Universal Enterprises, Inc

670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Universal Enterprises, Inc and International Long shoremen's Association, AFL-CIO, Local #1414 Case 10-CA-17475 November 14 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 22 1983 Administrative Law Judge Leonard N Cohen issued the attached deci sion The Respondent and the General Counsel filed exceptions and 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 1 and conclusions and to adopt the recommended Order to the extent consistent with this decision The judge found inter alia that although the Respondent lawfully withdrew from a multiem ployer bargaining association its refusal to submit contributions to an employee benefit trust fund vio lated Section 8(a)(5) and (1) of the Act We agree As more fully detailed in the judge s decision from mid 1977 until late May 1981 the Respond ent Universal Enterprises Inc was a member of the Savannah Container Maintenance Association (SCMA or Association) a multiemployer bargain ing association The Respondent assigned its bar gaining rights to the Association Prior to the Sep tember 30 1980 expiration of the 1977-1980 con tract the International Longshoremen s Associa tion AFL-CIO Local #1414 (the Union) and the SCMA negotiated an interim agreement effective in the event of a contractual hiatus This agreement included an oral component that allowed the Re spondent to postpone its contributions to a joint trust fund which covered the employees pension welfare vacation and holiday benefits during ne gotiations but required their payment when a new contract was executed by the SCMA In lieu of contributions the Respondent submitted weekly re ports of employee hours worked to fix its obliga tion to the trust fund ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge found violations of Sec 8(b)(3) and (e) of the Act We find it unnecessary to make 8 (b)(3) findings to resolve the issues presented and disavow these findings We also disavow findings of 8(e) violations as none were alleged or litigated The Union and the SCMA continued to bargain after contract expiration and reached a tentative agreement about May 15 1981 The Union indicat ed that the proposed contract would be submitted to its members for ratification and the parties agreed to execute the agreement by May 22 On May 19 the Union s parent organization International Longshoremen s Association AFL- CIO (ILA) informed the Union that the tentative agreement with the Respondent was unacceptable The ILA provided the Union with a copy of a master agreement with instructions to have it rati fled by the SCMA On presentation the Respond ent was adamantly opposed to signing any agree ment but the tentative one previously negotiated When the SCMA accepted and executed the master agreement under protest two of approxi mately seven members immediately withdrew from the Association and negotiated individual contracts with the Union Later when asked to sign the master agreement the Respondent renewed its protest and refused The Respondent then withdrew from the SCMA and closed its dockside operations On June 23 after the Respondents withdrawal from the SCMA the trust fund s trustees requested the Respondent to submit the accumulated contri butions By letter dated July 16 the Respondent re fused On September 28 the Local Union filed the instant charges The judge analyzed the Respondent s withdrawal from the bargaining association under the rationale of Retail Associates 120 NLRB 388 (1958) In that case the Board held that in the absence of un equivocal notice prior to the onset of bargaining on a successor contract an employer may withdraw from a bargaining association after contract negoti ations have begun only if there is mutual consent or if unusual circumstances exist The judge de termined that in the instant case where clearly no mutual consent existed the Union s insistence on the master agreement provided by the ILA frag mented and destroyed the integrity of Association wide bargaining and created unusual circumstances within the meaning of Retail Associates and its progeny Based on this determination the judge found that the Respondents withdrawal from the SCMA and later refusal to be bound by the Asso ciation s agreement with the Union did not violate Section 8(a)(5) and (1) of the Act The General Counsel excepts to the judge s find ing and contends that the Respondents attempted withdrawal from the SCMA was untimely and in effective Citing inter alia Connell Typesetting Co 212 NLRB 918 (1974) the General Counsel argues that the Board has limited the unusual circum 291 NLRB No 103 UNIVERSAL ENTERPRISES 671 stances exceptions inter alga to instances in which consensual employer withdrawals through separate bargaining have so depleted a unit it would be unfair and harmful to the collective bargaining process not to permit one or more of the remaining employers to withdraw The General Counsel as serts that this condition was not present here and thus unusual circumstances did not exist We dis agree Essentially for the reasons set forth by the judge we find that unusual circumstances within the meaning of Retail Associates existed and justified the Respondents withdrawal from multiemployer bargaining The concept of unusual circumstances cannot be precisely defined in a manner that is readily applicable to all situations Rather a deter mination of the presence or absence of unusual cir cumstances is dependent on an examination of the facts of each case viewed in the light of the parties bargaining conduct and the impact that this con duct may have on the continued viability of multi employer contract negotiations 2 In the case before us as stated above the Union and the SCMA ne gotiated a tentative agreement The ILA however found this tentative agreement unacceptable and provided the Union with a master agreement to present to the SCMA The SCMA accepted and executed the master agreement under protest About that time however SCMA members other than the Respondent withdrew from the SCMA and negotiated separate bargaining agreements with the Union 3 The Respondent was therefore placed in the position of having to accept a contract other than that originally negotiated between the Union and the SCMA or withdraw from the Association and seek a separate agreement Thus the particular and unique facts present here warrant a finding that unusual circumstances existed and worked to undermine the integrity of the multiemployer bar gaining unit Accordingly the Respondents with drawal from the multiemployer bargaining associa tion