Ryan Iron Works, Inc.

RYAN IRON WORKS, INC. 345 NLRB No. 56 893 Ryan Iron Works, Inc. and Shopmen’s Local 501, International Association of Bridge, Structural and Ornamental Ironworkers, AFL–CIO and National Shopmen Pension Fund. Cases 1–CA– 33353, 1–CA–33762, 1–CA–33956, and 1–CA– 34066 August 27, 2005 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On October 29, 2003, Administrative Law Judge Mar- tin J. Linsky issued the attached supplemental decision, and on March 30, 2004, issued the attached second sup- plemental decision. The Respondent, the General Coun- sel, and Charging Party National Shopmen Pension Fund (Fund) each filed exceptions and a supporting brief. The Respondent filed an answer to the General Counsel’s and the Fund’s briefs in support of exceptions, and the Gen- eral Counsel and the Fund each filed an answer to the Respondent’s brief in support of exceptions. The Fund filed a reply to the Respondent’s answer and the Respon- dent filed a reply to the General Counsel’s and Fund’s answers. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision, the second supplemental decision, and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings, and conclusions as modi- fied, and to adopt the modified recommended Order2 as further modified herein.3 I. INTRODUCTION The judge found that the Respondent is obligated to make payments to the Union’s Pension Fund for the strike replacement employees for the period December 8, 1995 (end of strike), to October 1, 2001, and for the em- ployees whose entitlement under the Pension Fund had not vested as of the time they left the Respondent’s em- ploy prior to October 2001, and to pay interest on these payments. We adopt these findings for the reasons stated by the judge. However, as explained below, we reverse the judge’s finding that the Respondent was not obligated 1 The Respondent’s request for oral argument is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The judge’s original recommended Order was modified by the judge in his second supplemental decision. 3 We shall modify the judge’s recommended order in accordance with our finding below that the Respondent is required to pay liqui- dated damages on the delinquent Pension Fund contributions. In addi- tion, we shall modify the recommended order to specify the interest rate as stated in the parties’ stipulation. to pay liquidated damages on the Pension Fund contribu- tions that were delinquent. II. BACKGROUND This is a compliance proceeding on the underlying de- cision.4 In that decision, the Board held that the Respon- dent violated Section 8(a)(5) and (1) by making unilat- eral changes in unit employees’ wages, benefits, and working conditions before the parties had reached an impasse in contract negotiations, and by unilaterally ceasing pension payments on behalf of unit employees as of November 10, 1995.5 The Board ordered the Respondent, among other things, to make whole both the unit employees, with in- terest, and the Fund for losses resulting from these uni- lateral changes. After the Respondent sought review of the Board’s de- cision, the First Circuit enforced the Board’s decision in relevant part.6 III. RELEVANT FACTS Following the court’s decision, the Respondent, on Oc- tober 1, 2001, began making contributions to the Fund for all employees employed by the Respondent on that date, including its strike replacement employees. How- ever, the Respondent did not make contributions for em- ployees who had worked for less than 5 years (the vest- ing period under the Pension Fund), and whose employ- ment had terminated before that date. Further, the Re- spondent did not make any contributions for replacement employees for hours worked before October 2001. The Board’s amended compliance specification, which issued on March 21, 2003, alleged, among other things, that the 1992–1995 agreement established the terms and conditions of employment for all unit employees, includ- ing strike crossovers, and that the strike replacements were entitled to these same terms and conditions com- mencing December 8, 1995, the day the strike ended. The compliance specification also alleged that the back- pay period for pension contributions commenced on No- vember 6, 1995, for strike crossovers, and on December 8, 1995, for the strikers and the permanent replacements, 4 332 NLRB 506 (2000). 5 The Board also found that this conduct and the unlawful attempt to bypass the union representative and deal directly with bargaining unit employees converted the strike from an economic strike into an unfair labor practice strike. 6 Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1 (1st Cir. 2001). How- ever, the court disagreed with the Board’s finding that the strike was an unfair labor practice strike rather than an economic one. The court, therefore, denied enforcement of that portion of the Board’s order granting reinstatement and backpay to unfair labor practice strikers. Id. at 14. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894 and continued through October 1, 2001, the day that the Respondent started making contributions to the Fund. In its answer to the amended compliance specification, the Respondent admitted that the 1992–1995 agreement established the terms and conditions for the strike cross- overs and that the backpay period for pension contribu- tions commenced on November 6, 1995, for strike cross- overs. However, the Respondent denied that the agree- ment applied to the replacement employees. It also de- nied that the backpay period for pension contributions commenced “on December 8, 1995 for permanent re- placements or for any employees who would not have vested under the Union pension plan (i.e., any terminated employee whose employment with Respondent lasted for less than five (5) years).” The amended compliance specification was further amended at the hearing to al- lege that the Respondent was obligated to pay liquidated damages and interest on the delinquent contributions. The parties have stipulated as follows: Section 8.14 of the Fund’s Rules and Regulations pro- vides that if an employer is found delinquent in the payment of contributions, the employer shall pay the Plan, in addition to amounts its [sic] is otherwise di- rected to pay, liquidated damages in the amount of 20 percent of the delinquency but not less than interest on such delinquency. The Fund, on occasion and at its discretion, has chosen not to seek liquidated damages. The Fund further provides that the interest paid on de- linquent payments is based on the Internal [R]evenue Code interest rates.7 7 The pertinent Trust Agreement, effective January 1, 1989, provides at art. IX, sec. 5. Liquidated Damages and Interest: It is recognized and acknowledged by all parties, including the partici- pating employers, that the prompt and accurate payment of contribu- tions is essential to the maintenance of an employee benefit trust fund and the benefit plans and that it would be extremely difficult, if not impossible, to fix the actual expense and damage to the Trust Fund that would result from the failure of a participating employer to pay the required contributions within the time provided. Therefore, any participating employer in default for ten (10) working days shall be delinquent in the payment of contributions, and such employer shall be liable for liquidated damages of twenty percent (20%) of the amount of the contributions which are owed or twenty-five dollars ($25.00), whichever is greater. In addition, the delinquent contribu- tions shall bear interest, from the original due date until they are paid, at the rate then charged by the Pension Benefit Guaranty Corporation for late payment of premiums. The Trustees shall have the authority, however, to waive all or part of the liquidated damages or interest for good cause shown. The Trust Agreement is incorporated into the collective-bargaining agreement between the Respondent and the Union.. The Fund’s Statement of Policy for Collection of Delinquent Contri- butions (“Delinquency Policy”) describes the liquidated damages in similar language. Sec. 5(a) of the Delinquency Policy further provides: . . . Liquidated damages are provided herein because actual damages are not susceptible of precise prediction. The liquidated damages pro- The record shows that the Fund has on occasion waived liquidated damages in circumstances involving bankrupt employers or as a part of a settlement. These waivers are consistent with the Plan’s rules, which pro- vide that the trustees can waive liquidated damages for good cause shown.8 IV. JUDGE’S DECISION The judge found that the Respondent is obligated to make the above-described contributions to the Fund, and