Plabell Rubber Products

National Labor Relations Board - Board Decisions

Jul 9, 1992

307 N.L.R.B. 1197 (N.L.R.B. 1992)

1197
307 NLRB No. 172
PLABELL RUBBER PRODUCTS
1 The General Counsel does not seek summary judgment with re-
spect to complaint par. 15, which alleges the failure to make cost-
of-living adjustments. Indeed, he requests that we remand paragraph
15, and the conclusionary complaint allegations that pertain to it, to
the Regional Director for Region 8 for further processing. We grant
that request and shall remand that portion of the case.
2 The complaint alleges that the Respondent deducted but failed to
remit the credit union funds during October and November 1991.
The Respondent’s answer admits the allegation in part, stating that
its ‘‘records indicate that Credit Union monies were not deposited
for three weeks in November, 1991. At all other material times,
Credit Union monies were remitted to the Toledo Teamsters Federal
Credit Union.’’ The exact amounts deducted from the employees’
pay and not remitted to the credit union can be determined at the
compliance stage of this proceeding consistent with the bankruptcy
court’s resolution of the Respondent’s petition. Can-Do, Inc., 279
NLRB 819, 820–821 (1986).
3 The complaint alleges August 1991 (inadvertently designated as
August 1992) as the date of the Respondent’s failure to reimburse
the employees for coinsurance coverage. The actual date of the Re-
spondent’s failure to reimburse the employees and the amounts in-
volved shall be resolved at the compliance stage of this proceeding.
Plabell Rubber Products, Inc. and Teamsters,
Chauffeurs, Warehousemen and Helpers Union
Local No. 20 a/w International Brotherhood of
Teamsters, AFL–CIO. Case 8–CA–24156
July 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
Upon a charge filed by the Teamsters, Chauffeurs,
Warehousemen and Helpers Union Local No. 20 a/w
International Brotherhood of Teamsters, AFL–CIO (the
Union) on December 6, 1991, and an amended charge
filed on January 8, 1991, the General Counsel of the
National Labor Relations Board issued a complaint on
January 17, 1992, against Plabell Rubber Products,
Inc., the Respondent, alleging that it has violated Sec-
tion 8(a)(5) and (1) by failing to make contributions to
the Union’s health and welfare fund, remit union dues
deducted from the wages of bargaining unit employees,
remit credit union payments deducted from the wages
of bargaining unit employees, reimburse bargaining
unit employees for the coinsurance portion of their
major medical health and welfare coverage, make re-
quired premium payments for employees’ dental insur-
ance coverage, and make cost-of-living adjustments, all
as required in the parties’ collective-bargaining agree-
ment. Copies of the complaint and notice of hearing
were served on the Respondent. The Respondent filed
a timely answer admitting certain factual allegations.
On February 14, 1992, the Respondent filed a notice
of stay pursuant to a voluntary petition for bankruptcy
filed November 22, 1991. By letter dated March 3,
1992, counsel for the General Counsel advised the Re-
spondent that it is the Region’s position that the auto-
matic stay issued in the bankruptcy proceeding does
not apply to the Board’s administrative proceedings.
On March 11, 1992, the General Counsel filed a
Motion to the National Labor Relations Board for Par-
tial Summary Judgment.1 On March 18, 1992, the
Board issued an order transferring proceeding to the
Board and Notice to Show Cause why the motion
should not be granted. The Respondent filed no re-
sponse.
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 answer to the allegations in para-
graph 10 of the complaint establishes that the Re-
spondent was obligated under the terms of its collec-
tive-bargaining agreement with the Union, including
article II, section 1, to deduct union dues from the pay
of bargaining unit employees and remit the dues to the
Union, and that from July 1 through November 1991,
the Respondent has deducted the dues but has failed to
remit them to the Union. The Respondent also admits
that, as alleged in paragraph 11 of the complaint, it de-
ducted from the pay of unit employees money which
the employees had designated to be remitted to Toledo
Teamsters Federal Credit Union, to be deposited in the
employees’ credit union accounts, and failed to remit
the amounts deducted although obligated to do so by
the provisions of the collective-bargaining agreement,
including article II, section 2.2 Similarly, the Respond-
ent admits complaint paragraph 12’s allegation that,
commencing about September or October 1991, it
failed to make monthly contributions for those 2
months to the Union’s Health and Welfare Trust Fund,
as required by the provisions of its collective-bargain-
ing agreement with the Union, including article XVI,
section 2, appendix C, and memorandum of agreement.
