Shelter Island, Inc.

246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shelter Island, Inc. and San Diego Bartenders and Culinary Workers Insurance Trust Fund. Case 21-CA-25263 July 29, 1988 DECISION AND ORDER the obligation to make payment arose on comple- tion of the shifts, events which took place prior to impasse.2 For this reason, we agree with the judge that the Respondent violated Section 8(a)(5) and (1) by refusing to comply with the Trust Fund's January 29, 1987 request for payment 3 BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On December 16, 1987, Administrative Law Judge George Christensen issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and supporting briefs. 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.' The judge found, and we agree, that the Re- spondent violated Section 8(a)(5) and (1) of the Act when it refused to remit to the Trust Fund in Janu- ary 1987 a report with payments for shifts worked by employees from December 1 to December 22, 1986. We find no merit to the Respondent's conten- tion that it was not obligated to make the payments because the parties reached a valid impasse in ne- gotiations on December 23, 1986, before the pay- ments became due in January 1987. Rather, on the record before us we find that the employees' enti- tlement to have payments made on their behalf by the Respondent to the Trust Fund accrued with the completion of each shift worked by an employ- ee. Thus, the Respondent's liability for the pay- ments in question here attached prior to the De- cember 23, 1986 impasse date, and not in January 1987, as claimed by the Respondent. That the Re- spondent was permitted to defer remittance of the payments to the month following the one in which the shifts were worked does not alter the fact that i The General Counsel has excepted only to the portion of the Judge's recommended Order which requires the Respondent, Shelter Island, Inc , to make the Charging Party whole by paying the Fund $2 for each shift worked by its employees from December I to December 22, 1986 The General Counsel contends that the trustees of the Fund had authority to and, in fact, did raise periodically the rate which the Respondent under the contract was required to contribute per shift and that, consequently, the recommended Order should be modified to provide for a general make-whole remedy, with the correct amount to be paid by the Respond- ent left to the compliance stage of this proceeding for determination We find merit in the General Counsel's exception and shall, accordingly, modify the judge's recommended Order to provide for a general make- whole remedy We leave to the compliance stage of these proceedings the determination of the correct rate and amount to be paid into the Fund by the Respondent ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Shelter Island, Inc., San Diego, Califor- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(b). "(b) Refusing to pay to the Trust Fund the amounts owed for each such shift." 2. Substitute the attached notice for that of the administrative law judge. z We find nothing in the record to support our dissenting colleague's conclusion that "the use of the previous month's shifts to calculate fund payments for the subsequent month was merely a convenient method of calculation used by the parties to determine the amount of contribution due " Sec 19(b) of the parties' agreement states, in relevant part, that "The Employer shall pay the sum of two dollars ($2 00) per day for each shift worked by each employee covered by the terms of the con- tract to the San Diego Bartenders and Culinary Workers Insurance Fund The Employer shall forward to the Trustees (on forms approved by, and at a time and place designated by them) a report of the names and number of days of employment of all employees covered by this con- tract " Sec 19(g) of the agreement further authorizes the Trustees to take legal and other action "in the event payments have not been received by the Trust by the twentieth of the month succeeding the month for which payments are due" (emphasis added) The above contractual language clearly indicates that the Respondent was liable for payments for shifts worked by employees as a matter of obligation, not calculation There is nothing in the contract which provides that the previous month's shifts will be used to calculate payment for the subsequent month That it has been the Fund's practice (within the discretion granted the Trustees in the agreement) to use the payment for the previous month's shifts to assure coverage for the month in which payment is received has no bear- ing on the Respondent's obligation to make payment for shifts worked prior to impasse Y We find, for the reasons stated by the judge, that the Board's decision in O'Malley Lumber Co, 234 NLRB 1711 (1978), is distinguishable