and its refusal to abide by the new agreement between the SCMA and the Union did not violate Section 8(a)(5) and (1) of the Act Additionally the judge found that the Respond ent violated Section 8(a)(5) and (1) of the Act when it unilaterally changed the terms and condi tions of the expired collective bargaining agree ment by withholding trust fund contributions Ap 2 Wm Chalson & Co 252 NLRB 25 (1980) 8 Although the record is unclear as to exactly what percentage of the employees these employers represented we are nonetheless persuaded that in an association with few members as present in this case with drawal of two or three of these members can and does substantially frag ment the bargaining unit See Typographic Service Co 238 NLRB 1565 (1978) (loss of 7 out of 17 members of association viewed as substantial) Cf Graham Paper Co 245 NLRB 1388 (1979) (loss of 2 out of 14 asso ciation members did not substantially fragment a bargaining association) plying the principles of Farmingdale Iron Works 249 NLRB 98 (1980) the judge found that each failure to make the contractually required monthly benefit fund payments constituted a separate and distinct violation of the Respondent s bargaining obligation The judge ordered the Respondent to make the required benefit fund payments due the fund after March 28 1981 a date 6 months prior to the filing of charges by the Union The Respondent excepts contending inter alga that this charge is time barred by Section 10(b) of the Act as it was filed more than 6 months after the Respondent began deferring its contributions 4 The Respondent asserts that its initial discontinu ance of the contributions and not the later refusal to submit them must form the basis of any alleged violation We find no ment in this exception We agree with the judge that the allegations re lated to the Respondents refusal to submit the con tributions are not time barred by Section 10(b) of the Act However, we do not rely on his separate and distinct violation analysis but find that the unfair labor practice occurred when the Respond ent refused to pay its accrued obligations to the trust fund after the date that the SCMA accepted and executed the new agreement We necessarily distinguish between the parties bargained for postponement and the Respondent s later unilateral refusal to submit the contributions The parties agreed to allow the Respondent to delay its contributions until a new contract was in existence Thus the Respondents initial deferral of contributions in October 1980 was in accord with parties agreement and did not constitute a unilater al change in the employees terms and conditions of employment On May 22 1981 however when the SCMA executed the new agreement the post poned contributions became due and owing Thus the Respondents refusal on and after July 16, 1981 to submit the postponed trust fund contributions was a unilateral change in its employees terms and conditions of employment and violated Section 8(a)(5) and (1) of the Act 5 As the 'Union filed 4 In pertinent part Sec 10(b) states [N]o complaint shall issue based upon any unfair labor practice oc curving more than six months prior to the filing of the charge with the Board 5 The Respondent contended that because it had not signed the master agreement it was not liable for the contributions We reject this argu ment When the parties negotiated the interim agreement they did not con template the total nonpayment of contributions only their postponement In the parties view this interim agreement would avoid a possible viola tion of Sec 301(c)(5)(B) of the Act by delaying the payment of contnbu tions until a new written agreement was in existence The Respondents acceptance of this arrangement is evidenced by its submission to the trustees of a weekly report of employees hours worked in lieu of contn buttons to fix its obligation to the fund Essentially the parties agreed Continued 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charges within 6 months of the Respondents action that gave rise to the unfair labor practice charge the charge was not time barred by Section 10(b) of the Act Finally the General Counsel excepts to the judges failure to recommend as a make whole remedy that the Respondent be ordered to submit all benefit fund contributions due and owing (i e not only those contributions due within 6 months of the Union s unfair labor practice charge) We have found that the Respondents refusal to make all postponed contributions constituted a violation of the Act It follows that the remedy for this vio lation is that the Respondent pay all postponed payments owed to the trust fund AMENDED REMEDY We have found that the Respondent violated Secton 8(a)(5) and (1) of the Act by unilaterally changing terms and conditions of employment when it refused to pay its postponed benefit trust fund contributions Accordingly we shall amend the judge s remedy to order the Respondent to make all postponed benefit fund contributions due on and after October 1 1980 with interest in ac cordance with the criteria set forth in Merryweather Optical Co 240 NLRB 1213 1216 (1979) 6 For reasons set forth by the judge the Respondent shall make the payments to the Regional Director to be held in an escrow account pending resolution of their disposition ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Universal Enterprises Inc Savannah Georgia its officers agents successors and as signs shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(a) and re letter the subsequent paragraphs (a) Refusing to bargain collectively with Inter national Longshoremen s Association AFL-CIO Local #1414 as the exclusive representative of all that the benefit fund payments would be postponed until a new contract was concluded by the Union and the SCMA Thus the one condition precedent to the Respondents obligation to pay its contributions-i e a written agreement between the Association and the Union- was satisfied and all moneys that the Respondent owed the trust fund became due when the SCMA accepted and executed the new agreement on May 22 1981 6 The record does not clearly establish the exact date in May that the Respondent ceased operations We therefore leave to compliance a deter mination of the final date of the Respondents liability to the trust fund The Respondent is ordered to pay its postponed benefit trust fund contn buttons accumulated up to and including that date employees in the following appropriate bargaining unit All employees employed by Universal Enter prises Inc engaged in the maintenance and repair of containers chassis refrigerated