N.D. Peters & Co.

National Labor Relations Board - Board Decisions

Aug 16, 1996

321 N.L.R.B. 927 (N.L.R.B. 1996)

927
321 NLRB No. 141
N. D. PETERS & CO.
N. D. Peters & Company and International Broth-
erhood of Teamsters, Local Union 182, AFL–
CIO. Case 3–CA–19517
August 16, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon a charge filed on July 25, 1995, a complaint
and notice of hearing issued on September 28, 1995.
The complaint alleged that the Respondent, N. D. Pe-
ters & Company, violated Section 8(a)(5) and (1) of
the National Labor Relations Act by failing to pay, to
the health and hospital fund and pension and retire-
ment fund, contributions on behalf of its unit employ-
ees. Copies of the charge and the complaint were
served on the Respondent. On October 5, 1995, the
Respondent filed an answer to the complaint denying
the commission of any unfair labor practices.
On April 5, 1996, the above-named parties and the
counsel for the General Counsel of the National Labor
Relations Board (the General Counsel) jointly filed a
motion to transfer proceedings to the Board and a stip-
ulation of facts. The parties agreed that the unfair labor
practice charge, complaint, stipulation of facts, and an-
swer, as amended by the stipulation of facts, constitute
the entire record in this case, and that no oral testi-
mony is necessary or desired by any of the parties.
The parties further stipulated that they waived a hear-
ing before an administrative law judge, and issuance of
an administrative law judge’s decision, and desire to
submit this case for findings of fact, conclusions of
law, and order directly to the Board.
On May 14, 1996, the Board issued an order ap-
proving the stipulation and transferring the proceeding
to the Board. Thereafter, the General Counsel filed a
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, with its
principal office and place of business located at 840
Broad Street, Utica, New York, is a ready-mix con-
crete supplier. During the 12-month period ending
March 19, 1996, the Respondent sold and shipped
goods and materials valued in excess of $50,000 from
its Utica facility to other enterprises directly engaged
in interstate commerce.
The parties stipulated, and we find, that the Re-
spondent has been at all material times an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that International
Brotherhood of Teamsters, Local Union 182, AFL–
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
1. The unit and the Union’s representative status
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All Drivers, Power-Driven Concrete Block Ma-
chine Operators, Concrete Block Plant Mixer
Men, Yardmen, Batch Men, Mill Men, Truck
Helpers and Mechanics.
Since about 1975, and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and since then the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which was effective from March 1, 1992, to
February 28, 1995. At all times since 1975, based on
Section 9(a) of the Act, the Union has been the exclu-
sive bargaining representative of the unit.
2. Refusal to bargain
Under the provisions of the 1992–1995 collective-
bargaining agreement, the Respondent was required to
make contributions to the aforementioned funds on be-
half of unit employees. Specifically, the Respondent
was required to make contributions to the following
funds:
Article 5
New York State Teamsters Health and
Hospital Fund
Article 6
New York State Teamsters Conference Pension
and Retirement Fund
Articles 5 and 6 are mandatory subjects for the pur-
pose of collective bargaining.
Despite the requirements of the 1992–1995 collec-
tive-bargaining agreement, the Respondent failed to
comply with the provisions of articles 5 and 6 from
April 10 to October 15, 1995, without affording the
Union an opportunity to bargain with the Respondent
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The parties stipulated that issues relating to the amounts owed,
and the individuals for whom payments are owed, are to be resolved
in a subsequent compliance proceeding. The Respondent specifically
disputes that funds are owed on behalf of Raymond Bronson, Rafael
Gapelli, and Jose Rivera, and does not admit that these individuals
are members of the bargaining unit or that they perform bargaining
unit work.
2 Only the General Counsel filed a brief with the Board.
with respect to this conduct and the effects of this con-
duct.
Following negotiations, on October 15, 1995, the
parties reached impasse on the Respondent’s proposals
to substitute provisions for articles 5 and 6.
3. The Respondent’s defense
The Respondent stipulates, and the Union and the
General Counsel do not dispute, that its failure to com-
ply with articles 5 and 6 from April 10 to October 15,
1995, is due to poor business conditions and cash-flow
problems and, further, that it has paid certain delin-
quencies to the union funds.1
B. Contentions of the Parties2
The General Counsel notes that the Respondent ac-
knowledges its failure to comply with the contract’s re-
quirements to make contributions to the health and
hospital and retirement funds. The General Counsel as-
serts that the Respondent’s defense that it is financially
unable to pay does not excuse its failure to make the
required fund contributions. Citing Kane Systems
Corp., 315 NLRB 355 (1994), the General Counsel ar-
gues that by failing to comply with articles 5 and 6 of
the contract without affording the Union an oppor-
tunity to bargain the Respondent has violated Section
8(a)(5) and (1).
C. Discussion
We agree with the General Counsel that the Re-
spondent violated Section 8(a)(5) and (1) by failing,
for the period of April 10 to October 15, 1995, to
make required contributions to the New York State
Teamsters Health and Hospital Fund and the New
York State Teamsters Conference Pension and Retire-
ment Fund.
It is well settled that, in the absence of unusual cir-
cumstances not here present, after a collective-bargain-
ing agreement expires, ‘‘an employer must maintain
the status quo on all mandatory subjects of bargaining
