Caldwell Shipping Co.

EI)I(ISIONS ()I- NA IONAI. LABOR RKT:.AIIONS BOARI) Clerks and Checkers Local No. 1593, International Longshorenien's Association, AFL-CIO (Caldwell Shipping Company, et al.) and Howard Beckham and International Longshoremen's Association Wel- fare, Vacation and Pension Fund and its Trustees, J. A. Kaufmann, Jr., Raymond King, Gerald B. Fox, Landon . Williams, Jack l.and, and Lewis W. Jones. Cases 12 'B- 1586 and 12 CB 1620 1 June 25. 1979 SUPPLEMENTAL, DECISION AND ORDER BY MEMBFRS JENKINS, PI:N.I.O, AN) MtIRI'IIY On January 26, 1978, the National Labor Relations Board issued its Decision and Order' in the above- entitled proceeding in which it ordered. inter alia, Re- spondent Union, and its officers, agents, and repre- sentatives, to make whole Howard Beckham for any loss of pay suffered by reason of Respondent Union's failure to properly refer him for employment in viola- tion of Section 8(b)(1)(A) and (2) of the Act. There- after, Respondent Union, Charging Party Beckham. and the General Counsel reached agreement as to the amount of backpay due and the contributions neces- sary for crediting to Beckham's account in the Inter- national Longshoremen's Association Welfare. Vaca- tion and Pension Fund (hereafter the Fund) to prevent him from suffering any loss in fringe benefits. Subsequently, Respondent Union, the Fund and its Trustees, as the Parties in Interest, and the General Counsel also executed a stipulation stating, inter alia. that Respondent Union and the Parties in Interest have no objection to the Board's Order of January 26. 1978, and that agreement has been reached between Respondent Union and the General Counsel regard- ing the amount of backpay due Beckham and the amount to be paid to the Fund; but that a compli- ance issue had arisen due to the refusal of the Fund to accept the retroactive payment of fringe benefit con- tributions from Respondent Union. A controversy having arisen due to the refusal of the Fund to accept the retroactive payment of fringe benefits, the Regional Director fr Region 12. on No- vember 27, 1978, issued and duly served on the par- ties a backpay specification and notice of hearing, al- leging the amount of retroactive fringe benefit payments to be contributed by Respondent Union and accepted by the Fund in order to satistfy Respon- dent Union's make-whole obligations under the Board's prior Order, and notilying the parties that a timely answer should be filed which must comply 234 NlRB 511 (1978). with the Board's Rules and Regulations, Series 8, as amended. On December 11. 1978. the Fund filed an answer admitting the general factual allegations con- tained in the backpay specification. but raising sev- eral defenses fir its refusal to accept the retroactive fringe benefit payments. Thereafter, on January 29, 1979, counsel fr the General Counsel filed directly with the Board a Motion for Summary Judgment. with exhibits attached. Subsequently. on February 9. 1979. the Board issued an order transferring the pro- ceeding to the Board and a Notice 'To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. On February 23. 1979. the Fund tiled a response to the Notice To Show Cause entitled "Objections of International l ongshoremen's Association Welfare, Vacation and Pension Fund and its Trustees to Summary Judg- ment." Pursuant to the provisions of Section 3(bh) of' the National abor Relations Act, as amended. the Na- tional Labor Relations Board has delegated its au- thoritv in this proceeding to a three-member panel. Upon the entire record in this proceeding. the Board makes the following: Ruling on the Motion tB;r Summary Judgment In its answer to the backpay specification. the Fund contends that the Board does not have author- ity to order it to accept the retroactive fringe benefit payments necessary to fulfill Respondent's make- whole obligation under the Board's Order. Counsel for the General Counsel alleges in his Motion for Summary Judgment that the Fund herein was estab- lished pursuant to a collective-bargaining agreement between the Jacksonville Maritime Association, Inc. (herein Association). and Respondent Union which incorporates by reference the trust provisions of a col- lective-hbrgaining agreement between the Associ- ation and International Longshoremen's Local 1408. Counsel for the General Counsel has submitted ex- hibits containing the pertinent portions of those agreements. The Fund, in its response to the Notice To Show Cause, does not dispute these allegations of the General C('ounsel and does not dispute the validity of' the copies of' the collective-bargaining agreements submitted by the General Counsel. It is clear from these collective-bargaining agreements that the Fund is administered by a board of' six trustees, three of whom are appointed by the Association and three who are appointed by Respondent Union. The Board has consistently held that the trustees of a joint trust ftind, established pursuant to a collective-bargaining agreement, are agents of both the union and the con- tributing employers and as a result are required to 243 NLRB No. 3 8 Cl('IRKS AN[) ('IIE('KIRS I.OC'AI NO 1593 accept contributions fron a respondent which are made in order to comply with a backpay award. 