con tainers and chassis tires at the port of Savan nah Georgia excluding office clerical employ ees professional employees guards and super visors as defined in the National Labor Rela tions Act 2 Substitute the following for paragraph 2(a) (a) Make all postponed benefit fund contribu tions due on or after October 1 1980 as required by the 1977-1980 collective bargaining agreement in accordance with the provisions set forth above in the amended remedy section 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLPOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Longshoremen s Association AFL- CIO Local #1414 as the exclusive representative of all employees in the following appropriate bar gaining unit All employees employed by Universal Enter prises Inc engaged in the maintenance and repair of containers, chassis refrigerated con tainers and chassis tires at the port of Savan nah Georgia excluding office clerical employ ees professional employees guards and super visors as defined in the National Labor Rela tions Act WE WILL NOT unilaterally change terms and conditions of employment by withholding contrac tual benefit fund payments WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you in Section 7 of the Act WE WILL pay all moneys due on or after Octo ber 1 1989, as benefit fund contributions under the terms of the 1977-1980 collective bargaining agree ment UNIVERSAL ENTERPRISES INC Howard Trimble Esq for the General Counsel UNIVERSAL ENTERPRISES William J Rogers Esq (Pepper Hamilton and Scheetz) of Washington D C for the Respondent DECISION STATEMENT OF THE CASE LEONARD N COHEN Administrative Law Judge This matter was tried before me in Savannah Georgia on August 3 and 4.1982 On November 13 1981 1 the Acting Regional Director for Region 10 of the National Labor Relations Board issued a complaint and notice of hearing based on unfair labor practice charges filed on September 28 by International Longshoremen s Associa tion AFL-CIO Local #1414 (Local 1414) The com plaint alleges that Universal Enterprises Inc (Respond ent) in violation of Section 8(a)(5) and (1) untimely and without the consent of Local 1414 attempted to with draw from a multiemployer bargaining association re fused to execute a collective bargaining agreement reached between the multiemployer bargaining associa tion and Local 1414 and unilaterally ceased making fringe benefit contributions to the trust fund established by the multiemployer bargaining association and Local 1414 All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses and to argue orally and file briefs Briefs filed by both the General Counsel and Respondent have been carefully considered On the entire record and from my observations of the witnesses and their demeanor I make the following FINDINGS OF FACT I BUSINESS OF THE EMPLOYER Respondent is and has been at all times material a South Carolina corporation with an office and place of business located in Savannah Georgia where it is en gaged in the maintenance and repair of shipping contain ers Respondent during the past calendar year pur chased and received at its Savannah Georgia facility goods valued in excess of $50 000 directly from suppliers located outside the State of Georgia Accordingly Re spondent admits and I find and conclude that at all times material Respondent is an employer within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION STATUS Respondent admits and I find and conclude that Local 1414 is and has been at all Imes material a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Facts2 From some time prior to 1977 until late May 1981 Re spondent operated as a container repair contractor at Unless otherwise stated all dates occurred in 1981 Except as noted the material facts are not in dispute For the most part the above recitations are based on the documentary evidence of 673 two different locations at or near the port of Savannah Georgia The larger of these operations was located at the dock itself where approximately 10 employees per formed repair and maintenance functions on shipping containers pursuant to contracts with either shipping or container leasing companies The other facility (the Hop kins Street facility) was located a short distance from the dock area where an unspecified number of employees performed similar work During this period of time both sets of employees were represented by the Union in a single overall unit and were covered by a series of col lective bargaining agreements the last of which expired in 1977 Sometime around the middle of 1977 Respondent and seven other entities engaged in the business of container repair work at the Savannah port formed the Savannah Container Maintenance Association (SCMA) and au thonzed it to act on their behalf on matters of collective bargaining 3 Thereafter the SCMA and the Union en tered into negotiations leading to the execution of a col lective bargaining agreement covering the employees of those employers effective October 1 1977 to September 30 19804 This agreement specifically provided for the creation and maintenance of a joint trust fund for the employees pension welfare vacation and holiday benefits 5 The funds that were eventually created in October 1978 were entitled Container Maintenance Welfare/Pension Fund (Container Fund) The parties commenced bargaining prior to the con tract s expiration however they were unable to reach any agreement at that time On September 30 1980 the parties entered into a memorandum of understanding that extended the expiring agreement to November 1 1980 on the understanding that the finalized agreement would provide inter alia for a substantial raise in the hourly rate amounting to $1 20 an hour and an increase in the fered by both sides and the uncontroverted testimony of various wit nesses explaining and elaborating on the documents On those rare occa sions when material conflicts do occur the respective versions will be noted and resolved Six of the other members of the SCMA were Great Southern Trailer Corp Oceana Container Services Inc Container Maintenance Corpora tion Inc Southern Coastal Trailer Repair Inc and Dostal Enterprises Inc Like Universal all of these employers were independent contractors or vendors who worked on containers owned and controlled by either major shipping companies or leasing companies In addition to these seven employers United States Lines Inc (U S Lines ) one of the major shipping companies was also a member of the SCMA Unlike the other major shipping companies U S Lines for the most part repaired and maintained its own containers rather than