Fort Pierce Jai-Alai

National Labor Relations Board - Board Decisions

Mar 29, 1993

310 N.L.R.B. 862 (N.L.R.B. 1993)

862
310 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent subsequently executed a stipulation in which it
admitted that since January 1992 it failed to make the monthly con-
tributions to the plan for calendar year 1991 without prior notice to
the Union.
2 E.g., Adirondack Construction Co., 306 NLRB 704 (1992).
3 We note that although the Respondent refers to its inability to
pay as ‘‘temporary,’’ there is no evidence that any plan contributions
were ever made.
4 Member Oviatt notes that although the Respondent contends that
it was willing to negotiate with the Union about its failure to make
payments, it does not assert that it communicated its willingness to
the Union until after the complaint issued.
WJA Realty Limited Partnership d/b/a Fort Pierce
Jai-Alai, Miami Jai-Alai, Ocala Jai-Alai,
Tampa Jai-Alai and World Jai-Alai Players
and International Jai-Alai Players Association-
UAW Local 8868, AFL–CIO. Case 12–CA–
14974
March 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by the International Jai-Alai
Players Association-UAW Local 8868, AFL–CIO (the
Union) the General Counsel of the National Labor Re-
lations Board issued a complaint June 5, 1992, against
WJA Realty Limited Partnership d/b/a Fort Pierce Jai-
Alai, Miami Jai-Alai, Ocala Jai-Alai, Tampa Jai-Alai
and World Jai-Alai Players (the Respondent), alleging
that it violated Section 8(a)(5) and (1) of the National
Labor Relations Act by failing to make monthly con-
tributions to a retirement plan for amounts due for cal-
endar year 1991. On June 18, 1992, the Respondent
filed its answer to the complaint, admitting that it
failed to make the payments, but asserting that it did
so because it was temporarily unable to pay and lacked
the intent to repudiate its contractual obligations. The
Respondent denies that its conduct constitutes an un-
lawful refusal to bargain in good faith.1
On December 24, 1992, the General Counsel filed a
Motion for Summary Judgment, asserting that the Re-
spondent’s answer to the complaint admits the allega-
tions that it failed to make the above-described pay-
ments, that this subject is a mandatory subject for the
purpose of collective bargaining, and that the Respond-
ent failed to notify the Union or to bargain over its
failure to make the payments. The General Counsel
maintains that these allegations should be deemed by
the Board to be admitted and that the Board should
find these allegations, as well as all other allegations
in the complaint, to be true. On December 30, 1992,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On January 13, 1993, the
Respondent filed a response.
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 answer to the complaint and its response to the
Notice to Show Cause, the Respondent admits that it
failed to make the above-described contractually re-
quired payments without the Union’s consent. The Re-
spondent asserts that financial conditions beyond its
control have prevented it from meeting its financial ob-
ligations. The Respondent also asserts that it negotiated
with the Union on other matters during the relevant
time period, has been available to discuss payment
terms, and on August 20 and December 29, 1992, dis-
cussed payment terms with the Union, thereby indicat-
ing that it lacked the intent to repudiate its collective-
bargaining obligations. However, the Respondent does
not allege that it gave advance notice to the Union of
its intent not to commence payments in January 1992
or that prior to January 1992 it requested to meet with
the Union over its inability to commence the agreed-
upon payments. On the contrary, the Respondent stipu-
lates that since January 1992 it failed to make the plan
contributions without prior notice to the Union.
It is well established that Section 8(a)(5) and (1) and
Section 8(d) of the Act prohibit an employer that is a
party to an existing collective-bargaining agreement
from modifying the terms and conditions of employ-
ment established by the agreement without obtaining
the consent of the union.2 Here, the Respondent has
admitted that it was obligated under its agreement to
commence making monthly contributions to the retire-
ment plan for calendar years 1991 and 1992 starting in
January 1992, and that it gave no notice to the Union
before it failed to make the contributions. Accordingly,
the Respondent has admitted all the facts material to
a resolution of the unfair labor practice issues raised
by the complaint.
The Respondent’s claim that it was financially un-
able to make the required payments, even if proven,
does not constitute an adequate defense to an allega-
tion that an employer has violated Section 8(a)(5) and
(1) and Section 8(d) of the Act by failing to abide by
a provision of a collective-bargaining agreement.
Tammy Sportswear Corp., 302 NLRB 860 (1991);
L. L. Plumbing Co., 306 NLRB 1034 (1992).3 Like-
wise, the Respondent’s claim that it has been ready
and willing to discuss its contractual obligations with
the Union is not a viable defense to the unilateral mid-
term modification of a collective-bargaining agreement.
Zimmerman Painting & Decorating, 302 NLRB 856,
857 (1991).4 There being no material facts in dispute,
we grantthe General Counsel’s Motion for Summary
Judgment.
On the entire record, the Board makes the following
863FORT PIERCE JAI-ALAI
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Massachusetts partnership, with
places of business in Fort Pierce, Miami, Ocala, and
Tampa, Florida, has been engaged in the business of
operating jai-alai frontons known as Fort Pierce Jai-
Alai, Miami Jai-Alai, Ocala Jai-Alai, and Tampa Jai-
Alai. During calendar year 1991, the Respondent de-
