Turnbull Enterprises, Inc.

934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turnbull Enterprises, Inc. and Sheet Metal Workers benefits after the expiration of the coverage pro- International Association, Local No. 11. Case vided by these retroactive contributions or, at Re- 15-CA-7489 spondent's discretion, by continuing contributions January 7, 1982 to the Fund beyond December 12 in lieu of com- pensating employees for loss of benefits under the DECISION AND ORDER Fund; and to rescind the insurance plan in effect under its collective-bargaining agreement with the BY MEMBERS FANNING, JENKINS, AND Union and reinstate the New Orleans Sheet Metal ZIMMERMAN Workers Health and Welfare Fund plan for unit On December 18, 1980, Administrative Law employees upon written request by the Union. The Judge J. Pargen Robertson issued the attached De- Administrative Law Judge left to the compliance cision in this proceeding. Thereafter, Respondent stage the question whether Respondent must pay filed exceptions and a supporting brief,' the Charg- any additional amounts into the Health and Wel- ing Party filed cross-exceptions and a supporting fare Fund in order to satisfy the make-whole brief, and the General Counsel filed a brief in sup- remedy, but specifically provided that Respondent port of the Administrative Law Judge's Decision. be required to notify bargaining unit employees, as The Intervenor 2 also filed an answering brief to the well as former employees, qualifying for benefits exceptions. under this remedial scheme of their entitlement to Pursuant to the provisions of Section 3(b) of the such benefits. We agree with certain portions of National Labor Relations Act, as amended, the Na- the Administrative Law Judge's recommended tional Labor Relations Board has delegated its au- Order, but shall modify it in other respects to best thority in this proceeding to a three-member panel. effectuate an appropriate remedy under the existing The Board has considered the record and the at- circumstances. tached Decision in light of the exceptions and In cases, like the one here, involving a violation briefs and has decided to affirm the rulings, find- of Section 8(a)(5) based on a respondent's unilater- ings,3 and conclusions of the Administrative Law ally altering existing benefits, it is the Board's es- Judge and to adopt his recommended Order, which tablished policy to order restoration of the status is modified to reflect the amended remedy. quo ante to the extent feasible where there is no evidence that to do so would impose an undue or AMENDED REMEDY unfair burden on the respondent.5 Because the The Administrative Law Judge found, and we Fund's health and welfare plan provided for 6 agree, that Respondent violated Section 8(a)(5) and months' future benefits on the basis of coverage (1) of the Act by unilaterally discontinuing pay- earned during the previous 6 months, and contribu- ment of contributions to the New Orleans Sheet tions had been made by Respondent's predecessor Metal Workers Health and Welfare Fund (herein- on the unit employees' behalf, the employees had after referred to as the Health and Welfare Fund or accrued 6 months of advance coverage at the time the Fund) on behalf of the unit employees. To that Respondent acceded to its successorship obli- remedy this violation, the Administrative Law gations and unilaterally discontinued payments to Judge recommended that Respondent be ordered, the Fund. 6 We find, therefore, that Respondent's inter alia, to make all Health and Welfare Fund unfair labor practice can be most appropriately re- contributions, as provided in the predecessor's col- medied by placing the parties in the position in lective-bargaining agreement, for the period begin- which they would have been but for Respondent's ning on July 10, 1979, and extending until agree- unlawful discontinuance of Fund contributions. ment on a contract encompassing a substitute insur- The remedy recommended by the Administrative ance plan was reached by the parties on December Law Judge generally accomplishes this remedial 12, 1979; 4 to make whole employees for loss of objective. Thus, we agree with his recommenda- tions regarding making employees whole for loss of ' Respondent's request for oral argument is hereby denied inasmuch as benefits to the extent that costs which would have the record and briefs adequately state the positions of the parties.und were not actuall 'The New Orleans Sheet Metal Workers Health and Welfare Fund ap- een paid by the Fund were not actually paid by peared at the hearing as the Intervenor. ' Respondent has excepted to certain credibility findings made by the See, for example, Allied Products Corp.. Richard Brothers Division, 218 Administrative Law Judge. It is the Board's established policy not to NLRB 1246 (1975), enfd. in relevant part 548 F.2d 644 (6th Cir. 1977); overrule an administrative law judge's resolutions with respect to credi- Southland Paper Mills. Inc., 161 NLRB 1077, 1078 (1975). bility unless the clear preponderance of all of the relevant evidence con- 6 Under the terms of the plan, unit employees of the predecessor who vinces us that the resolutions are incorrect. Standard Dry Wall Products worked at least 350 hours between January 1, 1979, and June 30, 1979, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have were qualified for benefits under the Fund from July I, 1979, through carefully examined the record and find no basis for reversing his findings. December 31, 1979, regardless of whether Respondent made contribu- ' Unless otherwise indicated, all dates hereinafter are 1979. tions. 259 NLRB No. 122 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turnbull Enterprises, Inc. and Sheet Metal Workers benefits after the expiration of the coverage pro- International Association, Local No. 11. Case vided by these retroactive contributions or, at Re- 15-CA-7489 spondent's discretion, by continuing contributions January 7, 1982 t o t he F u n d beyond December 12 in lieu of com- pensating employees for loss of benefits under the DECISION AND ORDER Fund; and to rescind the insurance plan in effect under its collective-bargaining agreement with the BY MEMBERS FANNING, JENKINS, AND Union and reinstate the New Orleans Sheet Metal ZIMMERMAN Workers Health and Welfare Fund plan for unit On December 18, 1980, Administrative Law employees upon written request by the Union. The Judge J. Pargen Robertson issued the attached De- Administrative Law Judge left to the compliance cision in this proceeding. Thereafter, Respondent stage the question whether Respondent must pay filed exceptions and a supporting brief,' the Charg- any additional amounts into the Health and Wel- ing Party filed cross-exceptions and a supporting fare Fund in order to satisfy the make-whole brief, and the General Counsel filed a brief in sup- remedy, but specifically provided that Respondent port of the Administrative Law Judge's Decision. be required to notify bargaining unit employees, as The Intervenor' also filed an answering brief to the well as former employees, qualifying for benefits exceptions. under this remedial scheme of their entitlement to Pursuant to the provisions of Section 3(b) of the such benefits. We agree with certain portions of National Labor Relations Act, as amended, the Na- the Administrative Law Judge's recommended tional Labor Relations Board has delegated its au- Order, but shall modify it in other respects to best thority in this proceeding to a three-member panel. effectuate an appropriate remedy under the existing The Board has considered the record and the at- circumstances. tached Decision in light of the exceptions and In cases, like the one here, involving a violation briefs and has decided to affirm the rulings, find- of Section 8(a)(5) based on a respondent's unilater- ings,3 and conclusions of the Administrative Law ally altering existing benefits, it is the Board's es- Judge and to adopt his recommended Order, which tablished policy to order restoration of the status is modified to reflect the amended remedy. quo ante to the extent feasible where there is no evidence that to do so would impose an undue or AMENDED REMEDY unfair burden on the respondent. 5 Because the The Administrative Law Judge found, and we Fund's health and welfare plan provided for 6 agree, that Respondent violated Section 8(a)(5) and months' future benefits on the basis of coverage (1) of the Act by unilaterally discontinuing pay- earned during the previous 6 months, and contribu- ment of contributions to the New Orleans Sheet tions had been made by Respondent's predecessor Metal Workers Health and Welfare Fund (herein- on the unit employees' behalf, the employees had after referred to as the Health and Welfare Fund or accrued 6 months of advance coverage at the time the Fund) on behalf of the unit employees. To that Respondent acceded to its successorship obli- remedy this violation, the Administrative Law gations and unilaterally discontinued payments to Judge recommended that Respondent be ordered, the Fund.' We find, therefore, that Respondent's inter alia, to make all Health and Welfare Fund unfair labor practice can be most appropriately re- contributions, as provided in the predecessor's col- medied by placing the parties in the position in lective-bargaining agreement, for the period begin- which they would have been but for Respondent's ning on July 10, 1979, and extending until agree- unlawful discontinuance of Fund contributions. ment on a contract encompassing a substitute insur- The remedy recommended by the Administrative ance plan was reached by the parties on December Law Judge generally accomplishes this remedial 12, 1979; 4 to make whole employees for loss of objective. Thus, we agree with his recommenda- tions regarding making employees whole for loss of I Respondent's request for oral argument is hereby denied inasmuch as benefits to the extent that costs which would have the record and briefs adequately state the positions of the parties. j, , .u und were not actually naid hv 'The New Orleans Sheet Metal Workers Health and Welfare Fund ap- ben paid by te Fund Were nOt actually paid by peared at the hearing as the Intervenor. ' Respondent has excepted to certain credibility findings made by the See, for example. Allied Products Corp.. Richard Brothers Division, 218 Administrative Law Judge. It is the Board's established policy not to NLRB 1246 (1975), enfd. in relevant part 548 F.2d 644 (6th Cir. 1977); overrule an administrative law judge's resolutions with respect to credi- Southland Paper Mills. Inc., 161 NLRB 1077, 1078 (1975). bility unless the clear preponderance of all of the relevant evidence con- I Under the terms of the plan, unit employees of the predecessor who vinces us that the resolutions are incorrect. Standard Dry Wall ProducKs worked at least 350 hours between January 1, 1979, and June 30, 1979, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have were qualified for benefits under the Fund from July 1. 1979, through carefully examined the record and find no basis for reversing his findings. December 31, 1979, regardless of whether Respondent made contribu- I Unless otherwise indicated, all dates hereinafter are 1979. tions. 259 NLRB No. 122 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turnbull Enterprises, Inc. and Sheet Metal Workers benefits after the expiration of the coverage pro- International Association, Local No. 11. Case vided by these retroactive contributions or, at Re- 15-CA-7489 spondent's discretion, by continuing contributions January 7, 1982 t o t he F u n d beyond December 12 in lieu of com- pensating employees for loss of benefits under the DECISION AND ORDER Fund; and to rescind the insurance plan in effect under its collective-bargaining agreement with the BY MEMBERS FANNING, JENKINS, AND Union and reinstate the New Orleans Sheet Metal ZIMMERMAN Workers Health and Welfare Fund plan for unit On December 18, 1980, Administrative Law employees upon written request by the Union. The Judge J. Pargen Robertson issued the attached De- Administrative Law Judge left to the compliance cision in this proceeding. Thereafter, Respondent stage the question whether Respondent must pay filed exceptions and a supporting brief,' the Charg- any additional amounts into the Health and Wel- ing Party filed cross-exceptions and a supporting fare Fund in order to satisfy the make-whole brief, and the General Counsel filed a brief in sup- remedy, but specifically provided that Respondent port of the Administrative Law Judge's Decision. be required to notify bargaining unit employees, as The Intervenor' also filed an answering brief to the well as former employees, qualifying for benefits exceptions. under this remedial scheme of their entitlement to Pursuant to the provisions of Section 3(b) of the such benefits. We agree with certain portions of National Labor Relations Act, as amended, the Na- the Administrative Law Judge's recommended tional Labor Relations Board has delegated its au- Order, but shall modify it in other respects to best thority in this proceeding to a three-member panel. effectuate an appropriate remedy under the existing The Board has considered the record and the at- circumstances. tached Decision in light of the exceptions and In cases, like the one here, involving a violation briefs and has decided to affirm the rulings, find- of Section 8(a)(5) based on a respondent's unilater- ings,3 and conclusions of the Administrative Law ally altering existing benefits, it is the Board's es- Judge and to adopt his recommended Order, which tablished policy to order restoration of the status is modified to reflect the amended remedy. quo ante to the extent feasible where there is no evidence that to do so would impose an undue or AMENDED REMEDY unfair burden on the respondent. 5 Because the The Administrative Law Judge found, and we Fund's health and welfare plan provided for 6 agree, that Respondent violated Section 8(a)(5) and months' future benefits on the basis of coverage (1) of the Act by unilaterally discontinuing pay- earned during the previous 6 months, and contribu- ment of contributions to the New Orleans Sheet tions had been made by Respondent's predecessor Metal Workers Health and Welfare Fund (herein- on the unit employees' behalf, the employees had after referred to as the Health and Welfare Fund or accrued 6 months of advance coverage at the time the Fund) on behalf of the unit employees. To that Respondent acceded to its successorship obli- remedy this violation, the Administrative Law gations and unilaterally discontinued payments to Judge recommended that Respondent be ordered, the Fund.' We find, therefore, that Respondent's inter alia, to make all Health and Welfare Fund unfair labor practice can be most appropriately re- contributions, as provided in the predecessor's col- medied by placing the parties in the position in lective-bargaining agreement, for the period begin- which they would have been but for Respondent's ning on July 10, 1979, and extending until agree- unlawful discontinuance of Fund contributions. ment on a contract encompassing a substitute insur- The remedy recommended by the Administrative ance plan was reached by the parties on December Law Judge generally accomplishes this remedial 12, 1979; 4 to make whole employees for loss of objective. Thus, we agree with his recommenda- tions regarding making employees whole for loss of I Respondent's request for oral argument is hereby denied inasmuch as benefits to the extent that costs which would have the record and briefs adequately state the positions of the parties. j, , .u und were not actually naid by 'The New Orleans Sheet Metal Workers Health and Welfare Fund ap- ben paid by te Fund Were nOt actually paid by peared at the hearing as the Intervenor. ' Respondent has excepted to certain credibility findings made by the See, for example. Allied Products Corp.. Richard Brothers Division, 218 Administrative Law Judge. It is the Board's established policy not to NLRB 1246 (1975), enfd. in relevant part 548 F.2d 644 (6th Cir. 1977); overrule an administrative law judge's resolutions with respect to credi- Southland Paper Mills. Inc., 161 NLRB 1077, 1078 (1975). bility unless the clear preponderance of all of the relevant evidence con- I Under the terms of the plan, unit employees of the predecessor who vinces us that the resolutions are incorrect. Standard Dry Wall ProducKs worked at least 350 hours between January 1, 1979, and June 30, 1979, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have were qualified for benefits under the Fund from July 1. 1979, through carefully examined the record and find no basis for reversing his findings. December 31, 1979, regardless of whether Respondent made contribu- I Unless otherwise indicated, all dates hereinafter are 1979. tions. 259 NLRB No. 122 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turnbull Enterprises, Inc. and Sheet Metal Workers benefits after the expiration of the coverage pro- International Association, Local No. 11. Case vided by these retroactive contributions or, at Re- 15-CA-7489 spondent's discretion, by continuing contributions January 7, 1982 t o t he F u n d beyond December 12 in lieu of com- pensating employees for loss of benefits under the DECISION AND ORDER Fund; and to rescind the insurance plan in effect under its collective-bargaining agreement with the BY MEMBERS FANNING, JENKINS, AND Union and reinstate the New Orleans Sheet Metal ZIMMERMAN Workers Health and Welfare Fund plan for unit On December 18, 1980, Administrative Law employees upon written request by the Union. The Judge J. Pargen Robertson issued the attached De- Administrative Law Judge left to the compliance cision in this proceeding. Thereafter, Respondent stage the question whether Respondent must pay filed exceptions and a supporting brief,' the Charg- any additional amounts into the Health and Wel- ing Party filed cross-exceptions and a supporting fare Fund in order to satisfy the make-whole brief, and the General Counsel filed a brief in sup- remedy, but specifically provided that Respondent port of the Administrative Law Judge's Decision. be required to notify bargaining unit employees, as The Intervenor' also filed an answering brief to the well as former employees, qualifying for benefits exceptions. under this remedial scheme of their entitlement to Pursuant to the provisions of Section 3(b) of the such benefits. We agree with certain portions of National Labor Relations Act, as amended, the Na- the Administrative Law Judge's recommended tional Labor Relations Board has delegated its au- Order, but shall modify it in other respects to best thority in this proceeding to a three-member panel. effectuate an appropriate remedy under the existing The Board has considered the record and the at- circumstances. tached Decision in light of the exceptions and In cases, like the one here, involving a violation briefs and has decided to affirm the rulings, find- of Section 8(a)(5) based on a respondent's unilater- ings,3 and conclusions of the Administrative Law ally altering existing benefits, it is the Board's es- Judge and to adopt his recommended Order, which tablished policy to order restoration of the status is modified to reflect the amended remedy. quo ante to the extent feasible where there is no evidence that to do so would impose an undue or AMENDED REMEDY unfair burden on the respondent. 5 Because the The Administrative Law Judge found, and we Fund's health and welfare plan provided for 6 agree, that Respondent violated Section 8(a)(5) and months' future benefits on the basis of coverage (1) of the Act by unilaterally discontinuing pay- earned during the previous 6 months, and contribu- ment of contributions to the New Orleans Sheet tions had been made by Respondent's predecessor Metal Workers Health and Welfare Fund (herein- on the unit employees' behalf, the employees had after referred to as the Health and Welfare Fund or accrued 6 months of advance coverage at the time the Fund) on behalf of the unit employees. To that Respondent acceded to its successorship obli- remedy this violation, the Administrative Law gations and unilaterally discontinued payments to Judge recommended that Respondent be ordered, the Fund.' We find, therefore, that Respondent's inter alia, to make all Health and Welfare Fund unfair labor practice can be most appropriately re- contributions, as provided in the predecessor's col- medied by placing the parties in the position in lective-bargaining agreement, for the period begin- which they would have been but for Respondent's ning on July 10, 1979, and extending until agree- unlawful discontinuance of Fund contributions. ment on a contract encompassing a substitute insur- The remedy recommended by the Administrative ance plan was reached by the parties on December Law Judge generally accomplishes this remedial 12, 1979; 4 to make whole employees for loss of objective. Thus, we agree with his recommenda- tions regarding making employees whole for loss of I Respondent's request for oral argument is hereby denied inasmuch as benefits to the extent that costs which would have the record and briefs adequately state the positions of the parties. j, , .u und were not actually naid by 'The New Orleans Sheet Metal Workers Health and Welfare Fund ap- ben paid by te Fund Were nOt actually paid by peared at the hearing as the Intervenor. ' Respondent has excepted to certain credibility findings made by the See, for example. Allied Products Corp.. Richard Brothers Division, 218 Administrative Law Judge. It is the Board's established policy not to NLRB 1246 (1975), enfd. in relevant part 548 F.2d 644 (6th Cir. 1977); overrule an administrative law judge's resolutions with respect to credi- Southland Paper Mills. Inc., 161 NLRB 1077, 1078 (1975). bility unless the clear preponderance of all of the relevant evidence con- I Under the terms of the plan, unit employees of the predecessor who vinces us that the resolutions are incorrect. Standard Dry Wall ProducKs worked at least 350 hours between January 1, 1979, and June 30, 1979, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have were qualified for benefits under the Fund from July 1. 1979, through carefully examined the record and find no basis for reversing his findings. December 31, 1979, regardless of whether Respondent made contribu- I Unless otherwise indicated, all dates hereinafter are 1979. tions. 259 NLRB No. 122 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turnbull Enterprises, Inc. and Sheet Metal Workers benefits after the expiration of the coverage pro- International Association, Local No. 11. Case vided by these retroactive contributions or, at Re- 15-CA-7489 spondent's discretion, by continuing contributions January 7, 1982 t o t he F u n d beyond December 12 in lieu of com- pensating employees for loss of benefits under the DECISION AND ORDER Fund; and to rescind the insurance plan in effect under its collective-bargaining agreement with the BY MEMBERS FANNING, JENKINS, AND Union and reinstate the New Orleans Sheet Metal ZIMMERMAN Workers Health and Welfare Fund plan for unit On December 18, 1980, Administrative Law employees upon written request by the Union. The Judge J. Pargen Robertson issued the attached De- Administrative Law Judge left to the compliance cision in this proceeding. Thereafter, Respondent stage the question whether Respondent must pay filed exceptions and a supporting brief,' the Charg- any additional amounts into the Health and Wel- ing Party filed cross-exceptions and a supporting fare Fund in order to satisfy the make-whole brief, and the General Counsel filed a brief in sup- remedy, but specifically provided that Respondent port of the Administrative Law Judge's Decision. be required to notify bargaining unit employees, as The Intervenor' also filed an answering brief to the well as former employees, qualifying for benefits exceptions. under this remedial scheme of their entitlement to Pursuant to the provisions of Section 3(b) of the such benefits. We agree with certain portions of National Labor Relations Act, as amended, the Na- the Administrative Law Judge's recommended tional Labor Relations Board has delegated its au- Order, but shall modify it in other respects to best thority in this proceeding to a three-member panel. effectuate an appropriate remedy under the existing The Board has considered the record and the at- circumstances. tached Decision in light of the exceptions and In cases, like the one here, involving a violation briefs and has decided to affirm the rulings, find- of Section 8(a)(5) based on a respondent's unilater- ings,3 and conclusions of the Administrative Law ally altering existing benefits, it is the Board's es- Judge and to adopt his recommended Order, which tablished policy to order restoration of the status is modified to reflect the amended remedy. quo ante to the extent feasible where there is no evidence that to do so would impose an undue or AMENDED REMEDY unfair burden on the respondent. 5 Because the The Administrative Law Judge found, and we Fund's health and welfare plan provided for 6 agree, that Respondent violated Section 8(a)(5) and months' future benefits on the basis of coverage (1) of the Act by unilaterally discontinuing pay- earned during the previous 6 months, and contribu- ment of contributions to the New Orleans Sheet tions had been made by Respondent's predecessor Metal Workers Health and Welfare Fund (herein- on the unit employees' behalf, the employees had after referred to as the Health and Welfare Fund or accrued 6 months of advance coverage at the time the Fund) on behalf of the unit employees. To that Respondent acceded to its successorship obli- remedy this violation, the Administrative Law gations and unilaterally discontinued payments to Judge recommended that Respondent be ordered, the Fund.' We find, therefore, that Respondent's inter alia, to make all Health and Welfare Fund unfair labor practice can be most appropriately re- contributions, as provided in the predecessor's col- medied by placing the parties in the position in lective-bargaining agreement, for the period begin- which they would have been but for Respondent's ning on July 10, 1979, and extending until agree- unlawful discontinuance of Fund contributions. ment on a contract encompassing a substitute insur- The remedy recommended by the Administrative ance plan was reached by the parties on December Law Judge generally accomplishes this remedial 12, 1979; 4 to make whole employees for loss of objective. Thus, we agree with his recommenda- tions regarding making employees whole for loss of I Respondent's request for oral argument is hereby denied inasmuch as benefits to the extent that costs which would have the record and briefs adequately state the positions of the parties. j, , .u und were not actually naid by 'The New Orleans Sheet Metal Workers Health and Welfare Fund ap- ben paid by te Fund Were nOt actually paid by peared at the hearing as the Intervenor. ' Respondent has excepted to certain credibility findings made by the See, for example. Allied Products Corp.. Richard Brothers Division, 218 Administrative Law Judge. It is the Board's established policy not to NLRB 1246 (1975), enfd. in relevant part 548 F.2d 644 (6th Cir. 1977); overrule an administrative law judge's resolutions with respect to credi- Southland Paper Mills. Inc., 161 NLRB 1077, 1078 (1975). bility unless the clear preponderance of all of the relevant evidence con- I Under the terms of the plan, unit employees of the predecessor who vinces us that the resolutions are incorrect. Standard Dry Wall ProducKs worked at least 350 hours between January 1, 1979, and June 30, 1979, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have were qualified for benefits under the Fund from July 1. 1979, through carefully examined the record and find no basis for reversing his findings. December 31, 1979, regardless of whether Respondent made contribu- I Unless otherwise indicated, all dates hereinafter are 1979. tions. 259 NLRB No. 122 TURNBULL ENTERPRISES, INC. 935 the insurer under the contract, notification to all contributions would impose an undue burden on qualifying employees and former employees of Respondent. Further, such payments would consti- their entitlement to such amounts, and reinstate- tute a windfall to the Health and Welfare Fund in- ment of the Health and Welfare Fund upon the asmuch as the insurer under the parties' collective- Union's written request. We find, however, that the bargaining agreement has presumably already paid Union is most efficaciously restored to the bargain- a substantial portion of the benefits to which em- ing position which it would have enjoyed but for ployees would be entitled during this period. Respondent's discontinuation of Fund contribu- We shall, however, order Respondent to com- tions, not by requiring that Fund contributions be pensate the Fund for administration costs and other made for the period beginning July 10, 1979, and made for the pe eod mbergning July 10, 1979, and- expenses and loss of interest incurred by the Fund extending until December 12, 1979, as recommend- Admiist v Lw J , bt as a result of its acceptance of retroactive pay- ed by the Administrative Law Judge, but rather by ed by the Administrative Law Judge, but ratherby ments. Like the Administrative Law Judge, we the payment of retroactive contributions which m en ts h L k e the A d emin s t ativ e L a w Judge, w e will purchase 6 months of future coverage for the f urther compliance proceedings, should the Union employees commencing from the day following re- further compliance proceedings, should the Union employees commencing from the day following re- ceipt of the Union's request that the Health and request reinstatement of the Fund. Clerks and Welfare Fund plan be reinstituted. 7 Respondent Checkers Local No. 1593, International Longshore- will then be required to continue payment of the men's Association, AFL-CIO (Caldwell Shipping currently applicable contribution rate of the New Company, et at), 243 NLRB 8 (1979). 