Acme Wire Works, Inc.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1567 (N.L.R.B. 1980)

ACME WIRE WORKS, ING 1567 Acme Wire Works, Inc. and Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO and Local 810, Steel, Metal, Alloys and Hardware Fabricators and Warehousemen, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party in Interest. Case 29- CA-4866 August 27, 1980 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, PENELIO, AND TRUESDAIE On June 13, 1980, Administrative Law Judge Raymond P. Green issued the attached Supplemen- tal Decision in this proceeding.' Thereafter, Re- spondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Acme Wire Works, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall pay the partial amounts set forth therein, plus additional amounts to be determined, with interest thereon accrued at the rate of 6 percent per annum, 2 until payment of all sums due is made as provided for in F. W. Woolworth Company, 90 NLRB 289 (1950), less tax withholdings required by Federal and state law. I The Board's original decision is reported at 229 NLRB 333 (1977) Thereafter, the United States Court of Appeals for the Second Circuit entered its judgment enforcing the Board's Order See 582 F2d 153 (1978) 2 Inasmuch as the court of appeals enforced the Board's Order provid- ing for interest to he paid at the rate of 6 percent. that rate shall be used in computing the interest on amounts due See Florida Steel Corporation. 234 NLRB 1089 (1978), and Pierre Pellaton Enterprises, Inc.. et al., 239 NLRB 1211 (1979) 251 NLRB No. 209 SUPPLEMENTAL DECISION RAYMOND P. GREEN, Administrative Law Judge: This case was heard before me in Brooklyn, New York, on December 17, 1979, and April 23. 1980, pursuant to a backpay specification and notice of hearing, which was issued by the Regional Director for Region 29 on May 31, 1979. At the hearing, all parties were afforded a full opportunity to be heard and to present relevant evidence on the issues.' Upon consideration of the entire record in this supplemental proceeding, including consideration of the briefs filed by the parties, the prior Decision of the Board, and my observation of the demeanor of the wit- nesses, I make the following: FINDINGS ANI) CONCI.LSIONS 1. BACKGROUND On April 28, 1977, the Board issued its Decision and Order, at 233 NLRB 333, in the original proceeding. In pertinent part, it was concluded that Acme Wire Works, Inc., herein called Respondent, had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as ameneded, by refusing, on or after January 19, 1976, to execute a collective-bargaining agreement reached be- tween a multiemployer association to which Respondent belonged and Shopmen's Local Union No. 455, Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called Local 455; had violated Section 8(a)(1), (2), and (3) of the Act by enter- ing into and maintaining a collective-bargaining agree- ment with Local 810 containing a union-security provi- sion at a time when Respondent was obligated to bargain with Local 455, had caused a strike by Local 455 to be converted into an unfair labor practice strike after Janu- ary 19, 1976; and had violated Section 8(a)(1) and (3) of the Act by refusing, after March 29, 1976, to reinstate certain employees, including Frank Paradise, who had made unconditional offers to return to work. In relation to the above violations, the Board adopted the recommended remedy of Administrative Law Judge Robert A. Giannasi, which required, inter alia, Respond- ent to: (a) Withhold and withdraw all recognition from Local 810. (b) Reimburse all present and former employees, except those who joined Local 810 prior to the execution of the contract with Local 810 on January 1, 1976, for all initiation fees, dues, and other moneys, if any, paid by them pursuant to the union-security provisions of that agreement. (c) Forthwith sign and implement the collective-bar- gaining agreement reached on January 19, 1976, between ' Local 810. Steel, Metal, Alloys and Hardware Fabricators and Ware- housemen, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called Local 810, was a Party in Interest in the original proceeding and was not required to affirmatively remedy any of the violations found in that proceeding Al- though served with a copy of the backpay specification herein. L.ocal 810 did not file an answer and did not appear at the hackpay hearing ACME WIRE WORKS. NC. 156X DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Association2 and Local 455 insofar as it applies to the employees of Respondent in the appropriate unit;3 (d) Upon execution of the aforesaid agreement, give retroactive effect to the agreement and make whole the employees for any losses that they suffered by Respond- ent's failure to sign the agreement. 