Memley Plating Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1264 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Memley Plating Company and Metal Polishers,
Buffers, Platers and Allied Workers Interna-
tional Union, Local No. 67, AFL-CIO. Case
21-CA-18749
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on March 5, 1980, by Metal
Polishers, Buffers, Platers and Allied Workers In-
ternational Union, Local No. 67, AFL-CIO, herein
called the Union, and duly served on Memley Plat-
ing Company, herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 21,
issued a complaint and notice of hearing on April
28, 1980, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge and complaint and
notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that Respondent is
party to a collective-bargaining agreement with the
Union and with Van Storage Drivers, Local No.
389, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called Local 389. It alleges that com-
mencing on or about December 1, 1979, Respon-
dent refused to bargain collectively with the Union
and Local 389, herein called the Unions, by discon-
tinuing the contractually mandated health and wel-
fare benefits provided to employees, by discontinu-
ing its contributions to the pension fund on behalf
of its employees, and by failing to remit to the
Union the dues Respondent deducted from the
wages of unit employees. The complaint alleges
that Respondent took these actions without notifi-
cation to or bargaining with the Unions. The com-
plaint further alleges that commencing on or about
February 16, 1980, Respondent refused to bargain
collectively with the Union by refusing to furnish
information requested by the Union which was rel-
evant to the fulfillment of its duties as collective-
bargaining representative of the employees in the
appropriate unit. The Union's request allegedly in-
quired into the present position of Respondent's
assets; whether a former owner was to assume Re-
spondent's operations, and any agreement to that
effect; and the date when Respondent intended to
252 NLRB No. 176
remit to the Union dues deducted for the months
of December 1979 and January 1980.
Respondent failed to file an answer to the com-
plaint or request an extension of time for filing an
answer. Thereafter, on July 14, 1980, counsel for
the General Counsel filed directly with the Board a
Motion for Summary Judgment, with exhibits at-
tached, based on Respondent's failure to file an
answer to the complaint. Subsequently, on July 18,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter did not file a response to the Notice To
Show Cause, so that the allegations of the Motion
for Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor 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 Summary 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 there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in the answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted 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 issued on
April 28, 1980, and duly served on Respondent and
the Unions, specifically states that, unless an
answer to the complaint is filed by Respondent
within 10 days of service thereof, "all of the allega-
tions in said complaint shall be deemed to be ad-
mitted to be true and may be so found by the
Board." Further, according to the uncontroverted
allegations of the Motion for Summary Judgment,
counsel for the General Counsel, by letter dated
June 18, 1980, and attached to the Motion for Sum-
mary Judgment, advised Respondent that an
answer had not been received, and that, unless Re-
spondent filed an answer on or before June 25,
1264
MEMLEY PLATING CO.
counsel for the General Counsel would move for
Summary Judgment. No answer has been received.
Good cause for failure to answer the complaint
has not been shown. Under the rule set forth
above, the allegations of the complaint are deemed
admitted and are found to be true. Accordingly,
we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation at all times
material herein, until on or about January 16, 1980,
engaged in the business of electroplating and oper-
ating a facility located at 5908 Crocker Street, Los
Angeles, California. During the calendar year 1979,
a representative period, Respondent sold goods and
materials valued in excess of $50,000 directly to
customers located within the State of California.
Each of these customers, during the same period of
time, sold products, goods, and materials valued in
excess of $50,000 directly to customers outside the
State of California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce 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. THE LABOR ORGANIZATIONS INVOLVED
Metal Polishers, Buffers, Platers and Allied
Worker, International Union, Local No. 67, AFL-
CIO, and Van Storage Drivers, Local No. 389, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees, in-
cluding all shipping and receiving employees,
truckdrivers and working foremen employed
by Respondent at its facility located at 5908
Crocker Street, Los Angeles, California; ex-
cluding all office clerical employees, profes-
sional employees, watchmen, guards and su-
pervisors as defined in the Act.
B. The Representative Status of the Unions
On or about August 10, 1977, Respondent and
the Unions entered into a collective-bargaining
agreement which covered employees in the unit
described above and whose duration, by its terms,
extended from the date of agreement to March 10,
1980, and for additional periods of 1 year in the ab-
sence of timely written notice by a party or parties
to the agreement. Under the collective-bargaining
agreement, Respondent recognized the Unions as
the exclusive bargaining representative of the em-
ployees of Respondent in the unit described above
and, since August 10, 1977, the Unions have been
the representatives for the purposes of collective
bargaining of the employees in the unit.
C. Respondents Failure To Bargain Collectively
1. The collective-bargaining agreement between
Respondent and the Unions provided for certain
health and welfare benefits, pension fund contribu-
tions, and voluntary payroll deductions of employ-
ees' union dues for monthly transmittal to the
Unions in accord with Section 302 of the Act.
