Fluck Limestone Co.

National Labor Relations Board - Board Decisions

Dec 15, 1994

315 N.L.R.B. 757 (N.L.R.B. 1994)

757
315 NLRB No. 113
FLUCK LIMESTONE CO.
Fluck Limestone Co., Inc. and International Asso-
ciation of Machinists and Aerospace Workers,
AFL–CIO. Case 25–CA–23196
December 15, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
Upon a charge filed by the International Association
of Machinists and Aerospace Workers, AFL–CIO, the
Union, on May 9, 1994, the General Counsel of the
National Labor Relations Board issued a complaint on
June 15, 1994, against Fluck Limestone Co., Inc., the
Respondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations Act.
The complaint alleges that the Respondent and
Union were bound by a succession of collective-bar-
gaining agreements, the most recent of which is effec-
tive by its terms from May 1, 1994, to April 30, 1997,
and that, during the term of the agreement running
from May 1, 1991, to April 30, 1994, the Respondent
unilaterally ceased making contractually required pen-
sion fund contributions. Although properly served with
copies of the charge and complaint, the Respondent
did not file an answer controverting the complaint.
On August 17, 1994, counsel for the General Coun-
sel notified the Respondent by telephone and by cer-
tified letter that no answer had been filed to the com-
plaint and that, if an answer was not received by Au-
gust 24, 1994, a motion for summary judgment would
be filed. The Respondent replied by a letter dated Au-
gust 24, 1994, which stated ‘‘we agree with the com-
plaint. . . .’’ and did not deny, state that the Respond-
ent was without knowledge of, or explain, the com-
plaint allegations.
On September 19, 1994, the General Counsel filed
a Motion for Summary Judgment. On September 22,
1994, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed no response. The allegations in the motion 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 Board’s Rules and Regulations
provides that any allegation in the complaint that is not
specifically denied or explained shall be deemed ad-
mitted unless the Respondent states that it is without
knowledge. The Respondent has not denied, stated that
it was without knowledge of, or explained the allega-
tions in the complaint. Therefore, we grant the Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Bloomington, Indiana, is engaged
in the quarry, fabrication, and sale of limestone. Dur-
ing the calendar year ending May 1, 1994, the Re-
spondent sold and shipped goods valued in excess of
$50,000 from its Bloomington, Indiana facility directly
to points outside the State of Indiana. 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 Representative Status of the Union
The unit described in the collective-bargaining
agreement between the parties effective from May 1,
1991, to April 30, 1994, constitutes a unit appropriate
for collective bargaining within the meaning of Section
9(b) of the Act.
Since before June 6, 1991, and at all material times,
the Union has been the designated and recognized ex-
clusive representative of the unit. This recognition has
been embodied in a succession of collective-bargaining
agreements between the Union and the Respondent, the
most recent of which is effective by its terms from
May 1, 1994, to April 30, 1997. At all times since be-
fore June 6, 1991, the Union has been the exclusive
representative of the Respondent’s unit employees for
the purpose of collective bargaining.
B. Refusal to Comply with the Contract
Since about October 26, 1993, the Respondent failed
to continue in effect all the terms and conditions of the
collective-bargaining agreement by failing to make
contributions on behalf of its employees to the I.A.M.
National Pension Fund, Benefit Plan B, without the
consent of the Union.
The contractual provisions with which the Respond-
ent has failed to comply relate to wages, hours, and
other terms and conditions of employment in the unit
and are mandatory subjects for purposes of collective
bargaining.
CONCLUSIONS OF LAW
1. By failing to make contractually required pension
fund contributions, the Respondent has failed to bar-
gain with the Union and has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act.
2. The unfair labor practices of the Respondent, de-
scribed above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Any additional amounts owed with respect to these fund con-
tributions shall be calculated in the manner set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979).
2 Member Cohen notes that any reimbursement to employees for
payments that employees have made to the pension fund would con-
stitute a setoff to the amount that the Respondent owes to the pen-
sion fund. See C. W. Storage, 315 NLRB No. 16, slip op. at fn. 2
(Sept. 30, 1994).
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.’’
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 the required
pension fund payments it has failed to make since Oc-
tober 26, 1993.1 We shall further order the Respondent
to make whole unit employees for any loss of benefits
caused by its failure to make these contributions and
to reimburse employees for any expenses ensuing from
the Respondent’s unlawful failure to make such con-
tributions,2 as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Fluck Limestone Co., Inc., Bloomington,
Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to bargain with the Union by failing to
make required contributions on behalf of its unit em-
ployees to the I.A.M. National Pension Fund, Benefit
Plan B.
(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) Pay into the fund, on behalf of its unit employ-
ees, those pension fund contributions it failed to make
as a result of the unlawful discontinuation of fund pay-
ments, in the manner set forth in the remedy section
of this decision.
(b) Make whole the unit employees for any loss of
pay and benefits suffered as a result of the Respond-
ent’s failure to abide by the terms of the collective-bar-
gaining agreement with the Union, and reimburse unit
employees for any expenses ensuing from the Re-
spondent’s failure to make requested pension fund con-
tributions, in the manner set forth in the remedy sec-
tion of this decision.
(c) 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.
(d) Post at its facility in Bloomington, Indiana, cop-
ies of the attached notice marked ‘‘Appendix.’’3 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places were notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or convered by any other material.
(e) 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 to make pension fund contribu-
tions on behalf of our unit employees.
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 adhere to the terms of our collective-bar-
gaining agreement with the Union, including, but not
limited to, the provisions governing pension fund con-
tributions.
WE WILL make whole the unit employees for any
losses or expenses they suffered as a result of our fail-
ure to abide by the terms of our collective-bargaining
agreement with the Union, including making required
contributions to the I.A.M. National Pension Fund,
Benefit Plan B.
FLUCK LIMESTONE CO., INC.