Kargard Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1987

283 N.L.R.B. 331 (N.L.R.B. 1987)

KARGARD INDUSTRIES
Kargard Industries, Inc. and Local 696, Internation-
al Brotherhood of Boilermakers , Iron Ship
Builders, ' Blacksmiths, Forgers and Helpers,
AFL-CIO. Case 30-CA-9366
25 March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge and amended charge filed by the
Union 20 October and 25 November 1986, the
General Counsel of the National Labor Relations
Board issued a complaint 25 November 1986
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) and Section
8(d) of the National Labor Relations Act. Al-
though properly served copies of the charge and
complaint, the Company has failed to file an
answer.
On 5 January 1987 ,the General Counsel filed a
Motion for Summary Judgment. On 7 January 1987
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Company
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegat-
ed 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 Regula-
tions 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 by 9 December 1986,
"all of the allegations in the Complaint shall be
deemed to be admitted to be true and shall be so
found by the Board." Further, the undisputed alle-
gations in the Motion for Summary Judgment dis-
close that counsel for the General Counsel, on 19
and 18 December 1986, 'notified the Company and
its counsel, respectively, that unless an answer was
received immediately, a Motion for Summary
Judgment Would be filed.
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 fol-
lowing
FINDINGS OF FACT
331
I. JURISDICTION
The Company, a Wisconsin corporation , engages
in the manufacture, nonretail sale, and distribution
of pressure vessels and related products at its facili-
ty in Marinette, Wisconsin, where it annually pur-
chases and receives products, goods, and materials
valued in excess of $50,000 directly from suppliers
located outside the State of Wisconsin. We find
that the Company is an employer engaged in com-
merce 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
Since about 1962 the Union has represented a
unit of all production and maintenance employees,
including stockroom clerks, but excluding office
clerical employees, professional employees, watch-
men and guards, quality control employees, and su-
pervisory employees employed at the Respondent's
Marinette, Wisconsin facility. Successive collective-
bargaining agreements, the most recent effective
from 23 March 1986 to 23 March 1991, embody
this representative status. The Union by virtue of
Section 9(a) of the Act is the exclusive representa-
tive of the unit for the purposes of collective bar-
gaining-
The latest collective-bargaining agreement con-
tains provisions for life, accident and dismember-
ment, and long-term disablity insurance for mem-
bers of the unit. Since about 19 August 1986 the
Respondent has failed and refused to make pay-
ment for the insurance premiums as required by the
collective-bargaining agreement. The failure to
make the insurance premium payments led to a
cancellation of the insurance coverage on 31
August 1986 by the insurance carrier.
The Respondent failed and refused to make the
payments set forth above without the agreement of
the Union. By these acts the Respondent unilateral-
ly modified its collective-bargaining agreement
with the Union.
CONCLUSIONS OF LAw
1. By unilaterally discountinuing insurance pre-
mium payments as required by the collective-bar-
gaining agreement without the agreement of the
Union, the Company has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1), Section 8(d), and Section
2(6) and (7) of the Act.
283 NLRB No. 53
332 DECISIONS 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 designed to effectuate the policies of the
Act.
Having found that the Respondent has unlawful-
ly made unilateral changes in the employees' terms
and conditions of employment, we shall order that
the Respondent restore, the status quo ante by rein-
stating the-life, accident and dismemberment, and
long-term disability insurance coverage for its em-
ployees in the unit as required by the collective-
bargaining agreement. We shall further order that
the Respondent make whole employees for any ex-
penses or losses incurred as a result of the unilater-
al changes. The amounts paid to employees to
make them whole' for any losses they may have
suffered as a result of the Respondent's- unlawful
unilateral action shall include interest to be com-
puted in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). Additionally, the Re-
spontjent'shallbe ordered to cease and desist from
implementing unilateral changes in contractual
terms and conditions of employment for unit em-
ployees without the agreement of the Union. We
deny as unnecessary the General Counsel's request
for a visitatorial provision.
ORDER
The National Labor Relations Board orders that
the Respondent, Kargard Industries, Inc., Marin-
ette, Wisconsin, its officers, agents, successors, and
assigns, -shall
1: Cease and desist from
(a) Refusing to bargain collectively with Local
696, International Brotherhood of Boilermakers,
'Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL-CIO, as the exclusive representative of
its employees in the following unit, with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment:
All production and maintenance employees,
including stockroom clerks, but excluding
office clerical employees, professional employ-
ees, watchmen and guards, quality control em-
ployees, and supervisory employees as defined
in the Act.
(b) Changing insurance coverage or other con-
tractual terms and conditions of employment of
employees in the unit without the agreement of the
Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Reinstate the life, accident and dismember-
ment, and long-term disability insurance coverage
for employees in the unit as 'required by the collec-
tive-bargaining agreement.
(b) Make whole, with interest, all employees for
any expenses or losses incurred as a result of the
unilateral termination Of life, accident and dismem-
berment, and long-term disability insurance cover-
age. -
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts due under the terms of this Order.
(d) Post at its facility in Marinette, Wisconsin,
copies of the attached notice marked -"Appendix."
Copies of the notice, on forms provided 'by the Re-
gional Director for Region 30, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent 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 Respondent
to ensure that the notices are not altered, defaced,
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. Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
For the reasons set forth in my dissent in Rapid
Fur Dressing, 278 NLRB 905 (1986), I dissent from
the majority's finding that the Respondent violated
Section 8(a)(5) by failing to make premium pay-
ments pursuant to its contract with the Union.
There is no evidence that the Respondent has en-
gaged in conduct reflecting a repudiation of the
collective-bargaining agreement in any way tanta-
mount to a violation of the Act or has otherwise
refused to bargain. By finding a violation in these
circumstances, the Board is once again allowing
itself to - be used as a collection agency for the
Charging Party. Accordingly, I would deny the
Motion' for Summary Judgment.
' 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 Nation-
al 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."
KARGARD INDUSTRIES 333
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
Local. 696, International Brotherhood of Boiler-
makers ,, Iron Ship Builders,, Blacksmiths, Forgers
and Helpers, AFL-CIO, as the exclusive represent-
ative of our employees in the following unit, with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment.
All production - and maintenance employees,
including stockroom clerks, but excluding
office clerical employees, professional employ-
ees, watchmen and guards , quality control em-
ployees, and supervisory employees as defined
in the Act.
WE WILL NOT change insurance coverage or
other contractual terms and conditions of employ-
ment of employees in the unit without the agree-
ment of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reinstate the life, accident and dismem-
berment, and long-term disability insurance cover-
age for employees in the unit as required by the
collective-bargaining agreement with the Union.
WE WILL make whole , with interest, all employ-
ees for any expenses or losses incurred as a result
of the unilateral termination of the life , accident
and dismemberment , and long-term disability insur-
ance coverage.
KARGARD INDUSTRIES, INC.