Pangori & Sons, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1980

248 N.L.R.B. 405 (N.L.R.B. 1980)

PANGORI & SONS, INC 405
V. Pangori & Sons, Inc., and David Curvell, Receiv-
er in Bankruptcy and Local 324, International
Union of Operating Engineers, AFL-CIO. Case
7-CA-16906
March 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge and an amended charge filed on
October 11 and November 13, 1979, respectively,
by Local 324, International Union of Operating
Engineers, AFL-CIO, herein called the Union, and
duly served on V. Pangori & Sons, Inc., and David
Cuvrell, Receiver in Bankruptcy for V. Pangori &
Sons, Inc., herein individually called the Employer
and the Receiver, respectively, and collectively
called the Respondents, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 7, issued a complaint and
notice of hearing on November 16, 1979, against
the Respondents, alleging that the Respondents had
engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (1), Section 8(d), 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.
The complaint alleges that, by virtue of a collec-
tive-bargaining agreement between the Employer
and the Union, effective from September 1, 1978,
until September 1, 1980, herein referred to as the
current collective-bargaining agreement, the Union
has been the exclusive representative of the follow-
ing employees, herein called the unit employees,
for the purposes of collective bargaining:
All operating engineers, mechanics, oilers and
apprentice engineers employed by V. Pangori
& Sons, Inc., but excluding guards and super-
visors as defined in the Act.
The complaint further alleges that, by virtue of
Section 9(a) of the Act, the Union has been, and is
now, the exclusive representative of the unit em-
ployees for the purposes of collective bargaining
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment.
With respect to the unfair labor practices, the
complaint alleges that the current collective-bar-
gaining agreement provides, inter alia, for the pay-
ment of moneys by the Employer into various
fringe benefit funds established for the benefit of
the unit employees, and that, since on or about
248 NLRB No. 70
April 5, 1979, and continuing to date, the Respon-
dents have refused, and continue to refuse, to bar-
gain collectively with the Union as the exclusive
collective-bargaining representative of the unit em-
ployees. Specifically, the complaint alleges that the
Respondents have unilaterally, and without notice
to the Union, evaded, breached, subverted, and
modified the terms of the current collective-bar-
gaining agreement by paying the unit employees
for services performed, but without making the re-
quired fringe benefit payments mentioned above.
The Respondents have not filed an answer to the
complaint. '
On December 13, 1979, counsel for the General
Counsel filed directly with the Board a motion for
judgment on the pleadings. Subsequently, on Janu-
ary 2, 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
judgment on the pleadings should not be granted.
The Respondents have not filed a response to the
Notice to Show Cause.
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 Judgment on the
Pleadings
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides, inter alia: "All allegations in the com-
plaint, if no answer is filed ... shall be deemed to be
admitted to be true and shall be so found by the
Board .... " As set forth above, the Respondents
have not filed an answer to the complaint; the time
within which to file having passed, we find all alle-
gations in the complaint to be true. There being no
issues in dispute, we grant the motion for judgment
on the pleadings.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Employer, V. Pangori & Sons, Inc., is a
Michigan corporation with its principal office and
place of business in Grand Blanc, Michigan. The
Employer is engaged in the business of digging and
laying of sewers and water mains in the construc-
However, by a letter to the Board from their attorney, dated Novem-
ber 5, 1979, the Respondents conceded both the existence and amount of
their liability in this matter
PANGORI & SONS, INC 05
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion industry within the State of Michigan. During
the year ending December 31, 1978, which period
is representative of its operations during all times
material herein, the Employer, in the course and
conduct of its business operations, provided sewer
and water main construction services from its Oak
Park, Michigan, place of business valued in excess
of $500,000, of which services valued in excess of
$100,000 were furnished to the County of Genesee.
During the year ending December 31, 1978, Gene-
see County, in the course and conduct of its mu-
nicipal operations, received goods and services
valued in excess of $50,000 directly from suppliers
located outside the State of Michigan.
On or about July 6, 1978, in a proceeding under
Chapter XI of the Bankruptcy Act, in the United
States District Court of the Eastern District of
Michigan, Southern Division, sitting at Flint,
Michigan, the Honorable Harold Bobier, bankrupt-
cy judge, appointed David Cuvrell as the receiver
in possession of, inter alia, all lands, premises,
buildings, fixtures, furniture, appliances, and appa-
ratus of V. Pangori & Sons, Inc., with full author-
ity to continue operations and exercise all powers
necessary to the administration of the business of
V. Pangori & Sons, Inc.
We find, on the basis of the foregoing, that the
Respondents are, and at all times material here
have been, 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 ORGANIZATION INVOLVED
Local 324, International Union of Operating En-
gineers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Employer and the Union are parties to a
collective-bargaining agreement, effective from
September 1, 1978, until September 1, 1980, which
provides, inter alia, for the payment of moneys by
the Employer into various fringe benefit funds es-
tablished for the benefit of the unit employees.
