Pacific Consolidated

National Labor Relations Board - Board Decisions

Nov 25, 1987

286 N.L.R.B. 1102 (N.L.R.B. 1987)

1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Darta, Inc. d/b/a Pacific Consolidated and Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 24.
Case 36-CA-5578
25 November 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
Upon a charge filed by the Union 23 April 1987,
as amended 22 May 1987, the General Counsel of
the National Labor Relations Board issued a com-
plaint 28 May 1987, and an erratum to the com-
plaint 1 June 1987, against Pacific Consolidated,
the Respondent, alleging that it has violated Sec-
tion 8(d) and Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that: (1) since at least 23
October 1986, the Respondent has failed to make
any contractually required fringe benefit contribu-
tions for certain unit employees; (2) since at least
23 October 1986, the Respondent has failed to
make contractually required pension contributions
for any of the unit employees; (3) since about 1
January 1987, the Respondent has failed to make
contractually required health and welfare and
dental contributions for any of the unit employees;
(4) since about 16 December 1986,1 the Respond-
ent has refused to process grievances filed by the
Union. On 10 June, 15 July, and 3 August 1987,
the Respondent filed an answer , an amended
answer, and a second amended answer respective-
ly, admitting in part and denying in part the allega-
tions in the complaint.
On 14 August 1987 the General Counsel filed a
Motion for Summary Judgment. On 18 August
1987 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on the Motion for Summary Judgment
In its first amended answer to the complaint, the
Respondent admits paragraph 2(d) of this com-
plaint that "at all times herein, [it has been] an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act." However, in
its first amended answer, it also avers that since 30
April 1987 it "has not been engaged in the business
' The obvious typographical error in the complaint that the Respond-
ent refused to process grievances since "December 16, 1987" is correct-
ed.
of manufacture, service and non-retail sales of
custom truck bodies and related products [as al-
leged in paragraph 2(a) of the complaint] and has
no office or place of business in Portland, Oregon
[as alleged in paragraph 2(a) of the complaint]."
The Board has found no merit to the argument that
because the employer ceased operations during the
period when the unfair labor practices were alleged
to have occurred it was not engaged in commerce
at that time. See Benchmark Industries, 269 NLRB
1096, 1097-1098 (1984). Accordingly, we do not
find that the Respondent's purported cessation of
operations defeats the Board's jurisdiction over it.2
The Respondent further avers in its second amend-
ed answer that:
... the Union has not been recognized as the
designated exclusive collective bargaining rep-
resentative of the Unit since January 1, 1967
[as alleged in paragraph 5(b) and (c) of the
complaint] but in fact has been recognized as
collective bargaining representative of the Unit
since January 1, 1985.
Because the Respondent has conceded that the
Union represented the unit employees for over 20
months before 23 October 1986, which is the time
that the complaint alleges the violations com-
menced, we conclude that the question the Re-
spondent has raised regarding the precise date that
the Union was initially recognized is immaterial to
our resolution of this case. We shall accept its ad-
mission that since 1 January 1985 the Union has
been the unit employees' collective-bargaining rep-
resentative. Finally, the Respondent, while admit-
ting that it engaged in the conduct alleged in the
complaint, denies the conclusionary 8(d) and
8(a)(5) and (1) allegations of the complaint. It is
well established that an employer acts in deroga-
tion of its bargaining obligation under Section 8(d)
of the Act, when during the life of a collective-bar-
gaining agreement it unilaterally modifies or other-
wise repudiates terms and conditions contained in
the agreement. Morelli Construction Co., 240 NLRB
1190 (1979). It also is clear that an employer vio-
lates Section 8(a)(5) and (1) of the Act when it dis-
continues terms and conditions of employment
which are mandatory subjects of bargaining with-
out first bargaining with the union, or when it re-
fuses to process grievances. We therefore grant the
General Counsel's Motion for Summary Judgment.
' The General Counsel's motion for Summary Judgment does not re-
flect that the Respondent questions the accuracy of the allegations in par.
2(a) of the complaint . Contrary to the implication in the Motion for Sum-
mary Judgment , we do not read the Respondent 's second amended
answer as withdrawing its argument in its first amended answer on this
issue and we thus have addressed the argument on the merits
286 NLRB No. 109
PACIFIC CONSOLIDATED 1103
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, an Oregon corporation with an
office and place of business in Portland, Oregon,
was engaged at least through 30 April 1987 in the
business of the manufacture , service, and nonretail
sale of custom truck bodies and related products.