until the parties either agree on a new contract or reach
a good-faith impasse in negotiations.’’ Triple A Fire
Protection, 315 NLRB 409, 414 (1994): see also id. at
416, 422. This includes making contributions to fringe
benefit funds as specified in the expired collective-bar-
gaining agreement. Lou’s Produce, Inc., 308 NLRB
1194 (1992).
Here, the Respondent admits that it has failed to
make fund contributions as required under the terms of
the expired 1992–1995 collective-bargaining agree-
ment. Its sole defense is that poor business and cash-
flow problems have prevented it from fully complying
with its contractual requirements. However, it is well
established that an employer is prohibited under Sec-
tion 8(a)(5) and (1) from modifying the terms and con-
ditions of employment set forth in the applicable col-
lective-bargaining agreement without the consent of
the Union. Nick Robilotto, Inc., 292 NLRB 1279
(1989). The fact that it additionally claims an inability
to make the required contributions is no defense to the
8(a)(5) and (1) allegations. Endicott Forging & Mfg.,
319 NLRB 180 (1995); Kane Systems Corp., supra.
Accordingly, by these acts and conduct, the Re-
spondent has refused to bargain collectively and in
good faith with the Union, the exclusive collective-bar-
gaining representative of its unit employees, and has
thereby been engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, N. D. Peters & Company, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters, Local
Union 182, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. By failing to make required contributions on be-
half of unit employees to the New York State Team-
sters Health and Hospital Fund and to the New York
State Teamsters Conference Pension and Retirement
Fund, for the period of April 10 to October 15, 1995,
as required by articles 5 and 6 in the parties’ 1992–
1995 collective-bargaining agreement, the Respondent
has engaged in unfair labor practices affecting com-
merce 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 that it
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having additionally found that the Respondent has
violated Section 8(a)(5) and (1) by failing to make
contractually required contributions to the New York
State Teamsters Health and Hospital Fund and to the
New York State Teamsters Conference Pension and
Retirement Fund on behalf of unit employees, we shall
order the Respondent to make these employees whole
by making all delinquent contributions, including any
additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its fail-
ure to make the required contributions, as set forth in
929N. D. PETERS & CO.
3 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the Fund.
4 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 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.’’
Kraft Plumbing & Heating, 252 NLRB 891 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).3
ORDER
The National Labor Relations Board orders that the
Respondent, N. D. Peters & Company, Utica, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Brother-
hood of Teamsters, Local Union 182, AFL–CIO as the
exclusive collective-bargaining representative of unit
employees by failing and refusing to make required
contributions to the New York State Teamsters Health
and Hospital Fund and to the New York State Team-
sters Conference Pension and Retirement Fund, for the
period covering April 10 to October 15, 1995.
(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) Remit the required contributions to the New
York State Teamsters Health and Hospital Fund, in-
cluding any additional amounts owed the Fund, and
make whole employees for any expenses ensuing from
its failure to remit contributions, in the manner set
forth in the remedy section of this decision.
(b) Remit to the New York State Teamsters Con-
ference Pension and Retirement Fund the required con-
tributions, including any additional amounts owed the
Fund, and reimburse unit employees for any expenses
ensuing from the Respondent’s failure to make the re-
quired payments, in the manner set forth in the remedy
section of this decision.
(c) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All Drivers, Power-Driven Concrete Block Ma-
chine Operators, Concrete Block Plant Mixer
Men, Yardmen, Batch Men, Mill Men, Truck
Helpers and Mechanics.
(d) Preserve and, within 14 days of any request,
make available to the Board or its agents for examina-
tion and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Utica, New York, copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current and
former employees employed by the Respondent at any
time since April 10, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent 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 International
Brotherhood of Teamsters, Local Union 182, AFL–
CIO as the exclusive collective-bargaining representa-
tive of our unit employees by failing and refusing to
remit required contributions to the New York State
Teamsters Health and Hospital Fund and to the New
York State Teamsters Conference Pension and Retire-
ment Fund.
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 make the required contributions to the
New York State Teamsters Health and Hospital Fund,
including any additional amounts due the Fund, and
WE WILL make the unit employees whole by reimburs-
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing them for any expenses ensuing from our failure to
make the required contributions, with interest.
WE WILL remit the unpaid contributions to the New
York State Teamsters Conference Pension and Retire-
ment Fund, including any additional amounts due the
Fund, and WE WILL reimburse the unit employees for
any expenses ensuing from our failure to make the re-
quired payments, with interest.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All Drivers, Power-Driven Concrete Block Ma-
chine Operators, Concrete Block Plant Mixer
Men, Yardmen, Batch Men, Mill Men, Truck
Helpers and Mechanics.
N. D. PETERS & COMPANY