Detroit Cabinet and Door Co.

National Labor Relations Board - Board Decisions

Feb 26, 1980

247 N.L.R.B. 1415 (N.L.R.B. 1980)

DETROIT CABINET AND DOOR CO.
Detroit Cabinet and Door Co. and Millmens Local
No. 1452, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO.Case 7-CA-16228
February 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PNII.I.O
Upon a charge filed on March 30, 1979, by
Millmens Local No. 1452, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, herein
called the Union, and duly served on Detroit Cabinet
and Door Co., herein called Respondent. the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 7, issued a complaint
and notice of hearing on May 3, 1979, against
Respondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge and
complaint and notice of hearing before an administra-
tive law judge were duly served on the parties to this
proceeding. Respondent failed to file an answer to the
complaint.
With respect to the unfair labor practices, the
complaint alleges in substance that at all times since
1964, by virtue of successive collective-bargaining
agreements between Respondent and the Union, the
current contract being by its terms effective from July
25, 1977, until June 30, 1980, the Union has been the
exclusive representative of Respondent's employees in
the appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment. The complaint further alleges that under
the current collective-bargaining agreement Respon-
dent has been obligated to pay certain moneys into
various fringe benefit funds established for the benefit
of Respondent's employees and that since about 1976,
and continuing to date, Respondent has made delin-
quent payments into these fringe benefit funds.
In addition, the complaint alleges that on or about
March 12, 1979, the Union, in order to police the
administration of the contract, requested that Respon-
dent allow an audit of all payroll books and records,
including all books of original entry, payroll records,
canceled checks, check stubs, and quarterly returns,
from March 1976 to the present and that commencing
on or about March 12, 1979, and continuing to date,
Respondent has refused to allow the audit requested
by the Union.
247 NLRB No. 186
The complaint alleges that by the above-described
acts Respondent has refused to bargain collectively,
and is refusing to bargain collectively, with the
representative of its employees in violation of Section
8(a)(5) and Section 2(6) and (7) of the Act. It further
alleges that by these acts Respondent has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing, its employees in the exercise
of the rights guaranteed them in Section 7 of the Act
in violation of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
On June 25, 1979, counsel for the General Counsel
filed directly with the Board a motion to transfer this
case to the Board and for summary judgment based
upon Respondent's failure to file an answer and
Section 102.20 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended.
Subsequently, on July 3, 1979, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be grant-
ed. Respondent has filed no response to the Notice To
Show Cause and, accordingly, the allegations of the
Motion for Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides:
The respondent shall, within 10 days from the
service of the complaint, file and 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
allegation in the complaint not specifically denied
or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the Board,
unless good cause to the contrary is shown.
According to the uncontroverted allegations of the
Motion for Summary Judgment, Respondent failed to
file an answer to the complaint. Moreover, as no
answer had been filed, on June 8, 1979, Harvey R.
Dasho, field examiner for Region 7, telephoned
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and advised President Earl Silverman that
if Respondent failed to respond to the complaint
Region 7 would file a motion for summary judgment
in this case. On June 14, 1979, Dasho sent Respondent
a letter confirming this conversation, and a copy of
said letter was attached to the Motion for Summary
Judgment as Exhibit D. Although having been warned
about the consequences of failing to respond to the
complaint, Respondent failed to file an answer and
further failed to file a response to the Notice To Show
Cause. No good cause to the contrary having been
shown, in accordance with the rules set forth above,
the allegations of the complaint are deemed to be
admitted and found to be true. Accordingly, we grant
the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and
existing by virture of, the laws of the Stare of
Michigan. Respondent maintains its only office and
place of business at 1306 Holden, Detroit, Michigan.
Respondent is, and has been at all times material
herein, engaged in the manufacture, sale, and distribu-
tion of kitchen cabinets and related products.
During the year ending December 31, 1978, which
period is representative of its operations during all
times material herein, Respondent, in the course and
conduct of its business operations, manufactured, sold,
and distributed kitchen cabinets from its Detroit,
Michigan, place of business valued in excess of
$500,000, of which kitchen cabinets valued in excess
of $50,000 were sold to Curtis Building Co., a
Michigan corporation with its principal office and
place of business located at 25959 Five Mile, Redford,
Michigan. During the year ending December 31, 1978,
Curtis Building Co., in the course and conduct of its
business operations, constructed and sold houses to
the general public valued in excess of $500,000.
