Poland Processing Co.

National Labor Relations Board - Board Decisions

Feb 18, 1993

310 N.L.R.B. 494 (N.L.R.B. 1993)

494
310 NLRB No. 60
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 E.g., Rapid Fur Dressing, 278 NLRB 905 (1986); Nestle Co.,
251 NLRB 1023 (1980); Pere Marquette Park Lodge, 237 NLRB
855 (1978).
Poland Processing Company and United Mine
Workers of America, AFL–CIO. Case 6–CA–
24825
February 18, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
A charge was filed by United Mine Workers of
America, AFL–CIO (the Union) on August 27, 1992.
On September 25, 1992, the General Counsel of the
National Labor Relations Board issued a complaint
against Poland Processing Company (the Respondent),
alleging that it violated Section 8(a)(5) and (1) of the
National Labor Relations Act by unilaterally dis-
continuing health and retirement fund contributions, re-
mittances to the Union of union dues and assessments,
selective strike fund contributions, training and edu-
cation fund contributions, and contractually required
wage payments. On October 13, 1992, the Respondent
filed its answer to the complaint, admitting that it dis-
continued the above-described payments, but asserting
that it did so because ‘‘exigent business circumstances
have prevented Respondent from meeting all of its ob-
ligations under the terms of the Collective Bargaining
Agreement’’ with the Union. The Respondent denies
that its conduct constitutes an unlawful refusal to bar-
gain in good faith.
On November 18, 1992, the General Counsel filed
with the Board a Motion for Summary Judgment, as-
serting that the Respondent’s answer to the complaint
admits the allegations that it discontinued the above-
described payments, that these subjects are mandatory
subjects for the purpose of collective bargaining, and
that the Respondent discontinued the above-described
payments without the consent of the Union. The Gen-
eral Counsel maintains that these allegations should be
deemed by the Board to be admitted and that the
Board should find these allegations, as well as all other
allegations in the complaint, to be true. On November
20, 1992, the Board issued an order transferring the
proceeding to the Board and Notice to Show Cause
why the General Counsel’s Motion for Summary Judg-
ment should not be granted. On December 4, 1992, the
Respondent filed a response (with attached affidavit) to
the Notice to Show Cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint and its response to the
Notice to Show Cause, the Respondent admits that it
failed to make the above-described contractually re-
quired payments without the Union’s consent. The Re-
spondent asserts that financial conditions beyond its
control have prevented it from meeting its financial ob-
ligations. The Respondent asserts that its sole customer
for which it processes coal has stopped producing coal
and is now in bankruptcy. The Respondent maintains
that it has been shut down since approximately July
1992.
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 conditions of employ-
ment established by the agreement without obtaining
the consent of the union.1 Here, the Respondent has
admitted that it unilaterally failed and refused to make
benefit fund, dues, and wage payments. Accordingly,
the Respondent has admitted all the facts material to
a resolution of the unfair labor practice issues raised
by the complaint. The Respondent’s claim that it is fi-
nancially 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 provi-
sion of a collective-bargaining agreement. General
Split Corp., 284 NLRB 418 (1987). Likewise, the Re-
spondent’s claim that it has been ready and willing to
discuss its contractual obligations with the Union is
not a viable defense to the unilateral midterm modi-
fication of a collective-bargaining agreement. Zimmer-
man Painting & Decorating, 302 NLRB 856 (1991).
There being no material facts in dispute, we grant the
General Counsel’s Motion for Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Dilliner, Pennsylvania, is engaged
in the business of processing coal. During the 12-
month period ending July 31, 1992, in the course and
conduct of its business operations, the Respondent pro-
vided services valued in excess of $50,000 for various
business enterprises within the Commonwealth of
Pennsylvania, including Shannopin Mining Company,
which are enterprises 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 organiza-
tion within the meaning of Section 2(5) of the Act.
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495POLAND PROCESSING CO.
2 Member Oviatt disagrees with the majority for the reasons set
forth in his dissent in Zimmerman Painting & Decorating, supra. He
finds that under the facts of this case, the Respondent’s actions con-
stitute only a breach of the parties’ contract and not a repudiation
of the contract and thus is not a violation of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
At all times material, based on Section 9(a) of the
Act, the Union has been the designated exclusive col-
lective-bargaining representative of the Respondent’s
employees as described in the National Bituminous
Coal Wage Agreement of 1988 (the unit), and has
been recognized as such by the Respondent. The unit
is a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act. Rec-
ognition is embodied in a collective-bargaining agree-
ment which is effective by its terms for the period
February 1, 1988, to February 1, 1993.
B. The 8(a)(5) and (1) Violations
On or about May 7, 1992, the Respondent, without
obtaining the Union’s consent, unilaterally discon-
tinued contractually required health and retirement
