Universal Iron Co., Inc.

1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Iron Co .,' Inc. and Local 7, International Association of Bridge; _Structural and Ornamen- tal Iron Workers, AFL-CIO. Case 1-CA- 22388 12 August 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 14 February 1985 Administrative Law Judge James L. Rose issued the attached decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed, its authority in this proceeding to a three- member panel. The Board has 'considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.' CONCLUSIONS OF LAW By terminating unilaterally the wages and terms and conditions of employment of employees in the appropriate bargaining unit, including fringe benefit contributions, by rejecting and repudiating unilater- ally the terms of an outstanding collective-bargain- ing agreement with the Union, and by failing and refusing to employ members of the Union at its jobsite known as Washington Elms in Cambridge, Massachusetts, since 1 -June 1984,• the Respondent has refused to bargain with the Union and has en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having concluded that the Respondent has en- gaged in certain unfair labor practices , we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ' We agree with the General Counsel that the judge's Conclusions of Law, remedy, and recommended Order failed to reflect certain allega- tions that were admitted by the Respondent At the hearing to the instant proceeding, the General Counsel amended the complaint, without opposi- tion, to delete I August 1984, and insert 1 June 1984, as the date on which the admitted unfair labor practices commenced This amended al- legation was admitted by the Respondent In his decision, the judge has inadvertently failed to recognize this modification Likewise, the judge has omitted from the conclusions of law and remedy sections any refer- ence to the Respondent's admitted refusal to employ members of Local 7 at the jobsite known as Washington Elms in Cambridge, Massachusetts Accordingly, we shall issue new conclusions of law and remedy and modify the recommended Order and notice to correct these omissions Having concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by terminating wages and terms" and conditions of employment of bargaining unit employees unilaterally, by rejecting and repudiating unilaterally the terms of an out- standing collective-bargaining agreement, and by refusing to 'employ members of the Union at its jobsite known as Washington Elms in Cambridge, Massachusetts, the Board orders that the Respond- ent shall make whole all employees for any losses suffered as a result of such unlawful actions, Penney Painting Service, 271 NLRB No. 200 (1984) (not re- ported in Board volumes), with interest as comput- ed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977). Further, the Respondent shall be ordered to make whole the fringe benefit funds, but inasmuch as such funds are variable and complex, the Board does not provide at this stage of the proceeding for additional interest at a fixed rate on unlawfully withheld payments. Merry- weather Optical Co., 240 NLRB 1213 (1979). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Universal Iron Co., Inc., Abington, Mas- sachusetts, its officers, agents, successors, and as- signs, shall take the action set forth • in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) Failing and refusing to hire members of the Union at the jobsite known as Washington Elms in Cambridge, Massachusetts, unilaterally changing wages and terms and conditions of employment of employees in the bargaining unit, or rejecting and repudiating the terms of an outstanding collective- bargaining agreement." 2. Substitute the attached notice for that of the administrative law judge. 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice 275 NLRB No. 191 UNIVERSAL IRON CO . 1401 To act together for other mutual aid or, pro- tection . To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain collectively with Local 7, International Association of Bridge, Struc- tural and Ornamental Iron Workers AFL-CIO as the exclusive bargaining representative of the fol- lowing employees: All ironworkers employed by is within the geographical jurisdictional area represented by the Union but excluding guards, and all super- visors as defined in Section 2(11) of the Act. WE WILL NOT unilaterally. change terms and conditions of employment for employees in the bargaining unit and WE WILL NOT unilaterally reject and repudiate the terms of a collective-bar- gaining agreement including the payment of wages, and contributions to the appropriate fringe benefit • funds. WE WILL NOT refuse to employ members -of the Union at the jobsite known as Washington Elms in Cambridge, Massachusetts.. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by' Section 7 of the Act. WE WILL, on request, bargain collectively with Local 7, International Association of Bridge, Struc- tural and Ornamental Iron Workers as the exclu- sive representative of our employees in the unit de- scribed above and WE _ WILL make employees whole, with interest, for losses suffered by them as the result of our unlawful action. . WE WILL make the Union's fringe benefit funds whole in the manner set forth by current Board policy. UNIVERSAL IRON CO., INC. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge Upon a charge filed by Local 7, International Association of Bridge, - Structural and Ornamental Iron Workers, AFL- CIO (the Union), on September 19, 1984, the General Counsel of the National Labor Relations Board issued a complaint on November 1, 1984, alleging that the Re- spondent violated Section 8(a)(5) and (1) of the National Labor Relations Act: 29 U.S.C § 151 et seq. The Re- spondent filed an answer to the complaint admitting cer- tain jurisdictional allegations but denying the factual alle- gations and the conclusionary paragraph On January 21, 1985, the matter came on for hearing before me in Boston, Massachusetts. At the outset of the hearing, counsel for the Respond- ent moved to amend its answer to admit the substantive allegations of the complaint (leaving denied only the conclusionary paragraph), which motion was granted. The General Counsel - thereupon moved for summary judgment on the pleadings to which the Respondent and the Union did not object. Ruling on Motion for Summary Judgment Inasmuch as all the factual allegations in.the complaint are now admitted and they are sufficient to support the conclusion of the unfair labor practice alleged, it is ap- propriate to grant the General Counsel's Motion for Summary Judgment, and-1 recommend the Board do so upon the following . FINDINGS OF FACT 1. JURISDICTION Universal Iron Co., Inc. (the Respondent or the Com- pany) is a corporation with its principal place of business at Abington, Massachusetts, engaged in the business of light ironwork. During the course and conduct of this business, the Respondent annually receives directly from points outside the Commonwealth of Massachusetts goods, products, and materials valued, in excess of $50,000. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES All ironworkers' employed by the Respondent within the geographical jurisdictional area represented by the Union, but excluding guards and all supervisors as de- fined in Section 2(11) of the Act, constitute an appropri- ate unit of the Respondent's employees for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. About October 7, 1982, the' Respondent recognized the Union 'as the designated exclusive representative for pur- poses of collective bargaining of its employees in the above-described unit by executing a recognition agree- ment. At all times October 7, 1982, by virtue of Section 9(a) of the Act, the Union has been and is the exclusive rep- resentative of employees in the above-described unit for purposes of collective bargaining with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment Since about August 1, 1984, the Respondent has repu- diated its contractual obligations to the Union and its employees by failing to pay employees the wage rates specified in the agreement, to make contributions to the fringe benefit funds as called for by the agreement, and by failing and refusing to employ members of the Union at its jobsite known as Washington Elms in Cambridge, Massachusetts 1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS'OF LAW By terminating unilaterally the wages and terms and conditions of employment of employees in the appropri- ate bargaining unit, including fringe benefit contributions, and by rejecting and repudiating unilaterally the terms of an outstanding collective-bargaining agreement with the Union, since August 1, 1984, the Respondent has refused to bargain with the Union and has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, affecting commerce within. the meaning of Section 2(6) and (7) of the Act. - I REMEDY Having concluded that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take cer- tain affirmative action necessary to effectuate the policies of the Act. - Having concluded that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by unilaterally terminating wages and terms and conditions of employment of bar- gaining unit employees and by rejecting and repudiating the terms of an outstanding collective-bargaining agree- ment, the Respondent shall be ordered to make whole all employees in the unit for any losses suffered as a result of such unilateral action, Penney Painting Service, 271 NLRB No. 200 (1984) (not reported in Board volumes) with interest as computed in'the matter set'forth in Flori-_ da Steel Corp., 231 NLRB 651 (1977). Further, the Re- spondent shall be ordered to make whole the'fringe ben- efit funds, but inasmuch as such funds are variable and complex the Board does not provide at this stage' of the proceeding for additional interest at a fixed rate on un- lawfully withheld payments. Merryweather Optical Co., 240 NLRB 1213 (1979). On these findings of fact and conclusions of law and' on the entire record, I issue the following recommend- edi ORDER The Respondent, Universal Iron Co., Inc., Abington, Massachusetts, its officers,. agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain collectively with Local 7, International Association of Bridge, Structural and Orna- ' If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended - Order shall, as-piovided in Sec 102 48 of the Rules,'be adopted by the Board and all objections'to them shall be deemed waived for-all pur- poses • . , , , , . , .. mental Iron Workers, AFL-CIO as exclusive representa- tive of employees in the following appropriate unit: All ironworkers employed -by the. Respondent within the geographical jurisdictional area repre- sented by the Union but excluding guards, ' and all supervisors as defined in Section 2(11) of the Act. (b) Unilaterally changing wages, and terms- and condi- tions of employment of employees in the bargaining unit and unilaterally rejecting and repudiating the terms of an outstanding collective-bargaining agreement. (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) On request, bargain collectively, with Local 7, International Association of Bridge, _ Structural, Orna- mental Iron Workers, AFL-CIO as the exclusive repre- sentative of employees in the appropriate bargaining unit described above and make all 'employees whole, with in- terest, for any losses suffered by reason of its unlawful unilateral action as set forth in the remedy section above. (b) Make the Union's fringe benefit funds whole in the manner set forth in the remedy section above. (c) Preserve and, on request, make available to the Board or its agents for examination and copying; all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Abington, Massachusetts location copies • of the attached notice marked "Appendix."2 Copies of' the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt; and maintained for 60 con- secutive days in 'conspicuous places including, all places where notices to employees are customarily posted. Rea- sonable steps shall `be taken by the Respondent to ensure that the- notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Direcior in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 2 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board f.t , ,