During the same period of time, Curtis Building Co.
purchased natural gas valued in excess of $10,000
from Michigan Consolidated Gas Company, which
had received the said gas delivered to Curtis Building
Co. directly from points located outside the State of
Michigan.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Millmens Local No. 1452, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Collective-Bargaining Representative
1. The unit
The following employees of Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees, including lay-out men, machine
set-up and operators, spray painters, cross-cut
and rip sawyers, assemblers, laborers, sanders,
and puttiers employed by Respondent, but ex-
cluding guards and supervisors, as defined in the
Act.
2. The bargaining history
At all times since 1964, by virtue of successive
collective-bargining agreements between Respondent
and the Union, the current contract being by its terms
effective from July 25, 1977, until June 30, 1980, the
Union has been the exclusive representative for the
purposes of collective bargaining of the employees in
the appropriate unit and, by virtue of Section 9(a) of
the Act, has been, and is now, the exclusive represen-
tative of all the employees in said unit for the purposes
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
B. The Delinquent Payments and Refusal
To Allow an Audit
Since on or about 1976, and continuing to date,
Respondent has made delinquent payments into the
fringe benefit funds established for the benefit of
Respondent's employees. On or about March 12,
1979, the Union, in order to police the administration
of the contract, requested that Respondent allow an
audit of all payroll books and records, including all
books of original entry, payroll records, canceled
checks, check stubs, and quarterly payroll returns,
from March 1976 to the present. Commencing on or
about March 12, 1979, and continuing to date,
Respondent has refused to allow the audit requested
by the Union or any audit. By making delinquent
payments into the fringe benefit funds, and by refusing
to allow the audit requested by the Union or any
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DETROIT CABINET AND DOOR CO.
audit, Respondent has refused, and is continuing to
refuse, to bargain collectively with the representative
of its employees and furthermore, by each of said acts,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.' According-
ly, we find that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act. Respondent will be required to
allow the audit requested by the Union; make future
payments to the fringe benefit funds in a timely
manner; make all fringe benefit payments owed, if any
are owed, since October 4, 1978, to the various fringe
benefit funds described above; bargain, upon request,
in good faith with the Union as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees within the appropriate unit; and post the
appropriate notices.
' We respectfully disagree with our dissenting colleagues contention that
the General Counsel failed to allege a prina facie violation with respect to
Respondent's making delinquent payments into various fringe benefit funds
established by the parties' collective-bargaining agreement. In our judgment,
the problem with the dissent is that it assumes too much, Depending on the
circumstances, delinquent payment may be as much a renunciation of the
parties' agreement as a flat refusal to pay. particularly when, as here, the
conduct has continued for such an extended period. The Board has
consistently found refusals to make fringe benefit contributions required by
collective-bargaining agreements to be violations of Sec. 8(a)(5). See Merrv-
weather Optical Company. 240 NLRB 1213 (1979); 7nv De Clue. an
idividual d/b/a Liberly Cleaonerv and d/b/a T & 1' Drapery Service. T7&
Drapery Service. Inc. and Real Cleaners. Inc.. 227 NLRB 1296 (1977): and
lonme Refining Co., Ic., 211 NLRB 910 (1974) Furthermore. Resplondent's
conduct may also constitute a mid-term unilateral modification of the parties'
agreement, abrogating its duty to bargain in good faith, as defined in Sec. (d),
and also violating Sec 8(a)(5). If Respondent were prepared to place these
matters into issue. it could have done so simply by filing an answer to the
CONCLUSIONS OF LAW
1. Detroit Cabinet and Door Co. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Millmens Local No. 1452, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All employees, including lay-out men, machine
set-up and operators, spray painters, cross-cut and rip
sawyers, assemblers, laborers, sanders, and puttiers
employed by Respondent, but excluding 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. Since 1964, by virtue of successive collective-
bargaining agreements between Respondent and the
Union, the above-named labor organization has been
and now is the certified and exclusive representative of
all employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. Since about 1976, and continuing to date,
Respondent has made delinquent payments into the
fringe benefit funds established by the successive
collective-bargaining agreements between Respondent
and the Union, the current contract being by its terms
effective from July 25, 1977, until June 30, 1980. On
or about March 12, 1979, the Union, in order to police
the administration of the contract, requested that
Respondent allow an audit of all payroll books and
records, including all books of original entry, payroll
records, canceled checks, check stubs, and quarterly
payroll returns, from March 1976 to the present.
