15th Avenue Iron Works

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 878 (N.L.R.B. 1991)

878
301 NLRB No. 124
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent states that an out-of-Board settlement has been reached
that covers the General Counsel’s exceptions. No evidence has been presented
to support that statement nor has the General Counsel withdrawn his excep-
tions. Consequently, we find no reason to suspend our review.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 The Respondent has excepted to the judge’s finding that the bargaining
unit included installers, noting that the complaint described the bargaining unit
as excluding installers. The Respondent, however, denied the description of the
bargaining unit in its answer. Thus the scope of the bargaining unit became
an issue at the hearing. We find that the testimony given at the hearing sup-
ports the judge’s determination that the bargaining unit includes installers, con-
sistent with the underlying Board certification and the bargaining history of
the parties.
In agreeing with the judge that the Respondent unlawfully denied access to
its facility to union representatives, we rely on the fact that the Respondent’s
announcement that it did not want the union representatives on the premises
ever again was stated unconditionally.
4 As fully described in the judge’s decision, these fringe benefit funds in-
cluded a vacation fund, welfare fund, apprenticeship fund, annuity fund, sever-
ance pay fund, pension fund, and sick leave fund.
5 This is distinct from provisions in the collective-bargaining agreement for
grievance and arbitration machinery for disputes arising under the contract that
do not involve fringe benefit fund contributions.
6 This date is 6 months prior to the date the unfair labor practice charge
filed in this proceeding was served on the parties, June 30, 1988.
7 In the opening remarks of the Respondent’s attorney, it appears that the
reference to the fund payments being an arbitrable issue was primarily in-
tended to dispute the General Counsel’s additional complaint allegation that
the Respondent had repudiated the collective-bargaining agreement by its fail-
ure to make these payments.
8 The Respondent eventually made fringe benefit fund payments for May
through September 1987 and January 1988.
15th Avenue Iron Works, Inc. and Shopmen’s Local
Union Number 455 of the International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, AFL–CIO. Case 29–CA–13601
February 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 27, 1989, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed cross-exceptions and a
brief in support of the judge’s decision and an answer-
ing brief to the General Counsel’s exceptions.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision in light of
the exceptions and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions only to the
extent consistent with this Decision and Order.3
The judge found, in part, that all the Respondent’s
failures to make timely fringe benefit fund contribu-
tions in accord with the parties’ collective-bargaining
agreement should be deferred to the arbitration process
specified in that agreement, citing the arbitral awards
placed in evidence and relying on Spielberg Mfg. Co.,
112 NLRB 1080 (1955), and Olin Corp., 268 NLRB
573 (1984). The General Counsel contends that the
judge erred by deferring allegations regarding the Re-
spondent’s failures to make fringe benefit contributions
to arbitration and by failing to find that the Respond-
ent’s failures to make the fund contributions violated
Section 8(a)(5) and (1).
We disagree with the judge’s decision to the extent
that it provides for deferral of the Respondent’s undis-
puted failures to make fringe benefit fund contributions
for periods for which no arbitral awards have issued.
Accordingly, we find that the Respondent’s failure to
make those timely fringe benefit fund contributions not
covered by the arbitral awards violates Section 8(a)(5)
and (1) and shall order the Respondent to take appro-
priate remedial action.
The facts set forth in the judge’s decision and in the
record show that under the parties’ collective-bar-
gaining agreement, which expired June 30, 1988, the
Respondent was obligated to make monthly fringe ben-
efit fund payments for its employees.4 The agreement
specifically provided that failure by the Respondent to
make payments in full by the 10th day of the month
following the month for which contributions were due
constituted a breach. In addition, the collective-bar-
gaining agreement provided for special arbitration by a
single arbitrator of disputes arising from the Respond-
ent’s failure to make timely payments to the fringe
benefit funds.5
The complaint alleges, in part, that the Respondent
has violated Section 8(a)(5) and (1) by failing to make
fringe benefit fund contributions since on or about De-
cember 30, 1987,6 as required by the collective-bar-
gaining agreement, and by engaging in unilateral con-
duct since June 30, 1988 (the expiration date of the
collective-bargaining agreement) by its failure to make
such fringe benefit fund contributions. The Respond-
ent’s answer summarily denied these complaint allega-
tions. At the commencement of the hearing, the Re-
spondent’s attorney asserted that the failure to make
fringe benefit fund contributions was an arbitrable
issue.7 It is undisputed that the Respondent failed to
make timely fringe benefit fund payments for the last
7 months of 1987 and for at least the first 9 months
of 1988.8 During the course of the hearing, the General
Counsel introduced into the record five arbitral awards
covering the Respondent’s failure to make fringe ben-
efit fund contributions, three of which covered con-
tributions for periods prior to those specified in the
complaint allegations (and which are therefore not be-
fore us) and two of which addressed delinquencies in-
cluded in the complaint; i.e., payments which were due
for February, March, and May 1988. In its brief to the
judge, the Respondent argued that the pertinent issue
87915TH AVENUE IRON WORKS
9 Olin Corp., 268 NLRB at 574.
10 Id.
11 We reject the General Counsel’s contention that deferral is inappropriate
because of Board policy to resolve an entire dispute in a single proceeding.
