Shelter Island, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 246 (N.L.R.B. 1988)

246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shelter Island , Inc. and San Diego Bartenders and
Culinary Workers Insurance Trust Fund. Case
21-CA-25263
July 29, 1988
DECISION AND ORDER
the obligation to make payment arose on comple-
tion of the shifts, events which took place prior to
impasse.2 For this reason, we agree with the judge
that the Respondent violated Section 8(a)(5) and
(1) by refusing to comply with the Trust Fund's
January 29, 1987 request for payment 3
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On December 16, 1987, Administrative Law
Judge George Christensen issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
when it refused to remit to the Trust Fund in Janu-
ary 1987 a report with payments for shifts worked
by employees from December 1 to December 22,
1986. We find no merit to the Respondent's conten-
tion that it was not obligated to make the payments
because the parties reached a valid impasse in ne-
gotiations on December 23, 1986, before the pay-
ments became due in January 1987. Rather, on the
record before us we find that the employees' enti-
tlement to have payments made on their behalf by
the Respondent to the Trust Fund accrued with
the completion of each shift worked by an employ-
ee. Thus, the Respondent's liability for the pay-
ments in question here attached prior to the De-
cember 23, 1986 impasse date, and not in January
1987, as claimed by the Respondent. That the Re-
spondent was permitted to defer remittance of the
payments to the month following the one in which
the shifts were worked does not alter the fact that
i The General Counsel has excepted only to the portion of the Judge's
recommended Order which requires the Respondent, Shelter Island, Inc ,
to make the Charging Party whole by paying the Fund $2 for each shift
worked by its employees from December I to December 22, 1986 The
General Counsel contends that the trustees of the Fund had authority to
and, in fact, did raise periodically the rate which the Respondent under
the contract was required to contribute per shift and that, consequently,
the recommended Order should be modified to provide for a general
make-whole remedy, with the correct amount to be paid by the Respond-
ent left to the compliance stage of this proceeding for determination We
find merit in the General Counsel's exception and shall, accordingly,
modify the judge's recommended Order to provide for a general make-
whole remedy We leave to the compliance stage of these proceedings
the determination of the correct rate and amount to be paid into the
Fund by the Respondent
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Shelter Island, Inc., San Diego, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(b).
"(b) Refusing to pay to the Trust Fund the
amounts owed for each such shift."
2. Substitute the attached notice for that of the
administrative law judge.
z We find nothing in the record to support our dissenting colleague's
conclusion that "the use of the previous month's shifts to calculate fund
payments for the subsequent month was merely a convenient method of
calculation used by the parties to determine the amount of contribution
due " Sec 19(b) of the parties' agreement states, in relevant part,
that "The Employer shall pay the sum of two dollars ($2 00) per day for
each shift worked by each employee covered by the terms of the con-
tract to the San Diego Bartenders and Culinary Workers Insurance Fund
The Employer shall forward to the Trustees (on forms approved by, and
at a time and place designated by them) a report of the names and
number of days of employment of all employees covered by this con-
tract " Sec 19(g) of the agreement further authorizes the Trustees to take
legal and other action "in the event payments have not been received by
the Trust by the twentieth of the month succeeding the month for which
payments are due" (emphasis added) The above contractual language
clearly indicates that the Respondent was liable for payments for shifts
worked by employees as a matter of obligation, not calculation There is
nothing in the contract which provides that the previous month's shifts
will be used to calculate payment for the subsequent month That it has
been the Fund's practice (within the discretion granted the Trustees in
the agreement) to use the payment for the previous month's shifts to
assure coverage for the month in which payment is received has no bear-
ing on the Respondent's obligation to make payment for shifts worked
prior to impasse
Y We find, for the reasons stated by the judge, that the Board's decision
in O'Malley Lumber Co, 234 NLRB 1711 (1978), is distinguishable from
the present case and, therefore, not controlling here We further note that
although in O'Malley, as here, the employer, inter alia, was alleged to
have ceased, unilaterally, making payments to a union trust fund, the
issue in O'Malley centered on whether the parties reached a valid impasse
in negotiations and, if so, whether the employer's unilateral changes were
consistent with its preimpasse proposals There is nothing in the O'Malley
decision to suggest that any of the parties to the proceedings either raised
or litigated the issue posed by the instant case of whether the payments
which the employer failed to make had accrued prior to impasse Finally,
we note that in O'Malley the contract expired on May 31, 1976, and the
respondent made no payments in July 1976 for work completed in June
1976 While the Judge in O'Malley found that the parties initially reached
impasse on the health and welfare issues on June 16, 1976, he did not pass
on whether the impasse was broken by a strike which occurred that same
day because the parties, in any event, were at an impasse on this issue on
June 29, 1976 In view of his failure to pass on that issue, we cannot de-
termine For certain if the impasse occurred before the employees had
worked the full June hours which would have triggered the employer's
obligation to make the July payment On these facts, we do not find
O'Malley to be controlling or inconsistent with our decision here
290 NLRB No. 35
SHELTER ISLAND
MEMBER CRACRAFT , dissenting.