rived gross revenues in excess of $500,000 and pur-
chased and received at its Florida facilities goods val-
ued in excess of $50,000 directly from points outside
the State of Florida.
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 organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time jai-alai play-
ers, including seasonal players, employed by Re-
spondent at its Fort Pierce, Miami, Ocala, and
Tampa, Florida facilities; excluding office clerical
employees and professional employees, guards
and supervisors as defined in the Act, and all
other employees.
At all times material, based on Section 9(a) of the
Act, the Union has been the designated exclusive col-
lective-bargaining representative of the unit and has
been recognized as such by the Respondent. This rec-
ognition has been embodied in a collective-bargaining
agreement, which is effective from September 23,
1990, to December 31, 1993.
B. The 8(a)(5) and (1) Violations
Accepting the Respondent’s factual assertions as
true, the parties agreed during 1991 to a retirement
plan under which the Respondent was to make month-
ly contributions for calendar years 1991 and 1992. Ac-
cording to the Respondent, the Union filed a grievance
against the Respondent on November 20, 1991, for
failing to commence making the contributions to the
plan for 1991. The Respondent responded to the griev-
ance by asserting that the Union was responsible for
the delay in the establishment of a retirement plan, that
the Respondent was financially unable to make con-
tributions, and that it was not denying its obligations
under its agreement with the Union. On August 20 and
December 29, 1992, the Union and the Respondent
discussed payment terms. On January 4, 1993, the Re-
spondent advised the Union of its willingness to dis-
cuss the matter. The Respondent admits that it was ob-
ligated to commence making monthly contributions for
1991 and 1992 beginning in January 1992.
As mentioned above, there is no evidence that the
Respondent gave advance notice to the Union that it
would not commence making payments in January
1992 or that prior to January 1992 the Respondent re-
quested to meet with the Union over its inability to
commence payments, even though the Union had filed
a grievance in November 1991 complaining about the
Respondent’s failure to make the 1991 contribution
payments.
We find that on or about January 1992, the Re-
spondent, without obtaining the Union’s consent, failed
to make contractually required retirement plan con-
tributions. The terms and conditions of the agreement
the Respondent has failed to continue in full force and
effect are mandatory subjects of bargaining.
Accordingly, we conclude that the Respondent has
failed to bargain collectively and in good faith with the
Union as the exclusive representative of its employees,
and that the Respondent has thereby engaged in unfair
labor practices in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By refusing to bargain with the Union by failing to
make retirement plan contributions, 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 the contrac-
tually required retirement plan contributions with any
additional amounts due computed in the manner set
forth in Merryweather Optical Co., 240 NLRB 1213,
1216 (1979). In addition, we shall also order the Re-
spondent to make its employees whole for any losses
they may have suffered because of its failure to make
payments into the retirement plan, Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981), with interest to be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). We shall also order
posting of the attached notice in English and Spanish
at the Respondent’s facilities in Fort Pierce, Miami,
Ocala, and Tampa, Florida, at the beginning of each
fronton’s season or at least 60 days before the end of
each fronton’s season.
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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.’’
ORDER
The National Labor Relations Board orders that the
Respondent, WJA Realty Limited Partnership d/b/a
Fort Pierce Jai-Alai, Miami Jai-Alai, Ocala Jai-Alai,
Tampa Jai-Alai, and World Jai-Alai Players, Fort
Pierce, Miami, Ocala, and Tampa, Florida, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Inter-
national Jai-Alai Players Association-UAW Local
8868, AFL–CIO by failing to make contributions into
a contractually required retirement plan.
(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 all contractually required retirement plan
contributions due and make whole the employees in
the unit for any losses attributable to the withholding
of those contributions 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 facilities in Fort Pierce, Miami, Ocala,
and Tampa, Florida, the attached notice marked ‘‘Ap-
pendix’’5 in English and Spanish at the beginning of
each fronton’s season or at least 60 days before the
end of each fronton’s season. Copies of the notice, on
forms provided by the Regional Director for Region
12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive 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 altered, defaced, or cov-
ered 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
ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the
International Jai-Alai Players Association-UAW Local
8868, AFL–CIO by failing to make contributions into
a contractually required retirement plan.
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 pay all contractually required retirement
plan contributions due and make whole the employees
in the unit for any losses attributable to the with-
holding of those contributions, with interest.
WJA REALTY LIMITED PARTNERSHIP
D/B/A FORT PIERCE JAI-ALAI, MIAMI
JAI-ALAI, OCALA JAI-ALAI, TAMPA JAI-
ALAI, AND WORLD JAI-ALAI PLAYERS