Elliot Metal Processing Co.

327 NLRB No. 32 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Elliott Metal Processing Co. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL- CIO and its Local 985. Cases 7-CA-41062 and 7- CA-41179 October 30, 1998 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME Upon charges filed by the Union on June 11 and July 15, 1998, the Acting General Counsel of the National Labor Relations Board issued a complaint on August 21, 1998, against Elliott Metal Processing Co., the Respon- dent, alleging that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served copies of the charges and complaint, the Respon- dent failed to file an answer. On October 13, 1998, the Acting General Counsel filed a Motion for Summary Judgment with the Board. On October 15, 1998, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed allegations in the Mo- tion for Summary Judgment disclose that the Region, by letter dated September 9, 1998, notified the Respondent that unless an answer were received by September 23, 1998, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business in Detroit, Michigan, has been engaged in the business of metal processing. During the 12-month period ending December 31, 1997, the Respondent in conducting its business operations described above, purchased and received at its Detroit, Michigan facility, goods valued at more than $50,000 directly from points outside the State of Michigan. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by Respondent at its Detroit facility, but excluding of- fice employees, truck drivers, technical employees and guards and supervisors as defined in the Act. Since about 1974, and at all material times, the Charging Party Union has been the designated exclusive collective-bargaining representative of the unit and since then the Union has been recognized as the representative by the Respondent. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which was effective from October 22, 1994, to October 22, 1997. At all times since 1974, based on Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the unit. The parties’ 1994–1997 collective-bargaining agree- ment provides, among other things, (1) that the Respon- dent shall pay for certain coverages and maintain a health insurance benefit plan for the unit employees and their families; and (2) that with certain specified exceptions, no foreman, supervisors, or nonunit employee shall per- form the work done by unit employees. In about late October 1997, the Respondent and the Union verbally agreed to continue the terms of the 1994– 1997 collective-bargaining agreement on a day-to-day basis, pending the negotiation of a new agreement. Commencing on about November 1, 1997, and con- tinuing until about February 1998, the Respondent uni- laterally caused the health insurance plan provided by the collective-bargaining agreement to lapse by failing to remit the required premium payments to the insurance carrier. The Union did not become aware of the Respon- dent’s failure to remit those payments until about Febru- ary 15, 1998. Since about March 1, 1998, and continuing to date, the Respondent again unilaterally caused the contractual health insurance plan to lapse by failing to remit required premium payments. In addition, since about May 1, 1998, and continuing to date, the Respondent has been using supervisors and/or nonunit employees to perform work normally performed by unit employees, without meeting any of the contractual exceptions permitting the Respondent to do so. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Respondent engaged in all of the above conduct without the Union’s consent. The terms and conditions of employment described above are mandatory subjects for the purposes of collective bargaining. CONCLUSIONS OF LAW By the acts and conduct described above, the Respon- dent has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees within the meaning of Section 8(d), and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing to remit the required premium pay- ments to the unit employees’ contractual health insurance plan, and thereby causing the plan to lapse, we shall or- der the Respondent to restore the employees’ health in- surance benefits and make the employees whole by re- imbursing them for any expenses ensuing from the Re- spondent’s unlawful conduct, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In addition, having found that the Respondent has violated Section 8(a)(5) and (1) by using supervisors and/or nonunit employees to perform unit work, we shall order the Respondent to make unit employees whole for all hours of unit work performed by supervisors and nonunit employees. Backpay shall be computed in ac- cordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Elliott Metal Processing Co., Detroit, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to comply with the terms of the 1994–1997 collective-bargaining agreement with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, and its Local 985, by failing to remit the required premium payments to the health insurance carrier, thereby causing the health insurance plan to lapse. (b) Using supervisors and/or nonunit employees to per- form work normally performed by employees in the fol- lowing unit without meeting any of the exceptions set forth in the 1994–1997 collective-bargaining agreement permitting it to do so. All production and maintenance employees employed by Respondent at its Detroit facility, but excluding of- fice employees, truck drivers, technical employees and guards and supervisors as defined in the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Restore the health insurance coverage for the unit employees as provided in the 1994–1997 collective- bargaining agreement. (b) Make the unit employees whole for the Respon- dent’s failure to maintain the contractual health insurance coverage, in the manner set forth in the remedy section of this decision. (c) Make the unit employees whole for any loss of earnings and other benefits suffered as a result of the Respondent’s use of supervisors and/or nonunit employ- ees to perform work normally performed by unit em- ployees, in the manner set forth in the remedy section of this decision. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Detroit, Michigan, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 1, 1997. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- 1 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ELLIOTT METAL PROCESSING CO. 3 testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. October 30, 1998 Wilma B. Liebman, Member Peter J. Hurtgen, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail to comply with the terms of the 1994–1997 collective-bargaining agreement with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, and its Local 985, by failing to remit the re- quired premium payments to the health insurance carrier, thereby causing the health insurance plan to lapse. WE WILL NOT use supervisors and/or nonunit employ- ees to perform work normally performed by employees in the following unit without meeting any of the excep- tions set forth in the 1994–1997 collective-bargaining agreement permitting us to do so. All production and maintenance employees employed by us at our Detroit facility, but excluding office em- ployees, truck drivers, technical employees and guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL restore the health insurance coverage for the unit employees as provided in the 1994–1997 collective- bargaining agreement. WE WILL make the unit employees whole for our fail- ure to maintain the contractual health insurance cover- age, with interest. WE WILL make the unit employees whole for any loss of earnings and other benefits suffered as a result of our use of supervisors and/or nonunit employees to perform work normally performed by unit employees, with inter- est.