Sportswear Group

National Labor Relations Board - Board Decisions

Mar 25, 1992

306 N.L.R.B. 854 (N.L.R.B. 1992)

854
306 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Member Oviatt agrees that the Respondent’s bald denial that its
action violated the Act, with nothing more, is inadequate as a de-
fense to the complaint allegations. See Tammy Sportswear Corp.,
302 NLRB 860 fn. 1 (1991); also see Zimmerman Painting & Deco-
rating, 302 NLRB 856 (1991) (Member Oviatt dissenting).
Sportswear Group, Inc. and Joint Board, Inter-
national Ladies’ Garment Workers’ Union,
AFL–CIO. Case 1–CA–27142
March 25, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by the Union on March 14,
1990, and amended on April 16, 1990, the General
Counsel of the National Labor Relations Board issued
a complaint on March 22, 1991, against Sportswear
Group, Inc., the Respondent, alleging that it violated
Section 8(a)(5) and (1) of the National Labor Relations
Act. Thereafter, the Respondent filed an answer to the
complaint.
On December 13, 1991, the General Counsel filed a
Motion for Summary Judgment. On December 24,
1991, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent did
not file a response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
The complaint alleges that since about December 20,
1989, the Respondent has failed and refused to make
contractually required payments into the Union’s Holi-
day Fund, Health and Welfare Fund, ILGWU Retire-
ment Funds, and ILGWU Health Services Plan and
that these subjects relate to the wages, hours, and other
terms and conditions of bargaining unit employees.
In its answer to the complaint, the Respondent ad-
mits the above factual allegations, but denies that its
conduct violated the Act.
We agree with the General Counsel that because the
Respondent has admitted the above factual allegations
of the complaint, the Respondent’s bare denial that it
has engaged in unfair labor practices does not con-
stitute an adequate defense to allegations that it has
violated Section 8(a)(5) and (1) of the Act by failing
to abide by the provisions of its collective-bargaining
agreement.1 Accordingly, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in East Boston, Massachusetts, has
been engaged in business as a garment industry con-
tractor and manufacturer. Annually, the Respondent, in
the course and conduct of its business operations, sells
and ships from its East Boston facility products, goods,
and materials valued in excess of $50,000 directly to
points outside the Commonwealth of Massachusetts;
annually purchases and receives at its East Boston fa-
cility products, goods, and materials valued in excess
of $50,000 directly from points outside the Common-
wealth of Massachusetts; and annually provides serv-
ices valued in excess of $50,000 for enterprises which
are themselves directly engaged in interstate com-
merce.
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 organiza-
tion 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 non-supervisory production, maintenance,
packing and shipping workers employed by the
Respondent at its East Boston facility, but exclud-
ing office clerical employees, professional em-
ployees, guards, and supervisors as defined in the
Act.
Since prior to 1985, and at all times material here,
the Union has been the designated exclusive collective-
bargaining representative of the employees in the unit,
and has been recognized as the representative by the
Respondent. Recognition has been embodied in succes-
sive bargaining agreements, the most recent of which
was effective by its terms for the period June 16, 1988,
to June 15, 1991. At all times material here, the Union,
by virtue of Section 9(a) of the Act, has been, and is,
the exclusive representative of the employees in the
unit for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
Since about December 20, 1989, the Respondent has
failed and refused to pay the Holiday Fund the
amounts which have become due as of and since De-
cember 20, 1989, under article XV, article XLIII, and
schedule ‘‘B’’ of the 1988–1991 contract. Since about
December 20, 1989, the Respondent has failed and re-
fused to pay the fringe benefit amounts which have be-
come due as of and since December 20, 1989, under
855SPORTSWEAR GROUP
2 Because the provisions of employee benefit fund agreements are
variable and complex, we leave to the compliance stage the question
of whether the Respondent must pay any additional amounts into the
benefits funds in order to satisfy our make-whole remedy.
Merryweather Optical Co., 240 NLRB 1213 (1979).
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.’’
article XVIII of the 1988–1991 contract as follows:
Health and Welfare Fund, ILGWU Retirement Funds,
and ILGWU Health Services Plan. These subjects re-
late to the wages, hours, and other terms and condi-
tions of employment of the unit and are mandatory
subjects for the purposes of collective bargaining.
We find that by the acts and conduct described
above, the Respondent has failed and refused, 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) of the
Act.
CONCLUSION OF LAW
By failing and refusing to make contractually re-
quired payments to the Union’s Holiday Fund and by
failing and refusing to make contractually required
fringe benefit payments to the Union’s Health and
Welfare Fund, ILGWU Retirement Funds, and ILGWU
Health Services Plan, 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 whole its
unit employees by making all required contractual pay-
ments to the Union’s Holiday Fund, and by making all
fringe benefit payments to the Health and Welfare
Fund, ILGWU Retirement Funds, and ILGWU Health
Services Plan, as provided in the collective-bargaining
agreement, which have not been paid.2 The Respond-
ent shall also reimburse its employees for any expenses
ensuing from the Respondent’s failure to make the
payments, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Sportswear Group, Inc., East Boston,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Joint
Board, International Ladies’ Garment Workers’ Union,
AFL–CIO as the exclusive bargaining representative of
the employees in the appropriate unit described below,
by failing to make payments to the Union’s Holiday
Fund, and by failing to make fringe benefit payments
to the Health and Welfare Fund, ILGWU Retirement
Funds, and ILGWU Health Services Plan, as required
by its collective-bargaining agreement with the Union.
The appropriate unit is:
All non-supervisory production, maintenance,
packing and shipping workers employed by the
Respondent at its East Boston facility, but exclud-
ing office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
(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 whole its bargaining unit employees by
making payments into the Union’s Holiday Fund, and
by making all fringe benefit payments to the Union’s
Health and Welfare Fund, ILGWU Retirement Funds,
and ILGWU Health Services Plan, as required by the
collective-bargaining agreement, which have not been
paid, 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 amounts due under
the terms of this Order.
(c) Post at its facility in East Boston, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(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.
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 Joint Board,
International Ladies’ Garment Workers’ Union, AFL–
CIO by failing and refusing to make payments to the
Union’s Holiday Fund and by failing to make fringe
benefit payments to the Union’s Health and Welfare
Fund, ILGWU Retirement Funds, and ILGWU Health
Services Plan, as required by the collective-bargaining
agreement with the Union. The appropriate unit is:
All non-supervisory production, maintenance,
packing and shipping workers employed by us at
our East Boston facility, but excluding office cler-
ical employees, professional employees, guards
and supervisors 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 whole our employees by making all
contractually required payments to the Union’s Holi-
day Fund, and by making contractually required fringe
benefit payments to the Union’s Health and Welfare
Fund, ILGWU Retirement Funds, and ILGWU Health
Services Plan, which have not been paid, and WE WILL
reimburse our employees for any expenses ensuing
from our failure to make the payments, with interest.
SPORTSWEAR GROUP, INC.