4 (e) Offer Manuel Diaz, Martin Hammel, and Frank Paradise reinstatement to their former jobs or, if such jobs are not available, to substantially equivalent jobs without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay from March 29, 1976. The United States Court of Appeals for the Second Circuit enforced in full the above-described Order on October 3, 1978. II. THi ISSUES Although the backpay specification potentially would have given rise to a multitude of litigable issues, the pre- trial conference and cooperation of the attorneys success- fully served to narrow the issues in dispute. Thus, at the hearing the parties agreed on numerous items set forth in the backpay specification while defining clearly what dis- agreements still existed. A. Frank Paradise It was agreed that the backpay period for Paradise commenced on March 29, 1976. However, Respondent takes the position that no backpay should be accorded to Frank Paradise for the third and fourth quarters of 1978 even though there is no dispute that Respondent did not offer reinstatement to him until November 11, 1978, which offer was declined at that time. In support of its claim, Respondent argues that because the collective-bar- gaining agreement expired on June 30, 1978, there was therefore no fixed rate of pay beyond that date upon which to base or calculate Paradise's backpay. The parties nevertheless agreed that the figures set forth in Appendix A of the backpay specification are correct relative to the adjusted hours that Paradise would have worked but for the discrimination, the con- tract rate of pay on which the backpay should be calcu- lated and the total gross wages exclusive of other bene- fits, that are owed to Paradise. Moreover, Respondent concedes that, if its argument that backpay for Paradise should not go beyond the second quarter of 1978 is re- jected, the figures and calculations set forth in Appendix A would be correct for the third and fourth quarters of 1978. Respondent also does not dispute the correctness of the computation of vacation pay for Paradise which is set forth in Appendix B of the backpay specification and 2 The Association involved is the Wire Works Manufacturers Associ- ation, Inc. 3 The appropriate unit includes all production and maintenance em- ployees, including plant clericals employed by the member-employers of the Wire Works Manufacturers Association, exclusive of all clerical em- ployees, superintendents. guards and all supervisors as defined in Sec 2(11) of the Act. It appears, however, that at the time of the instant hear- ing Respondent and Local 455 had agreed to bargain on a separate basis I The Administrative Law Judge, in his Decision adopted by the Board, set the interest rate at 6 percent per annum there is no dispute regarding the computations made to adjust Paradise's gross wages because of vacations he would have taken if employed by Respondent during the backpay period and the amounts of money he would have received from a vacation fund during that period. These latter figures are set forth in Appendix C of the backpay specification. Respondent does dispute the concept that Paradise should be reimbursed for the amount of money which it would have contributed to an annuity fund on Paradise's behalf apparently on the theory, which was not substan- tiated by the evidence, that Paradise would not necessar- ily have been eligible for the benefit. Respondent does not dispute, however, the figures and computations on this matter and therefore concedes that, if it is concluded that the payments to the annuity fund are a proper ele- ment of backpay, the figures and computations as set forth in Appendix D of the backpay specification are correct. 5 Appendix E of the backpay specification sets forth an adjustment to Paradise's gross backpay by adding sick leave benefits which he would have been entitled to under the collective-bargaining agreement. Respondent does not dispute the figures and computations set forth in Appendix F of the backpay specification. This Appendix sets forth for each quarter, from the second quarter of 1976 to the fourth quarter of 1978, Paradise's gross wages (with vacation adjustments), the annuity amounts as per the formula in Appendix D, the sick leave amounts as per the formula in Appendix E, and the total gross wages which is the sum of the foregoing items. However, as noted above, Respondent does dispute the inclusion of the amounts for the annuity and also dis- putes the inclusion of backpay beyond the second quar- ter of 1978. The backpay specification, at Appendix G, sets forth the General Counsel's contentions as to the amounts of money Respondent owes to Local 455's pension fund on behalf of Frank Paradise for the backpay period. 