The case cited by the General Counsel, Sheet Metal Workers Local 17 (George
Koch Sons), 199 NLRB 166, 168 (1972), is inapposite to the issue presented
in the instant proceeding insofar as it is governed by Spielberg and Olin. In
George Koch, the Board held that it would not defer to pending arbitration
proceedings under Collyer Insulated Wire, 192 NLRB 837 (1971), in a situa-
tion where the pending arbitration proceeding would not resolve all issues be-
fore the Board. In the instant case, the arbitration proceedings, to which defer-
ral has been requested, have been completed and deferral to these proceedings
would not preclude the Board from now resolving all remaining issues pre-
sented to the Board. Cf. Toyota of San Francisco, 280 NLRB 784 (1986). The
fundamental distinction underlying the Board’s willingness to consider partial
deferral under Spielberg criteria is that no further delay in resolving the pro-
ceeding before the Board is thereby necessary, whereas were the Board to con-
sider deferral under Collyer to prospective arbitration for some of the inter-
twined issues in a proceeding before the Board, the result would necessarily
entail further delay in reaching a final decision on those issues.
We further find no merit in the General Counsel’s reliance on the failure
of the Respondent to comply with the existing arbitration awards. Under
Malrite of Wisconsin, 198 NLRB 241 (1972), enfd. in relevant part 494 F.2d
1136 (D.C. Cir. 1974), noncompliance with an arbitral award is not ‘‘a matter
for the Board’s concern.’’ The General Counsel attempts to distinguish this
case from Malrite on the ground that the Respondent’s failure to comply with
several arbitration awards constituted a repudiation of the contract, citing Elec-
tronic Reproduction Service Corp., 213 NLRB 758 (1974), as authority sup-
porting that distinction. In that case, however, the refusal to execute a contract
pursuant to an arbitrator’s award struck at the very essence of the collective-
bargaining relationship. Id. at 759, fn. 2. By not signing the contract, the Re-
spondent in effect repudiated that relationship. Hence, the bargaining process
itself was at stake and deferral to the award would not protect or enhance it.
We are not faced with that situation here. The Respondent does not deny its
obligations under the contract but claims a lack of funds to meet them. Fur-
ther, the Respondent’s noncompliance relates to arbitral awards all stemming
from the breach (albeit repeated) of the same contractual provisions. In that
respect, it is not dissimilar from Malrite, which involved the breach of a single
contractual provision in the form of a unilateral change in a term and condi-
tion of employment that the respondent continued uninterrupted in the face of
an adverse arbitration decision and award.
12 As noted above, the Respondent did mention at the hearing that the issues
were arbitrable, but in so doing only referred to the existing arbitration awards.
Its posthearing brief makes it evident that the Respondent sought to rely only
on those arbitral awards previously made regarding the Respondent’s fund
contribution delinquencies. We reach this conclusion because the Respondent’s
brief cites only the Board’s standards for deferral in Spielberg Mfg. Co., supra,
and Olin, supra, in arguing for deferral in regard to its failure to make fund
contributions, but cites Collyer Insulated Wire, supra, and United Technologies
Corp., 268 NLRB 557 (1984), in arguing deferral regarding a separate 8(a)(5)
and (1) allegation concerning the Respondent’s denial of access to its facility
for union representatives; this issue, like the fund payment issue, involved a
provision in the collective-bargaining agreement. Thus, it is apparent that the
Respondent is aware that the Board has different standards for granting defer-
ral based on whether the issues involve arbitral awards or prospective arbitra-
tion, and that the Respondent knowingly did not request Collyer deferral on
the allegations of the delinquent fringe benefit fund contributions which had
not been taken to arbitration.
13 MacDonald Engineering Co., 202 NLRB 748 (1973); Alameda County
Assn., 255 NLRB 603, 605 (1981).
14 Member Cracraft does not rely on this basis in reversing the judge’s de-
ferral to arbitration of those claims which were not arbitrated and for which
the Respondent has not sought deferral.
regarding its failure to make fringe benefit fund con-
tributions was whether the complaint allegations in this
matter should be ‘‘dismissed on the basis of the
Board’s standard for deferral in Spielberg Manufac-
turing Co., 112 NLRB 1080, and Olin Corp., 268
NLRB [573],’’ and that ‘‘all allegations for failure to
make required contributions . . . were resolved volun-
tarily by the parties’ utilization and participation in the
grievance and arbitration process.’’
The judge properly held that the Board should with-
hold its process and defer to the arbitral awards al-
ready made because the Respondent’s breach and the
alleged 8(a)(5) and (1) violation are factually parallel
to those at issue in the arbitral proceeding, there has
been no showing that the arbitrator was not ‘‘presented
generally with facts relevant to resolving the unfair
labor practice,’’9 and the arbitrator’s award is not
‘‘palpably wrong.’’10 We thus reject the General
Counsel’s contention that it is inappropriate to defer to
the existing arbitral awards regarding the Respondent’s
failures to make fringe benefit fund contributions.11
It is inappropriate, however, to defer when no arbi-
tral awards have issued and the Respondent has not
sought deferral12 in view of the Board’s long-held
view that it will not defer to prospective arbitration un-
less the argument for deferral is asserted before or dur-
ing an unfair labor practice hearing.13 Moreover, even
if the Respondent had timely sought deferral to the
parties’ contractual grievance and arbitration proce-
dures, we would find deferral inappropriate with re-
spect to benefit fund deliquencies arising after the ex-
piration of the collective-bargaining agreement on June
30, 1988.14 In Indiana & Michigan Electric Co., 284
NLRB 53 (1987), the Board interpreted Nolde Bros. v.