9 Orleans Sheet Metal Workers Health and Welfare Irrespective of whether the Union requests rein- Fund sufficient to provide continuing coverage for statement of the Health and Welfare Fund plan, we the unit employees until it fulfills its bargaining ob- shall adopt the Administrative Law Judge's recom- ligation. mendation that specific unit employees who suf- In order to allow the Union an opportunity to fered actual damage in loss of benefits be made consider whether to request the reinstatement of whole by recovering those damages. In measuring the Health and Welfare Fund, while not leaving actual damages, employees should be reimbursed the matter open indefinitely, the Union shall be re- for actual cost to the extent those costs would have quired to request reinstatement within 20 days of been paid by the Fund minus costs which were ac- the date of our Order herein, and if the Union does tually paid by Respondent's insurer. However, we not request such reinstatement then the insurance do not adopt those aspects of the Administrative plan in effect under the parties' current collective- aw Judge's recommended make-whole provision bargaining agreement shall remain in effect. Once which permit Respondent to elect to make contri- all unit employees employed by Respondent on the butions to the Health and Welfare Fund in lieu of effective date of the reinstatement of coverage under the Health and Welfare Fund are covered by compensating employess for loss of benefits under that plan, Respondent may discontinue the pay- the Fund. Rather, we shall require that employees that plan, Respondent may discontinue the pay- be made whole for loss of benefits after December ment of premiums on their behalf to the insurer be made whole for loss of benefits aer December providing coverage under the parties' collective- 31, 1979, the point at which their Health and Wel- bargaining agreement.8 fare Fund coverage ceased, and continuing to the In agreement with the Administrative Law date upon which Respondent fully complies with Judge, we are not requiring Respondent to pay the terms of our Order. The amounts due shall be double insurance premiums by making all Health computed in accordance with Ogle Protection Serv- and Welfare Fund contributions for the entire ice, Inc., 183 NLRB 682 (1970). See, generally, Isis period since July 10, 1979. Requiring full Fund Plumbing & Heating Co., 138 NLRB 716 (1962). Further, since this remedy has the effect of quali- 7 Since the Respondent made no payments for its unit em ee fying all persons employees' in-d in the bargaining unit surance coverage from July 10 to December 12, erroneously assuming that it had a "six-month free ride," these amounts represent a substitution for contributions which should have been made at that time.' Because the provisions of employee benefit fund agreements are vari- ' In order to establish initial eligibility for Fund benefits, an employee able and complex, the Board does not provide for interest at a fixed rate must work 6 consecutive months with 700 hours of contributions to the on fund payments due as part of a "make-whole" remedy. We therefore Fund. Once the initial eligibility requirement is satisfied, employees who leave to further proceedings the question of how much interest Respond- have 350 hours of contributions in each 6-month period remain eligible ent must pay into the benefit fund in order to satisfy our "make-whole" for benefits. Should any employee have been hired shortly prior to the remedy. These additional amounts may be determined, depending upon date Fund coverage becomes effective pursuant to this remedy, such indi- the circumstances of each case, by reference to provisions in the docu- viduals might not qualify for Fund benefits until up to 6 months later. ments governing the fund at issue and, where there are no governing pro- Therefore, to avoid the possibility of individuals hired under the current visions, to evidence of any loss directly attributable to the unlawful collective-bargaining agreement being left with no insurance coverage action, which might include the loss of return on investment of the por- during this interim period, we shall require Respondent to continue to tion of funds withheld, additional administrative costs, etc., but not col- make premium payments on such individuals' behalf until such time as lateral losses. See Merryweather Optical Company. 240 NLRB 1213, fn. 7 each qualifies for coverage under the Fund plan. (1979). TURNBULL ENTERPRISES, INC. 935 the insurer under the contract, notification to all contributions would impose an undue burden on qualifying employees and former employees of Respondent. Further, such payments would consti- their entitlement to such amounts, and reinstate- tute a windfall to the Health and Welfare Fund in- ment of the Health and Welfare Fund upon the asmuch as the insurer under the parties' collective- Union's written request. We find, however, that the bargaining agreement has presumably already paid Union is most efficaciously restored to the bargain- a substantial portion of the benefits to which em- ing position which it would have enjoyed but for ployees would be entitled during this period. Respondent's discontinuation of Fund contribu- We shall, however, order Respondent to com- tions, not by requiring that Fund contributions be pensate the Fund for administration costs and other made for the period beginning July 10, 1979, and , , p madeforthe erid beinnng Jly 0, 179,and expenses and loss of interest incurred by the Fund extending until December 12, 1979, as recommend- a acceptance of retroactive pay- ed by the Administrative Law Judge, but rather by .Lk t A L Jde we the payment of retroactive contributions which m en ts; L l k e t h e Adm'^itrative L a w Judge. w e the aymet ofretoactve cntrbutins wich shall leave the determination of these amounts to will purchase 6 months of future coverage for the f h er c l e pet e edin gs, of the unio employees commencing from the day following re- furt h er compliance proceedings, should the Union ceipt of the Union's request that the Health and request reinstatement of the Fund. Clerks and Welfare Fund plan be reinstituted. 7 Respondent Checkers Local No. 1593. International Longshore- will then be required to continue payment of the m en 's Association, AFL-CIO (Caldwell Shipping currently applicable contribution rate of the New Company, et al.), 243 NLRB 8 (1979). 9 Orleans Sheet Metal Workers Health and Welfare Irrespective of whether the Union requests rein- Fund sufficient to provide continuing coverage for statement of the Health and Welfare Fund plan, we the unit employees until it fulfills its bargaining ob- shall adopt the Administrative Law Judge's recom- ligation. mendation that specific unit employees who suf- In order to allow the Union an opportunity to fered actual damage in loss of benefits be made consider whether to request the reinstatement of whole by recovering those damages. In measuring the Health and Welfare Fund, while not leaving actual damages, employees should be reimbursed the matter open indefinitely, the Union shall be re- for actual cost to the extent those costs would have quired to request reinstatement within 20 days of been paid by the Fund minus costs which were ac- the date of our Order herein, and if the Union does tually paid by Respondent's insurer. However, we not request such reinstatement then the insurance do not adopt those aspects of the Administrative plan in effect under the parties' current collective- Law Judge's recommended make-whole provision bargaining agreement shall remain in effect. Once which permit Respondent to elect to make contri- all unit employees employed by Respondent on the butions to the Health and Welfare Fund in lieu of effective date of the reinstatement of coverage c -f l o b f u unde th Heath nd elfae Fnd re cverd b compensating employess for loss of benefits under under the Health and Welfare Fund are covered by thFudRaerweslleqiehtem oys that plan, Respondent may discontinue the pay- t h e F u n d. R a t h e r, w e shall require that employees thatplan Resondnt my diconinuethe ay- be made whole for loss of benefits after December ment of premiums on their behalf to the insurer providing coverage under the parties' collective- 3 1, 1979, th e point at w h ic h their Health and Wel- bargaining agreement. fare F u nd coverage ceased, and continuing to the In agreement with the Administrative Law date upon which Respondent fully complies with Judge, we are not requiring Respondent to pay the terms of our Order. The amounts due shall be double insurance premiums by making all Health computed in accordance with Ogle Protection Serv- and Welfare Fund contributions for the entire ice, Inc., 183 NLRB 682 (1970). See, generally, Isis period since July 10, 1979. Requiring full Fund Plumbing & Heating Co., 138 NLRB 716 (1962). Further, since this remedy has the effect of quali- I Since the Respondent made no payments for its unit employees' in- fying all persons employed in the bargaining unit surance coverage from July 10 to December 12, erroneously assuming that it had a "six-month free ride," these amounts represent a substitution for contributions which should have been made at that time.' Because the provisions of employee benefit fund agreements are vari- * In order to establish initial eligibility for Fund benefits, an employee able and complex, the Board does not provide for interest at a fixed rate must work 6 consecutive months with 700 hours of contributions to the on fund payments due as pat of a "make-whole" remedy. We therefore Fund. Once the initial eligibility requirement is satisfied, employees who leave to further proceedings the question of how much interest Respond- have 350 hours of contributions in each 6-month period remain eligible ent must pay into the benefit fund in order to satisfy our "make-whole" for benefits. Should any employee have been hired shortly prior to the remedy. These additional amounts may be determined, depending upon date Fund coverage becomes effective pursuant to this remedy, such indi- the circumstances of each case, by reference to provisions in the docu- viduals might not qualify for Fund benefits until up to 6 months later. ments governing the fund at issue and, where there are no governing pro- Therefore, to avoid the possibility of individuals hired under the current visions, to evidence of any loss directly attributable to the unlawful collective-bargaining agreement being left with no insurance coverage action, which might include the loss of return on investment of the por- during this interim period, we shall require Respondent to continue to lion of funds withheld, additional administrative costs, etc., but not col- make premium payments on such individuals' behalf until such time as lateral losses. See Merrywyather Optical Company. 240 NLRB 1213, fn. 7 each qualifies for coverage under the Fund plan. (1979). TURNBULL ENTERPRISES, INC. 935 the insurer under the contract, notification to all contributions would impose an undue burden on qualifying employees and former employees of Respondent. Further, such payments would consti- their entitlement to such amounts, and reinstate- tute a windfall to the Health and Welfare Fund in- ment of the Health and Welfare Fund upon the asmuch as the insurer under the parties' collective- Union's written request. We find, however, that the bargaining agreement has presumably already paid Union is most efficaciously restored to the bargain- a substantial portion of the benefits to which em- ing position which it would have enjoyed but for ployees would be entitled during this period. Respondent's discontinuation of Fund contribu- We shall, however, order Respondent to com- tions, not by requiring that Fund contributions be pensate the Fund for administration costs and other made for the period beginning July 10, 1979, and , , p madeforthe erid beinnng Jly 0, 179,and expenses and loss of interest incurred by the Fund extending until December 12, 1979, as recommend- a acceptance of retroactive pay- ed by the Administrative Law Judge, but rather by .Lk t A L Jde we the payment of retroactive contributions which m en ts; L l k e t h e Adm'nistrative Law Judge, we the aymet ofretoactve cntrbutins wich shall leave the determination of these amounts to will purchase 6 months of future coverage for the f h er c l edet e edin gs, of the unio employees commencing from the day following re- furt h er compliance proceedings, should the Union ceipt of the Union's request that the Health and request reinstatement of the Fund. Clerks and Welfare Fund plan be reinstituted. 7 Respondent Checkers Local No. 1593. International Longshore- will then be required to continue payment of the m en 's Association, AFL-CIO (Caldwell Shipping currently applicable contribution rate of the New Company, et al.), 243 NLRB 8 (1979). 9 Orleans Sheet Metal Workers Health and Welfare Irrespective of whether the Union requests rein- Fund sufficient to provide continuing coverage for statement of the Health and Welfare Fund plan, we the unit employees until it fulfills its bargaining ob- shall adopt the Administrative Law Judge's recom- ligation. mendation that specific unit employees who suf- In order to allow the Union an opportunity to fered actual damage in loss of benefits be made consider whether to request the reinstatement of whole by recovering those damages. In measuring the Health and Welfare Fund, while not leaving actual damages, employees should be reimbursed the matter open indefinitely, the Union shall be re- for actual cost to the extent those costs would have quired to request reinstatement within 20 days of been paid by the Fund minus costs which were ac- the date of our Order herein, and if the Union does tually paid by Respondent's insurer. However, we not request such reinstatement then the insurance do not adopt those aspects of the Administrative plan in effect under the parties' current collective- Law Judge's recommended make-whole provision bargaining agreement shall remain in effect. Once which permit Respondent to elect to make contri- all unit employees employed by Respondent on the butions to the Health and Welfare Fund in lieu of effective date of the reinstatement of coverage c -f l o b f u unde th Heath nd elfae Fnd re cverd b compensating employess for loss of benefits under under the Health and Welfare Fund are covered by thFudRaerweslleqiehtem oys that plan, Respondent may discontinue the pay- t h e F u ndl - R a t h e r, w e shall require that employees thatplan Resondnt my diconinuethe ay- be made whole for loss of benefits after December ment of premiums on their behalf to the insurer providing coverage under the parties' collective- 3 1, 1979, th e point at w h ic h their Health and Wel- bargaining agreement. fare F u nd coverage ceased, and continuing to the In agreement with the Administrative Law date upon which Respondent fully complies with Judge, we are not requiring Respondent to pay the terms of our Order. The amounts due shall be double insurance premiums by making all Health computed in accordance with Ogle Protection Serv- and Welfare Fund contributions for the entire ice, Inc., 183 NLRB 682 (1970). See, generally, Isis period since July 10, 1979. Requiring full Fund Plumbing & Heating Co., 138 NLRB 716 (1962). Further, since this remedy has the effect of quali- I Since the Respondent made no payments for its unit employees' in- fying all persons employed in the bargaining unit surance coverage from July 10 to December 12, erroneously assuming that it had a "six-month free ride," these amounts represent a substitution for contributions which should have been made at that time.' Because the provisions of employee benefit fund agreements are vari- * In order to establish initial eligibility for Fund benefits, an employee able and complex, the Board does not provide for interest at a fixed rate must work 6 consecutive months with 700 hours of contributions to the on fund payments due as pat of a "make-whole" remedy. We therefore Fund. Once the initial eligibility requirement is satisfied, employees who leave to further proceedings the question of how much interest Respond- have 350 hours of contributions in each 6-month period remain eligible ent must pay into the benefit fund in order to satisfy our "make-whole" for benefits. Should any employee have been hired shortly prior to the remedy. These additional amounts may be determined, depending upon date Fund coverage becomes effective pursuant to this remedy, such indi- the circumstances of each case, by reference to provisions in the docu- viduals might not qualify for Fund benefits until up to 6 months later. ments governing the fund at issue and, where there are no governing pro- Therefore, to avoid the possibility of individuals hired under the current visions, to evidence of any loss directly attributable to the unlawful collective-bargaining agreement being left with no insurance coverage action, which might include the loss of return on investment of the por- during this interim period, we shall require Respondent to continue to lion of funds withheld, additional administrative costs, etc., but not col- make premium payments on such individuals' behalf until such time as lateral losses. See Merrywyather Optical Company. 240 NLRB 1213, fn. 7 each qualifies for coverage under the Fund plan. (1979). TURNBULL ENTERPRISES, INC. 935 the insurer under the contract, notification to all contributions would impose an undue burden on qualifying employees and former employees of Respondent. Further, such payments would consti- their entitlement to such amounts, and reinstate- tute a windfall to the Health and Welfare Fund in- ment of the Health and Welfare Fund upon the asmuch as the insurer under the parties' collective- Union's written request. We find, however, that the bargaining agreement has presumably already paid Union is most efficaciously restored to the bargain- a substantial portion of the benefits to which em- ing position which it would have enjoyed but for ployees would be entitled during this period. Respondent's discontinuation of Fund contribu- We shall, however, order Respondent to com- tions, not by requiring that Fund contributions be pensate the Fund for administration costs and other made for the period beginning July 10, 1979, and , , p madeforthe erid beinnng Jly 0, 179,and expenses and loss of interest incurred by the Fund extending until December 12, 1979, as recommend- a acceptance of retroactive pay- ed by the Administrative Law Judge, but rather by .Lk t A L Jde we the payment of retroactive contributions which m en ts; L l k e t h e Adm'nistrative Law Judge, we the aymet ofretoactve cntrbutins wich shall leave the determination of these amounts to will purchase 6 months of future coverage for the f h er c l edet e edin gs, of the unio employees commencing from the day following re- furt h er compliance proceedings, should the Union ceipt of the Union's request that the Health and request reinstatement of the Fund. Clerks and Welfare Fund plan be reinstituted. 7 Respondent Checkers Local No. 1593. International Longshore- will then be required to continue payment of the m en 's Association, AFL-CIO (Caldwell Shipping currently applicable contribution rate of the New Company, et al.), 243 NLRB 8 (1979). 9 Orleans Sheet Metal Workers Health and Welfare Irrespective of whether the Union requests rein- Fund sufficient to provide continuing coverage for statement of the Health and Welfare Fund plan, we the unit employees until it fulfills its bargaining ob- shall adopt the Administrative Law Judge's recom- ligation. mendation that specific unit employees who suf- In order to allow the Union an opportunity to fered actual damage in loss of benefits be made consider whether to request the reinstatement of whole by recovering those damages. In measuring the Health and Welfare Fund, while not leaving actual damages, employees should be reimbursed the matter open indefinitely, the Union shall be re- for actual cost to the extent those costs would have quired to request reinstatement within 20 days of been paid by the Fund minus costs which were ac- the date of our Order herein, and if the Union does tually paid by Respondent's insurer. However, we not request such reinstatement then the insurance do not adopt those aspects of the Administrative plan in effect under the parties' current collective- Law Judge's recommended make-whole provision bargaining agreement shall remain in effect. Once which permit Respondent to elect to make contri- all unit employees employed by Respondent on the butions to the Health and Welfare Fund in lieu of effective date of the reinstatement of coverage c -f l o b f u unde th Heath nd elfae Fnd re cverd b compensating employess for loss of benefits under under the Health and Welfare Fund are covered by thFudRaerweslleqiehtem oys that plan, Respondent may discontinue the pay- t h e F u ndl - R a t h e r, w e shall require that employees thatplan Resondnt my diconinuethe ay- be made whole for loss of benefits after December ment of premiums on their behalf to the insurer providing coverage under the parties' collective- 3 1, 1979, th e point at w h ic h their Health and Wel- bargaining agreement. fare F u nd coverage ceased, and continuing to the In agreement with the Administrative Law date upon which Respondent fully complies with Judge, we are not requiring Respondent to pay the terms of our Order. The amounts due shall be double insurance premiums by making all Health computed in accordance with Ogle Protection Serv- and Welfare Fund contributions for the entire ice, Inc., 183 NLRB 682 (1970). See, generally, Isis period since July 10, 1979. Requiring full Fund Plumbing & Heating Co., 138 NLRB 716 (1962). Further, since this remedy has the effect of quali- I Since the Respondent made no payments for its unit employees' in- fying all persons employed in the bargaining unit surance coverage from July 10 to December 12, erroneously assuming that it had a "six-month free ride," these amounts represent a substitution for contributions which should have been made at that time.' Because the provisions of employee benefit fund agreements are vari- * In order to establish initial eligibility for Fund benefits, an employee able and complex, the Board does not provide for interest at a fixed rate must work 6 consecutive months with 700 hours of contributions to the on fund payments due as pat of a "make-whole" remedy. We therefore Fund. Once the initial eligibility requirement is satisfied, employees who leave to further proceedings the question of how much interest Respond- have 350 hours of contributions in each 6-month period remain eligible ent must pay into the benefit fund in order to satisfy our "make-whole" for benefits. Should any employee have been hired shortly prior to the remedy. These additional amounts may be determined, depending upon date Fund coverage becomes effective pursuant to this remedy, such indi- the circumstances of each case, by reference to provisions in the docu- viduals might not qualify for Fund benefits until up to 6 months later. ments governing the fund at issue and, where there are no governing pro- Therefore, to avoid the possibility of individuals hired under the current visions, to evidence of any loss directly attributable to the unlawful collective-bargaining agreement being left with no insurance coverage action, which might include the loss of return on investment of the por- during this interim period, we shall require Respondent to continue to lion of funds withheld, additional administrative costs, etc., but not col- make premium payments on such individuals' behalf until such time as lateral losses. See Merrywyather Optical Company. 240 NLRB 1213, fn. 7 each qualifies for coverage under the Fund plan. (1979). 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after July 10, 1979,10 for benefits under the Health spondent negotiates in good faith with the Union and Welfare Fund, we, in accordance with the rec- to a new agreement or impasse." ommendation of the Administrative Law Judge, 2. Insert the following as paragraph 2(c): shall require that Respondent take appropriate "(c) Notify, in writing, all persons employed in action to notify, in writing, all employees and the bargaining unit after July 10, 1979, of their en- former employees that so qualified of their entitle- titlement to damages for loss of benefits." ment to those benefits. 3. Substitute the attached notice for that of the The above-described remedial provisions, in our Administrative Law Judge. view, best eradicate the effects of Respondent's un- lawful conduct by making whole employees forAPPENDIX their resulting losses, and best restore the status quo NOTICE To EMPLOYEES ante by placing the Union in the bargaining posi- POSTED BY ORDER OF THE tion which would have obtained but for Respond- NATIONAL LABOR RELATIONS BOARD ent's unlawful action, without imposing an undue An Agency of the United States Government or unfair burden upon Respondent." We shall modify the Administrative Law Judge's recom- WE WILL NOT, without prior consultation mended Order accordingly. and bargaining with the Union, effect any ORDER changes in established terms and conditions of employment of the employees in the appropri- Pursuant to Section 10(c) of the National Labor ate unit described below by unilaterally dis- Relations Act, as amended, the National Labor Re- continuing payments to the Health and Wel- lations Board adopts as its Order the recommended fare Fund as set forth in the collective-bargain- Order of the Administrative Law Judge, as modi- ing agreement between our predecessor and fled below, and hereby orders that the Respondent, the Union. Turnbull Enterprises, Inc., Gulfport, Mississippi, its production and maintenance employees, officers, agents, successors, and assigns, shall takeincluding leadpersons, electrician, janitor, the action set forth in the said recommended inclng leamployees, tool room clerk, plant clerical employees, tool room clerk, Order, as so modified: warehouse employees and wood fabrication 1. Substitute the following paragraphs for para- employees, employed by the Employer at its graphs 2(a) and (b): Gulfport, Mississippi facility; excluding "(a) Make whole the employees in the appropri- office clerical employees, draftsmen, com- ate unit in the manner set forth in the section of the puter operators, guards and supervisors as Board's Decision and Order entitled 'Amended defined in the Act. Remedy.' "(b) Upon written request from the Union, and WE WILL NOT in any like or related manner in the manner set forth in the section of the interfere with, restrain, or coerce our employ- Board's Decision and Order entitled 'Amended ees in the exercise of rights guaranteed them Remedy,' rescind the current insurance plan under by the Act. its collective-bargaining agreement with the Union, WE WILL make employees in the above-de- and immediately reestablish the plan under the scribed bargaining unit whole for losses suf- New Orleans Sheet Metal Workers Health and fered because of our unlawful action in with- Welfare Fund by making retroactive contributions holding contributions on their behalf to the on behalf of unit employees entitling them to 6 New Orleans Sheet Metal Workers Health and months of future coverage commencing from the Welfare Fund. day following receipt of the Union's request, and WE WILL, upon written request from Sheet continue such payments until such time as Re- Metal Workers International Association, Local No. 11, rescind the insurance plan in '° Although employees qualify by working at least 350 hours during effect under our collective-bargaining agree- each preceding 6-month period, the plan provides a means whereby em- ment with that Union, and will immediately ployees may be qualified even though they did not work the full 350 hours. Therefore, all employees and former employees should receive the reestablish the plan under the New Orleans above-mentioned notice. Former employees qualifying for benefits under Sheet Metal Workers Health and Welfare the Fund may, of course, be entitled to damages for losses incurred as Fund by making retroactive contributions enti- much as 6 months after termination of their employment with Respond- ent, as the Fund plan provides for future coverage regardless of whether tling unit employees to 6 months of future the individual remains employed by the contributing employer on the coverage commencing from the day following basis of contributions made during his employment. " We agree with the Administrative Law Judge that this is not an ap- receipt of the Union's request, and will contin- propriate case for the granting of attorney's fees or litigation expenses. ue making such payments until we either bar- 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after July 10, 1979, 10 for benefits under the Health spondent negotiates in good faith with the Union and Welfare Fund, we, in accordance with the rec- to a new agreement or impasse." ommendation of the Administrative Law Judge, 2. Insert the following as paragraph 2(c): shall require that Respondent take appropriate "(c) Notify, in writing, all persons employed in action to notify, in writing, all employees and the bargaining unit after July 10, 1979, of their en- former employees that so qualified of their entitle- titlement to damages for loss of benefits." ment to those benefits. 