A. Black & Co.

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 585 (N.L.R.B. 1993)

585
313 NLRB No. 71
A. BLACK & CO.
1 The correct citation to Intermountain Rural Electric Assn. in sec.
III of the judge’s decision is 305 NLRB 783 (1991).
2 The General Counsel excepts only to the judge’s failure to state
in the remedy section of his decision and to include a provision in
his recommended Order that the Respondent has the affirmative con-
tractual duty to notify the Union of newly hired employees. We
agree with the General Counsel’s exceptions and shall modify the
recommended Order accordingly.
1 Virtually all of this brief relates to the answer filed by the Re-
spondent to the complaint which averred that the Board’s jurisdiction
is preempted by ‘‘the Bankruptcy Laws.’’ The brief cites Frederick
Iron & Steel, 303 NLRB 514 (1991), in support of General Coun-
sel’s view that that averment lacks merit. Of more immediate rel-
evance to the case before me is the decision in Crest Litho, 308
NLRB 108 (1992), also cited in General Counsel’s brief and which,
inter alia, makes clear that the Respondent has the burden of proving
that it met the requirements of the Bankruptcy Code in seeking relief
as to its conduct after a bankruptcy petition is filed. No one ap-
peared at the hearing to represent the Respondent. No evidence thus
was offered in support of the affirmative defense in the Respond-
ent’s answer, and I, therefore, find that it lacks merit.
A. Black & Co., Inc. and Local 277, International
Brotherhood of Teamsters, AFL–CIO. Case 2–
CA–25823
November 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 3, 1993, Administrative Law Judge
James F. Morton issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, A.
Black & Co., Inc., New York, New York, shall take
the action set forth in the Order as modified.
1. Insert the following as new paragraph 2(b) and
reletter the subsequent paragraphs.
‘‘(b) Notify the Union as to newly hired employees
as required by the collective-bargaining agreement.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
Local 277, International Brotherhood of Teamsters,
AFL–CIO by failing to make contractually required
welfare fund and pension fund payments for you and
by failing to notify Local 277 when we hire employ-
ees.
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 you whole with interest, and also the
contractual benefit funds for any losses resulting from
our failure to make payments to those funds.
WE WILL notify the Union as to newly hired em-
ployees as required by the collective-bargaining agree-
ment.
A. BLACK & CO., INC.
Margit Reiner, Esq., for the General Counsel.
Ann Shulman, Esq. (Spivak, Lipton, Watanabe, Spivak &
Moss), of New York, New York, for Local 277, Inter-
national Brotherhood of Teamsters, AFL–CIO.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
amended complaint alleges that A. Black & Co., Inc. (the
Respondent) has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the National Labor Re-
lations Act (the Act) by having refused to bargain collec-
tively with Local 277, International Brotherhood of Team-
sters, AFL–CIO (the Union) in that it unilaterally modified
parts of its collective-bargaining agreement with the Union.
In particular, the Respondent is alleged to have failed to
make required payments to benefit funds and failed to notify
the Union that it had hired new employees, as required.
I heard this case in New York, New York, on August 10,
1993. On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
brief filed by the General Counsel,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent has been engaged in the nonretail sale of
floral supplies at its place of business in New York City. In
its operations annually, it meets the Board’s standard for as-
serting jurisdiction. I thus find that it is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The answer, filed on behalf of the Respondent by Robert M.
Kerrigan, Esq., contained a frivolous denial of the allegation that the
Union is a labor organization. It also frivolously denied, as is appar-
ent from the uncontroverted evidence, that the contractual unit is ap-
propriate and that the Respondent has failed to make benefit fund
payments as required by its contract with the Union. Kerrigan’s con-
duct, on that matter and on others, raises a serious question as to
his capacity to represent clients before the Board, as the supple-
mental formal papers in evidence disclose. Kerrigan did not appear
at the hearing and did not file a motion to withdraw. Instead he took
it on himself to ‘‘tender his withdrawal’’ at the last minute. Yet he
continued thereafter to write letters of protest. In one of those letters,
he used a derogatory name, which he put in quotation marks, in
place of the surname of a member of General Counsel’s staff. He
has never apologized for that. He offered late and different reasons
for his purported unavailability to attend the hearing. He represented
in one letter that he was unavailable for any ‘‘afternoon appoint-
ments’’ in the weeks of August 9 and August 20; yet he transmitted,
via fax, two letters on the afternoon of August 9. A warning should
be sent him that any similar conduct on his part will result in dis-
ciplinary action.