Bakery Workers Local 358, 430 U.S. 243 (1977), and
held that a party’s presumptive contractual duty to ar-
bitrate grievances about postexpiration events or con-
duct extends only to rights that ‘‘arise under’’ the con-
tract because they are ‘‘capable of accruing or vesting
to some degree during the life of the contract and rip-
ening or remaining enforceable after the contract ex-
pires.’’ 284 NLRB at 60. Even though the Respond-
ent’s failure to make timely fund payments has been
a continuing problem that began during the term of the
contract, the failure to make fund payments for months
since that contract expired is not presumptively arbitra-
ble under the rationale of Indiana & Michigan. This is
so because the Union’s right to payment for those par-
ticular months did not accrue or vest until after the
contract expired.
Accordingly, even under a properly raised request
for deferral under Collyer, only the pre-July 1988 de-
linquencies not yet resolved by arbitral awards could
be addressed by prospective arbitration, and the Board
would still be required to resolve the allegations in-
volving the Respondent’s subsequent delinquencies. As
noted above, under George Koch, the Board will not
defer for prospective arbitration only a portion of the
intertwined issues in unfair labor practice proceedings.
As the record in this proceeding indicates that the
Respondent does not dispute that it had an obligation
to make the fringe benefit fund contributions now at
issue in this proceeding, but has defended its failure to
pay solely on the basis that it was not economically
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 It is well established that inability to pay obligations negotiated in a col-
lective-bargaining agreement is not recognized as a defense to an employer’s
failure to fulfill those obligations. See Raymond Prats Sheet Metal Co., 285
NLRB 194 (1987).
16 As indicated above, the delinquencies for which unfair labor practices are
now found include contributions for December 1987, January 1988 (for which
the contributions were belatedly made), April 1988, and for the months fol-
lowing May 1988.
17 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
able to do so,15 we find merit in the General Counsel’s
contentions that the Respondent has violated Section
8(a)(5) and (1) by its failure to make these fringe ben-
efit fund contributions.16
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 5.
‘‘5. By failing and refusing for certain periods after
December 30, 1987, to make fringe benefit fund con-
tributions as required by the terms of its collective-bar-
gaining agreement with the Union, and by unilaterally
changing such terms upon the expiration of the collec-
tive-bargaining agreement, the Respondent violated
Section 8(a)(5) and (1) of the Act.’’
ORDER
The Respondent, 15th Avenue Iron Works, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Denying union representatives access to the shop
pursuant to the collective-bargaining agreement.
(b) Threatening union agents with bodily harm and
threatening to close its facility if the employees exer-
cise their right to strike under the collective-bargaining
agreement.
(c) For certain periods after December 30, 1987,
failing to abide by the terms of the collective-bar-
gaining agreement pertaining to its contributions to
funds for vacation; welfare; apprenticeship, training-
upgrading trust; annuity (supplemental retirement);
severance pay trust; pension; and sick leave, and by
unilaterally changing such terms upon the expiration of
the collective-bargaining agreement.
(d) 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) Pay the contractually agreed-on contributions to
the funds described above, for which no arbitral
awards are on record, in the amounts of the contribu-
tions that the Respondent failed to make on behalf of
the unit employees since December 30, 1987, in accord
with the Board’s decision in Fox Painting Co., 263
NLRB 437 (1982), with any additional amounts appli-
cable to such payments to be computed in accordance
with the Board’s decision in Merryweather Optical
Co., 240 NLRB 1213 (1979). The Respondent shall re-
imburse its employees for any expenses they incur as
a result of its failure to make these fund payments in
the manner set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981). Interest shall be computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(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 due under the
terms of this Order.
(c) Post at its facility at 1676 61st Street, Brooklyn,
New York, copies of the attached notice marked ‘‘Ap-
pendix.’’17 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 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.
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
ordered us to post and abide by this notice.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse access to the shop to your
union representatives pursuant to the collective-bar-
gaining agreement.
88115TH AVENUE IRON WORKS
1 The record is corrected so that at p. 14, LL. 15 and 16, it reads in con-
formity with the testimony: ‘‘We agreed the employees that were doing that
work on the outside would be included in the bargaining units.’’
WE WILL NOT threaten your union representatives
with bodily harm.
WE WILL NOT threaten to close the facility if you
exercise your right to strike pursuant to the collective-
bargaining agreement.
WE WILL NOT fail and refuse to make fringe benefit
fund contributions as required by the terms of our col-
lective-bargaining agreement with the Union, or unilat-
erally change such terms on the expiration of the col-
lective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make whole the employees who have in-
curred losses because of our failure to make fringe
benefit fund contributions, and WE WILL pay the con-
tractually agreed-on fringe benefit funds in the
amounts of the contributions that we failed to make on
behalf of our employees. WE WILL reimburse our em-
ployees for any expenses resulting from our failure to
make the required payments. The computations of the
monetary amounts and appropriate interest thereon will
be made in accordance with applicable decisions of the
National Labor Relations Board.
15TH AVENUE IRON WORKS, INC.
April M. Wexler, Esq., for the General Counsel.
Chuck Ellman (Industrial Labor Relations Consultants), of
East Orange, New Jersey, for the Respondent.