from the present case and, therefore, not controlling here We further note that although in O'Malley, as here, the employer, inter alia, was alleged to have ceased, unilaterally, making payments to a union trust fund, the issue in O'Malley centered on whether the parties reached a valid impasse in negotiations and, if so, whether the employer's unilateral changes were consistent with its preimpasse proposals There is nothing in the O'Malley decision to suggest that any of the parties to the proceedings either raised or litigated the issue posed by the instant case of whether the payments which the employer failed to make had accrued prior to impasse Finally, we note that in O'Malley the contract expired on May 31, 1976, and the respondent made no payments in July 1976 for work completed in June 1976 While the Judge in O'Malley found that the parties initially reached impasse on the health and welfare issues on June 16, 1976, he did not pass on whether the impasse was broken by a strike which occurred that same day because the parties, in any event, were at an impasse on this issue on June 29, 1976 In view of his failure to pass on that issue, we cannot de- termine For certain if the impasse occurred before the employees had worked the full June hours which would have triggered the employer's obligation to make the July payment On these facts, we do not find O'Malley to be controlling or inconsistent with our decision here 290 NLRB No. 35 SHELTER ISLAND MEMBER CRACRAFT, dissenting. Contrary to my colleagues, I would not find that the Respondent violated Section 8(a)(5) and (1) by failing to make payments to the San Diego Bar- tenders and Culinary Workers Insurance Trust Fund for shifts worked, by its employees between December 1 and December 22, 1986, and by failing to submit a report indicating which shifts were worked during this period. The expired collective-bargaining agreement' provided, inter alia, that the "Employer shall pay the sum of two dollars ($2.00) per day for each shift worked by each employee covered by the terms of the contract to the San Diego Bartenders and Culinary Workers Insuranceti Fund." Each con- tribution paid for health coverage for the entire month in which payment was made. The amount of the premium was based on the number of shifts worked the previous month. Legal action for delin- quencies could be instituted by the Trust in the event payments were not received by the 20th of the month following the month for which pay- ments were due. The parties reached impasse in negotiations on December 23, 1986. Prior to impasse the Respond- ent had forwarded a December payment to the Fund, thereby providing health coverage for the employees through December 1986. The December payment was calculated based on the number of shifts worked in November. In January 1987, the Respondent notified the Fund that it was with- drawing from the contract plan and would not make any further payments to the Fund because it was going to institute the health plan it had pro- posed during negotiations . Initially, the fund ad- ministrator notified the Respondent that because the Respondent was providing coverage beginning January 1, it was unlikely that further contributions would be required. However, in late January the Fund advised the Respondent that it was entitled to payments on behalf of unit employees for shifts worked through the date of impasse and requested a report reflecting the number of shifts worked be- tween December 1 and December 22 and payment for those shifts. This case is essentially a contract dispute. In NCR Corp., 271 NLRB 1212 (1984), the Board held that in cases involving contract interpretation where there is no evidence that the respondent acted out of animus toward the union or in bad faith, or that the respondent was seeking to under- mine the union , the Board will not attempt to de- termine which of two equally plausible contract in- terpretations is correct. See also Thermo Electron i The collective-bargaining agreement expired October 31, 1986 247 Corp., 287 NLRB 820 (1987). Here, there is no evi- dence of union animus or that the Respondent was acting in bad faith .2 The Respondent was not at- tempting to undermine the Union. Moreover, the parties present two plausible contract interpreta- tions. Thus, the principles of Thermo Electron and NCR would normally apply and the complaint would be dismissed. - However, both Thermo Electron and NCR Corp. are grounded, in part, on a discretionary exercise of jurisdiction.3 I believe it would effectuate the purposes of the Act to exercise that jurisdiction here. There are no private dispute resolution mecha- nisms available to the parties herein. The Trust Fund is not a party to the collective-bargaining agreement and thus could not use the contract's grievance-arbitration procedure even if the require- ments