Frederick Iron & Steel

National Labor Relations Board - Board Decisions

Jun 25, 1991

303 N.L.R.B. 514 (N.L.R.B. 1991)

514
303 NLRB No. 82
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In his Motion for Summary Judgment, the General Counsel states that the
motion does not seek an order establishing the liability of the Party-in-Interest,
Frederick Foundry and Machine, Inc., which the complaint alleges is a suc-
cessor of the Respondent. As noted by the General Counsel, the Party-in-Inter-
est may litigate any issues regarding its liability as a successor in compliance
proceedings. See National Transit, 299 NLRB 453 fn. 4 (1990). In agreement
with the General Counsel, we note that the response contained in a letter dated
July 9, 1990, from the Party-in-Interest does not constitute an answer to the
complaint within the meaning of Sec. 102.20 of the Board’s Rules and Regula-
tions in that it does not specifically admit, deny, or explain each allegation
of the complaint. We also note that the Party-in-Interest does not purport to
answer on the Respondent’s behalf.
2 In response to the letter from the Regional Director transmitting the
charge, Attorney Stephen F. Fruin, by letter dated April 19, 1990, informed
the Regional Director that he had been appointed ‘‘Assignee for the Benefit
of Creditors by the Circuit Court of Frederick County on November 22,
1989,’’ and that ‘‘[a]ny claim which you or the employee may have should
be immediately filed in the insolvency proceedings as those proceedings en-
compass all assets of Frederick Iron and Steel.’’ Thereafter, by letter dated
May 9, 1990, Fruin, responding to a letter from a Board agent to the Respond-
ent’s president, Richard G. Smith, requesting the Respondent’s evidence in this
case, referred the Board agent to the circuit court insolvency proceedings.
The Respondent’s claim of bankruptcy will not operate as a stay of the un-
fair labor practice charges against it. It is well settled that the institution of
bankruptcy proceedings does not deprive the Board of jurisdiction or authority
to entertain and process an unfair labor practice case to its final disposition.
Cardinal Services, 295 NLRB 933 fn. 2 (1989); Phoenix Co., 274 NLRB 995
(1985); Aries Construction, 290 NLRB No. 64 fn. 1 (July 29, 1988) (unpub-
lished). Board proceedings fall within the exception to the automatic stay pro-
vision for proceedings by a governmental unit to enforce its police or regu-
latory powers. See Phoenix Co., supra, and cases cited therein.
3 This letter does not constitute an answer to the complaint within Sec.
102.20 of the Board’s Rules and Regulations as it does not specifically admit,
deny, or explain each of the facts alleged in the complaint.
Frederick Iron and Steel, Inc. and Steven Yommer.
Case 5–CA–21063
June 25, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by Steven Yommer March 21,
1990, the General Counsel of the National Labor Rela-
tions Board issued a complaint on June 27, 1990,
against Frederick Iron and Steel, Inc., the Respondent,
alleging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. Although properly
served copies of the charge and complaint, the Re-
spondent has failed to file an answer.
On March 25, 1991, the General Counsel filed a
Motion to Transfer Proceeding to the Board and for
Summary Judgment against the Respondent,1 with ex-
hibits attached. On March 28, 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 response. The allega-
tions 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 the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14
days from service of the complaint, unless good cause
is shown. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the complaint shall be deemed to be admitted
to be true and shall be so found by the Board.’’ Fur-
ther, the undisputed allegations in the Motion for Sum-
mary Judgment disclose that counsel for the General
Counsel, by letter dated February 7, 1991, notified the
Respondent and Stephen F. Fruin,2 that pursuant to
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations, the Respondent’s answer to the complaint
was due on July 11, 1990, and that to date no answer
had been received. This letter further notified the Re-
spondent that unless an answer was received by close
of business February 15, 1991, a motion for summary
judgment would be filed. By letter to counsel for the
General Counsel dated February 16, 1991, the Re-
spondent’s President Robert G. Smith stated that he
had ‘‘no authorization to receive service or notice of
documents or correspondence’’ for the Respondent and
that Fruin was ‘‘winding up the business affairs’’ of
the Respondent and that all future correspondence
should be directed to Fruin.3
In the absence of good cause being shown for the
failure to file a timely answer, 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 Maryland corporation, with an
office and place of business in Frederick, Maryland,
has been engaged in the manufacture and nonretail sale
and distribution of pump and other iron castings. Dur-
ing the calendar year 1989, a representative period, the
Respondent sold and shipped products, goods, and ma-
terials valued in excess of $50,000 directly to points
located outside the State of Maryland. 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 the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees of
Respondent employed in its foundry operations at
701 East Seventh Street, Frederick, Maryland, ex-
515FREDERICK IRON & STEEL
4 Because the provisions of employee benefit fund agreements are variable
and complex the Board does not provide at the adjudicatory stage of the pro-