Vicki L. Erenstein, Esq. (Siser, Weinstock, Harper, Dorn &
Leibowitz), of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on October 31 and
November 1, 1988. The complaint alleges that Respondent,
in violation of Section 8(a)(1) and (5) of the Act, denied
union agents access to Respondent’s facility, threatened
union agents with bodily harm, threatened to close Respond-
ent’s facility, and failed to make contributions to certain
funds as required by the applicable collective-bargaining
agreement. Respondent denies the material allegations of the
complaint.
On the entire record, including my observations of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by General Counsel and Respondent in January
1989, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation engaged in the man-
ufacture and installation of staircases, railings, window
guards, and related iron products, annually receives goods
valued in excess of $50,000 directly in interstate commerce.
Respondent admits, and I find, that it 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
A. Credibility of the Witnesses
Hernan Ovillo Rivara testified on behalf of Respondent.
Rivara is an employee of Respondent and it was obvious to
me that he felt personal loyalty to his employer, Steve
Degliuomini, president of Respondent. While he was giving
his testimony, Rivara constantly looked at his employer and
smiled at him. Rivara answered the questions posed to him
on behalf of Respondent with cooperation and in a forthright
manner. However, on cross-examination by counsel for Gen-
eral Counsel and counsel for the Charging Party, Rivara was
often unresponsive and evaded the questions. I formed the
impression from observing Rivara that he was prepared to
tell one story and that he resisted exploring any facts that
might be unfavorable to Respondent. Furthermore, Rivara
testified through an interpreter and it was clear that he did
not have a complete understanding of the English language.
Therefore, Rivara’s testimony about conversations and ex-
changes that took place in English are not reliable since he
might easily have missed many important words and sen-
tences that were spoken in English. I shall not credit Rivara’s
testimony where it is contradicted by other more credible tes-
timony.
William Colavito, president of the Union, testified in a
forthright and cooperative manner. He was not evasive on
cross-examination. I shall credit his testimony.
Anthony Rosaci, a member of the executive board of the
Union, testified in a careful, thoughtful manner. I shall credit
his testimony. Frank Hernandez, secretary-treasurer of the
Union, testified in a credible manner. Both of these witnesses
were cooperative and answered fully on cross-examination. I
shall rely on their testimony.
Steve Degliuomini testified on behalf of Respondent. His
testimony about the financial condition of Respondent was
vague and incomplete. As to the other matters at issue here,
his testimony was contradicted by the testimony of Her-
nandez and Rosaci, whom I have found to be credible wit-
nesses. I shall not credit the testimony of Degliuomini where
it is contradicted by other more reliable evidence.
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Certification of Representative issued on July 20, 1983.
3 The evidence shows that the contractual wage rate for Respondent’s em-
ployees is as much as 50 percent lower than for employees in the industry
generally. Therefore, the rate of Respondent’s contributions to the funds as a
percentage of wages paid to its employees is higher than the rate of contribu-
tions of other employers in the industry.
B. The Arrears in Fund Contributions
The Union is the certified representative of Respondent’s
employees pursuant to an election held in 1982. The unit
stipulated by the parties in that proceeding was:2
All full-time and regular part-time production and
maintenance employees including installer employees
employed at the Employer’s 1676 61st Street, Brook-
lyn, New York facility, but excluding all office clerical
employees, professional employees, guards and super-
visors as defined in the Act.
The collective-bargaining agreement between the parties
was signed January 5, 1987. William Colavito, the president
of the Union, testified that the parties adopted the Standard
Independent Contract for the industry, including the standard
definition of the unit. This definition includes production and
maintenance employees, but by its terms excludes erection
and installation employees. The standard language is com-
pelled by the fact that most of the other locals in the Inter-
national represent units composed solely of installers and
they wish to protect their jurisdiction. Local 455, however,
represents small shops where the work force must be flexi-
ble. Colavito stated that the International understands that, in
practice, Local 455 represents shops including installers and
the International has never objected to the situation. Colavito
testified that, although the language of the collective-bar-
gaining agreement excludes installers, the Respondent and
the Union have interpreted their agreement to include Re-
spondent’s installer employees.
The collective-bargaining agreement between Respondent
and the Union has a term from January 1, 1985, through
June 30, 1988. It provides for employer contributions to the
Local 455 Industry Vacation Fund, the Iron Workers Local
455 Welfare Fund, the Local 455 Apprenticeship, Training-
Upgrading Trust Fund, the Iron Workers Local 455 Annuity
(Supplemental-Retirement) Fund, the Local 455 Severance
Pay Trust Fund, the Pension Fund for Iron Workers Local
455, and the Iron Workers Local 455 Sick Leave Fund.3
The collective-bargaining agreement provides that failure
of Respondent to make payments in full to the funds by the
10th day of each month following the month in which the
contributions are due constitutes a breach. On 10 days’
‘‘written notice to the Company, the Union . . . shall have
the right at any time or times thereafter to strike and remove
its members from the plant . . . until the company pays the
full amount of all monies then due . . . and also pays the
employees who are on strike their regular rate of pay. . . .
Once a Company has received such a . . . notice, the right
of the Union to withdraw its members . . . continues for all
subsequent delinquencies without requiring that any further
notice be given.’’