Contrary to my colleagues, I would not find that
the Respondent violated Section 8(a)(5) and (1) by
failing to make payments to the San Diego Bar-
tenders and Culinary Workers Insurance Trust
Fund for shifts worked, by its employees between
December 1 and December 22, 1986, and by failing
to submit a report indicating which shifts were
worked during this period.
The expired collective-bargaining agreement'
provided, inter alia, that the "Employer shall pay
the sum of two dollars ($2.00) per day for each
shift worked by each employee covered by the
terms of the contract to the San Diego Bartenders
and Culinary Workers Insuranceti Fund." Each con-
tribution paid for health coverage for the entire
month in which payment was made. The amount
of the premium was based on the number of shifts
worked the previous month. Legal action for delin-
quencies could be instituted by the Trust in the
event payments were not received by the 20th of
the month following the month for which pay-
ments were due.
The parties reached impasse in negotiations on
December 23, 1986. Prior to impasse the Respond-
ent had forwarded a December payment to the
Fund, thereby providing health coverage for the
employees through December 1986. The December
payment was calculated based on the number of
shifts worked in November. In January 1987, the
Respondent notified the Fund that it was with-
drawing from the contract plan and would not
make any further payments to the Fund because it
was going to institute the health plan it had pro-
posed during negotiations . Initially , the fund ad-
ministrator notified the Respondent that because
the Respondent was providing coverage beginning
January 1, it was unlikely that further contributions
would be required. However , in late January the
Fund advised the Respondent that it was entitled
to payments on behalf of unit employees for shifts
worked through the date of impasse and requested
a report reflecting the number of shifts worked be-
tween December 1 and December 22 and payment
for those shifts.
This case is essentially a contract dispute. In
NCR Corp., 271 NLRB 1212 (1984), the Board
held that in cases involving contract interpretation
where there is no evidence that the respondent
acted out of animus toward the union or in bad
faith, or that the respondent was seeking to under-
mine the union , the Board will not attempt to de-
termine which of two equally plausible contract in-
terpretations is correct. See also Thermo Electron
i The collective-bargaining agreement expired October 31, 1986
247
Corp., 287 NLRB 820 (1987). Here, there is no evi-
dence of union animus or that the Respondent was
acting in bad faith .2 The Respondent was not at-
tempting to undermine the Union. Moreover, the
parties present two plausible contract interpreta-
tions. Thus, the principles of Thermo Electron and
NCR would normally apply and the complaint
would be dismissed. -
However, both Thermo Electron and NCR Corp.
are grounded, in part, on a discretionary exercise
of jurisdiction.3 I believe it would effectuate the
purposes of the Act to exercise that jurisdiction
here.
There are no private dispute resolution mecha-
nisms available to the parties herein. The Trust
Fund is not a party to the collective-bargaining
agreement and thus could not use the contract's
grievance-arbitration procedure even if the require-
ments in Indiana & Michigan Electric Co.4 were sat-
isfied. Furthermore, there is no ERISA remedy for
an employer 's failure to make fund contributions
after the expiration of the collective -bargaining
agreement . Laborers Trust Fund v. Advanced Light-
weight Concrete Co., 484 U.S. 539 (1988). Because
there is no forum for resolution of the two plausi-
ble contract interpretations herein , in these limited
circumstances it would effectuate the purposes of
the Act to resolve the dispute.