3. Substitute the attached notice for that of the The above-described remedial provisions, in our Administrative Law Judge. view, best eradicate the effects of Respondent's un- lawful conduct by making whole employees forAPPENDIX their resulting losses, and best restore the status quo NOTICE To EMPLOYEES ante by placing the Union in the bargaining posi- POSTED BY ORDER OF THE tion which would have obtained but for Respond- NATIONAL LABOR RELATIONS BOARD ent's unlawful action, without imposing an undue An Agency of the United States Government or unfair burden upon Respondent." We shall modify the Administrative Law Judge's recom- WE WILL NOT, without prior consultation mended Order accordingly,.and bargaining with the Union, effect any ORDER changes in established terms and conditions of employment of the employees in the appropri- Pursuant to Section 10(c) of the National Labor ate unit described below by unilaterally dis- Relations Act, as amended, the National Labor Re- continuing payments to the Health and Wel- lations Board adopts as its Order the recommended fare Fund as set forth in the collective-bargain- Order of the Administrative Law Judge, as modi- ing agreement between our predecessor and fied below, and hereby orders that the Respondent, the Union. Turnbull Enterprises, Inc., Gulfport, Mississippi, itsA production and maintenance employees, officers, agents, successors, and assigns, shall takeincluding leadpersons, electrician, janitor, the action set forth in the said recommended plant clerical employees, tool room clerk, Order, as so modified: warehouse employees and wood fabrication 1. Substitute the following paragraphs for para- employees, employed by the Employer at its graphs 2(a) and (b): Gulfport, Mississippi facility; excluding "(a) Make whole the employees in the appropri- office clerical employees, draftsmen, com- ate unit in the manner set forth in the section of the puter operators, guards and supervisors as Board's Decision and Order entitled 'Amended defined in the Act. Remedy.' "(b) Upon written request from the Union, and W E W I L L N OT in any like o r related manner in the manner set forth in the section of the interfere with, restrain, or coerce our employ- Board's Decision and Order entitled 'Amended ees in the exercise of rights guaranteed them Remedy,' rescind the current insurance plan under by the A c t . its collective-bargaining agreement with the Union, W E W ILL make employees in the above-de- and immediately reestablish the plan under the sc rib e d bargaining unit whole for losses suf- New Orleans Sheet Metal Workers Health and fered because of our unlawful action in with- Welfare Fund by making retroactive contributions holding contributions on their behalf to the on behalf of unit employees entitling them to 6 New Orleans Sheet Metal Workers Health and months of future coverage commencing from the Welfare Fund. day following receipt of the Union's request, and W E W ILL, upon written request from Sheet continue such payments until such time as Re- M e ta l Workers International Association, Local No. 11, rescind the insurance plan in ' Although employees qualify by working at least 350 hours during effect under Our Collective-bargaining agree- each preceding 6-month period, the plan provides a means whereby em- ment with that Union, and will immediately ployees may be qualified even though they did not work the full 350retbihth lnudrth e ren hours. Therefore, all employees and former employees should receive theOrleans above-mentioned notice. Former employees qualifying for benefits under Sheet Metal Workers Health and Welfare the Fund may, of course, be entitled to damages for losses incurred as Fund by making retroactive Contributions enti- much as 6 months after termination of their employment with Respond- ent, as the Fund plan provides for future coverage regardless of whether ding unit employees to 6 months of future the individual remains employed by the contributing employer on the coverage Commencing from the day following basis of contributions made during his employment.rpcpi nf the Tninn'< rpniist and will cnntin- " We agree with the Administrative Law Judge that this is not an ap-receipt of te Union's request, and Will contin propriate case for the granting of attorney's fees or litigation expenses. ue making such payments Until we either bar- 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after July 10, 1979, 10 for benefits under the Health spondent negotiates in good faith with the Union and Welfare Fund, we, in accordance with the rec- to a new agreement or impasse." ommendation of the Administrative Law Judge, 2. Insert the following as paragraph 2(c): shall require that Respondent take appropriate "(c) Notify, in writing, all persons employed in action to notify, in writing, all employees and the bargaining unit after July 10, 1979, of their en- former employees that so qualified of their entitle- titlement to damages for loss of benefits." ment to those benefits. 3. Substitute the attached notice for that of the The above-described remedial provisions, in our Administrative Law Judge. view, best eradicate the effects of Respondent's un- lawful conduct by making whole employees forAPPENDIX their resulting losses, and best restore the status quo NOTICE To EMPLOYEES ante by placing the Union in the bargaining posi- POSTED BY ORDER OF THE tion which would have obtained but for Respond- NATIONAL LABOR RELATIONS BOARD ent's unlawful action, without imposing an undue An Agency of the United States Government or unfair burden upon Respondent." We shall modify the Administrative Law Judge's recom- WE WILL NOT, without prior consultation mended Order accordingly. and bargaining with the Union, effect any ORDER changes in established terms and conditions of employment of the employees in the appropri- Pursuant to Section 10(c) of the National Labor ate unit described below by unilaterally dis- Relations Act, as amended, the National Labor Re- continuing payments to the Health and Wel- lations Board adopts as its Order the recommended fare Fund as set forth in the collective-bargain- Order of the Administrative Law Judge, as modi- ing agreement between our predecessor and fied below, and hereby orders that the Respondent, the Union. Turnbull Enterprises, Inc., Gulfport, Mississippi, itsA production and maintenance employees, officers, agents, successors, and assigns, shall takeincluding leadpersons, electrician, janitor, the action set forth in the said recommended plant clerical employees, tool room clerk, Order, as so modified: warehouse employees and wood fabrication 1. Substitute the following paragraphs for para- employees, employed by the Employer at its graphs 2(a) and (b): Gulfport, Mississippi facility; excluding "(a) Make whole the employees in the appropri- office clerical employees, draftsmen, com- ate unit in the manner set forth in the section of the puter operators, guards and supervisors as Board's Decision and Order entitled 'Amended defined in the Act. Remedy.' "(b) Upon written request from the Union, and W E W I L L N OT in any like o r related manner in the manner set forth in the section of the interfere with, restrain, or coerce our employ- Board's Decision and Order entitled 'Amended ees in the exercise of rights guaranteed them Remedy,' rescind the current insurance plan under by the Act. its collective-bargaining agreement with the Union, W E W I L L make employees in the above-de- and immediately reestablish the plan under the sc rib e d bargaining unit whole for losses suf- New Orleans Sheet Metal Workers Health and fered because of our unlawful action in with- Welfare Fund by making retroactive contributions holding contributions on their behalf to the on behalf of unit employees entitling them to 6 New Orleans Sheet Metal Workers Health and months of future coverage commencing from the Welfare Fund. day following receipt of the Union's request, and W E W I L L , upon written request from Sheet continue such payments until such time as Re- M e t al Workers International Association, Local No. 11, rescind the insurance plan in ' Although employees qualify by working at least 350 hours during effect under Our Collective-bargaining agree- each preceding 6-month period, the plan provides a means whereby em- ment with that Union, and will immediately ployees may be qualified even though they did not work the full 350retbihth lnudrth e ren hours. Therefore, all employees and former employees should receive theOrleans above-mentioned notice. Former employees qualifying for benefits under Sheet Metal Workers Health and Welfare the Fund may, of course, be entitled to damages for losses incurred as Fund by making retroactive Contributions enti- much as 6 months after termination of their employment with Respond- ent, as the Fund plan provides for future coverage regardless of whether ding unit employees to 6 months of future the individual remains employed by the contributing employer on the coverage Commencing from the day following basis of contributions made during his employment.rpcpi nf the Tninn'< rpniist and will cnntin- " We agree with the Administrative Law Judge that this is not an ap-receipt of te Union's request, and Will contin propriate case for the granting of attorney's fees or litigation expenses. ue making such payments Until we either bar- 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after July 10, 1979, 10 for benefits under the Health spondent negotiates in good faith with the Union and Welfare Fund, we, in accordance with the rec- to a new agreement or impasse." ommendation of the Administrative Law Judge, 2. Insert the following as paragraph 2(c): shall require that Respondent take appropriate "(c) Notify, in writing, all persons employed in action to notify, in writing, all employees and the bargaining unit after July 10, 1979, of their en- former employees that so qualified of their entitle- titlement to damages for loss of benefits." ment to those benefits. 3. Substitute the attached notice for that of the The above-described remedial provisions, in our Administrative Law Judge. view, best eradicate the effects of Respondent's un- lawful conduct by making whole employees forAPPENDIX their resulting losses, and best restore the status quo NOTICE To EMPLOYEES ante by placing the Union in the bargaining posi- POSTED BY ORDER OF THE tion which would have obtained but for Respond- NATIONAL LABOR RELATIONS BOARD ent's unlawful action, without imposing an undue An Agency of the United States Government or unfair burden upon Respondent." We shall modify the Administrative Law Judge's recom- WE WILL NOT, without prior consultation mended Order accordingly,.and bargaining with the Union, effect any ORDER changes in established terms and conditions of employment of the employees in the appropri- Pursuant to Section 10(c) of the National Labor ate unit described below by unilaterally dis- Relations Act, as amended, the National Labor Re- continuing payments to the Health and Wel- lations Board adopts as its Order the recommended fare Fund as set forth in the collective-bargain- Order of the Administrative Law Judge, as modi- ing agreement between our predecessor and fied below, and hereby orders that the Respondent, the Union. Turnbull Enterprises, Inc., Gulfport, Mississippi, itsA production and maintenance employees, officers, agents, successors, and assigns, shall takeincluding leadpersons, electrician, janitor, the action set forth in the said recommended plant clerical employees, tool room clerk, Order, as so modified: warehouse employees and wood fabrication 1. Substitute the following paragraphs for para- employees, employed by the Employer at its graphs 2(a) and (b): Gulfport, Mississippi facility; excluding "(a) Make whole the employees in the appropri- office clerical employees, draftsmen, com- ate unit in the manner set forth in the section of the puter operators, guards and supervisors as Board's Decision and Order entitled 'Amended defined in the Act. Remedy.' "(b) Upon written request from the Union, and W E W I L L N OT in any like o r related manner in the manner set forth in the section of the interfere with, restrain, or coerce our employ- Board's Decision and Order entitled 'Amended ees in the exercise of rights guaranteed them Remedy,' rescind the current insurance plan under by the Act. its collective-bargaining agreement with the Union, W E W I L L make employees in the above-de- and immediately reestablish the plan under the scribed bargaining unit whole for losses suf- New Orleans Sheet Metal Workers Health and fered because of our unlawful action in with- Welfare Fund by making retroactive contributions holding contributions on their behalf to the on behalf of unit employees entitling them to 6 New Orleans Sheet Metal Workers Health and months of future coverage commencing from the Welfare Fund. day following receipt of the Union's request, and W E W I L L , upon written request from Sheet continue such payments until such time as Re- M e t al Workers International Association, Local No. 11, rescind the insurance plan in ' Although employees qualify by working at least 350 hours during effect under Our Collective-bargaining agree- each preceding 6-month period, the plan provides a means whereby em- ment with that Union, and will immediately ployees may be qualified even though they did not work the full 350retbihth lnudrth e ren hours. Therefore, all employees and former employees should receive theOrleans above-mentioned notice. Former employees qualifying for benefits under Sheet Metal Workers Health and Welfare the Fund may, of course, be entitled to damages for losses incurred as Fund by making retroactive Contributions enti- much as 6 months after termination of their employment with Respond- ent, as the Fund plan provides for future coverage regardless of whether ding unit employees to 6 months of future the individual remains employed by the contributing employer on the coverage Commencing from the day following basis of contributions made during his employment.rpcpi nf the Tninn'< rpniist and will cnntin- " We agree with the Administrative Law Judge that this is not an ap-receipt of te Union's request, and Will contin propriate case for the granting of attorney's fees or litigation expenses. ue making such payments Until we either bar- TURNBULL ENTERPRISES, INC. 937 gain to a new agreement on this subject with make contributions in accordance with an established the Union or reach a bargaining impasse. formula to the Intervenor herein in order to provide WE WILL notify, in writing, all persons em- medical, hospital, and disability benefits to unit employ- ployed in the bargaining unit after July 10, ee s 1979, of their entitlement to damages for loss Pursuant to a bill of sale dated July 10, 1979, Respond- of benefits. ent purchased the Gulfport facility formerly held by Fri- gitemp and, on or about July 17, 1979, proceeded to op- erate the plant with substantially the same work force. In TURNBULL ENTERPRISES, INC. that regard, Respondent admitted in its answer that it has DECISION since on or about July 17, 1979, operated the Gulfport facility as a successor employer within the meaning of STATEMENT OF THE CASE N.LR.B. v. Burns International Security Services, Inc., et al., 406 U.S. 272 (1972). J. PARGEN ROBERTSON, Administrative Law Judge: Several employees testified that while they were work- This case was heard on September 22 and 23, 1980, in ing at the plant on July 10, 1979, the employees were Gulfport, Mississippi. The charge was filed on November called into an assembly area where they were addressed 14, 1979. The complaint, which issued on February 20, by Joe Sanchez. Sanchez was employed as plant superin- 1980, alleges that Turnbull Enterprises, Inc. (Respond- tendent by the predecessor employer and continued in ent), as successor to a Gulfport employer whose produc- that position following the takeover by Respondent. Ac- tion and maintenance employees were represented by the cording to the testimony, Sanchez informed the employ- Sheet Metal Workers International Association, Local ees that the Company had been sold and that all employ- No. 11, Charging Party (Union), unilaterally discontin- ees were being terminated. However, Sanchez told them ued payment of unit employee contributions to the New that the employees would be rehired. Subsequently, on Orleans Sheet Metal Workers Health and Welfare Fund (Intervenor) 3 The collective-bargaining provision concerning the Health and Wel- Upon the entire record, my observation of the wit- fare Fund appears at art. XXX and reads as follows: Upon the entire record, my observation of the wit- nesses, and after due consideration of the briefs filed by ARTICLE XXX-Health and Welfare the General Counsel, the Charging Party, the Intervenor, andthe General Counsel, tI hereby make the follow Charg ing Party, the Intervenor, Section 1. Effective July 1, 1978, the employer shall pay monthly and Respondent, I hereby make the following: into the New Orleans Sheet Metal Workers' Health and Welfare Fund for the purpose of providing for the benefit of employees, their FINDINGS OF FACT families and dependents, medical and hospital care, unemployment benefits or life insurance, disability and sickness insurance or acci- I. THE EVIDENCE' dent insurance, under the terms and conditions of the declaration of trust of the said Fund dated January 1, 1963, a sum equal to fifty-five The alleged violations arise out of a successorship situ- cents ($.55) per hour for each hour of work performed by employees ation. covered under this Agreement, and as provided in Article VIII-A of During May 1975 the Union was certified as exclusive the Standard Form of Union Agreement between Sheet Metal Work- ers Local Union No. II and Sheet Metal Contractors Association of bargaining agent for unit employees of Frigitemp. Sub- New Orleans, Inc. and Individual Contractors who are signatory sequently, the Union and Frigitemp entered into succes- hereto effective August 1, 1977, terminating July 31, 1980. sive collective-bargaining agreements effective from July Effective on August I, 1978, 60 cents, effective on August 1, 1979, 65 1, 1975, through June 30, 1978, and from July 1, 1978, cents, and effective on August 1, 1980, 70 cents (if applicable). through June 30, 1981. However, in 1978 Frigitemp filed Section 2. The failure of an individual employer to pay the above a petition in bankruptcy. Thereafter, Frigitemp continued amounts or to pay to the Union monthly the dues check-off provided for in this Agreement shall constitute a breach of this Agreement, to operate its Gulfport facility as a "debtor in posses- and this Agreement may, at the option of the Union, be cancelled as sion" until it was adjudicated bankrupt in May 1979. to any employer who is fifteen (15) days or more delinquent in From May until July 10, 1979, a trustee appointed by the making of any said payments. For the faithful performance of his ob- bankruptcy court operated the Gulfport facility. ligation to make said payment, each employer hereunder within fif- teen (15) days after signing of this Agreement shall post with the The collective-bargaining agreement in effect among Union a Bond in the amount of twenty-five thousand dollars the above-mentioned employees of Frigitemp during (25,000.00) for the benefit of any fund, trust or person in interest, to 1979 provided, among other things, for Frigitemp to guarantee and secure payment of said amounts. Section 3. Any employer delinquent more than fifteen (15) days in the making of the above provided payment shall be charged liquidat- Respondent, which is engaged in the business of manufacturing man- ed damages of ten percent (10%) of the said payments due which time furniture at its Gulfport, Mississippi, facility, admitted the commerce shall be collectable by the party to whom the payment is due plus allegations in the complaint. On the basis of that admission, I find that attorneys' fees incurred in connection with such collection in addi- Respondent is and has been at all times material herein an employer en- tion to the above stated sum and the payment of which shall likewise gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. be secured by the bond provided for hereinabove. ' The complaint alleges, Respondent admits, and I find that the below- Four employees testified regarding Sanchez' remarks on July 10. Tes- described unit constitutes an appropriate bargaining unit and is the unit timony of employee Frazier was that Sanchez told them that most of the for which the Union was certified: employees would be called back by the new employer to do the same All production and maintenance employees, including leadpersons, jobs. Employee Ladner recalled that Sanchez said that he hoped there electrician, janitor, plant clerical employees, tool room clerk, ware- would be more work and all the employees would be rehired. Employee house employees and wood fabrication employees, employed by the Waltman recalled that Sanchez said some of the employees would be Employer at its Gulfport, Mississippi facility; excluding office cleri- coming back-"eventually, all of us would be coming back." Employee cal employees, draftsmen, computer operators, guards and supervi- Hickman testified that Sanchez said that all the employees would be sor as defined in the Act. called back in just a few days. Sanchez did not testify. TURNBULL ENTERPRISES, INC. 937 gain to a new agreement on this subject with make contributions in accordance with an established the Union or reach a bargaining impasse. formula to the Intervenor herein in order to provide WE WILL notify, in writing, all persons em- medical, hospital, and disability benefits to unit employ- ployed in the bargaining unit after July 10, ee s.3 1979, of their entitlement to damages for loss Pursuant to a bill of sale dated July 10, 1979, Respond- of benefits. en t purchased the Gulfport facility formerly held by Fri- gitemp and, on or about July 17, 1979, proceeded to op- erate the plant with substantially the same work force. In TURNBULL ENTERPRISES, INC. that regard, Respondent admitted in its answer that it has DECISION since on or about July 17, 1979, operated the Gulfport facility as a successor employer within the meaning of STATEMENT OF THE CASE N.LR.B. v. Burns International Security Services, Inc., et al., 406 U.S. 272 (1972). J. PARGEN ROBERTSON, Administrative Law Judge: Several employees testified that while they were work- This case was heard on September 22 and 23, 1980, in ing at the plant on July 10, 1979, the employees were Gulfport, Mississippi. The charge was filed on November called into an assembly area where they were addressed 14, 1979. The complaint, which issued on February 20, by Joe Sanchez. Sanchez was employed as plant superin- 1980, alleges that Turnbull Enterprises, Inc. (Respond- tendent by the predecessor employer and continued in ent), as successor to a Gulfport employer whose produc- that position following the takeover by Respondent. Ac- tion and maintenance employees were represented by the cording to the testimony, Sanchez informed the employ- Sheet Metal Workers International Association, Local ees that the Company had been sold and that all employ- No. 11, Charging Party (Union), unilaterally discontin- ees were being terminated. However, Sanchez told them ued payment of unit employee contributions to the New that the employees would be rehired. 4Subsequently, on Orleans Sheet Metal Workers Health and Welfare Fund (Intervenor)3 ^Th e collective-bargaining provision concerning the Health and Wel- Upon the entire record, my observation of the wit- fare F und appea" at ar t X X X and reads as fol ow s: nesses, and after due consideration of the briefs filed by ARTICLE XXX-Health and Welfare the General Counsel, the Charging Party, the Intervenor, and Respondent, I hereby make the following: into the New Orleans Sheet Metal Workers' Health and Welfare Fund for the purpose of providing for the benefit of employees, their FINDINGS OF FACT families and dependents, medical and hospital care, unemployment benefits or life insurance, disability and sickness insurance or acci- I. THE EVIDENCE' dent insurance, under the terms and conditions of the declaration of trust of the said Fund dated January 1, 1963, a sum equal to fifty-five The alleged violations arise out of a successorship situ- cents ($.55) per hour for each hour of work performed by employees ation. covered under this Agreement, and as provided in Article VI1I-A of During May 1975 the Union was certified as exclusive the Standard Form of Union Agreement between Sheet Metal Work- ers Local Union No. 11 and Sheet Metal Contractors Association of bargaining agent for unit employees 2 Of Frigitemp. Sub- New Orleans, Inc. and Individual Contractors who are signatory sequently, the Union and Frigitemp entered into succes- hereto effective August l, 1977, terminating July 31, 1980. sive collective-bargaining agreements effective from July Effective on August l, 1978, 60 cents, effective on August l, 1979, 65 1, 1975, through June 30, 1978, and from July 1, 1978, cents, and effective on August 1, 1980, 70 cents (if applicable). through June 30, 1981. However, in 1978 Frigitemp filed Section 2. The failure of an individual employer to pay the above a petition in bankruptcy. Thereafter, Frigitemp continued amounts or to pay to the Union monthly the dues check-off provided for i n this Agreement shall constitute a breach of this Agreement, to Operate Its Gulfport facility as a "debtor in posses- and this Agreement may, at the option of the Union, be cancelled as sion" until it was adjudicated bankrupt in May 1979. to any employer who is fifteen (15) days or more delinquent in From May until July 10, 1979, a trustee appointed by the making of any said payments. For the faithful performance of his ob- bankruptcy court operated the Gulfport facility. ligation to m ak e said payment, each employer hereunder within fif- teen (15) days after signing of this Agreement shall post with the The collective-bargaining agreement in effect among Union a Bond in the amount of twenty-five thousand dollars the above-mentioned employees of Frigitemp during (25,000.00) for the benefit of any fund, trust or person in interest, to 1979 provided, among Other things, for Frigitemp to guarantee and secure payment of said amounts. Section 3. Any employer delinquent more than fifteen (15) days in the making of the above provided payment shall be charged liquidat- Respondent, which is engaged in the business of manufacturing mari- ed damages of ten percent (10%) of the said payments due which time furniture at its Gulfport, Mississippi, facility, admitted the commerce shall be collectable by the party to whom the payment is due plus allegations in the complaint. On the basis of that admission, I find that attorneys' fees incurred in connection with such collection in addi- Respondent is and has been at all times material herein an employer en- tion to the above stated sum and the payment of which shall likewise gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. be secured by the bond provided for hbreinabove. ' The complaint alleges. Respondent admits, and I find that the below- 4 Four employees testified regarding Sanchez' remarks on July 10. Tes- described unit constitutes an appropriate bargaining unit and is the unit timony of employee Frazier was that Sanchez told them that most of the for which the Union was certified: employees would be called back by the new employer to do the same All production and maintenance employees, including leadpersons, jobs. Employee Ladner recalled that Sanchez said that he hoped there electrician, janitor, plant clerical employees, tool room clerk, ware- would be more work and all the employees would be rehired. Employee home employees and wood fabrication employees, employed by the Waltman recalled that Sanchez said some of the employees would be Employer at its Gulfport, Mississippi facility; excluding office cleri- coming back-"eventually, all of us would be coming back." Employee cal employees, draftsmen, computer operators, guards and supervi- Hickman testified that Sanchez said that all the employees would be son as defined in the Act. called back in just a few days. Sanchez did not testify. TURNBULL ENTERPRISES, INC. 937 gain to a new agreement on this subject with make contributions in accordance with an established the Union or reach a bargaining impasse. formula to the Intervenor herein in order to provide WE WILL notify, in writing, all persons em- medical, hospital, and disability benefits to unit employ- ployed in the bargaining unit after July 10, ee s.3 1979, of their entitlement to damages for loss Pursuant to a bill of sale dated July 10, 1979, Respond- of benefits. en t purchased the Gulfport facility formerly held by Fri- gitemp and, on or about July 17, 1979, proceeded to op- erate the plant with substantially the same work force. In TURNBULL ENTERPRISES, INC. that regard, Respondent admitted in its answer that it has DECISION since on or about July 17, 1979, operated the Gulfport facility as a successor employer within the meaning of STATEMENT OF THE CASE N.LR.B. v. Burns International Security Services, Inc., et al., 406 U.S. 272 (1972). J. PARGEN ROBERTSON, Administrative Law Judge: Several employees testified that while they were work- This case was heard on September 22 and 23, 1980, in ing at the plant on July 10, 1979, the employees were Gulfport, Mississippi. The charge was filed on November called into an assembly area where they were addressed 14, 1979. The complaint, which issued on February 20, by Joe Sanchez. Sanchez was employed as plant superin- 1980, alleges that Turnbull Enterprises, Inc. (Respond- tendent by the predecessor employer and continued in ent), as successor to a Gulfport employer whose produc- that position following the takeover by Respondent. Ac- tion and maintenance employees were represented by the cording to the testimony, Sanchez informed the employ- Sheet Metal Workers International Association, Local ees that the Company had been sold and that all employ- No. 11, Charging Party (Union), unilaterally discontin- ees were being terminated. However, Sanchez told them ued payment of unit employee contributions to the New that the employees would be rehired. 