It is undisputed that Respondent is substantially in arrears
with respect to making contributions to the various funds as
required by the collective-bargaining agreement between Re-
spondent and the Union. At the time of the hearing, Re-
spondent had not made the required contributions for the
months of October, November, and December 1987. Further,
for the year 1988, Respondent had only contributed to the
funds for the month of January. None of the payments that
have been made were made timely according to the terms of
the collective-bargaining agreement. In addition, a number of
arbitrations have been conducted between the Union and Re-
spondent relating to Respondent’s failure to make contribu-
tions to the funds; all of these five arbitrations, held between
October 1987 and July 1988, have resulted in arbitrators’
awards ordering Respondent to make its contributions to the
funds. On March 14, 1988, Respondent’s president signed a
confession of judgment with respect to the arrears owing to
the various funds. In the summer of 1988, the Union levied
on Respondent’s bank account twice for payment of a por-
tion of the money owed to the funds.
On November 14, 1987, the Union sent Respondent the
10-day notice pursuant to the contract provision described
above, stating the Respondent was delinquent in its payments
to the various funds named in the collective-bargaining
agreement. The notice stated, inter alia, that unless Respond-
ent paid the sums due within 10 days, the Union ‘‘will in-
voke the provisions of the trust Fund Protection section of
the Agreement, and without further notice, strike your Com-
pany.’’ I am satisfied from the two postal receipts accom-
panying the Union’s copy of the notice that it was delivered
by the Postal Service to Respondent’s premises on November
17, 1987.
Steve Degliuomini testified that Respondent has had dif-
ficulty collecting payments from customers, that Respondent
is involved in a number of lawsuits regarding money owed
to it and which it owes to other entities, and that Respondent
owes money to suppliers and others. Further, Degliuomini
testified that Respondent has cashflow problems and that
business is slow. Respondent has also made substantial pay-
ments to discriminatees as a result of a prior Board pro-
ceeding. I note that Respondent offered no financial state-
ments into evidence. Thus, there is no evidence in the record
to establish Respondent’s actual overall financial condition;
Respondent has merely shown that it owes money and that
others owe money to it.
Respondent’s position regarding the fund payments is that
whenever it has the cash to pay the funds it will do so. Re-
spondent points out that it has never denied its obligations
under the collective-bargaining agreement nor has it refused
to participate in the arbitrations held to adjudicate its arrears
in payments to the funds.
C. Alleged Denial of Access and Threats
The collective-bargaining agreement contains a ‘‘Plant
Visitation’’ clause which provides as follows:
Business Agents and/or other authorized representatives
of the Union shall be permitted to enter the shop of any
Company . . . without undue delay, at any time during
which any employees are working for the purpose of
investigating complaints and/or working conditions.
Colavito testified in response to questions posed by Re-
spondent that he has never been denied access to the shop
to speak to the employees. When negotiations are held at Re-
spondent’s premises, Colavito goes onto the shop floor to see
88315TH AVENUE IRON WORKS
4 The Union did not want Mano to be isolated by being the only employee
to stay away from work.
5 Eventually, Respondent executed the confession of judgment, but it had to
be changed from the form originally presented for signature because the pas-
sage of time had caused more money to be owing to the funds.
the unit members with Steve Degliuomini’s permission. In
fact Degliuomini himself testified that he permits union
agents to go into the shop to speak to the employees. There
is no evidence that Respondent ever inquires into the reason
for the union representatives’ conversations with the employ-
ees nor that Respondent limits the purposes for which the
representatives speak to the employees on the shop floor.
Colavito testified that as a result of Respondent’s failure
to make fund contributions, the employees do not receive
their full vacation benefits from the fund, the employees’
pension statements do not reflect accurately all the credit
they are entitled to and some medical benefits have been de-
nied to employees. On occasion, employees of Respondent
have come to Colavito asking about the condition of the
funds maintained in their behalf and asking about their med-
ical payments and inaccurate pension statements. These em-
ployees include Frank Mano, Steve Guisseppi or Guillermo,
and Chero.
Colavito testified that Respondent’s delinquencies to the
funds were apparent by February 1987, and that when he
spoke to office employees of Respondent about the situation,
he was told that Respondent was not being paid by its con-
tractors. Frank Hernandez, secretary-treasurer of the Union,
testified to the same effect: whenever he asked about pay-
ments due to the funds, he was told that the Company was
short of cash. The Union decided that it had to take action.
It instituted the arbitrations, it sent the 10-day strike notice,
and its lawyers drew up a confession of judgment for Re-
spondent to execute. According to Hernandez, Respondent
did not sign the confession of judgment when it was pre-
sented and this led the Union to take direct action to collect
the money owed to the funds.
Hernandez and Anthony Rosaci, a member of the execu-
tive board of the Union, testified about what occurred on
March 1, 1988, when the Union decided to visit Respond-
ent’s premises. Respondent’s shop apparently opens about 7
a.m. and by 8 a.m. all the employees are at work. John Bell,
vice president of the Union, arrived at the shop early, and,
by 7:30 a.m., Hernandez, Rosaci, and Timothy Garner, re-
cording secretary of the Union, arrived. Soon after this, Bell
left. The union agents stood in the doorway of the shop
speaking to the men about the delinquent fund payments.
There were about four or five employees of Respondent
present, and they and the union agents stood milling around
the door, sometimes inside and sometimes outside the shop.