I conclude, contrary to my colleagues, that the
fact that the fund payments were calculated based
on hours worked during the previous month and
that legal action for delinquencies could be institut-
ed by the 20th of the month following the month
for which payment was due does not compel the
conclusion that the benefits accrued with the com-
pletion of each shift. Rather, I believe that the use
of the previous month's shifts to calculate fund
payments for the subsequent month was merely a
convenient method of calculation used by the par-
2 The Respondent provided health coverage for the employees under
the terms of the expired contract up to and beyond the date of impasse
a The cases relied on by the Board in NCR Corp and Thermo Electron
are based on an abstention doctrine See, e g , Vickers, Inc, 153 NLRB
561, 570 (1965) ("the Board ordinarily will not exercise its jurisdiction to
resolve a dispute between the parties as to whether the employer's inter-
pretation was correct "), Timken Roller Bearing Co Y NLRB, 161 F 2d
949, 955 (6th Cir 1947) ("the dispute was a dispute as to the inter-
pretation of the management clause , and the contract specifically provid-
ed that such disputes were to be settled within the grievance proce-
dures "), Consolidated Aircraft Corp, 47 NLRB 694, 706 (1943), enfd 141
F 2d 785 (9th Cir 1944) (Board "deems it unwise" to exercise jurisdiction
to attempt to police contract where the parties have not exhausted their
remedies under the contract), National Dairy Products Corp, 126 NLRB
434, 439 (1960) ("the Board does not ordinarily exercise its jurisdiction to
resolve conflicts regarding which party has correctly interpreted the con-
tract ")
4 284 NLRB 53 (1987)
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ties to determine the amount of contribution due,
and did not indicate that benefits had accrued.5
The Respondent provided health coverage under
the expired collective-bargaining agreement beyond
December 23, 1986 , the date of impasse. No other
benefits had accrued as of that date . Accordingly, I
find that the Respondent did not violate Section
8(a)(5) and (1) of the Act by failing to make fund
payments in January 1987.
5 1 do not find O'Malley Lumber Co., 234 NLRB 1171 ( 1978), in which
on similar facts no violation was found , to be particularly relevant to the
instant case
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 continue to refuse to file with the
San Diego Bartenders and Culinary Workers Insur-
ance Trust Fund a report reflecting the number of
shifts each of our employees in the following unit
worked between December 1 and December 22,
1986:
All kitchen and stockroom employees, lunch
and dining room employees , bartenders and
cocktail lounge employees , special occasion
bartenders , housekeeping and service depart-
ment employees and cafeteria employees em-
ployed by the Employer ; excluding all other
employees, office clerical employees , profes-
sional employees, guards, and supervisors as
defined in the Act.
WE WILL NOT continue to refuse to pay to the
Trust Fund the amounts owed for each shift
worked by each employee within that unit between
December 1 and December 22, 1986.
WE WILL file the report and pay the amount or
amounts described above.
WE WILL make whole any employees within the
unit who suffered losses because of our nonpay-
ment of the amount or amounts described above.
WE WILL pay to such employees and to the
Trust Fund any interest, penalties, or other sums
adjudged payable in the compliance phase of this
proceeding before the Board.
Theodore R. Scott, for the General Counsel.
Dennis Childs, Esq. (Sheppard, Mullin, Richter & Hamp-
ton), of San Diego, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Administrative Law Judge.
On July 30, 1987, I conducted a hearing at San Diego,
California, to try issues raised by a complaint issued on
April 10, 1987, based on a charge filed by San Diego
Bartenders and Culinary Workers Insurance Trust Fund
(Fund) on March 2, 1987.
The complaint alleged Shelter Island , Inc. (Respond-
ent) violated Section 8(a)(1) and (5) of the National
Labor Relations Act (Act) by refusing to make payments
to the Fund for shifts worked between December 1 and
22, 1986, by its employees represented by Local 30,
Hotel and Restaurant Employees Union, AFL-CIO
(Union).
The Respondent conceded it refused to make the pay-
ments in question but denied it thereby violated the Act.
The issue is whether the Respondent violated the Act
by refusing to make those payments.
