Day's Metal Fab

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1393 (N.L.R.B. 1984)

DAY'S METAL FAB
Mar-Jan, Inc. d/b/a Day's Metal Fab a/k/a Emer-
son Sheet Metal and Sheet Metal Workers
International Association, Local No. 16, AFL-
CIO. Case 36-CA-4459
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union on 24 June
1983 the General Counsel of the National Labor
Relations Board issued a complaint on 3 August
1983 against the Respondent alleging that it has
violated Section 8(a)(1) and (5) of the National
Labor Relations Act. Copies of the charge and
complaint were served on the parties to this pro-
ceeding.
The complaint alleges that on 14 December 1982
the Respondent gave notice to reopen the collec-
tive-bargaining agreement between the Respondent
and the Union which by its terms extended to 31
March 1983 and from year to year thereafter unless
a party gave notice to reopen. The complaint also
alleges that despite repeated requests the Respond-
ent then refused to meet and bargain with the
Union at reasonable times and engaged in general
delaying and stalling tactics to avoid bargaining
with the Union between 1 January and 17 June
1983. The complaint further alleges that since on
or about I April 1983 the Respondent has failed
and refused to continue in effect the wage scales
and other provisions of the above-noted agreement
and has failed to make the required health and wel-
fare and pension trust contributions. The complaint
alleges that all these subjects are mandatory sub-
jects for the purpose of collective-bargaining. The
complaint further alleges that the Respondent im-
plemented the aforementioned changes without
providing the Union notice or an opportunity to
bargain concerning such changes. The Respondent
timely filed an answer and an amended answer to
the complaint, admitting in part and denying in
part the allegations.
On 3 January 1984 the General Counsel filed a
"Motion to Dismiss Allegation of Complaint and
for Summary Judgment." On 29 February 1984 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 has
filed no response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
271 NLRB No. 219
Ruling on Motion to Dismiss Allegation of
Complaint and for Summary Judgment
The Respondent's amended answer to the com-
plaint admits that it was party to a collective-bar-
gaining agreement with the Union which by its
terms extended to 31 March 1983 and from year to
year thereafter unless a party provided notice to
reopen. The Respondent's amended answer further
admits that after it provided notice to reopen the
agreement on 14 December 1982 and despite re-
ceiving repeated requests to bargain the Respond-
ent refused to meet and bargain with the Union at
reasonable times between 1 January and 17 June
1983. The Respondent's amended answer also
admits that since I April 1983 it failed and refused
to continue in effect the wage scales and other pro-
visions of the above-noted agreement and has failed
to make the required health and welfare and pen-
sion trust fund contributions without providing the
Union notice of or an opportunity to bargain con-
cerning such changes. The Respondent also admits
these are mandatory subjects of bargaining.
The Respondent denies the complaint allegation
that it engaged in general delaying and stalling tac-
tics to avoid bargaining with the Union. The Gen-
eral Counsel requests that that portion of the com-
plaint alleging such conduct be dismissed, which
request we hereby grant. The Respondent's amend-
ed answer denies no other factual allegation. Thus,
the General Counsel's complaint raises no disputed
factual issues. The Respondent denies, however,
the conclusory paragraph that alleged the Re-
spondent has violated Section 8(a)(1) and (5) of the
Act.
We find no merit to the Respondent's denial.
Section 8(d) of the Act defines the obligation to
bargain collectively under Section 8(a)(5) as the
duty "to meet at reasonable times and confer in
good faith with respect to . . . the negotiation of
an agreement." The Respondent has expressly con-
ceded that it failed to fulfill this duty by its admis-
sion that after providing notice to reopen its agree-
ment with the Union the Respondent then refused
to meet and bargain with the Union at reasonable
times.
Furthermore, it is well established that an em-
ployer acts in derogation of its bargaining obliga-
tions under Section 8(d) when it unilaterally
changes existing terms and conditions of employ-
ment. NLRB v. Katz, 369 U.S. 736 (1962). It is also
axiomatic that an employer's duty to bargain over
established terms and conditions of employment is
not relieved by the expiration of a collective-bar-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement. I Thus, the Respondent has also
failed to fulfill its 8(a)(5) bargaining obligations
based on its admission that since on or about the
expiration date of the parties' collective-bargaining
agreement it has changed terms and conditions of
employment established under the parties' agree-
ment without providing the Union notice or an op-
portunity to bargain concerning such changes. We
therefore find that no material issues of fact or law
exist in this proceeding which warrant a hearing.
Accordingly, we grant the General Counsel's
motion.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Oregon corporation, is en-
gaged in the construction industry in sheet metal
fabrication and installation. During the past year,
the Respondent purchased materials from outside
the State having value of $50,000. We find that the
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees employed by Respondent, ex-
cluding office clerical employees, guards and
supervisors as defined in the Act.
B. Respondent's Refusal to Bargain and
Unilateral Changes
Between I January and 17 June 1983 the Re-
spondent failed and refused to bargain with the
Union at reasonable times. Since on or about 1
April 1983 the Respondent has also failed and re-
fused to continue in effect wage scales and other
terms and conditions of employment set forth in
the agreement and has failed to make required
health and welfare and pension trust fund contribu-
tions within the meaning of Section 8(a)(5) and (1)
of the Act.