Since on or about April 5, 1979, and continuing to
date, Respondents have unilaterally, and without
notice to the Union, ceased making the fringe bene-
fit payments required by the terms of the collec-
tive-bargaining agreement mentioned above.
Accordingly, we find that the Respondents have,
since April 5, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the unit employees, and
that, by such refusal, the Respondents have en-
gaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 8(d) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondents set forth in
section III, above, occurring in connection with
the operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, 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 the Respondents have en-
gaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 8(d) of the Act, we shall order that they
cease and desist therefrom, make all fringe benefits
payments owed to the various fringe benefit funds
as required by the terms of the current collective-
bargaining agreement with the Union, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. V. Pangori & Sons, Inc., and David Cuvrell,
Receiver in Bankruptcy for V. Pangori & Sons,
Inc., are an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 324, International Union of Operating
Engineers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All operating engineers, mechanics, oilers, and
apprentice engineers employed by V. Pangori &
Sons, Inc., excluding guards and supervisors as de-
fined in the Act, constitute a unit of employees ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since September 1, 1978, by virtue of a collec-
tive-bargaining agreement with the above-named
Employer, the above-named labor organization has
been the exclusive representative of all the employ-
ees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By ceasing on or about April 5, 1979, and at
all times thereafter, to make the fringe benefit pay-
ments required by the collective-bargaining agree-
ment with the above-named labor organization, Re-
spondents have engaged in and are engaging in
PANGORI & SONS, INC. 407
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and Section 8(d) of the Act.
6. By the aforesaid actions, Respondents have in-
terfered with, restrained, and coerced, and are in-
terfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in
Section 7 of the Act, and thereby have engaged in
and are engaging in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
7. 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 Respondents,
V. Pangori & Sons, Inc., Grand Blanc, Michigan,
its officers, agents, successors, and assigns, and
David Cuvrell, Receiver in Bankruptcy for V. Pan-
gori & Sons, Inc., Grand Blanc, Michigan, his
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local
324, International Union of Operating Engineers,
AFL-CIO, as the exclusive bargaining representa-
tive of their employees in the unit herein found ap-
propriate by unilaterally, and without notice to the
above-named labor organization, evading, breach-
ing, subverting, or modifying the terms of the cur-
rent collective-bargaining agreement between V.
Pangori & Sons, Inc., and the above-named labor
organization by paying unit employees for services
performed, but without making fringe benefit pay-
ments as required under the terms of such collec-
tive-bargaining agreement.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Make all fringe benefit payments owed to the
various fringe benefit funds as required by the
terms of the current collective-bargaining agree-
ment with the above-named labor organization. 2
2 Because the provisions of employee benefit fund agreements are vari-
able 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
whether Respondent must pay any additional amounts into the health and
welfare trust fund in order to satisfy our "make whole" remedy. These
additional amounts may be determined, depending upon the circum-
stances of each case, by reference to provisions in the documents govern-
ing the fund and, if there are no governing provisions, by 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 costs, etc. hut not collateral losses
(b) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the unit described below, with
respect to any modification of rates of pay, wages,
hours, or other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The bar-
gaining unit is:
All operating engineers, mechanics, oilers and
apprentice engineers employed by V. Pangori
& Sons, Inc., but excluding guards and super-
visors as defined in the Act.
(c) Post at their principal office in Grand Blanc,
Michigan, and at all their other places of business
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by the Respondents' representatives, shall be
posted by the Respondents immediately upon re-
ceipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondents to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
3 In the event that 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 Pursu-
ant to a Judgment of the United Stated Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Local 324, International Union of Operat-
ing Engineers, AFL-CIO, as the exclusive bar-
gaining representative of our employees in the
bargaining unit described below by unilateral-
ly, and without notice to the above-named
Union, evading, breaching, subverting, or
modifying the terms of our current collective-
bargaining agreement with the above-named
Union by paying unit employees for services
performed, but without making required fringe
benefit payments.
PANGORI & SONS, INC 07
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL make all fringe benefit payments
owed to the various fringe benefit funds as re-
quired by the terms of our current collective-
bargaining agreement with the above-named
Union. WE WILL, upon request, bargain with
the above-named Union, as the exclusive rep-
resentative of all employees in the bargaining
unit described below, with respect to any
modification of rates of pay, wages, hours, or
other terms and conditions of employment,
and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All operating engineers, mechanics, oilers
and apprentice engineers employed by V.
Pangori & Sons, Inc. but excluding guards
and supervisors as defined in the Act.
V. PANGORI & SONS, INC.
DAVID CUVRELL, RECEIVER IN
BANKRUPTCY FOR V. PANGORI &
SONS, INC.