Kargard Industries, Inc.

KARGARD INDUSTRIES Kargard Industries, Inc. and Local 696, Internation- al Brotherhood of Boilermakers, Iron Ship Builders, ' Blacksmiths, Forgers and Helpers, AFL-CIO. Case 30-CA-9366 25 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge and amended charge filed by the Union 20 October and 25 November 1986, the General Counsel of the National Labor Relations Board issued a complaint 25 November 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) and Section 8(d) of the National Labor Relations Act. Al- though properly served copies of the charge and complaint, the Company has failed to file an answer. On 5 January 1987 ,the General Counsel filed a Motion for Summary Judgment. On 7 January 1987 the Board issued an order transferring the proceed- ing 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 '14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed by 9 December 1986, "all of 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 counsel for the General Counsel, on 19 and 18 December 1986, 'notified the Company and its counsel, respectively, that unless an answer was received immediately, 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 331 I. JURISDICTION The Company, a Wisconsin corporation , engages in the manufacture, nonretail sale, and distribution of pressure vessels and related products at its facili- ty in Marinette, Wisconsin, where it annually pur- chases and receives products, goods, and materials valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin. We find that the Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Since about 1962 the Union has represented a unit of all production and maintenance employees, including stockroom clerks, but excluding office clerical employees, professional employees, watch- men and guards, quality control employees, and su- pervisory employees employed at the Respondent's Marinette, Wisconsin facility. Successive collective- bargaining agreements, the most recent effective from 23 March 1986 to 23 March 1991, embody this representative status. The Union by virtue of Section 9(a) of the Act is the exclusive representa- tive of the unit for the purposes of collective bar- gaining- The latest collective-bargaining agreement con- tains provisions for life, accident and dismember- ment, and long-term disablity insurance for mem- bers of the unit. Since about 19 August 1986 the Respondent has failed and refused to make pay- ment for the insurance premiums as required by the collective-bargaining agreement. The failure to make the insurance premium payments led to a cancellation of the insurance coverage on 31 August 1986 by the insurance carrier. The Respondent failed and refused to make the payments set forth above without the agreement of the Union. By these acts the Respondent unilateral- ly modified its collective-bargaining agreement with the Union. CONCLUSIONS OF LAw 1. By unilaterally discountinuing insurance pre- mium payments as required by the collective-bar- gaining agreement without the agreement of the Union, the Company has engaged 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 Act. 283 NLRB No. 53 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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. Having found that the Respondent has unlawful- ly made unilateral changes in the employees' terms and conditions of employment, we shall order that the Respondent restore, the status quo ante by rein- stating the-life, accident and dismemberment, and long-term disability insurance coverage for its em- ployees in the unit as required by the collective- bargaining agreement. We shall further order that the Respondent make whole employees for any ex- penses or losses incurred as a result of the unilater- al changes. The amounts paid to employees to make them whole' for any losses they may have suffered as a result of the Respondent's- unlawful unilateral action shall include interest to be com- puted in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). Additionally, the Re- spontjent'shallbe ordered to cease and desist from implementing unilateral changes in contractual terms and conditions of employment for unit em- ployees without the agreement of the Union. We deny as unnecessary the General Counsel's request for a visitatorial provision. ORDER The National Labor Relations Board orders that the Respondent, Kargard Industries, Inc., Marin- ette, Wisconsin, its officers, agents, successors, and assigns, -shall 1: Cease and desist from (a) Refusing to bargain collectively with Local 696, International Brotherhood of Boilermakers, 'Iron Ship Builders, Blacksmiths, Forgers and Help- ers, AFL-CIO, as the exclusive representative of its employees in the following unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees, including stockroom clerks, but excluding office clerical employees, professional employ- ees, watchmen and guards, quality control em- ployees, and supervisory employees as defined in the Act. (b) Changing insurance coverage or other con- tractual terms and conditions of employment of employees in the unit without the agreement of the Union. (c) 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) Reinstate the life, accident and dismember- ment, and long-term disability insurance coverage for employees in the unit as 'required by the collec- tive-bargaining agreement. (b) Make whole, with interest, all employees for any expenses or losses incurred as a result of the unilateral termination Of life, accident and dismem- berment, and long-term disability insurance cover- age. - (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts due under the terms of this Order. (d) Post at its facility in Marinette, Wisconsin, copies of the attached notice marked -"Appendix." Copies of the notice, on forms provided 'by the Re- gional Director for Region 30, 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. (e) 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. For the reasons set forth in my dissent in Rapid Fur Dressing, 278 NLRB 905 (1986), I dissent from the majority's finding that the Respondent violated Section 8(a)(5) by failing to make premium pay- ments pursuant to its contract with the Union. There is no evidence that the Respondent has en- gaged in conduct reflecting a repudiation of the collective-bargaining agreement in any way tanta- mount to a violation of the Act or has otherwise refused to bargain. By finding a violation in these circumstances, the Board is once again allowing itself to - be used as a collection agency for the Charging Party. Accordingly, I would deny the Motion' for Summary Judgment. ' 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." KARGARD INDUSTRIES 333 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. WE WILL NOT refuse to bargain collectively with Local. 696, International Brotherhood of Boiler- makers,, Iron Ship Builders,, Blacksmiths, Forgers and Helpers, AFL-CIO, as the exclusive represent- ative of our employees in the following unit, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment. All production -and maintenance employees, including stockroom clerks, but excluding office clerical employees, professional employ- ees, watchmen and guards, quality control em- ployees, and supervisory employees as defined in the Act. WE WILL NOT change insurance coverage or other contractual terms and conditions of employ- ment of employees in the unit without the agree- ment of the Union. 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 reinstate the life, accident and dismem- berment, and long-term disability insurance cover- age for employees in the unit as required by the collective-bargaining agreement with the Union. WE WILL make whole, with interest, all employ- ees for any expenses or losses incurred as a result of the unilateral termination of the life , accident and dismemberment, and long-term disability insur- ance coverage. KARGARD INDUSTRIES, INC.