to pay interest on these contributions, as set forth in the amended compliance specification.9 However, the judge found no evidence that payment of the 20-percent liqui- dated damages was necessary to make the Fund whole. Citing G. T. Knight Co.,10 where the respondent was or- dered to pay 12-percent liquidated damages, the adminis- trative law judge by implication suggested that some unproven lower percentage of liquidated damages may have been sufficient to make the Fund whole. In agree- ment with the Respondent, the judge cited well-settled precedent that remedies for violations of the Act are to be remedial not punitive,11 and found that the Respondent was not obligated to pay these liquidated damages be- cause they were not shown to be remedial. We affirm the judge in all respects, except that we dis- agree with the judge’s finding that the liquidated dam- ages set forth in the compliance specification are not remedial. For the reasons explained below, we find that these payments are necessary to make the Fund whole, and, therefore, the Respondent is obligated to pay them. vided for in this paragraph are estimated, to the best of the Trustees’ ability, to approximate the cost to the Fund of the additional adminis- trative expenses caused by a delinquency. Those costs necessarily in- crease once a matter is referred to counsel. Such costs include, but are not limited to, expenses related to Fund office employees who must be assigned to collection activities and expenses for additional accounting and reporting activities. 8 Although these fund documents reference interest rate calculations in different ways, they all conform to that prescribed under Sec. 6621 of the Internal Revenue Code. See the parties’ stipulation above. See also the Trust Agreement, ef- fective January 1, 1989, art. IX, sec. 5, supra. 9 In discussing the contributions for the employees not vested in the Pension Plan, the judge stated that there are 17 employers in New Eng- land that are participatory employers in the Fund, of which 7 are in Massachusetts. However, according to the parties’ stipulation, there are 10 New England shops, exclusive of the Respondent (4 of which are in Massachusetts), that have contracts requiring that contributions be made to the Fund. This inadvertent error does not affect our finding regarding the nonvested employees. 10 268 NLRB 468 (1983). 11 Republic Steel Corp. v. NLRB, 311 U.S. 7, 10 (1940). RYAN IRON WORKS, INC. 895 Analysis In determining whether the payment of liquidated damages is appropriate, we find instructive Merry- weather Optical Co.,12 which holds, in pertinent part: . . . [T]he Board does not provide at the adjudicatory stage . . . for the addition of interest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance [stage] the question of whether Respondent must pay any additional amounts into the benefit funds in order to satisfy our “make-whole” remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the funds at is- sue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlaw- ful withholding action . . . . Applying this precedent, we find that the judge erred in finding that payment of the 20-percent liquidated damages on all delinquent contributions is not required because of an absence of evidence that this entire amount is needed to make the Fund whole. The above passage in Merryweather Optical makes clear that the appropriate- ness of liquidated damages may be determined “by refer- ence to provisions in the documents governing the funds at issue. . . .” Thus, because the provisions in the gov- erning documents of the Fund clearly provide for specific liquidated damages, Merryweather dictates that the con- tractual terms be enforced.13 12 240 NLRB 1213, 1216 fn. 7 (1979). 13 See, e.g., Emsing’s Supermarket, 307 NLRB 421, 423, 428 (1992), and Peerless Roofing Co., Ltd., 247 NLRB 500, 504 (1980), enfd. 641 F.2d 734 (9th Cir. 1981), cited by the General Counsel, where liquidated damages were found appropriate remedial relief where speci- fied in the governing documents. See also J.R.R. Realty Co., 301 NLRB 473, 483 (1991), enfd. mem. 955 F.2d 764 (D.C. Cir. 1992), cert. denied mem. 506 U.S. 829 (1992) (“The Board has regularly pro- vided for the payment of liquidated damages to certain funds where the trust agreement provides for liquidated damages.”). Chairman Battista and Member Schaumber do not necessarily agree with current Board law. However, the Respondent has not argued for a change in this precedent and, in the absence of a three-member majority of the Board willing to re-examine it, they have applied it for the pur- pose of deciding this case. Member Liebman agrees with the Board’s well-established law in this area. A liquidated-damages remedy based on the provisions of plan documents that were agreed upon in collective bargaining is clearly within the Board’s remedial authority. The Board is not impos- ing some penalty of its own devising, but rather is enforcing a lawful contractual provision. Federal labor policy, in turn, fully endorses awards of liquidated damages in this context, up to the 20 percent awarded here, as Sec. 502(g)(2) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(g)(2) illustrates. See gener- ally Operating Engineers Local 139 Health Benefit Fund v. Gustafson Construction Corp., 258 F.3d 645, 654–655 (7th Cir. 2001). Given the Board’s duty under Sec. 8(a)(5) of the Act to protect the process, and The judge erred in finding a necessity for additional evidence that liquidated damages in the amount of 20 percent are needed to make the Fund whole. Under Mer- ryweather Optical, supra, such evidence is required only when the documents governing the funds do not specify the amount of liquidated damages. Id. Here, as described above, the parties stipulated that “Section 8.14 of the Fund’s Rules and Regulations pro- vides that if an employer is found delinquent in the pay- ment of contributions, the employer shall pay the Plan, in addition to amounts its [sic] is otherwise directed to pay, liquidated damages in the amount of 20 percent of the delinquency but not less than interest on such delin- quency.” Where “documents show an agreed upon method for determining the additional costs to the funds . . . it is appropriate that the remedy . . . take that agree- ment into consideration.” Peerless Roofing, supra, 247 NLRB at 505.14 Our dissenting colleague finds the 20-percent liqui- dated damages not appropriate here because the Fund’s Statement of Policy for Collection of Delinquent Contri- preserve the results, of collective bargaining, it would be anomalous for the Board to second guess a collectively-bargained remedy. 14 Relying on G. T. Knight Co., supra, the Respondent argues that in order to support an award of liquidated damages there must be record evidence establishing that the damages bear a reasonable relationship to the actual losses suffered by the fund. The General Counsel and the Fund argue that the Board does not require, in addition to the documen- tary evidence set forth above, testimonial evidence establishing the cost of collecting the delinquent funds, and that G. T. Knight does not hold that the language of the trust document itself would be insufficient to justify an award of liquidated damages. In that case, an administrative law judge found that liquidated damages were appropriate based on the language of the trust agreement and the oral testimony by a manage- ment trustee that the amount for the liquidated damages “covers ex- penses to the trust relating to administration or internal overhead which is created by the need to collect delinquencies.” We agree with the General Counsel and the Fund that G. T. Knight does not stand for the proposition that the language in a trust agreement would be insufficient, standing alone, to support an award of liquidated damages. First, it does not appear that any exceptions were filed to the portion of the judge’s decision in that case pertaining to liquidated damages. Thus, that case is of no precedential value with respect to the liquidated dam- ages issue. Second, even if the case can properly be relied on as prece- dent, the mere fact that testimonial evidence was introduced in that case in addition to the documentary evidence does not establish a require- ment that such testimonial evidence must be produced. To find that G. T. Knight establishes such a requirement would be inconsistent with other Board precedent awarding liquidated damages based solely on the language of the fund documents. See Emsing’s Supermarket, supra, and Peerless Roofing Co., supra, where the trust agreements alone were relied upon in awarding the liquidated damages. See also AC Electric, 333 NLRB 987, 1003 (2001) (The Board adopted the judge’s finding regarding liquidated damages that “just as the fund contributions are deemed part of a make whole remedy, so too, the provisions which are designed to make whole the funds themselves for delinquent or non- payment of contributions on behalf of discriminatees have the same legitimate purpose.”