in Indiana & Michigan Electric Co.4 were sat- isfied. Furthermore, there is no ERISA remedy for an employer's failure to make fund contributions after the expiration of the collective -bargaining agreement . Laborers Trust Fund v. Advanced Light- weight Concrete Co., 484 U.S. 539 (1988). Because there is no forum for resolution of the two plausi- ble contract interpretations herein, in these limited circumstances it would effectuate the purposes of the Act to resolve the dispute. I conclude, contrary to my colleagues, that the fact that the fund payments were calculated based on hours worked during the previous month and that legal action for delinquencies could be institut- ed by the 20th of the month following the month for which payment was due does not compel the conclusion that the benefits accrued with the com- pletion of each shift. Rather, I believe that the use of the previous month's shifts to calculate fund payments for the subsequent month was merely a convenient method of calculation used by the par- 2 The Respondent provided health coverage for the employees under the terms of the expired contract up to and beyond the date of impasse a The cases relied on by the Board in NCR Corp and Thermo Electron are based on an abstention doctrine See, e g , Vickers, Inc, 153 NLRB 561, 570 (1965) ("the Board ordinarily will not exercise its jurisdiction to resolve a dispute between the parties as to whether the employer's inter- pretation was correct "), Timken Roller Bearing Co Y NLRB, 161 F 2d 949, 955 (6th Cir 1947) ("the dispute was a dispute as to the inter- pretation of the management clause , and the contract specifically provid- ed that such disputes were to be settled within the grievance proce- dures "), Consolidated Aircraft Corp, 47 NLRB 694, 706 (1943), enfd 141 F 2d 785 (9th Cir 1944) (Board "deems it unwise" to exercise jurisdiction to attempt to police contract where the parties have not exhausted their remedies under the contract), National Dairy Products Corp, 126 NLRB 434, 439 (1960) ("the Board does not ordinarily exercise its jurisdiction to resolve conflicts regarding which party has correctly interpreted the con- tract ") 4 284 NLRB 53 (1987) 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ties to determine the amount of contribution due, and did not indicate that benefits had accrued.5 The Respondent provided health coverage under the expired collective-bargaining agreement beyond December 23, 1986, the date of impasse. No other benefits had accrued as of that date . Accordingly, I find that the Respondent did not violate Section 8(a)(5) and (1) of the Act by failing to make fund payments in January 1987. 5 1 do not find O'Malley Lumber Co., 234 NLRB 1171 ( 1978), in which on similar facts no violation was found , to be particularly relevant to the instant case 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 continue to refuse to file with the San Diego Bartenders and Culinary Workers Insur- ance Trust Fund a report reflecting the number of shifts each of our employees in the following unit worked between December 1 and December 22, 1986: All kitchen and stockroom employees, lunch and dining room employees, bartenders and cocktail lounge employees, special occasion bartenders, housekeeping and service depart- ment employees and cafeteria employees em- ployed by the Employer; excluding all other employees, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL NOT continue to refuse to pay to the Trust Fund the amounts owed for each shift worked by each employee within that unit between December 1 and December 22, 1986. WE WILL file the report and pay the amount or amounts described above. WE WILL make whole any employees within the unit who suffered losses because of our nonpay- ment of the amount or amounts described above. WE WILL pay to such employees and to the Trust Fund any interest, penalties, or other sums adjudged payable in the compliance phase of this proceeding before the Board. Theodore R. Scott, for the General Counsel. Dennis Childs, Esq. (Sheppard, Mullin, Richter & Hamp- ton), of San Diego, California, for the Respondent. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Administrative Law Judge. On July 30, 1987, I conducted a hearing at San Diego, California, to try issues raised by a complaint issued on April 10, 1987, based on a charge filed by San Diego Bartenders and Culinary Workers Insurance Trust Fund (Fund) on March 2, 1987. The complaint alleged Shelter Island, Inc. (Respond- ent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (Act) by refusing to make payments to the Fund for shifts worked between December 1 and 22, 1986, by its employees represented by Local 30, Hotel and Restaurant Employees Union, AFL-CIO (Union). The Respondent conceded it refused to make the pay- ments in question but denied it thereby violated the Act. The issue is whether the Respondent violated the Act by refusing to make those payments. The General Counsel and the Respondent appeared by counsel and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Both filed briefs. Based on my review of the entire record, observation of the witnesses, perusal of the briefs and research, I enter the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find at all pertinent times the Respondent was an employer engaged in commerce and in a business affecting com- merce and the Union was a labor organization within the meaning of Section 2 of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Facts The Respondent operates two restaurants in San Diego (The Bali Hai and Tom Ham's Lighthouse). Since at least 1975, the Respondent has recognized the Union as the exclusive collective-bargaining representative of All kitchen and stockroom employees, lunch and dining room employees, bartenders and cocktail lounge employees, special occasion bartenders, housekeeping and service department employees, and cafeteria employees employed by the Employ- er; excluding all other employees, office clerical em- ployees, professional employees, guards and super- visors as defined in the Act.' SHELTER ISLAND, INC. 1 find this unit is appropriate for collective-bargaining purposes within the meaning of Sec 9 of the Act SHELTER ISLAND Through its duly designated representative for collec- tive-bargaining purposes, the Restaurant-Hotel Employ- ers Council of San Diego, Inc. (Council), the Respondent entered into collective-bargaining contracts with the Union setting forth the wages , rates of pay, hours, and working conditions of its employees within the unit. The latest contract was executed in 1980. That contract, inter alia, contained the following pro- visions: SECTION 19-HEALTH AND WELFARE PLAN.' (a) The San Diego Bartenders and Culinary Workers Insurance Fund Trust Indenture executed on the Seventh (7th) day of January , 1952, and any amendments as may be made from time to time thereto, are hereby incorporated by reference and made a part of this Agreement . The Employer, by signing this Agreement , agrees to be bound by all the terms and provisions of said Trust Indenture. (b) The Employer shall pay the sum of two dol- lars ($2.00) per day for each shift worked by each employee covered by the terms of the contract to the San Diego Bartenders and Culinary Workers In- surance Fund. The Employer shall forward to the Trustees (on forms approved by, and at a time and place designated by them) a report of the names and number of days of employment of all employees covered by this contract . Said payments are to be made by the Employer directly to the Trustees of the San Diego Bartenders and Culinary Workers' Health and Welfare Trust Fund. The Employer sig- natory hereto hereby accepts the present Council appointed Trustees and their duly selected succes- sors and alternates as his representatives on said Trust Fund. (d) The Employer, upon demand of either the Trustees of the San Diego Bartenders and Culinary Workers Insurance Fund or of the Local Joint Board, shall submit such reasonable information, employment and payroll records as may be relevant and necessary for the ascertainment by the Trustees or the Union, of the amount of monies due and owing by the Employer of the Trust. (g) The Trustees of the Fund , in the event pay- ments have not been received by the Trust by the twentieth of the month succeeding the month for which payments are due, may sue said Employer for one or more of the following : An accounting, injunction, recovery of the delinquent payments, reasonable costs of suit and any other relief that may be appropriate under the circumstances. Reports of the number of shifts worked by each unit employee were normally prepared shortly after the end of each month and sent to the Fund , accompanied by the requisite payments . Those payments assured health cov- erage under the plan administered by the Fund for the month in which the payment was received, provided the Fund received payments from the Respondent and other employer participants in the health plan for more than 12 249 shifts worked by each covered employee during the pre- ceding month.2 Prior to the October 31, 1986 expiration of the con- tract, the Respondent timely withdrew the Council's au- thority to represent it, so notified the Union , and termi- nated the contract. During subsequent negotiations between the Respond- ent and the Union over terms for a successor contract, the Employer proposed to substitute a health plan of its choice for the contract plan and the Union proposed to continue the contract plan unchanged.' The parties reached an impasse in their negotiations on December 23, 1986. Between the date the contract expired and the impasse date, the Respondent sent an early November