Lake Castings, Inc.

National Labor Relations Board - Board Decisions

Feb 22, 1985

274 N.L.R.B. 225 (N.L.R.B. 1985)

LAKE CASTINGS, INC
Lake Castings , Inc. and International Union , United
Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW) and its Local
No. 393. Case 8-CA-16208
22 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union on 28 October
1982, the General Counsel of the National Labor
Relations Board issued a complaint 10 December
1982 against the Company, the Respondent, alleg-
ing that it had violated Section 8(a)(5) and (1) of
the National Labor Relations Act. The complaint
further alleges that the Union is the exclusive rep-
resentative of the Respondent's employees in the
appropriate unit and that the most recent collec-
tive-bargaining agreement between the Union and
the Respondent is effective by its terms from 7 De-
cember 1981 to 10 December 1984. The complaint
also alleges that since 1 April 1982 the Respondent,
without notice to the Union and without affording
the Union the opportunity to bargain, has failed to
make premium payments for medical insurance as
required by the collective-bargaining agreement.
Although properly served copies of the charge and
complaint, the Company has failed to file an
answer.
On 17 October 1983 the General Counsel filed a
Motion for Summary Judgment alleging, inter alia,
that the Respondent is currently involved in bank-
ruptcy proceedings. On 19 October 1983 the Board
issued an order transferring this proceeding to the
Board and a Notice to Show Cause why the
motion should not be granted. The Company filed
no response. On 12 April 1984 the General Counsel
filed a motion to file a supplemental brief in sup-
port of the Motion for Summary Judgment and at-
tached thereto a copy of the Respondent's volun-
tary petition for relief under Chapter 11 of the
Bankruptcy Code which was filed with the bank-
ruptcy court on 23 July 1982. Thereafter, on 20
June 1984 the General Counsel filed a motion to
file a second supplemental brief in support of the
Motion for Summary Judgment in which he asserts
that the Respondent, after filing the Chapter 11
bankruptcy petition, did not move the bankruptcy
court to reject the collective-bargaining agreement
and that the Respondent has taken no other formal
action with respect to the collective-bargaining
agreement. Additionally, the General Counsel at-
tached a copy of an order, dated 17 November
1982, of the United States Bankruptcy Court for
the Northern District of Ohio, Western Division, in
225
which the court converted the Chapter 11 proceed-
ing to a proceeding under Chapter 7 of the Bank-
ruptcy Code. The Company has filed no opposition
to the General Counsel's motions to file supplemen-
tal and second supplemental briefs and we grant
those motions. The allegations of the Motion for
Summary Judgment and of the supplemental and
second supplemental briefs in support of the
Motion for Summary Judgment are undisputed.
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 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, "all the allegations in the complaint shall
be deemed to be admitted to be true and may be so
found by the Board." Further, the undisputed alle-
gations in the Motion for Summary Judgment dis-
close that the General Counsel, by letter dated 26
September 1983, confirmed a telephone conversa-
tion of 15 September 1983, during which the Re-
spondent's trustee in bankruptcy indicated that he
would not file an answer, and further advised the
trustee in bankruptcy that a Motion for Summary
Judgment would be filed forthwith.
In its recent opinion in NLRB v. Bildisco & Bil-
disco, 104 S.Ct. 1188 (1984), the Supreme Court
held that a debtor-in-possession does not commit an
unfair labor practice when it unilaterally rejects or
modifies a collective-bargaining agreement before
the bankruptcy court approves formal rejection.
Accordingly, applying Bildisco, we consider sepa-
rately the portions of the complaint involving pre-
petition activity from those involving activity
which occurred on or after the date of the filing of
the bankruptcy petition. In the absence of good
cause being shown for the Respondent's failure to
file a timely answer, we grant the Motion for Sum-
mary Judgment insofar as the complaint alleges
that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to make premium pay-
ments for medical insurance covering its unit em-
ployees for the period from about 1 April 1982
until 23 July 1982, the date the Company filed its
bankruptcy petition.