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896 butions states that the 20-percent figure is implicated when a “lawsuit” is filed by “Fund counsel.”15 The dis- sent contends that because this is an administrative pro- ceeding, there has been no “lawsuit” that has triggered the imposition of 20-percent liquidated damages. We disagree. The Fund is a Charging Party in this case, which has resulted in a Board Order enforced in pertinent part by the First Circuit. Indeed, the parties’ stipulation, which sets forth the 20-percent amount that is called for in section 8.14 of the Fund’s Rules and Regulations, re- flects the parties’ understanding that the Fund documents implicate the 20-percent liquidated damages provision in these circumstances. Contrary to our colleague, we can find nothing in the record to suggest that the applicable language contemplates that unfair labor practice proceed- ings do not implicate the imposition of the 20-percent liquidated damages. We further note that the language of the Trust Agree- ment sets forth the specific purpose of the liquidated damages. As quoted above, article IX, section 5 explains that “[i]t is recognized and acknowledged by all parties, including the participating employers, that the prompt and accurate payment of contributions is essential to the maintenance of an employee benefit trust fund and the benefit plans and that it would be extremely difficult, if not impossible, to fix the actual expense and damage to the Trust Fund that would result from the failure of a participating employer to pay the required contributions within the time provided.”16 This language specifying that the liquidated damages are “to fix the actual expense 15 Sec. 5 of the Fund’s Statement of Policy for Collection of Delin- quent Contributions provides, in pertinent part: a. The amount of the liquidated damages for the late payment of contributions shall be 5% of the amount of the delinquent con- tributions. This rate shall increase to 12% if the employer’s de- linquent account is referred to counsel for collection. . . . . . . . c. Liquidated damages shall be calculated from the due date, and shall become due and owing if a lawsuit is filed pursuant to Section 3. If a lawsuit is filed, the amount of the liquidated dam- ages owed shall be the greater of: 1. Interest on the delinquent contributions . . .; or 2. 20% of the delinquent contributions. Sec. 3(b) provides that [the Fund’s] counsel “shall initiate legal ac- tion for any delinquency or other amount owed (no matter how deter- mined) in excess of $500.00, unless legal counsel recommends a differ- ent course of action . . . .” 16 See also the Fund’s Delinquency Policy, sec. 5(a), quoted above, which provides that “[l]iquidated damages are provided herein because actual damages are not susceptible of precise prediction. The liqui- dated damages provided for in this paragraph are estimated, to the best of the Trustees’ ability, to approximate the cost to the Fund of the addi- tional administrative expenses caused by a delinquency. . . . [and that] [s]uch costs include, but are not limited to, expenses related to Fund office employees who must be assigned to collection activities and expenses for additional accounting and reporting activities.” and damage to the Trust Fund” demonstrates the reme- dial, not punitive, purpose of the 20-percent liquidated damages. We also find, contrary to the Respondent and our dis- senting colleague, that NLRB v. G & T Terminal Packag- ing Co., 246 F.3d 103, 128 (2d Cir. 2001), is distinguish- able. In that case, and unlike the circumstances pre- sented here, the applicable trust documents—setting forth an 18-percent liquidated damages rate—were not incorporated into the parties’ collective-bargaining agreement. Recognizing this nonincorporation, the Sec- ond Circuit remanded the case to “develop the record further in order to arrive at an interest rate that bears a reasonable relationship to those losses directly attribut- able to the Company’s unlawful withholding.”17 Thus, whatever merit there may be to the Second Circuit’s analysis, it clearly has no bearing here, where the Fund documents are incorporated into the collective- bargaining agreement. Indeed, by requiring adherence to the liquidated damages rate in this case, we are effectuat- ing the national policy of requiring adherence to collec- tive-bargaining agreements. Additionally, requiring adherence to the Fund’s liqui- dated damages provision is consistent with the well- settled doctrine that in compliance proceedings the party offering an affirmative defense against the amount speci- fied in a compliance specification has the burden of prov- ing the mitigation of that amount.18 Here, the Respon- dent contends that 20 percent of the delinquent contribu- tions as liquidated damages is excessive, but has pre- sented no evidence that a lesser amount would be suffi- cient to make the Fund whole. Thus, there simply is no evidentiary support for the judge’s implicit suggestion that some lesser amount, such as the 12-percent figure in G. T. Knight Co., supra, might be adequate. For the reasons stated above, we find that the judge in- correctly found that the Respondent was not obligated to pay 20-percent liquidated damages on delinquent contri- butions to the Fund.19 Instead, we find that the Respon- 17 Id. 18 See, e.g., United States Can Co., 328 NLRB 334, 338 (1999), enfd. 254 F.3d 626 (7th Cir. 2001); A.P.R.A. Fuel Oil Buyers Group, Inc., 324 NLRB 630, 632 fn. 3 (1997), enfd. mem. 159 F.3d 1345 (2d Cir. 1998). 19 We clarify that, as also specified in that Trust Agreement, cited above, this is “[i]n addition” to the interest due on the delinquent con- tributions. Thus, we reject the Respondent’s contention that the Re- spondent should not be ordered to pay both the liquidated damages and interest on the delinquent contributions. We further note that, contrary to the Respondent’s contention in its reply brief, there was nothing improper in the General Counsel’s amendment of the amended compliance specification on the last day of the hearing to include liquidated damages and interest on the delinquent contributions. In any event, as the Fund has pointed out, the Respon- RYAN IRON WORKS, INC. 897 dent is obligated to pay liquidated damages in accor- dance with section 8.14 of the Fund’s Rules and Regula- tions, as stipulated by the parties, “in the amount of 20 percent of the delinquency but not less than interest on such delinquency,” with interest based on the Internal Revenue Code interest rates. We, therefore, reverse the judge and order that the Respondent pay the liquidated damages as set forth in the amended compliance specifi- cation. ORDER The National Labor Relations Board adopts the modi- fied recommended Order of the administrative law judge as further modified below and orders that the Respon- dent, Ryan Iron Works, Inc., Raynham, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order as further modified. 1. Substitute the following for paragraph 3. “3. Pay liquidated damages in the amount of 20 per- cent of the delinquent contributions but not less than the interest on such delinquency, and, in addition, pay inter- est on the delinquent contributions. All interest shall be based on the Internal Revenue Code interest rates.” MEMBER SCHAUMBER, dissenting in part. I agree with the majority in all respects except that I would not order the Respondent to pay liquidated dam- ages in the amount of 20 percent of its delinquent contri- butions. In my view, such an award is not an appropriate make-whole remedy in the circumstances of this case. Any order issued by this Agency is subject to the over- riding rule that remedies for violations of the Act are to be remedial, not punitive. Republic Steel Corp. v. NLRB, 311 U.S. 7, 10 (1940). On this record, the order entered by the majority contravenes this rule. It requires the Re- spondent to pay the National Shopmen Pension Fund delinquent contributions of $270,145.06, plus interest, plus liquidated damages equal to 20 percent of the un- paid contributions. There is no evidence of any expense incurred by the Fund as a consequence of the Respon- dent’s failure to pay the contributions when they were owed. In these circumstances, the Fund has failed to demonstrate that payment of any liquidated damages is