Able Aluminum Co.

National Labor Relations Board - Board Decisions

Aug 23, 1996

321 N.L.R.B. 1071 (N.L.R.B. 1996)

1071
321 NLRB No. 149
ABLE ALUMINUM CO.
1 The charge, amended charge, complaint, and the General Coun-
sel’s letters of April 11, 1995, and February 12, 1996, were sent by
certified mail, but the Respondent did not accept delivery and the
documents were returned by the United States Postal Service as ‘‘re-
fused.’’ Failure or refusal to accept delivery of certified mail will
not be allowed to defeat the purposes of the Act. Michigan Expedit-
ing Service, 282 NLRB 210 fn. 6 (1986). 2 See, e.g., Jay-Lor Drains Maintenance, 300 NLRB 464 (1990).
Able Aluminum Co., Inc. and National Organiza-
tion of Industrial Trade Unions, Local 72,
IPEU. Case 29–CA–18715
August 23, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon a charge filed November 25, 1994, and an
amended charge filed December 19, 1994, by the Na-
tional Organization of Industrial Trade Unions, Local
72, IPEU, the General Counsel of the National Labor
Relations Board issued a complaint on January 5,
1995, against Able Aluminum Co., Inc. (the Respond-
ent), alleging that it has violated Section 8(a)(5) and
(1) of the National Labor Relations Act.1 Counsel for
the General Counsel, by letter dated April 11, 1995,
advised the Respondent that if an answer to the com-
plaint was not filed by April 25, 1995, counsel for the
General Counsel would file a Motion for Summary
Judgment. On April 20, 1995, Curtis Arditi, president
of the Respondent, wrote to counsel for the General
Counsel advising her that ‘‘we have an agreement with
the Union for a payment system to bring these ac-
counts up to date.’’ The Respondent neither filed an
answer to the complaint nor requested any extension of
time to file an answer. On February 5, 1996, Daniel
Lasky, administrator of the National Organization of
Industrial Trade Unions Insurance Trust Fund and Pen-
sion Fund, advised counsel for the General Counsel
that the Respondent has not been complying with the
alleged payment agreement reached between the Union
and the Respondent. By letter dated February 12, 1996,
counsel for the General Counsel informed the Re-
spondent that its April 20, 1995 letter did not qualify
as an answer, and advised the Respondent that unless
an answer was received by February 29, 1996, a Mo-
tion for Summary Judgment would be filed.
On May 6, 1996, the General Counsel filed a Mo-
tion for Summary Judgment. On May 8, 1996, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that an answer to a complaint shall specifi-
cally admit, deny, or explain each of the facts alleged
in the complaint unless the respondent is without
knowledge, in which case it shall so state. Section
102.20 further provides that ‘‘any allegation in the
complaint not specifically denied or explained in an
answer filed . . . shall be deemed to be admitted to
be true and shall be so found by the Board.’’
The Respondent’s April 20, 1995 letter does not
constitute an adequate answer to the complaint under
the Board’s Rules because it does not specifically
admit, deny, or explain each of the allegations in the
complaint.2 Further, the Respondent’s letter merely al-
leges the existence of a payment agreement with the
Union ‘‘to bring these accounts up to date.’’ It is well
established that, under Section 8(a)(5) and (1) and Sec-
tion 8(d) of the Act, an employer that is party to an
existing collective-bargaining agreement is obligated to
first obtain the consent of the union before modifying
the terms and conditions of employment established by
that agreement. Nick Robillotto, Inc., 292 NLRB 1279
(1989). Therefore, the Respondent’s claim that it
reached agreement with the Union on a schedule for
paying the delinquent amounts, even if proven, does
not constitute an adequate defense to an allegation that
the Respondent has violated Section 8(a)(5) and (1) by
failing to abide by provisions of its collective-bargain-
ing agreement. Accordingly, we find that the Respond-
ent’s letter has raised no issues warranting a hearing.
In the absence of good cause being shown for the
failure to file an adequate answer, and in the absence
of any material issues warranting a hearing, we grant
the General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, with its principal office and place
of business located at 131-31 Merrick Boulevard,
Springfield Gardens, New York (Springfield facility),
has been engaged in the manufacture and distribution
of vinyl and aluminum products. During the year pre-
ceding the issuance of the complaint, the Respondent,
in the course and conduct of its business operations,
sold and shipped from its Springfield facility vinyl and
aluminum products and related materials valued in ex-
cess of $50,000 directly to points outside the State of
New York. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 J. R. Simplot Co., 311 NLRB 572 (1993); Bethlehem Steel Co.,
136 NLRB 1500 (1962), enfd. in relevant part 320 F.2d 615 (3d Cir.
1963), cert. denied 375 U.S. 984 (1964).
4 Independent Stave Co., 248 NLRB 219, 221 (1980).
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union’s Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production,
maintenance, shipping and receiving employees,
plant clericals and truck drivers, employed at Re-
spondent’s Springfield facility, excluding office
clericals, foremen, watchmen, guards and super-
visors as defined in the Act.