4Subsequently, on Orleans Sheet Metal Workers Health and Welfare Fund (Intervenor)3 ^Th e collective-bargaining provision concerning the Health and Wel- Upon the entire record, my observation of the wit- fare F und appea" at ar t X X X and reads as fol ow s: nesses, and after due consideration of the briefs filed by ARTICLE XXX-Health and Welfare the General Counsel, the Charging Party, the Intervenor, and Respondent, I hereby make the following: into the New Orleans Sheet Metal Workers' Health and Welfare Fund for the purpose of providing for the benefit of employees, their FINDINGS OF FACT families and dependents, medical and hospital care, unemployment benefits or life insurance, disability and sickness insurance or acci- I. THE EVIDENCE' dent insurance, under the terms and conditions of the declaration of trust of the said Fund dated January 1, 1963, a sum equal to fifty-five The alleged violations arise out of a successorship situ- cents ($.55) per hour for each hour of work performed by employees ation. covered under this Agreement, and as provided in Article VI1I-A of During May 1975 the Union was certified as exclusive the Standard Form of Union Agreement between Sheet Metal Work- ers Local Union No. 11 and Sheet Metal Contractors Association of bargaining agent for unit employees 2 Of Frigitemp. Sub- New Orleans, Inc. and Individual Contractors who are signatory sequently, the Union and Frigitemp entered into succes- hereto effective August l, 1977, terminating July 31, 1980. sive collective-bargaining agreements effective from July Effective on August l, 1978, 60 cents, effective on August l, 1979, 65 1, 1975, through June 30, 1978, and from July 1, 1978, cents, and effective on August 1, 1980, 70 cents (if applicable). through June 30, 1981. However, in 1978 Frigitemp filed Section 2. The failure of an individual employer to pay the above a petition in bankruptcy. Thereafter, Frigitemp continued amounts or to pay to the Union monthly the dues check-off provided for in t h i s Agreement shall constitute a breach of this Agreement, to Operate Its Gulfport facility as a "debtor in posses- and this Agreement may, at the option of the Union, be cancelled as sion" until it was adjudicated bankrupt in May 1979. to any employer who is fifteen (15) days or more delinquent in From May until July 10, 1979, a trustee appointed by the making of any said payments. For the faithful performance of his ob- bankruptcy court operated the Gulfport facility. ligation to m ak e said payment, each employer hereunder within fif- teen (15) days after signing of this Agreement shall post with the The collective-bargaining agreement in effect among Union a Bond in the amount of twenty-five thousand dollars the above-mentioned employees of Frigitemp during (25,000.00) for the benefit of any fund, trust or person in interest, to 1979 provided, among Other things, for Frigitemp to guarantee and secure payment of said amounts. Section 3. Any employer delinquent more than fifteen (15) days in the making of the above provided payment shall be charged liquidat- Respondent, which is engaged in the business of manufacturing mari- ed damages of ten percent (10%) of the said payments due which time furniture at its Gulfport, Mississippi, facility, admitted the commerce shall be collectable by the party to whom the payment is due plus allegations in the complaint. On the basis of that admission, I find that attorneys' fees incurred in connection with such collection in addi- Respondent is and has been at all times material herein an employer en- tion to the above stated sum and the payment of which shall likewise gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. be secured by the bond provided for hbreinabove. ' The complaint alleges. Respondent admits, and I find that the below- 4 Four employees testified regarding Sanchez' remarks on July 10. Tes- described unit constitutes an appropriate bargaining unit and is the unit timony of employee Frazier was that Sanchez told them that most of the for which the Union was certified: employees would be called back by the new employer to do the same All production and maintenance employees, including leadpersons, jobs. Employee Ladner recalled that Sanchez said that he hoped there electrician, janitor, plant clerical employees, tool room clerk, ware- would be more work and all the employees would be rehired. Employee home employees and wood fabrication employees, employed by the Waltman recalled that Sanchez said some of the employees would be Employer at its Gulfport, Mississippi facility; excluding office cleri- coming back-"eventually, all of us would be coming back." Employee cal employees, draftsmen, computer operators, guards and supervi- Hickman testified that Sanchez said that all the employees would be son as defined in the Act. called back in just a few days. Sanchez did not testify. TURNBULL ENTERPRISES, INC. 937 gain to a new agreement on this subject with make contributions in accordance with an established the Union or reach a bargaining impasse. formula to the Intervenor herein in order to provide WE WILL notify, in writing, all persons em- medical, hospital, and disability benefits to unit employ- ployed in the bargaining unit after July 10, ee s.3 1979, of their entitlement to damages for loss Pursuant to a bill of sale dated July 10, 1979, Respond- of benefits. en t purchased the Gulfport facility formerly held by Fri- gitemp and, on or about July 17, 1979, proceeded to op- erate the plant with substantially the same work force. In TURNBULL ENTERPRISES, INC. that regard, Respondent admitted in its answer that it has DECISION since on or about July 17, 1979, operated the Gulfport facility as a successor employer within the meaning of STATEMENT OF THE CASE N.LR.B. v. Burns International Security Services, Inc., et al., 406 U.S. 272 (1972). J. PARGEN ROBERTSON, Administrative Law Judge: Several employees testified that while they were work- This case was heard on September 22 and 23, 1980, in ing at the plant on July 10, 1979, the employees were Gulfport, Mississippi. The charge was filed on November called into an assembly area where they were addressed 14, 1979. The complaint, which issued on February 20, by Joe Sanchez. Sanchez was employed as plant superin- 1980, alleges that Turnbull Enterprises, Inc. (Respond- tendent by the predecessor employer and continued in ent), as successor to a Gulfport employer whose produc- that position following the takeover by Respondent. Ac- tion and maintenance employees were represented by the cording to the testimony, Sanchez informed the employ- Sheet Metal Workers International Association, Local ees that the Company had been sold and that all employ- No. 11, Charging Party (Union), unilaterally discontin- ees were being terminated. However, Sanchez told them ued payment of unit employee contributions to the New that the employees would be rehired. 4Subsequently, on Orleans Sheet Metal Workers Health and Welfare Fund (Intervenor)3 ^Th e collective-bargaining provision concerning the Health and Wel- Upon the entire record, my observation of the wit- fare F und appea" at ar t X X X and reads as fol ow s: nesses, and after due consideration of the briefs filed by ARTICLE XXX-Health and Welfare the General Counsel, the Charging Party, the Intervenor, and Respondent, I hereby make the following: into the New Orleans Sheet Metal Workers' Health and Welfare Fund for the purpose of providing for the benefit of employees, their FINDINGS OF FACT families and dependents, medical and hospital care, unemployment benefits or life insurance, disability and sickness insurance or acci- I. THE EVIDENCE' dent insurance, under the terms and conditions of the declaration of trust of the said Fund dated January 1, 1963, a sum equal to fifty-five The alleged violations arise out of a successorship situ- cents ($.55) per hour for each hour of work performed by employees ation. covered under this Agreement, and as provided in Article VI1I-A of During May 1975 the Union was certified as exclusive the Standard Form of Union Agreement between Sheet Metal Work- ers Local Union No. 11 and Sheet Metal Contractors Association of bargaining agent for unit employees 2 Of Frigitemp. Sub- New Orleans, Inc. and Individual Contractors who are signatory sequently, the Union and Frigitemp entered into succes- hereto effective August l, 1977, terminating July 31, 1980. sive collective-bargaining agreements effective from July Effective on August l, 1978, 60 cents, effective on August l, 1979, 65 1, 1975, through June 30, 1978, and from July 1, 1978, cents, and effective on August 1, 1980, 70 cents (if applicable). through June 30, 1981. However, in 1978 Frigitemp filed Section 2. The failure of an individual employer to pay the above a petition in bankruptcy. Thereafter, Frigitemp continued amounts or to pay to the Union monthly the dues check-off provided for in t h i s Agreement shall constitute a breach of this Agreement, to Operate Its Gulfport facility as a "debtor in posses- and this Agreement may, at the option of the Union, be cancelled as sion" until it was adjudicated bankrupt in May 1979. to any employer who is fifteen (15) days or more delinquent in From May until July 10, 1979, a trustee appointed by the making of any said payments. For the faithful performance of his ob- bankruptcy court operated the Gulfport facility. ligation to m ak e said payment, each employer hereunder within fif- teen (15) days after signing of this Agreement shall post with the The collective-bargaining agreement in effect among Union a Bond in the amount of twenty-five thousand dollars the above-mentioned employees of Frigitemp during (25,000.00) for the benefit of any fund, trust or person in interest, to 1979 provided, among Other things, for Frigitemp to guarantee and secure payment of said amounts. Section 3. Any employer delinquent more than fifteen (15) days in the making of the above provided payment shall be charged liquidat- Respondent, which is engaged in the business of manufacturing mari- ed damages of ten percent (10%) of the said payments due which time furniture at its Gulfport, Mississippi, facility, admitted the commerce shall be collectable by the party to whom the payment is due plus allegations in the complaint. On the basis of that admission, I find that attorneys' fees incurred in connection with such collection in addi- Respondent is and has been at all times material herein an employer en- tion to the above stated sum and the payment of which shall likewise gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. be secured by the bond provided for hbreinabove. ' The complaint alleges. Respondent admits, and I find that the below- 4 Four employees testified regarding Sanchez' remarks on July 10. Tes- described unit constitutes an appropriate bargaining unit and is the unit timony of employee Frazier was that Sanchez told them that most of the for which the Union was certified: employees would be called back by the new employer to do the same All production and maintenance employees, including leadpersons, jobs. Employee Ladner recalled that Sanchez said that he hoped there electrician, janitor, plant clerical employees, tool room clerk, ware- would be more work and all the employees would be rehired. Employee home employees and wood fabrication employees, employed by the Waltman recalled that Sanchez said some of the employees would be Employer at its Gulfport, Mississippi facility; excluding office cleri- coming back-"eventually, all of us would be coming back." Employee cal employees, draftsmen, computer operators, guards and supervi- Hickman testified that Sanchez said that all the employees would be son as defined in the Act. called back in just a few days. Sanchez did not testify. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 10, according to unrebutted testimony of employees, gaining representative of unit employees before making they were told, by supervision, to leave their toolboxes unilateral changes in terms and conditions of employ- at the plant because they would be called back to work. ment. The General Counsel argues, therefore, that Re- During the week of July 17, 1979, 68 bargaining unit spondent, by discontinuing Health and Welfare Fund employees were hired back. All 68 of those employees contributions for unit employees, without first negotiat- had previously worked for the predecessor employer. ing with the Union, unilaterally changed a condition of Respondent continued to reemploy former employees of employment. That argument is not founded in the pred- the predecessor employer during the month of July. All ecessor's collective-bargaining agreement, 6 but in the al- those employees rehired during July, with the exception legation that the health and welfare provision of that of four, were reemployed at the same wage rate which agreement had become an established condition of em- they had received at the time of their termination by the ployment. (See N.L.R.B. v. Burns International Security predecessor employer. Services, supra.)7 By telegram dated July 10, 1979, the Union made a demand upon Respondent that Respondent recognize A. The Threshold Question and bargain with it concerning wages, hours, and work- ing conditions as representative of the unit employees. Although the General Counsel finds support in Burns, The telegram was received by Respondent on July 10. supra, the Burns decision also presents the basis on which By letter dated July 16, 1979, Respondent agreed to meet the threshold issue in this case is rooted. In Burns the with the Union. successor hired a majority of its unit employees in June On July 16, 1979, the Union's president and business 1967, at wages and terms of employment which were dif- manager, Stanley Gaudet, had a telephone conversation ferent from those established by the predecessor employ- with Respondent's president, Louis Esposito. During that er. In fact, the successor in that case specifically told its conversation Esposito informed Gaudet that he was will- employees when they were hired that it "could not live ing to sit down and discuss the contract with the Union. with" the predecessor's collective-bargaining agreement. According to the testimony of Stanley Gaudet, he asked Subsequently, on July 12, 1967, the majority union made Esposito about the health and welfare program. Accord- a bargaining demand on Burns (the successor employer). ing to Gaudet, Esposito replied, "I understand we have a The Supreme Court found that under the facts of that six-month free ride." Esposito asked, "Aren't the em- case the successor was free to set initial terms and condi- ployees covered under your health and welfare plan for tions of employment. However, the Court went on to the next six months?" Gaudet testified that he told Espo- state: sito, "They are covered through the end of the year, but they earn that coverage in the first six months of the Although a successor employer is ordinarily free year. They are earning the coverage for the first part of to set initial terms on which it will hire the employ- the next six months in this six-month period. They are ees of a predecessor, there will be instances in always covered like six months in advance." According which it is perfectly clear that the new employer to Gaudet, Esposito replied, "Well, when we sit down plans to retain all of the employees in the unit and and negotiate, if we owe you something, we will pay in which it will be appropriate to have him initially you at that time."' consult with the employees' bargaining representa- Subsequently, Respondent continued to refuse to make tive before he fixes terms. In other situations, how- contributions to the Health and Welfare Fund. However, ever, it may not be clear until the successor em- Respondent met and negotiated with the Union. Al- though a strike occurred between November 1 and De- 6 In addition to the above argument, the General Counsel also argues that Respondent adopted the predecessor employer's collective-bargain- cember 12, 1979, among unit employees, Respondent and ing agreement. I find that the evidence is insufficient to support the Gen- the Union reached a collective-bargaining agreement on eral Counsel in that regard. December 12, 1979. That agreement provided an insur- In that regard, the Supreme Court explained the Board's position in ance program for unit employees through a private carri- Burns 406 U.S. at 293, 294: er in replacement of the Health and Welfare Fund. The [T]he Board's opinion stated that "[t]he obligation to bargain im- posed on a successor-employer includes the negative injunction to program incorporated in the parties December 12 agree- refrain from unilaterally changing wages and other benefits estab- ment was called "The Innovator." lished by a prior collective-bargaining agreement even though that The General Counsel alleges that, by unilaterally ceas- agreement had expired. In this respect, the successor-employer's obli- ing to make health and welfare contributions, Respond- gations are he same as those imposed upon employers generally during the period between collective-bargaining agreements." App. ent violated Section 8(a)(5). 8-9. This statement by the Board is consistent with its prior and sub- sequent cases that hold that whether or not a successor employer is II. CONCLUSIONS bound by its predecessor's contract, it must not institute terms and conditions of employment different from those provided in its pred- Respondent admittedly was the successor employer to ecessor's contract, at least without first bargaining with the employ- Frigitemp (or, more precisely, to the trustee in bankrupt- ees' representative.... Thus, if Burns, without bargaining to im- cy). The General Counsel contends that Respondent was passe with the union, had paid its employees on and after July 1 at a obligated to negotiate with the Union as exclusive bar- rate lower than Wackenhut had paid under its contract, or otherwise provided terms and conditions of employment different from those provided in the Wackenhut collective-bargaining agreement, under ' I credit Gaudet's testimony. Gaudet impressed me by his demeanor. the Board's view, Burns would have committed a § 8(a)5) unfair His testimony in most respects, including his testimony regarding the labor practice and would have been subject to an order to restore to July 16 phone conversation with Esposito, was not denied. employees what they had lost by this so-called unilateral change. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 10, according to unrebutted testimony of employees, gaining representative of unit employees before making they were told, by supervision, to leave their toolboxes unilateral changes in terms and conditions of employ- at the plant because they would be called back to work. ment. The General Counsel argues, therefore, that Re- During the week of July 17, 1979, 68 bargaining unit spondent, by discontinuing Health and Welfare Fund employees were hired back. All 68 of those employees contributions for unit employees, without first negotiat- had previously worked for the predecessor employer. ing with the Union, unilaterally changed a condition of Respondent continued to reemploy former employees of employment. That argument is not founded in the pred- the predecessor employer during the month of July. All ecessor's collective-bargaining agreement," but in the al- those employees rehired during July, with the exception legation that the health and welfare provision of that of four, were reemployed at the same wage rate which agreement had become an established condition of em- they had received at the time of their termination by the ployment. (See N.L.R.B v. Burns International Security predecessor employer. Services, supra.)7 By telegram dated July 10, 1979, the Union made a demand upon Respondent that Respondent recognize A. The Threshold Question and bargain with it concerning wages, hours, and work- ing conditions as representative of the unit employees. Although the General Counsel finds support in Burns, The telegram was received by Respondent on July 10. sup'ra the Burns decision also presents the basis on which By letter dated July 16, 1979, Respondent agreed to meet the threshold issue in this case is rooted. In Burns the with the Union. successor hired a majority of its unit employees in June On July 16, 1979, the Union's president and business 1967, at wages and terms of employment which were dif- manager, Stanley Gaudet, had a telephone conversation ferent from those established by the predecessor employ- with Respondent's president, Louis Esposito. During that er. In fact, the successor in that case specifically told its conversation Esposito informed Gaudet that he was will- employees when they were hired that it "could not live ing to sit down and discuss the contract with the Union,. with" the predecessor's collective-bargaining agreement. According to the testimony of Stanley Gaudet, he asked Subsequently, on July 12, 1967, the majority union made Esposito about the health and welfare program. Accord- a bargaining demand on Burns (the successor employer). ing to Gaudet, Esposito replied, "I understand we have a The Supreme Court found that under the facts of that six-month free ride." Esposito asked, "Aren't the em- case the successor was free to set initial terms and condi- ployees covered under your health and welfare plan for tions of employment. However, the Court went on to the next six months?" Gaudet testified that he told Espo- state: sito, "They are covered through the end of the year, but they earn that coverage in the first six months of the Although a successor employer is ordinarily free year. They are earning the coverage for the first part of to set initial terms on which it will hire the employ- the next six months in this six-month period. They are e e s o f a predecessor, there will be instances in always covered like six months in advance." According which it is perfectly clear that the new employer to Gaudet, Esposito replied, "Well, when we sit down plans to retain all of the employees in the unit and and negotiate, if we owe you something, we will pay in which it will be appropriate to have him initially you at that time."' consult with the employees' bargaining representa- Subsequently, Respondent continued to refuse to make tive before he fixes terms. In other situations, how- contributions to the Health and Welfare Fund. However, e v e r , it may not be clear until the successor em- Respondent met and negotiated with the Union. Al- though a strike occurred between November 1 and De- * I" addition to the above argument, the General Counsel also argues that Respondent adopted the predecessor employer's collective-bargain- cember 12, 1979, among unit employees, Respondent and ing agreement. I find that the evidence is insufficient to support the Gen- the Union reached a collective-bargaining agreement on eral Counsel in that regard. December 12, 1979. That agreement provided an insur- in that regard, the Supreme Court explained the Board's position in ance program for unit employees through a private carri- Bu"rn 40 6 U.S. a t 293, 294 : er in replacement of the Health and Welfare Fund. The [T]he B o ard's opinion sla ted t ha t "[tMhe obligation to bargain im- posed on a successor-employer includes the negative injunction to program incorporated in the parties' December 12 agree- refrain from unilaterally changing wages and other benefits estab- ment was called "The Innovator." lished by a prior collective-bargaining agreement even though that The General Counsel alleges that, by unilaterally ceas- agreement had expired. In this respect, the successor-employer's obli- ing to make health and welfare contributions, Respond- ga'io"s are the sme as those imp o se d upon em p lo ye rs generally during the period between collective-bargaining agreements." App. ent Violated Section 8(a)(S). 8-9. This statement by the Board is consistent with its prior and sub- sequent cases that hold that whether or not a successor employer is II. CONCLUSIONS bound by its predecessor's contract, it must not institute terms and conditions of employment different from those provided in its pred- Respondent admittedly was the successor employer to ecessor's contract, at least without first bargaining with the cmploy- Frigitemp (or, more precisely, to the trustee in bankrupt- ees' representative.... Thus, if Burns, without bargaining to im- cy). The General Counsel contends that Respondent was passe w ith the un io n, ha d paid its employees on and after July 1 at a obligated to negotiate with the Union as exclusive bar- rate lower than Wackenhut had paid under its contract, or otherwise provided terms and conditions of employment different from those provided in the Wackenhut collective-bargaining agreement, under 1 I credit Gaudet's testimony. Gaudet impressed me by his demeanor. the Board's view, Burns would have committed a § 8(a)(5) unfair His testimony in most respects, including his testimony regarding the labor practice and would have been subject to an order to restore to July 16 phone conversation with Esposito, was not denied. employees what they had lost by this so-called unilateral change. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 10, according to unrebutted testimony of employees, gaining representative of unit employees before making they were told, by supervision, to leave their toolboxes unilateral changes in terms and conditions of employ- at the plant because they would be called back to work. ment. The General Counsel argues, therefore, that Re- During the week of July 17, 1979, 68 bargaining unit spondent, by discontinuing Health and Welfare Fund employees were hired back. All 68 of those employees contributions for unit employees, without first negotiat- had previously worked for the predecessor employer. ing with the Union, unilaterally changed a condition of Respondent continued to reemploy former employees of employment. That argument is not founded in the pred- the predecessor employer during the month of July. All ecessor's collective-bargaining agreement," but in the al- those employees rehired during July, with the exception legation that the health and welfare provision of that of four, were reemployed at the same wage rate which agreement had become an established condition of em- they had received at the time of their termination by the ployment. (See N.L.R.B v. Burns International Security predecessor employer. Services, supra.)7 By telegram dated July 10, 1979, the Union made a demand upon Respondent that Respondent recognize A. The Threshold Question and bargain with it concerning wages, hours, and work- ing conditions as representative of the unit employees. Although the General Counsel finds support in Burns, The telegram was received by Respondent on July 10. sup'ra the Burns decision also presents the basis on which By letter dated July 16, 1979, Respondent agreed to meet the threshold issue in this case is rooted. In Burns the with the Union. successor hired a majority of its unit employees in June On July 16, 1979, the Union's president and business 1967, at wages and terms of employment which were dif- manager, Stanley Gaudet, had a telephone conversation ferent from those established by the predecessor employ- with Respondent's president, Louis Esposito. During that er. In fact, the successor in that case specifically told its conversation Esposito informed Gaudet that he was will- employees when they were hired that it "could not live ing to sit down and discuss the contract with the Union,. with" the predecessor's collective-bargaining agreement. According to the testimony of Stanley Gaudet, he asked Subsequently, on July 12, 1967, the majority union made Esposito about the health and welfare program. Accord- a bargaining demand on Burns (the successor employer). ing to Gaudet, Esposito replied, "I understand we have a The Supreme Court found that under the facts of that six-month free ride." Esposito asked, "Aren't the em- case the successor was free to set initial terms and condi- ployees covered under your health and welfare plan for tions of employment. However, the Court went on to the next six months?" Gaudet testified that he told Espo- state: sito, "They are covered through the end of the year, but they earn that coverage in the first six months of the Although a successor employer is ordinarily free year. They are earning the coverage for the first part of to set initial terms on which it will hire the employ- the next six months in this six-month period. They are e e s o f a predecessor, there will be instances in always covered like six months in advance." According which it is perfectly clear that the new employer to Gaudet, Esposito replied, "Well, when we sit down plans to retain all of the employees in the unit and and negotiate, if we owe you something, we will pay in which it will be appropriate to have him initially you at that time."' consult with the employees' bargaining representa- Subsequently, Respondent continued to refuse to make tive before he fixes terms. In other situations, how- contributions to the Health and Welfare Fund. However, e v e r , it may not be clear until the successor em- Respondent met and negotiated with the Union. Al- though a strike occurred between November 1 and De- * I" addition to the above argument, the General Counsel also argues that Respondent adopted the predecessor employer's collective-bargain- cember 12, 1979, among unit employees, Respondent and ing agreement. I find that the evidence is insufficient to support the Gen- the Union reached a collective-bargaining agreement on eral Counsel in that regard. December 12, 1979. That agreement provided an insur- in that regard, the Supreme Court explained the Board's position in ance program for unit employees through a private carri- Bu"rn 40 6 U.S. a t 293, 294 : er in replacement of the Health and Welfare Fund. The [T]he B o ard's opinion sla ted t ha t "[tMhe obligation to bargain im- posed on a successor-employer includes the negative injunction to program incorporated in the parties' December 12 agree- refrain from unilaterally changing wages and other benefits estab- ment was called "The Innovator." lished by a prior collective-bargaining agreement even though that The General Counsel alleges that, by unilaterally ceas- agreement had expired. In this respect, the successor-employer's obli- ing to make health and welfare contributions, Respond- ga'io"s are the sme as those imp o se d upon em p lo ye rs generally during the period between collective-bargaining agreements." App. ent Violated Section 8(a)(S). 8-9. This statement by the Board is consistent with its prior and sub- sequent cases that hold that whether or not a successor employer is II. CONCLUSIONS bound by its predecessor's contract, it must not institute terms and conditions of employment different from those provided in its pred- Respondent admittedly was the successor employer to ecessor's contract, at least without first bargaining with the cmploy- Frigitemp (or, more precisely, to the trustee in bankrupt- ees' representative.... Thus, if Burns, without bargaining to im- cy). The General Counsel contends that Respondent was passe w ith the un io n, ha d paid its employees on and after July 1 at a obligated to negotiate with the Union as exclusive bar- rate lower than Wackenhut had paid under its contract, or otherwise provided terms and conditions of employment different from those provided in the Wackenhut collective-bargaining agreement, under 1 I credit Gaudet's testimony. Gaudet impressed me by his demeanor. the Board's view, Burns would have committed a § 8(a)(5) unfair His testimony in most respects, including his testimony regarding the labor practice and would have been subject to an order to restore to July 16 phone conversation with Esposito, was not denied. employees what they had lost by this so-called unilateral change. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 10, according to unrebutted testimony of employees, gaining representative of unit employees before making they were told, by supervision, to leave their toolboxes unilateral changes in terms and conditions of employ- at the plant because they would be called back to work. ment. The General Counsel argues, therefore, that Re- During the week of July 17, 1979, 68 bargaining unit spondent, by discontinuing Health and Welfare Fund employees were hired back. All 68 of those employees contributions for unit employees, without first negotiat- had previously worked for the predecessor employer. ing with the Union, unilaterally changed a condition of Respondent continued to reemploy former employees of employment. That argument is not founded in the pred- the predecessor employer during the month of July. All ecessor's collective-bargaining agreement," but in the al- those employees rehired during July, with the exception legation that the health and welfare provision of that of four, were reemployed at the same wage rate which agreement had become an established condition of em- they had received at the time of their termination by the ployment. (See N.L.R.B v. Burns International Security predecessor employer. Services, supra.)7 By telegram dated July 10, 1979, the Union made a demand upon Respondent that Respondent recognize A. The Threshold Question and bargain with it concerning wages, hours, and work- ing conditions as representative of the unit employees. Although the General Counsel finds support in Burns, The telegram was received by Respondent on July 10. sup'ra the Burns decision also presents the basis on which By letter dated July 16, 1979, Respondent agreed to meet the threshold issue in this case is rooted. In Burns the with the Union. successor hired a majority of its unit employees in June On July 16, 1979, the Union's president and business 1967, at wages and terms of employment which were dif- manager, Stanley Gaudet, had a telephone conversation ferent from those established by the predecessor employ- with Respondent's president, Louis Esposito. During that er. In fact, the successor in that case specifically told its conversation Esposito informed Gaudet that he was will- employees when they were hired that it "could not live ing to sit down and discuss the contract with the Union,. with" the predecessor's collective-bargaining agreement. According to the testimony of Stanley Gaudet, he asked Subsequently, on July 12, 1967, the majority union made Esposito about the health and welfare program. Accord- a bargaining demand on Burns (the successor employer). ing to Gaudet, Esposito replied, "I understand we have a The Supreme Court found that under the facts of that six-month free ride." Esposito asked, "Aren't the em- case the successor was free to set initial terms and condi- ployees covered under your health and welfare plan for tions of employment. However, the Court went on to the next six months?" Gaudet testified that he told Espo- state: sito, "They are covered through the end of the year, but they earn that coverage in the first six months of the Although a successor employer is ordinarily free year. They are earning the coverage for the first part of to set initial terms on which it will hire the employ- the next six months in this six-month period. They are e e s o f a predecessor, there will be instances in always covered like six months in advance." According which it is perfectly clear that the new employer to Gaudet, Esposito replied, "Well, when we sit down plans to retain all of the employees in the unit and and negotiate, if we owe you something, we will pay in which it will be appropriate to have him initially you at that time."' consult with the employees' bargaining representa- Subsequently, Respondent continued to refuse to make tive before he fixes terms. In other situations, how- contributions to the Health and Welfare Fund. However, e v e r , it may not be clear until the successor em- Respondent met and negotiated with the Union. Al- though a strike occurred between November 1 and De- * I" addition to the above argument, the General Counsel also argues that Respondent adopted the predecessor employer's collective-bargain- cember 12, 1979, among unit employees, Respondent and ing agreement. I find that the evidence is insufficient to support the Gen- the Union reached a collective-bargaining agreement on eral Counsel in that regard. December 12, 1979. That agreement provided an insur- in that regard, the Supreme Court explained the Board's position in ance program for unit employees through a private carri- Bu"rn 40 6 U.S. a t 293, 294 : er in replacement of the Health and Welfare Fund. The [T]he B o ard's opinion sla ted t ha t "[tMhe obligation to bargain im- posed on a successor-employer includes the negative injunction to program incorporated in the parties' December 12 agree- refrain from unilaterally changing wages and other benefits estab- ment was called "The Innovator." lished by a prior collective-bargaining agreement even though that The General Counsel alleges that, by unilaterally ceas- agreement had expired. In this respect, the successor-employer's obli- ing to make health and welfare contributions, Respond- ga'io"s are the sme as those imp o se d upon em p lo ye rs generally during the period between collective-bargaining agreements." App. ent Violated Section 8(a)(S). 8-9. This statement by the Board is consistent with its prior and sub- sequent cases that hold that whether or not a successor employer is II. CONCLUSIONS bound by its predecessor's contract, it must not institute terms and conditions of employment different from those provided in its pred- Respondent admittedly was the successor employer to ecessor's contract, at least without first bargaining with the cmploy- Frigitemp (or, more precisely, to the trustee in bankrupt- ees' representative.... Thus, if Burns, without bargaining to im- cy). The General Counsel contends that Respondent was passe w ith the un io n, ha d paid its employees on and after July 1 at a obligated to negotiate with the Union as exclusive bar- rate lower than Wackenhut had paid under its contract, or otherwise provided terms and conditions of employment different from those provided in the Wackenhut collective-bargaining agreement, under 1 I credit Gaudet's testimony. Gaudet impressed me by his demeanor. the Board's view, Burns would have committed a § 8(a)(5) unfair His testimony in most respects, including his testimony regarding the labor practice and would have been subject to an order to restore to July 16 phone conversation with Esposito, was not denied. employees what they had lost by this so-called unilateral change. TURNBULL ENTERPRISES, INC. 939 ployer has hired his full complement of employees submit their applications for employment with Respond- that he has a duty to bargain with a union, since it ent when they returned on Friday, July 13, to pick up will not be evident until then that the bargaining their paychecks. The employees were furnished applica- representative represents a majority of the employ- tion forms attached to the termination notices which ees in the unit as required by § 9(a) of the Act, 29 they were given by their supervisor on July 10. Employ- U.S.C. § 159(a). Here, for example, Burns' obliga- ee Ronald Ladner testified that he was assisted in com- tion to bargain with the union did not mature until pleting his employment application by his supervisor it had selected its force of guards late in June. The (also named Ronald Ladner) and that the supervisor, in Board quite properly found that Burns refused to response to the employee's question as to what wage rate bargain on July 12 when it rejected the overtures of he should indicate that he desired on his application the union. It is true that the wages it paid when it form, told the employee to put down what he was began protecting the Lockheed plant on July 1 dif- making with Frigitemp. Ladner also testified that when fered from those specified in the Wackenhut collec- he returned to work on July 17, the employees took up tive-bargaining agreement, but there is no evidence theirjobs where they had left off on July 10. that Burns ever unilaterally changed the terms and The evidence regarding the size of either the pred- conditions of employment it had offered to potential ecessor's or Respondent's unit work force is incomplete. employees in June after its obligation to bargain However, it is clear that there were no more than 92 with the union became apparent. If the union had unit employees employed by the predecessor employer made a request to bargain after Burns had complet- on July 10. It is also clear that Respondent hired 68 em- ed its hiring and if Burns had negotiated in good ployees during the week of July 17,' and all 68 of those faith and had made offers to the union which the employed by the predecessor employer. union rejected, Burns could have unilaterally initiat- e eo es ot sho ho m y more employees of The record does not show how many more employees of ed such proposals as the opening terms and condi- tions of . empl n on Jy the predecessor employer were hired during July or, tions of employment on July 1 without committing an unfair labor practice. Cf. N.L.R.B. v. Katz, 369 subsequently, by Respondent. U.S 736, 745 n. 12 (1962); N.L.R.B. v. Fitzgerald Under the circumstances, I find that the unrebutted Mills Corp., 313 F.2d 260, 272-273, 52 LRRM 2174 evidence reflects that Respondent did not take action to (C.A. 2) cert. denied 375 U.S. 834 (1963); N.L.R.B. set initial terms and conditions of employment which v. Southern Coach & Body Co., 336 F.2d 214, 217 were different from those under the predecessor employ- (C.A. 5, 1964). The Board's order requiring Burns er, before incurring an obligation to recognize and bar- to make whole its employees for any losses suffered gain with the Union. In that regard, I note, that although by reason of Burns' refusal to honor and enforce the some of Plant Superintendent Sanchez' July 10 remarks contract, cannot therefore be sustained on the demonstrated a question as to if, or when, all of the unit ground that Burns unilaterally changed existing employees would be rehired, the evidence shows that terms and conditions of employment, thereby com- Respondent's bargaining unit jobs included only former mitting an unfair labor practice which required unit employees of the predecessor. Therefore, there was monetary restitution in these circumstances. [406 no question on July 10 as to the continued majority U.ST at 294, 295-296.] status of the Union. Moreover, the Union's demand for U.S. at 294, 295-296.] recognition was made by the Union and received by Re- In the instant case unit employees were told on July spondent on July 10. Remarks by Supervisor Sanchez 10, 1979, that the employees would be rehired. The certi- and Ladner during the July 10 through July 13 period ficates of termination of employment of unit employees led employees to believe that working conditions would stated, among other things: not be changed. Ladner told employee Ladner that he should indicate on his employment application that he Frigitemp Marine Div. Plant #3 will cease all oper- would accept the same wages he received under the ations under the bankruptcy trustee effective July predecessor employer. 10, at 3:15 p.m. (plant sold to others). Present em- Moreover, I do not view as significant Respondent's ployees may be eligible for rehire with the new failure immediately to employ the entire bargaining unit company (contact personnel department). work force of the predecessor, in view of the unrebutted evidence that Plant Superintendent Sanchez told the em- Several employees testified that there was no mention ployees on July 10 that eventually all of the pred- that their terms and conditions of employment would be ecessor's employees would be coming back to work. different under Respondent. Moreover, those employees On July 11, 1979, Stanley Gaudet talked with Superin- testified that, when they started work again on July 17, tendent Sanchez. According to Gaudet's unrebutted testi- they were employed at their old jobs with the same wages. s On July 10 employees were told that they could week of July 17. The evidence does not show that ny of those 68 em- ployees received wages different from what they had been paid by the 'As indicated above, the parties stipulated that of all former employees predecessor employer. rehired during the entire month of July 1979 only four were employed at ' There was a I-week hiatus in production from July 10, when the wages different from the wages they had received under the predecessor trustee ceased production, until July 17, when production was corn- employer. However, the evidence does not reflect that those four, or any menced by Respondent. In view of the evidence herein which demon- other employees, were told on or before July 17 that the wages of the strates that Respondent resumed substantially the same operation with four employees would be different. The record does not reflect how substantially the same work force and supervision, in the same plant, I do many employees were hired in July. However, 68 were hired during the not find that the short hiatus affected Respondent's successorship role TURNBULL ENTERPRISES, INC. 939 ployer has hired his full complement of employees submit their applications for employment with Respond- that he has a duty to bargain with a union, since it ent when they returned on Friday, July 13, to pick up will not be evident until then that the bargaining their paychecks. The employees were furnished applica- representative represents a majority of the employ- tion forms attached to the termination notices which ees in the unit as required by § 9(a) of the Act, 29 they were given by their supervisor on July 10. Employ- U.S.C. § 159(a). Here, for example, Bums' obliga- ee Ronald Ladner testified that he was assisted in com- tion to bargain with the union did not mature until pleting his employment application by his supervisor it had selected its force of guards late in June. The (also named Ronald Ladner) and that the supervisor, in Board quite properly found that Burns refused to response to the employee's question as to what wage rate bargain on July 12 when it rejected the overtures of he should indicate that he desired on his application the union. It is true that the wages it paid when it form, told the employee to put down what he was began protecting the Lockheed plant on July 1 dif- making with Frigitemp. Ladner also testified that when fered from those specified in the Wackenhut collec- he returned to work on July 17, the employees took up tive-bargaining agreement, but there is no evidence theirjobs where they had left off on July 10. that Bums ever unilaterally changed the terms and The evidence regarding the size of either the pred- conditions of employment it had offered to potential ecessor's or Respondent's unit work force is incomplete. employees in June after its obligation to bargain However, it is clear that there were no more than 92 with the union became apparent. If the union had unit employees employed by the predecessor employer made a request to bargain after Burns had complet- on July 10. It is also clear that Respondent hired 68 em- ed its hiring and if Bums had negotiated in good ployees during the week of July 17,1 and all 68 of those faith and had made offers to the union which the e w employed by the predecessor employer. union rejected, Bums couldhaveunilaterallyinitiat- The record does not show how many more employees of ed such proposals as the opening terms and condi- tion ofempoymnt n Jly wihou comiting the predecessor employer were hired during July or, tions of employment on July 1 without committing ^J epnet an unfair labor practice. Cf. N.LR.B. v. Katz, 369 subseuentl, by Repnet U.S. 736, 745 n. 12 (1962); N.L.R.B. v. Fitzgerald U nder the circumstances, I find that the unrebutted Mills Corp., 313 F.2d 260, 272-273, 52 LRRM 2174 evidence reflects that Respondent did not take action to (C.A. 2) cert. denied 375 U.S. 834 (1963); N.L.R.B. set initial term s and conditions of employment which v. Southern Coach &t Body Co., 336 F.2d 214, 217 w ere d iffer ent fr om those under the predecessor employ- (C.A. 5, 1964). The Board's order requiring Burns er , befor e incurring an obligation to recognize and bar- to make whole its employees for any losses suffered gain with the Union. In that regard, I note, that although by reason of Burns' refusal to honor and enforce the some of Plant Superintendent Sanchez' July 10 remarks contract, cannot therefore be sustained on the demonstrated a question as to if, or when, all of the unit ground that Burns unilaterally changed existing employees would be rehired, the evidence shows that terms and conditions of employment, thereby com- Respondent's bargaining unit jobs included only former mitting an unfair labor practice which required unit employees of the predecessor. Therefore, there was monetary restitution in these circumstances. [406 no question on July 10 as to the continued majority U.S. at 294A 295-296o Qstatus of the Union. Moreover, the Union's demand for U.O. at ZV^, 2yj-ZyO.J..,, ,T _T recognition was made by the Union and received by Re- In the instant case unit employees were told on July spondent on July 10. Remarks by Supervisor Sanchez 10, 1979, that the employees would be rehired. The certi- and Ladner during the July 10 through July 13 period ficates of termination of employment of unit employees led employees to believe that working conditions would stated, among other things: not be changed. Ladner told employee Ladner that he should indicate on his employment application that he Frigitemp Marine Div. Plant #3 will cease all oper- would accept the same wages he received under the ations under the bankruptcy trustee effective July predecessor employer. 10, at 3:15 p.m. (plant sold to others). Present em- Moreover, I do not view as significant Respondent's ployees may be eligible for rehire with the new failure immediately to employ the entire bargaining unit company (contact personnel department). work force of the predecessor, in view of the unrebutted evidence that Plant Superintendent Sanchez told the em- Several employees testified that there was no mention ployees on July 10 that eventually all of the pred- that their terms and conditions of employment would be ecessor's employees would be coming back to work. different under Respondent. Moreover, those employees On July 11, 1979, Stanley Gaudet talked with Superin- testified that, when they started work again on July 17, tendent Sanchez. According to Gaudet's unrebutted testi- they were employed at their old jobs with the same wages. ' On July 10 employees were told that they could we f July 17. The evidence does not show that ay of those 68 em- ployees received wages different from what they had been paid by the 'As indicated above, the parties stipulated that of all former employees predecessor employer. rehired during the entire month of July 1979 only four were employed at ' There was a 1-week hiatus in production from July 10, when the wages different from the wages they had received under the predecessor trustee ceased production, until July 17, when production was com- employer. However, the evidence docs not reflect that those four, or any menced by Respondent. In view of the evidence herein which demon- other employees, were told on or before July 17 that the wages of the strates that Respondent resumed substantially the same operation with four employees would be different. The record does not reflect how substantially the same work force and supervision, in the same plant, I do many employees were hired in July. However, 68 were hired during the not find that the short hiatus affected Respondent's successorship role. TURNBULL ENTERPRISES, INC. 939 ployer has hired his full complement of employees submit their applications for employment with Respond- that he has a duty to bargain with a union, since it ent when they returned on Friday, July 13, to pick up will not be evident until then that the bargaining their paychecks. The employees were furnished applica- representative represents a majority of the employ- tion forms attached to the termination notices which ees in the unit as required by § 9(a) of the Act, 29 they were given by their supervisor on July 10. Employ- U.S.C. § 159(a). Here, for example, Burns' obliga- ee Ronald Ladner testified that he was assisted in com- tion to bargain with the union did not mature until pleting his employment application by his supervisor it had selected its force of guards late in June. The (also named Ronald Ladner) and that the supervisor, in Board quite properly found that Burns refused to response to the employee's question as to what wage rate bargain on July 12 when it rejected the overtures of he should indicate that he desired on his application the union. It is true that the wages it paid when it form, told the employee to put down what he was began protecting the Lockheed plant on July 1 dif- making with Frigitemp. Ladner also testified that when fered from those specified in the Wackenhut collec- he returned to work on July 17, the employees took up tive-bargaining agreement, but there is no evidence theirjobs where they had left off on July 10. that Bums ever unilaterally changed the terms and The evidence regarding the size of either the pred- conditions of employment it had offered to potential ecessor's or Respondent's unit work force is incomplete. employees in June after its obligation to bargain However, it is clear that there were no more than 92 with the union became apparent. If the union had unit employees employed by the predecessor employer made a request to bargain after Burns had complet- on July 10. It is also clear that Respondent hired 68 em- ed its hiring and if Bums had negotiated in good ployees during the week of July 17,1 and all 68 of those faith and had made offers to the union which the e w employed by the predecessor employer. union rejected, Bums couldhaveunilaterallyinitiat- The record does not show how many more employees of ed such proposals as the opening terms and condi- tion ofempoymnt n Jly wihou comiting the predecessor employer were hired during July or, tions of employment on July 1 without committing ^J epnet an unfair labor practice. Cf. N.LR.B. v. Katz, 369 subseuentl, by Repnet U.S. 736, 745 n. 12 (1962); N.L.R.B. v. Fitzgerald U nder the circumstances, I find that the unrebutted Mills Corp., 313 F.2d 260, 272-273, 52 LRRM 2174 evidence reflects that Respondent did not take action to (C.A. 2) cert. denied 375 U.S. 834 (1963); N.L.R.B. set initial term s and conditions of employment which v. Southern Coach &t Body Co., 336 F.2d 214, 217 w ere d iffer ent fr om those under the predecessor employ- (C.A. 5, 1964). The Board's order requiring Burns er , befor e incurring an obligation to recognize and bar- to make whole its employees for any losses suffered gain with the Union. In that regard, I note, that although by reason of Burns' refusal to honor and enforce the some of Plant Superintendent Sanchez' July 10 remarks contract, cannot therefore be sustained on the demonstrated a question as to if, or when, all of the unit ground that Burns unilaterally changed existing employees would be rehired, the evidence shows that terms and conditions of employment, thereby com- Respondent's bargaining unit jobs included only former mitting an unfair labor practice which required unit employees of the predecessor. Therefore, there was monetary restitution in these circumstances. [406 no question on July 10 as to the continued majority U.S. at 294A 295-296o Qstatus of the Union. Moreover, the Union's demand for U.O. at ZV^, 2yj-ZyO.J..,, ,T _T recognition was made by the Union and received by Re- In the instant case unit employees were told on July spondent on July 10. Remarks by Supervisor Sanchez 10, 1979, that the employees would be rehired. The certi- and Ladner during the July 10 through July 13 period ficates of termination of employment of unit employees led employees to believe that working conditions would stated, among other things: not be changed. Ladner told employee Ladner that he should indicate on his employment application that he Frigitemp Marine Div. Plant #3 will cease all oper- would accept the same wages he received under the ations under the bankruptcy trustee effective July predecessor employer. 10, at 3:15 p.m. (plant sold to others). Present em- Moreover, I do not view as significant Respondent's ployees may be eligible for rehire with the new failure immediately to employ the entire bargaining unit company (contact personnel department). work force of the predecessor, in view of the unrebutted evidence that Plant Superintendent Sanchez told the em- Several employees testified that there was no mention ployees on July 10 that eventually all of the pred- that their terms and conditions of employment would be ecessor's employees would be coming back to work. different under Respondent. Moreover, those employees On July 11, 1979, Stanley Gaudet talked with Superin- testified that, when they started work again on July 17, tendent Sanchez. According to Gaudet's unrebutted testi- they were employed at their old jobs with the same wages. ' On July 10 employees were told that they could we f July 17. The evidence does not show that ay of those 68 em- ployees received wages different from what they had been paid by the 'As indicated above, the parties stipulated that of all former employees predecessor employer. rehired during the entire month of July 1979 only four were employed at ' There was a 1-week hiatus in production from July 10, when the wages different from the wages they had received under the predecessor trustee ceased production, until July 17, when production was com- employer. However, the evidence docs not reflect that those four, or any menced by Respondent. In view of the evidence herein which demon- other employees, were told on or before July 17 that the wages of the strates that Respondent resumed substantially the same operation with four employees would be different. The record does not reflect how substantially the same work force and supervision, in the same plant, I do many employees were hired in July. However, 68 were hired during the not find that the short hiatus affected Respondent's successorship role. TURNBULL ENTERPRISES, INC. 939 ployer has hired his full complement of employees submit their applications for employment with Respond- that he has a duty to bargain with a union, since it ent when they returned on Friday, July 13, to pick up will not be evident until then that the bargaining their paychecks. The employees were furnished applica- representative represents a majority of the employ- tion forms attached to the termination notices which ees in the unit as required by § 9(a) of the Act, 29 they were given by their supervisor on July 10. Employ- U.S.C. § 159(a). Here, for example, Burns' obliga- ee Ronald Ladner testified that he was assisted in com- tion to bargain with the union did not mature until pleting his employment application by his supervisor it had selected its force of guards late in June. The (also named Ronald Ladner) and that the supervisor, in Board quite properly found that Burns refused to response to the employee's question as to what wage rate bargain on July 12 when it rejected the overtures of he should indicate that he desired on his application the union. It is true that the wages it paid when it form, told the employee to put down what he was began protecting the Lockheed plant on July 1 dif- making with Frigitemp. Ladner also testified that when fered from those specified in the Wackenhut collec- he returned to work on July 17, the employees took up tive-bargaining agreement, but there is no evidence theirjobs where they had left off on July 10. that Bums ever unilaterally changed the terms and The evidence regarding the size of either the pred- conditions of employment it had offered to potential ecessor's or Respondent's unit work force is incomplete. employees in June after its obligation to bargain However, it is clear that there were no more than 92 with the union became apparent. If the union had unit employees employed by the predecessor employer made a request to bargain after Burns had complet- on July 10. It is also clear that Respondent hired 68 em- ed its hiring and if Bums had negotiated in good ployees during the week of July 17,1 and all 68 of those faith and had made offers to the union which the e w employed by the predecessor employer. union rejected, Bums couldhaveunilaterallyinitiat- The record does not show how many more employees of ed such proposals as the opening terms and condi- tion ofempoymnt n Jly wihou comiting the predecessor employer were hired during July or, tions of employment on July 1 without committing ^J epnet an unfair labor practice. Cf. N.LR.B. v. Katz, 369 subseuentl, by Repnet U.S. 736, 745 n. 12 (1962); N.L.R.B. v. Fitzgerald U nder the circumstances, I find that the unrebutted Mills Corp., 313 F.2d 260, 272-273, 52 LRRM 2174 evidence reflects that Respondent did not take action to (C.A. 2) cert. denied 375 U.S. 834 (1963); N.L.R.B. set initial term s and conditions of employment which v. Southern Coach &t Body Co., 336 F.2d 214, 217 w ere d iffer ent fr om those under the predecessor employ- (C.A. 5, 1964). The Board's order requiring Burns er , befor e incurring an obligation to recognize and bar- to make whole its employees for any losses suffered gain with the Union. In that regard, I note, that although by reason of Burns' refusal to honor and enforce the some of Plant Superintendent Sanchez' July 10 remarks contract, cannot therefore be sustained on the demonstrated a question as to if, or when, all of the unit ground that Burns unilaterally changed existing employees would be rehired, the evidence shows that terms and conditions of employment, thereby com- Respondent's bargaining unit jobs included only former mitting an unfair labor practice which required unit employees of the predecessor. Therefore, there was monetary restitution in these circumstances. [406 no question on July 10 as to the continued majority U.S. at 294A 295-296o Qstatus of the Union. Moreover, the Union's demand for U.O. at ZV^, 2yj-ZyO.J..,, ,T _T recognition was made by the Union and received by Re- In the instant case unit employees were told on July spondent on July 10. Remarks by Supervisor Sanchez 10, 1979, that the employees would be rehired. The certi- and Ladner during the July 10 through July 13 period ficates of termination of employment of unit employees led employees to believe that working conditions would stated, among other things: not be changed. Ladner told employee Ladner that he should indicate on his employment application that he Frigitemp Marine Div. Plant #3 will cease all oper- would accept the same wages he received under the ations under the bankruptcy trustee effective July predecessor employer. 10, at 3:15 p.m. (plant sold to others). Present em- Moreover, I do not view as significant Respondent's ployees may be eligible for rehire with the new failure immediately to employ the entire bargaining unit company (contact personnel department). work force of the predecessor, in view of the unrebutted evidence that Plant Superintendent Sanchez told the em- Several employees testified that there was no mention ployees on July 10 that eventually all of the pred- that their terms and conditions of employment would be ecessor's employees would be coming back to work. different under Respondent. Moreover, those employees On July 11, 1979, Stanley Gaudet talked with Superin- testified that, when they started work again on July 17, tendent Sanchez. According to Gaudet's unrebutted testi- they were employed at their old jobs with the same wages. ' On July 10 employees were told that they could we f July 17. The evidence does not show that ay of those 68 em- ployees received wages different from what they had been paid by the 'As indicated above, the parties stipulated that of all former employees predecessor employer. rehired during the entire month of July 1979 only four were employed at ' There was a 1-week hiatus in production from July 10, when the wages different from the wages they had received under the predecessor trustee ceased production, until July 17, when production was com- employer. However, the evidence docs not reflect that those four, or any menced by Respondent. In view of the evidence herein which demon- other employees, were told on or before July 17 that the wages of the strates that Respondent resumed substantially the same operation with four employees would be different. The record does not reflect how substantially the same work force and supervision, in the same plant, I do many employees were hired in July. However, 68 were hired during the not find that the short hiatus affected Respondent's successorship role. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony, Sanchez told him that "hopefully, all of the the General Counsel's staff considering an appeal by the people would be hired back within the week or 10 Charging Party of the refusal of Region 15 to incorpo- days." Sanchez told Gaudet that the employees would be rate certain allegations of the charge into the complaint. paid the same pay scale. Gaudet asked if the employees The hearing was held on September 22 and 23, 1980. would be hired in seniority, and Sanchez replied that as Under those circumstances, I hereby deny Respondent's close as he could, but that Gaudet knew that Sanchez motion to dismiss on the ground of laches. See Preston did not like the seniority part of the contract. H. Haskell Company, 238 NLRB 943 (1978). Gaudet testified that he had a similar conversation Respondent also argues that the complaint should be with Sanchez on July 13. dismissed because of the provisions of the Bankruptcy Therefore, the evidence reflects that all communica- Act. Respondent purchased its Gulfport facility from the tions with the employees and their representative during trustee in bankruptcy free and clear of all liens and other the week of their termination demonstrated that the bar- interests. However, despite the bankruptcy petition of gaining unit employees would be rehired under the same Frigitemp, the trustee continued to make payments to working conditions. Moreover, nothing was said to the the Health and Welfare Fund in accordance with the employees which would indicate an intent by Respond- practice established by Frigitemp's collective-bargaining ent to change the terms and conditions of employment. agreement with the Union. I find no merit in Respond- The Board, in a similar case, held: ent's contention. See Makaha Valley, Inc., 241 NLRB 300 (1979). In other words, there is nothing to indicate that the (199) employees were aware of any proposed changes in Respondent also contends a variance exists between employees were aware of any proposed changes in employment benefits at the time Respondent ex- the charge and the complaint, in that the charge does not pressed its intent to retain them. Accordingly, as allege "refusal to contribute to the [Health and Welfare] fund." The charge alleges that Respondent violated Sec- Respondent "failed to clearly announce its intent to T h e ch a rg e al le ges a ec establish a new set of conditions prior to inviting tion 8(a)(l), (3), and (5) of the Act. The 8(a)(5) allegation former employees to accept employment," (Spruce contained in the charge broadly alleges that "on or about Up, 209 NLRB at 195), we conclude that this case July 1, 1979, and at all times since that date, it, by its falls within the Burns exception. Consequently, Re- officers, agents and representatives, refused to bargain spondent was obligated to bargain with the Union collectively with Sheet Metal Workers International As- before making any changes in existing terms and sociation, Local No. 11, a labor organization chosen by a conditions of employment. Charles Starbuck and majority of its employees in an appropriate unit for the Diane Starbuck d/b/a Starco Farmers Market, 237 purpose of collective bargaining in respect to rates of NLRB 373, 374 (1978).] pay, wages, hours of employment and other conditions of employment." The Board has continually held that I am convinced that the instant case falls squarely such a charge justifies more specific allegations similar to within the "perfectly clear" test outlined in Burns, supra. those made by the General Counsel herein. Therefore, By its language, "[i]n other situations, however, it may Respondent's motion is denied. See Griffin Inns, Owner not be clear until the successor employer has hired his and Operator of Sheraton Motor Inn (Woodhaven, Michi- full complement of employees that he had a duty to bar- gan), 229 NLRB 199, fn. 3 (1977). gain with a union,"'° the Supreme Court demonstrates Respondent also argues that it was prohibited by Sec- that the underlying question in applying the "perfectly tion 302(c)(5) from making contributions to the Health clear" test is when does the obligation to bargain arise? and Welfare Fund because it was not party to a collec- The evidence herein demonstrates that Respondent's bar- tive-bargaining agreement requiring such contributions. gaining obligation commenced on July 10, 1979, when In Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, the Union made its demand at a time when Respondent 223 NLRB 260, 264 (1976), the Board agreed with Ad- fully realized that its anticipated work force was repre- ministrative Law Judge Boyce's holding that Section sented by the Union. 302(c)(5) "was aimed at practices which Congress con- Therefore, I find that from July 10, 1979, Respondent sidered inimical to the integrity of the collective bargain- had an obligation to bargain with the Union before ing process. ... . Those members of Congress who sup- making unilateral changes in working conditions. ported the amendment were concerned with corruption of collective bargaining through bribery of employee B. Respondent's Motions representatives by employers," and that amendment was .. , its brie, counl fr not intended to preclude an employer's payment into a During the hearing, and again in its brief, counsel for During the hearig, ad a i in fund for the benefit of its employees, even though the Respondent moved for dismissal. Respondent argues that fund for the benefit of its employees, even though the Respondent moved fo diismissal. Respondent argues ta * collective-bargaining agreement had expired. I find the the hearing should be barred by the doctrine of laches. collective-bargaining agreement had expired I find the The allegations herein allegedly commenced during situation herein is similar to that in Wayne's Dairy. Re- The allegations herein allegedly commenced during July 1979. The charges were filed on November 14, spondent's contention in this regard is hereby rejected. See Starco Farmers Market, supra. 1979. The complaint issued on February 20, 1980. Re- See Starco Farmers Market supra spondent argues that the hearing, which was originally C. The Alleged Unilateral Change scheduled for June 11, 1980, was postponed. That post- ponement, according to Respondent's brief, resulted from The evidence is undisputed that Respondent failed to make contributions on behalf of its unit employees to the '0 N.LRB. v. Burns International Security Services supra. Health and Welfare Fund. The collective-bargaining 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony, Sanchez told him that "hopefully, all of the the General Counsel's staff considering an appeal by the people would be hired back within the week or 10 Charging Party of the refusal of Region 15 to incorpo- days." Sanchez told Gaudet that the employees would be rate certain allegations of the charge into the complaint. paid the same pay scale. Gaudet asked if the employees The hearing was held on September 22 and 23, 1980. would be hired in seniority, and Sanchez replied that as Under those circumstances, I hereby deny Respondent's close as he could, but that Gaudet knew that Sanchez motion to dismiss on the ground of laches. See Preston did not like the seniority part of the contract. H. Haskell Company, 238 NLRB 943 (1978). Gaudet testified that he had a similar conversation Respondent also argues that the complaint should be with Sanchez on July 13. dismissed because of the provisions of the Bankruptcy Therefore, the evidence reflects that all communica- Act. Respondent purchased its Gulfport facility from the tions with the employees and their representative during trustee in bankruptcy free and clear of all liens and other the week of their termination demonstrated that the bar- interests. However, despite the bankruptcy petition of gaining unit employees would be rehired under the same Frigitemp, the trustee continued to make payments to working conditions. Moreover, nothing was said to the the Health and Welfare Fund in accordance with the employees which would indicate an intent by Respond- practice established by Frigitemp's collective-bargaining ent to change the terms and conditions of employment. agreement with the Union. I find no merit in Respond- The Board, in a similar case, held: ent's contention. See Makaha Valley, Inc., 241 NLRB 300 (1979). In other words, there is nothing to indicate that the (1979). employees were aware of any proposed changes in R es p o also c e a vaiac e b ete employment benefits at the time Respondent ex- th e c h a r g e a nd th e complaint, in that the charge does not pressed its intent to retain them. Accordingly, as all eg e "r ef usal t o contribute to the [Health and Welfare] Respondent "failed to clearly announce its intent to fund." T h e c h a r g e al le ge s tht R n vilae s ec - establish a new set of conditions prior to inviting tion 8(a)(l), (3), and (5) of the Act. The 8(a)(5) allegation former employees to accept employment," (Spruce c o n t aine d in t h e charge broadly alleges that "on or about Up, 209 NLRB at 195), we conclude that this case July 1, 1979 , an d a t all tim es sinc e t h at d at e, it, by it s falls within the Burns exception. Consequently, Re- o f ic e r s, a ge n ts an d r ep r ese n t ativ es, r ef u se d t o b ar g a in spondent was obligated to bargain with the Union collectively with Sheet Metal Workers International As- sociation, Local No. II, a labor organization chosen by a before making any changes in existing terms and o c l t yo fi emp l o; in a a ppropriateon for the conditions of employment. (Charles Starbuck and "j 0 "^ o f it s employees in an appropriate unit for the Diane Starbuck d/b/a Starco Farmers Market, 237 purpose o f collective bargaining in respect to rates of NLRB 373, 374 (1978).] pay, w ages, hours of employment and other conditions of employment." The Board has continually held that I am convinced that the instant case falls squarely such a charge justifies more specific allegations similar to within the "perfectly clear" test outlined in Burns, supra. t h o se made by the General Counsel herein. Therefore, By its language, "[i]n other situations, however, it may Respondent's motion is denied. See Griffin Inns, Owner not be clear until the successor employer has hired his an" Operator of Sheraton Motor Inn (Woodhaven, Michi- full complement of employees that he had a duty to bar- gan), 229 NLRB 199, fn. 3 (1977). gain with a union,"" 0 the Supreme Court demonstrates Respondent also argues that it was prohibited by Sec- that the underlying question in applying the "perfectly tion 302(c)(5) from making contributions to the Health clear" test is when does the obligation to bargain arise? and Welfare Fund because it was not party to a collec- The evidence herein demonstrates that Respondent's bar- tive-bargaining agreement requiring such contributions. gaining obligation commenced on July 10, 1979, when In Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, the Union made its demand at a time when Respondent 223 NLRB 260, 264 (1976), the Board agreed with Ad- fully realized that its anticipated work force was repre- ministrative Law Judge Boyce's holding that Section sented by the Union. 302(c)(5) "was aimed at practices which Congress con- Therefore, I find that from July 10, 1979, Respondent sidered inimical to the integrity of the collective bargain- had an obligation to bargain with the Union before ing process. . . . Those members of Congress who sup- making unilateral changes in working conditions. ported the amendment were concerned with corruption of collective bargaining through bribery of employee B. Respondent's Motions representatives by employers," and that amendment was ,,.,,,. , * * -t u * <* ic~not intended to preclude an employer's payment into a During the hearing, and again in its brief, counsel for n i t p an employer' pye in a „ 6 , , -B ,. .B , „ , . ,, ,fund for the benefit of its employees, even though the Respondent moved for dismissal. Respondent argues that fn f t b o it e e though th the hearing should be barred by the doctrine of laches. collective-bargaining agreement had expired. I find the The llegtion herin alegely cmmened dring situation herein is similar to that in Wayne's Dairy. Re- July 1979.Thechargeswere raleged on Nomvember 14nn spondent's contention in this regard is hereby rejected. ^o TI T he c h a r g es e re fi l ed o n T^RSee Starco Farmers Marker, supra. 1979. The complaint issued on February 20, 1980. Re- S spondent argues that the hearing, which was originally C. The Alleged Unilateral Change scheduled for June 11, 1980, was postponed. That post- ponement, according to Respondent's brief, resulted from The evidence is undisputed that Respondent failed to make contributions on behalf of its unit employees to the 10 N.LRB. v. Burns International Security Services supra.Health and Welfare Fund. The collective-bargaining 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony, Sanchez told him that "hopefully, all of the the General Counsel's staff considering an appeal by the people would be hired back within the week or 10 Charging Party of the refusal of Region 15 to incorpo- days." Sanchez told Gaudet that the employees would be rate certain allegations of the charge into the complaint. paid the same pay scale. Gaudet asked if the employees The hearing was held on September 22 and 23, 1980. would be hired in seniority, and Sanchez replied that as Under those circumstances, I hereby deny Respondent's close as he could, but that Gaudet knew that Sanchez motion to dismiss on the ground of laches. See Preston did not like the seniority part of the contract. H. Haskell Company, 238 NLRB 943 (1978). Gaudet testified that he had a similar conversation Respondent also argues that the complaint should be with Sanchez on July 13. dismissed because of the provisions of the Bankruptcy Therefore, the evidence reflects that all communica- Act. Respondent purchased its Gulfport facility from the tions with the employees and their representative during trustee in bankruptcy free and clear of all liens and other the week of their termination demonstrated that the bar- interests. However, despite the bankruptcy petition of gaining unit employees would be rehired under the same Frigitemp, the trustee continued to make payments to working conditions. Moreover, nothing was said to the the Health and Welfare Fund in accordance with the employees which would indicate an intent by Respond- practice established by Frigitemp's collective-bargaining ent to change the terms and conditions of employment. agreement with the Union. I find no merit in Respond- The Board, in a similar case, held: ent's contention. See Makaha Valley, Inc., 241 NLRB 300 (1979). In other words, there is nothing to indicate that the (1979). employees were aware of any proposed changes in R es p o also c e a vaiac e b ete employment benefits at the time Respondent ex- th e c h a r g e a nd th e complaint, in that the charge does not pressed its intent to retain them. Accordingly, as all eg e "r ef usal t o contribute to the [Health and Welfare] Respondent "failed to clearly announce its intent to fund." T h e c h a r g e al le ge s tht R n vilae s ec - establish a new set of conditions prior to inviting tion 8(a)(l), (3), and (5) of the Act. The 8(a)(5) allegation former employees to accept employment," (Spruce c o n t aine d in t h e charge broadly alleges that "on or about Up, 209 NLRB at 195), we conclude that this case July 1, 1979 , an d a t all tim es since that date, it, by its falls within the Burns exception. Consequently, Re- o f ic e r s, a ge n ts an d r ep r ese n t ativ es, r ef u se d t o b ar g a in spondent was obligated to bargain with the Union collectively with Sheet Metal Workers International As- sociation, Local No. II, a labor organization chosen by a before making any changes in existing terms and o c l t yo fi emp l o; in a a ppropriateon for the conditions of employment. (Charles Starbuck and "j 0 "^ o f *ts employees in an appropriate unit for the Diane Starbuck d/b/a Starco Farmers Market, 237 purpose o f collective bargaining in respect to rates of NLRB 373, 374 (1978).] pay, w ages, hours of employment and other conditions of employment." The Board has continually held that I am convinced that the instant case falls squarely such a charge justifies more specific allegations similar to within the "perfectly clear" test outlined in Burns, supra. those made by the General Counsel herein. Therefore, By its language, "[i]n other situations, however, it may Respondent's motion is denied. See Griffin Inns, Owner not be clear until the successor employer has hired his an" Operator of Sheraton Motor Inn (Woodhaven, Michi- full complement of employees that he had a duty to bar- gan), 229 NLRB 199, fn. 3 (1977). gain with a union,"" 0 the Supreme Court demonstrates Respondent also argues that it was prohibited by Sec- that the underlying question in applying the "perfectly tion 302(c)(5) from making contributions to the Health clear" test is when does the obligation to bargain arise? and Welfare Fund because it was not party to a collec- The evidence herein demonstrates that Respondent's bar- tive-bargaining agreement requiring such contributions. gaining obligation commenced on July 10, 1979, when In Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, the Union made its demand at a time when Respondent 223 NLRB 260, 264 (1976), the Board agreed with Ad- fully realized that its anticipated work force was repre- ministrative Law Judge Boyce's holding that Section sented by the Union. 302(c)(5) "was aimed at practices which Congress con- Therefore, I find that from July 10, 1979, Respondent sidered inimical to the integrity of the collective bargain- had an obligation to bargain with the Union before ing process. . . . Those members of Congress who sup- making unilateral changes in working conditions. ported the amendment were concerned with corruption of collective bargaining through bribery of employee B. Respondent's Motions representatives by employers," and that amendment was ,,.,,,. , * * -t u * <* ic~not intended to preclude an employer's payment into a During the hearing, and again in its brief, counsel for n i t p an employer' pye in a „ 6 , , -B ,. .B , „ , . ,, ,fund for the benefit of its employees, even though the Respondent moved for dismissal. Respondent argues that fn f t b o it e e though th the hearing should be barred by the doctrine of laches. collective-bargaining agreement had expired. I find the The llegtion herin alegely cmmened dring situation herein is similar to that in Wayne's Dairy. Re- July 1979.Thechargeswere raleged on Nomvember 14nn spondent's contention in this regard is hereby rejected. ^o TI T he c h a r g es e re fi l ed o n T^RSee Starco Farmers Marker, supra. 1979. The complaint issued on February 20, 1980. Re- S spondent argues that the hearing, which was originally C. The Alleged Unilateral Change scheduled for June 11, 1980, was postponed. That post- ponement, according to Respondent's brief, resulted from The evidence is undisputed that Respondent failed to make contributions on behalf of its unit employees to the 10 N.LRB. v. Burns International Security Services supra.Health and Welfare Fund. The collective-bargaining 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony, Sanchez told him that "hopefully, all of the the General Counsel's staff considering an appeal by the people would be hired back within the week or 10 Charging Party of the refusal of Region 15 to incorpo- days." Sanchez told Gaudet that the employees would be rate certain allegations of the charge into the complaint. paid the same pay scale. Gaudet asked if the employees The hearing was held on September 22 and 23, 1980. would be hired in seniority, and Sanchez replied that as Under those circumstances, I hereby deny Respondent's close as he could, but that Gaudet knew that Sanchez motion to dismiss on the ground of laches. See Preston did not like the seniority part of the contract. H. Haskell Company, 238 NLRB 943 (1978). Gaudet testified that he had a similar conversation Respondent also argues that the complaint should be with Sanchez on July 13. dismissed because of the provisions of the Bankruptcy Therefore, the evidence reflects that all communica- Act. Respondent purchased its Gulfport facility from the tions with the employees and their representative during trustee in bankruptcy free and clear of all liens and other the week of their termination demonstrated that the bar- interests. However, despite the bankruptcy petition of gaining unit employees would be rehired under the same Frigitemp, the trustee continued to make payments to working conditions. Moreover, nothing was said to the the Health and Welfare Fund in accordance with the employees which would indicate an intent by Respond- practice established by Frigitemp's collective-bargaining ent to change the terms and conditions of employment. agreement with the Union. I find no merit in Respond- The Board, in a similar case, held: ent's contention. See Makaha Valley, Inc., 241 NLRB 300 (1979). In other words, there is nothing to indicate that the (1979). employees were aware of any proposed changes in R es p o also c e a vaiac e b ete employment benefits at the time Respondent ex- th e c h a r g e a nd th e complaint, in that the charge does not pressed its intent to retain them. Accordingly, as all eg e "r ef usal t o contribute to the [Health and Welfare] Respondent "failed to clearly announce its intent to fund." T h e c h a r g e al le ge s tht an vilae s ec - establish a new set of conditions prior to inviting tion 8(a)(l), (3), and (5) of the Act. The 8(a)(5) allegation former employees to accept employment," (Spruce c o n t aine d in t h e charge broadly alleges that "on or about Up, 209 NLRB at 195), we conclude that this case July 1, 1979 , an d a t all tim es since that date, it, by its falls within the Burns exception. Consequently, Re- o f ic e r s, a ge n ts an d r ep r ese n t ativ es, r ef u se d t o b ar g a in spondent was obligated to bargain with the Union collectively with Sheet Metal Workers International As- sociation, Local No. II, a labor organization chosen by a before making any changes in existing terms and o c l t yo fi emp l o; in a a ppropriateon for the conditions of employment. (Charles Starbuck and "j 0 "^ o f *ts employees in an appropriate unit for the Diane Starbuck d/b/a Starco Farmers Market, 237 purpose o f collective bargaining in respect to rates of NLRB 373, 374 (1978).] pay, w ages, hours of employment and other conditions of employment." The Board has continually held that I am convinced that the instant case falls squarely such a charge justifies more specific allegations similar to within the "perfectly clear" test outlined in Burns, supra. those made by the General Counsel herein. Therefore, By its language, "[i]n other situations, however, it may Respondent's motion is denied. See Griffin Inns, Owner not be clear until the successor employer has hired his an" Operator of Sheraton Motor Inn (Woodhaven, Michi- full complement of employees that he had a duty to bar- gan), 229 NLRB 199, fn. 3 (1977). gain with a union,"" 0 the Supreme Court demonstrates Respondent also argues that it was prohibited by Sec- that the underlying question in applying the "perfectly tion 302(c)(5) from making contributions to the Health clear" test is when does the obligation to bargain arise? and Welfare Fund because it was not party to a collec- The evidence herein demonstrates that Respondent's bar- tive-bargaining agreement requiring such contributions. gaining obligation commenced on July 10, 1979, when In Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, the Union made its demand at a time when Respondent 223 NLRB 260, 264 (1976), the Board agreed with Ad- fully realized that its anticipated work force was repre- ministrative Law Judge Boyce's holding that Section sented by the Union. 302(c)(5) "was aimed at practices which Congress con- Therefore, I find that from July 10, 1979, Respondent sidered inimical to the integrity of the collective bargain- had an obligation to bargain with the Union before ing process. . . . Those members of Congress who sup- making unilateral changes in working conditions. ported the amendment were concerned with corruption of collective bargaining through bribery of employee B. Respondent's Motions representatives by employers," and that amendment was ,,.,,,. , * * -t u * f ic~not intended to preclude an employer's payment into a During the hearing, and again in its brief, counsel for n i t p an employer' pye in a „ 6 , , -B ,. .B , „ , . ,, ,fund for the benefit of its employees, even though the Respondent moved for dismissal. Respondent argues that fn f t b o it e e though th the hearing should be barred by the doctrine of laches. collective-bargaining agreement had expired. I find the The llegtion herin alegely cmmened dring situation herein is similar to that in Wayne's Dairy. Re- July 1979.Thechargeswere raleged on Nomvember 14nn spondent's contention in this regard is hereby rejected. ^o TI T he c h a r g es e re fi l ed o n T^RSee Starco Farmers Marker, supra. 1979. The complaint issued on February 20, 1980. Re- S spondent argues that the hearing, which was originally C. The Alleged Unilateral Change scheduled for June 11, 1980, was postponed. That post- ponement, according to Respondent's brief, resulted from The evidence is undisputed that Respondent failed to make contributions on behalf of its unit employees to the 10 N.LRB. v. Burns International Security Services supra.Health and Welfare Fund. The collective-bargaining TURNBULL ENTERPRISES, INC. 941 agreement of Frigitemp required such contributions and amount of contributions which Respondent had failed to both Frigitemp and, subsequently, the trustee made con- make to the Health and Welfare Fund increased. That tributions in accordance with the collective-bargaining fact added to the overall cost of a potential collective- agreement until the Frigitemp operations ceased on July bargaining agreement and thereby placed the Union in 10, 1979. an increasingly difficult position regarding reinstitution However, Respondent contends that the mere failure of the Fund's plan. to make contributions to the Health and Welfare Fund Moreover, many of the differences between the Fund's does not qualify as a unilateral change in terms and con- plan and The Innovator present substantive grounds for ditions of employment. Respondent argues that the only concern by employees. The evidence demonstrated that, true measure of whether its actions constitute a unilateral once employees qualified under the Fund during any 6- change is to determine what, if any, effect its actions had month period by working 350 hours, that particular em- on employees. In that regard, Respondent contends that ployee retained coverage through the following 6-month the employees suffered no detriment by Respondent period regardless of whether his employment continued. withholding health and welfare contributions. Under The Innovator, coverage ceases if employment is Respondent bases its argument on the unique character terminated. of the Health and Welfare Fund. In accordance with the Under the Fund, appeals are considered by the Fund Fund's plan, employees qualified for coverage under the which includes representatives of employees. The Inno- plan during the last 6 months of 1979 by working for the vator would involve only employees of insurance corn- predecessor employer during the first 6 months of 1979. panies. Additionally, the evidence showed that there are Unit employees of Frigitemp, or the trustee, who other differences between the Fund and The Innovator worked at least 350 hours between January 1 and June which could reasonably cause concern among employ- 30, 1979, were qualified for benefits under the Fund from ees. July 1 through December 31, 1979, regardless of wheth- Therefore, I find that Respondent's unilateral with- er Respondent made contributions to the plan. holding of Fund contributions impacted unit employees' Therefore, Respondent argues, since its failure to con- working conditions" and violates Section 8(aX5). " tribute would not have affected any of the employees covered until January 1, 1980, there was no change in CONCLUSIONS OF LAW working conditions because another plan, The Innovator, was substituted on December 12, 1979, pursuant to its . Respondent, Turbull Enterprises, Inc., is an em- collective-bargaining agreement with the Union. From ployer engaged in commerce within the meaning of Sec- December 12, employees were covered under The Inno- tion 2(2), (6) and (7) of the Act- vator. 2. Sheet Metal Workers International Association, However, the other parties argue that Respondent's Local No. 11, is a labor organization within the meaning unilateral refusal to make contributions had an impact on of Section 2(5) of the Act. employees' working conditions. The Intervenor, in its 3. On July 10, 1979, the Union was, and has been at all brief, points to several differences between the Health times since, the exclusive bargaining representative of and Welfare Fund's plan and The Innovator which, ac- Respondent's employees in the bargaining unit described cording to the Intervenor, unlawfully affect unit employ- below within the meaning of Section 9(a) of the Act. ees' working conditions. The appropriate bargaining unit is: I am persuaded that Respondent's actions unilaterally affected unit employees' working conditions. Regardless All production and maintenance employees, clud- of whether The Innovator or the Health and Welfare ing leadpersons, electrician, janitor, plant clerical Fund appeared to Respondent to offer more to employ- employees, tool room clerk, warehouse employees ees, it remains the employees', not Respondent's, right to and wood fabrication employees, employed by the make that determination. If the employees, or their rep- Employer at its Gulfport, Mississippi facility; ex- resentative, determine that the Health and Welfare Fund cluding office clerical employees, draftsmen, com- is better suited to their needs, then the employees should i.have an opportunity to Fargain bmers Market, supra; Joe Costa Trucking Company d/b/a Joe have anopportuni o ba n before the HealCostan Trucking. 