necessary to make it whole for losses incurred as a result of the Respondent’s unfair labor practices. Under current Board law, this showing arguably is not required in order to establish an employee benefit fund’s dent did not except to the timeliness of this amendment. Finally, we agree with the judge that the fact that the Fund has occasionally waived liquidated damages as part of a settlement or in circumstances where an employer is bankrupt is not relevant here. Member Schaumber affirms the judge’s ruling allowing the amend- ment to the compliance specification in the absence of any evidence or contention that the Respondent was prejudiced thereby. entitlement to liquidated damages. Rather, it appears to be the Board’s practice to award such damages, even absent evidence demonstrating their relationship to losses actually suffered, as long as the liquidated damages are called for in the fund’s governing documents.1 This practice was criticized by the U.S. Court of Ap- peals for the Second Circuit in its decision in NLRB v. G & T Terminal Packaging Co., 246 F.3d 103, 128 (2d Cir. 2001), remanded as mod. 19 Fed. Appx. 16 (2d Cir. 2001). There, the court refused to enforce a Board Order requiring payment of 18-percent annual interest on de- linquent contributions owed to a benefit fund as called for in the fund’s governing documents. Instead, the court remanded the issue to the Board “to develop the record further in order to arrive at an interest rate that bears a reasonable relationship to those losses directly attribut- able to the Company’s unlawful withholding.” The court explained the remand in the following terms: Although the Board has broad discretion in fash- ioning remedial orders, its orders may not cross the line that divides the remedial from the punitive. The record before us is insufficiently developed for us to determine whether the 18 percent interest rate bears some reasonable relationship to the actual losses suf- fered by the funds due to the Company’s underpay- ments, or whether it amounts to a punitive measure against the Company. Without any information in the record regarding the performance of the funds during the period in question, an award of 18 percent interest may simply result in a windfall to the Union. While it is true that Merryweather [Optical Co., 240 NLRB 1213, 1218 fn. 7 (1979)] directs the Board to look at the trust documents in the first in- stance, in our view it is also significant that Merry- weather describes the relevant evidence as “evidence of any loss directly attributable to the unlawful withholding.” 246 F.3d at 128 (internal citations omitted; emphasis in original).2 1 Emsing’s Supermarket, 307 NLRB 421, 423, 428 (1992) (liqui- dated damages of 10 percent of unpaid contributions awarded based on provisions of plan documents), enfd. 872 F.2d 1279 (7th Cir. 1989); Peerless Roofing Co., Ltd., 247 NLRB 500, 504 (1980), enfd. 641 F.2d 734 (9th Cir. 1981) (same). See generally Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979) (payments to funds based on terms of governing documents or on evidence of actual loss if governing documents silent). 2 The majority distinguishes NLRB v. G & T Terminal Packaging Co., supra, on the grounds that in that case the trust agreement provid- ing for liquidated damages was not incorporated into the parties’ collec- tive-bargaining agreement. In light of the court’s analysis set forth above, I disagree with this characterization of the court’s holding. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898 In my view, the criticism of the Board’s current prac- tice leveled by the Second Circuit deserves careful con- sideration. When a fund sues an employer for delinquent contributions, courts routinely assess the validity of liq- uidated damages provisions to determine whether they amount to a penalty.3 I see no valid reason for the Board to apply a less rigorous standard to claims for liquidated damages in our cases. To the contrary, a principal justi- fication for the provision of liquidated damages is to compensate a fund for the cost of collecting the delin- quent contributions.4 Whatever merit that justification may have in cases where the Fund initiates Employment Retirement Income Security Act (ERISA) or Section 301 litigation, in Board proceedings this Agency acts as the Fund’s collection agent.5 However, as noted in the majority opinion, in the ab- sence of a three-member majority of the Board willing to re-examine current Board law, I join my colleagues in 3 Parkhurst v. Armstrong Steel Erectors, 901 F.2d 796, 798 (9th Cir. 1990) (20-percent liquidated damages rejected as a penalty for late contributions where it was not shown to be a good-faith attempt to set an amount reflective of anticipated damages); Idaho Plumbers & Pipe- fitters Health & Welfare Fund v. United Mechanical Contractors, 875 F.2d 212, 217–218 (9th Cir. 1989) (same). See also Bricklayers Pen- sion Trust Fund v. Rosati, Inc., 23 Fed. Appx. 360, 362 (6th Cir. 2001) (approving liquidated damages of $5 to $10 per employee per week for unpaid contributions, plus 12-percent interest, where fund showed its return on investments was 12–20 percent and its overall collection expenses equaled its total assessed liquidated damages). 4 The Fund’s Statement of Policy for Collection of Delinquent Con- tributions sec. 5 is illustrative: . . . Liquidated damages are provided herein because actual damages are not susceptible of precise prediction. The liquidated damages pro- vided for in this paragraph are estimated, to the best of the Trustees’ ability, to approximate the cost to the Fund of the additional adminis- trative expenses caused by a delinquency. Those costs necessarily in- crease once a matter is referred to counsel. Such costs include, but are not limited to, expenses related to Fund office employees who must be assigned to collection activities and expenses for additional accounting and reporting activities. 5 ERISA does not authorize the Board to award 20-percent liqui- dated damages. Sec. 502(g)(2) of ERISA authorizes such liquidated damages only in “an action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded.” This provision has no ap- plication to an unfair labor practice proceeding instituted by the Gen- eral Counsel. While liquidated damages may be awarded by a Federal court in a delinquent contribution case not covered by Sec. 502(g)(2), the Federal courts are split on the question of whether they are limited by the common law rule making contract penalty clauses unenforce- able. Compare, Operating Engineers Local 139 Health Benefit Fund v. Gustafson Construction, 258 F.3d 645, 655 (7th Cir. 2001) (rejecting applicability of common law rule) with Idaho Plumbers & Pipefitters Health & Welfare Fund v. United Mechanical Contractors, 875 F.2d 212, 216–217 (9th Cir. 1989) (applying common law rule) and Michi- gan Carpenters Council Health & Welfare Fund, 933 F.2d 376, 390 (6th Cir. 1991) (same). For the reasons stated above, there are persua- sive reasons favoring application of that rule in cases before this Agency. applying this precedent on an institutional basis for the purpose of deciding this case. Under that precedent, liq- uidated damages may be awarded only if they are: (1) justified by evidence of losses “directly attributable to the unlawful withholding action”; or (2) called for in the Fund’s governing documents. Merryweather Optical Co., supra, 240 NLRB at 1216 fn. 7. As noted above, there is no record evidence justifying an award of liquidated damages in this case. In my view, the provisions of the various Fund documents also do not establish the Fund’s entitlement to 20-percent liquidated damages. The Fund’s Trust Agreement provides for 20-percent liquidated damages, plus interest, and authorizes the Fund trustees to “waive all or part of the liquidated dam- ages for good cause shown.” The Fund’s Statement of Policy for Collection of Delinquent Contributions, which effectuates the Trust Agreement, on the other hand, only provide for liquidated damages of 5 percent, increased to 12 percent if the employer’s account is referred for col- lection. Twenty-percent liquidated damages are called for only when a lawsuit is filed by Fund counsel.6 Like- wise, the Fund’s Rules and Regulations only address liquidated damages in the context of a court judgment in favor of the Fund against an employer.7 Consistent with 6 Fund’s Statement of Policy for Collection of Delinquent Contribu- tions sec. 5 provides as follows: a. The amount of the liquidated damages for the late payment of contributions shall be 5% of the amount of the delinquent con- tributions. This rate shall increase to 12% if the employer’s de- linquent account is referred to counsel for collection. . . . . . . . c. Liquidated damages shall be calculated from the due date, and shall become due and owing if a lawsuit is filed pursuant to Section 3. If a lawsuit is filed, the amount of the liquidated dam- ages owed shall be the greater of: 1. Interest on the delinquent contributions . . .; or 2. 