Reppel Steel and Supply Co., Inc.

National Labor Relations Board - Board Decisions

Nov 17, 1978

239 N.L.R.B. 358 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reppel Steel and Supply Co., Inc. and Shopmen's Lo-
cal Union No. 740 of the International Association
of Bridge, Structural and Ornamental Iron Work-
ers, AFLCIO. Case 28-CA-4609
November 17, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND TRUESDALE
On July 25, 1978, Administrative Law Judge Ger-
ald A. Wacknov issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs '
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,3 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Rep-
pel Steel and Supply Co., Inc., Phoenix, Arizona, its
officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order, as so
modified:
Substitute the following for paragraph 2(d):
"(d) Make whole its employees for this loss of
wages and other benefits, which are provided for in
the agreement, for the period on and after November
1, 1977, in accordance with F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), plus interest as set forth in
Florida Steel Corporation, 230 NLRB 651 (1977).
(See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962) )."
Respondent filed a motion to reopen the record for receipt of additional
documentary evidence. Thereafter. the General Counsel filed a motion to
strike Respondent's motion to reopen the record. We den) Respondent's
motion to reopen the record, as the additional evidence was neither newly
discovered nor unavailable at the time of the hearing Additionally. we find
that the proffered evidence, even if accepted. would not affect the result
reached herein. Hence, we find it unnecessary to pass on the General Coun-
sel's motion to strike Respondent's motion.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F,2d 362 (3d Cirt 1951). We have carefully
examined the record and find no basis for reversing his findings.
The Administrative Law Judge found that Respondent addressed a letter.
containing wage data requested by the Union, to a vacant lot. Respondent
attached to its brief documents, not submitted into evidence at the hearing.
that indicate that the address was not that of a vacant lot but that of the
former union president. We find that even if the Administrative Law Judge
erred in his findings regarding the address to which the letter was sent, such
error was not prejudicial, as we adopt his finding that the Union did not in
any event receive the letter. Moreover, we find, in agreement with the Ad-
ministrative Law Judge. that the wage rates allegedly sent to the Union
would not have put it on notice that Respondent's later wage proposal was
incorrect.
3 In his recommended Order, the Administrative Law Judge inadvertently
failed to cite F W. Woolworth Company, 90 NLRB 289 (1950). in the make-
whole paragraph. We shall modify his recommended Order accordingly.
DECISION
STATEMENT OF THE CASE
GERALD A WACKNOV. Administrative Law Judge: Pur-
suant to notice, a hearing with respect to this matter was
held before me in Phoenix, Arizona, on March 23 and 24,
1978. The charge was filed on November 15, 1977,1 by
Shopmen's Local Union No. 740 of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO (herein called the Union), and thereafter on
January 3, 1978, a complaint and notice of hearing was
issued alleging a violation by Reppel Steel and Supply Co.,
Inc. (herein called Respondent), of Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended (herein
called the Act). Respondent's answer to the complaint,
duly filed, denies the commission of any unfair labor prac-
tice.
The parties were afforded a full opportunity to be heard,
to calls examine, and cross-examine witnesses, and to in-
troduce relevant evidence. Since the close of the hearing,
briefs have been received from the General Counsel and
from Respondent's counsel.
Upon the entire record 2 and based upon my observation
of the witnesses and consideration of the briefs submitted,
I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent is an Arizona corporation engaged in the
manufacture of steel products and related items, with its
principal place of business located in Phoenix, Arizona.
Respondent, in the course and conduct of its business op-
erations, annually purchases steel and other goods and ma-
terials valued in excess of $50,000 directly from suppliers
' All dates or time periods herein are within 1977 unless otherwise indi-
cated
2Following the close of the hearing. both the General Counsel and Re-
spondent filed motions to correct the transcript. The respective motions are
hereby granted only to the extent that the parties have mutually agreed to
such corrections. Regarding those proposed transcript corrections upon
which the parties do not agree, the transcript shall remain unchanged.
358
REPPEL STEEL & SUPPLY CO., INC.
located outside the State of Arizona. Respondent admits,
and I find, that it is an employer engaged in commerce
within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
IlL THE UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether, in
violation of Section 8(a)(5) and (1) of the Act, Respondent
has refused to execute and thereafter abide by the provi-
sions of a collective-bargaining agreement negotiated be-
tween Respondent and the Union.
