Marine Machine Works, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1979

243 N.L.R.B. 1081 (N.L.R.B. 1979)

MARINE MACHINE WORKS INC.
Marine Machine Works, Inc. and International Broth-
erhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers & Helpers, AFL-CIO, Local No.
132 and Galveston Area Repairs Council and afftili-
ated Companies, Party to the Contract. Case 23-
CA-7371
August 6. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.I (0
AND TRUESDAIE
Upon a charge filed on January 12, 1979. and
amended on January 25, 1979. by International
Brotherhood of Boilermakers. Iron Shipbuilders.
Blacksmiths. Forgers & Helpers, AFL CIO, Local
No. 132, herein called the Union, and duly served on
Marine Machine Works, Inc., herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Acting Regional Director for
Region 23, issued a complaint and notice of hearing
on March 2, 1979, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (5) and Section
2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charge, amended charge,
complaint, and notice of hearing before an adminis-
trative law judge were duly served on the parties to
this proceeding. Respondent failed to file an answer
to the complaint.
On April 25, 1979, counsel for the General Counsel
filed directly with the Board a Motion to Transfer
Case Before the Board and Motion for Summary
Judgment based on Respondent's failure to file an
answer as required by Section 102.20 and 102.21 of
the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended. Subsequently, on May
2, 1979, the Board issued an order transferring the
proceeding to the Board and Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent failed
to file a response to the Notice To Show Cause and,
accordingly, the allegations of the Motion for Sum-
mary Judgment stand uncontroverted.'
I Subsequent to the Board's Notice To Show Cause. Marine Industries,
Inc., filed a "Response to Notice to Show Cause and Special Appearance."
contending that it was not an onginal party to these proceedings. but, on
April 11. 1979. it purchased the assets of Respondent herein: that it is with-
out knowledge or information sufficient to form a belief as to the truth of the
allegations of the complaint: and, thus. it denies those allegations. Although
Manne Industries. Inc., admits that it purchased the assets of Respondent, it
denies liability for any unfair labor practices, if an). of Respondent Marine
Industnes. Inc.. requests that the Motion tor Summars Judgment he denied
and the complaint dismissed
Pursuant to the provisions of Section 3(h) o the
National Labor Relations Act, as amended. the Na-
tional l.abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summar 5 Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit. deny. or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed. or
any allegations in the complaint not specifically
denied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge. shall be deemed to he admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on Re-
spondent on March 2, 1979, specifically stated that.
unless an answer to said complaint was filed within 10
days from the service thereof, "all of the allegations in
the Complaint shall be deemed to be admitted to be
true, and may be so found by the Board." Further.
according to the uncontroverted allegations of the
Motion for Summary Judgment, Respondent was in-
formedi, in writing, that unless an answer was filed by
April 17, 1979, a motion would be made before the
Board for entry of an order based on the undenied
allegations of the complaint. Respondent has failed to
file an answer to the complaint or to respond to the
Notice To Show Cause. Thereafter, on April 25. 1979.
The General Counsel opposes the motion of Marine Industries. Inc.,
claiming that good cause has not been shown wh) its Motllon for Summars
Judgment should not be granted against Respondent. The General Counsel
argues that the motion be denied in that it anticipates an obligatlon to rem-
edy its predecessor's unfair labor practices, a matter not currently in issue.
The General Counsel urges that the question of the liability of Marine Indus-
tries, Inc. if any. to remedy its predecessor's unfair labor practices can be
determined at the compliance stage of the proceedings. The General Counsel
also moses that. based on its purchase of Respondent's assets. and it, motion
described above, Marine Industries. Inc, be joined formallI In this provceed-
ing.
We agree. for the reasns stated In the (General Counsel's oppoition to the
motion Marine Industries. Inc. that said motion should he denied The
matters raised therein re not currenil in issue and. is suggested hb the
General Counsel, are better eft to the compliance stage ot these prlceedings
Accordingly. e deny the motion made bh Marine Industries. Inc. to
deny the General Counsel's Motion for Summary Judgment and t dismiss
the complaint. In addition. we further deny the General Counsel's motion
that Marine Industries. Inc. be oined formall; n this priceeding.
243 NLRB No. 119
1081XI
DECISIONS Of NATIONAL LABOR RELATIONS BOARD
no answer having been filed, counsel for the General
Counsel filed the instant Motion for Summary Judg-
ment.
