Cca Heating & Air Conditioning, Inc.

CCA HEATING 335 CCA Heating & Air Conditioning, Inc. and Interna- tional Association of Sheet Metal Workers, Local 9. Case 27-CA-9395 18 April 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a charge filed by the Union 25 September 1985, the General Counsel of the National Labor Relations Board issued a complaint 23 October 1985 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Although prop- erly served copies of the charge and complaint, the Company has failed to file and answer. On 12 December 1985 the General Counsel filed a Motion for Summary Judgment. On 17 Decem- ber 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 10 days of service, "all the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, the undisputed alle- gations in the Motion for Summary Judgment dis- close that the General Counsel, by letter dated 27 November 1985, notified the Company that unless an answer was filed by 4 December 1985, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT excess of $50,000 from other enterprises within the State of Colorado which other enterprises received said goods, materials, and services directly in inter- state commerce. The Company also annually sells materials and services valued in excess of $50,000, directly to other enterprises within the State of Colorado which other enterprises are directly en- gaged in interstate commerce. We find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union, International Association of Sheet Metal Workers, Local 9, is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Unit and the Union's Representative Status The employees of the Company covered by the collective-bargaining agreement effective from 18 July 1984 to 30 June 1986 between the Company and the Union constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. At all times since on or about 18 July 1984 the Union, by virtue of Section 9(a) of the Act, has been the designated exclusive collective -bargaining representative of the employees in the unit and since that date the Union has been recognized as such representative by the Company. Such recog- nition has been embodied in a collective-bargaining agreement which is effective by its terms for the period 18 July 1984 to 30 June 1986. B. The Refusals to Bargain The parties' collective-bargaining agreement pro- vides, inter alia, for the payment of contributions to various funds, including the Sheet Metal Workers Health and Welfare Trust Fund; the Sheet Metal Workers Local No. 9 Pension Trust Fund; the Sheet Metal Workers Vacation Trust Fund; and the Sheet Metal Workers Apprentice Training Fund. Since on or about May 1985, the Company has unilaterally, and without bargaining with the Union, failed and refused to pay the contributions which had been agreed upon in the collective-bar- gaining agreement. We find that by this conduct the Company has engaged in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act.i 1. JURISDICTION The Company, a corporation, is engaged in the construction industry from its facility in Westmin- ster, Colorado, where it annually purchases and re- ceives goods, materials, and services valued in ' Unlike our dissenting colleague, we see no need to examine or dis- cuss the extent of the Respondent's repudiation of its contractual and bar- gaining obligations in this case As the Respondent has filed no answer to the complaint or the Board's Notice To Show Cause , the allegations that the Respondent violated the Act are deemed admitted, and any other matters are not in issue 279 NLRB No. 54 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW By unilaterally ceasing payments to the Sheet Metal Workers Health and Welfare Trust Fund; the Sheet Metal Workers Local No. 9 Pension Trust Fund; the Sheet Metal Workers Vacation Trust Fund; and the Sheet Metal Workers Appren- tice Training Fund, as required by the collective- bargaining agreement, the Company has refused to bargain collectively with the Union and thereby has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain 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. We shall inter alia order the Company to make whole the unit employees by making all health and welfare, pension, vacation, and apprentice training fund contributions, as provided in the collective- bargaining agreement effective from 18 July 1984 to 30 June 1986, which have not been paid and which would have been paid absent the Company's unlawful unilateral discontinuance of such pay- ments2 and by reimbursing unit employees for any expenses ensuing from the Company's failure to make such required payments as set forth in Kraft Plumbing & Heating, 252 NLRB 891 In. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). ORDER The National Labor Relations Board orders that the Respondent, CCA Heating & Air Conditioning, Inc., Westminster, Colorado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with Interna- tional Association of Sheet Metal Workers, Local 9, by unilaterally discontinuing contributions re- quired by our 18 July 1984-30 June 1986 collec- tive-bargaining agreement to the Sheet Metal Workers Health and Welfare Trust Fund; Sheet Metal Workers Local No. 9 Pension Trust Fund; 2 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interests at a fixed rate on unlawfully withheld payments We leave to the compliance stage the question of whether the Respondents must pay any additional amounts into the bene- fit funds in order to satisfy our "make whole" remedy These additional amounts may be determined, depending on the circumstances of each case, by reference to provisions in the documents 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 por- tion of funds withheld, additional administrative costs, etc, but not col- lateral losses Merryweather Optical Ca, 240 NLRB 1213 (1979) the Sheet Metal Workers Vacation Trust Fund; and the Sheet Metal Workers Apprentice Training Fund. