Endicott Forging & Mfg.

National Labor Relations Board - Board DecisionsSep 30, 1998

326 N.L.R.B. 1247 (N.L.R.B. 1998)

ENDICOTT FORGING & MFG. 1247 Endicott Forging & Manufacturing, Inc. and Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local Union No. 1101, AFL–CIO.1 Case 3–CA–21062 September 30, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Upon a charge filed on January 14, 1998,2 the Acting General Counsel of the National Labor Relations Board issued a complaint on April 21, against Endicott Forging & Manufacturing, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the National La- bor Relations Act. By letters dated May 4 and 26, the Respondent filed an answer admitting the complaint al- legations and asserting an affirmative defense. On August 31, the Acting General Counsel filed a “Motion to Transfer Proceedings to Board and for Sum- mary Judgment and Issuance of Board’s Decision and Order.” On September 3, 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 allegations in the motion are therefore undisputed. The Board has delegated its authority in this proceed- ing to a three-member panel. Ruling on Motion for Summary Judgment The complaint alleges, inter alia, that since on or about August 31, 1997, the Respondent has failed to continue in effect all the terms and conditions of its 1997–1998 collective-bargaining agreement with International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers, Local Union No. 1101, AFL– CIO, by failing to abide by Section 24 (Union Pension Fund). The complaint alleges that the Respondent en- gaged in such conduct without the Union’s consent. The complaint further alleges that by such conduct the Re- spondent has failed and refused to bargain collectively with the Union, its employees’ exclusive collective- bargaining representative, in violation of Section 8(a)(1) and (5) of the Act. Although in its May 26 response to the complaint the Respondent “admit[ted] to the allegations presented in Case 3–CA–21062,” it attempted in its May 4 response to explain why it failed to meet its contractual obliga- tions to the employees represented by the Union. The Respondent asserted that “[t]he reason for our not mak- ing the necessary pension plan contributions resulted from the financial condition of our company.” The Re- spondent’s defense is one of economic necessity. It is well established, however, that Section 8(a)(5) and (1) of the Act prohibits an employer that is a party to an exist- ing collective-bargaining agreement from modifying the terms and conditions of employment of that agreement without obtaining the consent of the Union. See Endicott Forging & Mfg., 319 NLRB 1 (1995), and Endicott Forging & Mfg., 319 NLRB 180 (1995)3 (both cases citing Kane Systems Corp., 315 NLRB 355 (1994); Nick Robilotto, Inc., 292 NLRB 1279 (1989)). 1 The case caption is amended to reflect the name of the Charging Party listed on the charge. 2 All dates are in 1998 unless otherwise indicated. Thus, the Respondent has admitted all the facts mate- rial to a resolution of the unfair labor practice issues raised by the complaint. An employer’s claim that it is financially unable to pay for contractually required bene- fits, “even if proven, does not constitute an adequate de- fense to an allegation that an employer has unlawfully failed to abide by provisions of a collective-bargaining agreement.” Zimmerman Painting & Decorating, 302 NLRB 856, 857 (1991). Therefore, the Respondent’s answer to these complaint allegations has raised no is- sues warranting a hearing. In the absence of any material issues warranting a hearing, we grant the General Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a New York corporation, with its principal office and place of business located in Endicott, New York, is engaged in the manufacture and sale of metal forging. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations, purchased and received goods and materials valued in excess of $50,000, which were shipped to its Endicott facility directly from points lo- cated 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent constitute a unit appropriate for the purpose of collective bargain- ing within the meaning of Section 9(b) of the Act: All employees in production and maintenance (but ex- cluding the die department, office, clerical employees, and all supervisors, foremen and assistant foremen in 3 In the latter case, the Board found that the Respondent violated Sec. 8(a)(1) and (5) of the Act by, inter alia, failing to provide the con- tractually required medical and dental insurance coverage to the bar- gaining unit employees represented by the Union. On April 18, 1996, the United States Court of Appeals for the Second Circuit enforced the Board’s decision. Four months later, the Board found that the Respon- dent further violated Sec. 8(a)(1) and (5) by failing to make contractu- ally required Sec. 401(k) pension contributions and bonus payments. See Endicott Forging & Mfg., 322 NLRB No. 4 (1996) (not reported in Board volumes). 326 NLRB No. 