Pacific Consolidated

1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Darta, Inc. d/b/a Pacific Consolidated and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 24. Case 36-CA-5578 25 November 1987 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS Upon a charge filed by the Union 23 April 1987, as amended 22 May 1987, the General Counsel of the National Labor Relations Board issued a com- plaint 28 May 1987, and an erratum to the com- plaint 1 June 1987, against Pacific Consolidated, the Respondent, alleging that it has violated Sec- tion 8(d) and Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that: (1) since at least 23 October 1986, the Respondent has failed to make any contractually required fringe benefit contribu- tions for certain unit employees; (2) since at least 23 October 1986, the Respondent has failed to make contractually required pension contributions for any of the unit employees; (3) since about 1 January 1987, the Respondent has failed to make contractually required health and welfare and dental contributions for any of the unit employees; (4) since about 16 December 1986,1 the Respond- ent has refused to process grievances filed by the Union. On 10 June, 15 July, and 3 August 1987, the Respondent filed an answer, an amended answer, and a second amended answer respective- ly, admitting in part and denying in part the allega- tions in the complaint. On 14 August 1987 the General Counsel filed a Motion for Summary Judgment. On 18 August 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 Respondent filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on the Motion for Summary Judgment In its first amended answer to the complaint, the Respondent admits paragraph 2(d) of this com- plaint that "at all times herein, [it has been] an em- ployer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act." However, in its first amended answer, it also avers that since 30 April 1987 it "has not been engaged in the business ' The obvious typographical error in the complaint that the Respond- ent refused to process grievances since "December 16, 1987" is correct- ed. of manufacture, service and non-retail sales of custom truck bodies and related products [as al- leged in paragraph 2(a) of the complaint] and has no office or place of business in Portland, Oregon [as alleged in paragraph 2(a) of the complaint]." The Board has found no merit to the argument that because the employer ceased operations during the period when the unfair labor practices were alleged to have occurred it was not engaged in commerce at that time. See Benchmark Industries, 269 NLRB 1096, 1097-1098 (1984). Accordingly, we do not find that the Respondent's purported cessation of operations defeats the Board's jurisdiction over it.2 The Respondent further avers in its second amend- ed answer that: ... the Union has not been recognized as the designated exclusive collective bargaining rep- resentative of the Unit since January 1, 1967 [as alleged in paragraph 5(b) and (c) of the complaint] but in fact has been recognized as collective bargaining representative of the Unit since January 1, 1985. Because the Respondent has conceded that the Union represented the unit employees for over 20 months before 23 October 1986, which is the time that the complaint alleges the violations com- menced, we conclude that the question the Re- spondent has raised regarding the precise date that the Union was initially recognized is immaterial to our resolution of this case. We shall accept its ad- mission that since 1 January 1985 the Union has been the unit employees' collective-bargaining rep- resentative. Finally, the Respondent, while admit- ting that it engaged in the conduct alleged in the complaint, denies the conclusionary 8(d) and 8(a)(5) and (1) allegations of the complaint. It is well established that an employer acts in deroga- tion of its bargaining obligation under Section 8(d) of the Act, when during the life of a collective-bar- gaining agreement it unilaterally modifies or other- wise repudiates terms and conditions contained in the agreement. Morelli Construction Co., 240 NLRB 1190 (1979). It also is clear that an employer vio- lates Section 8(a)(5) and (1) of the Act when it dis- continues terms and conditions of employment which are mandatory subjects of bargaining with- out first bargaining with the union, or when it re- fuses to process grievances. We therefore grant the General Counsel's Motion for Summary Judgment. ' The General Counsel's motion for Summary Judgment does not re- flect that the Respondent questions the accuracy of the allegations in par. 2(a) of the complaint . Contrary to the implication in the Motion for Sum- mary Judgment, we do not read the Respondent's second amended answer as withdrawing its argument in its first amended answer on this issue and we thus have addressed the argument on the merits 286 NLRB No. 109 PACIFIC CONSOLIDATED 1103 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, an Oregon corporation with an office and place of business in Portland, Oregon, was engaged at least through 30 April 1987 in the business of the manufacture, service, and nonretail sale of custom truck bodies and related products. During the 12-month period preceding the issuance of the complaint, a representative period, the Re- spondent, in the course and conduct of its business operations, sold and shipped goods or provided services from its facilities Nvihtin the State of Oregon to customers located outside the State, or sold and shipped goods or provided services to customers within the State of Oregon, which cus- tomers themselves were engaged in interstate com- merce by other than indirect means, of a total value in excess of $50,000. We find that the Com- pany is an employer 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 Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All journeymen painters, production painters, helpers and journeymen body builders em- ployed by the Respondent at its Portland, Oregon, facility, but excluding all other em- ployees, detail clean-up employees, office cleri- cal employees, guards and supervisors as de- fined in the Act. Since 1 January 1985, the Union has been the rec- ognized representative of the Respondent's employ- ees in the unit described above and, by virtue of Section 9(a) of the Act, is and has been the exclu- sive collective-bargaining representative of these employees for the purposes of collective bargaining with respect to rates of pay , wages, hours, and other terms and conditions of employment. Such recognition has been embodied in collective-bar- gaining agreements, the most recent of which was effective by its terms from August 1985 until at least 1 February 1987. Since at least 23 October 1986, the Respondent has failed to make any contractually required fringe benefit contributions for certain unit employ- ees. Since at least 23 October 1986, the Respondent has failed to make any contractually required pen- sion contributions for any of the unit employees. Since about 1 January 1987, the Respondent has failed to make contractually required health and welfare and dental contributions for any of the unit employees. Since about 16 December 1986, the Re- spondent has refused to process grievances filed by the Union. The terms and conditions of the agree- ment which the Respondent failed to continue in full force and effect are terms and conditions of employment of the employees in the above-de- scribed unit and are mandatory subjects of bargain- ing. With regard to the