Pangori & Sons, Inc.

PANGORI & SONS, INC 405 V. Pangori & Sons, Inc., and David Curvell, Receiv- er in Bankruptcy and Local 324, International Union of Operating Engineers, AFL-CIO. Case 7-CA-16906 March 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge and an amended charge filed on October 11 and November 13, 1979, respectively, by Local 324, International Union of Operating Engineers, AFL-CIO, herein called the Union, and duly served on V. Pangori & Sons, Inc., and David Cuvrell, Receiver in Bankruptcy for V. Pangori & Sons, Inc., herein individually called the Employer and the Receiver, respectively, and collectively called the Respondents, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on November 16, 1979, against the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1), Section 8(d), and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. The complaint alleges that, by virtue of a collec- tive-bargaining agreement between the Employer and the Union, effective from September 1, 1978, until September 1, 1980, herein referred to as the current collective-bargaining agreement, the Union has been the exclusive representative of the follow- ing employees, herein called the unit employees, for the purposes of collective bargaining: All operating engineers, mechanics, oilers and apprentice engineers employed by V. Pangori & Sons, Inc., but excluding guards and super- visors as defined in the Act. The complaint further alleges that, by virtue of Section 9(a) of the Act, the Union has been, and is now, the exclusive representative of the unit em- ployees for the purposes of collective bargaining with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment. With respect to the unfair labor practices, the complaint alleges that the current collective-bar- gaining agreement provides, inter alia, for the pay- ment of moneys by the Employer into various fringe benefit funds established for the benefit of the unit employees, and that, since on or about 248 NLRB No. 70 April 5, 1979, and continuing to date, the Respon- dents have refused, and continue to refuse, to bar- gain collectively with the Union as the exclusive collective-bargaining representative of the unit em- ployees. Specifically, the complaint alleges that the Respondents have unilaterally, and without notice to the Union, evaded, breached, subverted, and modified the terms of the current collective-bar- gaining agreement by paying the unit employees for services performed, but without making the re- quired fringe benefit payments mentioned above. The Respondents have not filed an answer to the complaint. ' On December 13, 1979, counsel for the General Counsel filed directly with the Board a motion for judgment on the pleadings. Subsequently, on Janu- ary 2, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's motion for judgment on the pleadings should not be granted. The Respondents have not filed a response to the Notice to Show Cause. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Judgment on the Pleadings Section 102.20 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, provides, inter alia: "All allegations in the com- plaint, if no answer is filed ... shall be deemed to be admitted to be true and shall be so found by the Board .... " As set forth above, the Respondents have not filed an answer to the complaint; the time within which to file having passed, we find all alle- gations in the complaint to be true. There being no issues in dispute, we grant the motion for judgment on the pleadings. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The Employer, V. Pangori & Sons, Inc., is a Michigan corporation with its principal office and place of business in Grand Blanc, Michigan. The Employer is engaged in the business of digging and laying of sewers and water mains in the construc- However, by a letter to the Board from their attorney, dated Novem- ber 5, 1979, the Respondents conceded both the existence and amount of their liability in this matter PANGORI & SONS, INC 405 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion industry within the State of Michigan. During the year ending December 31, 1978, which period is representative of its operations during all times material herein, the Employer, in the course and conduct of its business operations, provided sewer and water main construction services from its Oak Park, Michigan, place of business valued in excess of $500,000, of which services valued in excess of $100,000 were furnished to the County of Genesee. During the year ending December 31, 1978, Gene- see County, in the course and conduct of its mu- nicipal operations, received goods and services valued in excess of $50,000 directly from suppliers located outside the State of Michigan. On or about July 6, 1978, in a proceeding under Chapter XI of the Bankruptcy Act, in the United States District Court of the Eastern District of Michigan, Southern Division, sitting at Flint, Michigan, the Honorable Harold Bobier, bankrupt- cy judge, appointed David Cuvrell as the receiver in possession of, inter alia, all lands, premises, buildings, fixtures, furniture, appliances, and appa- ratus of V. Pangori & Sons, Inc., with full author- ity to continue operations and exercise all powers necessary to the administration of the business of V. Pangori & Sons, Inc. We find, on the basis of the foregoing, that the Respondents are, and at all times material here have been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 324, International Union of Operating En- gineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Employer and the Union are parties to a collective-bargaining agreement, effective from September 1, 1978, until September 1, 1980, which provides, inter alia, for the payment of moneys by the Employer into various fringe benefit funds