We, however, deny the Motion for Summary
Judgment insofar as the complaint alleges that the
Respondent violated the Act by failing to make
premium payments for medical insurance on or
after 23 July 1982, the date the Respondent filed its
bankruptcy petition. As the Supreme Court stated
in Bildisco: "[F]rom the filing of a petition in bank-
ruptcy until formal acceptance, the collective-bar-
274 NLRB No. 40
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement is not an enforceable contract
within the meaning of NLRA Sec. 8(d)." 104 S.Ct.
at 1199. In the present case, we conclude that sub-
stantial issues under Bildisco have been raised with
respect to the alleged postpetition activity which
are not appropriate for resolution in this Motion
for Summary Judgment proceeding. We therefore
shall deny the General Counsel's Motion for Sum-
mary Judgment insofar as it relates to postpetition
activity, and shall remand this portion of the case
to the Regional Director for further consideration
under Bildisco and for further appropriate action
consistent herewith. i
On the entire record, the Board makes the fol-
lowing'
FINDINGS OF FACT
1. JURISDICTION
The Company, a corporation, with an office and
place of business in Sandusky, Ohio, has been en-
gaged in the manufacture of metal castings. During
the 12 months preceding the filing of the charge,
the Company, in the course and conduct of its
business operations, sold and shipped from its San-
dusky, Ohio facility products, goods, and materials
valued in excess of $50,000 directly to points out-
side the, State of Ohio. We find that the Company
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 mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
For the past several years, and at all times mate-
rial herein, the Union has been the designated ex-
clusive collective-bargaining representative of the
Respondent's employees in the appropriate unit and
has been recognized as such by the Respondent.
Recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which is effective by its terms for the period from
7 December 1981 to 10 December 1984. Since
about 1 April 1982, and continuously thereafter,
the Respondent has failed to make premium pay-
ments for medical insurance covering its employees
as required by the collective-bargaining agreement
between the Company and the Union. The Compa-
ny has failed to make such premium payments
1 Member Hunter notes that the Respondent 's violation of Sec 8(a)(5)
and (1) of the Act, based on its failure to make premium payments for
medical insurance , occurred prior to the Respondent 's filing of its bank-
ruptcy petition Accordingly, and for the reasons fully set forth in his dis-
sent in Edward Cooper Painting, 273 NLRB 1870 (1985), Member Hunter
disagrees with terminating the remedy as of 23 July 1982, the date the
Respondent filed its bankruptcy petition, and does not join in remanding
thisiproceeding to the Regional Director
without prior notice to the Union and without af-
fording the Union the opportunity to negotiate and
bargain as the exclusive bargaining representative
of the employees in the appropriate unit with re-
spect to such acts and conduct and the effect of
such acts and conduct. Accordingly, we find that,
by the aforesaid conduct, between about 1 April
1982 and 23 July 1982, the Company has failed and
refused to bargain collectively in good faith with a
representative of its employees, and the Company
has thereby been engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act. 2
CONCLUSIONS OF LAW
1. By the activities of the Company set forth in
section II, above, occurring in connection with the
operations described in section I, above, the Com-
pany has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and of Section 2(6) and (7) of the Act.
2. By the acts described in section II, above, the
Company has interfered with, restrained, and co-
erced its employees in the exercise of their rights
guaranteed them by Section 7 of the Act and there-
by has engaged in unfair labor practices within the
meaning of Section 8(a)(1) 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 designed to effectuate the policies of the
Act.
The Respondent having unlawfully discontinued
premium payments for medical insurance, we shall
order it to make unit employees whole by paying
such premium payments which have not been paid
and which would have been paid absent the Re-
spondent's unlawful discontinuance of such pay-
ments and by reimbursing unit employees for any
unreimbursed medical or other expenses ensuing
from the Respondent's unlawful failure to make
such required contributions. This shall include re-
imbursing employees for any contributions they
themselves may have made for the maintenance of
medical insurance after the Respondent unlawfully
discontinued premium payments; for any premiums
they may have paid to third party insurance com-
panies to continue medical coverage in the absence
of the Respondent's premium payments for medical
2 It is also clear that Sec 8 (d) of the Act prohibits a party to an exist-
ing collective-bargaining agreement from modifying the terms of such
agreement without obtaining the consent of the other party to the agree-
ment
LAKE CASTINGS, INC 227
insurance, and for any medical bills they may have
paid directly to health care providers that the con-
tractual policies would have covered. All payments
to the employees shall be made with interest See
Ferro Mechanical Corp., 249 NLRB 669 (1980), and
Angelus Block Co., 250 NLRB 868 (1980) Interest
on all such sums shall be paid in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondent, Lake Castings, Inc., Sandusky,
Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain with Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW) and its Local No. 393 as the exclusive rep-
resentative of its employees in the appropriate unit
set forth below by failing to make those premium
payments for medical insurance covering its unit
employees, as provided by the collective-bargain-
ing agreement between the Company and the
Union, from about 1 April 1982 to 23 July 1982.