The General Counsel and the Respondent appeared by
counsel and were afforded full opportunity to adduce
evidence , examine and cross-examine witnesses, argue,
and file briefs . Both filed briefs.
Based on my review of the entire record, observation
of the witnesses , perusal of the briefs and research, I
enter the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged , the answer admitted , and I find
at all pertinent times the Respondent was an employer
engaged in commerce and in a business affecting com-
merce and the Union was a labor organization within the
meaning of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
The Respondent operates two restaurants in San
Diego (The Bali Hai and Tom Ham's Lighthouse). Since
at least 1975, the Respondent has recognized the Union
as the exclusive collective-bargaining representative of
All kitchen and stockroom employees , lunch and
dining room employees , bartenders and cocktail
lounge employees , special occasion bartenders,
housekeeping and service department employees,
and cafeteria employees employed by the Employ-
er; excluding all other employees, office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act.'
SHELTER ISLAND, INC.
1 find this unit is appropriate for collective-bargaining purposes
within the meaning of Sec 9 of the Act
SHELTER ISLAND
Through its duly designated representative for collec-
tive-bargaining purposes, the Restaurant -Hotel Employ-
ers Council of San Diego, Inc. (Council ), the Respondent
entered into collective -bargaining contracts with the
Union setting forth the wages , rates of pay , hours, and
working conditions of its employees within the unit. The
latest contract was executed in 1980.
That contract , inter alia, contained the following pro-
visions:
SECTION 19-HEALTH AND WELFARE PLAN.'
(a) The San Diego Bartenders and Culinary
Workers Insurance Fund Trust Indenture executed
on the Seventh (7th) day of January , 1952, and any
amendments as may be made from time to time
thereto, are hereby incorporated by reference and
made a part of this Agreement . The Employer, by
signing this Agreement , agrees to be bound by all
the terms and provisions of said Trust Indenture.
(b) The Employer shall pay the sum of two dol-
lars ($2 .00) per day for each shift worked by each
employee covered by the terms of the contract to
the San Diego Bartenders and Culinary Workers In-
surance Fund . The Employer shall forward to the
Trustees (on forms approved by, and at a time and
place designated by them) a report of the names and
number of days of employment of all employees
covered by this contract . Said payments are to be
made by the Employer directly to the Trustees of
the San Diego Bartenders and Culinary Workers'
Health and Welfare Trust Fund . The Employer sig-
natory hereto hereby accepts the present Council
appointed Trustees and their duly selected succes-
sors and alternates as his representatives on said
Trust Fund.
(d) The Employer, upon demand of either the
Trustees of the San Diego Bartenders and Culinary
Workers Insurance Fund or of the Local Joint
Board , shall submit such reasonable information,
employment and payroll records as may be relevant
and necessary for the ascertainment by the Trustees
or the Union , of the amount of monies due and
owing by the Employer of the Trust.
(g) The Trustees of the Fund , in the event pay-
ments have not been received by the Trust by the
twentieth of the month succeeding the month for
which payments are due, may sue said Employer
for one or more of the following : An accounting,
injunction , recovery of the delinquent payments,
reasonable costs of suit and any other relief that
may be appropriate under the circumstances.
Reports of the number of shifts worked by each unit
employee were normally prepared shortly after the end
of each month and sent to the Fund , accompanied by the
requisite payments . Those payments assured health cov-
erage under the plan administered by the Fund for the
month in which the payment was received, provided the
Fund received payments from the Respondent and other
employer participants in the health plan for more than 12
249
shifts worked by each covered employee during the pre-
ceding month.2
Prior to the October 31, 1986 expiration of the con-
tract , the Respondent timely withdrew the Council's au-
thority to represent it, so notified the Union , and termi-
nated the contract.
During subsequent negotiations between the Respond-
ent and the Union over terms for a successor contract,
the Employer proposed to substitute a health plan of its
choice for the contract plan and the Union proposed to
continue the contract plan unchanged.'
The parties reached an impasse in their negotiations on
December 23, 1986.
Between the date the contract expired and the impasse
date , the Respondent sent an early November and early
December 1986 report to the Fund accompanied by the
requisite payments , assuring eligible employees health
coverage under the contract plan for November and De-
cember 1986.