B. The Facis
I. The Union's version
On April 15, following a Board-conducted representa-
tion election, the Union was certified as the collective-bar-
gaining representative of Respondent's employees in an
appropriate unit. 3
Thereafter, on July 13, William N. Coleman, a general
organizer for the Union's International, on behalf of the
Union, met with Tom Tracy, president of Respondent, at
the Sky Harbor Airport in Phoenix. The two individuals
had known each other previously, having participated in
negotiations for a ccilective-bargaining agreement in 1971 4
extending from January 3, 1972, to April 30, 1972, and
covering a unit substantially similar to the unit herein.5
At that meeting Coleman expressed his anxiety to com-
mence contract negotiations, and Tracy importuned Cole-
man to permit additional time prior to commencing negoti-
ations because of pressing financial and other problems.
Coleman replied that he would agree to such a delay only
if Tracy would consent to foreshortened negotiations on
contract or "administrative" language, suggesting that Tra-
cy forthwith agree to accept the administrative language of
the prior 1972 agreement and that the parties negotiate the
cost items at a later date. Tracy agreed.
Thereafter a negotiating meeting took place on Septem-
ber 14. Those present were Tracy, Coleman, and Richard
Nulliner, a special representative for the International.
Coleman presented Tracy with a proposed contract, in-
cluding cost items, and reminded Tracy of the commitment
he had previously made to agree to the administrative lan-
guage of the prior contract. Tracy acknowledged this, and
after some discussion of necessary modifications or
3The unit, comprised of approximatels 69 empli,?ees. is described In the
complaint as: "All production and maintenance employees emploed at Ihe
Respondent's facility at 3115 East Madison. Phoenix. Arzona: excluding all
truckdrivers, office clerical employees, watchmen. guards and super, isors as
defined in the Act."
I credit the testimony of Coleman in this regard
The record does not disclose the nature of any hargaining history subse-
qucnt to April 30, 1972, until the times material to the Instant proceeding
changes from the 1972 contract language the language of
the new contract was readily agreed to. At this meeting
Tracy stated that he believed the Union's cost proposals
were excessive, and Coleman replied that the cost items
were negotiable.
A subsequent meeting was held on October 3, with the
same individuals present. Tracy stated that the Union's
proposed cost demands were ridiculous, and Coleman re-
plied that the Union had not been able to make intelligent
cost proposals because necessary bargaining information
which the Union had previously requested had not been
forthcoming.6 Tracy advised that he had been very busy
and had not been able to send the information, but said
that he would bring it to the next negotiating meeting,
scheduled for the following day. However, there was agree-
ment at the October 3 meeting regarding pension fund pro-
visions of the contract, including the cost factors applica-
ble thereto.
The parties met again the next day, October 4. In addi-
tion to Coleman, Nulliner, and Tracy, William Tizard, Re-
spondent's vice president, was also in attendance. The ad-
ministrative language was again reviewed to acquaint
Tizard with the status of negotiations. Respondent then
verbally presented the Union with a list of currentjob clas-
sifications and corresponding wage rates. Coleman's bar-
gaining notes, introduced into evidence by Respondent,
state as follows:
Co. gave following current classifications and rates of
pay which they would base their increases on
Inspector
Plate Developer
Lay out
Machine Operator
Auto Mechanic
Fitter
Stock Chaser
Welder
Maintenance Mechanic
Burner
Forklife Oper.
Painter
Helper
Rebar
Operator
Helper
6.42
6.42
6.42
5.45
6.27
6.12
6.20
5.49
5.62
5.28
5.19
5.09
4.01
5.62
4.17
Co. said they would develop an entire cost package
but could not do it by tomorrow. Mtg for tomorrow
canceled.
There was some general discussion at the October 4
meeting, apparently initiated by Respondent, regarding
whether the welder classification should be changed to de-
note a "certified welder" classification. As reflected by
Coleman's notes, Respondent requested additional time to
prepare a complete cost package, and the parties agreed to
B letter dated April 26, the t non had requested the name, date of hire.
hourls rate of pa). job classification or description of work performed. and
description and explanations ,if other benefits for each unit emplosee The
L nion never receiled the requested information
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
postpone the next scheduled meeting to October 12 in or-
der to provide Respondent with an opportunity to prepare
its proposal.