6 Re- spondent, although not disputing the figures and compu- tations on Appendix G of the specification, presents a number of arguments relating to this item. First, Re- spondent contends that it does not know if Paradise would have met the eligibility or vesting requirements of the pension plan even if the contributions had been made s Pursuant to the collective-bargaining agreement. Respondent was re- quired to contribute on behalf of employees an amount equal to 2 percent of their gross earnings per calendar year The evidence established that this money is due and collectible by an employee as a matter of right upon retirement or after being out of the industry for a period of 24 months, irrespective of the years of service with a contributing employer. Also, an employee is entitled to borrow money against his account at 3- percent interest, at ally time for good cause I Pursuant to the collective-bargaining agreement, Respondent was re- quired to make payments to the pension fund in the following manner As of July 1, 1975, the rate was 10 percent of an employee's gross earn- ings plus 4-1/2 cents per hour. As of July , 1976, the rate was 10 per- cent of gross earnings plus 20 cents per hour. As of July 1, 1977, the rate was 10 percent of gross earnings plus 30 cents per hour. As of July 1, 1980, the rate was 10 percent of gross earnings plus 68 cents per hour The chart in Appendix G, of the backpay specification, which is not dis- puted, applies the above formula to Paradise's gross earnings and hours worked in order to arrive at the total pension payments due from the second quarter of 1976 to the fourth quarter of 1978. ACME WIRE WORKS, INC I 150 during the backpay period. Thus, Respondent argues that if Paradise, who no longer is employed by a contributing employer, would not have been eligible to receive a pen- sion benefit because he lacked the necessary vesting re- quirements, then Respondent's contribution to the fund would not be backpay to Paradise but a windfall to the pension fund not innurable to the benefit of the discri- minatee. Respondent also argues that, even if pension contributions are, in this case, a proper element of back- pay, it should not be required to make such payments after the contract expired on June 30, 1978. Finally, Re- spondent asserts that, even if the preceding two argu- ments are rejected, then the contributions owed should be at the minimum level necessary to enable an employee such as Paradise to accrue the years of service credit he would have achieved if he had been employed by Re- spondent and not the contractual amount due which would be excessive in terms of providing Paradise with the pension credits he otherwise would have obtained.7 The actual interim earnings of Frank Paradise, which are set forth in Appendix H of the backpay specification, are not in dispute. This Appendix sets forth, for each rel- evant quarter, the earnings made by Paradise at Paradise Home Improvements, a company owned by his uncle. The second column on this table sets forth an adjustment to Paradise's interim earnings and in this regard the Gen- eral Counsel has reduced the actual earnings for the third quarter of each year by five-thirteenths. In justify- ing this reduction, the General Counsel argues that, if Paradise had not been discriminated against, he would have been entitled to a 5-week vacation in each year's third quarter under the contract and therefore would not have had to work the entire 13 weeks to earn what he did earn. Although the facts in this respect are not in dis- pute, Respondent argues that the General Counsel is not entitled, as a matter of law, to reduce a discriminatee's actual interim earnings because of vacation consider- ations. Additionally, Respondent, as noted previously, contends that no backpay should be awarded to Paradise after the second quarter of 1978, and therefore the fig- ures on the table for the third and fourth quarters of 1978, although concededly accurate, are irrelevant. I note here that, during his time of employment at Para- 7 To achieve an additional year of credited service, upon which the pension benefit is ultimately based, the fund requires an employee to earn only $2,400 per year, It therefore would make no immediate difference to an employee, in terms of his pension benefit, if he were to work the mini- mum hours needed with contributions made on that basis or if he were to work far in excess of the minimum hours needed with contributions by the Employer made on this basis. However, the fund is a pooled fund with contributions made for some employees who work a great deal and therefore have high earnings and contributions from employees who work substantially fewer hours and have lower earnings To meet the fund's obligations, an actuarial calculation must therefore be made which takes into account the differences in contributions. Therefore, on an actu- arial basis if employers. in the aggregate, were only to contribute the minimum amounts necessary to provide employees with yearly service credits and not the amounts required by the collective-bargaining agree- ment based on actual earnings and hours, it is obvious that the fund would soon be depleted and employees would either receive reduced re- tirement benefits or no benefits at all. Therefore, in considering Respond- ent's argument. I must not only consider that an employee has a right to the pension benefits as established by the pension plan, but that he also has a right to a viable fund which wall not be depleted and render his ability to obtain benefits illusory dise Home Improvements. Paradise did not take a aca- tion. Finally, Appendix I of the backpay specification is a summary