The Respondent also admits that, as alleged in com-
plaint paragraph 13, it failed since September 1991 to
reimburse unit employees for the coinsurance portion
of the major medical health and welfare coverage, as
required by the collective-bargaining agreement, in-
cluding article XVI, section 2, appendix C, and memo-
randum of agreement.3 The Respondent further admits
the allegations of paragraph 14 of the complaint, i.e.,
that since about August or September 1991 it has
failed to make dental insurance premium payments to
Safeguard Insurance Company covering bargaining
unit employees for August, September, October, and
November 1991, although required to do so by the
provisions of the collective-bargaining agreement, in-
cluding article XIV, section 2, appendix C, and memo-
randum of agreement. Finally, the Respondent admits
that it failed to comply with the above-described con-
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As Member Oviatt stated in Tammy Sportswear Corp., supra, he
is of the opinion that there may be limited circumstances in which
an employer’s financial inability to pay may constitute a defense to
an allegation that it unilaterally and unlawfully ceased contractually
required payments to a union benefit fund. To make this defense
successfully, an employer must establish that it continued to recog-
nize—and did not repudiate—its contractual obligations. To satisfy
this requirement, an employer must prove that its nonpayment was
followed by its request to meet with the union to discuss and resolve
the nonpayment problem. In so doing, an employer demonstrates its
adherence to the contract and the bargaining process. In such cir-
cumstances, Member Oviatt would find that an employer’s non-
payment of contractually required benefit fund payments would not
violate Sec. 8(a)(5) of the Act. Such circumstances, however, are not
present in this case.
tractual obligations without prior notice to or the con-
sent of the Union.
It is well settled that an employer that is a party to
an existing collective-bargaining agreement violates
Section 8(a)(5) and (1) of the Act when it modifies the
terms and conditions of employment established by
that agreement without obtaining the consent of the
Union. Rapid Fur Dressing, 278 NLRB 905, 906
(1986). Here, the Respondent has admitted that it has
unilaterally, at various times, discontinued satisfying
its obligations under the contract. The Respondent as-
serts in defense that ‘‘[t]he financial condition of Re-
spondent effected [sic] Respondent’s actions during
material times.’’ Financial necessity, however, 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 embodying mandatory subjects of bar-
gaining. Tammy Sportswear Corp., 302 NLRB 860
(1991); Raymond Prats Sheet Metal Co., 285 NLRB
194, 196 (1987); and Oak Cliff-Golman Baking Co.,
202 NLRB 614, 616 (1973).4 Moreover, it is well set-
tled that the institution of bankruptcy proceedings does
not deprive the Board of jurisdiction or authority to en-
tertain and process an unfair labor practice case to its
final disposition. Board proceedings fall within 11
U.S.C. 362(b)(4) and (5), the exception to the auto-
matic stay provision for proceedings by a govern-
mental unit to enforce its police or regulatory powers.
Katco, Inc., 295 NLRB No. 92, slip op. at 2 (June 30,
1989) (not reported in bound volume).
Accordingly, the Respondent has admitted all the
facts material to a resolution of the unfair labor prac-
tice issues raised by the complaint allegations con-
tained in paragraphs 10 through 14 and has not raised
an adequate defense to those allegations.
Because there are no material facts in dispute as to
complaint paragraphs 10 through 14, and in the ab-
sence of any good cause to the contrary having been
shown by the Respondent, we grant the General Coun-
sel’s Motion for Partial Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, both before and after it became a
debtor-in-possession, has maintained its principal office
and place of business at Toledo, Ohio, where it has
been engaged in the manufacture and nonretail sale of
molded and extruded mechanical rubber products and
roll coverings. The Respondent annually has sold and
shipped from its Toledo, Ohio facility goods valued in
excess of $50,000 directly to points outside the State
of Ohio. Accordingly, we find that the Respondent is
an employer 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 the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All production, maintenance assistants and hourly
rated plant employees of the Respondent, exclud-
ing all casual employees, home workers, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
At all material times, the Union has been recognized
as the designated exclusive collective-bargaining rep-
resentative of the unit employees, within the meaning
of Section 9(a) of the Act. Recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which is effective from June 20,
1989, through June 19, 1992.
The parties’ collective-bargaining agreement requires
the Respondent to deduct union dues from the pay of
bargaining unit employees and remit the union dues to
the Union. The agreement also requires the Respondent
to deduct certain money from the employees’ pay and
remit that money to the Toledo Teamsters Federal
Credit Union, for deposit to the employees’ credit
union accounts. In addition, the collective-bargaining
agreement requires the Respondent to make contribu-
tions on behalf of its employees to the Teamsters
Health and Welfare Trust Fund, to reimburse employ-
ees for the coinsurance portion of the major medical
health and welfare coverage, and to make dental insur-
ance premium payments to Safeguard Insurance Com-
pany covering bargaining unit employees. The Re-
spondent admits that it has failed to abide by the above
provisions, without the Union’s consent, as alleged in
the complaint. Accordingly, we find that the Respond-
ent has refused to bargain with the Union within the
meaning of Section 8(d) of the Act in violation of Sec-
tion 8(a)(5) and (1) of the Act.