The October 12 meeting was held as scheduled, with all
four individuals again in attendance. Respondent submit-
ted a typed wage proposal listing the same classifications
that had been verbally presented to the Union during the
prior meeting but adding a certified welder classification,
each classification reflecting, for the first year of the con-
tract, a 20-cent-per-hour wage increase from the then-cur-
rent wage rate verbally furnished by Respondent to the
Union at the October 4 meeting. The document also re-
flected Respondent's wage offer of 42 cents and 40 cents,
respectively, for the next 2 succeeding years of the con-
tract.
The entire agreement was discussed, including wages
and classifications. During the course of the discussion,
Coleman asked whether there were employees then being
paid more than the proposed first-year wage rates. Respon-
dent's negotiators apparently did not directly answer this
query but rather, after a brief caucus, responded that if
such was the case the employees currently being paid
above the first-year contract rate would receive a 20-cent
wage increase regardless of their current rate of pay. At the
conclusion of this negotiating session, all items having been
agreed to, the parties initialed their respective copies of the
agreement, including the typed wage proposal submitted
by Respondent. The union representatives stated that al-
though they believed the wage rates proposed by Respon-
dent were substandard, they would attempt to sell the
package to the employees, in view of the financial difficul-
ties Respondent claimed it was then experiencing.
Thereafter, the contract was presented to and ratified by
the employees and prepared by the Union for signature of
the parties. And on November i, Nulliner personally deliv-
ered copies of the agreement to Tracy for his signature.
Tracy requested several days to look over the document,
and Nulliner agreed.
On November 3, Tracy phoned Nulliner and stated there
was a problem with the wage rates and classifications.
blaming the mistakes on his secretary. Nulliner replied that
the agreed-upon wage rates and classifications were insert-
ed in the contract as negotiated, and suggested that Tracy
phone Coleman about the matter.
On November 8. Colemall, having apparently been ad-
vised by Nulliner that Respondent was reneging on the
agreement, phoned Tracy and was told that the contract
classifications and rates of pay were incorrect due to a
mistake by Tracy's secretary and that Tracy had given
Nulliner a new set of classifications and wages which re-
flected what Respondent intended to have in the agree-
ment all along. Coleman, during the ensuing vitriolic dis-
cussion, stated that he intended to have the agreement
signed as negotiated by the parties and ratified by the em-
ployees and that any problems within the parameters of the
agreement could be discussed subsequent to the time Re-
spondent executed the contract. A meeting was scheduled
for November 14.
At the November 14 meeting, attended by the same four
individuals, Tracy presented the Union with a document
containing 31 classifications and corresponding wage rates,
rather than the 16 classifications and wage rates initially
presented to and agreed upon with the Union. Tracy reiter-
ated that his secretary had made a mistake and that he was
not to blame, and adamantly refused to sign any agree-
ment which did not incorporate the new classifications and
wages. Coleman stated that the Union was not there to
negotiate, and the meeting concluded. Thereafter, the
Union filed the instant charge.
2. Respondent's version
The foregoing is a composite of the testimony of Cole-
man and Nulliner. Tracy and Tizard tell a quite different
story. Tracy testified that at the initial July 13 meeting at
Sky Harbor Ariport there was general agreement, con-
firmed by a handshake, that Tracy would agree to the ad-
ministrative language of the contract and Coleman would
agree to a 20-cent-per-hour increase over and above the
then-current hourly rate for each employee for the first
contract year. During the course of his testimony, Tracy
emphasized that "from day one" all he ever intended to
agree to was a 20-cent-per-hour raise from the then-current
wage rate of each employee for the first year of the con-
tract. Tizard testified that at the October 4 meeting wages
were discussed "only very generally" and that Tracy stated
Respondent was then "considering" a general across-the-
board increase of 20 cents an hour. Tizard flatly denies
that Tracy had in his possession or verbally presented a list
of classifications or corresponding wage rates to the Union
at the October 4 meeting.
Tracy testified that following the October 4 meeting he
requested and received from either Harold Hoover, vice
president responsible for Respondent's structural depart-
ment, or Lois Worthing, the timekeeper, a verbal list of
Respondent's wage rates and classifications for the struc-
tural division. He thereupon phoned two competitors and
requested their wage rates for comparable classifications,
and prepared a written list reflecting the information he
had received. Tracy handed the list to Tizard and instruct-
ed Tizard to insert on this list the appropriate classifica-
tions and corresponding wages for Respondent's rebar di-
vision, with which Tizard was apparently more familiar.