of the preceding appendixes and therefore is dependent upon my findings with respect thereto. I is noted that, at the hearing, the General Counsel amended this appendix to delete the net backpay of $3.95 in the fourth quarter c 1977 because she discovered that Para- dise was not available for work for some part of that quarter due to illness. B. Payments Due Becauwe of the Iilulre To Exctcute and Implement the Collective-Bargaining Agreemeni Appendixes J-P of the backpay specification and Ap- pendixes J-l-P-I of the amended backpay specification are all related to the General Counsel's computation of moneys owed by virtue of Respondent's failure to ex- ecute and implement the collective-bargaining agree- ment. 8 The employees involved are Manuel Diaz, Rogers Beddard, Magin Rifas, Issac Chato. Daniel Dougherty, Jorge Gonzalez, and Luis Gonzalez. The period covered in the original backpay specification ran from January 19, 1976, to June 30, 1978, which is when the contract expired by its terms. The amended backpay specification covers the period from July 1, 1978, to De- cember 31, 1979, a period in which no contract was extant as the parties have been unable to reach a new collective-bargaining agreement. The moneys claimed relate to wages and benefits which are the differential be- tween what the above-named employees actually earned when working for Respondent and what they should have earned during their respective periods of employ- ment had Respondent executed and implemented the col- lective-bargaining agreement. It is further noted that the General Counsel does not concede that the backpay period stops at December 31, 1979, but asserts that there is a continuing liability beyond that date until such time as Respondent implements the agreement or any new agreement, or is legally discharged from its obligation to bargain with Local 455. Respondent does not dispute the figures and calcula- tions contained in Appendixes J-P of the backpay speci- fication, or Appendixes J-I through P-I of the amend- ment which General Counsel asserts are owing to the above-named employees and to Local 455's pension " At the hearing on December 17. 197., the General Counsel an- nounced her intention to amend the Backpay Specification for the pur- pose of making more current the alleged backpa) liability The parties agreed that, subsequent to the close of the hearing, the Respondent would furnish payroll records to the General Counsel and that based on such records a stipulation would be reached allowing the General Coun- sel to update her computations to December 31, 1979 After the hearing closed on December 17. Respondent did furnish its payroll records to the General Counsel, but for one reason or another no stipulation was made Accordingly, the General Counsel moved to reopen the record for the purpose of amending the backpa) specification which motion was granl- ed On April 23. the hearing was reopened where it was agreed b the parties that the figures and calculations set forth In Appendixe J I through P I of the amended backpay specification were accurate Re- spondenl did. however. set forth an additional defense which will be dis- cussed hblo, 1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plan.9 It does contend, however, that if Respondent had been required to pay, during the life of the agreement, the differential between what it did pay to its employees and what it was contractually obligated to pay, it would not have been able to do so and would have been forced to go out of business. As to this issue, the General Coun- sel made a motion to strike this contention from Re- spondent's answer, which motion was granted after an offer of proof was made by Respondent. My reasons for granting the motion are set forth below in the Discussion section entitled "Decision and concluding Findings." C. Reimbursement of Dues and Initiation Fees Respondent's answer does not deny, and therefore admits, that portion of the backpay specification relating to the amounts of money to be reimbursed to employees which they had paid to Local 810 as dues and initiation fees. III. DISCUSSION AND CONCLUDING FINDINGS A. Frank Paradise As noted above, Respondent contends that it has no obligation to make restitution to Frank Paradise beyond the second quarter of 1978 because of the expiration of the contract which establishes the applicable rates for as- certaining backpay. I find this argument to be without merit. It is conceded that Respondent did not offer reinstate- ment to Paradise until November 11, 1978, which there- fore defines the backpay period. Therefore, under any circumstances, backpay is due and owing to Paradis until that date. Further, it is clear that the utilization of the rates contained in the expired contract is entirely proper for determining the backpay amounts owed from the period when the contract expired until the offer of rein- statement was made. It is well established that the provi- sions of a collective-bargaining agreement, exclusive of items such as checkoff and union-security provisions, sur- vive