C. F. Eckert, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 868 (N.L.R.B. 1991)

868
301 NLRB No. 120
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See St. Agnes Medical Center, 287 NLRB 242, 256–257 (1987).
2 See Heck’s, Inc., 215 NLRB 765 (1974).
3 We also note the existence of provisions in the applicable collective-bar-
gaining agreement requiring that delinquent employers pay the ‘‘reasonable
costs of collecting [their] delinquent [fund contributions], including attorneys’
fees.’’
Member Cracraft, in agreeing with ordering the Respondent to pay the
Union’s litigation costs, relies only on the fact that at the hearing, the Re-
spondent’s attorney made no statement of defense, did not cross-examine the
General Counsel’s witnesses, and put on no defense witnesses.
4 We shall also modify the judge’s remedy to provide that any additional
amounts owed on the outstanding benefit fund payments, as well as on the
untimely payments made to the benefit funds, shall be calculated in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). We also
modify the judge’s remedy to provide that any amounts due employees and
the Union shall be with interest as set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
C. F. Eckert, Inc. and International Brotherhood of
Painters and Allied Trades, Local 201. Cases 3–
CA–15095 and 3–CA–15512
February 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On July 10, 1990, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, conclu-
sions as modified, to modify the remedy, and to adopt
the recommended Order as modified.
1. The General Counsel and the Charging Party ex-
cept to the judge’s failure to find all the violations al-
leged in the complaint. The complaint alleges in sub-
stance that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to make timely contractually
required fringe benefit fund payments and reports. The
judge declined to include within the scope of his unfair
labor practice findings all months covered by the com-
plaint apparently because the Respondent made lump
sum payments just before the commencement of the
unfair labor practice hearing. The judge also failed to
find that the Respondent violated the Act by failing to
submit reports, as required by the contract, to the
funds. We find merit in the exceptions.
The record indicates that the lump sum payments
were untimely and the reports were not submitted or
were submitted late. A failure-to-make-payments alle-
gation encompasses all contributions that are un-
timely.1 The failure to submit the accompanying re-
ports as required by the collective-bargaining agree-
ment was not contested. We shall amend the Conclu-
sions of Law and recommended Order accordingly.
2. The Charging Party excepts to the judge’s failure
to address and grant the Charging Party’s request for
litigation costs. We find merit in the exception. We
find the Respondent’s defenses to be frivolous,2 on the
basis of the following factors: (1) the Respondent’s
violation of a prior non-Board settlement agreement
concerning matters at issue here; and (2) the Respond-
ent’s failure to present any defense, other than a bare
denial of the complaint allegations.3 We shall include
litigation costs in the recommended Order.4
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 5.
‘‘5. The Respondent has committed unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act by failing to make timely payments to the
pension fund and the joint apprenticeship training fund
since February 1989 and by failing to submit timely
reports to the funds since February 1989, as required
by the collective-bargaining agreement.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, C. F.
Eckert, Inc., Albany, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Refusing to bargain collectively and in good
faith with the International Brotherhood of Painters
and Allied Trades, Local 201, by failing to make time-
ly payments to the Union’s pension fund and joint ap-
prenticeship training fund and by failing to submit
timely reports to the funds, as required by the collec-
tive-bargaining agreement with the Union.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Submit all reports due and pay all delinquent
contributions to the pension fund and the joint appren-
ticeship training fund as provided in its collective-bar-
gaining agreement, plus any additional amounts as
specified in this decision, and pay to the Union the liti-
gation costs incurred in collecting the delinquent fund
contributions, plus interest as specified in this deci-
sion.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
869C. F. ECKERT, INC.
1 The hearing in Case 3–CA–15095 originally opened on October 19, 1989.
At that time, the parties agreed on an informal settlement of the charges,
wherein Respondent agreed to pay the amount owed over a period of time.
When Respondent failed to do so, counsels for Charging Party and General
Counsel moved to reopen the record in this matter. By order reopening record
and rescheduling hearing dated May 14, 1990, I granted said requests.