Further, Tracy instructed Tizard to prepare a first-year
wage proposal for the Union by adding 20 cents per hour
to each classification appearing on the list, having forgot-
ten that there were, in addition, other lower wage rates
being paid by Respondent to various employees in the clas-
sifications listed. Tizard did so, and this list was presented
to the Union at the October 12 meeting as Respondent's
wage proposal, Respondent stating that the wage proposal
represented an increase of 20 cents per hour across the
board and that Respondent was in no position to offer
more.
Acknowledging that the contract was presented to him
by Nulliner on November I for his signature, Tracy claims
he observed that the wage rate was incorrect. He then took
the contract to Hoover, who confirmed Tracy's belief that
the wages reflected in the contract were not what Hoover
understood. from a previous conversation with Tracy, had
been agreed to. Tracy testified that it suddenly dawned on
him that, according to the contractual provisions, employ-
360
REPPEL STEEL & SUPPLY CO., INC
ees within various classifications would be entitled to raises
in excess of 20 cents per hour, a result which he had not
intended.7
Discovering this dilemma, Tracy immediately phoned
Nulliner, stating that the contract did not reflect what was
negotiated, and added that he had a proposal which "abso-
lutely constitutes 20 cents an hour for every employee that
we have." Nulliner allegedly replied, according to Tracy,
that he knew the wage rates would be a problem and that
he would pick up the copies of the contract along with the
revised wage proposal, have the contract corrected in ac-
cordance therewith, and return copies of the corrected con-
tract to Respondent for signature. 8
Thereafter, according to Tracy, Respondent prepared its
revised wage proposal in an effort to reflect the 20-cent
across-the-board increase for each employee. Respondent
admitted that in preparing its revised wage proposal it sim-
ply "made up" the subclassifications in order to reflect the
varying wages it paid to employees, even though Respon-
dent previously had no such subclassifications. As Respon-
dent states in its brief:
This new list included A, B and C classifications under
some of the general headings in an effort to make the
20 per hour across-the-board increase into a list of
wage classifications and wage scales.9
Suffice it to say that Respondent's confusing revised wage
proposal does not support Tracy's contentions that it "ab-
solutely constitutes 20 cents an hour for every employee
that we have," which is what Tracy claims he intended
throughout negotiations.
Tracy's account of the unproductive November 14 meet-
ing is substantially similar to the account given by Cole-
man, the parties being unable to resolve their differences.' 0
7Curiously, and without explanation therefor on the record. Respondent
granted to certain employees on November 2. I day after the new contract
was to become effective, wage increases far in excess of 20 cents per hour
Thus, one inspector was raised from $6.42 to S7.04 per hour; one welder
from $5.19 to $5.60 per hour; two burners from $5.28 to S5.80 per hour: a
stock chaser from $4.55 to $5.05 per hour: and a forklift driver from S4 88
to $5.39 per hour. Certain employees received a 20-cent-per-hour raise. but
some 19 of these employees were not increased to the contract scale for their
classification. The contract specifies that wage rates therein are "minimum
hourly rates."
s While the record is unclear, a careful reading of the record indicates that
Nulliner did pick up the contracts and revised wage proposal from Respon-
dent, but on November 8 rather than on November 3 as implied by TIracy
Thus. Respondent's revised wage proposal is dated November 8. Coleman
testified that he phoned Tracy on or about November 8, and Tracs testified
that he received the phone call from Coleman about 4 hours after Nulliner
picked up the documents, including the wage proposal.
In essence, Respondent's revised wage proposal considerably lowered
most of the previously agreed-to classification rates and added a number of
subclassifications with even lower correspondent rates. Contrary to Tracv's
claim, the revised wage proposal shows the inspector classification rate of
S6.49 per hour (rather than the previously agreed-upon rate of S6.62 per
hour), and Respondent's records show that one inspector who was previous-
ly making $6.42 per hour would thereby be entitled to receive only a 7-cent
rather than a 20-cent wage increase; six machine operators who were mak-
ing $5.62 per hour would be entitled to a raise of only 3 cents. to $S 65: a
welder "B" would be raised 41 cents per hour from $5.19 to $5 60. two
burners from $5.28 to $5.80. a stock chaser "A" from S4.55 to S5.05, and the
forklift driver from $4.88 to S5.39.