contracting out such work to the vendors 4 The contract was actually entered into on June 14 1978 retroactive to October 1 1977 5 It is not clear how Respondent and the other employers who had pre 1977 bargaining relationships with Local 1414 handled their employ ees fringe benefits prior to the institution of this trust fund The article in the collective bargaining agreement providing for creating the joint trust fund while specifying a monetary amount for the hourly contribution further states that these benefits would be equal to or greater than the benefits provided for in the pension and welfare fund established in an agreement between the Savannah Maritime Association and Local 1414 in November 1977 This statement makes reference to a national joint trust fund to which the International the major shipping companies and others are parties Those funds are generally referred to by the shorthand designations Deep Sea Trust Fund (Deep Sea Fund) 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hourly contribution rate to be paid for the employees fringe benefits By implication this memorandum of un derstanding eliminated certain apprentice job classifica tions that existed under the old agreement When no new collective bargaining agreement was reached by Novem ber 1 1982 the parties apparently orally extended the terms of the memorandum indefinitely Although no evidence was presented that Local 1414 at anytime during the 1980-1981 negotiations ever pro posed that the Container Fund be absorbed into the Deep Sea Fund this very subject appears to have some how surfaced by October 1980 In this regard Respond ent s president Fred Otterbem acting in his capacity as chairman of the SCMA negotiating committee in a letter dated October 24 1980 informed Local 1414 that the SCMA believed that the Container Fund not only guar anteed equality with Deep Sea Fund but provided through mobility an opportunity for their employees to receive even greater benefits than offered by the larger fund 6 Of the eight members of the the SCMA three includ ing Respondent ceased making contribution payments to the trust fund as of October 1 1980 the date the collec tive bargaining agreement expired At a meeting of the Container Fund Board of Trustees on January 21 1981 the fund at the advice of its counsel Robert Schivera agreed to deposit into separate escrow accounts all moneys received from those employers continuing to make interim payments to the fund It was further agreed at this meeting that no action would be taken against any of the employers at that time for failing to make contra buttons in the absence of a new written agreement 7 At all times Respondent continued to furnish Local 1414 and the Container Fund with weekly reports of the hours its employees worked In January 1981 Local 1414 through its president John Mackey retained the services of Local Attorney Fletcher Farrington From that point until May 22 Far rington became Local 1414 s chief negotiator In addition to the respective sides and their committees meeting with each other for negotiations8 during the first 4 1/2 months of 1981 Farrington in his capacity as chief ne gotiator met separately on several occasions with the SCMA s counsel and chief negotiator Tyrus Butler an other Savannah attorney 6 Although the record is extremely hazy on this point it appears that early in these negotiations the International became somewhat involved and at least proposed if not attempted to pressure the parties to merge their fund with the Deep Sea Fund Although no specifics were offered it further appears that simultaneous negotiations were taking place in sev eral other southeast Atlantic ports between similar vendors or associates and locals of the International In fact the memorandum of understand ing referred to above was executed by all parties in agreements in the ports of Charleston South Carolina Savannah Georgia Wilmington North Carolina and Jacksonville Florida I The board of trustees further agreed that should Local 1414 and the SCMA enter into an agreement requiring that fringe benefit contributions be paid to a trust other than the Container Fund the Container Fund would at that time distribute those funds it was holding in escrow to the newly designated fund a Local 1414 s negotiating committee included Mackey and Chester Dunham Local 1414 s vice president while the SCMA s negotiating committee included Otterbein and Raymond DeMott president of both Greater Trailer Corp and the SCMA itself By early May the SCMA and Local 1414 had reached a tentative agreement on all substantive issues 9 On or about May 15 Butler called Farrington and informed him that he would be delivering to him that day a re drafted contract proposal in which the SCMA acceded to seven of eight language changes Local 1414 had pre viously demanded 10 Farrington indicated that the one language demand with which the SCMA had not agreed was not significant and would be dropped by Local 1414 Farrington further indicated that the proposed con tract would be presented to the membership for ratifica tion and both Farrington and Butler agreed that this agreement should be executed no later than Friday May 22 11 On May 19 before Local 1414 could act on the above contract proposal a meeting called by the International was held in Charleston South Carolina This meeting dramatically and substantially affected the Savannah ne gotiations Present at the Charleston meeting were inter alia the International s president its chief counsel and the president and other officials of various locals operat ing in the southeastern Atlantic port cities Included in the latter group were Mackey Dunham and Farrington In addition to the union representatives also present were representatives of the major shipping lines who were apparently all members of the multiemployer bar gaining association known as Carriers Containers Coun cil (CCC) Further representatives of various vendors operating in this geographic area including Otterbein were present This latter group s role appears to have been limited to one of observer status only Three matters of significance occurred at this meeting First Mackey was informed by some unidentified high official of the International that Local 1414 s draft agree ment was not satisfactory and that the International was going to have one uniform agreement that would be standard throughout the industry At this time Mackey was informed that Local 1414 s last agreement which provided for various apprentice levels was much too fa vorable to the employers Notwithstanding this corn ment the new