Mitchell's recollection and/or personal bar-
gaining notes differ from those of both Hall and the Alu-
minum, Brick & Glass Workers, I find that Mitchell's
recollection and notes are inaccurate and do not reflect
the positions of the parties
MONTEREY/SANTA CRUZ BUILDING TRADES COUNCIL (NATIONAL REFRACTORIES) 257
There is no doubt that Hall specifically obtained from
the Respondent the forfeiture of the old west coast pen-
sion plan as a quid pro quo for the 1985-1988 ESOP ben-
efits and the Columbiana/Mexico pension plan I there-
fore find that there was no mutual mistake of fact or un-
derstanding which would operate as a vehicle for nullify-
ing the agreement reached As discussed above, a combi-
nation of factors may have caused the Respondents to
mistakenly assume that they had successfully negotiated
a return to their old west coast pension plan, but it has
not been shown that the Employer knew or should have
known, or was in any way responsible for, the Respond-
ents' mistaken understanding of the negotiating process
and the ultimate agreement resulting therefrom
In Apache Powder Go, 223 NLRB 191 (1976), the
Board stated "that recision for unilateral mistake is, for
obvious reasons, a carefully guarded remedy reserved for
those instances where the mistake is so obvious as to put
the other party on notice of an error" In the instant case
the Respondents initially attempted to negotiate a return
to their old west coast pension plan, but appeared to
abandon that position at the insistence of the Employer's
spokesman, Hall, that the employees at all five plants be
covered by the old Columbiana/Mexico plan as modified
by agreement of the parties As noted above, there is no
record evidence to support the argument that, under
these circumstances, the Respondents' mistaken belief
that the old west coast pension plan was identical to the
old Columbiana/Natividad plan was "obvious" to the
Employer See Pete O'Dell & Sons Steel, 277 NLRB
1358, 1366 fn 12 (1985)
The Respondents' reliance on Waldon, Inc , 282 NLRB
583 (1986), is misplaced In that case the respondent em-
ployer erroneously executed a contract which contained
language (in the form of a wage classification system)
different from what the administrative law judge found
had been proposed by the employer during negotiations
In the instant case, however, the memorandum of agree-
ment reflects language that had in fact been proposed by
the Employer and agreed to by all parties to the negotia-
tions Thus, unlike the situation in Waldon, which in-
volved a dispute regarding whether the parties had
agreed to certain contract language, the dispute in the in-
stant case arises from the Respondents' failure to com-
prehend the language it agreed to
Nor, on equitable principles, is the result reached
herein unconscionable Indeed, it is far from clear that
the Respondents would not have knowingly traded their
old west coast pension plan for the ESOP benefits and
the pension package contained in the memorandum of
agreement, particularly as a lawsuit over this matter had
been instituted and the negotiations regarding the fund-
ing of the ESOP had reached a stalemate Moreover, the
Columbiana/Mexico employees, who comprise well over
50 percent of the employees affected by the outcome of
this case, are receiving the pension package they know-
ingly negotiated, and certainly, under these circum-
stances, recision of the Employer's pension agreement
with the Respondents alone would be disruptive of the
Employer's relationship with the Columbiana and
Mexico bargaining units In view of the foregoing, it
would appear unjust to disrupt the contractual relation-
ships which have been established after such extensive
and intense negotiations by, in effect, permitting the Re-
spondents to commence negotiations anew
Having reached an agreement on behalf of the em-
ployees whom its represents, the Respondents' duty to
bargain includes the requirement that it execute "the
written contract incorporating the agreement reached 4
On the basis of the foregoing, I conclude that the Re-
spondents did agree to and thereafter ratify the pension
plan which the Employer has submitted for the Respond-
ents' signature, and that by failing to execute the docu-
ment, the Respondents have violated and are violating
Section 8 (b)(3) of the Act as alleged
CONCLUSIONS OF LAW
1 National Refractories and Minerals Corporation is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
2 The Respondents, collectively and individually, are
labor organizations within the meaning of Section 2(5) of
the Act
3 By failing and refusing to execute the agreement
reached, the Respondents have violated and are violating
Section 8(b)(3) of the Act as alleged
THE REMEDY
Having found that the Respondents have failed to bar-
gain in good faith with the Employer by failing and re-
fusing to execute the agreement reached, the Respond-