and early December 1986 report to the Fund accompanied by the requisite payments, assuring eligible employees health coverage under the contract plan for November and De- cember 1986. In early January 1987, the Fund received a letter from the Respondent dated December 31, 1986 , stating it was withdrawing from further participation in the contract plan, would not make any further payments to the Fund, and was going to institute the health plan it proposed during negotiations. In response to a telephone inquiry by a Fund representative in early January 1987, a repre- sentative of the Respondent confirmed the Respondent was not going to send any report to the Fund concern- ing the number of shifts unit employees worked during any part of December 1986 nor tender any payments to the Fund based thereon. In further conversations (there were two telephone conversations), the Fund representa- tive, in response to inquiries, informed the Respondent's representative the contract plan would not provide Janu- ary 1987 coverage for any unit employee on whose behalf it did not receive payments for 12 or more shifts worked during December 1986. The Respondent placed its plan in effect in January 1987; for January and February 1987, it made special ar- rangements to cover its part-time or on-call employees, but ceased to cover them thereafter. The parties stipulated unit employees covered by the contract plan in December 1986 worked a substantial number of shifts between December 1 and 22, 1986, and further stipulated all unit employees were covered in January 1987 either by the contract plan (by virtue of shifts worked for participating employers other than the Respondent) or by the Respondent's plan. On January 29, 1987 , following receipt of advice from counsel that the Fund was egally entitled to payments on behalf of unit employees for shifts worked through the date of impasse, the Fund wrote a letter so advising the Respondent and requesting transmission to the Fund of a 2 Though the Fund needed payments for at least 22 shifts to fund its payouts (I credit the Fund administrator 's undisputed testimony to that effect). ' The Respondent 's plan covered only its employees, limited coverage to full-time employees (excluding part-time or on-call employees), and contained a $100 deductible feature; the contract plan covered full-and part-time or on-call employees, was portable (i.e., it credited payments for work performed by all participating employers ), and had no deducti- ble feature 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD report reflecting the number of shifts unit employees worked between December 1 and 22 and payment there- for. At all times since, the Respondent has refused to tender the requested report and payments. B. Analysis and Conclusions The Board, with court approval, has consistently held an employer violates the Act by failing or refusing to make deferred payments based on work performed prior to a bargaining impasse, and on the premise the purposes of the Act are best served by requiring an employer to maintain its employees' wage components (including pay- ments to provide health and pension coverage) provided under an expired collective-bargaining agreement, un- changed, while the parties negotiate over terms for a possible successor agreement.4 In this case the Respondent refused to pay to the Fund $2 for each shift worked by unit employees between De- cember 1 and 22, 1986, the day the Respondent and the Union reached impasse in their negotiations over the terms for a successor to an expired contract requiring such payments. On these facts, the line of cases just recit- ed support the conclusion the Respondent thereby violat- ed the Act. The Respondent contends O'Malley Lumber Co., 234 NLRB 1171 (1978), dictates a contrary conclusion. While that case holds the employer did not violate the Act by discontinuing payments to a health fund established under an expired collective-bargaining agreement with the union representing its employees following the expi- ration of the agreement, the case is readily distinguish- able from this one; the major issue litigated in O'Malley was whether the parties to the expired agreement ever reached a bargaining impasse prior to the employer's im- plementation of the health plan it proposed during nego- tiations, with the General Counsel contending no such impasse was reached and the employer contending a bar- gaining impasse was reached 16 days after the agreement expiration. The employer's contention was sustained and on the basis: (1) prior to the expiration of the OMalley- union agreement , the fund adopted the policy of not ac- cepting payments for any hours worked after the expira- tion of a collective-bargaining agreement requiring them5 (a policy known by the employer by virtue of the service of one of its representatives