Air Convey Industries, Ltd

AIR CONVEY INDUSTRIES Air Convey Industries, Ltd and Sheet Metal Work ers' International Association Local Union No 83 Case 3-CA-14289 December 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On May 5, 1988, the General Counsel of the Na tional Labor Relations Board issued a complaint and on June 10, 1988, an amended complaint, alleg ing that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to make certain fringe benefit fund pay ments required by the parties' unexpired collective bargaining agreement The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and submitting affirma- tive defenses On August 5, 1988, the General Counsel filed a Motion for Summary Judgment The General Counsel further moved that the Board deem the al legations set forth in the complaint, as amended, be admitted to be true 1 The General Counsel also moved to have the Respondent's affirmative de fenses stricken On August 8, 1988, 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 no response The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for Summary Judgment The General Counsel alleges that the Respond- ent has not made fringe benefit fund payments into "Local Funds" as described in the bargaining agreement since September 29, 1987, and that the Respondent also has not made such payments into "National Funds" as described in the contract since January 1, 1988 In its answer the Respondent admits its failure to comply with the above-men- tioned provisions of the collective bargaining agreement, but denies the General Counsel's allega- tions that these are mandatory subjects of bargain ing The Respondent also raises three affirmative defenses the cessation of business, the lack of funds, and the filing of all necessary reports The i The General Counsels motion also clarified the amended complaint explaining that in par IX of the amended complaint in which it alleges that certain funds are mandatory subjects of bargaining that the com plaint s reference to mandatory subjects should not be read to include COLA Michael Constanzo Scholarship Fund or the Henry Jackson Diabetes Fund 25 Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence For the reasons set forth below, we grant the General Counsel's Motion for Summary Judg ment On the entire record, the Board makes the fol lowing FINDINGS OF FACT I JURISDICTION The Respondent, a New York corporation, en- gages in the business of a sheet metal contractor at its facility in Schenectady, New York, where it an nually derives gross revenues in excess of $50,000 and during the same period of time purchases and receives goods and materials valued in excess of $50,000, which are shipped to its jobsites located within the State of New York directly from points located outside the State of New York We find that the Respondent 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 organs zation within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The Unit At all times material, the Union has been the ex- clusive representative of the employees in the fol lowing appropriate unit `All journeymen, fore men, and apprentices " Such recognition has been embodied in a series of collective-bargaining agreements, the most recent of which runs from July 1, 1986, to June 30, 1988 The Union continues to be the exclusive rep resentative under Section 9(a) of the Act B Refusal to Comply with the Terms of the Contract The complaint, as amended, alleges and the Re spondent admits that the Respondent has failed since January 1, 1988, to make required contribu tions into the following "Local Funds" Local 83 Insurance Fund, Local 83 Journeyman & Appren- tice Training Trust Fund, and Local Industry Fund, and that the Respondent has similarly failed since September 29, 1987, to make required contri- butions into the following "National Funds" Na tional Industry Fund, National Training Fund, Na tional Pension Fund, National Stabilization Agree ment of Sheet Metal Industry, and Vacation Plan It is well established that Section 8(a)(5) and (1) of the Act prohibits an employer who is a party to an existing collective-bargaining agreement from 292 NLRB No 4 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD modifying the terms and conditions of employment established by that agreement without obtaining the consent of the union Here, the Respondent has ad- mitted that it unilaterally failed and refused to make the contractually required fringe benefit fund contributions Accordingly, the Respondent has ad mitted all the facts material to a resolution of the unfair labor practice issues raised by the amended complaint The Respondent's claim that it is finan- cially unable to make the required payments, and its related claim that it has ceased operations does not constitute an adequate defense to an allegation that an employer has violated Section 8(a)(5) and (1) of the Act by failing to abide by provisions of a collective bargaining agreement See General Split Corp, 284 NLRB 418 (1987), Raymond Prats Sheet Metal Co, 285 NLRB 194 (1987) We also find without merit the Respondent's proffered affirma tive defense that it has filed all necessary reports Although the original unfair labor practice charge alleged that the Respondent had failed to file those reports, the complaint and the amended complaint do not In any event, there is nothing in the record that would make the filing of such reports relevant to the Respondent's admitted failure to make the actual fringe benefit fund contributions 2 Finally, we reject the Respondent's general claim that its failure to make all the fringe