2 Unless indicated otherwise, all dates referred to herein relate to the year
1989.
3 Actually, the agreement’s term is to expire on April 30, 1990, unless either
side terminates it prior to that time. As no party moved to terminate the agree-
ment prior to that date, it, by its terms, was extended for an additional year.
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 collectively and in
good faith with the International Brotherhood of Paint-
ers and Allied Trades, Local 201, by failing to make
timely payments to the Union’s pension fund and the
joint apprenticeship training fund and by failing to sub-
mit timely reports to the funds as required by our col-
lective-bargaining agreement with the Union which
covers all our journeymen, painters, tapers, paper-
hangers, apprentices and/or any person who uses tools
of the trade other than a principal owner.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole our employees covered by the
union contract by submitting reports and paying all de-
linquent contributions to the pension fund and the joint
apprenticeship training fund as provided in the collec-
tive-bargaining agreement, and by paying to the Union
the litigation costs incurred in collecting the delinquent
fund contributions.
WE WILL make whole our employees covered by the
union contract by reimbursing our covered employees
for any loss of benefits they may have suffered be-
cause of our failure to make the pension and joint ap-
prenticeship training fund contributions required by our
collective-bargaining agreement, with interest.
C. F. ECKERT, INC.
Alfred M. Norek, Esq., for the General Counsel.
Prescott Sook, Esq., for the Respondent.
William Pozefsky, Esq. (Pozefsky, Bramley & Murphy), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on June 7, 1990,1 in Albany, New York.
The complaint and notice of hearing in Case 3–CA–15095
issued on August 21, 1989,2 and was based on an unfair
labor practice charge filed on July 21 by International Broth-
erhood of Painters and Allied Trades, Local 201 (the Union).
The complaint and notice of hearing in Case 3–CA–15512
issued on June 1, 1990, and was based on an unfair labor
practice charge filed on March 15 by the Union. Pursuant to
a motion to consolidate cases filed by Counsel, on June 4,
1990, issued an order consolidating cases, which consoli-
dated these two matters. The consolidated complaint alleges
that the Union and C. F. Eckert, Inc. (Respondent), are par-
ties to a collective-bargaining agreement effective to April
30, 1991 (the agreement), and that the Union is the exclusive
collective-bargaining representative of the following of Re-
spondent’s employees, which constitute an appropriate bar-
gaining unit: ‘‘All journeymen, painters, tapers, paper-
hangers, apprentices, and/or any person who uses the tools
of the trade other than a principal owner.’’ This much Re-
spondent admits. The consolidated complaint also alleges that
since about February 1, and to date, Respondent has failed
and refused to make payments to the Union’s Pension Fund
and Apprenticeship Program, as it is required to do under the
agreement, in violation of Section 8(a)(1) and (5) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation with its principal
office in Albany, New York, where it is engaged as a paint-
ing contractor. During the 12-month period preceding the
issuance of the complaint, Respondent derived gross reve-
nues in excess of $50,000 of which an amount in excess of
$50,000 was derived from providing services to other enter-
prises directly engaged in interstate commerce. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
As stated, supra, the Union is the collective-bargaining
representative for Respondent’s journeymen, painters, tapers,
paperhangers, and apprentices. The Union has had a collec-
tive-bargaining relationship with Respondent for in excess of
20 years. The most recent collective-bargaining agreement
between Respondent and the Union covering these employ-
ees is effective from May 1, 1988, through April 30, 1991.3
Among other things, the agreement provides for specified
contributions by Respondent to the Union’s Pension Fund
and its Joint Apprenticeship Training Fund (JATF). Under
the terms of the agreement, Respondent is obligated to pay
to the Union an amount equal to $2.58 for each hour worked
by the Union’s members, $2.38 for pension and $.20 for the
JATF. It is undisputed that Respondent has failed to make
the required pension payments for the months of June, July,
August, and September and has failed to make the required
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Actually, until shortly before the reopening of this hearing on June 7,
1990, Respondent was substantially in arrears in its pension and JATF obliga-
tions. However, about June 6, 1990, Respondent made substantial payments
to these funds leaving only the above-mentioned months’ balance outstanding.
