R. T. Jones Lumber Co.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 726 (N.L.R.B. 1994)

726 DECISIONS OF TIlE NATIONAL LABOR RELATIONS BOARD
The R, T, Jones Lumber Company, Inc, and Inter-
national Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL-
CIO. Case 3-CA-17346
February 28, 1994
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On a charge filed by the Union on September 14,
1992, and subsequently amended on September 17 and
October 29, 1992, the General Counsel of the National
Labor Relations Board issued a complaint on October
30, 1992. and subsequently amended it on November
6, 1992, against The R. T. Jones Lumber Company,
Inc. (the Respondent). The amended complaint alleges
that the Respondent has violated Section 8(a)(5) and
(I) of the National Labor Relations Act by failing and
refusing to make contractually required conttibutions
to the Union's pension fund and group health insur-
ance payments. Thereafter, the Respondent filed a
timely answer admitting in part and denying in part the
allegations in the complaint. The Respondent also as-
serted two affirmative defenses: first, that the alleged
unfair labor practices constitute contract disputes suit-
able for deferral to arbitration and second, that the Re-
spondent's filing of a bankruptcy petition on July 10,
1992, stays the Board's proceedings.
On June 16, 1993, the General Counsel, the Re-
spondent, and the Charging Party filed a stipulation of
facts and motion to transfer proceeding to the Board.
The parties agreed that the charges, complaints, an-
swers, and the stipulation of facts and exhibits attached
thereto constitute the entire record in this case, and
that no oral testimony is necessary or desired by any
of the parties. The parties further stipulated that they
waived a hearing before an administrative law judge,
the making of findings of fact and conclusions of law
by an administrative law judge, and the issuance of a
decision by an administrative law judge. The parties
stated their desire to submit this case directly to the
Board for findings of fact, conclusions of law, and the
issuance of a Decision and Order.
On August 25, 1993, the Board issued an Order ap-
proving the stipulation and transferring the proceeding
to the Board. The Respondent and the General Counsel
timely submitted briefs.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, The R. T. Jones Lumber Company,
Inc., is a manufacrurer of wirebound boxes and crates
with a facility in North Tonawanda, New York. In
313 NLRB No. 120
conducting its business operations, the Respondent an-
nually purchases and receives at its North Tonawanda
facility goods and materials valued in excess of
$50,000 directly from points outside the State of New
York.
Based on the stipulation of the parties, we find that
The R. T. Jones Lumber Company is an employer en-
gaged 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 PRACTICE
A. Facts
At all material times, Local 357 of the Union (the
Union) has been the designated exclusive collective-
bargaining representative of the Respondent's employ-
ees in the following appropriate unit:
All production and maintenance employees of Re-
spondent, except office and clerical employees,
guards and watchmen, and all professional and su-
pervisory employees as defined in the Act.
Tbe Respondent has entered into successive collective-
bargaining agreements with the Union, the most recent
of which is effective from March 16, 1993, to March
15, 1996. A predecessor agreement was effective from
March 16, 1990, to March IS, 1993.
Article XXII of the 1990-1993 agreement provided,
in pertinent part:
Section I.
The Company agrees to continue to contribute to
the Pension Plan as follows:
First year $.24, second year $.27, third year $.31
per hour for each hour for which said employees
receives [sic] pay during the life of this agree-
ment.
Section 2
Newly hired Group 5 employees will not receive
Pension conttibutions until 1st years of employ-
ment.
Article XXII of the current agreement provides, in per-
tinent part:
Section I. The Company agrees to continue to
contribute to the Pension Plan as follows:
$.31 for each hour for which said employee re-
ceives pay for the life of this agreement.
Section 2. Newly hired Group 5 employees will
not receive Pension conttibutions until Ist year of
employment.
R. T. JONES LUMBER CO. 727
In two memoranda of agreement, dated March 15,
1990, and March 15, 1993, the Respondent and the
Union agreed that the pension fund payments "shall be
made monthly and shall be due on or before the 10th
day of the month following the calendar month in
which the employee receives said hourly pay." It is
undisputed that the Respondent failed to make the re-
quired pension fund contributions covering the months
of February 1992' through June 1992 and failed to
make the required pension fund contributions in a
timely manner covering the months of July 1992
through April 1993, excluding November 1992.
