Nick Robilotto, Inc

National Labor Relations Board - Board Decisions

Feb 22, 1989

292 N.L.R.B. 1279 (N.L.R.B. 1989)

NICK ROBILOTTO INC 1279
Nick Robilotto , Inc and International Brotherhood
of Painters and Allied Trades , Local 201 Case
3-CA-14446
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
February 22, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On July 22, 1988,1 the General Counsel of the
National Labor Relations Board issued a com
plaint2 alleging that the Respondent has violated
Section 8(a)(5) and (1) and Section 8(d) of the Na-
tional Labor Relations Act by failing and refusing
to provide contractually mandated fringe benefit
contribution reports and by failing to make pay
ment of pension contributions The Respondent
filed an answer admitting in part and denying in
part the allegations in the complaint and submitting
affirmative defenses
The complaint alleges, and the Respondent
admits, that the Respondent is obligated by its im
mediate past and current collective-bargaining
agreements to file fringe benefit contribution re-
ports and make payment of pension contributions
The two most recent collective-bargaining agree
ments between the Respondent and the Union have
effective dates of May 1, 1985, to April 30, 1988,
and May 1, 1988, to April 30, 1990, respectively
Since about December 16, 1987, the Respondent
has failed and refused to pay
In its answer the Respondent admits the above
allegations, but denies that this conduct constitutes
an unlawful refusal to bargain in good faith The
Respondent admits that it has failed to make the
contractually required contributions but submits
that the reason for this failure is solely its present
financial inability to pay The Respondent submits
as a first affirmative defense that it has suffered
cash-flow problems due to delays in receiving pay
ments from its contractors As a second affirmative
defense, it points out that, since the filing of the
charge, it has made payments to the funds bringing
it current through December 1987 and avers that it
expects to clear up the back contributions within
45 days
On August 22 the General Counsel filed a
Motion for Summary Judgment On September 6
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 Respondent
filed no response
i All dates are 1988 unless otherwise specified
2 The initial complaint of July 22 was superseded by an amended com
plaint of July 25 and by an amendment to the amended complaint (collet
tively the complaint) on August 11
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its failure to
file fringe benefit contribution reports and its fail-
ure to make payment of pension contributions, as it
is obligated to do under article 7 (benefit funds) of
the 1985-1988 agreement and under article 8 of the
1988-1990 agreement
It is well established that Section 8(a)(5) and (1)
and Section 8(d) of the Act prohibit an employer
that is a party to an existing collective-bargaining
agreement from modifying the terms and condi-
tions of employment established by that agreement
without obtaining the consent of the union 3 Here,
the Respondent has admitted that it unilaterally
failed and refused to file fringe benefit reports and
to make payments of pension contributions Ac-
cordingly, the Respondent has admitted all the
facts material to a resolution of the unfair labor
practice issues raised by the complaint The Re
spondent's claim that it is financially unable to
make the required payments does not constitute an
adequate defense to an allegation that an employer
has violated Section 8(a)(5) and (1) and Section
8(d) of the Act by failing to abide by a provision of
a collective bargaining agreement General Split
Corp, 284 NLRB 418 (1987)
Nor does the Respondent's hope of clearing up
the back payments within 45 days (that is, after the
charge had been filed) constitute an adequate de-
fense to the complaint allegations here 4 The Board
does not determine at the adjudicatory stage of a
proceeding the question of how much the Re
spondent owes We leave this matter to the compli-
ance stage Merryweather Optical Co, 240 NLRB
1213 (1979)
3 E g Rap d Fur Dressing 278 NLRB 905 (1986) Nestle Co 251
NI RB 1023 (1980) Pere Marquette Park Lodge 237 NLRB 855 861
(1978)
" Our dissenting colleague is unwilling to find an unlawful refusal to
bargain when the delinquency represents only what is asserted to be a
temporary failure to make timely payments as evidenced here by the Re
spondent s assertion that within 45 days after the filing of its August 15
1988 answer to the complaint it would make the payments still owing
which according to its own admission extended back more than 6
months We note that a temporary failure may become permanent
whatever promises the employer might make We are uncertain what
standard our colleague would apply in determining when a cause of
action for repudiation would accrue because the Charging Party would
find it difficult to know how long to wait before filing a charge without
risking dismissal on the grounds that the 10(b) limitations period had al
ready expired We therefore believe that the better course is to treat the
financial inability defense as an inadequate defense as we do here Gener
al Split Corp supra at fn 2 As we indicated there however we do not
mean that we would predicate a violation on a delayed payment or two
where the matter has been finally resolved between the parties by the
time the complaint is to issue
292 NLRB No 139
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Because we find the affirmative defenses submit
ted by the Respondent to be inadequate, we grant
the motion to strike Because there are no material
facts in dispute, we grant the Motion for Summary
Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a New York corporation with
its principal office and place of business in Albany,
New York, operates as a painting contractor The
Respondent has derived in excess of $50,000 gross
revenues from its painting operations in the last 12
months, of which an amount in excess of $50,000
was derived from providing services to other enter
prises directly engaged in interstate commerce We
find that the Respondent 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 organi-
zation within the meaning of Section 2(5) of the
Act
II ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con
stitute a unit appropriate for collective bargaining
purposes within the meaning of Section 9(b) of the
Act
All journeymen, painters, tapers, paperhangers,
apprentices, and/or any person who uses the
tools of the trade other than a principal owner
The Union has continued to be the exclusive rep
resentative under Section 9(a) of the Act and this
relationship has been recognized in successive col-
lective-bargaining agreements The most recent
two agreements are effective by their terms from
May 1, 1985, to April 30, 1988, and from May 1,
1988, to April 30, 1990, respectively
The applicable agreements contain provisions re-
quiring the Respondent to file certain fringe benefit
contribution reports and to make payment of cer
tarn pension contributions Since on or about De
