Industrial Metal Fabricators Co.

INDUSTRIAL METAL FABRICATORS Industrial Metal Fabricators Co. and Mechanics Educational Society of America, AFL-CIO. Case 7-CA-26501 10 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union 19 December 1986, the General Counsel of the National Labor Relations Board issued a complaint 4 February 1987 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 an answer. On 9 March 1987 the General Counsel filed a motion to transfer case to the Board and for judg- ment on the pleadings. On 20 March 1987 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 14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 14 days of service, "all of the allegations in the Complaint shall be deemed to be admitted true and may be so found by the Board." Further, the undisputed alle- gations in the Motion for Summary Judgment dis- close that the Regional attorney for Region 7, by letter dated 19 February 1987, notified the Compa- ny that unless an answer was received immediately, a Motion for Default 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 I. JURISDICTION At all material times the Company, a Michigan corporation with its only office and place of busi- ness in Detroit, Michigan, has been engaged in the 309 manufacture, :Ionretail sale, and distribution of in- dustrial washers and related products. In the course and conduct of its business operations, the Compa- ny annually manufactures, sells, and distributes products valued in excess of $100,000, of which products valued in excess of $50,000 are shipped directly to points located outside the State of Michigan. We find that the Company is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Company con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by the Respondent at its Detroit, Michigan place of business; but excluding office employees and supervisors as defined in the Act. At all material times the Union has been the des- ignated exclusive collective-bargaining representa- tive of the employees in the unit described above by virtue of successive collective-bargaining agree- ments, the most recent agreement being effective by its terms from 31 March 1986 until 31 March 1988. The agreement contains, inter alia, a provision requiring the Company to remit to the Union all union dues and fees properly deducted from the pay of unit employees, and provisions requiring the Company to provide vacation and holiday pay, life, sickness and accident, health, medical and dental insurance coverage, and pension plan contributions for unit employees. Since about 19 June 1986, and continuing to date, the Company has unilaterally and without notice to the Union breached and modified the terms of the existing collective-bargaining agree- ment by failing to provide the contractually re- quired payments described above. We find that by such conduct the Company has refused to bargain collectively with the Union in derogation of its bargaining obligation under Sec- tion 8(d) of the Act, and has thereby engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act.i ' In finding that the Company has violated Sec 8(a)(5), Member Jo- hansen notes that he has previously stated that, in certain limited circum- stances, he would not find that an employer's delinquency with regard to its contractual obligations violated Sec 8(a)(5) of the Act See his dissent Continued 285 NLRB No. 46 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW By failing and refusing' to remit to the Union dues and fees properly deducted from the pay of unit employees; make certain required vacation and holdiay payments; provide all required life, sickness and accident, health, medical and dental insurance coverage; and make pension plan contributions for unit employees, as required by the collective-bar- gaining agreement between the Company and the Union, the Company has engaged in unfair labor practices 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 order the Respondent to remit to the Union all union dues and fees properly deducted from the pay of unit employees, and make all re- quired vacation and holiday payments to unit em- ployees, with interest as prescribed in New Horizons for the Retarded.2 In addition, we shall order the Respondent to make the employees whole by reimbursing them for any medical, dental, or any other expenses en- suing from the Respondent's unlawful failure to provide insurance coverage pursuant to the terms of the collective-bargaining agreement. This shall include reimbursing employees for any premiums they may have paid to third-party insurance com- panies to continue such insurance coverage in the absence of the Respondent's required payments, and for any medical or dental bills they have paid directly to health care providers that the contrac- tual policies would have covered. Kraft Plumbing & Heating, 252 NLRB 891 (1980). All such pay- ments to employees shall be made with interest as prescribed in New Horizons for the Retarded, supra. Finally, we shall order the Respondent to pro- vide all required pension plan contributions and make all employees whole for any loss of pension plan credits resulting from the Respondent's failure in Htysota Fuel Co, 280 NLRB 763 (1986) However, in Member Johan- sen's view, an employer, to avoid being found in violation of Sec 8(a)(5), must present evidence to establish that, despite its delinquency , it has not in fact repudiated its contract Because the Respondent has failed to file an answer in this proceeding, Member Johansen finds that the Company has not established that it has not repudiated the contract 2 283 NLRB 1173 (1987) Interest on and after 1 January 1987 will be computed at the "short- term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to I January 1987 shall be computed in accord- ance with Florida Steel Corp, 231 NLRB 651 (1977) to make required pension plan contributions.3 This shall include reimbursing employees for any contri- butions they themselves have made for the mainte- nance of pension plan funds after the Respondent unlawfully discontinued contributions to those funds,4 with interest as prescribed in New Horizons for the Retarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Industrial Metal Fabricators Co., Detroit Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with the Union by refusing to remit to the Union all union dues and fees properly deducted from the pay of unit employees, and by refusing to provide vaca- tion and holiday pay, life, sickness and accident, health, medical and dental insurance coverage, and pension plan contributions for unit employees as provided in the collective-bargaining agreement. (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) Remit to the Union all union dues and fees properly deducted from the pay of unit employees, with interest, and in the manner set forth in the remedy section, make the employees and the Union whole, with interest, for any loss of moneys or benefits resulting from the Respondent's failure to provide vacation and holiday pay, life, sickness and accident, health, medical and dental insurance cov- erage, and pension plan contributions for unit em- ployees as provided in the collective-bargaining agreement. (b) Post at its facility in Detroit, Michigan, copies of the attached notice marked "Appendix."5 3 Because the provisions of pension plan 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 with- held fund payments We leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the benefit 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 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 Merry-weath- er Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) 4 Kraft Plumbing & Heating, supra 5 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 " INDUSTRIAL METAL FABRICATORS Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) 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 my colleagues' granting summary judgment. The Respondent is alleged to have violated Section 8(a)(5) and (1) by failing to abide by the parties' collective-bargaining agreement by refusing to remit to the Union authorized union dues and fees deductions, and refusing to provide contractually required vacation and holiday pay, insurance cov- erage, and pension plan contributions on behalf of its employees. This evidence alone is insufficient to establish that the Respondent has engaged in a sub- stantial repudiation of the collective-bargaining re- lationship. Thus, the Respondent's refusal to make such payments and contributions amounts to noth- ing more than a contract violation. By granting the Motion for Summary Judgment the Board is again acting as nothing more than a collection agency for the Charging Party. Accordingly, I would deny the Motion for Summary Judgment. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 311 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 remit to the Union all union dues and fees properly deducted from the pay of unit employees, and by refusing to provide vaca- tion and holiday pay, life, sickness and accident, health, medical and dental insurance coverage, and pension plan contributions for unit employees as provided in the collective-bargaining agreement. 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 remit to the Union all union dues and fees properly deducted from the pay of unit em- ployees, with interest, and make the employees and the Union whole, with interest, for any loss of moneys or benefits resulting from our failure to provide vacation and holiday pay, life, sickness and accident, health, medical and dental insurance cov- erage, and pension plan contributions for unit em- ployees as provided in the collective-bargaining agreement. INDUSTRIAL METAL FABRICATORS Co.