proposed contract between Local 1414 and the SCMA eliminated these additional classifications Second the International four local unions including 1414 and representatives of the Carriers Container Council (CCC) which included U S Lines executed the following one page handwritten agreement The Carrier Container Council hereby executes the Charleston Container Maintenance Repair Contract effective October 1 1980 on behalf of all its mem bers and agrees that an identical contract binds its 9 This agreement provided for the continued existence of the Container Fund and the retroactive payment to that Fund for all contributions cov enng the period October 1 1980 onward 10 The agreement also recited the fact that Hefty Trailer Repair Inc another vendor doing business in Savannah had recently joined the SCMA and would be listed in the contract as an association member and employer 11 The above account is based on Butler s credible testimony As noted infra I found Butler to be an entirely trustworthy and impressive witness I reject Dunham s contrary testimony that the SCMA s refusal to make the final language change Local 1414 suggested prevented the parties from reaching a tentative agreement UNIVERSAL ENTERPRISES 675 members as to container maintenance and repair in each South Atlantic port It is further agreed that the Carriers shall only use vendors who have sub scribed to such agreements Fringe benefits cover age shall be under the the South Atlantic Funds in cluding GAI Vacation Holiday Container Royalty & local deep sea Welfare & Pension Funds It is fur ther agreed that each Carrier shall execute a copy of this document Third the International provided Mackey with a copy of the master or what is referred to by nearly everyone involved in the industry as the Charleston agreement and instructed him to submit this agreement to the SCMA for ratification 12 Whereas the proposed and ten tatively agreed to contract between Local 1414 and the SCMA provided for continued maintenance of separate trust funds the Charleston agreement provided that all fringe benefit contributions be made to what has been re ferred to as the Deep Sea Fund 18 On May 19 US Lines executed the Charleston agreement and by letter dated the same date submitted a letter of resigna tion to the SCMA On or about May 20 Baker Daniel president of Hefty Trailer Repair also executed the Charleston agree ment and like U S Lines submitted a letter of resigna tion to the SCMA On or about May 20 or 21 the SCMA convened a special meeting to discuss these recent developments At this meeting Otterbein objected to the signing of any agreement other than that which had been agreed to by Butler and Farrington Additionally both Otterbein and DeMott told the others that they had received phone calls from their customers indicating that they could no longer keep their business unless they also signed the Charleston agreement 14 During the course of this meeting Butler was authorized by the members of the SCMA to file unfair labor practice charges against Local 1414 Over Otterbein s objections a majority of those members present voted to accept and execute under pro test the Charleston agreement if so demanded by Local 1414 Either during this meeting or shortly there after Otterbein on behalf of Respondent submitted his resigantion from the SCMA The SCMA did not act on any of the above resignations at this time On May 22 representatives of the SCMA and Local 1414 met at the Savannah Chamber of Commerce board 12 It does not appear that the Charleston agreement was ever in effect as a valid collective bargaining agreement at any point prior to the 1980-1981 negotiations Nonetheless it appears that a draft of this agree ment had been widely circulated throughout the industry for many years with only minor changes or updates in the proposed wage scales 13 Disappointingly no one at hearing or on brief made any other con parson between the two agreements It appears that at the very least there are substantial differences in language in many of the articles be tween the two documents 14 Otterbein testified that on May 23 he received a call from Nick Fenola, an official with Contract Marine Carriers hereinafter CMC a customer of Respondent who told him that unless Respondent signed the contract, it could no longer do work for CMC Otterbein did not testify regarding any other contracts he may have made with customers regard ing his signing of the Charleston agreement DeMott did not testify on this point room 15 At the start of the meeting Farrington an nounced that he was present strictly as an observer and would not on this occasion speak for Local 1414 16 At this point Mackey presented the Charleston agreement for signature and indicated that there would not be any further negotiations that SCMA was either going to sign this agreement or there would be no agreement When Butler asked Mackey what happened to the final draft agreement that had been sent to Farrington for submis sion to the membership Mackey replied that Local 1414 was no longer interested in that agreement A discussion then entailed regarding who should sign on behalf of the employers Butler pointed out that both Respondent and U S Lines had submitted resignations from SCMA and disclaimed any further representation He therefore sug Bested that not only should DeMott as president of SCMA sign but that all representatives present should also sign individual contracts At the time of the signing Butler prepared and gave to Mackey a letter indicating that the execution of the agreement was being done under protest and without waiver of any legal remedy available as a result of any illegal acts by Local 1414 including but not limited to secondary boycott and anti trust violations Two or three days later Otterbein and Mackey had a private meeting in the presence of Butler At this meet ing Mackey presented the Charleston agreement for signature Otterbein in turn asked what had happened to the agreement that had been negotiated with Farrington Mackey did not respond Otterbein then indicated that there were a number of items in the Charleston agree ment that he wanted to talk about Mackey responded that there would be no discussion When Otterbein per sisted in asking for certain explanations Mackey an swered Why don t you ask the carriers they re the ones that drew it up? Otterbein refused to sign the agreement at this time Sometime between May 23 and 28 Respondent ceased both its dock operations and its Hopkins Street oper ation Concurrent with this action Otterbein created as a wholly owned subsidiary of