ceeding for the addition of interest at a fixed sum on unlawfully withheld fund
payments. Any additional amounts owed with respect to the funds will be de-
termined in accordance with the procedure set forth in Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979).
cluding machinists, assemblers, and all truck driv-
ers, janitors, craters and warehousemen who are
assigned to the machine shop, office clerical em-
ployees, watchmen, guards and supervisors as de-
fined in the Act.
B. The Refusal to Bargain
Since about 1946, and at all times material, the
Union has been the designated exclusive collective-
bargaining representative of the employees in the unit,
and since such date, the Union has been recognized as
such representative by the Respondent. Such recogni-
tion has been embodied in successive collective-bar-
gaining agreements between the Respondent and the
Union, the most recent of which was effective by its
terms to November 22, 1989.
Commencing about August 1, 1989, to about No-
vember 22, 1989, the Respondent, without notice to
and bargaining with the Union and without the
Union’s agreement, failed to continue in full force and
effect all the terms and conditions of the most recent
collective-bargaining agreement, by failing to maintain
group hospital, surgical, and major medical plans cov-
ering employees in the unit. The terms and conditions
of the agreement which the Respondent has failed to
continue in full force and effect are mandatory subjects
of bargaining. We find that the Respondent, by failing
to continue in full force and effect all the terms and
conditions of the most recent collective-bargaining
agreement, has been engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing to continue in full force and
effect all the terms and conditions of its collective-bar-
gaining agreement with the Union, which was effective
by its terms to November 22, 1989, by failing to main-
tain group hospital, surgical, and major medical plans
covering employees in the unit, commencing about
August 1, 1989, to about November 22, 1989, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 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.
Accordingly, we shall order the Respondent to pay
the group hospital, surgical, and major medical cov-
erage for employees in the unit that have become due
pursuant to the terms of its collective-bargaining agree-
ment with the Union, commencing about August 1,
1989, to about November 22, 1989, with interest and
other sums applicable.4
We shall also order the Respondent to make its em-
ployees whole for any losses they may have suffered
as a result of the Respondent’s failure to make the
contractually required benefit fund payments in the
manner prescribed in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981). This shall include reimbursing employees
for any contributions they themselves may have made,
with interest, for the maintenance of any fund after the
Respondent ceased making the benefit fund payments.
Concord Metal, 295 NLRB 1164, 1166 (1989). Interest
on any money due and owing employees shall be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Frederick Iron and Steel, Inc., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain with Glass,
Molders, Pottery, Plastics and Allied Workers Inter-
national Union, Local No. 237B, AFL–CIO, CLC as
the exclusive bargaining representative of the employ-
ees in the bargaining unit by failing and refusing from
about August 1, 1989, to about November 22, 1989, to
pay group hospital, surgical, and major medical plan
payments as required by the collective-bargaining
agreement.
(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 the group hospital, surgical, and major med-
ical plan payments that have become due under the
collective-bargaining agreement from about August 1,
1989, to about November 22, 1989, with interest, as
set forth in the remedy section of this decision.
(b) Make whole unit employees for any losses they
may have suffered because of the Respondent’s failure
to pay the group hospital, surgical, and major medical
plan payments that have become due under the collec-
tive-bargaining agreement, with interest, as set forth in
the remedy section 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-
516 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 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.’’
cards, personnel records and reports, and all other
records necessary to analyze the amount of money due
under the terms of this Order.
(d) Post at its facility in Frederick, Maryland, copies
of the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 5, after being signed by the Respondent’s
authorized 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.
(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 refuse to bargain with the Glass,
Molders, Pottery, Plastics and Allied Workers Inter-
national Union, Local 237B, AFL–CIO, CLC as the
exclusive representative of the employees in the bar-
gaining unit by failing and refusing from about August
1, 1989, to about November 22, 1989, to maintain
group hospital, surgical, and major medical plan pay-
ments as required by the collective-bargaining agree-
ment.
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 the group hospital, surgical, and major
medical plan amounts that have become due under the
collective-bargaining agreement from about August 1,
1989, to about November 22, l989, with interest.
WE WILL make you whole, with interest, for any
losses to you resulting from our failure to pay group
hospital, surgical, and major medical plan amounts that
have become due from about August 1, 1989, to about
November 22, 1989.
FREDERICK IRON AND STEEL, INC.