The union agents explained to the employees that Respond-
ent was very far behind in its fund payments and that the
confession of judgment still had not been signed by Re-
spondent. The Union told the employees that under the col-
lective-bargaining agreement, they had the right to strike
with pay to induce Respondent to remit contributions to the
funds. According to Hernandez, the employees had a lot of
questions. Some of the employees were aware of the problem
concerning the funds, and the employees present that day
agreed that they had to strike because the funds were impor-
tant to them.
As the three union agents and the employees stood talking
in the doorway of the shop about 8 a.m., Steve Degliuomini
drove up and parked his car on the sidewalk in front of the
shop. According to the union agents who testified in the in-
stant proceeding, Degliuomini ‘‘came running out of his car’’
and shouted to the group, ‘‘Who the fuck are you? What are
the fuck you doing in my shop?’’ Hernandez identified him-
self as a union official and gave Degliuomini a business
card. Hernandez told Degliuomini that the Union did not
have any conflict and just wanted to talk. He told
Degliuomini that the men were going on strike due to the
problems with the funds. By this time, the union agents were
all on the sidewalk talking to Degliuomini and the employees
were standing around with them. Degliuomini said he ‘‘had
had it with the Union,’’ then to his employees he said, ‘‘Do
what you want to do. You guys want to go on strike, either
come in or go out. I can replace you. I can close the god
damn door and put a lock on it. What the fuck, I’ll close
the place down.’’ He continued in this vein, asking the em-
ployees, ‘‘What are you going to do? You going to go inside
to work or go outside with them? I don’t need any of you.
I can replace all of you; If you don’t want to work, get the
hell out.’’
To the union agents, Degliuomini said, ‘‘Stay out of my
shop. You go into my shop, I’m going to kick your ass. If
I ever see you in this shop again, I’ll kick your ass. I don’t
want you in the shop again.’’
By this time, the employees began to stray back to work
inside the shop, and employee Frank Mano left, announcing
that he has going home.
The union agents were undecided as to their course of ac-
tion. At first they began taking strike placards out of the
trunk of a car, but then they replaced them and went to a
nearby coffeeshop to talk over the situation. After a while,
the union agents returned to the shop where they saw Pat
Degliuomini, the brother of Steve Degliuomini, outside. Her-
nandez told Pat Degliuomini what had occurred. Degliuomini
said that they should send Mano back to work, and the union
agents agreed that they would go see Mano and tell him to
return to work.4 Hernandez spoke to Pat Degliuomini about
the problem with delinquencies in payments to the funds, and
the latter said that Colavito should call him to discuss the
matter.5
Steve Degliuomini denied the union agents’ version of the
events of March 1. However, I credit the testimony of Her-
nandez and Rosaci, and I shall not rely on Degliuomini’s tes-
timony.
I note that since this incident, the Union has not been de-
nied access and has visited the premises on several occa-
sions.
D. Discussion and Conclusions
Respondent maintained in its opening statement that it did
not repudiate the collective-bargaining agreement and that
the failure to make contributions to the funds ‘‘is an arbitra-
ble issue, involving a grievance or dispute between the em-
ployer and the union.’’ Pointing out that Respondent had at-
tended some of the arbitrations held as a result of its failure
to make the contributions, Respondent stated, ‘‘that is a
grievable and arbitrable issue, that was being handled
through the defined processes of that collective bargaining
agreement.’’ Denying that it had violated the access provi-
sions of the collective-bargaining agreement, Respondent ar-
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gued in its opening statement that the alleged denial of ac-
cess was arbitrable under the contract and that the Union had
filed no grievance following the incident. Respondent’s open-
ing statement concluded, ‘‘the two issues really . . . were at
most, grievable issues, which were handled and could have
been handled through the grievance and arbitration process.’’
It is clear, therefore, that Respondent put the General Coun-
sel fully on notice at the commencement of the hearing here-
in that it was relying on the doctrine of deferral to arbitration
as a defense to the complaint.
1. Fund contributions
General Counsel urges that the failure to make contribu-
tions to the funds violated the Act in that it amounted to a
unilateral change in the terms of the collective-bargaining
agreement both during the term of the contract and after it
expired without notice to and bargaining with the Union.
General Counsel argues that Respondent’s actions under-
mined the Union and destroyed its majority status and there-
by served as a repudiation of the collective-bargaining agree-
ment. General Counsel’s brief states, ‘‘This attempt to under-
mine Local 455 was further evidenced in the RM petition
filed by the Employer on April 26, 1988, in Case No. 29–
RM–762, which was later dismissed by the Region.’’ The
brief concludes, ‘‘Considering the unheeded arbitration
awards; the signed, but still uncomplied with, Confession of
Judgment; and the dismissed RM petition, it can be con-
cluded that the Employer, in bad faith, caused a repudiation
of the collective bargaining agreement and violated Section
8(a)(5) of the Act.’’
General Counsel cites Willis Electric, 269 NLRB 1145
(1984) (employer violated the Act by sending a letter termi-
nating its collective-bargaining agreement with the union be-
fore the expiration date); Emsings Supermarket, 284 NLRB
302 (1987) (employer violated the Act by discontinuing pay-
ments to fund, discontinuing payments to employees for va-
cations and by failing to give union notice of intention to
close operations); Wer-Coy Fabrication Co., 268 NLRB 907
(1984) (employer violated the Act after stating that he
wished to be relieved of the contract by ceasing to make re-
ports and payments to fringe benefit funds, ceasing to refer
new employees to the union, not adhering to the contract in
making job assignments and refusing an audit of his payroll
records); Pacific Sun, 274 NLRB 1230, 1250 (1985) (em-
ployer violated the Act by sending written notice terminating
collective-bargaining agreement and then making unilateral
changes without negotiating and by withdrawing recognition
from the union); and NLRB v. Katz, 369 U.S. 736 (1962).