At all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of the unit employees, and has been recognized as
such representative by the Respondent. Recognition
has been embodied in successive collective-bargaining
agreements, the most recent of which was effective by
its terms for the period from April 24, 1993, to April
25, 1996. At all material times, the Union, by virtue
of Section 9(a) of the Act, has been, and is, the exclu-
sive representative of the employees in the unit for the
purpose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment.
B. The Refusal to Bargain
The collective-bargaining agreement described above
contains, inter alia, provisions set forth in schedule
‘‘A’’ which require the Respondent to make periodic
monthly contributions to the Union’s Insurance Trust
Fund and Individual Account Pension Plan (Funds) on
behalf of its unit employees, and dues checkoff provi-
sions set forth in section VII which require the Re-
spondent to deduct dues and fees from the wages of
its unit employees pursuant to valid dues authoriza-
tions and remit the checked off dues and fees to the
Union. These provisions relate to rates of pay, wages,
hours of employment, and other terms and conditions
of employment of unit employees and are mandatory
subjects for the purpose of collective bargaining.
Since about May 28, 1994, the Respondent has
failed and refused to make monthly contributions to
the Funds as required by the collective-bargaining
agreement. The Respondent has engaged in this con-
duct unilaterally, without the consent of the Union, and
in breach of the collective-bargaining agreement. We
find that by this conduct the Respondent has violated
Section 8(a)(5) and (1) of the Act.
Since about May 28, 1994, the Respondent has
failed and refused to remit to the Union dues and fees
which it deducted from its employees’ wages pursuant
to valid dues-checkoff authorizations. Until April 25,
1996, the Respondent engaged in this conduct unilater-
ally, without the Union’s consent, and in breach of its
collective-bargaining agreement. We find that by fail-
ing to remit the checked off dues and fees to the
Union from May 28, 1994, to April 25, 1996, the Re-
spondent has violated Section 8(a)(5) and (1) of the
Act.
C. The Postcontract Expiration Dues-Checkoff
Violation
Although it is well settled that an employer’s obliga-
tion to abide by the terms of a dues-checkoff provision
ceases with the expiration of the contract and the em-
ployer is no longer obligated to honor the employees’
checkoff authorizations,3 once a respondent honors the
employees’ checkoff authorizations and deducts the
dues from the employees’ paychecks it is not entitled
to keep the checked off dues for itself.4 Rather, if the
sums are deducted by the employer pursuant to valid
checkoff authorizations that have not expired or been
revoked, those sums represent dues and fees to which
the union is entitled. By signing checkoff authoriza-
tions, the employees have expressed their desire to
have certain sums deducted from their paychecks and
paid by the employer to a labor organization. By such
action the employees have exercised their Section 7
rights to join and assist a labor organization. We find
that an employer interferes with, restrains, or coerces
employees in the exercise of their Section 7 rights to
join and assist a labor organization in violation of Sec-
tion 8(a)(1) of the Act where it retains for itself dues
that it checked off from employees’ paychecks after
the expiration of a collective-bargaining agreement.
See Talaco Communications, Inc., 321 NLRB 762
(1996). Thus, if the Respondent failed to remit to the
Union any sums it deducted from the employees’ pay-
checks after April 25, 1996, pursuant to valid unex-
pired and unrevoked checkoff authorizations, the Re-
spondent’s failure to remit those sums to the Union in
accordance with the expressed wishes of the employees
violated Section 8(a)(1) of the Act. To the extent that
the employees’ checkoff authorizations may have ex-
pired or been revoked at the expiration of the collec-
tive-bargaining agreement, the Respondent’s retention
of the checked off sums and failure to return those
sums to the employees violated Section 8(a)(1). See
Talaco Communications, Inc., supra. Accordingly, we
leave to the compliance stage of this proceeding the
determination of whether any sums deducted and re-
tained by the Respondent in violation of Section
8(a)(1) after the expiration of the collective-bargaining
1073ABLE ALUMINUM CO.
5 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
6 The Order conforms to the new standard language recently set
forth in Indian Hills Care Center, 321 NLRB 144 (1996).
agreement were deducted pursuant to valid checkoff
authorizations that were not expired or revoked. If the
dues and fees were deducted pursuant to valid checkoff
authorizations that have not expired or been revoked,
the checked off sums shall be remitted to the Union
as set forth in the remedy section of this decision. If
the dues and fees were deducted pursuant to checkoff
authorizations that have expired or been revoked, those
sums shall be returned to the employees.
CONCLUSIONS OF LAW
1. By failing to make contractually required monthly
contributions to the Union’s Insurance Trust Fund and
Individual Account Pension Plan, and by failing to
remit checked off union dues and fees to the Union
prior to expiration of the collective-bargaining agree-
ment, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
2. By failing to remit to the Union and/or the em-
ployees any checked off union dues and fees it has de-
ducted and retained after expiration of the collective-
bargaining agreement, the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(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.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing to remit to
the Union dues and fees that were deducted from the
pay of unit employees pursuant to valid dues-checkoff
authorizations before the expiration of the collective-
bargaining agreement, we shall order the Respondent
to remit such withheld dues and fees to the Union as
required by the agreement, with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987). Having found that the Respondent has violated
Section 8(a)(1) by retaining for itself any dues and fees
deducted from the pay of unit employees after the ex-
piration of the collective-bargaining agreement, the Re-
spondent shall be ordered to remit those sums to the
Union, provided that the dues and fees were deducted
pursuant to valid, unexpired and unrevoked dues-
checkoff authorizations. If the dues and fees were de-
ducted pursuant to expired or revoked checkoff author-
izations, the Respondent shall return any withheld dues
and fees to the employees, with interest as prescribed
in New Horizons for the Retarded, supra.