as a fund trustee ); (2) the employer nevertheless placed payments in an escrow ac- count covering the 15 days its union-represented employ- ees worked between the date the agreement expired and 4 NLRB Y. Katz, 369 U S 736 (1962); Southwestern Steel & Supply, 276 NLRB 1569 (1985), enfd 806 F 2d 1111 (D.C. Cir. 1986); Auto Fast Freight, 272 NLRB 561 (1984), enf denied 793 F 2d 1126 (9th Cir. 1986), American Distributing Co. 264 NLRB 1413 (1982), enfd 715 F.2d 446 (9th Cir 1983), cert denied 466 U.S. 958 (1984); Stone Boat Yard, 264 NLRB 981 (1982), enfd. 715 F 2d 441 (9th Cir 1983), cert denied 466 U S 937 (1984), Cauthorne Trucking Co., 256 NLRB 721 (1981), enfd. 691 F.2d 1023 (D C. Cir. 1982); Anionino 's Restaurant, 246 NLRB 833 (1979), enfd. 648 F.2d 1206 (9th Cir. 1981); Hen House Market No 3, 174 NLRB 596 (1969), enfd 428 F.2d 133 (8th Cir 1970); Emsing's Supermarket, 284 NLRB 302 (1987); Santulli Mail Services, 281 NLRB 1288 (1986); Buck Brown Contracting Co., 272 NLRB 951 (1984). 5 Based on an opinion by the fund counsel , the fund was not legally entitled to such payments the date of impasse; (3) no evidence was developed that the fund ever requested the employer to tender the escrowed funds or the employer refused to remit them; (4) the fund provided extended coverage to the affected employees for a minimum of 4 and a maximum of 7 months after the agreement expired; (5) the employer did not institute the health plan it proposed during negotia- tions until the expiration of each affected employee's health coverage by the fund; (6) it was held the General Counsel failed to establish employer conduct violative of the Act. In this case the Fund followed the policy of accepting payments from employers for all shifts worked between the date of contract expiration and date of impasse, based on an opinion by legal counsel it was legally entitled to. The General Counsel proved the Fund requested payment for shifts worked by unit employees between those dates and the Respondent refused to comply with that request. The Respondent could have tendered the requisite pay- ments and placed its plan in effect and assured unit em- ployee coverage under the contract plan for January 1987 but, instead unilaterally announced it was refusing to do so and placed its plan in effect that month. The Respondent's plan materially differed from the contract plan in that it excluded part-time or on-call employees from coverage,6 and contained a deductible feature (which may have forced some unit employees to pay the amount of the deductible under the Respondent's plan for any treatment in January 1987, that would not have occurred had they been covered for that month by the contract plan). On the basis of the foregoing , I find and conclude by its refusal to comply with the Fund's request for a report reflecting the number of shifts unit employees worked between December 1 and 22, 1986, and by its refusal to remit to the Fund $2 for each such shift , the Respondent violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. At all pertinent times the Respondent was an em- ployer engaged in commerce and in a business affecting commerce and the Union was a labor organization within the meaning of Section 2 of the Act. 2. At all pertinent times the following unit of the Re- spondent's employees was appropriate for collective-bar- gaining purposes within the meaning of Section 9 of the Act: All kitchen and stockroom employees , lunch and dining room employees , bartenders and cocktail lounge employees, special occasion bartenders, housekeeping and service department employees, and cafeteria employees employed by the Employ- er; excluding all other employees , office clerical em- As noted above, however, the Respondent arranged for coverage of those employees under its plan for January 1987. This resulted in double coverage of unit employees who worked a sufficient number of shifts for employers participating in the contract plan other than the Respondent during December 1986, the result the Respondent now complains about. That result could have been avoided by the Respondent's compliance with the Fund's request and placing its plan in effect following expiration of coverage by the contract plan. SHELTER ISLAND ployees, professional employees, guards, and super- visors as defined in the Act. 3. At all pertinent times the Union was the exclusive representative of the employees within the aforesaid unit for the purpose of bargaining collectively with the Re- spondent with respect to their wages, rates of pay, hours, and working conditions. 