Respondent an entity called Marine Transport Services (MTS) From its inception MTS appears and I emphasize appears to have operated in a nearly identical fashion to that portion of Respond ent s dock operations 17 On May 28 MTS applied for 15 This meeting had been previously arranged by Butler and Farring ton on May 15 16 The above account is based on the testimony of Butler In descnb ing this incident as well as others during the spring of 1981 he displayed a keen memory with an ability to recall the specific conversations in some detail The union witnesses Mackey and Dunham on the other hand displayed an inability to recall with any specifics the material events surrounding the Charleston meeting of May 19 and subsequent meetings regarding the execution of that agreement Butler s version of these events and the bargaining conversations with Farrington which are to a great extent corroborated by the documentary evidence is clearly more inherently probable than the versions offered by Mackey and Dunham Although he was present in the courtroom on occasion and ap- parently still represents Local 1414 Farrington a key participant to these events did not testify 17 Respondent did not as of this time resume operations at the Hopkins Street facility At hearing counsel for the General Counsel moved to amend the complaint by adding MTS as an alter ego This motion was granted over the vigorous objection of Respondent Little testimony was offered regarding MTS s operations 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD membership in the SCMA and at that time agreed to become a party to the collective bargaining agreement executed by Local 1414 and the SCMA on May 22 At all times since May 28 MTS has complied with all terms and conditions of that agreement including payment on behalf of its employees of fringe benefits to the Deep Sea Fund On several occasions during June and July the attor ney for the Container Fund wrote Respondent demand ing that the Respondent pay delinquent fringe benefit contributions covering the period of October 1 1980 through the end of May 1981 On each such occasion Respondent refused on the grounds that such payments would be prohibited under Section 302(c)(5)(B) of the Labor Management Relations Act of 1947 (LMRA) in the absence of a written agreement between the employ er and the union specifying the basis on which the pay ments were to be paid On June 11 the board of trustees of the Container Fund brought suit under Section 301 of the LMRA seek ing a judgment for the delinquent payments referred to above plus penalty and interest On some unidentified date in August Respondent filed an answer in which it denied the complaint allegations This matter is still pending before Judge Edenfield of the United States Dis tnct Court for the Southern District of Georgia-Savan nah Division On November 1 1981 the Container Fund merged with the Deep Sea Fund and all moneys collected by the Container Fund for the period between October 1 1980 and the end of May 1981 were turned over to the Deep Sea Fund for the employees benefits Although the record is not entirely clear it appears that no employee employed at any time by either Re spondent or MTS has suffered as of this time as a result of Respondents failure to pay contributions for this 8 month period In this regard it appears that the Deep Sea Fund borrowed money to pay Respondents em ployees earned vacation and holiday benefits [ 8 On March 26 1982 Respondent filed an amendment to its answer in the Federal Court proceeding in which it alleges that the Container Fund board of trustees the plantiff violated its fiduciary obligations responsibilities and duties including those responsibilities and duties im posed by 29 US C § 1158 the Employees Retirement Income Security Act and the statutory and common law of the State of Georgia by agreeing to merge its fund with the Deep Sea Fund This counterclaim seeks an ac counting to determine the amount of damages resulting to the Container Fund as a result of their merger As noted above this litigation is still pending before Judge Edenfield Finally according to counsel for the General Coun sel s uncontroverted opening statement in the recent months immediately preceding the instant hearing Re spondent resumed its Hopkins Street operations with nonunion labor Subsequently on May 28 1982 Local 1414 was certified by the Board as those employees ex 18 However it does not appear that any payments have been made for these employees retirement benefits How this may affect individual em ployees was not discussed clusive bargaining representative Unfortunately no one at hearing or on brief expanded on this rather interesting development B Conclusions 1 Respondents withdrawal from the SCMA and its subsequent refusal to execute and be bound by the terms of the collective bargaining agreement executed between Local 1414 and the SCMA In 1958 the Board in Retail Associates 120 NLRB 388 (1958) announced new guidelines governing withdrawal from multiemployer bargaining associations Although these guidelines permit any party to withdraw prior to commencement of negotiations once negotiations for new contracts actually begin withdrawal is permitted only if there is mutual consent or the existence of un usual circumstances Since Local 1414 never consented to Respondents at tempted withdrawal our focus centers on the question of the existence of unusal circumstances In the years following Retail Associates the Board with court approval has limited the application of the unusual circumstances doctrine to those circumstances where an employer is subject to extreme financial pres cures threatening its very existence 19 when the bargain ing unit has become substantially fragmented 20 or when the union by engaging in whipsawing 21 or any other acts of misconduct in violation of the Act destroyed the integrity of associationwide bargaining 22 For the rea sons set forth below I am persuaded that unusual cir cumstances did indeed exist in the instant case that juste feed Respondents withdrawal from the SCMA prior to the execution of the new collective bargaining agree ment The facts are summarized as follows On May 15 Local 1414 and the SCMA reached a tentative agree ment on a new collective bargaining agreement which inter alia continued the existence of the independent Container Fund All that was left was submission of this contract by Local 1414 to its membership for ratification This final act was not forthcoming for on May 19 the International Local 1414 s parent organization informed Local 1414 in a meeting in