NLRB v. Cauthorne Trucking, 691 F.2d 1023, 1025 (D.C. Cir. 1982);
Rayner v. NLRB, 665 F.2d 970, 977 (9th Cir. 1982); Hinson v. NLRB, 428
F.2d 133, 137 (8th Cir. 1970).
CONCLUSIONS OF LAW
1. Day's Metal Fab is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Sheet Metal Workers International Associa-
tion, Local No. 16, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All employees of the Respondent, excluding
office clerical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein the Union has
been the exclusive collective-bargaining representa-
tive of all the employees in the aforesaid appropri-
ate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By the acts and conduct described in section
II,B, above, the Respondent has failed and refused
to bargain collectively in good faith and thereby
has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
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 engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act. We shall order that the Respondent make
whole the employees by paying all health and wel-
fare and pension trust fund contributions required
by the expired collective-bargaining agreement
which have not been paid as a result of the Re-
spondent's unilateral discontinuance of such pay-
ments since I April 1983.2 We shall also order that
the Respondent make whole employees for any
loss of earnings and other benefits they may have
suffered as a result of the Respondent's unlawful
conduct, retroactive to I April 1983, with interest
as provided for in Florida Steel Corp., 231 NLRB
651 (1977).3
2 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for interest at a fixed rate
on fund payments due as part of a "make-whole" remedy. We therefore
leave to further proceedings the question of how much interest the Re-
spondent must pay into the benefit fund in order to satisfy our make-
whole remedy. These additional amounts may be determined, depending
on the circumstances of each case, by reference to provisions in the doc-
uments governing the fund at issue and, where there are no governing
provisions, to evidence of any loss directly attributable to the unlawful
action, which of funds withheld, additional administrative costs, etc., but
not collateral losses. See Merryweather Optical Co., 240 NLRB 1213, 1216
fn. 7 (1979).
1 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
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DAY'S METAL FAB
ORDER
The National Labor Relations Board orders that
the Respondent, Mar-Jan, Inc. d/b/a Day's Metal
Fab a/k/a Emerson Sheet Metal, Albany, Oregon,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively upon request
concerning wages, hours, and other terms and con-
ditions of employment with Sheet Metal Workers
International Association, Local No. 16, AFL-
CIO, as the exclusive representative for purposes of
collective bargaining for employees in the follow-
ing unit:
All employees employed by Respondent, ex-
cluding office clerical employees, guards and
supervisors as defined in the Act.
(b) Unilaterally and without notice to or bargain-
ing with the Union changing the terms and condi-
tions of employment of the aforementioned individ-
uals.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain collectively with the
Union as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with re-
spect to wages, hours, and other terms and condi-
tions of employment.
(b) Make whole all employees in the manner set
forth in the section of this Decision entitled
"Remedy" by making contributions to the health
and welfare and pension trust fund required by the
expired collective-bargaining agreement which the
Respondent has unilaterally withheld since 1 April
1983.
(c) Make whole all employees in the manner set
forth in the section of this Decision entitled
"Remedy" by reimbursing them with interest for
any loss of wages or other benefits they may have
suffered as a result of the Respondent's failure
since 1 April 1983 to abide by the terms and condi-
tions of employment set forth in the expired collec-
tive-bargaining agreement.
(d) Honor and continue in effect the terms and
conditions of employment set forth in the expired
collective-bargaining agreement until such time as
the Respondent negotiates in good faith to a new
agreement or to an impasse.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary or useful in check-
ing compliance with this Order.
(f) Post at its place of business in Albany,
Oregon, copies of the attached notice marked "Ap-
pendix." 4 Copies of the notice, on forms provided
by the Regional Director for Region 19, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
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.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively
upon request concerning wages, hours, and other
terms and conditions of employment with Sheet
Metal Workers International Association, Local
No. 16, AFL-CIO, as the exclusive representative
for purposes of collective bargaining for employees
in the following unit:
All employees employed by the Employer, ex-
cluding office clerical employees, guards and
supervisors as defined in the Act.
WE WILL NOT unilaterally and without notice to
or bargaining with the Union change the terms and
conditions of employment of the aforementioned
individuals.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively with
the Union as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with re-
1395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spect to wages, hours, and other terms and condi-
tions of employment.
WE WILL make whole our employees by making
contributions to the health and welfare and pension
trust fund as required by the expired collective-bar-
gaining agreement which the Employer has unilat-
erally withheld since 1 April 1983.
WE WILL make whole our employees, with inter-
est, for any loss of wages or other benefits they
may have suffered as a result of the Employer's
failure since 1 April 1983 to abide by the terms and
conditions of employment set forth in the expired
collective-bargaining agreement.
WE WILL honor and continue in effect the terms
and conditions of employment set forth in the ex-
pired collective-bargaining agreement until such
time as we negotiate in good faith to a new agree-
ment or to an impasse.
MAR-JAN INC. D/B/A DAY'S METAL
FAB A/K/A EMERSON SHEET METAL
1396