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Adhere to the terms and conditions of em- ployment of the 18 July 1984-30 June 1986 collec- tive-bargaining agreement, including its health and welfare, pension, vacation, and apprentice training fund provisions. (b) Make whole unit employees by paying all contributions to Sheet Metal Workers Health and Welfare Trust Fund; Sheet Metal Workers Local No. 9 Pension Trust Fund; Sheet Metal Workers Vacation Trust Fund; and Sheet Metal Workers Apprentice Training Fund as required by the col- lective-bargaining agreement, which have not been paid and which would have been paid absent the Company's unlawful unilateral discontinuance of such payments, and by reimbursing them for any expenses ensuing from the Company's unlawful failure to make such payments, in the manner set forth in the section of this decision entitled "Remedy." (c) Post at its facility in Westminister, Colorado, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 27, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, and for the reasons fully set forth in my dissenting opinion in Rapid Fur Dressing, 278 NLRB No. 126 (Mar. 7, 1986), I would deny the General Counsel's Motion for Summary Judgment and dismiss the complaint in its entirety. 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 Nation- al 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," CCA HEATING The Respondent has unilaterally ceased making contractually required payments to four specific benefit funds on behalf of its employees . As dis- cussed fully in my dissenting opinion in Rapid Fur,' a breach of contract is not necessarily an unfair labor practice and the National Labor Rela- tions Board is not a collection agency for the re- coupment of delinquent contributions. Rather, only conduct reflecting a substantial repudiation of a contractual and bargaining obligation constitutes an unfair labor practice, and only when presented with such conduct should the Board intervene. The Board should not become involved when, as in the instant case, it is presented with a dispute solely in- volving contract compliance. My colleagues leave the details of the collection process "to the compli- ance stage" in footnote 2 of their opinion. They thus utilize Board resources of money and person- nel to achieve a "remedy" where there is no proved violation . Worse yet, they open the door for a second appearance of this inconsequential matter before this Board . This Board, as my col- leagues are aware, has high backlog of undecided cases. Currently over 1200 cases are awaiting deci- sion. This Board exists for the purpose of expound- ing the national labor policy in adjudicated cases which determine "the Board's reasonable interpre- tations and applications of the Act." NLRB v. Action Automotive, Inc., 105 S.Ct 984 (Feb. 19, 1985). So long as the Board continues to invite multiple appearances of matters which in no way involve the national labor policy, it will continue to waste its time and resources and delay consider- ation of those cases which make policy and ex- pound the law. There exist an infinitude of disputes which involve nonstatutory issues of concern only to particular parties. For such disputes , the parties properly have recourse to appropriate informal ef- forts at resolution , or to arbitral or judicial pro- ceedings.2 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 337 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. WE WILL NOT fail and refuse to bargain with the Union by refusing to make those contributions to the Sheet Metal Workers Health and Welfare Trust Fund; the Sheet Metal Workers Local No. 9 Pen- sion Trust Fund ; the Sheet Metal Workers Vaca- tion Trust Fund; and Sheet Metal Workers Ap- prentice Training Fund that our collective -bargain- ing agreement with the International Association of Sheet Metal Workers , Local 9, requires. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL adhere to the terms and conditions of employment of the 18 July 1984-30 June 1986 col- lective-bargaining agreement, including its health and welfare, pension, vacation, and apprentice training fund provisions. WE WILL make whole unit employees by paying all Sheet Metal Workers Health and Welfare Trust Fund; Sheet Metal Workers Local No . 9 Pension Trust Fund; Sheet Metal Workers Vacation Trust Fund; and Sheet Metal Workers Apprentice Train- ing Fund payments required by the collective-bar- gaining agreement, which have not been paid and which would have been paid absent our unlawful discontinuance of such payments, and WE WILL make our employees whole for any loss of benefits resulting from our failure to honor the collective- bargaining agreement, plus interest. I See also my dissenting opinion in Adolph's Construction Co„ 279 NLRB 333 (1986) CCA HEATING & AIR CONDITION- ' See my dissenting opinion in Rapid Fur for a full discussion of these principles ING, INC.