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248 charge of any classes of employees) for whom the un- ion, is or may be, during the term of this agreement, certified by the National Labor Relations Board as the exclusive collective bargaining representative as de- termined by the election conducted by the National La- bor Relations Board of November 29, 1944. Since about 1944, and at all times thereafter, the Union has been the designated exclusive collective-bargaining representative of the unit and since then the Union has been recognized as the representative by the Respondent. This recognition has been embodied in a series of collec- tive-bargaining agreements, the most recent of which had a term of May 16, 1997, to May 16, 1998. At all times since 1944, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representa- tive of the unit employees. Since on or about August 31, 1997, the Respondent has failed to continue in effect all the terms and condi- tions of the 1997-1998 collective-bargaining agreement by failing to abide by Section 24 (Union Pension Fund). The Respondent engaged in this conduct without the Un- ion’s consent. The terms and conditions of employment described above are mandatory subjects for purposes of collective bargaining. By this conduct described above, the Respondent has failed and refused to bargain collec- tively with the exclusive collective-bargaining represen- tative of its employees in violation of Section 8(a)(1) and (5) of the Act. CONCLUSION OF LAW By failing since on or about August 31, 1997, to abide by Section 24 (Union Pension Fund) of the 1997–1998 collective-bargaining agreement, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing to make con- tractually required contributions to the Union Pension Fund, we shall order the Respondent to make whole its unit employees by making all such delinquent contribu- tions, including any amounts due the fund in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit employees for any expenses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Ser- vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).4 ORDER The National Labor Relations Board orders that the Respondent, Endicott Forging & Manufacturing, Inc., Endicott, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Union as the exclusive collective-bargaining representative of the unit employ- ees by failing and refusing to make contractually re- quired contributions to the Union Pension Fund. (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) Pay all delinquent Union Pension Fund contribu- tions, including any additional amounts due the fund, and reimburse the unit employees for any expenses ensuing from the Respondent’s failure to make the required pay- ments since on or about August 31, 1997, in the manner set forth in the remedy section of this Decision. (b) On request, bargain with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg- ers & Helpers, Local Union No. 1101, AFL–CIO as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All employees in production and maintenance (but ex- cluding the die department, office, clerical employees, and all supervisors, foremen and assistant foremen in charge of any classes of employees) for whom the un- ion, is or may be, during the term of this agreement, certified by the National Labor Relations Board as the exclusive collective bargaining representative as de- termined by the election conducted by the National La- bor Relations Board of November 29, 1944. (c) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its Endicott, New York office, copies of the attached notice marked “Appendix.”5 Copies of the notice, on 4 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the Employer’s delin- quent contributions during the period of the delinquency, the Respon- dent will reimburse the employees, but the amount of such reimburse- ment will constitute a setoff to the amount that the Respondent other- wise owes the fund. 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ENDICOTT FORGING & MFG. 1249 forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained by it for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in this proceeding, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since August 31, 1997. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with the Union as the exclusive collective-bargaining representative of our unit employees by failing and refusing to make contractually required contributions to the Union Pension Fund. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL pay the delinquent Union Pension Fund con- tributions, including any additional amounts due the fund, and WE WILL reimburse the unit employees for any expenses ensuing from our failure to make the required payments, with interest. WE WILL, on request, bargain with International Broth- erhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers, Local Union No. 1101, AFL– CIO as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All employees in production and maintenance (but ex- cluding the die department, office, clerical employees, and all supervisors, foremen and assistant foremen in charge of any classes of employees) for whom the un- ion, is or may be, during the term of this agreement, certified by the National Labor Relations Board as the exclusive collective bargaining representative as de- termined by the election conducted by the National La- bor Relations Board of November 29, 1944. ENDICOTT FORGING & MANUFACTURING, INC.