CW Storage

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 105 (N.L.R.B. 1994)

105
315 NLRB No. 16
CW STORAGE
CW Associates, d/b/a CW Storage and International
Brotherhood of Teamsters, Local 294, AFL–
CIO. Case 3–CA–18510
Spetember 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge filed by the Union on April 8, 1994,
an amended charge filed on May 9, 1994, and a sec-
ond amended charge filed on May 25, 1994, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint on May 26, 1994, against CW As-
sociates, d/b/a CW Storage, the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act. By letter dated June 15,
1994, the Region notified the Respondent that unless
an answer was filed before the close of business on
June 22, 1994, a Motion for Summary Judgment
would be filed. The Respondent’s general manager re-
sponded in a letter dated June 17, 1994, to the Re-
gional Office. In apparent answer to the complaint, the
letter stated that ‘‘[t]he arrears in payments to the
Teamsters Pension Fund and Health & Hospital Fund
cannot be met under any schedule at this time.’’ The
letter further said, ‘‘Revenues are down 60% month-
ly. . . . [p]ayroll benefits, insurance and utilities leave
us no cushion to settle any past due obligations.’’
On June 28, 1994, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On June
30, 1994, 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 Respond-
ent did not file a response. The allegations in the mo-
tion are therefore undisputed.
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 National Labor Relations
Board’s Rules and Regulations states:
Answer to the complaint; time for filing; con-
tents; allegations not denied deemed admitted—
The respondent shall, within 14 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any allega-
tion in the complaint not specifically denied or
explained in an answer filed, unless the respond-
ent shall state in the answer that he is without
knowledge, shall be deemed to be admitted to be
true and shall be so found by the Board, unless
good cause to the contrary is shown.
The Respondent’s letter in response to the complaint
does not meet the requirements for a sufficient answer
set forth in Section 102.20 of the Board’s Rules and
Regulations. The Respondent’s letter fails specifically
to admit, deny, or explain any of the allegations in the
complaint. To the extent that the letter raises a claim
of financial inability to meet pension obligations in a
collective-bargaining agreement with the Union, it is
well established that such a claim does not present a
legal defense to an allegation that an employer has un-
lawfully failed to abide by the agreement. E.g., Stevens
& Associates Construction Co., 307 NLRB 1403
(1992). In the absence of good cause being shown for
the Respondent’s failure to file a sufficient answer, 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, a partnership, with an office and
place of business in Albany, New York, has been en-
gaged in the operation of a cold-and-dry storage facil-
ity. During the 12-month period preceding issuance of
the complaint, the Respondent in the course and con-
duct of its business operations had gross revenues in
excess of $1 million, of which an amount in excess of
$50,000 was derived from providing services to other
employers located directly outside the State of New
York. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 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
At all times material, the Union has been the exclu-
sive collective-bargaining representative, within the
meaning of Section 9(a) of the Act, of the Respond-
ent’s employees in a unit of all warehousemen and
working foremen employed at the Albany facility. This
unit is appropriate for bargaining within the meaning
of Section 9(b) of the Act.
The Respondent’s recognition of the Union as the
exclusive bargaining representative of the unit employ-
ees has been embodied in a series of collective-bar-
gaining agreements between the Respondent and the
Union, the most recent of which was effective by its
terms for the period from March 7, 1991, to March 6,
1994.
Since about November 15, 1993, the Respondent has
failed and refused to remit contractually required pay-
ments to the Union’s pension fund. Accordingly, we
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide for payment of
a fixed rate of interest on unlawfully withheld fund payments at the
adjudicatory stage of a proceeding. We leave to the compliance stage
the question whether the Respondent must pay any additional
amounts into the benefit funds in order to satisfy our ‘‘make-whole’’
remedy. Any additional amounts shall be determined in the manner
set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979).
2 Member Cohen would find that any reimbursement to employees
for payments that employees have made to the pension fund would
constitute a setoff to the amount that the Respondent owes to the
pension fund.
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.’’
find that the Respondent violated Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By failing and refusing since about November 15,
1993, to remit contractually required payments to the
Union’s pension fund, the Respondent has engaged in
unfair labor practices 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. Specifi-
cally, we shall order that the Respondent make unit
employees whole by paying all contractually required
contributions to the Union’s pension fund that the Re-
spondent has unlawfully failed to make since Novem-
ber 15, 1993.1 In addition, the Respondent shall reim-
burse unit employees for any expenses ensuing 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 pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).2
ORDER
The National Labor Relations Board orders that the
Respondent, CW Associates, d/b/a CW Storage, Al-
bany, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to make contractually re-
quired payments to the Union’s pension fund for em-
ployees in the following unit:
All warehousemen and working foremen em-
ployed at the Albany facility.
(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) Make whole unit employees in the manner set
forth in the remedy section of this decision, by making
all contractually required contributions to the Union’s
pension funds that the Respondent has unlawfully
failed to make and by reimbursing employees for any
expenses ensuing from the Respondent’s failure to
make the required contributions, all in the manner set
forth in the remedy section of this decision.
(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 of backpay
due under the terms of this Order.
(c) Post at its facility in Albany, New York, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent,
shall be posted immediately upon receipt and main-
tained 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 al-
tered, 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 and refuse to make pension fund
payments which are required by our collective-bargain-
ing agreement with International Brotherhood of
Teamsters, Local 294, AFL–CIO, for employees in the
following unit:
All warehousemen and working foremen em-
ployed at the Albany facility.
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.
107CW STORAGE
WE WILL make whole unit employees by making all
contractually required contributions to the Union’s
pension fund that we have unlawfully failed to make
and by reimbursing employees for any expenses ensu-
ing from the Respondent’s failure to make the required
contributions.
CW ASSOCIATES, D/B/A CW STORAGE