Charleston South Carolina that the tentative agreement was simply not acceptable Local 1414 s officials were further advised that the only acceptable contract for any port in the southeast Atlantic area would be the Charleston agreement The officers of Local 1414 were then instructed to go back to the SCMA and get that contract signed Further at this same meeting the International was successful in getting the CCC a multiemployer associa tion composed of the major shipping companies to not 19 Hi Way Billboards 206 NLRB 22 23 (1973) enf denied 501 F 2d 181 (5th Cir 1974) 20 Connell Typesetting Co 212 NLRB 918 (1974) NLRB v Southwest ern Colorado Contractors 447 F 2d 968 ( 10th Cir 1971) but see Tobey Fine Papers 245 NLRB 1393 (1979) enfd 659 F 2d 841 (8th Cir 1981) 21 Retail Associates supra 22 Iron Workers Local 103 (Associated General Contractors) 195 NLRB 980 (1972) enfd 81 LRRM 2705 (7th Cir 1972) Typographic Service Co 238 NLRB 1565 (1978) UNIVERSAL ENTERPRISES only sign the Charleston agreement but to execute a side agreement in which they agreed to use only vendors signing similar agreements That the thrust of this side agreement was a secondary union signatory clause in violation of Section 8(e) cannot be seriously chal lenged 23 This threat to the vendors of losing business was intended by the International and Local 1414 to act as a powerful inducement to get the SCMA and its mem bers to abandon their strongly held positions on retaining a Savannah port contract with an independent trust fund The International s and Local 1414 s efforts showed immediate results when U S Lines and Hefty two mem bers of the SCMA at the Charleston meeting executed on their own behalf the Charleston agreement The supposed requirement that Local 1414 submit these agreements to its membership for ratification was on this occasion simply ignored These two agreements which were entered into before the SCMA had an opportunity to pass on their members attempted resignations were not interim agreements that would expire with the execu tion of a unitwide agreement but were instead final sepa rate 3 year agreements with a life of their own 24 Two days later representatives of Local 1414 and the SCMA met At this meeting Local 1414 s president Mackey announced what everyone already knew i e that Local 1414 was finished negotiating with the SCMA and that the SCMA and its members would either sign the Charleston agreement or have no agreement No discussion of the terms of this contract proposal which as noted above provided for fringe benefit contributions to be made to Deep Sea Fund rather than to the Con tamer Fund was permitted 25 Faced with the prospect of both losing customers by virtue of the Charleston side agreement of May 19 and the withholding of labor by Local 1414 the SCMA and its members with the ex ceptions of Respondent U S Lines and Hefty executed the Charleston agreement Several days later Mackey and Otterbein the chief ex ecutives of Local 1414 and Respondent respectively met Again Mackey refused to discuss the terms of the proposed contract As Mackey stated at that meeting the Union s final position was quite simple-sign the Charles ton agreement or nothing i 23 Teamsters Local 94 (California Dump Truck) 1227 NLRB 269 272 (1976) s On brief the General Counsel chooses to ignore the side agreement issue and instead argues that there is simply no 8(e ) question present here since there are no unlawful provisions in the Charleston agreement itself This argument misses the point that the side agreement was entered into as an attempt to coerce the various vendors and their respective associa tions to sign the Charleston agreement 24 In Tobey Fine Papers supra the Board at 1395 reasoned that it did not follow ipso facto that execution of individual separate final contracts with former association members either proved an intention to destroy or necessarily caused the fragmentation of a multiemployer unit The Board further observed that the facts of each case must be assessed in order to ascertain the impact of the parties conduct on the continued viability of multiemployer bargaining 21 The Board with court approval has held that contract provisions relating to the administration of fringe benefit trust funds are clearly en compassed by the term wages as used in Sec 10(d) and therefore are mandatory subjects of bargaining Sheet Metal Workers Local 493 (Central Florida Sheet Metal Contractors) 234 NLRB 1238 1243 (1978) enfd 664 F 2d 489 (5th Cir 1981) 677 Plainly Local 1414 s conduct from May 19 onward violated its duty to bargain in good faith This 8(b)(3) conduct chronicled above fragmented and destroyed the integrity of associationwide bargaining To prohibit in these particular circumstances Respondent from with drawing from the multiemployer bargaining association would be to allow Local 1414 to profit from its own un lawful conduct National labor policy precludes a wrong doer from so enjoying the fruits of its own misdeeds The unusual circumstances test of Retail Associates has been met here Accordingly I find that Respondent did not violate Section 8(a)(5) as alleged when it withdrew from the SCMA on May 20 and by its subsequent refus al to execute and be bound by the agreement executed by Local 1414 and the SCMA on May 22 J 2 Respondents failure to make fringe benefit payments The General Counsel contends that Respondents fail ure to make monthly fringe benefit payments to the Con tamer Fund for the period of October 1 1980 through May 30 1981 constitutes a unilateral change in the es tablished practice in violation of Section 8(a)(5) As a remedy the General Counsel seeks an order requiring the payment of the entire amount in excess of $62 000 plus interest owed for this 8 month penod26 to the Con tamer Fund 27 Although Respondent concedes that it has a legal obli gation to come to some type of an agreement with Local 1414 concerning the payment of its employees fringe benefit contributions for that 8 month period it nonethe less denies that its failure up to this time to make any such payments has violated Section 8(a)(5) In this regard Respondent offers two main defenses First Re spondent argues as it has for over 2 years that Section 302(c)(5)(B) of the LMRA prohibited the payment of contributions to the trust in the absence of a written col lective bargaining agreement between it or its representa tives and Local 1414 a condition still not met Second Respondent argues that this complaint allegation is total ly or at least partially time barred by Section 10(b) Regarding its initial defense the Board with