As Respondent has filed no answer within 10 days
from the service of the complaint, or within the ex-
tended time afforded it by the Regional Director, and
as no good cause for the failure to do so has been
shown, in accordance with the rule set forth above,
the allegations of the complaint herein stand un-
denied and are deemed to be admitted to be true and
are so found to be true.2 Accordingly, we grant the
Motion for Summary Judgment.3
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FA('I
1. THE BUSINESS OF RESPONI)ENT
The Respondent, Marine Machine Works, Inc., is,
and has been at all times material herein, a Texas
corporation with its principal offices and place of
business located at Galveston, Texas, where it is en-
gaged in the erection, installing, maintaining, and re-
pairing and/or dismantling of machinery, including
ship repair work, and the manufacturing and sale of
winches and other miscellaneous items. Respondent,
during the past 12 months, a representative period, in
the course and conduct of its business operations, sold
goods and materials valued in excess of $50,000,
which goods and materials were shipped directly
from its Galveston, Texas, facility to firms located
outside the State of Texas. During the same period of
time, Respondent purchased goods and materials val-
ued in excess of $50,000 from firms located outside
the State of Texas, which goods and materials were
shipped directly to its Galveston, Texas, facility.
The Galveston Area Repairs Council, herein called
the Council, and its affiliated companies, Farmer's
Marine Copper Works, Inc.. McDonough Iron
Works, Western Marine Engineering Co., and Re-
spondent, is an employer association which exists in
whole, or in part, for the purposes of bargaining on
behalf of its members with the Union concerning the
rates of pay, wages, hours of employment, and other
terms and conditions of employment of its members'
employees. During the past 12 months, a representa-
tive period. Farmer's Marine Copper Works, Inc., a
Texas corporation and a member of the Council en-
gaged in the business of marine and industrial fabri-
2 Eagle Truck and Trailer Rental Division o E. T & T Lea.mng. Inc., 211
NLRB 804 (1974).
] The General Counsel has requested that Respondent he required to pay
interest at the rate ol 9 percent per annum. We find no merit In that request.
See Florida Steel Corporation. 231 NLRB 651 (1977)
cators and repairs located in Galveston, Texas, pur-
chased goods and materials valued in excess of
$50,000 from firms located outside the State of Texas,
which goods and materials were shipped directly to
its Galveston, Texas, facility.
We find, on the basis of' the foregoing, that Respon-
dent and the Council are now, and have been at all
times material herein, employers engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. I'E L.ABOR ORGANIZATION INVO(I.VIED
International Brotherhood of Boilermakers. Iron
Shipbuilders, Blacksmiths, Forgers & Helpers, AFL
CIO, Local No. 132, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRA(II('ES
A. The 8(a)(5) Violations
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:
Employees of the members of the Council who
are employed as boilermaker journeymen, ap-
prentices and helpers.
At all times material herein, a majority of the em-
ployees in the above-described unit have designated
or selected the Union as their representative for the
purposes of collective bargaining with Respondent.
Respondent is, and has been at all times material
herein, a member of the Council. Since on or about
February 1. 1975, and continuing until on or about
January 31, 1978, the Council and the Union were
parties to a collective-bargaining agreement covering
the unit of Respondent's employees described above.
Respondent, as a member of the Council, was a party
to, and bound by, the terms and provisions of said
collective-bargaining agreement. On or about Janu-
ary 18, 1978, the Union and the Council commenced
negotiations in connection with a renewal of' the col-
lective-bargaining agreement. On February 1, 1978,
the employees of the members of the Council ratified
the Council's contract proposal which called for a 3-
year collective-bargaining agreement. On February 1,
1978, the agreement became effective, with the term
extending to January 31, 1981.
On or about March 6, 1978, Respondent withdrew
its membership from the Council. Thereafter, since on
or about September 29, 1978, and continuing to date.
Respondent has refused, and is now refusing, to ob-
1082
MARINE. MACHINE WORKS, INC
serve and abide by the terms and conditions of the
February , 1978, agreement.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has, since on or about September
29, 1978, refused, and is refusing. to bargain collec-
tively in good faith with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and () of the
Act.