In early January 1987, the Fund received a letter from
the Respondent dated December 31, 1986 , stating it was
withdrawing from further participation in the contract
plan, would not make any further payments to the Fund,
and was going to institute the health plan it proposed
during negotiations . In response to a telephone inquiry
by a Fund representative in early January 1987, a repre-
sentative of the Respondent confirmed the Respondent
was not going to send any report to the Fund concern-
ing the number of shifts unit employees worked during
any part of December 1986 nor tender any payments to
the Fund based thereon . In further conversations (there
were two telephone conversations), the Fund representa-
tive, in response to inquiries, informed the Respondent's
representative the contract plan would not provide Janu-
ary 1987 coverage for any unit employee on whose
behalf it did not receive payments for 12 or more shifts
worked during December 1986.
The Respondent placed its plan in effect in January
1987; for January and February 1987, it made special ar-
rangements to cover its part-time or on-call employees,
but ceased to cover them thereafter.
The parties stipulated unit employees covered by the
contract plan in December 1986 worked a substantial
number of shifts between December 1 and 22, 1986, and
further stipulated all unit employees were covered in
January 1987 either by the contract plan (by virtue of
shifts worked for participating employers other than the
Respondent) or by the Respondent 's plan.
On January 29, 1987 , following receipt of advice from
counsel that the Fund was egally entitled to payments on
behalf of unit employees for shifts worked through the
date of impasse , the Fund wrote a letter so advising the
Respondent and requesting transmission to the Fund of a
2 Though the Fund needed payments for at least 22 shifts to fund its
payouts (I credit the Fund administrator 's undisputed testimony to that
effect).
' The Respondent 's plan covered only its employees, limited coverage
to full-time employees (excluding part-time or on -call employees), and
contained a $100 deductible feature ; the contract plan covered full-and
part-time or on -call employees, was portable (i.e., it credited payments
for work performed by all participating employers ), and had no deducti-
ble feature
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
report reflecting the number of shifts unit employees
worked between December 1 and 22 and payment there-
for.
At all times since, the Respondent has refused to
tender the requested report and payments.
B. Analysis and Conclusions
The Board, with court approval , has consistently held
an employer violates the Act by failing or refusing to
make deferred payments based on work performed prior
to a bargaining impasse, and on the premise the purposes
of the Act are best served by requiring an employer to
maintain its employees ' wage components (including pay-
ments to provide health and pension coverage) provided
under an expired collective -bargaining agreement, un-
changed , while the parties negotiate over terms for a
possible successor agreement.4
In this case the Respondent refused to pay to the Fund
$2 for each shift worked by unit employees between De-
cember 1 and 22 , 1986, the day the Respondent and the
Union reached impasse in their negotiations over the
terms for a successor to an expired contract requiring
such payments . On these facts , the line of cases just recit-
ed support the conclusion the Respondent thereby violat-
ed the Act.
The Respondent contends O'Malley Lumber Co., 234
NLRB 1171 (1978), dictates a contrary conclusion. While
that case holds the employer did not violate the Act by
discontinuing payments to a health fund established
under an expired collective -bargaining agreement with
the union representing its employees following the expi-
ration of the agreement , the case is readily distinguish-
able from this one; the major issue litigated in O'Malley
was whether the parties to the expired agreement ever
reached a bargaining impasse prior to the employer's im-
plementation of the health plan it proposed during nego-
tiations , with the General Counsel contending no such
impasse was reached and the employer contending a bar-
gaining impasse was reached 16 days after the agreement
expiration . The employer's contention was sustained and
on the basis : (1) prior to the expiration of the OMalley-
union agreement , the fund adopted the policy of not ac-
cepting payments for any hours worked after the expira-
tion of a collective-bargaining agreement requiring them5
(a policy known by the employer by virtue of the service
of one of its representatives as a fund trustee ); (2) the
employer nevertheless placed payments in an escrow ac-
count covering the 15 days its union-represented employ-
ees worked between the date the agreement expired and
4 NLRB Y. Katz, 369 U S 736 (1962); Southwestern Steel & Supply, 276
NLRB 1569 (1985), enfd 806 F 2d 1111 (D.C. Cir. 1986); Auto Fast
Freight, 272 NLRB 561 (1984), enf denied 793 F 2d 1126 (9th Cir. 1986),
American Distributing Co. 264 NLRB 1413 (1982), enfd 715 F.2d 446
(9th Cir 1983), cert denied 466 U.S. 958 (1984); Stone Boat Yard, 264
NLRB 981 (1982), enfd. 715 F 2d 441 (9th Cir 1983), cert denied 466
U S 937 (1984), Cauthorne Trucking Co., 256 NLRB 721 (1981), enfd. 691
F.2d 1023 (D C. Cir. 1982); Anionino 's Restaurant , 246 NLRB 833 (1979),
enfd. 648 F.2d 1206 (9th Cir. 1981); Hen House Market No 3, 174 NLRB
596 (1969 ), enfd 428 F.2d 133 (8th Cir 1970); Emsing's Supermarket, 284
NLRB 302 (1987); Santulli Mail Services, 281 NLRB 1288 (1986); Buck
Brown Contracting Co., 272 NLRB 951 (1984).
