Abernathy Excavating

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 68 (N.L.R.B. 1993)

68
313 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In his Motion for Summary Judgment, the General Counsel noted
that the collective-bargaining agreement did not contain a provision
specifying the day on which the employees should be paid. Because
the Respondent admits that it changed the payday from Thursday to
Friday and does not deny that such a change is a mandatory subject
of bargaining and that it made the change without notice to and bar-
gaining with the Union, we find that the Respondent’s unilateral
change of payday violated Sec. 8(a)(5) and (1) of the Act. American
Ambulance, 255 NLRB 417, 421 (1981).
Abernathy Excavating, Inc. and International Union
of Operating Engineers, Local No. 77, AFL–
CIO. Case 5–CA–23192
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Union on December 9,
1992, the General Counsel of the National Labor Rela-
tions Board issued a complaint on January 22, 1993,
against Abernathy Excavating Co., the Respondent, al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. On February 5,
1993, the Respondent filed its answer admitting in part
and denying in part the allegations of the complaint.
On August 18, 1993, the General Counsel filed a
motion to transfer proceeding to the Board and for
summary judgment. On August 23, 1993, the Board
issued an order transferring proceeding to the Board
and a Notice to Show Cause why the motion should
not be granted. The Respondent failed to file a re-
sponse. The allegations in the motion are therefore un-
disputed.
Ruling on Motion for Summary Judgment
The complaint alleges, inter alia, that during the
term of the collective-bargaining agreement between
the Respondent and the Union, the Respondent failed
to continue in effect the terms and conditions of the
collective-bargaining agreement by discontinuing its
contributions to the health and welfare fund; changing
health insurance carriers; changing the unit employees’
payday from Thursday to Friday; ceasing the 24-hour
workweek guarantee; ceasing the use of the Union’s
hiring hall; freezing payments for accrued vacation
pay; and discontinuing the provision of vacation bene-
fits without reaching agreement with the Union.
In its answer, the Respondent does not specifically
deny certain allegations, admits certain other allega-
tions, and alleges certain justifications for its actions.
The Respondent does not deny that since about May
1988 it has recognized the Union as the exclusive col-
lective-bargaining representative of the unit employees
by entering into a series of collective-bargaining agree-
ments, the most recent effective by its terms for the
period May 1, 1988, to April 30, 1991; that since on
or about August 16, 1991, the Union has been certified
as the exclusive collective-bargaining representative of
the unit employees; and that on February 25, 1992, the
Respondent executed an addendum to its collective-
bargaining agreement with the Union, which extended
that agreement from February 24, 1992, through Au-
gust 31, 1993. The Respondent admits that it discon-
tinued contributions to the health and welfare fund,
changed insurance carriers, changed the payday from
Thursday to Friday, discontinued all work guarantees,
failed to pay accrued vacations, and failed to pay vaca-
tion benefits. With respect to the hiring hall allegation,
the Respondent acknowledges that ‘‘[i]n one instance
we mistakenly hired an operator we were lead [sic] to
believe was furnished through the Hall. As soon as we
discover [sic] this was not true, he was immediately
‘let go.’’’ The Respondent does not deny that the mat-
ters at issue relate to wages, hours, and conditions of
employment of the unit employees and are mandatory
subjects for the purposes of collective bargaining. Fur-
ther, the Respondent does not deny that the changes in
these matters commenced on or about June 9, 1992.
The Respondent asserts, however, that it failed to con-
tinue the contractual provisions in effect because it is
‘‘approaching bankruptcy [emphasis in original],’’ its
funds were insufficient, and the ‘‘terrible recession that
the construction industry is in has strained our relation-
ship.’’
The contractual provisions at issue are mandatory
subjects of bargaining. A unilateral modification or re-
pudiation of such provisions during a contract term is
a violation of Section 8(a)(5). Rapid Fur Dressing, 278
NLRB 905 (1986). The Respondent’s only defense is
that its financial condition justified its actions. It is
well established, however, that economic inability to
pay does not constitute an adequate defense to an alle-
gation that an employer has violated Section 8(a)(5) by
failing to abide by the provisions of a collective-bar-
gaining agreement. Crest Litho, 308 NLRB 108
(1992). Further, although the Respondent alleged in its
answer that it was ‘‘approaching bankruptcy,’’ the Re-
spondent has failed to establish that it filed a bank-
ruptcy petition. Big Track Coal Co., 300 NLRB 951,
952 (1990). Accordingly, we find that the Respondent
has failed to present a meritorious defense to its un-
lawful conduct, and grant the General Counsel’s Mo-
tion for Summary Judgment.1
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 Bladensburg, Maryland, has been
engaged in the business of providing grading and haul-
ing of earth and other material. Annually, the Respond-
ent, in the course and conduct of its business oper-
69ABERNATHY EXCAVATING
2 See Merryweather Optical, 240 NLRB 1213, 1216 fn. 7 (1979).
ations, has provided services valued in excess of
$50,000 in locations other than the State of Maryland.
During the same period, the Respondent, in the course
and conduct of its business operations, has purchased
and received products valued in excess of $5000 di-
rectly from points outside of the State of Maryland.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organi-
zation 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 operating engineers, mechanics and welders
employed by the Respondent from its
Bladensburg, Maryland facility; but excluding all
other employees, shop laborers and clericals, of-
fice clericals, truck drivers, and guards and super-
visors as defined in the Act.