fund contributions. On or about June 20, 1992, the Re-
spondent, without the Union’s consent, unilaterally dis-
continued certain contractually required payments, in-
cluding, but not limited to, remittances of union dues
and assessments, selective strike fund contributions,
training and education fund contributions, and wage
payments. The terms and conditions of the agreement
the Respondent has failed to continue in full force and
effect are mandatory subjects of bargaining.
Accordingly, we find that the Respondent has failed
and refused to bargain collectively and in good faith
with the Union as the exclusive representative of its
employees, and that the Respondent has thereby en-
gaged in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act. Homestead Electric Co.,
306 NLRB No. 149 (Mar. 25, 1992) (not printed in
bound volumes).2
CONCLUSION OF LAW
By refusing to bargain with the Union by unilater-
ally discontinuing health and retirement fund contribu-
tions, remittances of union dues and assessments, se-
lective strike fund contributions, training and education
fund contributions, and wage payments, the Respond-
ent has engaged in unfair labor practices affecting
commerce 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 it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order the Respondent to bargain with the
Union. We shall also order the Respondent to make
the contractually required health and retirement fund
contributions, selective strike fund contributions, and
training and education fund payments with any addi-
tional amounts due computed in the manner set forth
in Merryweather Optical Co., 240 NLRB 1213, 1216
(1979). In addition, we shall also order the Respondent
to make its employees whole for any losses they may
have suffered because of its failure to make payments
into the various fringe benefit funds, in accord with
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981); to
remit to the Union all dues and assessments not pre-
viously remitted; and to make whole employees for
any loss of earnings and other benefits resulting from
the discontinuing of wage and any other payments in
accord with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971). All pay-
ments to employees and the Union shall include inter-
est as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Because it appears from the record that the Re-
spondent may have ceased operations, we shall also
provide for mail notices to employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Poland Processing Company, Dilliner,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers
of America, AFL–CIO, by unilaterally discontinuing
health and retirement fund contributions, remittances of
union dues and assessments, selective strike fund con-
tributions, training and education fund contributions,
and wage payments.
(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) On request, bargain with the Union as the exclu-
sive representative of its employees as described in the
National Bituminous Coal Wage Agreement of 1988,
which is effective by its terms for the period February
1, 1988, to February 1, 1993.
(b) Make the contractually required health and re-
tirement fund contributions, selective strike fund con-
tributions, and training and education fund payments,
as specified in the remedy section of this decision.
(c) Make its employees whole for any losses they
may have suffered because of the Respondent’s failure
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496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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.’’
to make payments into the various fringe benefit funds,
in the manner set forth in the remedy section of this
decision.
(d) Remit to the Union all dues and assessments not
previously remitted, with interest thereon as specified
in the remedy section of this decision.
(e) Make whole its employees for any loss of earn-
ings and other benefits resulting from the discontinu-
ance of wage and any other payments, in the manner
set forth in the remedy section of this decision.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at its facility in Dilliner, Pennsylvania, and
mail to unit employees, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent’s authorized represent-
ative, 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 no-
tices are not altered, defaced, or covered by any other
material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 United Mine
Workers of America, AFL–CIO, by unilaterally dis-
continuing health and retirement fund contributions, re-
mittances of union dues and assessments, selective
strike fund contributions, training and education fund
contributions, and wage payments.
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, on request, bargain with the Union as the
exclusive representative of our employees. The unit
consists of our employees as described in the National
Bituminous Coal Wage Agreement of 1988.
WE WILL make the contractually required health and
retirement fund contributions, selective strike fund con-
tributions, and training and education fund contribu-
tions, and WE WILL make our employees whole for any
losses they may have suffered because those payments
were discontinued, with interest.
WE WILL remit to the Union all dues and assess-
ments not previously remitted, with interest.
WE WILL make our employees whole for any loss of
earnings and other benefits resulting form the dis-
continuation of wage and any other payments, with in-
terest.
POLAND PROCESSING COMPANY
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