20% of the delinquent contributions Sec. 5 additionally provides for assessment of attorneys’ fees and costs against a delinquent employer for the cost of collection efforts. Sec. 3 (a) provides: When a delinquency matter is turned over to the Fund’s coun- sel for collection, legal counsel shall send a letter to the employer demanding the required remittance report and payment of the de- linquent contributions and the liquidated damages.” Section 3(b) provides that counsel “shall initiate legal action for any delin- quency or other amount owed (no matter how determined) in ex- cess of $500.00, unless legal counsel recommends a different course of action. . . .” Section 3(c) authorizes counsel to enter into settlement negotiations and to waive liquidated damages and/or fees without further approval by the Trustees “in instances where the delinquent employer promises prompt payment of the full amounts owed. 7 Fund’s Rules and Regulations sec. 8.14(a): If a court awards a judgment in favor of the Plan against an employer that is found delinquent in the payment of Contributions or With- drawal Liability, the employer shall pay the Plan, in addition to the amounts the court is otherwise directed to award pursuant to Section RYAN IRON WORKS, INC. 899 the foregoing, the Fund’s administrator testified at the hearing that the Fund charged liquidated damages of “up to 20%.” The parties’ stipulation regarding liquidated damages is not to the contrary. The stipulation accurately states that section 8.14 of the Fund’s Rules and Regulations provides for 20-percent liquidated damages.8 The stipu- lation does not, however, address the other plan docu- ments cited above, much less contradict them. Even if it did, I would not allow the stipulation to outweigh the plain terms of the Fund’s governing documents. As shown, those documents do not clearly call for 20- percent liquidated damages unless a lawsuit was filed against the Respondent by Fund counsel. There is no evidence that this requirement has been satisfied.9 The requisite foundation for awarding liquidated damages in the amount of 20 percent, therefore, has not been prop- erly laid. In these circumstances, I would limit any award of liquidated damages to 5 percent, the minimum amount stated in the plan documents. Thomas J. Morrison, Esq., for the General Counsel. Robert P. Corcoran, Esq. (Gleason & Corcoran), of Boston, Massachusetts, for the Respondent. Marc Rifkind, Esq. (Slevin & Hart, P.C.), of Washington, D.C., for the National Shopmen Pension Fund. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. The proce- dural history of this case will be set forth more fully below. Suffice it to write at this point that after a hearing before and decision by an administrative law judge, a decision from the National Labor Relations Board (the Board), and a decision from the U.S. Court of Appeals for the First Circuit (the Court), this case came before me on April 23, 2003, for a hearing on a compliance specification, i.e., making individual employees and their pension fund whole by the payment of backpay and pension fund contributions. 502(g)(2) of ERISA, liquidated damages in the amount of 20 percent of the delinquency but not less than interest on such delinquency. 8 The parties stipulated as follows: Section 8.14 of the Fund’s Rules and Regulations provides that if an employer is found delinquent in the payment of contributions, the em- ployer shall pay the Plan, in addition to amounts its [sic] is otherwise directed to pay, liquidated damages in the amount of 20 percent of the delinquency but not less than interest on such delinquency. The Fund, on occasion and at its discretion, has chosen not to seek liquidated damages. The Fund further provides that the interest paid on delin- quent payments is based on the Internal [R]evenue Code interest rates. 9 The Fund was a Charging Party in the underlying unfair labor prac- tice case that gave rise to this proceeding. Ryan Iron Works, 332 NLRB 506 (2000), enfd. in part. 257 F.3d 1 (1st Cir. 2001). Under the plain terms of the Fund’s governing documents, participation in an administrative proceeding before the Board is insufficient to trigger the imposition of 20-percent liquidated damages. Before going on the record the parties tried to settle the case and successfully reached a partial settlement on April 24, 2003, which settled a large part of this case. The terms of that partial settlement were put on the record on April 24, 2003. The par- tial settlement, which I approved, called for the payment of $437,000 plus interest, in the amount of $126,000 to be paid to individual discriminatees and to the National Shopmen Pension Fund (the Fund). In addition, the partial settlement called for an increase in the starting pay of helpers to $11.04 per hour. A payment schedule was also agreed to by the parties. Three issues remain to be decided (1) whether Ryan Iron Works, Inc. (Respondent), should be ordered to make poststrike pension contributions on behalf of permanent replacements; (2) whether Respondent should be ordered to make pension fund contributions on behalf of former employees who had not vested in the Fund prior to their leaving Respondent’s employ; and (3) if contributions are to be paid to the Fund is Respondent required to pay liquidated damages and interest on delinquent fund contributions as called for in the pension fund trust docu- ments. A hearing was held before me on April 24 and July 15, 2003. I will be deciding this case on the basis of the entire record in this case to include consideration of the demeanor of the wit- nesses and post-hearing briefs submitted by counsel for the General Counsel, counsel for Respondent, and counsel for the National Shopmen Pension Fund. A. Procedural History of the Case This proceeding arises from an unfair labor practice case which arose in the context of unsuccessful negotiations be- tween Respondent and Shopmen’s Local 501, International Association of Bridge, Structural and Ornamental Ironworkers, AFL–CIO (the Union). Respondent and the Union had negoti- ated a series of collective-bargaining agreements over the years, the most recent of which terminated on September 10, 1995. Prior to the termination of this 1992 agreement, the Union filed a charge alleging that Respondent had engaged in bad-faith bargaining. The following day, union officials and employees voted against Respondent’s bargaining proposal and voted in favor of a strike. The strike commenced on September 11, 1995, the day after the 1992 agreement terminated. The parties continued to bargain without success and in October 1995, Respondent started to hire replacement workers. Respondent also unilaterally ceased making contributions to the Pension Fund on November 10, 1995. On December 6, 1995, Respon- dent received an employee petition stating that the employees did not wish to be represented by the Union. On the basis of that petition, Respondent withdrew recognition from the Union on December 7, 1995. The following day, December 8, 1995, the Union made an unconditional offer to return to work on behalf of all striking employees. Although Respondent initially rejected the offer on the ground that the striking employees had been permanently replaced, Respondent subsequently reinstated all but 12 of the original 61 strikers. See Ryan Iron Works, Inc., 332 NLRB 506 (2000). On September 29, 2000, the Board issued its Decision and Order and affirmed, with modifications, the October 27, 1996 decision of Administrative Law Judge James L. Rose. The DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900 Board held that Respondent had violated Section 8(a)(5) of the National Labor Relations Act (the Act), by making unilateral changes in unit employees’ wages, benefits, and working con- ditions before the parties had reached an impasse in their con- tract negotiations; and unilaterally ceasing pension payments on behalf of unit employees as of November 10, 1995. In addi- tion, the Board held that Respondent’s conduct in unlawfully attempting to bypass the union representative and deal directly with bargaining unit employees had converted the strike from an economic strike to an unfair labor practice strike. As a rem- edy, and in order to effectuate the policies of the Act, the Board ordered Respondent, among other things, to: (a) Recognize and, on request, bargain with the Union as the exclusive representative of the employees in the fol- lowing appropriate unit concerning terms and conditions of employment and, if an understanding is reached, em- body the understanding in a signed agreement: All production and maintenance employees employed by the Respondent at its Raynham, Massachusetts lo- cations, but excluding office and clerical em-ployees, draftsmen, engineering employees, watch-men, guards and supervisors as defined in the Act. (b) On request of the Union, rescind the unilateral changes made on and after November 6, 1995, reinstating the prior terms and conditions of employment for bargain- ing unit employees, and make whole both the unit em- ployees, with interest, and the National Shopmen Pension Fund for losses resulting from these unilateral changes. [Id.] Respondent sought review of the Board’s Decision and Or- der in the United States Court of Appeals for the First Circuit. On September 28, 2001, the court entered its Amended Judg- ment affirming the above-referenced relief ordered by the Board, including the requirement that Respondent make the Fund and the bargaining unit employees whole for losses result- ing from its unilateral termination of contributions to the Pen- sion Fund. Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1 (1st Cir. 2001). Following the court’s decision, Respondent and the Union commenced collective-bargaining negotiations. Al- though no successor agreement has as yet been reached, com- mencing on October 1, 2001, Respondent started making con- tributions to the Pension Fund for all individuals employed by Respondent on that date, including its replacement employees. Respondent, however, did not make contributions for employ- ees who worked for less than 5 years and whose employment terminated before October 1, 2001. Neither did it contribute for any replacement employees with respect to hours worked prior to October 2001. The Board issued its amended compliance specification on March 21, 2003. In its amended compliance specification, the Board alleged, among other things, that the terms and condi- tions of employment are established by the 1992–1995 agree- ment and that strike replacements are entitled to the same terms and conditions of employment beginning December 8, 1995, the day the strike ended, and that pension contributions are due for the entire unit, including replacement workers, from De- cember 8, 1995, through October 1, 2001, the day Respondent started making contributions to the Pension Fund. In its answer to the amended compliance specification, Re- spondent asserted as a second affirmative defense the follow- ing: No pension contributions are due for any replacement. Nor are pension contributions due on behalf of any employee whose employment has already terminated, and whose em- ployment lasted for less than five years, since any such em- ployee would not have vested in the Pension Fund. Requiring payment on behalf of such employees would be punitive not remedial, and would represent a windfall to the fund. B. The Pension Fund The Fund, a multiemployer pension plan within the meaning of ERISA Section 3(37), 29 U.S.C. § 1002(37), is a national fund, which currently has 156 participating employers. Re- spondent is required to contribute to the Fund pursuant to the terms of its 1992–1995 collective-bargaining agreement with the Union on behalf of its production and maintenance employ- ees employed at Respondent’s Raynham, Massachusetts loca- tions, but excluding office and clerical employees, watchmen, guards, and supervisors. Approximately 48 employees are covered by the agreement. The agreement requires that Respondent contribute to the Pension Fund on behalf of all employees performing bargaining unit work at the rate $.91 per hour. Because the Fund is a mul- tiemployer defined benefit pension plan, Respondent’s contri- butions are pooled with other employer contributions and in- vestment earnings to fund the pension benefits of all employees who accrue pension or death benefits under the terms of the Fund’s plan of benefits. Thus, any contributions that are not paid with respect to hours of employment covered by the ex- pired agreement reduce the pool that is available to pay benefits to all Fund participants, including Respondent’s bargaining unit employees and former employees. This occurs because, unlike a defined contribution plan, such as a 401(k) plan, Fund participants’ pension accruals do not equal the amount of contributions made with respect to the hours that they worked. Rather, pension accruals are deter- mined under the Fund’s written plan of benefits based on the contribution rate for the participant’s employer and the partici- pant’s hours of service and are generally paid in the form of a monthly benefit for the participant’s life. The Fund retains an actuary to determine the amount of con- tributions necessary to fund benefits that it will have to pay. That calculation assumes that a certain number of employees for whom contributions are made to the Fund will never be- come eligible for pension benefits because they have not worked sufficient hours to become a Fund participant or, if they have achieved participant status, have not completed the years of service with participating employers necessary to vest under terms of the plan. If the plan did not contain those threshold requirements, then the cost of funding the pension benefit would be significantly higher since the Fund would have to provide pension benefits to a greater number of employees. Thus, unless the amount of Fund assets increased because of increased employer contributions or investment earnings, the RYAN IRON WORKS, INC. 901 amount of pension benefits to which a vested employee would be entitled at retirement would be significantly lower. To become a participant in the Fund, an employee must work at least 1000 hours during a 12-consecutive month period. Once an employee becomes a participant in the Fund, the par- ticipant will become entitled to a pension benefit only if the participant “vests,” i.e., works for a contributing employer for 5 years and works for at least 1000 hours in each of those years. The 5 years required to vest need not be completed consecu- tively. The participant may, for example, work for 2 years for a contributing employer, work for a noncontributing employer for 2 years, and then return to another contributing employer for another 3 years. At that point, the participant will have accumulated 5 years of vesting service provided he or she has worked for at least 1000 hours in each of those 5 years for a contributing employer. In other words, a participant will not lose his vesting credits even though he stops working for a contributing employer. However, if a participant fails to work for a contributing employer for 10-consecutive years, thus, incurring a permanent break in service, the participant will forfeit all accumulated vesting and pension credits. But if a participant after 9 years of not working for a contributing em- ployer works just 501 hours in a year for a contributing em- ployer and leaves that position the 10-year period starts to run all over again. A participant also receives vesting credit for all hours worked for a contributing employer in a position for which no contributions are due if he or she has contiguous service with the employer in a position for which contributions are due. Thus, Respondent’s replacement workers who were employed on the date that Respondent commenced contributions to the Fund on their behalf (October 1, 2001) are entitled to vesting credit for all uninterrupted service with Respondent prior to that date. If no contributions are received for the contiguous service period, then the Fund will not receive the anticipated funding for those benefits. In contrast to the nonreplacement bargaining unit employees for whom contributions were made during the entire 5-year vesting period, the replacement employees would be 100-percent vested on the first day for which contributions were made with respect to them since they were already em- ployed by Respondent for more than 5 years as of October 1, 2001. Notwithstanding the plan’s 5-year vesting requirement dis- cussed above, the plan provides for a death benefit to both vested and nonvested participants in the event a participant dies prior to retirement. For nonvested participants, the amount of the death benefit is equal to the amount of the contributions paid to the Fund on the participant’s behalf. Thus, all Respon- dent’s current and former employees who have satisfied the plan’s participation requirements, i.e., 1 or more years of vest- ing