the expiration of an agreement until a new agree- ment is made, or until an impasse in bargaining is reached allowing unilateral changes, or until an employ- er is legally discharged in some other manner from its obligation to bargain with a labor organization. Sioux Falls Stock Yards Co., 236 NLRB 543 (1978). I therefore conclude that Respondent is obligated for backpay to Frank Paradise for the period from March 29, 1976, to November 11, 1978, and that for the third and fourth quarters of 1978, the determination of backpay should be 9 On April 23, 1980. a few arithmetical errors in the original backpay specification were corrected. Thus, at Appendix K of the specification, the General Counsel amended that appendix to show that there were no overtime earnings due Rifas for the third quarter of 1976 rather than the $4.75 shown. Also, the General Counsel corrected Appendix 0 to show that for the third and fourth quarters of 1977 and the first and second quarters of 1978, the sick pay owed to Mr. Dougherty was $15659 rather than 256.70. I have also corrected some arithmetical errors on Appendix C of the original backpay specification. I further note that the original backpay specification at Appendixes M, N, 0, and P do not break down their respective computations on a quarterly basis. Inasmuch as backpay is supposed to be computed on a quarterly basis, I have converted these figures as shown in Appendix C to this Decision [omitted from publica- tion] calculated in accordance with the provisions of the col- lective-bargaining agreement which expired on June 30, 1978. I also reject Respondent's contention that it is not liable for so much of Paradise's backpay as represented by the contributions it was required to make to the annu- ity fund. In this regard, the evidence established that, had Paradise been employed by Respondent during the period of his discrimination, the Employer, pursuant to the collective-bargaining agreement, would have been re- quired to pay moneys to that fund in the amounts assert- ed by the General Counsel and that such moneys would be credited to his account, regardless of any eligibility requirement other than his being employed during the period the contributions were made. It also was estab- lished than an employee, on whose behalf the annuity contribution is made, is entitled to withdraw the entire amount upon retirement or upon being out of the indus- try for a period of 24 months. Accordingly, it is conclud- ed that the annuity contribution should be paid directly to Frank Paradise and not to the annuity fund as it is es- tablished that he now would be entitled to the money. Regarding the questions relating to the pension fund contributions on behalf of Paradise, I shall deal with Re- spondent's contentions seriatim. Firstly, Respondent argues that it was not aware if Paradise would have met tne vesting requirements of the fund and that, if he did not meet such requirements, the additional contributions required on his behalf would not inure to his benefit and therefore should not be included as backpay. Apart from any other considerations, the facts establish that Paradise, until the time of his discrimination, was credited with 21 continuous years of coverage and therefore had a vested pension benefit in accordance with the pension plan. Moreover, the evidence established that the amount of his pension benefit will be increased upon retirement if the additional 3 years of contributions are made by Re- spondent on his behalf. Respondent also contends that it should not be or- dered to make the pension contributions on behalf of Paradise after June 30, 1978, because the contract, which requires the contributions, expired on that date. For the same reasons set forth above, and in accordance with the Board's Decision in Sioux Falls Stock Yards, supra, I reject this contention. ' The most difficult argument made by Respondent in connection with the pension contributions on behalf of Paradise is the contention that, under the pension plan provisions, it would make no difference to Paradise if the pension fund received the amounts required by the con- tract or the substantially lower amounts which would serve to give Paradise the 3 additional years of credited service. In this regard, I note that this argument is made '° Respondent also argues that, by the terms of the trust indenture, the pension fund is precluded from accepting pension contributions from an Employer which does not have a collective-bargaining agreement with Local 455. Nevertheless, it is clear to me that this language was intended to incorporate the requirements of Sec. 302 of the Act which does not preclude payments to a fund by an employer during the hiatus period after its contract with a union has expired and before a new contract is executed. See Wayne's Olive Knoll arms. Inc., d/b/a Wayne' Dairy, 223 NLRH 260. 