10 Respondent was not permitted to adduce evidence at the hearing re-
garding a meeting of the parties on March 9, during which an agent of the
C. A nalvsis and Conclusion.s
Respondent argues as follows: (I) Tracy. "from day
one" and thereafter throughout negotiations, made it clear
to the Union that the Respondent was only willing to grant
a 20-cent-per-hour across-the-board increase to each em-
ployee for the first year of the contract; and the Union
understood this to be Respondent's wage proposal: (2)
assuming that the initial wage proposal was a "mistake," as
Tracy several times stated during the course of his testi-
mony, the Union should have recognized the mistake be-
cause of wage information the Union had in its possession:
and (3) the contract prepared and submitted by the Union
to Respondent for signature did not embody the contract
language agreed to by the parties but rather contained uni-
lateral additions or changes inserted by the Union. These
contentions are discussed below.
Both Coleman and Nulliner very favorably impressed
me as being forthright witnesses having a clear and con-
vincing recollection, supported by documentary evidence,
of the meeting and events involved herein. Conversely, the
testimony of Tracy and Tizard was often vague, incom-
plete and inconsistent, unsupported by the documentary
evidence, and inherently improbable, I therefore discredit
the testimony of Tracy and Tizard to the extent that it
differs from the testimony of Coleman and Nulliner.
I do not credit the testimony of Tracy and/or Tizard
that Respondent, from Tracy's first meeting with Coleman
at the Sky Harbor Airport, obtained a general agreement
that the Union would accept a 20-cent-per-hour increase
over and above the then-current hourly pay for each em-
ployee, or that such a proposal was reiterated by Respon-
dent's representatives throughout the course of negotia-
tions. Respondent's written proposal contains nothing of
the sort. Moreover, it is inconceivable that Coleman, an
experienced union representative and negotiator, would
tentatively bind the Union to a particular wage increase
prior to even being furnished with current wage and other
information necessary for collective-bargaining purposes.
Rather, I find, as credibly testified to by Coleman and Nul-
liner, that throughout the course of negotiations Respon-
dent at no time proposed an across-the-board wage in-
crease of 20 cents per hour per employee.
Further, I find that Respondent's October 12 written
wage proposal was not a "mistake" but rather was precise-
ly what Respondent represented it to be, namely a clear
and unmistakable offer made in the course of contract ne-
gotiations and that the Union understood and accepted it
as such. Thus, on October 4, Respondent had furnished the
Union with what Respondent stated were the current clas-
sifications and rates of pay upon which Respondent in-
tended to base its proposed increases. And at the very next
negotiating session, Respondent submitted what it charac-
terized as a final offer, namely, a 20-cent-per-hour increase
per classification, not per employee, based on the wages
and classifications it had previously submitted. I find it
Board acted as intermediary in an attempt to settle the instant case Alter
careful consideration of the arguments of the parties and applicable authori-
ts. I relect Respondent's offer of proof in this regard. See Ruidiny amd
(Constructin Trades (Counil of Philadelphia and Vicinity. AFl, ('10 lt(Ae-
ni, e ( 'ott, ruictl, n (. I, 222 N.RB 1276. In I ( 19761
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utterly incredible that Tracy, Respondent's president and
majority stockholder who is involved in the day-to-day op-
erations of Respondent, could have forgotten that employ-
ees within the same classification received varying rates of
pay.
Even assuming by some stretch of the imagination that
Respondent did in fact make a mistake and did not really
intend to offer what it did, I find that the Union was in no
position to know this. Thus, the Union had never received
prior wage and classification information which, even if
mailed as contended by Respondent, was addressed not to
the Union's representative but to a vacant lot; t the Union
only possessed wage and classification information taken
from a sampling of employees who chose to attend several
union meetings; and, of great significance, the classifica-
tions submitted to the Union both verbally on October 4
and in writing on October 12 were substantially the same
as those classifications appearing in the prior 1972 agree-
ment between the parties, there being no subclassifications
in said earlier contract. Moreover, Tracy testified that prior
to preparing the October 12 wage proposal he compared
Respondent's wages with those of two competitors and dis-
covered that Respondent's wage rates were, for the most
part, 20 cents or more lower per classification. Given the
credible testimony of Coleman and Nulliner, coupled with
the facts and circumstances discussed above, I find that,
even assuming, arguendo, a "mistake" by Respondent, the
Union did not know, nor was it in a position to even have
suspected, that Respondent did not mean what it initially
stated and subsequently confirmed in writing. Cf. Apache
Powder Company, 223 NLRB 191 (1976).