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) by failing to make contractually re-
quired contributions to the Union’s Insurance Trust
Fund and Individual Account Pension Plan, we shall
order the Respondent to make whole its unit employ-
ees by making all such delinquent contributions, in-
cluding any additional amounts due the Funds in ac-
cordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, the Respondent
shall reimburse unit employees for any expenses ensu-
ing from its failure to make the required contributions,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, supra.5
ORDER6
The National Labor Relations Board orders that the
Respondent, Able Aluminum Co., Inc., Springfield
Gardens, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of the unit
employees by failing and refusing to remit to the
Union dues and fees checked off pursuant to valid
checkoff authorizations prior to the expiration of the
collective-bargaining agreement, and to make required
contributions to the Union’s Insurance Trust Fund and
Individual Account Pension Plan.
(b) Interfering with, restraining, and coercing its em-
ployees in the exercise of their rights to join and assist
a labor organization, by failing to remit to the Union
dues and fees checked off after the expiration of the
collective-bargaining agreement, if the dues were de-
ducted pursuant to the employees’ valid, unexpired,
and unrevoked checkoff authorizations, or by deduct-
ing and failing to return to the employees dues and
fees checked off after the expiration of the collective-
bargaining agreement, if the dues and fees were de-
ducted pursuant to expired or revoked checkoff author-
izations.
(c) In any like or related manner interfering with, re-
straining, 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) Remit to the Union all dues and fees it deducted
from employees’ pay pursuant to valid dues-checkoff
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.’’
authorizations prior to the expiration of the collective-
bargaining agreement, in the manner set forth in the
remedy section of the decision.
(b) Remit to the Union, or to the employees, as de-
termined at the compliance stage of this proceeding, all
dues and fees it deducted from employees’ pay after
the expiration of the collective-bargaining agreement,
in the manner set forth in the remedy section of the
decision.
(c) Remit the delinquent Union Insurance Trust
Fund and Individual Account Pension Plan contribu-
tions, including any additional amounts due the Funds,
and reimburse the unit employees for any expenses en-
suing from the Respondent’s failure to make the re-
quired payments, in the manner set forth in the remedy
section of the decision.
(d) On request, bargain with National Organization
of Industrial Trade Unions, Local 72, IPEU as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time production,
maintenance, shipping and receiving employees,
plant clericals and truck drivers, employed at Re-
spondent’s Springfield facility, excluding office
clericals, foremen, watchmen, guards and super-
visors as defined in the Act.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its facility in Springfield Gardens, New York, copies
of the attached notice marked ‘‘Appendix.’’7 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 Re-
spondent 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. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since November 25, 1994.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent 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 refuse to bargain with the Union as
the exclusive collective-bargaining representative of
our unit employees by failing and refusing to remit to
the Union dues and fees we deducted pursuant to valid
checkoff authorizations prior to the expiration of the
collective-bargaining agreement, and to remit required
contributions to the Union’s Insurance Trust Fund and
Individual Account Pension Plan.
WE WILL NOT interfere with, restrain, or coerce you
in the exercise of your rights to join and assist a labor
organization, by failing to remit to the Union dues and
fees checked off after the expiration of the collective-
bargaining agreement, if the dues and fees were de-
ducted pursuant to employees’ valid, unexpired, and
unrevoked checkoff authorizations, or by deducting
and failing to return to the employees dues and fees
checked off after the expiration of the collective-bar-
gaining agreement, if the dues were deducted pursuant
to expired or revoked checkoff authorizations.
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 remit to the Union all dues and fees we
deducted from employees’ pay pursuant to valid dues-
checkoff authorizations prior to the expiration of the
collective-bargaining agreement, with interest.
WE WILL remit to the Union, or to the employees,
as determined at the compliance stage of this proceed-
ing, any dues and fees we deducted from employees’
pay after the expiration of the collective-bargaining
agreement, with interest.
WE WILL remit the delinquent Union Insurance Trust
Fund and Individual Account Pension Plan contribu-
tions, including any additional amounts due the Funds,
and WE WILL reimburse the unit employees for any ex-
penses ensuing from our failure to make the required
payments, with interest.
WE WILL, on request, bargain with National Organi-
zation of Industrial Trade Unions, Local 72, IPEU as
the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
1075ABLE ALUMINUM CO.
All full-time and regular part-time production,
maintenance, shipping and receiving employees,
plant clericals and truck drivers, employed at our
Springfield facility, excluding office clericals,
foremen, watchmen, guards and supervisors as de-
fined in the Act.
ABLE ALUMINUM CO., INC.