From approximately May 1988 until April 30, 1991,
the Respondent, an employer engaged in the building
and construction industry, granted recognition to the
Union as the exclusive collective-bargaining represent-
ative of unit employees by entering into successive
collective-bargaining agreements with the Union, with
the most recent agreement effective by its terms for the
period of May 1, 1988, to April 30, 1991, without re-
gard to whether the majority status of the Union had
ever been established under the provisions of Section
9(a) of the Act. On or about August 16, 1991, the
Union was certified as the exclusive bargaining rep-
resentative of the unit employees. At all material times,
based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of
the unit employees.
On February 25, 1992, the Respondent and the
Union executed an ‘‘Addendum’’ to the collective-bar-
gaining agreement, which extended that agreement
from February 24 through August 31, 1992. Since on
or about June 9, 1992, the Respondent has failed to
continue in effect all the terms and conditions of the
collective-bargaining agreements by discontinuing its
contributions to the health and welfare fund; changing
health insurance carriers; ceasing the 24-hour work-
week guarantee; ceasing the use of the Union’s hiring
hall; freezing payments for accrued vacation pay; and
discontinuing the provision of vacation benefits. Simi-
larly, the Respondent changed the unit employees’
payday from Thursday to Friday without notice to or
bargaining with the Union. These unilateral changes
relate to wages, hours, and conditions of employment
of the unit employees and are mandatory subjects for
the purposes of collective bargaining. Further, the Re-
spondent engaged in this conduct without agreement
with the Union.
We find that, by the acts and conduct described
above, the Respondent has been failing and refusing to
bargain collectively and in good faith with the exclu-
sive collective-bargaining representative of its employ-
ees in violation of Section 8(a)(5) and (1) of the Act
as alleged.
CONCLUSION OF LAW
By failing to continue in effect all the terms and
conditions of its collective-bargaining agreements with
the Union, i.e., by discontinuing its contributions to the
health and welfare fund; changing health insurance
carriers; ceasing the 24-hour workweek guarantee;
ceasing the use of the Union’s hiring hall; freezing
payments for accrued vacation pay; and discontinuing
the provision of vacation benefits; and by unilaterally
changing the unit employees’ payday from Thursday to
Friday, the Respondent has committed unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order the Respondent to make the appro-
priate contributions to the health and welfare fund to-
gether with any liquidated damages required as a result
of the obligations of the Respondent under the collec-
tive-bargaining agreement.2 This shall include reim-
bursing employees for any contributions they them-
selves may have made, with interest, for the mainte-
nance of health insurance coverage. Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981). We shall also order the Re-
spondent to make whole unit employees, in the manner
prescribed in Ogle Protection Service, 183 NLRB 682
(1970), for any loss of wages and benefits suffered as
a result of its unlawful repudiation of contractual pro-
visions. We shall further order the Respondent to make
the unit employees whole by paying the accrued vaca-
tion pay and providing vacation benefits. Interest on
amounts owing to unit employees shall be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Abernathy Excavating, Inc., Bladensburg,
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Inter-
national Union of Operating Engineers, Local No. 77,
AFL–CIO as the exclusive collective-bargaining rep-
resentative of an appropriate unit of the Respondent’s
employees, by failing to continue in effect all the
terms and conditions of its collective-bargaining agree-
ment with the Union, by discontinuing its contributions
to the health and welfare fund; by changing health in-
surance carriers; by ceasing the 24-hour workweek
guarantee; by ceasing the use of the Union’s hiring
hall; by freezing payments for accrued vacation pay;
and by discontinuing the provision of vacation bene-
fits; and by unilaterally changing the unit employees’
payday from Thursday to Friday.
(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) Give effect to the terms and conditions of em-
ployment of its collective-bargaining agreement with
the Union.
(b) Make whole, in the manner set forth in the rem-
edy section of this decision, unit employees for any
losses resulting from the Respondent’s failure to con-
tinue in effect the terms and conditions of its collec-
tive-bargaining agreement with the Union. The appro-
priate unit is:
All operating engineers, mechanics and welders
employed by the Respondent from its
Bladensburg, Maryland facility; but excluding all
other employees, shop laborers and clericals, of-
fice clericals, truck drivers, and guards and super-
visors as defined in the Act.
(c) Post at its facility, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of this notice, on forms
provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized represent-
ative, 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 no-
tices 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 or-
dered us to post and abide by this notice.
WE WILL NOT fail to bargain in good faith with the
International Union of Operating Engineers, Local No.
77, AFL–CIO as the exclusive bargaining representa-
tive of an appropriate unit of our employees, by failing
to continue in effect all the terms of our collective-bar-
gaining agreement with the Union, by discontinuing
contributions to the health and welfare fund; by chang-
ing health insurance carriers; by ceasing the 24-hour
workweek guarantee; by ceasing the use of the Union’s
hiring hall; by freezing payments for accrued vacation
pay; and by discontinuing the provision of vacation
benefits; and by unilaterally changing the unit employ-
ees’ payday from Thursday to Friday.
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 give effect to the terms and conditions of
employment of our collective-bargaining agreement
with the Union.
WE WILL make whole unit employees for any losses
resulting from our failure to continue in effect the
terms and conditions of employment of our collective-
bargaining agreement with the Union. The appropriate
unit is:
All operating engineers, mechanics and welders
employed by us from our Bladensburg, Maryland
facility; but excluding all other employees, shop
laborers and clericals, office clericals, truck driv-
ers, and guards and supervisors as defined in the
Act.
ABERNATHY EXCAVATING, INC.