2 In its answer to the backpay specification and in its response to the Notice To Show Cause. the Fund raises various objections to the backpay specification designed. inter alia, to protect the Fund from sustain- ing financial loss upon acceptance of the fringe bene- fit payments from Respondent Union for credit to Beckham's account. The Fund asserts, iner arrlia that no provisions have been made in the backpay specifi- cation for the payment of administrative expenses to be incurred by the Fund in complyin g with the hack- pay order, nor have provisions been made for the payment of interest to the Fund which would have accrued had the backpay payments been made during the period that the backpay order specifies. We find merit in the Fund's contention that it is entitled lo compensation tfor any additional costs which are re- quired for the restoration of Beckham's rights. In so doing, we recognize the obligations of the Trustees to perform their duties as fiduciaries in administering the Fund as well as to accept contributions on its behalf as agents of the principals to the collective- bargaining agreements) Therefore, we shall order Re- spondent Llnion to compensate the Fund for adminis- tration costs and other expenses and loss of interest incurred by the Fund as a result of its acceptance of the retroactive fringe benefit pan ments. We shall leave the determination of these amoun ts to further compliance proceedings.4 Accordingly, the Board finds that the fringe benefit payments to be made on behalf of Beckham are as stated in the backpa; specification. and orders pa.- 2Jacob Trans/lir, Inc. 227 N.RB 1231 11977), and cases cited herein at fn. 3. ' Ihid. The Fund also objects to the Motion lir Sumniary Judgment be- cause no provisions wer. made in the backpa; specification to coser insur- ance premiums fior any necessary health and wellare claims that should arise during the hackpay period. However, none of the prties to this proceeding contends. nor is there any evidence showing. that an5 such claims have arisen. We find it appropriate to leave this ma;lter to urther compliance proceedings. I Because the provisions of employee heneftit fund agreements are variale and complex. the Board des not provide lor interest at a fixed rate n und payments due as part of a "make-whole" remedy. e therefore leave further proceedings the question of how much interest Respondent must py into the henefit fund in order to stisfl our make-hhole remedy rhese additional amounts may he determined. depending upon the circumstances of each case. by reference to provisions in the documents governling the und at issue and. where there are no governing provisions. to evidence iof all loss directly attributable to the unlawful action. which might include the loss of return on investment of the portion oft funds ithheld. additional adminlstra- tive costs. etc.. but not collateral losses. See tfirrc ,rlther Opi.al ('a. 240 NLRB 1213. fn. 7 (1979). ment thereof; together with administration costs and other expenses and interest, to the Fund by Respon- dent Union and the acceptance thereof by the Fund, as agent of Respondent Union. ORDER Pursuant to Section 10(c) of the National Labor Relations Act. as amended. the National Labor Rela- tions Board hereby orders that: A. Respondent Clerks and Checkers Local No. 1593, International Longshoremen's Association. AFL CIO. its officers. agents. and representatives, shall: I. Tender contributions on behalf of Howard Beckham to the Fund and its Trustees, in order to make Howard Beckham whole for the losses he suf- fered as a result of Respondent Union's failure to properly refer him to employment, as found in the Board's original Decision and Order, 234 NLRB 511 I (1978). in the amount set forth in the backpa) specifi- cation of November 27. 1978. issued by the Regional Director for Region 12. 2. ender to the Fund and its Trustees, whatever administration costs and other expenses, as are in- curred hb the Fund as a result of its acceptance of the fringe benefit contributions, together with interest p;nmlents as are required by the Fund agreement. 3. Notiif the Regional Director for Region 12. in writing, within 20) ays from the date of this Order. what steps Respondent Ulnion has taken to comply herewith. B. Iniernational .ongslhoremen's Association Wel- itare. Vacation and Pension I:uind and its Tlrustees. J. A. Kaul;nil. nnr.. ;lyinonid King. Gerald B. Fox. Landon I.. Williams, lack Land. and Lewis W. Jones. Parties in Interest, shall: 1. Accept contributions on behalf of Howard Beckham to the Fund from Respondent Union as set forth in the backpa specification of November 27. 1978. issued bh tile Regional Director tor Region 12. together with administration costs and interest and. upon receipt thereof" restore Howard Beckham to all rights and benefits which Beckham would have earned or would have accrued to him had lie been properly referred to employment. 2. Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order. what steps the Fund and its Trustees have taken to comply herewith.