Commencing on or about December 1, 1979, Re-
spondent changed the terms and conditions of em-
ployment of the unit employees without prior noti-
fication to or bargaining with the Unions by dis-
continuing the contractually mandated health and
welfare benefits and pension fund contributions.
Respondent, from that date, also failed to remit to
the Unions the dues Respondent deducted from the
unit employees' wages. We find that by failing to
make the required contributions and payments
without notification to or bargaining with the
Unions, Respondent has refused to bargain with the
Unions and is engaging in fair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
2. On or about February 16, 1980, the Union by
letter requested information of Respondent regard-
ing the position of Respondent's assets; whether a
former owner was to assume Respondent's oper-
ations, and a copy of any agreement recording any
such assumption; and when Respondent intended to
remit union dues deducted from the unit employ-
ees' paychecks during December 1979 and January
1980. Since on or about February 16, 1980, Re-
spondent, by disregarding the Union's request, has
failed and refused to supply such information. The
information sought was relevant and necessary to
the Union's proper functioning as bargaining repre-
sentative and, in particular, to the Union's effective
performance as the employees' representative in
bargaining with Respondent concerning the effects
on the employees in the unit of the closure of Re-
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's operations on or about January 16, 1980.
Accordingly, we find that by refusing to supply the
requested information, Respondent has refused to
bargain with the Union and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondnet has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order it to cease and desist therefrom. We
shall also order it to take certain affirmative action
designed to effectuate the policies of the Act.
We have found that Respondent failed to pay re-
quired health and welfare benefits and pension pre-
miums from December 1, 1979. We have further
found that Respondent failed to remit to the
Unions the dues Respondent withheld from its em-
ployees' paychecks from December 1, 1979. Such
conduct constitutes unilateral changes in terms and
conditions of employment in violation of Section
8(a)(5) and (1) of the Act. In order to dissipate the
effect of these unfair labor practices, we shall order
Respondent to make whole its employees by trans-
mitting the required contributions to the pension
fund and by providing the payments it failed to
make in health and welfare benefits.' We shall also
order Respondent to remit to the Unions the dues
it withheld from its employees' paychecks with in-
terest on the dues to be computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).2
' Because the provisions of employee benefit and pension fund agree-
ments are variable and complex, the Board does not provide at the adju-
dicatory 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 whether Respondent must pay any additional amounts into
the benefit funds in order to satisfy our "make-whole" remedy hese ad-
ditional amounts may be determined, depending upon the circumstances
of each case, by reference to the provisions in the documents governing
the funds at issue and, where there are no governing provisions, to evi-
dence of any loss directly attributed to the unlawful withholding action,
which might include the loss of return on investment of the portion of
funds withheld, additional administrative costs, etc but not collateral
losses. Merrywearher Optical Company, 240 NLRB (1979).
2 See, generally, Ii Plumbing leatring Co., 138 NLRB 716 (1962)
Dissenting from his colleagues on this point, Member Jenkins would
compute the amount of interest on the dues owing in the manner de-
We have also found that Respondent failed to
furnish information requested by the Union which
was relevant to the Union's performance of its stat-
utory and contractual duties. We have found that
such conduct constituted a refusal to bargain col-
lectively in violation of Section 8(a)(5) and (1) of
the Act. In order to dissipate the effect of these
unfair labor practices, we shall order Respondent
to cease and desist from failing and refusing to pro-
vide the Union with the information requested in
its letter of February 16. We shall also order Re-
spondent upon request to supply the information
requested therein.
We shall also order the posting of an appropriate
notice. 3
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI.USIONS OF LAW
1. Memley Plating Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Metal Polishers, Buffers, Platers, and Allied
Workers International Union, Local No. 67, AFL-
CIO, and Van Storage Drivers, Local No. 389, In-
ternational Brotherhoood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are and
have been at all times material herein labor organi-
zations within the meaning of Section 2(5) of the
Act.
3. The following employees constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding all shipping and receiving employees,
truckdrivers and working foremen employed
by Respondent at its facility located at 5908
Crocker Street, Los Angeles, California; ex-
cluding all office clerical employees, profes-
sional employees, watchmep, guards and su-
pervisors as defined in the Act.
4. Since on or about August 10, 1977, the above-
named labor organizations have been and are now
the exclusive representatives of all employees in
the aforesaid appropriate unit for the purpose of
scribed in his dissenting opinion in Olympic Medical Corporation, 250
NLRB 146 (1980).