Commencing on or about March 12, 1979, and
continuing to date, Respondent has refused to allow
the audit requested by the Union. Respondent has
violated Section 8(a)(5) of the Act by making delin-
quent payments into the fringe benefit funds and by
refusing to allow the audit requested by the Union.
complaint It failed to do so, despite having received a clear arning
concerning the effect of such a failure; similarly. it failed to respond to the
Notice To Show Cause. The dissent cannot now rescue Respondent front the
consequences of those failures.
Finally, we are puzzled why our dissenting colleague should raise this issue
in this particular case. In Nedco Construction Corp.. 206 NLRB 150 (197311.
Member Penello joined then-Member Fanning in finding an employer ill
violation of Sec. 8(a(5) for failing to pay retroactive wage increases due under
the terms of a collective-hbargaining agreement. Member Kennedy disselted,
arguing that the employer's conduct constituted at most a breach of contract.
Respondent to Member Kennedy. Member Penello noted that the employer il
,Vedco never raised the issue of whether the conduct in questlot involved
merely a breach of contract and that Member Kennedy's dissent raised the
question for the first time. Under those circumstances. our dissenting
colleague foud it unnecessary to address the matter. Id. at 151. fi. 4. Here.
Respondent has similarly f;ailkd to raise the issue of whether the alleged
violation constitutes a mere breach of contract by its failures to alswer the
complaint and to respond to the Notice To Shom Cause.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By the aforesaid conduct, Respondent has inter-
fered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the
exercise of the rights guaranteed them in Section 7 of
the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Detroit Cabinet and Door Co., Detroit, Michigan, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Making delinquent payments into fringe benefit
funds established by the collective-bargaining agree-
ment between Respondent and the Union and refusing
to allow an audit, as requested by the Union, in order
to police the administration of the contract, of all
payroll books and records, including all books of
original entry, payroll records, canceled checks, check
stubs, and quarterly returns, from March 1976 to the
present.
(b) Refusing to bargain collectively with the Union
concerning rates of pay, wages, hours, and other terms
and conditions of employment. The bargaining unit is:
All employees, including lay-out men, machine
set-up and operators, spray painters, cross-cut
and rip sawyers, assemblers, laborers, sanders,
and puttiers employed by Respondent, but ex-
cluding guards and supervisors as defined in the
Act.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make timely payments to the various fringe
benefit funds established by the successive collective-
bargaining agreements between Respondent and the
Union.
(b) Make all fringe benefit payments owed, if any
are owed, since October 4, 1978, to various fringe
benefit funds established by the successive collective-
bargaining agreements between Respondent and the
Union.
I1i the v.nt1 that this Order is nforced by a Judgment of a Unlited Slalltes
C(lUrt f Appeall, tlhe words i the notice reading "l'sled by ()lrdelr o the
National Laor Relation I)oard" shall read "Posted iLPrslianlll to a Judg llent
of he United States Court of App;eals Enforcing an ()rder of the Naltional
Relatiomll Iard."
(c) Allow an audit of all payroll books and records,
including all books of original entry, payroll records,
canceled checks, check stubs, and quarterly payroll
returns, from March 1976 to the present.
(d) Upon request, bargain with the above-named
labor organization as exclusive representative of all
employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed
agreement.
(e) Post at its Detroit, Michigan, facility copies of
the attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER PENII.IO, dissenting in part:
The complaint herein alleges, inter alia, that Re-
spondent made delinquent payments into fringe bene-
fit funds established under the collective-bargaining
contract between Respondent and the Union. My
colleagues find that this allegation sets forth a cause of
action under Section 8(a) (5) of the Act and, in the
absence of an answer by Respondent, they find a
violation of this section of the Act. By so doing, they
embroil the Board in policing the administration of
the collective-bargaining agreement. I do not agree
that a prima facie violation has been alleged and
cannot join my colleagues in this foray into matters
outside the Board's powers. In all other respects,
however, I agree with their findings.
It is well established that a breach of contract is not
ipso facto an unfair labor practice.' As the Supreme
Court stated in explaining Congress' determination
that the Board should not have general jurisdiction
over all alleged violations of collective-bargaining
agreements:
. . .the National Labor Relations Act does not
undertake governmental regulation of wages,
hours, or working conditions. Instead, it seeks to
United Pacukilnghouse UiH'rkers I A nrtia. ('10. and .oil 49, 6. 93. 97
102 ted 104 Wilso d Co. Inc.). 8') Nl.R II310 ( 950): i lrtrn P.Ner, Rim,
(tricaf Dviisitn). 107 NL.KRII 583 (1953); Unirted I h'phmnte u Cinmp t, oJ the
West uind Unried Uliilit. Itnolrpora ed. 112 NLRI 779 (1955).