1199PLABELL RUBBER PRODUCTS
5 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
benefit fund in order to satisfy our ‘‘make-whole’’ remedy.
Merryweather Optical Co., 240 NLRB 1213 (1979).
6 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.’’
CONCLUSION OF LAW
By failing to continue in full force and effect all the
provisions of its collective-bargaining agreement with
the Union, by failing to make contractually required
contributions to the health and welfare fund, to reim-
burse employees for the coinsurance portion of the
major medical health and welfare coverage, to make
dental insurance premium payments, to remit money
deducted from the employees’ pay to the Toledo
Teamsters Federal Credit Union, and to remit union
dues deducted from the employees’ pay to the Union,
the Respondent has engaged 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.
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 the contrac-
tually required contributions to the Teamsters Health
and Welfare Trust Fund that unlawfully were not
made, to pay the dental insurance premiums that un-
lawfully were not paid,5 to reimburse unit employees
for the coinsurance portion of major medical health
and welfare coverage that they are owed, to remit the
money deducted from the employees’ pay that was not
turned over to the Toledo Teamsters Federal Credit
Union for deposit into their accounts, and to make
whole the unit employees for any expenses they in-
curred as a result of the Respondent’s unlawful failure
to make contributions to the health and welfare trust
fund and to pay dental insurance premiums, in the
manner set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). We shall also
order the Respondent to remit to the Union the
unremitted dues that were deducted from the employ-
ees’ wages, with interest as provided in New Horizons,
supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Plabell Rubber Products, Inc., Toledo,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Teamsters,
Chauffeurs, Warehousemen and Helpers Union Local
No. 20 a/w International Brotherhood of Teamsters,
AFL–CIO by unilaterally discontinuing contributions
to the Union’s health and welfare fund, reimburse-
ments to employees for the coinsurance portion of the
major medical health and welfare coverage, dental in-
surance premium payments, remittance of money de-
ducted from the employees’ pay to the Toledo Team-
sters Federal Credit Union, and remittance of union
dues deducted from the employees’ pay to the Union,
as required by the parties’ collective-bargaining agree-
ment.
(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 Teamsters Health
and Welfare Trust Fund, and make all dental insurance
premium payments that have not been paid and that
would have been paid in the absence of the Respond-
ent’s unlawful conduct, and make the employees whole
for any expenses they incurred as a result of that con-
duct, in the manner prescribed in the remedy section
of this decision.
(b) Reimburse unit employees for the coinsurance
portion of major medical health and welfare coverage,
and remit all money deducted from the employees’ pay
to the Toledo Teamsters Federal Credit Union for de-
posit into their accounts, in the manner set forth in the
remedy section of this decision.
(c) Comply with the terms of the dues-checkoff pro-
vision in the collective-bargaining agreement and remit
to the Union dues checked off pursuant to that provi-
sion and valid authorizations and required by the
agreement to be turned over to the Union by the Re-
spondent, with interest, as set forth in the remedy sec-
tion of this decision.
(d) 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 backpay or
mones due under the terms of this Order.
(e) Post at its Toledo, Ohio location copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for
Region 8 after being signed by the Respondent’s au-
thorized 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-
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent to ensure that the notices are not altered. de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the issues as to which
summary judgment is not requested are remanded to
the Regional Director for Region 8 for action con-
sistent with this opinion.
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 in good faith with
Teamsters, Chauffeurs, Warehousemen and Helpers
Union Local No. 20 a/w International Brotherhood of
Teamsters, AFL–CIO as the exclusive collective-bar-
gaining representative of the unit by unilaterally dis-
continuing contractually required contributions to the
Teamsters Health and Welfare Trust Fund, or by fail-
ing to reimburse employees for the coinsurance portion
of the major medical health and welfare coverage, fail-
ing to make dental insurance premium payments, fail-
ing to remit money deducted from the employees’ pay
to the Toledo Teamsters Federal Credit Union, or fail-
ing to remit union dues deducted from the employees’
pay to the Union.
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 Teamsters
Health and Welfare Trust Fund and all dental insur-
ance premium payments that have not been paid and
that would have been paid in the absence of our un-
lawful discontinuance of the payments, and WE WILL
make unit employees whole for any expenses they in-
curred as a result of our failing to make those pay-
ments, with interest.
WE WILL reimburse unit employees for the coinsur-
ance portion of major medical health and welfare cov-
erage, and remit money deducted from the employees’
pay to the Toledo Teamsters Federal Credit Union for
deposit into their accounts, with interest.
WE WILL remit to the Union dues deducted pursuant
to valid authorizations and the collective-bargaining
agreement and required to be turned over to the Union
by us, with interest.
PLABELL RUBBER PRODUCTS, INC.