3 'The General Counsel's complaint states that Respondent closed the
relevant operations on January 16, 1980 In light f the uncertain status
of Respondent's business, we shall order that notices be posted at the fa-
cilit if it is still maintained by Respondent or a legal successor. We shall
also order, i the alternative, that if neither Respondent nor a successor
maintains the facility, copies of the notice be mailed to each of Respon-
dent's employees in the described unit of employees at an) time between
December 1. 197%. and February 16. 1980 We shall leave to the compli-
ance stage of this proceeding resolution of an) matters raised by the
question of any continued operation of the facility
1266
MlNIE IF.Y IPI.ATIN( Ct()
collective bargaining within the meaning of Section
9(a) of the Act.
5. By changing the terms and conditions of em-
ployment of the employees in the above unit with-
out notification to or bargaining with the Unions
by failing to make required pension fund contribu-
tions and health and welfare payments since De-
cember 1, 1979, and by failing to remit to the
Unions dues deducted from employees' paychecks,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
6. By failing to furnish information properly re-
quested by the Union on February 16, 1980, which
was necessary and relevant to the performance of
its statutory obligations, Respondent has engaged
in and is engaging in unfair labor practices in viola-
tion of Section 8(a)(5) of the Act.
7. By the aforementioned refusals to bargain, Re-
spondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and there-
by has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
Memley Plating Company, Los Angeles, Califor-
nia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to make the required
pension fund contributions and health and welfare
payments for the period from on and after Decem-
ber 1, 1979, as required by the collective-bargain-
ing agreement between it and the Unions.
(b) Failing and refusing to remit to the Unions
the dues it withheld from its employees' paychecks
commencing on or about December 1, 1979, as re-
quired by the collective-bargaining agreement be-
tween it and the Unions.
(c) Failing and refusing to furnish the Union
with information necessary and relevant to the per-
formance of its obligations as bargaining represen-
tative of employees of Respondent.
2. Take the following affirmative action found
necessary to effectuate the policies of the Act:
(a) Make whole its employees, in the manner set
forth in the section of this Decision entitled "The
Remedy," for Respondent's unlawful failure to
contribute to the pension fund and to make health
and welfare benefit payments as required by its col-
lective-bargaining agreement with the Unions.
(b) Remit to the Unions the dues it withheld
from the paychecks of bargaining unit employees
commencing on or about December , 1979, plus
interest as set forth in the section of this Decision
entitled "The Remedy."
(c) Upon request, furnish to Metal Polishers,
Buffers, Platers, and Allied Workers International
Union, Local No. 67, AFL-CIO, information
which is necessary and relevant to the performance
of its statutory obligations.
(d) Post at its place of business copies of the at-
tached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 21, after being duly signed by Re-
spondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
4 In the c ell that this Order is enforced hby a Judgmenlt of a United
States Court of Appeals. the words in the notice reading "Po lted hby
Order of the Nalional Labor Relations Board" shall read "Po ,ted Pursu-
ant to a Judgment of the United States Court of Appeals Enfircing an
Order .of the National Labor Relation>s Board"
In the event that Respondent or a legal successor has closed its oper-
ations at 5908 Crocker Street. Los Angeles. California. and not resumed
operations. copies of the attached notice shall be mailed to each of Re-
spondent's employees in the hargaining unit employed at any time be-
tween December 1. 1979. and January I, 1980
APPENDIX
NOTICE To EMPI.OYiF.S
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WF WILL NOT fail and refuse to make re-
quired contributions to the pension fund or re-
quired health and welfare benefit payments for
the period commencing on December 1, 1979,
as required by our collective-bargaining agree-
ment with Metal Polishers, Buffers, Platers,
and Allied Workers International Union, Local
No. 67, AFL-CIO, and Van Storage Drivers,
Local 389.
1267
DECISIONS OF NATIONAL LABOR RELATIONS ()ARI)
WE WIll. NOT fail and refuse to remit to the
Unions the dues we withheld from our em-
ployees' paychecks for the period commencing
on December 1, 1979, as required by our col-
lective-bargaining agreement with the Unions.
WE WlI.I. NOT fail and refuse to furnish to
Local 67 the information which it previously
requested and which is relevant and necessary
to its performance as bargaining unit represen-
tative.
WE WILL make whole our employees by
transmitting our pension fund contributions
and our health and welfare benefit payments
for the period commencing on Decemeber I,
1979, as required by our collective-bargaining
agreement with the Unions.
WE WILL remit to the Unions the dues we
withheld from the paychecks of our employees
for the period commencing on December 1,
1979, plus interest.
WE WILL upon request by Local 67, furnish
to it information previously requested which is
necessary and relevant to its performance as
collective-bargaining representative.
MEMLEY PLATING COMPANY
1268