Edgewater Health Care

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 474 (N.L.R.B. 1991)

474
304 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In Member Oviatt’s view there may be limited circumstances, not present
here, in which an employer’s inability to make contractually required payments
to union benefit funds may be a defense to an allegation that it unilaterally
and unlawfully withheld the payments. See his dissent in Zimmerman Painting
& Decorating, 302 NLRB 856 (1991).
Edgewater Health Care, Inc. and Local 50, Service
Employees International Union, AFL–CIO,
CLC. Case 14–CA–21185
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
Upon a charge filed by the Union January 3, 1991,
the General Counsel of the National Labor Relations
Board issued a complaint January 24, 1991, against
Edgewater Health Care, Inc., the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act. The Respondent filed time-
ly answers to the complaint admitting in part and de-
nying in part the allegations of the complaint.
On June 7, 1991, the General Counsel filed a Mo-
tion for Summary Judgment. On June 12, 1991, 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
In its third amended answer to the complaint, the
Respondent denied the conclusion that it had commit-
ted an unfair labor practice affecting commerce within
the meaning of Section 2(6) and (7) of the Act. The
Respondent, however, admitted the complaint’s factual
allegations including that it has not paid the contrac-
tually required contributions to the Union health and
welfare fund.
The Respondent contends that its actions do not con-
stitute a violation of the Act because at times it has
been financially unable to make the contributions to
the Union health and welfare fund. It is well estab-
lished, however, that financial inability to pay is not an
adequate defense to an ongoing failure to make con-
tractually required fund payments. See Air Convey In-
dustries, 292 NLRB 25 (1988).1 The Respondent’s
claim, therefore, is without merit and provides no de-
fense to its admitted actions.
Accordingly, in the absence of good cause being
shown, 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 corporation, is engaged in the op-
eration of a nursing home at its facility in Saint Louis,
Missouri, where it annually derives gross revenues in
excess of $100,000, and where it annually purchases
and receives products, goods, and materials valued in
excess of $50,000 directly from points outside the
State of Missouri. We find that Respondent is an em-
ployer 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
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 service employees employed by Respondent at
its 5500 South Broadway, Saint Louis, Missouri
facility, excluding office clerical and professional
employees, registered nurses, licensed practical
nurses, maintenance employees, guards, and su-
pervisors as defined in the Act.
On July 5, 1983, the Union was certified as the ex-
clusive collective-bargaining representative of the unit.
The Respondent and the Union have been party to suc-
cessive collective-bargaining agreements, the most re-
cent of which was effective from April 1, 1990,
through March 31, 1991. By virtue of Section 9(a) of
the Act, the Union is the exclusive representative of
the unit employees for the purposes of collective bar-
gaining concerning rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment.
The most recent collective-bargaining agreement re-
quires the Respondent to make contributions to the
Union health and welfare fund. This term of the col-
lective-bargaining agreement is a mandatory subject of
bargaining. Since August 1, 1990, the Respondent has
failed and refused to make the contractually required
payments to the fund, without having notified or af-
forded the Union an opportunity to bargain about these
acts and without the Union’s consent. By these acts
and conduct, the Respondent has engaged in, and is
engaging in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
CONCLUSION OF LAW
By failing and refusing to make contractually re-
quired payments to the Union health and welfare fund,
without having notified or afforded the Union an op-
portunity to bargain about such acts and without the
475EDGEWATER HEALTH CARE
2 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.’’
Union’s consent, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Sections 8(a)(5) and (1) and 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.
We shall order the Respondent to make whole its
unit employees by abiding by the Union fund provi-
sion of the collective-bargaining agreement and mak-
ing all contributions that have not been paid and that
would have been paid in the absence of the Respond-
ent’s unlawful discontinuance of the payments, with
any other sums applicable to the payments to be com-
puted in accordance with the Board’s decision in
Merryweather Optical Co., 240 NLRB 1213 (1979).
We shall also order the Respondent to make the unit
employees whole for any losses they may have suf-
fered as a result of its failure to make the contractually
required fund contributions, Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981), with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Edgewater Health Care, Inc., Saint Louis,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Local 50, Service Em-
ployees International Union, AFL–CIO, CLC, by fail-
ing and refusing to make contractually required pay-
ments to the Union health and welfare fund, without
having notified or afforded the Union an opportunity
to bargain about such acts and without the Union’s
consent.
(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 its unit employees by abiding by the
Union fund provision of the collective-bargaining
agreement and making all contributions that have not
been paid and that would have been paid absent the
Respondent’s unlawful discontinuance of payments,
and by reimbursing unit employees for any expenses
ensuing from the Respondent’s failure to make such
required payments, in the manner set forth in the rem-
edy 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 amounts due under
the terms of this Order.
(c) Post at its facility in Saint Louis, Missouri, the
attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 refuse to bargain with Local 50, Serv-
ice Employees International Union, AFL–CIO, CLC,
by failing and refusing to make contractually required
payments to the Union health and welfare fund, with-
out having notified or afforded the Union an oppor-
tunity to bargain about such acts and without the
Union’s consent.
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 unit employees by abid-
ing by the Union fund provision of the collective-bar-
gaining agreement and making all contributions that
have not been paid and that would have been paid ab-
sent our unlawful discontinuance of payments, and by
reimbursing unit employees for any expenses ensuing
from our failure to make such required payments, with
interest.
EDGEWATER HEALTH CARE, INC.