cember 16, 1987, the Respondent has unilaterally
and without notice to the Union modified the terms
of these collective-bargaining agreements by failing
to provide the contractually required payments and
reports We find that this failure constitutes an un
lawful refusal to bargain in violation of Section
8(a)(5) and (1) and Section 8(d) of the Act
CONCLUSIONS OF LAW
By refusing on and after December 16 to bargain
with the Union by failing to provide contractually
required payments and reports, the Respondent has
engaged in unfair labor practices affecting corn
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act
REMEDY
The Respondent has violated Section 8(a)(5) and
(1) and Section 8(d) of the Act, and we shall order
it to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act We shall order the Respondent to remit all
contractually required pension plan contributions
and reports 5 This shall include making all employ
ees whole for any loss of pension plan credits or
benefits resulting from the Respondent's failure to
make required pension plan contributions 6 This
shall also include reimbursing employees for any
contributions they themselves have made for the
maintenance of pension plan funds after the Re
spondent unlawfully discontinued contributions to
those funds, with interest as prescribed in New Ho
rizons for the Retarded 7
ORDER
The National Labor Relations Board orders that
the Respondent, Nick Robilotto, Inc, Albany,
New York, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Refusing to bargain with International Broth-
erhood of Painters and Allied Trades, Local 201 as
the exclusive bargaining representative of the em-
ployees in the bargaining unit by failing to file
fringe benefit contribution reports and to remit
pension contributions as provided in its collective
bargaining agreements with the Union The appro-
priate unit is
All journeymen, painters, tapers, paperhangers,
apprentices, and/or any person who uses the
tools of the trade other than a principal owner
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex
6 Because the provisions of pension plan fund 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 with
held fund payments We leave to the compliance stage the question of
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our make whole remedy These additional
amounts may be determined depending on 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 witholding action which might
include the loss of return on investment of the portion of the funds with
held additional administrative costs etc but not collateral losses
Merryweather Optical Co supra at 1216 fn 7
6 Kraft Plumbing & Heating 252 NLRB 891 (1980)
7 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621
NICK ROBILOTTO INC
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) File all fringe benefit contribution reports
due
(b) Remit all amounts owed, in the manner set
forth in the remedy section, to make the employees
whole for loss of moneys or benefits resulting from
the Respondent's failure to file benefit contribution
reports and pay pension plan contributions as pro
vided in the collective-bargaining agreements
(c) Post at its facility in Albany, New York,
copies of the attached notice marked Appendix 8
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, 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
MEMBER JOHANSEN, dissenting
On July 28, 1988, the General Counsel issued a
complaint alleging that the Respondent violated the
Act by failing to continue in full force and effect
the benefit funds article of its collective bargaining
agreement with the Union The Respondent filed
an answer admitting the factual allegations but de
nying that it violated the Act, and its defense noted
that (1) due to delays in receiving payments from
contractors, the Respondent had suffered cash flow
problems and had fallen behind in contract contri-
butions, and (2) after the charges were filed, the
Respondent had made some of the payments due,
and anticipated it would be "able to clear up its
back contributions within the next 45 days" In a
motion dated 1 week later, counsel for the General
Counsel moved the Board to strike the Respond-
ent's defenses in their entirety,' and issue a decision
granting summary judgment
8 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
I The Motion for Summary Judgment asserts in part that Respondents
defenses should be stricken because a compilation of how much the Re
spondent owed in contributions is no longer a matter for the Respond
ent s determination
1281
As I indicated in my dissent in General Split
Corp, 284 NLRB 418 (1987), the Board must rec
ognize that in some limited circumstances an em
ployer's unilateral action should not be found to be
an unfair labor practice, e g , where `an employer
has not repudiated its contractual obligations" but
rather of necessity has failed to observe certain of
its obligations In those cases, the employer has not
unlawfully refused to bargain, but at most is guilty
of a breach of contract (General Split, supra )
In this case, there is neither an allegation nor any
showing that the Respondent had repudiated its
bargaining or contractual obligations, indeed, it has
acknowledged those obligations and asserts that its
failure to comply fully was due to the nonreceipt
of funds owed to it Counsel for the General Coun-
sel does not dispute that some of the benefit funds
payments owed have been paid, as the Respondent
asserts Nor do we know whether all the arrears
were cleared up, as the Respondent anticipated in
its answer
In my view, the Respondent, in this situation,
has not undermined or obstructed the collective
bargaining relationship Thus, if the Board is to
give any real meaning to Congress' intent that not
every contract violation also constitutes an unfair
labor practice, this is the type of case in which the
Board should decline to make an unfair labor prac
tice finding Accordingly, I would dismiss the com
plaint
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 with Internation-
al Brotherhood of Painters and Allied Trades,
Local 201 as the exclusive bargaining representa-
tive of our unit employees, by failing to file fringe
benefit contribution reports as provided in our col-
lective-bargaining agreements with the Union The
appropriate unit is
All journeymen, painters, tapers, paperhangers,
apprentices, and/or any person who uses the
tools of the trade other than a principal owner
WE WILL NOT refuse to bargain with the Union
by failing to remit pension benefit contributions as
provided in our collective bargaining agreements
with the Union
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner any loss of moneys or benefits resulting from our
interfere with , restrain , or coerce you in the exer failure to provide pension plan contributions and
cise of the rights guaranteed you by Section 7 of reports for unit employees as provided in the col
the Act lective bargaining agreements
WE WILL remit to the union funds all pension
plan contributions owed, and fringe benefit contri- NICK ROBILOTTo, INC
bution reports , to make the employees whole for