3If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
II. LABOR ORGANIZATION
The testimony and documentary evidence offered by the
General Counsel establish clearly that the Union is a labor
organization as defined in Section 2(5) of the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union for many years has represented a unit of sales
employees, packers, drivers, and porters employed by the Re-
spondent at its place of business in New York City. Its most
recent signed collective-bargaining agreement with the Re-
spondent covering this unit was effective January 16, 1990,
to January 15, 1993. I find that this unit is an appropriate
unit for purposes of collective bargaining. M. J. Santulli
Mail Services, 281 NLRB 1288, 1293–1294 (1986).
The above contract required the Respondent, inter alia, to
make monthly contributions, on behalf of each unit em-
ployee, to both the trustees of the Teamsters Local 277 Wel-
fare Fund (Welfare Fund) and the trustees of the Teamsters
Local 277 Pension Fund (Pension Fund). The agreement fur-
ther required the Respondent to notify the Union, on hiring
new employees, of the dates such new employees are hired.
The unrebutted testimony discloses that the Respondent, in
late 1991, laid off all but 3 of the approximately 12 unit em-
ployees and that, in early January 1992, it had several new
employees working at its facility, doing the same type work
as the unit employees did. The Union has never received no-
tice from the Respondent that it had hired these new unit em-
ployees.
General Counsel proffered testimony and documentary evi-
dence which were uncontroverted and which established that,
in January 1992 and since, the Respondent has failed to
remit to either the Welfare Fund or the Pension Fund any
moneys for any of its employees in the unit described above
who were working for it.
By failing to make such payments, the Respondent has en-
gaged in unfair labor practices as defined in Section 8(a)(1)
and (5) of the Act. See Crest Litho, supra.
By having unilaterally abrogated its contractual obligation
to notify the Union as to newly hired employees, the Re-
spondent has thereby engaged in an unfair labor practice
under Section 8(a)(1) and (5) of the Act. Cf. Intermountain
Rural Electrical Assn., 305 NLRB 283 (1991), where the
Board found that the employer there unlawfully had imple-
mented changes in an established overtime policy.
The foregoing unfair labor practices affect commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
The Respondent shall be ordered to reimburse its unit em-
ployees for any expenses ensuing from its unlawful failure
to make contractually required payments to the Welfare Fund
and the Pension Fund. Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980). Interest on amounts due unit em-
ployees shall be computed in the manner prescribed in New
Horizon for the Retarded, 283 NLRB 1173 (1987). The Re-
spondent shall also be ordered to make the contractually re-
quired benefit fund payments it unlawfully failed to make,
leaving to the compliance stage of this case the question
whether the Respondent must pay any additional amounts
into the funds in order to satisfy a ‘‘make-whole’’ remedy.
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, A. Black & Co., Inc., New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good-faith with Local 277,
International Brotherhood of Teamsters, AFL–CIO by failing
to make contractually required payments to the trustees of
the Local 277 Welfare Fund and to the trustees of the Local
277 Pension Fund for its employees in the appropriate bar-
gaining unit of the Respondent’s employees as set out in the
collective-bargaining agreement between the Respondent and
the Union, and by failing to notify the Union as to newly
hired employees as it is obligated to do under the collective-
bargaining agreement.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the the policies of the Act.
(a) Make whole, in the manner set forth in the remedy
section of this decision, unit employees and the Welfare and
Pension Funds for losses resulting from the Respondent’s
failure to make the required payments to the respective trust-
ees of those funds.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
587A. BLACK & CO.
4 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.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility in New York city, copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the notice on
forms provided by the Regional Director for Region 2, after
being signed by 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 cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent 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 Respondent has
taken to comply.