benefit fund contribu tions noted above was not unlawful because these funds are not mandatory subjects of bargaining See, e g, Lo Pri Plumbing & Heating, 283 NLRB 1076 (1987) 3 Accordingly, we find that the Re- spondent has violated Section 8(a)(5) and (1) by failing to make the contractually required payments to fringe benefit funds 4 CONCLUSIONS OF LAW By ceasing to make fringe benefit trust fund con tributions to the Local 83 Insurance Fund, Local 83 Journeyman and Apprentice Training Trust 2 In view of our finding that the Respondents proffered affirmative de fenses are without merit we shall deny the General Counsels motion to strike these affirmative defenses 3 We find merit in that aspect of the Respondents answer which denies that the national and local industry funds are mandatory subjects of bargaining These funds as they are described in the parties collective bargaining agreement are industry funds and are therefore not mandatory subjects of bargaining See Sheet Metal Workers Lo al 38 (Elmsford Sheet Metal Works) 231 NLRB 699 (1977) Accordingly it is not an unfair labor practice to refuse to bargain over them See Finger Lakes Plumbing Co 254 NLRB 1399 (1981) Raymond Prats Sheet Metal Co supra " Member Johansen agrees that the Respondent violated Sec 8(a)(5) and (1) of the Act but notes his dissent in Hiysota Fuel Co 280 NLRB 763 (1986) in which he stated that in certain circumstances he would not find that an employers delinquency regarding its contractual obliga tions violated Sec 8(a)(5) of the Act Also in Member Johansen s view an employer must present evidence to establish that despite its delinquen cy it has not repudiated the obligation to avoid being found in violation of Sec 8(a)(5) Here Member Johansen finds that the Respondent failed to establish that it has not repudiated the obligation Fund, National Training Fund, National Pension Fund, National Stabilization Agreement of Sheet Metal Industry, and Vacation Plan, the Respondent has engaged in unfair labor practices affecting com merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has 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 the Respondent to transmit the required contributions to the Local 83 Insurance Fund, Local 83 Journeyman & Apprentice Train ing Trust Fund, National Training Fund, National Pension Fund, National Stabilization Agreement of Sheet Metal Industry, and Vacation Plan, with any interest or other sums applicable to the payments to be computed in accordance with the Board's de- cision in Merryweather Optical Co, 240 NLRB 1213 (1979) We shall also order the Respondent to make the unit employees whole for any losses they may have suffered as a result of its failure to make the contractually required fringe benefit contribu- tions, Kraft Plumbing, 252 NLRB 891 (1980), enfd mem 661 F 2d 940 (9th Cir 1981), to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) Further as it appears that the Respondent may have discontinued its manufacturing operations, the Respondent, in addition to posting the notice to employees at its facility, will be required to mail to the Union and to the home address of each em ployee who was on, or has been on, the Respond ent's payroll for any amount of time from Septem ber 29, 1987, until the date the notices are mailed, a signed and dated copy of the notice This mailing is necessary to advise employees of the Respond- ent's unlawful conduct and its resulting obligations ORDER The National Labor Relations Board orders that the Respondent, Air Convey Industries, Ltd, Sche- nectady, New York, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Refusing to bargain with Sheet Metal Work- ers' International Association Local Union No 83, by failing to make contributions into contractually required fringe benefit trust funds AIR CONVEY INDUSTRIES (b) In any other 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 neces- sary to effectuate the policies of the Act (a) Pay all delinquent fringe benefit trust fund contributions and reimburse employees for any losses directly attributable to the withholding of such contributions under the parties' trust fund agreements in the manner set forth in the remedy section of this decision (b) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, all records concerning the above mentioned con- tractual provisions and the funds they describe, and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at its facility in Schenectady, New York, copies of the attached notice marked "Appendix "5 Copies of the notice, on forms provided by the Re gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material (d) Mail a duly signed copy of the attached notice marked "Appendix" to the Union for post 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 27 ing, if willing, and to the home address of each em ployee who was on or has been on the Respond- ent's payroll from September 29, 1987, until the date the notices are mailed (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to bargain with Sheet Metal Workers' International Association Local Union No 83 by failing to make the contractually required fringe benefit trust fund 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 transmit to the various funds those contributions that we have unlawfully withheld pursuant to the collective bargaining agreement be tween ourselves and the Union WE WILL make whole our employees in the unit for any losses directly attributable to our withhold ing of the contributions, with interest The appro- priate unit is All journeymen, foremen, and apprentices AIR CONVEY INDUSTRIES, LTD