Valley Mfg., Inc.

264 NLRB No. 17A VJH D--9403 Oshkosh, WI UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD VALLEY MFG., INC. and Case 30--CA--6388 EMPLOYEES OF VALLEY MFG., INC. DECISION AND ORDER Upon a charge filed on March 18, 1981, by Employees of Valley Mfg , Inc., herein called the Charging Party, and duly served on Valley Mfg. , Inc , herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint and notice of hearing on May 6, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1), Section 8(d), and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. The complaint alleges in substance that Respondent failed to continue in full force and effect all the terms and conditions of the collective-bargaining agreement it has with the Charging Party by reducing wages and Respondent's portion of contributions to insurance premiums, canceling the vacation, 264 NLRB No. 174 D--9403 holiday, and sick pay and funeral leave of the employees, and discontinuing Respondent's contribution to the employee pension program. Respondent filed an answer to the complaint admitting in part, and denying in part, the allegations of the complaint. Thereafter, on June 17, 1981, the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, submitting, in effect, that Respondent's answer to the complaint raises no genuine issue as to any material fact and that the General Counsel is entitled to judgment as a matter of law, and asking that the Board grant the Motion for Summary Judgment and issue an appropriate remedial order. Subsequently, on June 24, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the Notice To Show Cause and, accordingly, the averments in the Motion for Summary Judgment stand uncontradicted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer, Respondent admits those parts of the complaint dealing with the filing of the unfair labor practice charge in Case 30--CA--6388, Respondent's business operations as D--9403 they affect interstate commerce as defined in Section 2(2), (6), and (7) of the Act, and the unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Respondent's answer denies the labor organization status of the Charging Party within the meaning of Section 2 (5) of the Act, and further denies that the Charging Party had successive collective-bargaining agreements with Respondent. Respondent's answer also denies that it unilaterally effectuated changes in the terms and conditions of employment without affording the Charging Party an opportunity to negotiate, and further denies that it has failed to continue in full force and effect all the terms and conditions of the collective-bargaining agreement. Counsel for the General Counsel asserts that, in the investigation of Case 30--CA--6388, Respondent submitted an affidavit in the name of Respondent's president, James Mathe, which is attached as an exhibit to the Motion for Summary Judgment together with certain other documents. Counsel for the General Counsel further asserts that in that affidavit Respondent made substantial admissions supporting the allegations of the complaint, and that there are no material issues of fact relating to these allegations. Section 8 (d) of the Act prohibits a party to a collectivebargaining agreement from unilaterally modifying the terms of the agreement during the term of the agreement. It is well established that no party to such an agreement need agree to modify the terms of the agreement in midterm. Thus, the refusal of the Charging Party herein to SO agree did not give Respondent D--9403 license to modify the terms of their agreement 1 Nor does Respondent's distressing financial situation justify a repudiation or modification of the collective-bargaining agreement. 2 We agree with counsel for the General Counsel that the allegations of the complaint are admitted in the affidavit of Respondent's president when considered in conjunction with the other documents attached to the General Counsel's motion and the assertions in the General Counsel's motion itself. Accordingly, we find all the allegations of the complaint to be true, and, as no material issues of fact remain for determination, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: Findings of Fact I. The Business of Respondent Respondent is now, and has been at all times material herein, a corporation doing business in the State of Wisconsin with an office and place of business at Oshkosh, Wisconsin, where it is engaged in the manufacture and nonretail sale of kitchen cabinets. During the calendar year ending December 31, 1980, Respondent, in the course and conduct of its business operations described above, sold and shipped from its Oshkosh, Wisconsin, 1 See Inland Cities, Inc., 241 NLRB 374 (1979); SAC Construction Company Inc., 235 NLRB 1211 (1978). 2 Phoenix Air Conditioning, Inc., 231 NLRB 341 (1977); Oak Cliff-Golman Baking Company, 207 NLRB 1063, 1064 (1973). D--9403 facility, products, goods, and materials valued in excess of $50,000 directly to points located outside the State of Wisconsin. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. The Labor Organization Involved Employees of Valley Mfg. , Inc., is a labor organization within the meaning of Section 2 (5) of the Act. III. The Unfair Labor Practices A. The Unit All production and maintenance employees of Respondent, excluding office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. B. The Collective-Bargaining Agreements Since March 1977, and at all times material herein, the Charging Party has been recognized by Respondent as the exclusive representative of the employees in the appropriate unit described above for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9 (a) of the Act. Such recognition has been embodied in successive collective-bargaining agreements relating to the wages, hours, D--9403 and other terms and conditions of employment of the employees in the appropriate unit. The most recent such agreement is effective by its terms as of July 10, 1978, and from year to year thereafter, unless either party thereto serves a 30-day notice upon the other party of its desire to terminate or modify said agreement. C. The Refusal To Bargain Since on or about January 5, 1981, and at all times continuing to date, Respondent has unilaterally effectuated changes in the terms and conditions of employment of the employees in the unit described above by reducing wages and Respondent's portion of contributions to insurance premiums, by canceling vacation, holiday, and sick pay and funeral leave for said employees, and by discontinuing Respondent's contribution to the employee pension program. Respondent engaged in the acts and conduct described above without prior notice to the Charging Party and without having afforded the Charging Party an opportunity to negotiate and bargain as the exclusive