4. By refusing to comply with the Fund's request for a report reflecting the number of shifts its employees within the above unit worked between December 1 and 22, 1986, and for tender to the Fund of $2 for each such shift, the Respondent violated Section 8(a)(1) and (5) of the Act. 5. The above unfair labor practice affected commerce as defined in the Act. THE REMEDY The normal remedy in cases of this type is a direction the employer file with the entity designated in the ex- pired contract the requisite report and payments, to make employees whole for losses they suffered by virtue of the nonpayment , and any interest, penalties, or other sums due affected employees and the entity. Citing Hassett Maintenance Co., 260 NLRB 1211 (1982), the Respondent argues directing such a remedy in this case would "unjustly enrich" the Fund and consti- tute a "windfall," noting either the Fund or the Re- spondent or both provided health plan coverage to all unit employees for January 1987. The argument ignores the fact the Respondent unilat- erally and without union or Fund concurrence failed in early January 1987 to file a report reflecting the number of shifts unit employees worked between December 1 and 22, 1986, accompanied by the requisite payments, re- fused in late January 1987, following its reaching of de- linquency status, to comply with the Fund's request for such report and payments , and unilaterally, without Fund or union concurrence, instituted its health plan for all unit employees7 in January 1987, rather than dovetail- ing coverage by its plan as contract plan coverage ex- pired. It also ignores the fact that payments to the Fund rep- resent a pool designed to cover a broad spectrum of em- ployees, which is why the contract plan contains a porta- bility feature and provides coverage even though a par- ticular employee has worked 12 and not 22 shifts during the covered period . As the Ninth Circuit stated in Stone Boat Yard, supra: The company is merely required to repay what it has unlawfully withheld . As in [Antonino's Restau- rant, supra] it was the company that unlawfully chose to incur the additional expense of a private insurance program . Even if Stone's substitute fringe benefit program met the present needs of its em- ployees, the diversion of contributions from the 7 At times pertinent there were approximately 140 employees in the unit This finding is based on testimony by one of the Respondent's owners 251 union funds undercut the ability of those funds to provide for future needs. 715 F.2d 441, at 446.8 I shall therefore recommend the Respondent be or- dered to file with the Fund a report reflecting the number of shifts each unit employee worked between December 1 and 22 , 1986, to tender $2 to the Fund for each such shift, to make whole any unit employees who suffered any losses due to the Respondent 's failure to timely tender to the Fund the payments just set forth, and to pay to those employees and to the Fund such in- terest, penalties, etc., as may appear warranted in the compliance phase of this proceeding.9 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'o ORDER The Respondent , Shelter Island, Inc., San Diego, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to file with the San Diego Bartenders and Culinary Workers Insurance Trust Fund a report reflect- ing the number of shifts each of its employees within the following unit worked between the dates of December 1 and 22, 1986: All kitchen and stockroom employees, lunch and dining room employees, bartenders and cocktail lounge employees, special occasion bartenders, housekeeping and service department employees, and cafeteria employees employed by the Employ- er; excluding all other employees, office clerical em- ployees, professional employees , guards, and super- visors as defined in the Act. (b) Refusing to pay to the Fund $2 for each such shift. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) File with the Fund the report described above. (b) Pay to the Fund the amount or amounts described above. (c) Make whole any employees within the aforesaid unit for any losses they may have suffered by virtue of Shelter Island, Inc.'s nonpayment of the prescribed amount or amounts. (d) Pay to such employees and to the Fund any inter- est, penalties, or other payments adjudged due and pay- able in the compliance stage of this proceeding. (e) Post at its facilities at San Diego, California, copies of the attached notice marked "Appendix."" Copies of a Also see Antonino's Restaurant , supra; Buck Brown Contracting Co supra; and Southwestern Steel & Supply, supra. ° See Taurus Waste Disposal, 263 NLRB 309 (1982 ); and Merryweather Optical Co., 240 NLRB 1213 (1979), for guidance 10 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the finding. conclusions, and recommended Order shall, as provided 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. 11 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- Continued 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 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 " consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.