264 -265 (1976) ACME WIRE WIORKS, INC. 1571 only in the context of the backpay owed to Paradise as a discriminatee under Section 8(a)(3) of the Act and that Respondent acknowledges that this argument would not apply to the pension contributions owed to the other em- ployees by virtue of its failure to implement the collec- tive-bargaining agreement found by the Board to consti- tute a violation of Section 8(a)(5) of the Act. It is my conclusion that the above argument lacks merit. In this respect, had Paradise been employed by Respondent during the backpay period, Respondent would have been contractually required to pay to the fund, on his behalf, the full amount of the contribution as determined by his total earnings and his total hours worked. To allow the Respondent to avoid payment of the full amount because Paradise was discriminated against would result in a windfall to Respondent and allow it to benefit from its own wrong. Finishline Indus- tries Inc., 181 NLRB 756, 760 (1970); Rice Lake Cream- ery Company, 151 NLRB 1113, 1129 (1965). Moreover, the right of an employee to a pension benefit also im- plies, of necessity, the right to a viable pension fund. As the fund is maintained on certain actuarial considerations which include an estimate of the average contributions made on behalf of employees who are high and low earners, it seems clear that the fund would soon be de- pleted if employers were permitted to contribute the minimum amounts required to enable employees to obtain an additional year of credited service and not the amounts required in the collective-bargaining agreement. While it is no doubt true that the pension fund would not likely be jeopardized by the failure to make the full con- tributions on behalf of this one employee, it could rea- sonably be surmised that, in the aggregate, if employers who contribute to the fund could avoid full liability by discriminating against employees, this would serve, to some extent, as an inducement to violate the law. Finish- line Industries, Inc., supra. It also might lead, in the ag- gregate, to an unwarranted depletion of the Fund's assets which would affect not only Paradise's ability to collect his pension benefits but also every other covered em- ployee's ability to obtain such benefits. Finally, it is my opinion that even though the backpay owed to Paradise arises from the Board's finding that he had unlawfully been denied employment in violation of Section 8(a)(3) of the Act, the pension contributions on his behalf would also be cognizable based on the Board's 8(a)(5) finding. Regarding Paradise's backpay, Respondent finally con- tends that the reduction made by the General Counsel to Paradise's interim earnings, resulting from the vacation adjustment, is unwarranted and contrary to law. Never- theless, it appears that the General Counsel's formula in this respect is consistent with the Board's holding in Heinrich Motors. Inc., 166 NLRB 783 (1967). See also United Aircraft Corporation, 204 NLRB 1068, 1073, 1074 (1973). 1 therefore conclude that this contention by Re- spondent is also without merit. Based on the above, I find and conclude that the back- pay owed directly to Frank Paradise is $3,856.51 and l Se Appendix A of this [)eclsion [omitted from puhcblation] that the amount owed to the Local 455 pension fund on his behalf is $4,124.96.12 B. The Remed for the Failure To Implement the Collective-Bargaining .4greement The General Counsel contends, in accordance with the Board's Order in the original proceeding, that Respond- ent make whole its employees from January 19, 1976, for the amounts of wages and benefits lost, including pension contributions, as a result of its failure to execute and im- plement the collective-bargaining agreement. Respondent has no dispute with the figures or calculations of the backpay specification in this regard, but argues that, if it had been required to pay these obligations during the life of the agreement, it would have been forced to go out of business. As noted above. I rejected this argument as a matter of law and granted the General Counsel's motion to strike this assertion from Respondent's answer. 13 It is my opinion that, despite the detailed nature of Re- spondent's offer of proof, it nevertheless is speculative as to whether Respondent could not have survived as a business entity if it had fulfilled its contractual obliga- tions as required by the Board's Order and the court's deecree. More significantly, it is my opinion that this ar- gument does not rise to the level of a legal defense under the Act. Indeed, it appears to me that this argument is tantamount to a request to the Board that the collective- bargaining agreement which the Board has found to be binding on Respondent be rendered nugatory. It seems to me that neither I nor the Board would have the power to cancel the obligations of collective-bargaining agree- ments which are legally executed and which do not con- tain prohibited provision. To the extent that a forum might be available to relieve the burdens of a valid col- lective-bargaining agreement from an employer in severe financial difficulty, that forum would be before a bank- ruptcy judge in a bankruptcy proceeding. Shopmens Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO v. Kevin Steel Products, Inc., 519 F.2d 698 (2d Cir. 1975); Local Joint Executive Board, AFL-CIO v. Hotel Circle, Inc., 613 F.2d 210 (9th Cir. 1980). I also reject the contention that Respondent should not be liable for fund payments after the contract's expiration date, on June 30, 1978, for the reasons described above in footnote 10. Inasmuch as I have rejected Respondent's contentions, and as the parties are in agreement as to the figures rep- resenting the difference between what the Employer did in fact pay to its employees and what the contract re- quired it to pay, I find that the amounts owed to the em- ployees listed below are as follows: 4 t' See Appendix B of this )eclsin [omitted from publication] - Respondent asserted ait the hearing that this argument wa alo ap- plicahle t the backpa claimed fr Paradise For the same reasons, that I ha'c rejected this coiiteltioi as it relates to the make-whole rned' for employres who were not paid ir accordance ih Ihr crntrac' ohlga 1111. I al rel Ihls contcntiio as deferise to the hackpa 5 owed Plara 14 For a detal led hreakdowlul of the figurer on uhlch these sums are hased. see Appen td ( 1To this I)e csion [imitted fr m puhhcatlotn] ACME WIRE ORKS, INC. 1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name of Employee Amount Due Manuel Diaz $ 555.34 Rogers Beddard 1,448.66 Magin Rifas 3,708.96 Isaac Chattoo 2,756.27 Daniel Doughtery 9,663.43 Jorge Gonzalez 7,773.85 Luis Gonzalez 2,164.08 I further find that the amount of the dues and initiation fees to be reimbursed to the employees is as follows: 2. Respondent is required to pay to Local 455's Pen- sion Fund the amount of $4,124.96 on behalf of Frank Paradise. 3. Respondent is required to make whole the following named employees in the amounts set forth in their re- spective names as the differential between their actual earnings and what they would have earned but for Re- spondent's refusal to execute and implement the collec- tive-bargaining agreement. Name of Employee Manuel Diaz Rogers Beddard Magin Rifas Isaac Chattoo Daniel Doughtery Jorge Gonzalez Amount Due $ 33.00 194.00 138.00 313.00 320.00 376.00 Luis Gonzalez Manual Diaz Rogers Beddard Magin Rifas Isaac Chattoo Daniel Doughtery Jorge Gonzalez $2,164.08 555.34 1,448.66 3,708.96 2,756.27 9,663.43 7,773.85 I also conclude that the amount of money due and owing to the pension fund on behalf of Respondent's em- ployees is as follows: s 4. Respondent is required to reimburse the following named employees in the amounts set forth opposite their respective names for dues and initiation fees paid to Local 810: Name of Employees Manuel Diaz Rogers Beddard Magin Rifas Isaac Chattoo Daniel Doughtery Jorge Gonzalez Luis Gonzalez Amount Due $ 202.57 1,026.13 1,988.38 2,110.12 7,817.16 6,943.26 1,192.73 Manuel Diaz Rogers Beddard Magin Rifas Isaac Chattoo Daniel Doughtery Jorge Gonzalez $ 33.00 194.00 138.00 313.00 320.00 376.00 I finally conclude that the liability of Respondent as set forth above will not serve to limit any further liabili- ty because Respondent has still not implemented the col- lective-bargaining agreement in question and no new col- lective-bargaining agreement has been entered into by the parties. Accordingly, I conclude that the backpay period with respect to the employees listed above is still running and I therefore recommend that the General Counsel be permitted to conduct further compliance pro- ceedings as may be deemed appropriate. Upon the entire record, and in accordance with the foregoing findings, I conclude and recommend the fol- lowing: ORDER 16 I. The discriminatee, Frank Paradise is entitled to the payment of $3,856.51 by Respondent. 1' For a detailed breakdown of the figures on which these sums are based see Appendix D to this Decision [omitted from publication]. '6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and 5. Respondent is required to pay to Local 455's pen- sion fund the amount of $21,280.35 on behalf of the em- ployees listed above in paragraph 3. It further is recom- mended that Respondent pay interest on the above amounts at the rate of 6 percent per annum," such inter- est to accrue commencing with the last day of each cal- endar quarter of the backpay period on the amounts due and owing for each quarterly period as set forth in the Appendixes, and continuing until the date this Decision is complied with, minus the withholdings required by Federal and State laws. IT IS FURTHER RECOMMENDED that the Board adopt the foregoing findings and conclusions and issue an ap- propriate remedy, including a reservation of any further backpay rights of the individuals named above in para- graph 3 or any other employee in a bargaining unit clas- sification who may hereinafter be employed by Respond- ent. become it findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 17 Interest is set at 6 percent as the Order in the original proceeding was made and enforced prior to the Board's Decision in Florida Steel Corporation, 231 NLRB 651 (1977). See Pierre Pellaton Enterprises Inc., et al., 239 NLRB 1211 (1979).