Next, Respondent contends that the draft of the contract
submitted to Respondent for signature was incorrect, as it
contained language not previously agreed to. The record
shows, and I find, that certain changes in language resulted
from clerical error on the part of the Union's secretary who
typed the contract and that such relatively insignificant
changes in wording were the result of typographical
error
or other inadvertence. The precise language agreed to
is
clear and was initialed by the parties in their respective
draft agreements, and the Union has indicated its willing-
ness to correct these errors in the contract it submitted for
signature. Indeed, Coleman, not Respondent, discovered
the errors and voluntarily pointed them out to Respondent
during the course of the hearing. Moreover, at no time did
Tracy indicate that these changes caused him to refuse to
execute the contract, as he unequivocally confirmed at
the
hearing on cross-examination:
n It appears unnecessary to discuss in detail the very suspicious
circum-
stances surrounding the alleged mailing of this requested information
to the
Union. Suffice it to say that the Union never received the information.
And
even if mailed to the Union by letter dated May 19. a comparison
with
another exhibit introduced by Respondent shows that the wage
rates alleg-
edly submitted were incorrect, as they did not reflect substantial
wage in-
creases granted employees on May 4. Nor did classifications
allegedly sent
to the Union correspond with those classifications later submitted
to the
Union after Respondent recognized its "mistake." Further.
even though the
wage rates allegedly sent to the Union reflected that employees
within the
same classification may have received varying rates of pay.
this would not
have put the Union on notice that Respondent did not want
to alter this
method of payment by raising the wages of each employee
to a minimum
standard classification rate.
Q. Is it your testimony now that there wasn't any
other problem with the agreement as far as you're con-
cerned except for the wage classifications?
A. Correct.
I therefore find that the existence of these errors does not
relieve Respondent of the obligation to execute the con-
tract as agreed to. Trojan Steel Corporation, 222 NLRB 478,
483 (1976), enfd. 551 F.2d 308 (4th Cir. 1977).
The contract language operating as a preamble for the
wage increases appears in the proposed agreement under
section 10(A), entitled "Classifications - Work Assignments
- Rates of Pay. " This language, preceding the agreed-upon
wage increases, is identical in all material respects to the
corresponding language in the 1972 agreement, contains no
substantive language not previously agreed to, and other-
wise embodies the clear intent of the parties. Further, such
language is consistent with other paragraphs of section 10.
Thus, paragraph (D) of section 10, to which Respondent
admittedly agrees, provides, "(D) The rates of pay set forth
in Subsection (A) of this Section are minimum straight-
time hourly wage rates...." Similarly, paragraph (A)
states, "each employee shall be paid not less than the mini-
mum hourly rate." The insertion of such introductory lan-
guage merely affirms the parties' understanding with re-
gard to wages, makes the contract more legible, and is the
written embodiment of the parties' understanding which
Respondent would be obligated, by Section 8(d) of the Act,
to incorporate in a written contract. Contrary to Respon-
dent's contention, I find that such language does not reflect
a change which would permit Respondent to refuse to exe-
cute the contract.'
2
On the basis of the foregoing and the record in its en-
tirety, I find that Respondent has violated Section 8(a)(5)
and (I) of the Act as alleged by failing and refusing to
execute and abide by the terms of an agreed-upon collec-
tive-bargaining agreement.
Iv. THE REMEDY
It having been found that Respondent has unlawfully
refused to bargain with the Union by failing and refusing
to sign and abide by the terms of a collective-bargaining
contract agreed to between the Union and Respondent, I
shall recommend that it cease and desist therefrom and
take certain affirmative action to effectuate the policies of
the Act.
12 The following cases cited by Respondent in support of its position are
clearly inapposite. Thus, in Automatic Plastic Molding Company. 234
NLRB
681 (1978), the contract submitted by the Union to the company for
signa-
ture contained a discrepancy which "seriously altered [the] meaning"
of a
contract seniority clause and, in addition, provided for health and welfare
coverage to which the company had not agreed. In B F. Goodrich
Chemical
Company,. a division of the B. F Goodrich Company. 232 NLRB
399 (1977), a
bona fide mutual misunderstanding as to the agreement reached
precluded
a binding agreement. And in Apache Powder Companyv, supra. the
Board
found that the employer was privileged to refuse to execute a contract
as a
result of the employer's unilateral mistake which was "so obvious as
to put
the other party on notice of an error."