B. The 8(a)(3) I'iolations
On or about December 12, 1978, Respondent dis-
charged its employees, Mark Thompson and Gilfred
L. Spradlin, Jr., and has failed and refused, and con-
tinues to fail and refuse, to reinstate said employees
to their former or substantially equivalent positions of
employment because they joined or assisted the
Union and/or engaged in other concerted activities
for the purposes of collective bargaining or other mu-
tual aid or protection.
Accordingly, we find that by discharging Mark
Thompson and Gilfred L. Spradlin. Jr., Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of
the Act.
C. The Independent 8(a)(1) Violations
In October 1978, Respondent, by and through its
supervisor and agent, Gilfred Spradlin, Sr., threat-
ened employees with discharge if they brought up the
subject of the existence of a collective-bargaining
agreement.
Accordingly, we find that, by the aforesaid con-
duct, Respondent interfered with, restrained, and co-
erced, and is interfering with, restraining, and coerc-
ing, its employees in the exercise of the rights
guaranteed them in Section 7 of the Act and that, by
such conduct, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II1, above, occurring in connection with its operations
in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and
the free flow of commerce.
V. I11I RI:M D)Y
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)( ). (3). and (5) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
We have found that Respondent violated Section
8(a)(5) and ( I ) of the Act b3 withdrawing its member-
ship from the Council on or about March 6. 1978.
and, since on or about September 29, 1978, refusing
to observe and abide by the terms and conditions of
the collective-bargaining agreement effective from
February 1, 1978, to Januar 31, 1981. between the
Council and the Union. In order to dissipate the ef-
fect of these unfair labor practices, we shall order Re-
spondent, upon request, to observe and abide by the
terms and conditions of said agreement, including
making contributions to the Boilermakers National
Pension Trust.4 We shall further order that Respon-
dent be required to make its employees whole for any
loss of wages or other benefits they may have suffered
as a result of Respondent's failure to observe and
abide by the terms of the February 1. 1978. agree-
ment.
Having found that Respondent discriminatorily
discharged employees Mark Thompson and Gilfred
L. Spradlin. Jr., we shall order Respondent to offer
them immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously
enjoyed, and to make them whole for any loss of
earnings they may have suffered by payment to them
of money equal to the amount they normally would
have earned, absent the unlawful discharges, as wages
from the date of the discharges until they receive
valid offers of reinstatement, in accordance with
F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon to be computed in the manner
prescribed in Florida Steel Corporation. 231 NLRB
651 (1977). 5
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
I Because the provisions of employee benefit und agreements are variable
and complex. the Board does not provide at the adjudicatory stage of a
proceeding for the addition of interest at a fixed rate on unlawfully withheld
fund payments. We leave to the compliance stage the question of whether
Respondent must pay any additional amounts into the benefit funds in order
to satisfy our "make whole" remedy. These additional amounts may be de-
termined, depending upon the circumstances of each case, by reference to
provisions in the documents governing the funds at issue and. where there
are no governing provisions, to evidence of any loss directly attributable to
the unlawful withholding action, which might include the loss of return on
investment of the portion of funds withheld, additional administrative cost.
etc., but not collateral losses. Merrveaiher Optical Conmpanv, 240 NLRB
1213 (19791.
See, generally, Isis Plumhing & teating C., 138 NI.RB 716 (1962.
I1083
I)C:( ISIONS ()I NAlO()NAI. I.AB()R RI.I.AII()NS BO()ARI)
(O N(' I tSi)NS )01 LAM.
1. Marine Machine Works, Inc., and (Jalveston
Area Repairs Council, are employers engaged in com-
merce within the meaning of' Section 2(6) and (7) of
the Act.
2. International Brotherhood of Boilermakers,
Iron Shiphuilders, Blacksmiths. Forgers & Itelpers.
AFL CIO, Local No. 132, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By withdrawing its membership from the ('oun-
cil and thereafter refusing to observe an abide by the
terms and conditions of the February , 1978, agree-
ment between the Council and the Union. Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section (a)(5) and
(I) of the Act.
4. By discharging its employees Mark Thompson
and Gilfred L. Spradlin, Jr., because of their union or
other protected activities. Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and ( I ) of the Act.