court ap proval has consistently rejected similar defenses as raised here that Section 302(c)(5)(B) precludes an em ployer from making contributions to a trust fund when the collective bargaining agreement has expired 28 Ac cordingly I reject this contention I now turn to the 10(b) issues As set forth above Re spondent while continuing at all times to furnish the Container Fund with monthly reports noting the hours 1 i 26 The General Counsel concedes that no money is owed for any time after May 30 1981 since MTS the alleged alter ego of Respondent Uni versal signed the new SCMA contract and has at all times since that date fully abided by all its terms and conditions including fringe benefit or payments 27 It appears that since the fall of 1981 the Container Fund has existed solely for the purpose of collecting delinquent payments owed to it by the Respondent 28 Wayne s Olive Knoll Farms 223 NLRB 260 264 (1976) SAC Con struction Co 235 NLRB 1211 1219 (1978) Peerless Roofing Co 247 NLRB 500 (1980) enfd 641 F 2d 734 (9th Cir 1981) Turnbull Enter prises 259 NLRB 934 940 (1982) 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of work by its employees nonetheless ceased making each of the required monthly contributions during the period of October 1 1980 through the end of May 1981 Local 1414 was from the start aware of the decision by Respondent to cease making any such payments until a new collective bargaining agreement was executed In late May Respondent notified Local 1414 that it did not consider itself bound to the collective bargaining agree ment executed by Local 1414 and the SCMA and that it therefore did not intend to make the contribution payments for those earlier months Despite being armed with this knowledge Local 1414 inexplicably waited until September 28 1981 to file the instant charge In Farmingdale Iron Works 249 NLRB 98 (1980) the Board faced a similar situation There the employer al though not repudiating the contract until December 1977 ceased making fringe benefit fund payments in June of the previous year In modifying the administrative law judge s conclusion and order the Board held we con clude that each failure to make the contractual required monthly benefit fund payments constituted a separate and distinct violation of respondents bargaining obliga tion and therefore that any benefit fund payment due after July 16 1977 is subject to the Boards remedial powers Applying these principles to the instant case I find that Respondent violated its bargaining obligation by its failure to make the required benefit fund payments to the Container Fund after March 28 1981 29 CONCLUSIONS OF LAW 1 Universal Enterprises Inc is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 2 International Longshoremen s Association AFL- CIO Local 1414 is and at all times material has been a labor organization within the meaning of Section 2(5) of the Act 3 From on or about October 1 1977 to on or about May 20 1981 Respondent by virtue of its membership in the multiemployer bargaining association SCMA has been bound to a collective bargaining agreement with Local 1414 covering its production and maintenance em ployees employeed at its Savannah dock operations and its Hopkins Street facility 4 Respondent did not violate Section 8(a)(5) of the Act by withdrawing from the SCMA during negotiations with Local 1414 5 Respondent did not violate Section 8(a)(5) of the Act by refusing and failing to honor maintain and give effect to the collective bargaining agreement executed on May 22 1981 by SCMA and Local 1414 6 By unilaterally withholding contractual fund benefit payments due under an expired collective bargaining agreement Respondent refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act 29 Although the record indicates that contribution payments were due on a monthly basis there is no indication at what point during each month such payments were actually due I leave for the compliance stage the resolution of this issue 7 The aforesaid unfair labor practices affect commerce and tend to lead to and have led to labor disputes bur dening and obstructing commerce and the free flow of commerce THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices I shall recom mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent has unlawfully with held certain contractual benefit fund payments under the expired collective bargaining agreement between the SCMA and Local 1414 I find it appropriate therefore to recommend that the Order provide for Respondent to make all benefit fund contributions due on or after March 28 1981 on behalf of the employees who were in the bargaining unit for the appropriate period of time which ends on May 22 1981 the date on which Local 1414 and the SCMA now minus Respondent as a member executed the new collective bargaining agree ment Since the Container Fund which is not a party to these procedings has subsequently merged its funds with the Deep Sea Fund I find it appropriate that the pay ments referred to above30 be made to the Regional Di rector to be held in an escrow account pending resolu tion by the US district court on the question of the lawful disposition of the Container Fund s money On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3i ORDER The Universal Enterprises Inc Savannah Georgia its officers agents successors and assigns shall 1 Cease and desist from (a) Unilaterally changing terms and conditions of em ployment by withholding contractual benefit fund pay ments (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make all benefit fund payments due on or after March 28 1981 as required in the 1977-1980 collective bargaining agreement to the Regional Director in ac cordance with the provisions set forth above in the sec tion entitled The Remedy 30 The Board does not provide at the adjudicatory stage of a proceed ing for the addition of interest at a fixed rate on unlawfully withheld fund payments Merryweather Optical Co 240 NLRB 1213 fn 7 (1979) 31 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings 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 put poses UNIVERSAL ENTERPRISES 679 (b) Post at Savannah Georgia facilities copies of the attached notice marked Appendix 32 Copies of the notice on forms provided by the Regional Director for Region 10 after being signed by the Respondents au 32 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 a] 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 thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable 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 Re spondent has taken to comply t