es- tablished for the benefit of the unit employees. Since on or about April 5, 1979, and continuing to date, Respondents have unilaterally, and without notice to the Union, ceased making the fringe bene- fit payments required by the terms of the collec- tive-bargaining agreement mentioned above. Accordingly, we find that the Respondents have, since April 5, 1979, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the unit employees, and that, by such refusal, the Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 8(d) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that the Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 8(d) of the Act, we shall order that they cease and desist therefrom, make all fringe benefits payments owed to the various fringe benefit funds as required by the terms of the current collective- bargaining agreement with the Union, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. V. Pangori & Sons, Inc., and David Cuvrell, Receiver in Bankruptcy for V. Pangori & Sons, Inc., are an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 324, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All operating engineers, mechanics, oilers, and apprentice engineers employed by V. Pangori & Sons, Inc., excluding guards and supervisors as de- fined in the Act, constitute a unit of employees ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 1, 1978, by virtue of a collec- tive-bargaining agreement with the above-named Employer, the above-named labor organization has been the exclusive representative of all the employ- ees in the aforesaid appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9(a) of the Act. 5. By ceasing on or about April 5, 1979, and at all times thereafter, to make the fringe benefit pay- ments required by the collective-bargaining agree- ment with the above-named labor organization, Re- spondents have engaged in and are engaging in PANGORI & SONS, INC. 407 unfair labor practices within the meaning of Sec- tion 8(a)(5) and Section 8(d) of the Act. 6. By the aforesaid actions, Respondents have in- terfered with, restrained, and coerced, and are in- terfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondents, V. Pangori & Sons, Inc., Grand Blanc, Michigan, its officers, agents, successors, and assigns, and David Cuvrell, Receiver in Bankruptcy for V. Pan- gori & Sons, Inc., Grand Blanc, Michigan, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 324, International Union of Operating Engineers, AFL-CIO, as the exclusive bargaining representa- tive of their employees in the unit herein found ap- propriate by unilaterally, and without notice to the above-named labor organization, evading, breach- ing, subverting, or modifying the terms of the cur- rent collective-bargaining agreement between V. Pangori & Sons, Inc., and the above-named labor organization by paying unit employees for services performed, but without making fringe benefit pay- ments as required under the terms of such collec- tive-bargaining agreement. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make all fringe benefit payments owed to the various fringe benefit funds as required by the terms of the current collective-bargaining agree- ment with the above-named labor organization. 2 2 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance stage the question whether Respondent must pay any additional amounts into the health and welfare trust fund in order to satisfy our "make whole" remedy. These additional amounts may be determined, depending upon the circum- stances of each case, by reference to provisions in the documents govern- ing the fund and, if there are no governing provisions, by evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc. hut not collateral losses (b) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the unit described below, with respect to any modification of rates of pay, wages, hours, or other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is: All operating engineers, mechanics, oilers and apprentice engineers employed by V. Pangori & Sons, Inc., but excluding guards and super- visors as defined in the Act. (c) Post at their principal office in Grand Blanc, Michigan, and at all their other places of business copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondents' representatives, shall be posted by the Respondents immediately upon re- ceipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 3 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 Pursu- ant to a Judgment of the United Stated 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 with Local 324, International Union of Operat- ing Engineers, AFL-CIO, as the exclusive bar- gaining representative of our employees in the bargaining unit described below by unilateral- ly, and without notice to the above-named Union, evading, breaching, subverting, or modifying the terms of our current collective- bargaining agreement with the above-named Union by paying unit employees for services performed, but without making required fringe benefit payments. PANGORI & SONS, INC 407 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make all fringe benefit payments owed to the various fringe benefit funds as re- quired by the terms of our current collective- bargaining agreement with the above-named Union. WE WILL, upon request, bargain with the above-named Union, as the exclusive rep- resentative of all employees in the bargaining unit described below, with respect to any modification of rates of pay, wages, hours, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All operating engineers, mechanics, oilers and apprentice engineers employed by V. Pangori & Sons, Inc. but excluding guards and supervisors as defined in the Act. V. PANGORI & SONS, INC. DAVID CUVRELL, RECEIVER IN BANKRUPTCY FOR V. PANGORI & SONS, INC.