5. By threatening its employees with discharge if
they brought up the subject of the existence of a col-
lective-bargaining agreement, Respondent has inter-
fered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the exer-
cise of the rights guaranteed them by Section 7 of the
Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(I) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent. Ma-
rine Machine Works, Inc., Galveston, Texas, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Brotherhood of' Boilermakers. Iron Shipbuild-
ers, Blacksmiths, Forgers & Helpers. AFL CIO. Lo-
cal No. 132, by withdrawing its membership from the
Galveston Area Repairs Council and by refusing to
observe and abide by the terms and conditions of the
collective-bargaining agreement negotiated by said
Council.
(b) Discharging. or otherwise discriminating
against employees because of their union or other
protected concerted activities.
(c) Threatening employees with discharge if they
bring up the subject of the existence of a collective-
bargaining agreement.
(d) 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. 'Iake the following affirmative action which the
Board inds will effectuate the policies of' the Act:
(a) Upon request, bargain with the above-nlamed
labor organization, as the exclusive bargaining repre-
sentative of' its employees in the lllowing appropri-
ate unit, by observing and abiding by the terms and
conditions oft the collective-bargaining agreement ne-
gotiated between Respondent and the Council and
effective February I. 1978. and make contributions to
the Boilermakers National Pension Irust in the man-
ner set forth in the section of' this Decision entitled
"The Remedy." The appropriate unit is all boiler-
maker journeymen. apprentices, and helpers.
(b) Offer Mark Thompson and (iilfred L. Spradlin.
Jr.. immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their senior-
ity and other rights and privileges previously enjoyed
and make them whole for any loss of pay they ma_
have suff'ered by reason of the discrimination against
them in the manner set forth in the section herein
entitled "The Remedy."
(c) Make whole its employees in the aforesaid bar-
gaining unit for any loss of wages and other benefits
which they may have suffered b reason of the Re-
spondent's refusal to abide by and give efcct to the
collective-bargaining agreement of February . 1978,
with interest thereon to be computed as prescribed in
Florida Steel, supra.
(d) Preserve and, upon request. make available to
the Board or its agents, for examination and copying.
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze and compute the
amount of backpay due under the terms of this Order.
(e) Post at its Galveston, Texas, facilities copies of
the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 23, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
I In the event that this Order is enforced bh 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
l.abor Relations Board."
1084
MARINE MACHINI. WORKS, INC.
(f) Notify the Regional Director tfor Region 23. in
writing, within 20 days from the date of this Order.
w hat steps Respondent has taken to comply herewith.
APPENI)IX
NoIt i( To EMPl.OYI:-S
POSIED BY ORi)-R ()OF 1li-.
NAII()NAI LABOR R.AIIONS BARI)
An Agency of the United States Government
WtE wn1,. Not refuse to bargain collectively
with International Brotherhood of Boilermakers.
Iron Shipbuilders, Blacksmiths. Forgers & Help-
ers, AFL-CIO. Local No. 132. by withdrawing
our membership from the Galveston Area Re-
pairs Council, or by refusing to observe and
abide by the terms and conditions of the collec-
tive-bargaining agreement negotiated by said
Council.
Wt: wILt. NOT discharge or otherwise discrimi-
nate against our employees because of their
union or other protected concerted activities.
WE /I.l. NOI threaten our employees with
discharge if they bring up the subject of the exis-
tence of a collective-bargaining agreement.
WE wnt.L NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them hb
Section 7 of the Act.
Wi1 wullt. upon request. bargain with the
above-named labor organization, as the exclusive
bargaining representative of' all employees in the
bargaining unit described below. bh ohserving
and abiding by the terms and conditions of' the
collective-bargaining agreement negotiated bh
the Council. including, but not limited to. mak-
ing contributions to the Boilermakers National
Pension Trust. The appropriate unit is all boiler-
maker journeymen, apprentices and helpers.
Wt. wIil. offer Mark Thompson and (iilfred
[. Spradlin. Jr.. immediate and full reinstate-
ment to their former jobs or. if' those jobs no
longer exist, to substantially equivalent positions.
without prejudice to their seniority and other
rights and privileges previously enjoyed. and ATi
xvii.. make them whole for any loss of pay. plus
interest, they may have suffered because of' our
discrimination against them.
Wti wilI make whole our employees in the
bargaining unit for any loss of wages and other
benefits which they may have suffered by reason
of' our refusal to abide by and give effect to the
collective-bargaining agreement of IFebruar 1.
1978. plus interest.
MARINE MA( IINE WORKS. IN( .
1085