During the 12-month period preceding the issuance
of the complaint, a representative period, the Re-
spondent, in the course and conduct of its business
operations, sold and shipped goods or provided
services from its facilities Nvihtin the State of
Oregon to customers located outside the State, or
sold and shipped goods or provided services to
customers within the State of Oregon, which cus-
tomers themselves were engaged in interstate com-
merce by other than indirect means, of a total
value in excess of $50,000. We find that the Com-
pany 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
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, production painters,
helpers and journeymen body builders em-
ployed by the Respondent at its Portland,
Oregon, facility, but excluding all other em-
ployees, detail clean-up employees, office cleri-
cal employees , guards and supervisors as de-
fined in the Act.
Since 1 January 1985, the Union has been the rec-
ognized representative of the Respondent's employ-
ees in the unit described above and, by virtue of
Section 9(a) of the Act, is and has been the exclu-
sive collective-bargaining representative of these
employees for the purposes of collective bargaining
with respect to rates of pay , wages, hours, and
other terms and conditions of employment. Such
recognition has been embodied in collective-bar-
gaining agreements , the most recent of which was
effective by its terms from August 1985 until at
least 1 February 1987.
Since at least 23 October 1986, the Respondent
has failed to make any contractually required
fringe benefit contributions for certain unit employ-
ees. Since at least 23 October 1986, the Respondent
has failed to make any contractually required pen-
sion contributions for any of the unit employees.
Since about 1 January 1987, the Respondent has
failed to make contractually required health and
welfare and dental contributions for any of the unit
employees. Since about 16 December 1986, the Re-
spondent has refused to process grievances filed by
the Union. The terms and conditions of the agree-
ment which the Respondent failed to continue in
full force and effect are terms and conditions of
employment of the employees in the above-de-
scribed unit and are mandatory subjects of bargain-
ing. With regard to the various acts detailed above
which occurred between 23 October 1986 and 1
February 1987, the Respondent engaged in such
acts without the consent of the Union. With regard
to those actions occurring after 1 February 1987,
the Respondent took such action without prior
notice to the Union and without affording it an op-
portunity to bargain about such actions. Accord-
ingly, we find that the Respondent, by the acts and
conduct set forth above which occurred between
23 October 1986 and 1 February 1987, has acted
contrary to Section 8(d), and has violated Section
8(a)(5) and (1) of the Act and by the acts and con-
duct subsequent to 1 February 1987 has violated
Section 8(a)(5) and (1) of the Act.3
CONCLUSIONS OF LAW
By unilaterally ceasing contractually required
fringe benefit, pension, health and welfare, and
dental contributions, and by refusing to process
grievances filed by the Union between 23 October
1986 and 1 February 1987, the Company has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(d), Section 8(a)(5)
and (1 ), and Section 2(6) and (7) of the Act, and by
those same actions after 1 February 1987, the Re-
spondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, 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 that the Respondent make the
8 Member Johansen agrees that the Respondent violated Sec. 8(aX5)
and (1 ) of the Act, but notes his dissent in H,ysota Fuel Co., 280 NLRB
253 (1986), wherein he stated that , in certain limited circumstances, he
would not find that an employer 's delinquency with regard to its contrac-
tual obligations violated Sec 8(a)(5) of the Act Also, in Member Johan-
sen's view, an employer must present evidence to establish that , despite
its delinquency , it has not repudiated the contract to avoid being found in
violation of Sec . 8(a)(5) Here, Member Johansen finds that the Respond-
ent failed to establish that it has not repudiated the contract
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees whole by paying all contractually re-
quired fringe benefit, pension, health and welfare,
and dental contributions, as provided in the collec-
tive-bargaining agreement, which have not been
paid and which would have been paid absent the
Respondent's unlawful unilateral discontinuance of
such payments.4
ORDER
The National Labor Relations Board orders that
the Respondent, Darta, Inc. d/b/a Pacific Consoli-
' dated, Portland, Oregon, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to process grievances filed on behalf
of employees by International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, Dis-
trict Lodge No. 24, as the exclusive collective-bar-
gaining representative of employees in the follow-
ing appropriate unit:
All journeymen painters, production painters,
helpers and journeymen body builders em-
ployed by the Respondent at its Portland,
Oregon, facility, but excluding all other em-
ployees, detail clean-up employees, office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
(b) Unilaterally ceasing contractually required
fringe benefit, pension, health and welfare, and
dental contributions.