ents shall be required to execute the agreement Further,
the Respondents shall be required to post an appropnate
notice attached hereto as "Appendix"
Based on these findings of fact and conclusions of law
and the entire record, I issue the following recommend-
ed5
ORDER
The Respondents, Monterey/Santa Cruz Counties
Building and Construction Trades Council, International
Brotherhood of Electrical Workers, Local No 234,
AFL-CIO, Laborers International Union of North
America, Local No 297, AFL-CIO, International Asso-
ciation of Machinists and Aerospace Workers, District
Lodge No 93 AFL-CIO, International Union of Operat-
ing Engineers, Local No 3, AFL-CIO, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No 890, AFL-CIO,
International Brotherhood of Painters and Allied Trades,
Local No 272, AFL-CIO, Cement, Lime, Gypsum and
Allied Workers Division of the International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, Local Lodge D99, AFL-CIO,
United Brotherhood of Carpenters and Joiners of Amer-
ica, Loc al No 925, AFL-CIO, United Association of
4 Sec 8(d) of the National Labor Relations Act
5 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
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local
No 503, AFL-CIO, Moss Landing and Natividad, Cali-
fornia, their officers, agents, and representatives, shall
I Cease and desist from
(a) Refusing to bargain in good faith with National Re-
fractories & Minerals Corporation by failing and refusing
to execute the agreement reached regarding the terms
and conditions of a defined benefit pension plan covering
the employees in the following appropriate unit
All full-time and regular part-time production and
maintenance employees employed by the Employer
at its Moss Landing and Natividad, California facili-
ties, excluding office clerical employees, profession-
al employees, employees represented under separate
collective bargaining agreements, guards, and super-
visors as defined in the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Execute the pension plan agreement submitted by
the Employer to the Respondents
(b) Post at their respective offices and meeting halls
copies of the attached notice marked "Appendix "6
Copies of notice, on forms provided by the Regional Di-
rector for Region 32, after being signed by Respondents'
representatives, shall be posted by them immediately
upon receipt, and be maintained by them for 60 consecu-
tive days, in conspicuous places, including all places
where notices to members are customarily posted Rea-
sonable steps shall be be taken by the Respondents to
ensure that the notices are not altered, defaced, or cov-
ered by any other material
(c) Furnish the Regional Director sufficient signed
copies of the notice for posting by the Employer, if it be
willing, to be posted in all places where notices to the
Employer's Moss Landing and Natividad employees are
customarily posted
(d) Notify the Regional Director in writing, within 20
days from the date of this Order what steps have been
taken to comply
° 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"
APPENDIX
NOTICE To MEMBERS
POSTED BY ODRER 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 in good faith with Na-
tional Refractories & Minerals Corporation in the appro-
priate unit described below by refusing to execute an
agreement embodying the terms and conditions of the
defined benefit pension plan which we negotiated on
behalf of the employees in the following collective-bar-
gaining unit
All full-time and regular part-time production and
maintenance employees employed by the Employer
at its Moss Landing and Natividad, California facili-
ties, excluding office clerical employees, profession-
al employees, employees represented under separate
collective-bargaining agreements, guards, and super-
visors as defined in the Act
WE WILL execute the agreement embodying the terms
and conditions of the defined benefit pension plan which
the Employer has submitted to us for signature
MONTEREY/SANTA CRUZ COUNTIES
BUILDING AND CONSTRUCTION TRADES
COUNCIL, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL No
234, AFL-CIO, LABORERS INTERNATION-
AL UNION OF NORTH AMERICA, LOCAL
No 297, AFL-CIO, INTERNATIONAL As-
SOCIATION OF MACHINISTS AND AERO-
SPACE WORKERS, DISTRICT LODGE No 93
AFL-CIO, INTERNATIONAL UNION OF OP-
ERATING ENGINEERS, LOCAL No 3, AFL-
CIO, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, LOCAL
No 890, AFL-CIO, INTERNATIONAL
BROTHERHOOD OF PAINTERS AND ALLIED
TRADES, LOCAL No 272, AFL-CIO,
CEMENT, LIME, GYPSUM AND ALLIED
WORKERS DIVISION OF THE INTERNATION-
AL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACKSMITHS,
FORGERS AND HELPERS, LOCAL LODGE
D99, AFL-CIO, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMER-
ICA, LOCAL No 925, AFL-CIO, UNITED
ASSOCIATION OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, LOCAL No 503,
AFL-CIO