1418
DETROIT CABINET AND DOOR CO.
provide a means by which agreement may be
reached with respect to them.'
In accord with these principles the Board has found
that breaches of contract which strike at the statutory
rights of the bargaining representative or constitute a
renunciation of basic collective-bargaining principles
are unfair labor practices.' By the same token, the
Board has found no unfair labor practice when a
respondent's conduct amounts to nothing more than a
violation of the collective-bargaining agreement."
The conduct complained of herein cannot be viewed
as anything other than a contract violation. It is
alleged that Respondent made delinquent payments
into fringe benefit funds. There is no averment that
Respondent failed or refused to meet its contractual
obligation to make such payments, thereby stating a
claim of a unilateral change in a condition of
employment. Rather, the complaint alleges that Re-
spondent made the payments, albeit delinquently.
While Respondent's failure to comply with the time
provisions may well be a violation of the contract, it
does not constitute an abrogation of the contract
amounting to a renunciation of the principles of the
collective-bargaining process.' In essence, the issue
regarding Respondent's meeting of its obligations in a
timely fashion involves administration of the contract
rather than the statutory duty to bargain with the
exclusive bargaining representative. As such, it is
precisely the type of contract issue which Congress
placed within the jurisdiction of the courts and not the
Board.
As I stated above, by finding Respondent's conduct
to be an unlawful refusal to bargain, my colleagues
improperly involve this Board in the governmental
regulation of the terms of collective-bargaining agree-
ments. They would not only provide the means for
parties to reach agreement at the bargaining table, but
would follow the parties from the table into the
workplace to dictate the implementation of the agree-
ment. I cannot approve this form of governmental
intrusion. I dissent.
' .VL.R.B. V. C C Plywood Corp.. 385 U.S. 421. 427 (1967). citing
Terminal Railroad Asociation of St. Louis v. Brotherhoxod of Railroad
Trainen. eal.t 318 U.S. 1US 6 (1942).
See. for example. C & S Industries. Inc.. 158 NLRB 454 (1966). where
Respondent's unilateral superimposition of an incentive wage plan upon the
contractually established wage structure was found violative of Seec 8(a) (5):
and VNdco Constructio Corp.. 206 NLRB 150 (1973), where Respondent's
failure to implement retroactive wage increases required by contract was
found violative of Sec. 8(a) (5).
In edco. I concluded. "that Respondent's conduct amounts to a
repudiation of the collective-bargaining principle" rather than a mere breach
of contract for which a Board remedy is ot available I found it unnecessary
to delineate my views on the breach of contract issue because it was raised by
the dissent. not Respondent, and because it was raised by the context of the
sufficiency of the proof of the complaint averments rather than, as in the
instant case, the adequacy of the complaint itself.
' See, for example. 7irxtrnm Puerno Ricao. upra. where the Board round t1no
violation in Respondent's, refusal to comply with the Union's request to
submit a grievance to arhitration where the grievance had lben processed
through two stages and the contract provided for arbitration as the final step
in the grievance procedure
Compare to . Beard Comnpai,. 231 NLRB 191 (1977). where
Respondent unlawfully refused to honor it, agreement with the Union to
resolve an existing grievance by recmplo) ing a discharged employee
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WIl.I NOT make delinquent payments into
the fringe benefit funds established in the collec-
tive-bargaining agreement between ourselves and
the Union.
WI WIl.t. NOT refuse to allow the audit
requested by the Union of our payroll books and
records, including all books of original entry,
payroll records, canceled checks, check stubs,
and quarterly payroll returns, from March 1976,
to the present.
WE WItl. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Mill-
mens Local No. 1452, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,
as the exclusive representative of the employees in
the bargaining unit described below.
WE WIL. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WIl.l., upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All employees, including lay-out men, machine
set-up and operators, spray painters, cross-cut
and rip sawyers, assemblers, laborers, sanders,
and puttiers employed by Respondent, but
excluding all guards and supervisors as defined
in the Act.
WE WI.L allow the above-described audit
requested by the Union.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make all fringe benefit payments
owed, if any are owed, since October 4, 1978, to
the various fringe benefit funds established by our
agreement with the Union; and WE WILL make
future payments to the various fringe benefit
funds in a timely manner.
DETROIT CABINET AND DOOR CO.
1420