Article XIII, section I of the 1990-1993 agreement
provides, in pertinent part:
The Company agrees to pay for all employees,
when qualified, one-hundred percent (100%) of
the cost for individual and family coverage under
Blue Cross with the following coverage: Blue
Cross 415 Blue Cross select classes 90/91, Blue
Cross Rider #40 precare, major medical 1,000,000
with RlX rider $100.00 deductible, RlX rider with
contraceptives $5.00 co-pay.
Article XIII of the current agreement provides, in per-
tinent part:
Section I. The Company agrees to pay for all em-
ployees, when qualified, one-hundred percent
(100%) of the cost for individual or family cov-
erage.
I. Under Blue Cross with the following coverage:
Blue Cross hospitalization 04106 rider 40 precare
program, Blue Cross medical/surgical 90/91, un-
limited major medical $250.00 deductible for sin-
gle and $500.00 deductible for family, prescrip-
tion drug rider $9.00 co-pay with contraceptives.
2. Under Community Blue Secure with the fol-
lowing coverage: 100% hospitalization, $10.00
co-pay per visit, and $7.00 prescription co-pay.
3. Under Health Care Plan with the following
coverage: $2.00 co-pay per visit, and $3.00 pre-
scription co-pay, 50% co-pay for infertility drugs.
Each employee may choose any of the above cov-
erages. They may change coverages once a year
or at other times by mutual agreement
New employees will be covered on the first (I st)
day of the tllPnth following the month in which
their 120 working day probationary period ex-
pires.
I It appears that the Respondent's failure to make the pension pay-
ment covering February 1992 (due March 10) is outside of the 6-
month limitations period contained in Sec. 1O(b) of the Act. Sec.
IO(b), however, is an affirmative defense which the Respondent has
waived by not timely raising it. Federal Management Co., 264
NLRB 107 (1982).
It is undisputed that on or about August I, 1992, the
Respondent failed to make the required premium pay-
ments to the specified health plan carriers for the em-
ployees' group health insurance. However, during the
period August I, 1992, to September 23, 1992, the Re-
spondent took steps to meet the carriers' conditions for
continuation of its employees' group health insurance.
The Respondent's failure to pay the required premiums
did not result in any of the Respondent's employees
incurring any unreirnbursed, out-of-pocket expenses for
covered medical care or services.
B. Contentions of the Parties
The General Counsel contends that the Respondent's
failure to make these contractually mandated pension
and health insurance payments violates Section 8(a)(5)
and (I) of the Act. In addition, the General Counsel
urges rejection of the Respondent's affirmative de-
fenses asserted in the Respondent's answer, contending
that the dispute is inappropriate for deferral for arbitra-
tion and that Section 362(b)(4) of the Bankruptcy
Code provides that its automatic stay does not apply
to "an action or proceeding by a goverrunental unit to
enforce such goverrunental unit's police or regulatory
power." II U.S.C. §362(b)(4).
In its brief, the Respondent states that it "recognizes
that, among other things, it is obligated to make pay-
ments" to the pension fund and asserts only that any
make-whole remedy imposed by the Board should be
consistent with and subject to the Bankruptcy Code's
payment priorities and limitations.
C. Discussion and Conclusion
It is well established that the failure to make timely
contractually required fringe benefits and health insur-
ance premium payments, without consent of the Union,
constitutes a unilateral modification of in the terms of
the collective-bargaining agreement and that such an
unilateral modification is a violation of Section 8(a)(5)
and (I) of the Act. Everlock Fastening Systems, 308
NLRB 1018 (1992); Zimmerman Painting & Decorat-
ing, 302 NLRB 856, 857 (1991).
We find no merit in the Respondent's asserted de-
fenses. Deferral to arbitration is inappropriate in this
case because the Respondent's admitted breach of the
collective-bargaining agreement does not involve a
problem of contract interpretation or require the special
competence of an arbitrator. Struthers Wells Corp., 245
NLRB 1170, 1171 fn. 4 (1979), enfd. 636 F.2d 1210
(3d Cir. 1980), cert. denied 452 U.S. 916 (1981).
