Remke, Incorporated

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Remke, Incorporated and Shopmen's Local No. 508, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 7-CA-17841 May 26, 1981 DECISION AND ORDER Upon a charge filed on June 3, 1980, by Shop- men's Local No. 508, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called the Union, and duly served on Remke, Incorporated, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on July 8, 1980, against Respondent, alleg- ing that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative law judge were duly served on the parties to this proceeding. On July 15, 1980, Respondent filed its answer to the complaint. However, on Jan- uary 14, 1981, Respondent by telegram withdrew its answer filed on July 15, 1980. In the telegram Respondent also advised that it is now in bankrupt- cy and does not contest the allegations of the com- plaint. On January 26, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 29, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed no response to the Notice To Show Cause, and the allegations in the Motion for Sum- mary Judgment stand uncontroverted. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not 256 NLRB No. 20 specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing which issued on July 8, 1980, and was duly served on Re- spondent on the same day, specifically states that unless an answer to the complaint is filed by Re- spondent within 10 days from the service thereof "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." Although Respondent filed a timely answer, it subsequently withdrew its answer. The withdrawal of an answer of necessity has the same effect as a failure to file, and thus the allega- tions of the complaint must be deemed admitted as true as if no answer had ever been filed. Since Re- spondent has withdrawn its answer to the com- plaint and as no good cause to the contrary has been shown, the allegations of the complaint are deemed to be admitted to be and are so found to be true in accordance with the Board's Rules and Regulations. Accordingly, we grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a corporation organized under and by virtue of the laws of the State of Michigan, with an office and place of business at 28100 Groesbeck Highway, Roseville, Michigan, herein called the Roseville plant, and at all times material herein, Respondent has been engaged in the manufacture, sale, and distribution of truck bodies, semitrailers, and related products. During the year ending December 31, 1979, Re- spondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Roseville plant steel, lubricants, and other goods and materials, valued in excess of $500,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its Roseville plant directly from points located out- side the State of Michigan. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and ickey Chevrolet Salh, Inc., 199 NLRB 411 (1972). REMKE, INCORPORATED 143 that it will effectuate the policies of the Act to assert jurisdiction herein. II1. THE LABOR ORGANIZATION INVOLVED Shopmen's Local No. 508, International Associ- ation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees employed by Re- spondent at its Roseville plant; excluding all office clerical employees, guards and supervi- sors as defined in the Act, and all other em- ployees. Since 1965, the Union has been the designated ex- clusive collective-bargaining representative for the unit employees and has been so recognized by Re- spondent. Such recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective for the period of July 1, 1977, until June 30, 1980. The most recent collective-bargaining agreement between the parties has, inter alia, sections 14-A and 14-B which are entitled, respectively, "Pension Plan" and "Health and Welfare Fund Welfare Benefits." They provide, inter alia, for the monthly payment by Respondent, for each employee cov- ered by the agreement, certain sums to the "Pen- sion Fund" and "Welfare Fund" trustees to pro- vide pensions, group insurance, and other related "Welfare Benefits." Section 14-B(D) of the agree- ment provides: (D) Not later than the twenty-fifth (25th) day of each month following, the Company shall remit to the Trustees full payment of the contribution, as hereinabove provided, for the preceding month. Failure of the Company to make such monthly payments within ten (10) days following the aforementioned date shall constitute a breach of Agreement, and the Union, notwithstanding anything to the con- trary contained in this Agreement, shall have the right to remove its members from the plant or plants of the Company in question. Section 14-A(F) with regard to pension fund payments contains similar payment requirements. Since on or about April 25, 1980, Respondent, by its agent, Joseph Arlianos, has failed and refused and continues to fail and refuse to make such fund payments as provided for in the collective-bargain- ing agreement, despite requests by a union agent that it do so. It accordingly has breached and modified the collective-bargaining agreement with- out complying with the provisions of Section 8(d) of the Act. We therefore find that Respondent, by its conduct described above, has since on or about April 25, 1980, refused to bargain with the Union as the exclusive representative of its employees in the appropriate unit and by such conduct has en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, 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 Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. We have found that Respondent, since on or about April 25, 1980, has failed to make the re- quired contributions to the health and welfare and pension funds and that such failure constituted uni- lateral changes in terms and conditions of employ- ment. In order to dissipate the effects of these unfair labor practices, we shall order Respondent to make whole its employees by remitting the re- quired contributions to the pension fund and to the welfare fund which would have been made absent Respondent's unlawful discontinuance of such funds, and to post the attached notice.2 2 Because the pros ismins of employee benefitl fund agreements are arl- able and complen. the Board does not provide at the adjudicalory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund palnlents We lease to the compliance stage the questiotn of w hether Respondent must pay any additional amounts into the benefil 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 provistions in the documents go, erning the fund, alI issue and. here there are no go erning provisions, to1 eidence of any loss directly attributable to the unlawful withholding action which might include the loss of return on in estmcnt of the portion lf funds ktlhheld, additio nal adninistrative co ts etc, hut not coll teral I MferrReuather Optical Comrpany, 241) NI[ RH 121 17111 REMKE, INCORPORATED '43 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Remke, Incorporated, is an employed engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Shopmen's Local No. 508, International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees employed by Respond- ent at its Roseville, Michigan, plant, excluding all office clerical employees, guards, and supervisors as defined in the Act, and all other employees con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. By refusing on or about April 25, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, by unilaterally discontinuing payments to the pension and welfare funds, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 5. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 6. 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 Respondent, Remke, Incorporated, Roseville, Michigan, its offi- cers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Shopmen's Local No. 508, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the aforesaid appropriate unit. (b) Unilaterally changing terms and conditions of employment of the employees in the aforesaid ap- propriate unit by failing and refusing to make pen- sion and welfare fund payments as required by the collective-bargaining agreement in question with- out notice to or consultation with said Union. (c) 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) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit wth respect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Make such payments to the welfare and pen- sion funds as were previously made on behalf of those employees in the unit which would have con- tinued to be made had Respondent not unlawfully discontinued such payments. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Roseville, Michigan, plant 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 Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. : 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 States Court of Appeals Enforcing an Order of the National Labor Relations Board." REMKE, INCORPORATED 145 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Shopmen's Local No. 508, International Association of Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive repre- sentative of the employees in the bargaining unit described below. All full-time and regular part-time produc- tion and maintenance employees employed by us at our Roseville plant, excluding all office clerical employees, guards and super- visors as defined in the Act and all other employees. WE WILL NOT unilaterally refuse to remit moneys due the Union's welfare fund and pen- sion fund as required by the collective-bargain- ing agreement. 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 appropriate payments to the funds established by the terms of the collec- tive-bargaining agreement which our company has failed to pay in accordance with the col- lective-bargaining agreement. WE WILI., upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described above, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment. REMKE, INCORPORATED REMKE, INCORPORATED 145