The appropriate unit is:
All production and maintenance employees at
the Respondent's plant in Sandusky, Ohio, but
shall not include Plant Manager, and assistants
to the Plant Manager, Departmental Superin-
tendents, Foremen, Chief Pattern Maker, Chief
Maintenance Mechanic, and supervisory em-
ployees with the power to hire and discharge
or effectively recommend such action, Watch-
men, Plant Protection employees, office and
clerical employees, including those engaged in
the keeping of time, Engineering, Technical,
Experimental, Confidential Research and Per-
sonnel employees
(b) 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) Make unit employees whole by paying all
premium payments for medical insurance which
have not been paid, which were due and payable
between about 1 April 1982 and 23 July 1982, and
which would have been paid absent the Company's
unlawful discontinuance of such payments, and by
reimbursing unit employees for any unreimbursed
medical or other expenses ensuing from the Com-
pany's unlawful failure to make such required con-
tributions, in the manner provided in the remedy
section of this decision. This shall include reimburs-
ing employees for any contributions they them-
selves may have made for the maintenance of med-
ical insurance after the Company unlawfully dis-
continued premium payments; for any premiums
they may have paid to third party insurance com-
panies to continue medical coverage in the absence
of the Company's premium payments for medical
insurance, and for medical bills they may have paid
directly to health care providers that the contrac-
tual policies would have covered. All payments to
the employees shall be made with interest.
(b) Post at its facility in Sandusky, Ohio, copies
of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where, no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment, insofar as that
motion relates to the Company's activities on or
after the filing of the bankruptcy petition on 23
July 1982, is denied.
IT IS FURTHER ORDERED that this case be re-
manded to the Regional Director for Region 8 for
further appropriate action consistent herewith.
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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
a] Labor Relations Board
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 fail and refuse to bargain with
International Union, United Automobile, Aerp-
space and Agricultural Implement Workers of
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America (UAW) and its Local No. 393 by failing
to make those premium payments for medical in-
surance covering its employees in the bargaining
unit described below, and as provided by our col-
lective-bargaining agreement with the Union, and
which were due and payable between about 1
April 1982 and 23 July 1982. The bargaining unit
is:
All production and maintenance employees at
the Employer's plant in Sandusky, Ohio, but
shall not include Plant Manager, and assistants
to the Plant Manager, Departmental Superin-
tendents, Foremen, Chief Pattern Maker, Chief
Maintenance Mechanic, and supervisory em-
ployees with the power to hire and discharge
or effectively recommend such action, Watch-
men, Plant Protection employees, office and
clerical employees, including those engaged in
the keeping of time, Engineering, Technical,
Experimental, Confidential Research and Per-
sonnel employees.
WE WILL NOT in any like or related manner
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make our unit employees whole by
paying all premium payments for medical insurance
which have not been paid between about 1' April
1982 and 23 July 1982, and which would have been
paid absent our unlawful discontinuance of such
payments, and by reimbursing unit employees for
any medical or other expenses ensuing from our
unlawful failure to make such required payments.
This shall include reimbursing employees for any
contributions they themselves may have made for
the maintenance of medical insurance after we un-
lawfully discontinued premium payments; for any
premiums they may have paid to third party insur-
ance companies to continue medical coverage in
the absence of our required premium payments for
any medical insurance; and for medical bills they
may have paid directly to health care providers
that the contractual policies would have covered.
All payments to the employees shall be made with
interest.
interfere with, restrain , or coerce you in the exer- LAKE CASTINGS, INC.