representative of its employees. Thus, Respondent has failed to continue in full force and effect all the terms and conditions of the collective-bargaining agreement between the parties. Accordingly, we find that Respondent has, since January 5, 1981, and at all times thereafter, failed and refused to bargain collectively and in good faith with the Charging Party as the exclusive representative of its employees, and that, by such D--9403 refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) and Section 8 (d) of the Act. IV. The Effect of the Unfair Labor Practices Upon Commerce The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. The Remedy Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. Accordingly, having found that Respondent, on or about January 5, 1981, unilaterally reduced wages and contributions to insurance premiums and canceled vacation, holiday, and sick pay and funeral leave of the employees in the unit, it shall be ordered to restore these benefits as they existed prior to the unilateral changes and to make the unit employees whole for any losses of pay they may have suffered as a result of the unilateral changes, with interest. Having found that Respondent, on or about January 5, 1981, unilaterally discontinued making contributions to the employee pension program for the employees in the aforesaid unit, it shall be ordered to restore making such payments, to make whole the unit employees D--9403 for any losses or expenses they may have suffered as a result of the unilateral change, and to pay into the appropriate fund all those contributions it has failed to pay as a result of the unilateral change, with interest. Backpay and interest thereon shall be computed in the manner prescribed by Ogle Protection Service, Inc., and James L. Ogle, an Individual, 183 NLRB 682 (1970), and Florida Steel Corporation, 231 NLRB 651 (1977). 3 The Board, upon the basis of the foregoing facts and the entire record, makes the following: Conclusions of Law 1. Valley Mfg., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Employees of Valley Mfg., Inc., is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent, excluding office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance stage the question of whether Respondent must pay any additional amounts into the pension fund in order to satisfy our ''make-whole"" remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc., but not collateral losses. Merryweather Optical Company, 240 NLRB 1213 (1979). D--9403 purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Since March 1977, the above-named labor organization has been and now is the recognized and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9 ( a) of the Act. 5. By refusing on or about January 5, 1981, to bargain collectively with the Charging Party as the exclusive bargaining representative of the employees in the aforesaid unit, by unilaterally reducing wages and its portion of contributions to insurance premiums, by canceling vacation, holiday, and sick pay and funeral leave for said employees, and by discontinuing its contribution to the employee pension program, Respondent Valley Mfg., Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and Section 8 (d) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of section 2 (6) and (7) of the Act. D--9403 ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Valley Mfg., Inc., Oshkosh, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with employees of Valley Mfg , Inc., as the exclusive representative of its employees in the unit described below by unilaterally reducing wages and its portion of contributions to insurance premiums, by canceling vacation, holiday, and sick pay and funeral leave, and by discontinuing its contribution to the employee pension program. The appropriate unit is: All production and maintenance employees of Respondent, excluding office clerical employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Restore the wage rates, contributions to insurance premiums, vacation, holiday, and sick pay and funeral leave as they existed prior to the unilateral changes on January 5, 1981, to the employees in the aforesaid unit and make them whole for any losses or expenses they may have suffered by reason of the unilateral changes in the manner described in 'The Remedy. D--9403 (b) Restore making contributions to the pension program as they existed prior to the unilateral discontinuance of such contributions on or about January 5, 1981, for the employees in the aforesaid unit, make them whole for any losses or expenses they may have suffered as a result of this unilateral change, and pay into the appropriate fund all those contributions it has failed to pay by reason of the unilateral change in the manner described in 'The Remedy (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Oshkosh, Wisconsin, facility copies of the attached notice marked ''Appendix. Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading 'POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD shall read 'POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 9403 (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. September 30, 1982 John R. Van de Water, Chairman Howard Jenkins, Jr., Member Robert P. Hunter, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--9403 APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government WE WILL NOT refuse to bargain collectively with employees of Valley Mfg Inc., as the exclusive representative of the employees in the unit described below by unilaterally reducing wages and contributions to insurance premiums, by canceling vacation, holiday, and sick pay and funeral leave, and by discontinuing contributions to the employee pension program. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL restore the wage rates, contributions to insurance premiums, vacation, holiday, and sick pay and funeral leave as they existed prior to our unilateral changes thereof and make our employees in the unit described below whole for any losses or expenses they may have suffered by reason of our unilateral changes, with interest. WE WILL resume making contributions to the pension program as they existed prior to our discontinuance thereof and make our employees in the unit described below whole for any losses or expenses they may have suffered as a result of such discontinuance, with interest, and WE WILL pay into the appropriate fund all the contributions we have failed to make. The appropriate unit is: D--9403 All production and maintenance employees of Respondent, excluding office clerical employees, guards and supervisors as defined in the Act. VALLEY MFG., INC. Dated By (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Commerce Building, Room 230, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414--291--3866.