service, are eligible for a death benefit. C. Pension Fund Contributions on Behalf of Permanent Replacements The strike began on September 11, 1995, and ended on De- cember 8, 1995. The strike ended when the Union on behalf of the striking employees made an unconditional offer to return to work. Following the commencement of the strike, Respondent be- gan hiring replacement employees. Respondent considered their replacement employees to be permanent replacements and considered the strikers to be, contrary to the General Counsel, the Union, the judge, and the Board, economic strikers. The Eight Circuit agreed with Respondent that the strikers were economic strikers. Respondent was free to set the terms and conditions of em- ployment of the replacement workers without consulting with the Union during the strike because of the Union’s inherent conflict of interest in representing both striking employees on the one hand and their replacements on the other hand. See Detroit Newspapers, 327 NLRB 871 (1999); Service Electric Co., 281 NLRB 633 (1986). However, once the strike ended with the Union making an unconditional offer to return to work on behalf of the striking employees the inherent conflict ceased to exist. The terms and conditions of employment of the replacement employees were to be the same as that for returning striking employees. Ac- cordingly, Respondent was obligated to make pension fund contributions on behalf of the replacement employees begin- ning on December 8, 1995, the day the strike ended. All parties cite the Board case of Service Electric Co., supra. Counsel for the General Counsel and counsel for the Fund correctly point but that in Service Electric, supra, the union did not make an unconditional offer to return work when the strike ended in that case but the union did make such an unconditional offer to return to work in the instant case. Therefore, I find that Re- spondent’s reliance in Service Electric is misplaced. And, in this case the same terms and conditions of employment to in- clude pension fund contributions were to be the same for re- placement workers and returning strikers. However, Respondent did not start making contributions on behalf of replacement employees until October 1, 2001, after the U.S. Court of Appeals for the First Circuit issued its Amended Judgment ordering Respondent to make the Fund whole on September 28, 2001. The question is whether or not Respondent has to make pen- sion fund contributions on behalf of replacement employees who worked for Respondent between December 8, 1995, and October 1, 2001, and the answer is yes. After the strike ended the replacement employees were to have pension fund contributions made on their behalf. The same as pension contributions were to be made on behalf of the returning striking employees. Such payments are the only way to comply with the court order to make the Fund whole. D. Pension Fund Contributions on Behalf of Employees not Vested in the Plan Employees on behalf of whom pension contributions are made cannot vest and later receive a pension until they have 5- qualifying years of contributions being made on their behalf to the Fund. A significant number of employees in this case left Respon- dent’s employ and do not have from Respondent alone or from Respondent in combination with any other employer 5 years of vested service. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902 Respondent maintains that it should not be required to make Fund contributions on behalf of those nonvested employees because it is speculative if they will ever vest and earn a pen- sion and a payment to the Fund on their behalf would constitute a windfall for the Fund. And, lastly, ordering contributions on their behalf would be punitive in nature and the remedy for violations of the Act are remedial only. See Republic Steel Corp. v. NLRB, 311 U.S. 7 (1940). Respondent relies on a Second Circuit decision and a Board decision to support its position. See NLRB v. Coca-Cola Bot- tling Co. of Buffalo, Inc., 191 F.3d 316 (2d Cir. 1999), citing an earlier case, i.e., Manhattan Eye Ear & Throat Hospital v. NLRB, 942 F.2d 151 (2d Cir. 1991); and Arandess Management Co. 337 NLRB 245 (2001). There are sharp distinctions between the cases relied on by Respondent and this case. The pension fund was not a party to either the Second Circuit case or the Board case whereas, the Fund here is a separate and distinct party to this litigation and the relief ordered by the First Circuit specifically calls for a remedy running to the pension fund itself and not just making the individual discriminates whole as was the case in the Coca- Cola, supra, and Arandess, supra, cases. The First Circuit, unlike the cases relied on by Respondent, specifically ordered that the Fund itself be made whole. The plain meaning of this court order is that if Respondent should have made contribu- tions to the Fund in the past and did not it should do so now. Additionally, while the interests of the discriminatees in Coca Cola & Arandess may have been speculative they are not so speculative in the instant case. Coca-Cola had a 10-year vesting requirement and all credit would be lost after a 3-year break in service. Arandess Management Co. had a 5-year vest- ing requirement and vesting credits would be lost after 5 years. In this case, the vesting period is 5 years and vesting credit is lost if the participant fails to work for 10-consecutive years for a contributing employer. There are currently 156 participating employers in the Fund nationwide to include 17 employers in New England to include 7 in Massachusetts. The Union now has a referral hall in operation, which could expedite employees no longer working for Respondent to get a position with an- other contributing employer. And, as noted above, if an em- ployer works just 501 hours in a year for a contributing em- ployer that starts the 10-year clock running again. In addition in the instant case Respondent’s former non- vested employees do receive a nonspeculative benefit, i.e., a death benefit from the Fund equal to all the contributions made on their behalf provided the employee had a minimum of 1 year of vesting service. In short the pension fund benefit to non-vested employees in the instant case is not speculative and Respondent should com- ply with the court’s order and make the fund whole. Any other outcome would be an unjust windfall for Respondent and unfair to the Fund and the nonvested employees. Accordingly, Respondent should make pension fund contri- butions on behalf of all its former employees who have not as yet vested based on the time of their employ with Respondent. E. Should the Fund be Paid Interest and Liquidated Damages The remedies for violations of the Act are remedial in nature and not punitive in nature, e.g., employees unlawfully dis- charged in violation of Section 8(a)(3) of the Act are offered reinstatement and backpay, with interest, but not punitive dam- ages. See Republic Steel Corp. v. NLRB, supra. While the pension fund documents call for the payment of liquidated damages at the rate of 20 percent for delinquent con- tributions in addition to interest Respondent argues that the payment of liquidated damages and even interest if ordered to be paid would be punitive and not remedial. In cases involving bankrupt employers or as part of a settle- ment, the Fund will on occasion waive liquidated damages. The plan rules provide that the trustees can waive liquidated damages for good-cause shown. If the plan called for the payment of treble damages for de- linquent contributions as an incentive to employers to make Fund contributions in a timely fashion I believe it would be punitive, and not remedial, for the Board, in the context of un- fair labor practice litigation, to order the payment of treble damages. In section 2 of its Amended Judgment and Order the court ordered that Respondent “make whole both the unit employees, with interest, and the National Shopmen Pension Fund: . . . .” Respondent argues that the plain meaning of this part of the order means no interest payment to the Fund because the court specifically orders interest to unit employees but not to the Fund. I view it differently. Interest on backpay is the obvious way to fashion a make whole remedy. The “making whole” of the Fund may call for something other than interest. The Board wrote the following in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1977): Because the provisions of employee benefit fund agreements are variable 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 of whether Re- spondent must pay any additional amounts into the benefit funds in order to satisfy our “make-whole” remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions, to evidence of any loss directly at- tributable to the unlawful withholding action, which might in- clude the loss of return on investment of the portion of funds withheld, additional administrative costs, etc., but not collat- eral losses. Respondent can’t comply with the court’s order to make the Fund whole by simply making the contributions to the Fund that should have been made years earlier because the Fund, if it had received the contributions in a timely fashion, would have invested the moneys, or paid the moneys out in pension or death benefits, etc. The problem with 20-percent liquidated damages on all de- linquent contributions is that there is no evidence that this 20 RYAN IRON WORKS, INC. 903 percent is needed to make the Fund whole and not, for example, some lesser percentage. The General Counsel cites GT Knight Co., 268 NLRB 468 (1983), where 12-percent liquidated dam- ages was upheld by the Board. If the Fund in the instant case provided for 25 or 35 or 40 percent in liquidated damages that may be requiring the Respondent to do more than “make whole” the Fund. The Fund documents not only call for liquidated damages in the amount of 20 percent but also call for the payment of inter- est on delinquent contributions. Respondent should be ordered to pay the interest called for in the trust documents on all delinquent contributions, i.e., the rate of interest charged by the Pension Benefit Guaranty Corpo- ration. See section 9.05 of Trust (GC Exh. 7) and (CP Exh. 1). Based on the foregoing I issue the following recommended1 ORDER The Respondent, Ryan Iron Works, Inc., Raynham, Massa- chusetts, its officers, agents, successors, and assigns, shall 1. Make contributions to the Fund on behalf of strike re- placements plus interest for those strike replacements who worked for Respondent at any time during the period of De- cember 8, 1995, when the strike ended, and October 1, 2001, when Respondent began making payments to the Fund on be- half of the strike replacements still on its payroll. 2. Make contributions to the Fund plus interest on behalf of its former employees who have not as yet vested in the plan because they have not as yet worked a minimum of 1000 hours a year for 5 years for a contributing employer. 3. Respondent is not required to pay liquidated damages on the amount of delinquent contributions, but should pay interest. The interest will be computed at the rate of interest charged by the Pension Benefit Guaranty Corporation. 4. The strike replacement employees and the employees who had not as yet vested are listed on Appendix A which is at- tached to this decision and made a part thereof and the indi- viduals listed should be paid the amount opposite that person’s name, plus interest. The names and the amounts come from General Counsel’s Exhibit 3.2 5. Respondent should comply with the terms and conditions of the partial settlement of this case reached on April 24, 2003. APPENDIX A REPLACEMENT WORKERS EMPLOYEE NAME PENSION CONTRIBUTION Aime, Ronel $ 253.89 Amaro, Fernandez 1,041.95 Bergen, John 12,123.93 Costa, Jose 12,497.49 1 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. 2 Applying the rationale of Harding Glass Co., 377 NLRB 1116 (2002), I will not order that 401(k) contributions Respondent made on behalf of employees listed in App. A be off set against the moneys owed the Fund pursuant to this recommended supplemental decision. Cournoyer, Robert 3,443.44 Cyrus, Oldemar 0.00 Derois, Paul E. 287.56 DeSanto, Caesar 2,247.02 DiPalma, Michael 2,541.37 Dowding, Gary 3,072.16 Dowding, Michael 3,420.62 Espada, Edwin 260.26 Farrell, Frederick L. 926.38 Goslant, Mark 561.47 Harsh, Donald 12,262.93 Hemmer, Monk 13,448.21 Jackson, William 7,150.88 Kourafas, Peter 1,763.58 Laramee, Robert 3,013.92 Magiera, Eugene 273.91 Manley, Donald S. 586.57 Marchand, Steven 2,439.71 Molina, Eddie 244.79 Perez, Wayne 241.15 Picillo, John 1,120.21 Psolka, Thomas 287.56 Reynolds, Gordon 148.33 Rice, Jordan 538.72 Riley, Michael 13,994.89 Rios, Rafael 4,018.05 Rodrigues, Joao 7,186.73 Silva, Antonio 99.19 Swanson, Milton F. 12,601.45 Tammelleo, Jason 433.16 Tougas, Leonard 2,840.11 Tougas, William G. 8,571.84 TOTALS $ 135,943.43 NONVESTING EMPLOYEES EMPLOYEE NAME PENSION CONTRIBUTION Almeida, James $ 85.54 Amaral, Edwin 209.30 Applebaum, Matthew 84.63 Azevedo, Graceliano 1,113.84 Badoud, Anthony 54.83 Baker, Jeremy 595.14 Barabe, Jessica 27.30 Botelho, Michael 81.90 Boudreau, Joseph I. 203.39 Brown, Alexander, III 1,655.97 Brum, Joseph 326.24 Cabral, Jeffrey 821.28 Carisen, Richard 1,143.42 Carlton, David 243.20 Carmo, Carlos 2,105.97 Carmo, Nuno 3,157.36 Casillas, Jose 481.16 Coakley, Robert S. 6,817.49 Colon, Gilberto 295.30 Couto, Matthew 392.44 Coward, Allen 1,701.71 Dalton, Kenneth 410.87 DaSilva, Adam J. 1,053.73 DaSilva, Cesar 60.74 Davis, Jason 703.66 DeCarvalho, Louis H. 525.07 Deluca, William J. 177.68 DeMarco, Joseph 1,490.90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904 DeSouza, Richardo 447.72 Dias, Erik D. 1,854.13 Dias, Kevin 7,136.68 DiSano, James 61.65 DosSantos, Eduardo 609.47 Druan, Timothy 1,531.30 Dunn, William J. 1,983.57 Edsall, Jason K. 72.80 Ellis, William J. 117.16 Emidio, Joaquim 596.73 Enos, Scott W. 214.76 Enos, William H. 287.56 Fabas, Richard 341.48 Fadlallah, Ghazi 336.02 Fernandes, Scott 6,700.82 Ferreira, Fernando 1,679.86 Ferriera, Silvestre 1,288.56 Flynn, MacJames 452.73 Francazio, Joseph 218.40 Ghabboura, Hisham Z. 684.32 Gilcoine, Daniel J. 307.81 Glass, William L. 1,784.53 Guncheon, William 347.62 Hanlin, Douglas A. 2,438.71 Hayden, Christopher D. 2,667.91 Ireland, Douglas W. 739.15 Johnson, Zachary 874.28 Johnstone, Joshua R. 111.70 LaFleur, Michael 1,144.78 Lawrence, Alan 508.69 Lourenceo, Jose M. 2,115.52 Lovenberg, Joshua 2,446.76 Lund, Michael J. 58.01 Lynas, John 877.24 Maaser, Henry J. 200.43 Machnik, Thomas E. 116.48 Mann, Charles E. 403.59 Marvel, David W. 847.21 McLellan, Allen 205.66 Medeiros, Christopher C. 2,745.24 Medeiros, Ildeberto 35.49 Medeiros, Kevin J. 173.36 Medeiros, Michael T. 616.07 Mello, Antonio 386.07 Mello, Robert 3,969.43 Menard, Eric 514.15 Nascimento, Mariano 125.58 Nazario, Jose 1,887.57 Nickikoulias, Nicholas J. 448.63 Noyes, George 121.49 Paiva, Shannon E. 42.32 Peixoto, Christopher M. 124.44 Pereira, Roy 740.97 Pimental, Kenneth 63.70 Pires, Antonio 139.23 Rampersad, Deorash 1,936.71 Raposo, Erik 94.64 Rifai, Admed 3,481.43 Riley, Sean 239.33 Rodrigues, Steven J. 7,484.07 Saraiva, Silverio 3,000.34 Sawler, James G. 85.09 Scarano, Richard E. 40.04 Simpson, Steven T. 1,530.17 Smerker, Larry 1,252.39 Souza, John 1,422.77 Spearin, Brad W. 305.76 Suarez, Jerry 1,160.48 Sylvia, Adam T. 473.43 Sylvia, Tina M. 36.86 Tavares, Roberto 31.29 Teixeira, Humberto A. 6,529.75 Teixeira, Richard J. 462.28 Terry, Matthew J. 133.54 Trott, John E. 4,310.73 Vieira, Mario J. 42.54 Vincent, Leo R. 627.67 Zim, Adilson E. 798.30 TOTALS $ 118,445.21 Thomas J. Morrison and Sandra L. Jean, Esqs., for the General Counsel. Robert P. Corcoran, Esq. (Gleason & Corcoran), of Boston, Massachusetts, for the Respondent. Marc Rifkind, Esq. (Slevin & Hart, P.C.), of Washington, D.C., for the National Shopmen Pension Fund. SECOND SUPPLEMENTAL DECISION MARTIN J. LINSKY, Administrative Law Judge. On October 29, 2003, I issued a supplemental decision in the above- captioned case. The case was then transferred to and continued before the Board. On January 26, 2004, in response to a motion to remand made by counsel for the General Counsel, the Board remanded the case to me for the limited purpose of my reconsideration regarding the pension contribution, if any, to be made on behalf of Oldemar Cyrus, a strike replacement employee. The motion to remand was made on the grounds that I relied on an exhibit which contained inadvertent clerical errors. Thereafter on February 17, 2004, counsel for the General Counsel filed an unopposed motion to the judge to amend find- ings to conform to corrected evidence. The counsel for the General Counsel’s motion is granted. In my October 29, 2003 supplemental decision, I inadver- tently referred in the caption of the case to Case “1–CA– 34026” which should be changed to read Case “1–CA–34066.” In addition, due to a clerical error in General Counsel’s Ex- hibit 3 the amount found due and owing to the pension fund on behalf of strike replacement worker Oldemar Cyrus was re- corded in appendix A to my October 29, 2003 decision as “$0.00” and should instead be recorded as “$15,756.42.” This change will increase the total pension contribution due on be- half of replacement workers, not counting interest, to $151,699.85 rather than $135,943.43.