4 Because the provisions of employee benefit fund agreements are vari-
able and complex , the Board does not provide for interest at a fixed rate
and on fund payments due as part of a "make whole " remedy . We there-
fore leave to further proceedings the question of any additional amounts
the Respondent may pay into the benefit funds to satisfy our remedy
here. These additional amounts may be determined, depending upon the
circumstances of each case, by reference to provisions in the documents
governing the funds involved and , when there are no governing provi-
sions, to evidence of any loss directly attributable to the unlawful action,
which might include the loss of return on investment of the portion of
funds withheld , additional administrative costs, etc , but not collateral
losses See Merryweather Optical Co., 240 NLRB 1213, 1216, fn. 7 (1979).
The Respondent shall also reimburse with interest its employees for
any expenses ensuing from its failure to make contributions to various
funds established by the expired collective-bargaunng agreement between
the Respondent and the Union. Kraft Plumbing & Heating, 252 NLRB
891 fn 2 (1980), enfd . 661 F.2d 940 (9th Cir 1981) In accordance with
our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987),
interest on and after 1 January 1987 shall be computed at the "short-term
Federal rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S C. § 6621 . Interest on amounts accrued prior to 1 Janu-
ary 1987 (the effective date of the 1986 amendment to 26 U S C § 6621)
shall be computed in accordance with Florida Steel Corp, 231 NLRB 651
(1977).
We shall leave to compliance the effect , if any, the Respondent's pur-
ported cessation of operations on our remedial order.
The General Counsel requests a visitatorial clause authorizing the
Board for compliance purposes to obtain discovery from the Respondent
under the Federal Rules of Civil Procedure subject to the supervision of
the United States court of appeals enforcing this Order. Under the cir-
cumstances of this case , we find it unnecessary to include such a clause.
Accordingly, we deny the General Counsel's request
(c) 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) On request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the unit described above with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and process
the grievances filed by the Union on behalf of the
unit employees.
(b) Make the unit employees whole by paying all
contractually required fringe benefit , pension,
health and welfare, and dental contributions, as
provided in the collective-bargaining agreement,
which have not been paid and which would have
been paid absent the Respondent's unlawful unilat-
eral discontinuance of such payments, and continue
such payments until such time as the Respondent
negotiates in good faith to a new agreement or an
impasse.
(c) Reimburse the unit employees for any ex-
penses, plus interest, they incurred as a result of the
failure to make fringe benefits, pension, health and
welfare, and dental contributions.
(d) Post at its facility in Portland, Oregon, copies
of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 36, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 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."
PACIFIC CONSOLIDATED 1105
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to process grievances filed
on behalf of employees by International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO, District Lodge No . 24, as the exclusive col-
lective-bargaining representative of our employees
in the following appropriate unit:
All journeymen painters, production painters,
helpers and journeymen body builders em-
ployed by the Respondent at its Portland,
Oregon , facility, but excluding all other em-
ployees, detail clean-up employees , office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT unilaterally cease contractually re-
quired fringe benefit, pension , health and welfare,
and dental contributions.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union as
the exclusive collective -bargaining representative
of our employees in the unit described above with
respect to rates of pay, wages , hours, and other
terms and conditions of employment , and WE WILL
process the grievances filed by the Union on behalf
of the unit employees.
WE WILL make the unit employees whole by
paying all contractually required fringe benefit,
pension , health and welfare, and dental contribu-
tions, as provided in the collective-bargaining
agreement , which have not been paid and which
would have been paid absent our unlawful unilater-
al discontinuance of such payments , and WE WILL
continue such payments until such time as we ne-
gotiate in good faith to a new agreement or an im-
passe.
WE WILL also reimburse with interest the unit
employees for any expenses they incurred as a
result of our failure to make fringe benefit, pension,
health and welfare , and dental contributions.
DARTA, INC. D/B/A PACIFIC CON-
SOLIDATED