Mac Plastics

National Labor Relations Board - Board Decisions

Jun 28, 1994

314 N.L.R.B. 163 (N.L.R.B. 1994)

163
314 NLRB No. 35
MAC PLASTICS
1 The Respondent in its answer states that its office and principal
place of business is located in Babylon, New York, rather than in
Mineola, New York, as alleged in the complaint. The General Coun-
sel has moved to amend the complaint to reflect that the Respond-
ent’s facility is located in Babylon, New York. We grant the General
Counsel’s motion and have also modified the unit description ac-
cordingly.
2 See, e.g., Rappazzo Electric Co., 281 NLRB 471, 481–482
(1986).
Mac Plastics, Inc. and Industrial Trade Union,
Local 231, International Union of Allied Nov-
elties and Production Workers, AFL–CIO.
Case 29–CA–17373
June 28, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
Upon a charge filed by Industrial Trade Union,
Local 231, International Union of Allied Novelties and
Production Workers, AFL–CIO (the Union) on May
26, 1993, the General Counsel of the National Labor
Relations Board issued a complaint on July 9, 1993,
against Mac Plastics, Inc., the Respondent, alleging
that it violated Section 8(a)(5) and (1) by failing to
make contractually required contributions to the
Union’s Industrial Trade Union Trust Fund (fund).
The Respondent’s answer to the complaint admits
all material factual allegations in the complaint1 and
asserts an affirmative defense.
On March 14, 1994, the General Counsel filed a
Motion for Summary Judgment. On March 15, 1994,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed no
response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
Ruling on Motion for Summary Judgment
The Respondent’s admissions to the factual allega-
tions in the complaint as amended establish (1) that at
all material times, the Union was the recognized and
exclusive collective-bargaining representative of the
Respondent’s employees in an appropriate unit com-
posed of all the nonsupervisory employees, including
regular part-time employees working more than 20
hours per week, employed by the Respondent at its
Babylon, New York facility, excluding office clerical
employees, toolroom employees, and guards; (2) that
by the terms of its most recent collective-bargaining
agreement which was effective April 8, 1990, to April
7, 1993, the Respondent was required to make periodic
payments on behalf of the unit employees to the fund
in order to provide medical benefits for the employees;
and (3) that since on or about December 5, 1992, the
Respondent has unilaterally failed to make contribu-
tions to the fund.
The Respondent raises the affirmative defense that it
lacks the financial ability to make the required pay-
ments. Such a claim of economic necessity, even if
proven, does not constitute an adequate defense to an
allegation that an employer has unlawfully failed to
abide by the provisions of a collective-bargaining
agreement. Tammy Sportswear Corp., 302 NLRB 860
(1991). Further, payments to health and welfare and
pension funds required by a collective-bargaining
agreement constitute a term and condition of employ-
ment which survives the expiration of the contract.2
Therefore, even after the collective-bargaining agree-
ment expired on April 7, 1993, the Respondent could
not unilaterally discontinue payment to the fund with-
out negotiating this change with the Union.
Thus, the Respondent has admitted all the facts ma-
terial to a resolution of the unfair labor practice issues
raised by the complaint and has not raised an adequate
defense to the complaint’s allegation.
Because we find the affirmative defense submitted
by the Respondent to be inadequate, and because there
are no material facts in dispute, in the absence of any
cause to the contrary having been shown by the Re-
spondent, 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 place of business in Babylon, New York, is
engaged in the manufacture and wholesale distribution
of injected plastic molds and related products. During
the 12 months preceding the issuance of the complaint,
which period is representative of its operations annu-
ally, in the course and conduct of its business oper-
ations, the Respondent sold and shipped from its Bab-
ylon, New York facility products valued in excess of
$50,000 directly to firms located outside the State of
New York. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(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 con-
stitute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As noted above, we have modified the unit description to state
that the facility is in Babylon rather than Mineola, New York.
4 Because the provisions of employee benefit fund agreements are
variable and complex, we leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the
fund in order to satisfy our ‘‘make-whole’’ remedy. Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
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
National 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.’’
All employees, including regular part-time em-
ployees working more than twenty (20) hours per
week employed by Respondent at its Babylon,
New York, facility, excluding office clerical em-
ployees, toolroom employees, and supervisors and
guards as defined in the Act.3
At all material times the Union has been the des-
ignated exclusive collective-bargaining representative
of the employees in the unit and has been recognized
as such by the Respondent. Recognition has been em-
bodied in a series of collective-bargaining agreements,
the most recent of which was effective by its terms for
the period from April 8, 1990, to April 7, 1993. By
virtue of Section 9(a) of the Act, the Union has been,
and is now, the exclusive representative of the employ-
ees in the bargaining unit with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment.
The parties’ collective-bargaining agreement con-
tains a provision requiring the Respondent to make
periodic payments on behalf of the employees in the
unit described above to the Union’s Industrial Trade
Union Trust Fund in order to provide medical benefits
for unit employees. This provision is a mandatory sub-
ject of bargaining. Since about December 5, 1992, the
Respondent has unilaterally failed to make contribu-
tions to the fund. By such acts and conduct, the Re-
spondent has engaged in, and is engaging in, unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
CONCLUSION OF LAW
By unilaterally failing to make contributions to the
fund since about December 5, 1992, the Respondent
has failed and refused to bargain collectively, and is
failing and refusing to bargain collectively, with the
representative of its employees, and the Respondent
thereby has been engaging in unfair labor practices
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
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order the Respondent to make whole the
Industrial Trade Union, Local 231, International Union
of Allied Novelties and Production Workers, AFL–
CIO’s Industrial Trade Union Trust Fund for all con-
tributions that would have been paid but for the Re-
spondent’s unlawful discontinuance of payments4 and
to make unit employees whole for any losses ensuing
from the failure to make such payments, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), the
amounts 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 as com-
puted in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Mac Plastics, Inc., Babylon, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Industrial
Trade Union, Local 231, International Union of Allied
Novelties and Production Workers, AFL–CIO by uni-
laterally failing and refusing to make required pay-
ments to the Union’s Industrial Trade Union Trust
Fund.
(b) In any like or related manner interfering with,
restraining, 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 contributions to the fund that have not
been paid and that would have been paid in the ab-
sence of the Respondent’s unlawful discontinuance of
the payments, and make unit employees whole 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 copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of payment
due under the terms of this Order.
(c) Post at its facility in Babylon, New York, copies
of the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
165MAC PLASTICS
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Industrial
Trade Union, Local 231, International Union of Allied
Novelties and Production Workers, AFL–CIO by uni-
laterally failing and refusing to make required pay-
ments to the Union’s Industrial Trade Union Trust
Fund.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make all contributions to the fund that
have not been paid and that would have been paid in
the absence of our unlawful discontinuance of the pay-
ments, and make unit employees whole, with interest.
MAC PLASTICS, INC.