13 H. J Heinz Comparn v. N. L R.B., 311 U.S. 514, 526 (1941): Rockwell
Printing and Publishing (o., Inc.. d/b /a Monument Printing Co.. 231
NLRB
1215 (1977): Trojan Steel Corporation, supra.
362
REPPEL STEEL & SUPPLY CO., INC.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material herein, the Union has been and
continues to be the exclusive representative of Respon-
dent's employees in the following appropriate bargaining
unit:
All production and maintenance employees employed
by Reppel Steel and Supply Co., Inc., at its facility at
3115 East Madison, Phoenix, Arizona: excluding al!
truckdrivers, office clerical employees, watchmen,
guards and supervisors as defined in the Act.
4. By failing to execute the collective-bargaining agree-
ment with the Union which was agreed upon on October
12, 1977, and presented to Respondent for signature on
November 1, 1977, Respondent has engaged in and is en-
gaging in an unfair labor practice within the meaning of
Section 8(aX5) and (I) of the Act.
5. By failing and refusing to give effect to the aforesaid
collective-bargaining agreement with the Union, Respon-
dent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 14
The Respondent, Reppel Steel and Supply Co., Inc., its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively regarding wages,
hours and other terms and conditions of employment with
Shopmen's Local Union No. 740 of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO, as the exclusive representative of the em-
ployees in the following appropriate unit:
All production and maintenance employees employed
by Reppel Steel and Supply Co., Inc., at its facility at
3115 East Madison, Phoenix, Arizona; excluding all
truckdrivers, office clerical employees, watchmen,
guards and supervisors as defined in the Act.
(b) Refusing to execute the collective-bargaining agree-
ment with the Union which was agreed upon on October 12,
1977, and which should have taken effect on November 1,
1977.
(c) Failing and refusing to give effect to the terms and
provisions of the agreed-upon collective-bargaining agree-
ment with the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the appro-
priate unit described above regarding wages, hours, and
other terms and conditions of employment.
(b) Execute forthwith the collective-bargaining agree-
ment with the Union which was agreed upon on October
12, 1977.
(c) Give effect to the terms and provisions of that collec-
tive-bargaining agreement retroactively to November 1,
1977.
(d) Make whole its employees for their loss of wages and
other benefits which are provided for in the agreement for
the period on and after November 1, 1977, plus interest as
set forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). and Florida Steel Corporation, 231 NLRB 651
(1977)?5
(e) Preserve and. upon 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 neces-
sary to analyze the amount of backpav or benefits due
under the terms of this Order.
(f) Post at its facility at Phoenix, Arizona, copies of the
attached notice marked "Appendix." 16 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced. or covered by any other material.
(g) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I' In the event no exceptions are filed as provided b) Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes
|5 Nothing in this Order is to be construed as requinng Respondent to
rescind an) wages or benefits granted to employees.
'6 In the event that this Order is enforced by a judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively regarding
wages, hours, and other terms and conditions of em-
ployment with Shopmen's Local Union No. 740 of the
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, as the exclusive
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in the following ap-
propriate unit:
All production and maintenance employees em-
ployed by Reppel Steel and Supply Co., Inc., at its
facility at 3115 East Madison, Phoenix, Arizona; ex-
cluding all truckdrivers, office clerical employees,
watchmen, guards and supervisors as defined in the
Act.
WE WIL.L NoI refuse to execute the collective-bar-
gaining agreement with the Union which was agreed
upon on October 12, 1977, and which should have tak-
en effect on November 1, 1977.
WE WIlL Nor fail and refuse to give effect to the
terms and provisions of the agreed-upon collective-
bargaining agreement with the Union.
WE WILL NoI in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WIii. upon request, bargain collectively with the
Union as the exclusive representative of the employees
in the appropnate unit described above regarding
wages, hours, and other terms and conditions of em-
ployment.
WF wt . execute forthwith the collective-bargaining
agreement with the Union which was agreed upon on
October 12, 1977.
WE wii,. give effect to the terms and provisions of
that collective-bargaining agreement retroactively to
November 1., 1977.
WE WtL. make whole our employees for their loss of
wages and other benefits which are provided for in the
agreement for the period on and after November I,
1977, plus interest.
REPPEL STEEL AND SUPPLY CO., IN(.
364