5 Kraft Plumbing & Heating, 252 NLRB 891 (1980).
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
payments to the JATF in April, May, June, July, August,
September, November, and December.4
In May 1987, the Union filed an unfair labor practice
charge alleging that Respondent violated Section 8(a)(1) and
(5) of the Act by failing to make the required contributions
to the Union. In June 1987, the parties executed a settlement
agreement, together with a notice, providing that Respondent
would make the required payments. The Union filed a simi-
lar charge in June 1988 against Respondent; as a result of
this, the Board reopened the prior matter and issued a con-
solidated complaint in the matter. By letter dated November
30, 1988, counsel for the Union requested that this complaint
be dismissed as Respondent had made the required fringe
benefit contributions. The consolidated complaint was dis-
missed on December 2, 1988. By letter dated March 23,
counsel for the Union wrote to Respondent stating that the
reports and contributions had not yet been received for De-
cember 1988, January and February, stating: ‘‘Please remit
your contributions and reports immediately to avoid any fur-
ther action.’’ By letter dated August 7, the Union wrote to
its counsel (with a copy to Respondent) stating that Respond-
ent was delinquent for the period February through July, ask-
ing counsel to take appropriate action for effecting the col-
lection of these delinquent monies.’’
Where an employer fails and refuses to make contractually
required fringe benefit payments without the consent of the
exclusive bargaining representative of its employees, it has
refused to bargain in good faith in violation of Section
8(a)(1) and (5) of the Act. That is what Respondent has done
and it therefore violated Section 8(a)(1) and (5) of the Act
by failing to make the required pension contributions for
June, July, August and September, and the required JATF
contributions for April, May, June, July, August, September,
November, and December.
CONCLUSIONS OF LAW
1. C. F. Eckert, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Painters and Allied Trades,
Local 201 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All journeymen, painters, tapers, paperhangers, appren-
tices and/or any person who uses the tools of the trade
other than a principal owner.
4. At all times material here the above-named labor orga-
nization has been and is now the exclusive representative of
all employees in the appropriate unit for purposes of collec-
tive bargaining.
5. The Respondent has committed unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act by
failing and refusing to make payments to the employee ben-
efit funds listed below for the period listed below:
Pension Fund—June, July, August and September 1989;
Joint Apprenticeship Training Fund - April, May, June,
July, August, September, November and December
1989.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) of the Act, I shall recommend that it be or-
dered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act: That Re-
spondent remit all contractually required pension and JATF
contributions to the Union. This shall include making em-
ployees whole for any loss of benefits resulting from the Re-
spondent’s failure to make the required payments.5
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, C. F. Eckert, Albany, New York, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by fail-
ing and refusing to make timely payments to the Union’s
Pension Fund and Joint Apprenticeship Training Fund, as re-
quired by its collective-bargaining agreement with the Union.
(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 policies of the Act.
(a) Pay all delinquent contributions to the Funds listed
below and or the periods listed below until the delinquency
is extinguished, as provided by its collective-bargaining
agreement with the Union: Pension Fund—June, July, Au-
gust and September 1989; Joint Apprenticeship Training
Fund—April, May, June, July, August, September, Novem-
ber, and December 1989.
(b) Make whole the unit employees for any loss of bene-
fits they may have suffered by the Respondent’s failure to
transmit pension fund and JATF contributions as required by
the collective-bargaining agreement in the manner set forth
in the remedy section of this decision. The appropriate unit
is:
All journeymen, painters, tapers, paperhangers, appren-
tices and/or any person who ues the tools of the trade
other than a principal owner.
(c) 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
and reports, and all other records necessary to analyze the
amount of money due under the terms of this Order.
871C. F. ECKERT, INC.
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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(d) Post at its facility in Albany, New York, copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Repondent immediately on re-
ceipt 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.