238 NLRB 1516 (1978); Bdllingham Fren Foods a Divi- Welfare Fund is abandoned. sion of San Juan Packers, 237 NLRB 1450 (1978). When Union President Gaudet talked to Respondent ' Respondent argues in its brief that the Union acquiesced in Respond- President Esposito on July 16, Esposito admitted that ent's actions and its violations were cured by it and the Union's overall Respondent would not make contributions to the Health conduct. On sveral occasions during July, Union esident Oaudet asked Respondent's representatives, Sanchez and Esposito, about making and Welfare Fund. Esposito told Gaudet, "When we sit contributions to the Health and Welfare Fund. During the August 22 ne- down and negotiate, if we owe you something, we will gotiation session, Gaudet asked Esposito to start making contributions to pay you at that time." the Fund. During negotiations, the Union continued to negotiate toward Subsequently, the parties met and negotiated on var- restoration of the Fund through its November I strike until they finally Subsequently, e parties met and ngcapitulated to Respondent's demand that the Fund be replaced with an ioUS occasions from August through December 12, 1979. insurance company plan on December 12, 1979. Under those circum- Eventually, a collective-bargaining agreement was stances, I find that the Union did not acquiesce in Respondent's with- reached on December 12. holding Fund contributions. Moreover, I see nothing in either the However, Respondent refused to incorporate the Uion's or Respondent's conduct which cured the violation. In that regard, even though Esposito told Gaudet on July 16, "If we owe you Health and Welfare Fund's plan into the contract. As something, we will pay you," I note that Fund contributions were never time wore on, during those negotiations, the total made. TURNBULL ENTERPRISES, INC. 941 agreement of Frigitemp required such contributions and amount of contributions which Respondent had failed to both Frigitemp and, subsequently, the trustee made con- make to the Health and Welfare Fund increased. That tributions in accordance with the collective-bargaining fact added to the overall cost of a potential collective- agreement until the Frigitemp operations ceased on July bargaining agreement and thereby placed the Union in 10, 1979. an increasingly difficult position regarding reinstitution However, Respondent contends that the mere failure of the Fund's plan. to make contributions to the Health and Welfare Fund Moreover, many of the differences between the Fund's does not qualify as a unilateral change in terms and con- plan and The Innovator present substantive grounds for ditions of employment. Respondent argues that the only concern by employees. The evidence demonstrated that, true measure of whether its actions constitute a unilateral once employees qualified under the Fund during any 6- change is to determine what, if any, effect its actions had month period by working 350 hours, that particular em- on employees. In that regard, Respondent contends that ployee retained coverage through the following 6-month the employees suffered no detriment by Respondent period regardless of whether his employment continued. withholding health and welfare contributions. Under The Innovator, coverage ceases if employment is Respondent bases its argument on the unique character terminated. of the Health and Welfare Fund. In accordance with the Under the Fund, appeals are considered by the Fund Fund's plan, employees qualified for coverage under the which includes representatives of employees. The Inno- plan during the last 6 months of 1979 by working for the vator would involve only employees of insurance com- predecessor employer during the first 6 months of 1979. panies. Additionally, the evidence showed that there are Unit employees of Frigitemp, or the trustee, who other differences between the Fund and The Innovator worked at least 350 hours between January 1 and June which could reasonably cause concern among employ- 30, 1979, were qualified for benefits under the Fund from ees. July 1 through December 31, 1979, regardless of wheth- Therefore, I find that Respondent's unilateral with- er Respondent made contributions to the plan. holding of Fund contributions impacted unit employees' Therefore, Respondent argues, since its failure to con- working conditions" and violates Section 8(aX5). I tribute would not have affected any of the employees covered until January 1, 1980, there was no change in CONCLUSIONS OF LAW working conditions because another plan, The Innovator, was substituted on December 12, 1979, pursuant to its * Respondent, Tumbull Enterprises, Inc.. is an er- collective-bargaining agreement with the Union. From ployer engaged in commerce within the meaning of Sec- December 12, employees were covered under The Inno- tio n 2<2 ), (6), a n d (7) o f t h e A c t. vator. 2. Sheet Metal Workers International Association, However, the other parties argue that Respondent's L o c a l No. 11, is a labor organization within the meaning unilateral refusal to make contributions had an impact on of Section 2(5) of the Act. employees' working conditions. The Intervenor, in its 3. 0" July 10, 19 7 9 , the Union was, and has been at all brief, points to several differences between the Health t im e s sinc e, the exclusive bargaining representative of and Welfare Fund's plan and The Innovator which, ac- Respondent's employees in the bargaining unit described cording to the Intervenor, unlawfully affect unit employ- b e low within the meaning of Section 9(a) of the Act. ees' working conditions. T h e appropriate bargaining unit is: I am persuaded that Respondent's actions unilaterally affected unit employees' working conditions. Regardless All production and maintenance employees, includ- of whether The Innovator or the Health and Welfare ing leadpersons, electrician, janitor, plant clerical Fund appeared to Respondent to offer more to employ- employees, tool room clerk, warehouse employees ees, it remains the employees', not Respondent's, right to a nd w o o d fabrication employees, employed by the make that determination. If the employees, or their rep- Employer at its Gulfport, Mississippi facility; ex- resentative, determine that the Health and Welfare Fund cluding o ffic e c le ric al employees, draftsmen, com- is better suited to their needs, then the employees should------- i.-.- -- „_..„-*..-;». t„ i,_-__;_ bfc.-c^ .1. uelt ia. j" slron Farmers Market, supra; Joe Cmost T~rukine Company d/b/a Joe have an opportunity to bargain before the Health and Costa Truking, 238 NLRB 1516 (1978); Belingham Fratn F0n0 a Divi- Welfare Fund is abandoned. sion of San Juan Packers. 237 NLRB 1450 (1978). When Union President Gaudet talked to Respondent "1 Respondent argues in its brief that the Union acquiesced in Respond- President EspOsitO on July 16, EspOsitO admitted that e"'s actions and its violations were cured by it and the Union's overall Respondent would not make contributions to the Health conduct. On several occasions during July, Union Pesident Gaudet asked Respondent's representatives, Sanchez and Esposito, about making and Welfare Fund. Esposito told Gaudet, "When we Sit contributions to the Health and Welfare Fund. During the August 22 ne- down and negotiate, if we owe you something, we will gotiation session, Gaudet asked Esposito to start making contributions to pay you at that time." th e Fund. During negotiations, the Union continued to negotiate toward Subsequently, the parties met and negotiated on var- restoration of the Fund through its November I strike until they finally capitulated to Respondent's demand that the Fund be replaced with an ious occasions from August through December 12, 1979. insurance company plan on December 12, 1979. Under those circum- Eventually, a collective-bargaining agreement was stances, I find that the Union did not acquiesce in Respondent's with- reached on December 12. holding Fund contributions. Moreover, I see nothing in either the However, Respondent refused to incorporate the Union's or Respondent's conduct which cured the violation. In that regard, even though Esposito told Gaudet on July 16, "If we owe you Health and Welfare Fund's plan into the contract. As something, we will pay you," I note that Fund contributions were never time wore on, during those negotiations, the total made. TURNBULL ENTERPRISES, INC. 941 agreement of Frigitemp required such contributions and amount of contributions which Respondent had failed to both Frigitemp and, subsequently, the trustee made con- make to the Health and Welfare Fund increased. That tributions in accordance with the collective-bargaining fact added to the overall cost of a potential collective- agreement until the Frigitemp operations ceased on July bargaining agreement and thereby placed the Union in 10, 1979. an increasingly difficult position regarding reinstitution However, Respondent contends that the mere failure of the Fund's plan. to make contributions to the Health and Welfare Fund Moreover, many of the differences between the Fund's does not qualify as a unilateral change in terms and con- plan and The Innovator present substantive grounds for ditions of employment. Respondent argues that the only concern by employees. The evidence demonstrated that, true measure of whether its actions constitute a unilateral once employees qualified under the Fund during any 6- change is to determine what, if any, effect its actions had month period by working 350 hours, that particular em- on employees. In that regard, Respondent contends that ployee retained coverage through the following 6-month the employees suffered no detriment by Respondent period regardless of whether his employment continued. withholding health and welfare contributions. Under The Innovator, coverage ceases if employment is Respondent bases its argument on the unique character terminated. of the Health and Welfare Fund. In accordance with the Under the Fund, appeals are considered by the Fund Fund's plan, employees qualified for coverage under the which includes representatives of employees. The Inno- plan during the last 6 months of 1979 by working for the vator would involve only employees of insurance com- predecessor employer during the first 6 months of 1979. panies. Additionally, the evidence showed that there are Unit employees of Frigitemp, or the trustee, who other differences between the Fund and The Innovator worked at least 350 hours between January 1 and June which could reasonably cause concern among employ- 30, 1979, were qualified for benefits under the Fund from ees. July 1 through December 31, 1979, regardless of wheth- Therefore, I find that Respondent's unilateral with- er Respondent made contributions to the plan. holding of Fund contributions impacted unit employees' Therefore, Respondent argues, since its failure to con- working conditions" and violates Section 8(aX5). I tribute would not have affected any of the employees covered until January 1, 1980, there was no change in CONCLUSIONS OF LAW working conditions because another plan, The Innovator, was substituted on December 12, 1979, pursuant to its * Respondent, Tumbull Enterprises, Inc.. is an er- collective-bargaining agreement with the Union. From ployer engaged in commerce within the meaning of Sec- December 12, employees were covered under The Inno- tio n 2<2 ), (6), a n d (7) o f t h e A c t. vator. 2. Sheet Metal Workers International Association, However, the other parties argue that Respondent's L o c a l No. 11, is a labor organization within the meaning unilateral refusal to make contributions had an impact on of Section 2(5) of the Act. employees' working conditions. The Intervenor, in its 3. 0" July 10, 19 7 9 , the Union was, and has been at all brief, points to several differences between the Health t im e s sinc e, the exclusive bargaining representative of and Welfare Fund's plan and The Innovator which, ac- Respondent's employees in the bargaining unit described cording to the Intervenor, unlawfully affect unit employ- b e low within the meaning of Section 9(a) of the Act. ees' working conditions. T h e appropriate bargaining unit is: I am persuaded that Respondent's actions unilaterally affected unit employees' working conditions. Regardless All production and maintenance employees, includ- of whether The Innovator or the Health and Welfare ing leadpersons, electrician, janitor, plant clerical Fund appeared to Respondent to offer more to employ- employees, tool room clerk, warehouse employees ees, it remains the employees', not Respondent's, right to a nd w o o d fabrication employees, employed by the make that determination. If the employees, or their rep- Employer at its Gulfport, Mississippi facility; ex- resentative, determine that the Health and Welfare Fund cluding o ffic e c le ric al employees, draftsmen, com- is better suited to their needs, then the employees should------- i.-.- -- „_..„-*..-;». t„ i,_-__;_ bfc.-c^ .1. uelt ia. j" slron Farmers Market, supra; Joe Cmost T~rukine Company d/b/a Joe have an opportunity to bargain before the Health and Costa Truking, 238 NLRB 1516 (1978); Belingham Fratn F0n0 a Divi- Welfare Fund is abandoned. sion of San Juan Packers. 237 NLRB 1450 (1978). When Union President Gaudet talked to Respondent "1 Respondent argues in its brief that the Union acquiesced in Respond- President EspOsitO on July 16, EspOsitO admitted that e"'s actions and its violations were cured by it and the Union's overall Respondent would not make contributions to the Health conduct. On several occasions during July, Union Pesident Gaudet asked Respondent's representatives, Sanchez and Esposito, about making and Welfare Fund. Esposito told Gaudet, "When we Sit contributions to the Health and Welfare Fund. During the August 22 ne- down and negotiate, if we owe you something, we will gotiation session, Gaudet asked Esposito to start making contributions to pay you at that time." th e Fund. During negotiations, the Union continued to negotiate toward Subsequently, the parties met and negotiated on var- restoration of the Fund through its November I strike until they finally capitulated to Respondent's demand that the Fund be replaced with an ious occasions from August through December 12, 1979. insurance company plan on December 12, 1979. Under those circum- Eventually, a collective-bargaining agreement was stances, I find that the Union did not acquiesce in Respondent's with- reached on December 12. holding Fund contributions. Moreover, I see nothing in either the However, Respondent refused to incorporate the U n io n's o r Respondent's conduct which cured the violation. In that regard, even though Esposito told Gaudet on July 16, "If we owe you Health and Welfare Fund's plan into the contract. As something, we will pay you," I note that Fund contributions were never time wore on, during those negotiations, the total made. TURNBULL ENTERPRISES, INC. 941 agreement of Frigitemp required such contributions and amount of contributions which Respondent had failed to both Frigitemp and, subsequently, the trustee made con- make to the Health and Welfare Fund increased. That tributions in accordance with the collective-bargaining fact added to the overall cost of a potential collective- agreement until the Frigitemp operations ceased on July bargaining agreement and thereby placed the Union in 10, 1979. an increasingly difficult position regarding reinstitution However, Respondent contends that the mere failure of the Fund's plan. to make contributions to the Health and Welfare Fund Moreover, many of the differences between the Fund's does not qualify as a unilateral change in terms and con- plan and The Innovator present substantive grounds for ditions of employment. Respondent argues that the only concern by employees. The evidence demonstrated that, true measure of whether its actions constitute a unilateral once employees qualified under the Fund during any 6- change is to determine what, if any, effect its actions had month period by working 350 hours, that particular em- on employees. In that regard, Respondent contends that ployee retained coverage through the following 6-month the employees suffered no detriment by Respondent period regardless of whether his employment continued. withholding health and welfare contributions. Under The Innovator, coverage ceases if employment is Respondent bases its argument on the unique character terminated. of the Health and Welfare Fund. In accordance with the Under the Fund, appeals are considered by the Fund Fund's plan, employees qualified for coverage under the which includes representatives of employees. The Inno- plan during the last 6 months of 1979 by working for the vator would involve only employees of insurance com- predecessor employer during the first 6 months of 1979. panies. Additionally, the evidence showed that there are Unit employees of Frigitemp, or the trustee, who other differences between the Fund and The Innovator worked at least 350 hours between January 1 and June which could reasonably cause concern among employ- 30, 1979, were qualified for benefits under the Fund from ees. July 1 through December 31, 1979, regardless of wheth- Therefore, I find that Respondent's unilateral with- er Respondent made contributions to the plan. holding of Fund contributions impacted unit employees' Therefore, Respondent argues, since its failure to con- working conditions" and violates Section 8(aX5). I tribute would not have affected any of the employees covered until January 1, 1980, there was no change in CONCLUSIONS OF LAW working conditions because another plan, The Innovator, was substituted on December 12, 1979, pursuant to its * Respondent, Tumbull Enterprises, Inc.. is an er- collective-bargaining agreement with the Union. From ployer engaged in commerce within the meaning of Sec- December 12, employees were covered under The Inno- tio n 2<2 ), (6), a n d (7) o f the A c t. vator. 2. Sheet Metal Workers International Association, However, the other parties argue that Respondent's L o c a l No. 11, is a labor organization within the meaning unilateral refusal to make contributions had an impact on of Section 2(5) of the Act. employees' working conditions. The Intervenor, in its 3. 0" July 10, 19 7 9 , the Union was, and has been at all brief, points to several differences between the Health t im e s sinc e, the exclusive bargaining representative of and Welfare Fund's plan and The Innovator which, ac- Respondent's employees in the bargaining unit described cording to the Intervenor, unlawfully affect unit employ- b e low within the meaning of Section 9(a) of the Act. ees' working conditions. T h e appropriate bargaining unit is: I am persuaded that Respondent's actions unilaterally affected unit employees' working conditions. Regardless All production and maintenance employees, includ- of whether The Innovator or the Health and Welfare ing leadpersons, electrician, janitor, plant clerical Fund appeared to Respondent to offer more to employ- employees, tool room clerk, warehouse employees ees, it remains the employees', not Respondent's, right to a nd w o o d fabrication employees, employed by the make that determination. If the employees, or their rep- Employer at its Gulfport, Mississippi facility; ex- resentative, determine that the Health and Welfare Fund cluding o ffic e c le ric al employees, draftsmen, com- is better suited to their needs, then the employees should------- i.-.- -- „_..„-*..-;». t„ i,_-__;_ bfc.-c^ .1. uelt ia. j" slron Farmers Market, supra; Joe Cmost T~rukine Company d/b/a Joe have an opportunity to bargain before the Health and Costa Truking, 238 NLRB 1516 (1978); Belingham Fratn F0n0 a Divi- Welfare Fund is abandoned. sion of San Juan Packers. 237 NLRB 1450 (1978). When Union President Gaudet talked to Respondent "1 Respondent argues in its brief that the Union acquiesced in Respond- President EspOsitO on July 16, EspOsitO admitted that e"'s actions and its violations were cured by it and the Union's overall Respondent would not make contributions to the Health conduct. On several occasions during July, Union Pesident Gaudet asked Respondent's representatives, Sanchez and Esposito, about making and Welfare Fund. Esposito told Gaudet, "When we Sit contributions to the Health and Welfare Fund. During the August 22 ne- down and negotiate, if we owe you something, we will gotiation session, Gaudet asked Esposito to start making contributions to pay you at that time." th e Fund. During negotiations, the Union continued to negotiate toward Subsequently, the parties met and negotiated on var- restoration of the Fund through its November I strike until they finally capitulated to Respondent's demand that the Fund be replaced with an ious occasions from August through December 12, 1979. insurance company plan on December 12, 1979. Under those circum- Eventually, a collective-bargaining agreement was stances, I find that the Union did not acquiesce in Respondent's with- reached on December 12. holding Fund contributions. Moreover, I see nothing in either the However, Respondent refused to incorporate the U n io n's o r Respondent's conduct which cured the violation. In that regard, even though Esposito told Gaudet on July 16, "If we owe you Health and Welfare Fund's plan into the contract. As something, we will pay you," I note that Fund contributions were never time wore on, during those negotiations, the total made. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puter operators, guards and supervisors as defined Additionally, I shall recommend that Respondent be in the Act. ordered to reinstate the Health and Welfare Fund plan for unit employees, upon written request by the Union. I 4. Respondent, by unilaterally withholding contribu- am convinced that reinstatement of the plan is warranted tions on behalf of unit employees to the Health and Wel- in view of testimony from Gaudet and Hernandez, which fare Fund, violated Section 8(a)(5) and (1) of the Act. I credit, that they were told during negotiations, by 5. The aforesaid unfair labor practices are unfair labor Plant Manager Kolkmeyer, that he (Kolkmeyer) did not practices affecting commerce within the meaning of Sec- want the Fund because the Fund tied the employees too tion 2(6) and (7) of the Act. close to the Union. On direct, Kolkmeyer denied that he THE REMEDY told the Union that he did not want the Fund because it tied the employees to the Union, but he did testify that Having found that Respondent has engaged in unfair he objected to the Fund because it was controlled by the labor practices in violation of Section 8(a)(l) and (5) of Union. Later, on direct, Kolkmeyer admitted that he the Act, I shall recommend that Respondent be ordered could have used the phrase "tied in" in referring to the to cease and desist therefrom and to take certain affirma- Union having control. Moreover, on cross by the Gener- tive action designed to effectuate the policies of the Act. al Counsel, Kolkmeyer was asked to explain precisely Since the appropriate remedy for Respondent's unilateral what it was about union control that bothered him. action in discontinuing contributions to the Health and Kolkmeyer's response to the General Counsel's questions Welfare Fund is to reinstate the status quo ante, I recom- revealed that the source of his concern was the Union's, mend that Respondent make whole the employees in the rather than Respondent's, contact with employees during unit by making all Health and Welfare Fund contribu- the Fund's administration. In view of Kolkmeyer's testi- tions, as provided in the predecessor's collective-bargain- mony and the testimony of Gaudet and Hernandez and ing agreement, which have not been paid for the period employee Eugene Frazier, I am convinced that Respond- beginning on July 10, 1979, and extending until agree- ent found the Fund objectionable because of the oppor- ment was reached on December 12, 1979.1' Starco Farm- tunities it presented for the employees to maintain close ers Market, supra; Joe Costa Trucking, supra. Backpay contact with their Union. I am also persuaded that Kolk- shall be computed in accordance with Ogle Protection meyer told the Union and employees on the union nego- Service, Inc. and James L. Ogle, an Individual, 183 NLRB tiating committee that he did not want the Fund because 682 (1970). 4 the Fund tied the employees too close to the Union. In view of the above evidence regarding Respondent's mo- ' Even though I have recommended below that Respondent be re- . . e in p i- quired to reinstate the Fund plan for unit employees, I have limited tivaton in rejecting the Fund, and in view of the obvi- direct reimbursement to the date the parties agreed to a collective-bar- oUS harmful effect Respondent's illegal discontinuation of gaining agreement (December 12, 1979). Since the employees were cov- the Fund contributions had on reinstitution of the Fund ered both under The Innovator and, in accordance with my recommen- during negotiations, I am persuaded that the Fund must dations herein, the Fund, until July 1, 1980, and subsequently, by The In- b i b R i r t r novator alone, I find no justification for a broad order requiring what b e ted by Respondent in order fully to restore the would constitute double premiums and coverage from December 12, status quo ante. Basttan-Blessing, Division of Golconda Cor- 1979. However, if compliance proceedings are necessitated, the General poration, 194 NLRB 609, 614 (1971). Counsel may, upon showing that specific unit employees suffered actual Since this remedy would have the effect of qualifying damage in loss of benefits at some point after June 30, 1980, recover those damages in the form of backpay to the particular employee in- all persons employed in the bargaining unit during the volved; provided, however, that Respondent may, at its discretion, elect period beginning July 10, 1979,15 for benefits under the to continue contributions to the Fund beyond December 12, 1979, in lieu Health and Welfare Fund, I shall recommend that Re- of compensating employees for loss of benefits under the Fund. See spondent be required to take appropriate action to notify, Merryweather Optial Company, 240 NLRB 1213 (1979). However, Re- spondent's election to contribute to the Fund or reimburse employee in writing, all employees, and former employees that so losses shall not affect the Fund's right to additional amounts. See fn. 14 qualified, of their entitlement to those benefits. below. In measuring actual damages, employees should be reimbursed for Upon the foregoing findings of fact, conclusions of actual cost to the extent those costs would have been paid by the Fund law, and the entire record in this case, and pursuant to minus costs which were actually paid by Respondent's insurance. Although unit employees struck Respondent on November 1, 1979, the evidence does not establish a basis for terminating Respondent's obliga- stage, on these unlawfully withheld fund payments. It should be left "to lion to make Health and Welfare Fund contributions at that time. Even if the compliance [stage] the question whether Respondent must pay any an impasse existed on November 1, Respondent took no action at that additional amounts into the [Health and Welfare Fund] in order to satisfy time which was consistent with its rejected offers to the Union. The [this] 'make-whole' remedy. These additional amounts may be determined record failed to prove that Respondent instituted The Innovator plan for . . . by reference to provisions in the documents governing the [F]unds unit employees until December 12, 1979, when it reached agreement with at issue and, where there are no governing provisions, to evidence of any the Union. Falcon Tank Corp., 194 NLRB 333 (1971). loss directly attributable to the unlawful withholding action, which might I find no basis to grant litigation expenses herein. I do not view Re- include the loss of return on investment of the portion of the funds with- spondent's defenses to be "patently frivolous." Although a case may be held, additional administrative costs, etc., but not collateral losses." made that the issues herein are not "dependent upon resolutions of credi- Merryweather Optical Company, supra, 240 at 1216, fn. 7. In computing bility" (Heck's Inc., 215 NLRB 765 (1974)), the Board in Heck's did not such amounts, the basis for computation would run from July 10, 1979, to imply that the "credibility" test was the exclusive measure in determining the date upon which Respondent fully complies with the terms of this whether to award litigation expenses. Other questions are present here, recommended Order. including especially those arising because of the unique nature of the " Although employees qualify by working at least 350 hours during Fund's 6-month provisions, which give rise to "debatable" issues. each preceding 6-month period, the plan provides a means whereby em- " See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ployees may qualify even though they do not work the full 350 hours. In accord with Merryweather Optical Company, supra, I recommend Therefore, all employees and former employees should receive the against the addition of interest at a flat rate, at this, the adjudicatory above-mentioned notice. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puter operators, guards and supervisors as defined Additionally, I shall recommend that Respondent be in the Act. ordered to reinstate the Health and Welfare Fund plan for unit employees, upon written request by the Union. I 4. Respondent, by unilaterally withholding contribu- am convinced that reinstatement of the plan is warranted tions on behalf of unit employees to the Health and Wel- in view of testimony from Gaudet and Hernandez, which fare Fund, violated Section 8(a)(5) and (1) of the Act. I credit, that they were told during negotiations, by 5. The aforesaid unfair labor practices are unfair labor Plant Manager Kolkmeyer, that he (Kolkmeyer) did not practices affecting commerce within the meaning of Sec- want the Fund because the Fund tied the employees too tion 2(6) and (7) of the Act. close to the Union. On direct, Kolkmeyer denied that he THE REMEDY told the Un i o n that he did not want the Fund because it tied the employees to the Union, but he did testify that Having found that Respondent has engaged in unfair he objected to the Fund because it was controlled by the labor practices in violation of Section 8(a)(l) and (5) of Union. Later, on direct, Kolkmeyer admitted that he the Act, I shall recommend that Respondent be ordered could have used the phrase "tied in" in referring to the to cease and desist therefrom and to take certain affirma- Union having control. Moreover, on cross by the Gener- tive action designed to effectuate the policies of the Act. al Counsel, Kolkmeyer was asked to explain precisely Since the appropriate remedy for Respondent's unilateral what it was about union control that bothered him. action in discontinuing contributions to the Health and Kolkmeyer's response to the General Counsel's questions Welfare Fund is to reinstate the status quo ante, I recom- revealed that the source of his concern was the Union's, mend that Respondent make whole the employees in the rather than Respondent's, contact with employees during unit by making all Health and Welfare Fund contribu- the Fund's administration. In view of Kolkmeyer's testi- tions, as provided in the predecessor's collective-bargain- mony and the testimony of Gaudet and Hernandez and ing agreement, which have not been paid for the period employee Eugene Frazier, I am convinced that Respond- beginning on July 10, 1979, and extending until agree- ent found the Fund objectionable because of the oppor- ment was reached on December 12, 1979.11 Starco Farm- tunities it presented for the employees to maintain close ers Market, su pra ; Joe Costa T r uc k ing, s up ra. Backpay contact with their Union. I am also persuaded that Kolk- shall be computed in accordance with Ogle Protection meyer told the Union and employees on the union nego- Service, Inc. and James L. Ogge, an I ndivid u a l, 183 N L R B tiating committee that he did not want the Fund because 682 (1970).1 the Fund tied the employees too close to the Union. In view of the above evidence regarding Respondent's mo- " Even though I have recommended below that Respondent be re- . . quired to reinstate the Fund plan for unit employees, Ilhave limited ti v a t i o n in rejecting the Fund, and in View of the obvi- direct reimbursement to the date the parties agreed to a collective-bar- ous harmful effect Respondent's illegal discontinuation of gaining agreement (December 12, 1979). Since the employees were cov- the Fund contributions had On reinstitution of the Fund ered both under The Innovator and, in accordance with my recommen- during negotiations, I am persuaded that the Fund must dations herein, the Fund, until July 1, 1980, and subsequently, by The In- novator alone, I find no justification for a broad order requiring what b e instituted by Respondent in order fully to restore the would constitute double premiums and coverage from December 12, status quo ante. Bastian-Blessing, Division of Golconda Cor- 1979. However, if compliance proceedings are necessitated, the General poration, 194 NLRB 609, 614 (1971). Counsel may, upon showing that specific unit employees suffered actual Since this remedy would have the effect of qualifying damage in loss of benefits at some point after June 30, 1980, recover those damages in the form of backpay to the particular employee in- all persons employed in the bargaining unit during the volved; provided, however, that Respondent may, at its discretion, elect period beginning July 10, 1979, 15 for benefits under the to continue contributions to the Fund beyond December 12, 1979, in lieu Health and Welfare Fund, I shall recommend that Re- of compensating employees for loss of benefits under the Fund. See spondent be required to take appropriate action to notify, Merrywather Optical Company, 240 NLRB 1213 (1979). However, Re- spondent's election to contribute to the Fund or reimburse employee i" writing, all employees, and former employees that so losses shall not affect the Fund's right to additional amounts. See fn. 14 qualified, of their entitlement to those benefits. below. In measuring actual damages, employees should be reimbursed for Upon the foregoing findings of fact, conclusions of actual cost to the extent those costs would have been paid by the Fund law, and the entire record in this case, and pursuant to minus costs which were actually paid by Respondent's insurance. Although unit employees struck Respondent on November 1, 1979, the evidence does not establish a basis for terminating Respondent's obliga- stage, on these unlawfully withheld fund payments. It should be left "to lion to make Health and Welfare Fund contributions at that time. Even if the compliance [stage] the question whether Respondent must pay any an impasse existed on November I, Respondent took no action at that additional amounts into the [Health and Welfare Fund] in order to satisfy time which was consistent with its rejected offers to the Union. The [this] 'make-whole' remedy. These additional amounts may be determined record failed to prove that Respondent instituted The Innovator plan for ... by reference to provisions in the documents governing the [F]unds unit employees until December 12, 1979, when it reached agreement with at issue and, where there are no governing provisions, to evidence of any the Union. Falcon Tank Corp., 194 NLRB 333 (1971). loss directly attributable to the unlawful withholding action, which might I rind no basis to grant litigation expenses herein. I do not view Re- include the loss of return on investment of the portion of the funds with- spondent's defenses to be "patently frivolous." Although a case may be held, additional administrative costs, etc., but not collateral losses." made that the issues herein are not "dependent upon resolutions of credi- Merryweather Optical Company, supra, 240 at 1216, fn. 7. In computing bility" (Heck's Inc., 215 NLRB 765 (1974)), the Board in Heck's did not such amounts, the basis for computation would run from July 10, 1979, to imply that the "credibility" test was the exclusive measure in determining the date upon which Respondent fully complies with the terms of this whether to award litigation expenses. Other questions are present here, recommended Order. including especially those arising because of the unique nature of the " Although employees qualify by working at least 350 hours during Fund's 6-month provisions, which give rise to "debatable" issues. each preceding 6-month period, the plan provides a means whereby em- " See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ployees may qualify even though they do not work the full 350 hours. In accord with Merrynwhear Optical Company, supra, I recommend Therefore, all employees and former employees should receive the against the addition of interest at a flat rate, at this, the adjudicatory above-mentioned notice. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puter operators, guards and supervisors as defined Additionally, I shall recommend that Respondent be in the Act. ordered to reinstate the Health and Welfare Fund plan for unit employees, upon written request by the Union. I 4. Respondent, by unilaterally withholding contribu- am convinced that reinstatement of the plan is warranted tions on behalf of unit employees to the Health and Wel- in view of testimony from Gaudet and Hernandez, which fare Fund, violated Section 8(a)(5) and (1) of the Act. I credit, that they were told during negotiations, by 5. The aforesaid unfair labor practices are unfair labor Plant Manager Kolkmeyer, that he (Kolkmeyer) did not practices affecting commerce within the meaning of Sec- want the Fund because the Fund tied the employees too tion 2(6) and (7) of the Act. close to the Union. On direct, Kolkmeyer denied that he THE REMEDY told the Union that he did not want the Fund because it tied the employees to the Union, but he did testify that Having found that Respondent has engaged in unfair he objected to the Fund because it was controlled by the labor practices in violation of Section 8(a)(l) and (5) of Union. Later, on direct, Kolkmeyer admitted that he the Act, I shall recommend that Respondent be ordered could have used the phrase "tied in" in referring to the to cease and desist therefrom and to take certain affirma- Union having control. Moreover, on cross by the Gener- tive action designed to effectuate the policies of the Act. al Counsel, Kolkmeyer was asked to explain precisely Since the appropriate remedy for Respondent's unilateral what it was about union control that bothered him. action in discontinuing contributions to the Health and Kolkmeyer's response to the General Counsel's questions Welfare Fund is to reinstate the status quo ante, I recom- revealed that the source of his concern was the Union's, mend that Respondent make whole the employees in the rather than Respondent's, contact with employees during unit by making all Health and Welfare Fund contribu- the Fund's administration. In view of Kolkmeyer's testi- tions, as provided in the predecessor's collective-bargain- mony and the testimony of Gaudet and Hernandez and ing agreement, which have not been paid for the period employee Eugene Frazier, I am convinced that Respond- beginning on July 10, 1979, and extending until agree- ent found the Fund objectionable because of the oppor- ment was reached on December 12, 1979.11 Starco Farm- tunities it presented for the employees to maintain close ers Market, su pra ; Joe Costa T r uc k ing, s up ra. Backpay contact with their Union. I am also persuaded that Kolk- shall be computed in accordance with Ogle Protection meyer told the Union and employees on the union nego- Service, Inc. and James L. Ogge, an I ndivid u a l, 183 N L R B tiating committee that he did not want the Fund because 682 (1970).1 the Fund tied the employees too close to the Union. In view of the above evidence regarding Respondent's mo- " Even though I have recommended below that Respondent be re- . . quired to reinstate the Fund plan for unit employees, Ilhave limited ti v a t i o n in rejecting the Fund, and in View of the obvi- direct reimbursement to the date the parties agreed to a collective-bar- ous harmful effect Respondent's illegal discontinuation of gaining agreement (December 12, 1979). Since the employees were cov- the Fund contributions had On reinstitution of the Fund ered both under The Innovator and, in accordance with my recommen- during negotiations, I am persuaded that the Fund must dations herein, the Fund, until July 1, 1980, and subsequently, by The In- novator alone, I find no justification for a broad order requiring what b e instituted by Respondent in order fully to restore the would constitute double premiums and coverage from December 12, status quo ante. Bastian-Blessing, Division of Golconda Cor- 1979. However, if compliance proceedings are necessitated, the General poration, 194 NLRB 609, 614 (1971). Counsel may, upon showing that specific unit employees suffered actual Since this remedy would have the effect of qualifying damage in loss of benefits at some point after June 30, 1980, recover those damages in the form of backpay to the particular employee in- all persons employed in the bargaining unit during the volved; provided, however, that Respondent may, at its discretion, elect period beginning July 10, 1979, 15 for benefits under the to continue contributions to the Fund beyond December 12, 1979, in lieu Health and Welfare Fund, I shall recommend that Re- of compensating employees for loss of benefits under the Fund. See spondent be required to take appropriate action to notify, Merrywather Optical Company, 240 NLRB 1213 (1979). However, Re- spondent's election to contribute to the Fund or reimburse employee i" writing, all employees, and former employees that so losses shall not affect the Fund's right to additional amounts. See fn. 14 qualified, of their entitlement to those benefits. below. In measuring actual damages, employees should be reimbursed for Upon the foregoing findings of fact, conclusions of actual cost to the extent those costs would have been paid by the Fund law, and the entire record in this case, and pursuant to minus costs which were actually paid by Respondent's insurance. Although unit employees struck Respondent on November 1, 1979, the evidence does not establish a basis for terminating Respondent's obliga- stage, on these unlawfully withheld fund payments. It should be left "to lion to make Health and Welfare Fund contributions at that time. Even if the compliance [stage] the question whether Respondent must pay any an impasse existed on November I, Respondent took no action at that additional amounts into the [Health and Welfare Fund] in order to satisfy time which was consistent with its rejected offers to the Union. The [this] 'make-whole' remedy. These additional amounts may be determined record failed to prove that Respondent instituted The Innovator plan for ... by reference to provisions in the documents governing the [F]unds unit employees until December 12, 1979, when it reached agreement with at issue and, where there are no governing provisions, to evidence of any the Union. Falcon Tank Corp., 194 NLRB 333 (1971). loss directly attributable to the unlawful withholding action, which might I rind no basis to grant litigation expenses herein. I do not view Re- include the loss of return on investment of the portion of the funds with- spondent's defenses to be "patently frivolous." Although a case may be held, additional administrative costs, etc., but not collateral losses." made that the issues herein are not "dependent upon resolutions of credi- Merryweather Optical Company, supra, 240 at 1216, fn. 7. In computing bility" (Heck's Inc., 215 NLRB 765 (1974)), the Board in Heck's did not such amounts, the basis for computation would run from July 10, 1979, to imply that the "credibility" test was the exclusive measure in determining the date upon which Respondent fully complies with the terms of this whether to award litigation expenses. Other questions are present here, recommended Order. including especially those arising because of the unique nature of the " Although employees qualify by working at least 350 hours during Fund's 6-month provisions, which give rise to "debatable" issues. each preceding 6-month period, the plan provides a means whereby em- " See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ployees may qualify even though they do not work the full 350 hours. In accord with Merrynwhear Optical Company, supra, I recommend Therefore, all employees and former employees should receive the against the addition of interest at a flat rate, at this, the adjudicatory above-mentioned notice. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puter operators, guards and supervisors as defined Additionally, I shall recommend that Respondent be in the Act. ordered to reinstate the Health and Welfare Fund plan for unit employees, upon written request by the Union. I 4. Respondent, by unilaterally withholding contribu- am convinced that reinstatement of the plan is warranted tions on behalf of unit employees to the Health and Wel- in view of testimony from Gaudet and Hernandez, which fare Fund, violated Section 8(a)(5) and (1) of the Act. I credit, that they were told during negotiations, by 5. The aforesaid unfair labor practices are unfair labor Plant Manager Kolkmeyer, that he (Kolkmeyer) did not practices affecting commerce within the meaning of Sec- want the Fund because the Fund tied the employees too tion 2(6) and (7) of the Act. close to the Union. On direct, Kolkmeyer denied that he THE REMEDY told the Union that he did not want the Fund because it tied the employees to the Union, but he did testify that Having found that Respondent has engaged in unfair he objected to the Fund because it was controlled by the labor practices in violation of Section 8(a)(l) and (5) of Union. Later, on direct, Kolkmeyer admitted that he the Act, I shall recommend that Respondent be ordered could have used the phrase "tied in" in referring to the to cease and desist therefrom and to take certain affirma- Union having control. Moreover, on cross by the Gener- tive action designed to effectuate the policies of the Act. al Counsel, Kolkmeyer was asked to explain precisely Since the appropriate remedy for Respondent's unilateral what it was about union control that bothered him. action in discontinuing contributions to the Health and Kolkmeyer's response to the General Counsel's questions Welfare Fund is to reinstate the status quo ante, I recom- revealed that the source of his concern was the Union's, mend that Respondent make whole the employees in the rather than Respondent's, contact with employees during unit by making all Health and Welfare Fund contribu- the Fund's administration. In view of Kolkmeyer's testi- tions, as provided in the predecessor's collective-bargain- mony and the testimony of Gaudet and Hernandez and ing agreement, which have not been paid for the period employee Eugene Frazier, I am convinced that Respond- beginning on July 10, 1979, and extending until agree- ent found the Fund objectionable because of the oppor- ment was reached on December 12, 1979.11 Starco Farm- tunities it presented for the employees to maintain close ers Market, supra; Joe Costa Trucking, supra. Backpay contact with their Union. I am also persuaded that Kolk- shall be computed in accordance with Ogle Protection meyer told the Union and employees on the union nego- Service, Inc. and James L. Ogge, an I ndivid u a l, 183 N L R B tiating committee that he did not want the Fund because 682 (1970).1 the Fund tied the employees too close to the Union. In view of the above evidence regarding Respondent's mo- " Even though I have recommended below that Respondent be re- . . quired to reinstate the Fund plan for unit employees, Ilhave limited ti v a t i o n in rejecting the Fund, and in View of the obvi- direct reimbursement to the date the parties agreed to a collective-bar- ous harmful effect Respondent's illegal discontinuation of gaining agreement (December 12, 1979). Since the employees were cov- the Fund contributions had On reinstitution of the Fund ered both under The Innovator and, in accordance with my recommen- during negotiations, I am persuaded that the Fund must dations herein, the Fund, until July 1, 1980, and subsequently, by The In- novator alone, I find no justification for a broad order requiring what b e instituted by Respondent in order fully to restore the would constitute double premiums and coverage from December 12, status quo ante. Bastian-Blessing, Division of Golconda Cor- 1979. However, if compliance proceedings are necessitated, the General poration, 194 NLRB 609, 614 (1971). Counsel may, upon showing that specific unit employees suffered actual Since this remedy would have the effect of qualifying damage in loss of benefits at some point after June 30, 1980, recover those damages in the form of backpay to the particular employee in- all persons employed in the bargaining unit during the volved; provided, however, that Respondent may, at its discretion, elect period beginning July 10, 1979, 15 for benefits under the to continue contributions to the Fund beyond December 12, 1979, in lieu Health and Welfare Fund, I shall recommend that Re- of compensating employees for loss of benefits under the Fund. See spondent be required to take appropriate action to notify, Merrywather Optical Company, 240 NLRB 1213 (1979). However, Re- spondent's election to contribute to the Fund or reimburse employee i" writing, all employees, and former employees that so losses shall not affect the Fund's right to additional amounts. See fn. 14 qualified, of their entitlement to those benefits. below. In measuring actual damages, employees should be reimbursed for Upon the foregoing findings of fact, conclusions of actual cost to the extent those costs would have been paid by the Fund law, and the entire record in this case, and pursuant to minus costs which were actually paid by Respondent's insurance. Although unit employees struck Respondent on November 1, 1979, the evidence does not establish a basis for terminating Respondent's obliga- stage, on these unlawfully withheld fund payments. It should be left "to lion to make Health and Welfare Fund contributions at that time. Even if the compliance [stage] the question whether Respondent must pay any an impasse existed on November I, Respondent took no action at that additional amounts into the [Health and Welfare Fund] in order to satisfy time which was consistent with its rejected offers to the Union. The [this] 'make-whole' remedy. These additional amounts may be determined record failed to prove that Respondent instituted The Innovator plan for ... by reference to provisions in the documents governing the [F]unds unit employees until December 12, 1979, when it reached agreement with at issue and, where there are no governing provisions, to evidence of any the Union. Falcon Tank Corp., 194 NLRB 333 (1971). loss directly attributable to the unlawful withholding action, which might I rind no basis to grant litigation expenses herein. I do not view Re- include the loss of return on investment of the portion of the funds with- spondent's defenses to be "patently frivolous." Although a case may be held, additional administrative costs, etc., but not collateral losses." made that the issues herein are not "dependent upon resolutions of credi- Merryweather Optical Company, supra, 240 at 1216, fn. 7. In computing bility" (Heck's Inc., 215 NLRB 765 (1974)), the Board in Heck's did not such amounts, the basis for computation would run from July 10, 1979, to imply that the "credibility" test was the exclusive measure in determining the date upon which Respondent fully complies with the terms of this whether to award litigation expenses. Other questions are present here, recommended Order. including especially those arising because of the unique nature of the " Although employees qualify by working at least 350 hours during Fund's 6-month provisions, which give rise to "debatable" issues. each preceding 6-month period, the plan provides a means whereby em- " See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ployees may qualify even though they do not work the full 350 hours. In accord with Merrynwhear Optical Company, supra, I recommend Therefore, all employees and former employees should receive the against the addition of interest at a flat rate, at this, the adjudicatory above-mentioned notice. TURNBULL ENTERPRISES, INC. 943 Section 10(c) of the Act, I hereby issue the following "The Remedy," rescind the current plan under its collec- recommended: tive-bargaining agreement with the Union, and immedi- ately reestablish the plan under the New Orleans Sheet ORDER's Metal Workers Health and Welfare Fund. The Respondent, Turnbull Enterprises, Inc., Gulfport, (c) Preserve and, upon request, make available to the Mississippi, its officers, agents, successors, and assigns, Board or its agents, for examination and copying, all shall: payroll records, social security payment records, time- 1. Cease and desist from: cards, personnel records and reports, and all other (a) Unilaterally changing established terms and condi- records relevant or necessary to facilitate the determina- tions of employment of the employees in the bargaining tion of the amounts due to employees under the terms of unit for failing to contribute to the Health and Welfare this Order. Fund established by the predecessor employer's collec- (d) Post at its Gulfport, Mississippi, place of business tive-bargaining agreement with the Union in derogation copies of the attached notice marked "Appendix."" of the bargaining obligation imposed by the Act. Copies of said notice, on forms provided by the Regional (b) In any like or related manner interfering with, re- Director for Region 15, after being duly signed by Re- straining, or coercing employees in the exercise of rights spondent's authorized representative, shall be posted by guaranteed by the Act. Respondent immediately upon receipt thereof, and main- 2. Take the following affirmative action designed to ef- tained by it for 60 consecutive days thereafter, in conspi- fectuate the policies of the Act: cuos places, including all places where notices to em- (a) Make whole the employees in the appropriate unit ployees are customarily posted. Reasonable steps shall be in the manner set forth in the section of this Decision en- taken by Respondent to insure that said notices are not titled "The Remedy." altered, defaced, or covered by any other material. (b) Upon written request from the Union, and in the (e) Notify the Regional Director for Region 15, in manner set forth in the section of this Decision entitled writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board." TURNBULL ENTERPRISES, INC. 943 Section 10(c) of the Act, I hereby issue the following "The Remedy," rescind the current plan under its collec- recommended: tive-bargaining agreement with the Union, and immedi- ately reestablish the plan under the New Orleans Sheet ORDER's Metal Workers Health and Welfare Fund. The Respondent, Turnbull Enterprises, Inc., Gulfport, (c) Preserve and, upon request, make available to the Mississippi, its officers, agents, successors, and assigns, Board or its agents, for examination and copying, all shall: payroll records, social security payment records, time- 1. Cease and desist from: cards, personnel records and reports, and all other (a) Unilaterally changing established terms and condi- records relevant or necessary to facilitate the determina- tions of employment of the employees in the bargaining tion o f the amounts due to employees under the terms of unit for failing to contribute to the Health and Welfare t h is Order. Fund established by the predecessor employer's collec- (d ) P o st at its Gulfport, Mississippi, place of business tive-bargaining agreement with the Union in derogation copies of the attached notice marked "Appendix." 17 of the bargaining obligation imposed by the Act. Copies of said notice, on forms provided by the Regional (b) In any like or related manner interfering with, re- Director for Region 15, after being duly signed by Re- straining, or coercing employees in the exercise of rights spondent's authorized representative, shall be posted by guaranteed by the Act. Respondent immediately upon receipt thereof, and main- 2. Take the following affirmative action designed to ef- tained by it f o r 6 0 consecutive days thereafter, in conspi- fectuate the policies of the Act: cuos places, including all places where notices to em- (a) Make whole the employees in the appropriate unit ployees are customarily posted. Reasonable steps shall be in the manner set forth in the section of this Decision en- taken by Respondent to insure that said notices are not titled "The Remedy." altered, defaced, or covered by any other material. (b) Upon written request from the Union, and in the (e) Notify the Regional Director for Region 15, in manner set forth in the section of this Decision entitled writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. * In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board." TURNBULL ENTERPRISES, INC. 943 Section 10(c) of the Act, I hereby issue the following "The Remedy," rescind the current plan under its collec- recommended: tive-bargaining agreement with the Union, and immedi- ately reestablish the plan under the New Orleans Sheet ORDER's Metal Workers Health and Welfare Fund. The Respondent, Turnbull Enterprises, Inc., Gulfport, (c) Preserve and, upon request, make available to the Mississippi, its officers, agents, successors, and assigns, Board or its agents, for examination and copying, all shall: payroll records, social security payment records, time- 1. Cease and desist from: cards, personnel records and reports, and all other (a) Unilaterally changing established terms and condi- records relevant or necessary to facilitate the determina- tions of employment of the employees in the bargaining tion of the amounts due to employees under the terms of unit for failing to contribute to the Health and Welfare this Order. Fund established by the predecessor employer's collec- (d) P o s t at its Gulfport, Mississippi, place of business tive-bargaining agreement with the Union in derogation copies of the attached notice marked "Appendix."' 7 of the bargaining obligation imposed by the Act. Copies of said notice, on forms provided by the Regional (b) In any like or related manner interfering with, re- Director for Region 15, after being duly signed by Re- straining, or coercing employees in the exercise of rights spondent's authorized representative, shall be posted by guaranteed by the Act. Respondent immediately upon receipt thereof, and main- 2. Take the following affirmative action designed to ef- ta ine d by it for 6 0 consecutive days thereafter, in conspi- fectuate the policies of the Act: cuos places, including all places where notices to em- (a) Make whole the employees in the appropriate unit ployees are customarily posted. Reasonable steps shall be in the manner set forth in the section of this Decision en- taken by Respondent to insure that said notices are not titled "The Remedy." altered, defaced, or covered by any other material. (b) Upon written request from the Union, and in the (e) Notify the Regional Director for Region 15, in manner set forth in the section of this Decision entitled writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. * In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board." TURNBULL ENTERPRISES, INC. 943 Section 10(c) of the Act, I hereby issue the following "The Remedy," rescind the current plan under its collec- recommended: tive-bargaining agreement with the Union, and immedi- ately reestablish the plan under the New Orleans Sheet ORDER's Metal Workers Health and Welfare Fund. The Respondent, Turnbull Enterprises, Inc., Gulfport, (c) Preserve and, upon request, make available to the Mississippi, its officers, agents, successors, and assigns, Board or its agents, for examination and copying, all shall: payroll records, social security payment records, time- 1. Cease and desist from: cards, personnel records and reports, and all other (a) Unilaterally changing established terms and condi- records relevant or necessary to facilitate the determina- tions of employment of the employees in the bargaining tion of the amounts due to employees under the terms of unit for failing to contribute to the Health and Welfare this Order. Fund established by the predecessor employer's collec- (d) P o s t at its Gulfport, Mississippi, place of business tive-bargaining agreement with the Union in derogation copies of the attached notice marked "Appendix."' 7 of the bargaining obligation imposed by the Act. Copies of said notice, on forms provided by the Regional (b) In any like or related manner interfering with, re- Director for Region 15, after being duly signed by Re- straining, or coercing employees in the exercise of rights spondent's authorized representative, shall be posted by guaranteed by the Act. Respondent immediately upon receipt thereof, and main- 2. Take the following affirmative action designed to ef- ta ine d by it for 6 0 consecutive days thereafter, in conspi- fectuate the policies of the Act: cuos places, including all places where notices to em- (a) Make whole the employees in the appropriate unit ployees are customarily posted. Reasonable steps shall be in the manner set forth in the section of this Decision en- taken by Respondent to insure that said notices are not titled "The Remedy." altered, defaced, or covered by any other material. (b) Upon written request from the Union, and in the (e) Notify the Regional Director for Region 15, in manner set forth in the section of this Decision entitled writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. * In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board."