various acts detailed above which occurred between 23 October 1986 and 1 February 1987, the Respondent engaged in such acts without the consent of the Union. With regard to those actions occurring after 1 February 1987, the Respondent took such action without prior notice to the Union and without affording it an op- portunity to bargain about such actions. Accord- ingly, we find that the Respondent, by the acts and conduct set forth above which occurred between 23 October 1986 and 1 February 1987, has acted contrary to Section 8(d), and has violated Section 8(a)(5) and (1) of the Act and by the acts and con- duct subsequent to 1 February 1987 has violated Section 8(a)(5) and (1) of the Act.3 CONCLUSIONS OF LAW By unilaterally ceasing contractually required fringe benefit, pension, health and welfare, and dental contributions, and by refusing to process grievances filed by the Union between 23 October 1986 and 1 February 1987, the Company has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(d), Section 8(a)(5) and (1), and Section 2(6) and (7) of the Act, and by those same actions after 1 February 1987, the Re- spondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, 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 that the Respondent make the 8 Member Johansen agrees that the Respondent violated Sec. 8(aX5) and (1) of the Act, but notes his dissent in H,ysota Fuel Co., 280 NLRB 253 (1986), wherein he stated that, in certain limited circumstances, he would not find that an employer's delinquency with regard to its contrac- tual obligations violated Sec 8(a)(5) of the Act Also, in Member Johan- sen's view, an employer must present evidence to establish that , despite its delinquency, it has not repudiated the contract to avoid being found in violation of Sec. 8(a)(5) Here, Member Johansen finds that the Respond- ent failed to establish that it has not repudiated the contract 1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees whole by paying all contractually re- quired fringe benefit, pension, health and welfare, and dental contributions, as provided in the collec- tive-bargaining agreement, which have not been paid and which would have been paid absent the Respondent's unlawful unilateral discontinuance of such payments.4 ORDER The National Labor Relations Board orders that the Respondent, Darta, Inc. d/b/a Pacific Consoli- ' dated, Portland, Oregon, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to process grievances filed on behalf of employees by International Association of Ma- chinists and Aerospace Workers, AFL-CIO, Dis- trict Lodge No. 24, as the exclusive collective-bar- gaining representative of employees in the follow- ing appropriate unit: All journeymen painters, production painters, helpers and journeymen body builders em- ployed by the Respondent at its Portland, Oregon, facility, but excluding all other em- ployees, detail clean-up employees, office cleri- cal employees, guards and supervisors as de- fined in the Act. (b) Unilaterally ceasing contractually required fringe benefit, pension, health and welfare, and dental contributions. 4 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide for interest at a fixed rate and on fund payments due as part of a "make whole " remedy. We there- fore leave to further proceedings the question of any additional amounts the Respondent may pay into the benefit funds to satisfy our remedy here. These additional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the funds involved and , when there are no governing provi- sions, to evidence of any loss directly attributable to the unlawful action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc , but not collateral losses See Merryweather Optical Co., 240 NLRB 1213, 1216, fn. 7 (1979). The Respondent shall also reimburse with interest its employees for any expenses ensuing from its failure to make contributions to various funds established by the expired collective-bargaunng agreement between the Respondent and the Union. Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd. 661 F.2d 940 (9th Cir 1981) In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S C. § 6621. Interest on amounts accrued prior to 1 Janu- ary 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). We shall leave to compliance the effect, if any, the Respondent's pur- ported cessation of operations on our remedial order. The General Counsel requests a visitatorial clause authorizing the Board for compliance purposes to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order. Under the cir- cumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request (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) On request, bargain with the above-named labor organization as the exclusive representative of all employees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment, and process the grievances filed by the Union on behalf of the unit employees. (b) Make the unit employees whole by paying all contractually required fringe benefit, pension, health and welfare, and dental contributions, as provided in the collective-bargaining agreement, which have not been paid and which would have been paid absent the Respondent's unlawful unilat- eral discontinuance of such payments, and continue such payments until such time as the Respondent negotiates in good faith to a new agreement or an impasse. (c) Reimburse the unit employees for any ex- penses, plus interest, they incurred as a result of the failure to make fringe benefits, pension, health and welfare, and dental contributions. (d) Post at its facility in Portland, Oregon, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 36, 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. 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." PACIFIC CONSOLIDATED 1105 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 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 process grievances filed on behalf of employees by International Associa- tion of Machinists and Aerospace Workers, AFL- CIO, District Lodge No . 24, as the exclusive col- lective-bargaining representative of our employees in the following appropriate unit: All journeymen painters, production painters, helpers and journeymen body builders em- ployed by the Respondent at its Portland, Oregon, facility, but excluding all other em- ployees, detail clean-up employees, office cleri- cal employees, guards and supervisors as de- fined in the Act. WE WILL NOT unilaterally cease contractually re- quired fringe benefit, pension, health and welfare, and dental contributions. 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, on request, bargain with the Union as the exclusive collective-bargaining representative of our employees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment, and WE WILL process the grievances filed by the Union on behalf of the unit employees. WE WILL make the unit employees whole by paying all contractually required fringe benefit, pension, health and welfare, and dental contribu- tions, as provided in the collective-bargaining agreement, which have not been paid and which would have been paid absent our unlawful unilater- al discontinuance of such payments, and WE WILL continue such payments until such time as we ne- gotiate in good faith to a new agreement or an im- passe. WE WILL also reimburse with interest the unit employees for any expenses they incurred as a result of our failure to make fringe benefit, pension, health and welfare, and dental contributions. DARTA, INC. D/B/A PACIFIC CON- SOLIDATED