I note that none of these cases presented an issue of deferral
to a contractual arbitration procedure.
Respondent’s argument, in essence, is that it has partici-
pated in the arbitration procedure, signed the confession of
judgment, and has sent contributions whenever it could af-
ford to do so. As stated above, I find that there is no evi-
dence in the record to show just what Respondent could af-
ford to pay, and I am not satisfied that Respondent has
shown that it had insufficient funds to meet its obligations
to the funds. However, that is not dispositive of the issues.
The evidence does not show that Respondent has refused to
abide by any other provisions of the collective-bargaining
agreement in a consistent and repeated manner. Respondent
has not withdrawn recognition from the Union nor has it
taken any action which could fairly be interpreted as a repu-
diation of the contract.
I conclude that the issue of Respondent’s failure to make
contributions to the funds should be deferred to the arbitra-
tion process chosen by the parties in their collective-bargain-
ing agreement. The arbitration awards were introduced into
evidence by General Counsel. The arbitration proceedings
appear to have been fair and regular, all parties have agreed
to be bound, and the decision of the arbitrator is not clearly
repugnant to the purposes and policies of the Act. Spielberg
Mfg. Co., 112 NLRB 1080 (1955). The contractual issue par-
allels the unfair labor practice issue—the failure to make
contributions to the funds—and the arbitrator was presented
with the relevant facts. Finally, the General Counsel has not
shown that the standards for deferral have not been met. Olin
Corp., 268 NLRB 573 (1984). I note that the Board has held
that a Respondent’s failure immediately to comply with the
award is insufficient reason to decline to defer to an arbitra-
tion award. Malrite of Wisconsin, 198 NLRB 241 (1972),
enfd. in relevant part 494 F.2d 1136 (D.C. Cir. 1974).
2. Denial of access and threats
General Counsel contends that Respondent violated the
Act by denying union representatives access to its facility in
that access has been provided for by the collective-bar-
gaining agreement and has been established by past practice
between the parties. General Counsel further contends that
Steve Degliuomini unlawfully threatened the union represent-
atives with bodily harm in front of the employees. Finally,
General Counsel argues that Respondent violated the Act
when it threatened to close the shop if the employees en-
gaged in a strike protected by the collective-bargaining
agreement.
Respondent urges that it did not deny access to the rep-
resentatives because the provisions requiring access pursuant
to the collective-bargaining agreement had not been met. Re-
spondent contends that the employees were conducting an il-
legal sitdown strike to cause Respondent to sign the confes-
sion of judgment. Respondent argues that the evidence does
not show that Degliuomini threatened the union agents, but
rather that the agents threatened Respondent by storming its
facility. Finally, Respondent denies that it threatened its em-
ployees with plant closure.
As I stated above, I credit the testimony of General Coun-
sel’s witnesses concerning the events of March 1, 1988, and
I do not credit Respondent’s denials. Thus, I find that the
Union had received questions and complaints from employ-
ees of Respondent about their benefits in light of Respond-
ent’s failure to make contributions to the funds, and that Re-
spondent continued its failure to make contributions even
though it had been ordered to do so in several arbitration
awards. As part of the Union’s attempts to obtain the proper
contributions, it sought the signature of an officer of Re-
spondent on a confession of judgment. On March l, 1988,
union agents went to the shop to talk to the employees about
the fund contributions and to induce them to strike to obtain
Respondent’s compliance with the arbitration awards and the
collective-bargaining agreement. The employees had ques-
tions about the funds and stood talking to the union agents.
When Steve Degliuomini arrived at the shop, the employees
were talking to three union representatives in the doorway of
the shop. The union agents made no threat to Degliuomini,
88515TH AVENUE IRON WORKS
6 Respondent attempts to draw a distinction between striking to ensure pay-
ment to the funds and striking to obtain Respondent’s signature to the confes-
sion of judgment. The Union had obtained arbitration awards entitling it to the
delinquent contributions and it required Respondent’s signature to the confes-
sion to pursue its legal remedies further. Thus the confession of judgment was
a part of the enforcement mechanism to effect payments to the funds.
7 Respondent’s brief insinuates that there was something improper in the
presence of three, and for a time, four union agents. In view of the Union’s
previous experience with Respondent, it may have felt that there was safety
in numbers. See 15th Avenue Iron Works, 279 NLRB 643, 654 (1986).
but he emerged from his car cursing and threatening to close
the plant down and put a lock on the door, threatening to
kick the union agents if he ever saw them again in the shop
and telling the Union to stay out of his shop.
In its opening statement at the hearing, Respondent argued
that all the issues raised by the complaint could be deferred
to arbitration. Although Respondent’s brief does not argue
that the denial of access should be deferred to arbitration, I
shall nevertheless consider that question. The denial of ac-
cess took place during an incident when Respondent also
threatened the union agents with bodily harm and threatened
to close the plant. The entire incident is a unified transaction
involving identical issues of credibility and interpretation.