Further, as to the Respondent's contention that the
Board's proceedings are stayed by its bankruptcy peti-
tion, the Bankruptcy Code Section 362(b)(4), 11
U.S.c. § 362(b)(4), specifically provides that the auto-
matic stay does not apply to "an action or proceeding
by a goverrunental unit to enforce such goverrunental
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unit's police or regulatory power." Sonya Trucking
c«. 312 NLRB 1159 (1993); Super Carbide Tools.
307 NLRB 1052 fn, I (1992).
We also find no merit in the Respondent's conten-
tion that the make-whole remedy issued by the Board
must be consistent with and subject to the payment pri-
orities of the Bankruptcy Code. Under Bankruptcy
Code Section 362(b)(4). the Board has the authority to
process an unfair labor practice case to its final dis-
position. including determination of such monetary
amounts as may be owed as a result of the unfair labor
practices. although the subsequent collection of the
moneys owed requires a separate application to the
bankruptcy court. Sonya Trucking Co., supra; NLRB v,
i5th Avenue iron Works. 964 F.2d 1336, 1337 (2d Cir.
1992); NLRB v, Continental Haugen Corp., 932 F.2d
828, 832-835 (9th Cir. 1991); NLRB v. P*i*E Nation-
wide, Inc., 923 F.2d 506, 512 (7th Cir. 1991).
Accordingly, in view of the Respondent's admitted
failure to make the contractually required payments to
the pension funds and to the health plan carriers, we
find that the Respondent has violated Section 8(a)(5)
and (I) of the Act.
CONCLUSION OF LAW
By failing to make the contractually required pay-
ments to the pension fund and for health care cov-
erage, the Respondent has committed unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (I) 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. Specifi-
cally, we shall order the Respondent to restore the sta-
tus quo ante in effect prior to the unilateral changes
made in the employees' terms and conditions of em-
ployment. In this regard, we shall order the Respond-
ent to make the pension fund contributions which have
been unlawfully withheld pursuant to the collective-
bargaining agreement between the Respondent and the
Union, with any additional sums applicable to the pay-
ments to be computed in accordance with the Board's
decision in Merryweather Optical Co., 240 NLRB
1213 (1979).2
2 The parties have stipulated that the Respondent restored health
coverage and that no employee incurred any out-of-pocket expenses
during the time that the Respondent had failed to make the required
insurance premiums. Additionally, the General Counsel contends that
for this reason, "no make-whole remedy lies." Given these cir-
cumstances, we shall not provide any affirmative provisions regard-
ing the Respondent's failure to make payments for health care cov-
erage.
ORDER
The National Labor Relations Board orders that the
Respondent, The R. T. Jones Lumber Co., Inc., North
Tonawanda, New York, its officers, agents, successors,
and assigns. shall
I. Cease and desist from
(a) Refusing to bargain with the Union by failing to
make contractually required payments-to the Union's
pension fund or to the health plan carriers for health
care coverage for its unit employees.
(b) In any like or related marmer 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 the pension fund contributions which have
been Unlawfully withheld, pursuant to the collective-
bargaining agreement between the Respondent and the
Union, in the marmer 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 backpay
due under the terms of this Order.
(c) POSI at its facility in North Tonawanda, New
York, copies of the attached notice marked "Appen-
dix."? Copies of the notice, on fornis provided by the
Regional Director for Region 3, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent 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 Respondent to ensure that the notices are not
altered, defaced, 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.
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 Local Union
No. 357 of the International Union of Electronic, Elec-
3 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,"
R. T. JONES LUMBER CO. 729
trical, Salaried, Machine and Furniture Workers, AFL-
CIO, the exclusive collective-bargaining representative
of our employees in an appropriate unit, by failing to
make contractually required payments to the Union's
pension fund or to health plan carriers for health care
coverage. The appropriate unit is:
All production and maintenance employees of Re-
spondent, except office and clerical employees,
guards and watchmen, and all professional and su-
pervisory employees as defined in the Act.
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 the pension fund contributions which
we have unlawfully withheld pursuant to the collec-
tive-bargaining agreement between ourselves and the
Union.
THE R. T. JONES LUMBER COMPANY,
INC.