The issue of denial of access is intertwined with the issues
concerning threat of bodily harm and plant closing. A read-
ing of the collective-bargaining agreement does not reveal
any basis for deferring the threats of bodily harm and plant
closing to arbitration. I find that it would be inappropriate to
defer the breach of the access clause to the arbitration proc-
ess of the collective-bargaining agreement. Deferral is inap-
propriate where alleged violations that cannot be deferred to
arbitration are intertwined with alleged violations that may
be deferred. International Harvester Co., 271 NLRB 647
(1984).
The plant visitation clause of the collective-bargaining
agreement quoted above specifies that union agents may
enter the shop when ‘‘employees are working.’’ Respondent
urges that this means the men must actually be bending over
their tasks for the union agents to be permitted to enter the
premises. Under Respondent’s interpretation of the clause, if
the employees pause to talk to their representatives they are
not working and the union agents must leave. To state this
proposition is to realize that it is false. Manifestly, once the
union representatives enter the premises to perform their law-
ful functions, the employees must be permitted to talk to
them or the whole purpose of the visitation clause would be
nullified. I find that the purpose of the phrase ‘‘at any time
during which any employees are working’’ is to establish the
Union’s right to enter the shop during woring hours while
unit members are on the premises. Respondent urges that the
phrase ‘‘investigating complaints and/or working conditions’’
must be given a narrow reading. The credible testimony
shows that the Union had received questions and complaints
about unit members’ benefits in the funds and that the Union
was discussing these matters with the employees on the
morning of March l, 1988, when its agents were told to leave
Respondent’s premises. Thus, even under a narrow reading
of the collective-bargaining agreement, the union representa-
tives were properly on the shop premises. Moreover, the evi-
dence shows that Respondent consistently permitted union
agents to speak to employees on the shop floor both before
and since March l, 1988, without requiring that the conversa-
tions be for the purpose of investigating complaints or work-
ing conditions. It is clear, especially from the testimony of
Steve Degliuomini, that the custom and practice of the par-
ties in their administration of the collective-bargaining agree-
ment was that union representatives could have access to
speak to the employees without regard to the purpose of their
visit.
Further, the collective-bargaining agreement provides that
if Respondent fails to make timely contributions to the funds,
the Union may at any time after delivery of 10 days’ written
notice to Respondent ‘‘strike and remove its members from
the plant.’’ When it was ordered to leave the shop, the Union
was doing what Respondent had expressly agreed it could
do, it was removing its members from the plant because Re-
spondent had not made the contributions to the funds.6 Con-
trary to Respondent’s contentions, there is no evidence that
the brief time the union agents spent in the shop doorway
with the employees amounted to a sitdown strike.
I conclude that under the contract as it had been adminis-
tered by the Union and Respondent, the union representatives
had the right to be on the premises on March l, 1988, when
they were ordered to leave and told never to come back to
the shop again. Thus, I find that Respondent violated Section
8(a)(1) and (5) by denying access to the Union. R. C. Cobb,
Inc., 231 NLRB 99, 104 (1977); Tom’s Ford, 253 NLRB
888, 893 (1980).
The credible evidence clearly establishes that Steve
Degliuomini threatened to kick the union representatives
when they were at the shop on March l, 1988, talking to the
employees. Contrary to Respondent’s argument that the
Union stormed the shop and that its presence was intimi-
dating, I find that the union agents at all times conducted
themselves in a peaceful and proper manner. The only threats
shown to have been made on March l, 1988, were made by
Respondent’s president.7 I find that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening union representatives
with bodily harm in the presence of employees. Marchese
Metal, 270 NLRB 293, 296 (1984).
The credible evidence establishes that when the union
agents told Steve Degliuomini on March 1, 1988, that the
employees were going to strike due to the problem with the
funds, Degliuomini said that if the employees wanted to go
on strike he could put a lock on the door and ‘‘I’ll close the
place down.’’ The collective-bargaining agreement provides
that if Respondent is delinquent in its contributions to the
funds, the Union may send a 10-day strike notice and at any
time thereafter without further notice the employees may go
out on strike. The evidence shows that the Union sent the
required notice and that thereafter Respondent continued de-
linquent in its contributions to the funds. On March l, 1988,
the employees had the right under the collective-bargaining
agreement to strike the Respondent. The strike was precip-
itated by Respondent’s failure not only to make the contribu-
tions but also to execute the confession of judgment pursuant
to a number of arbitration awards that had ordered it to make
the overdue contributions. The confession of judgment was
the means whereby the Union sought to enforce the arbitra-
tion awards and assure that the funds would be paid. When
Respondent threatened to close the plant if the employees ex-
ercised their rights under the collective-bargaining agreement,
it violated Section 8(a)(1) of the Act.
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
l. The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees including installer employees
employed at the Employer’s 1676 61st Street, Brook-
lyn, New York facility, but excluding all office clerical
employees, professional employees, guards and super-
visors as defined in the Act.
2. At all times material, the Union has been the exclusive
representative of all employees within the appropriate unit
described above for purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
3. By denying union agents access to its facility, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
4. By threatening union agents with bodily harm in the
presence of its employees and threatening to close its facility
if the employees exercise their right to strike under the col-
lective-bargaining agreement, Respondent violated Section
8(a)(1) of the Act.
5. General Counsel has failed to prove that any other vio-
lations of the Act were committed.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]