5 Based on an opinion by the fund counsel , the fund was not legally
entitled to such payments
the date of impasse; (3) no evidence was developed that
the fund ever requested the employer to tender the
escrowed funds or the employer refused to remit them;
(4) the fund provided extended coverage to the affected
employees for a minimum of 4 and a maximum of 7
months after the agreement expired ; (5) the employer did
not institute the health plan it proposed during negotia-
tions until the expiration of each affected employee's
health coverage by the fund; (6) it was held the General
Counsel failed to establish employer conduct violative of
the Act.
In this case the Fund followed the policy of accepting
payments from employers for all shifts worked between
the date of contract expiration and date of impasse, based
on an opinion by legal counsel it was legally entitled to.
The General Counsel proved the Fund requested payment
for shifts worked by unit employees between those dates
and the Respondent refused to comply with that request.
The Respondent could have tendered the requisite pay-
ments and placed its plan in effect and assured unit em-
ployee coverage under the contract plan for January
1987 but , instead unilaterally announced it was refusing
to do so and placed its plan in effect that month. The
Respondent 's plan materially differed from the contract
plan in that it excluded part-time or on-call employees
from coverage,6 and contained a deductible feature
(which may have forced some unit employees to pay the
amount of the deductible under the Respondent's plan
for any treatment in January 1987, that would not have
occurred had they been covered for that month by the
contract plan).
On the basis of the foregoing , I find and conclude by
its refusal to comply with the Fund 's request for a report
reflecting the number of shifts unit employees worked
between December 1 and 22 , 1986, and by its refusal to
remit to the Fund $2 for each such shift , the Respondent
violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. At all pertinent times the Respondent was an em-
ployer engaged in commerce and in a business affecting
commerce and the Union was a labor organization
within the meaning of Section 2 of the Act.
2. At all pertinent times the following unit of the Re-
spondent 's employees was appropriate for collective-bar-
gaining purposes within the meaning of Section 9 of the
Act:
All kitchen and stockroom employees , lunch and
dining room employees , bartenders and cocktail
lounge employees , special occasion bartenders,
housekeeping and service department employees,
and cafeteria employees employed by the Employ-
er; excluding all other employees , office clerical em-
As noted above, however, the Respondent arranged for coverage of
those employees under its plan for January 1987. This resulted in double
coverage of unit employees who worked a sufficient number of shifts for
employers participating in the contract plan other than the Respondent
during December 1986, the result the Respondent now complains about.
That result could have been avoided by the Respondent's compliance
with the Fund's request and placing its plan in effect following expiration
of coverage by the contract plan.
SHELTER ISLAND
ployees, professional employees , guards, and super-
visors as defined in the Act.
3. At all pertinent times the Union was the exclusive
representative of the employees within the aforesaid unit
for the purpose of bargaining collectively with the Re-
spondent with respect to their wages , rates of pay , hours,
and working conditions.
4. By refusing to comply with the Fund 's request for a
report reflecting the number of shifts its employees
within the above unit worked between December 1 and
22, 1986 , and for tender to the Fund of $2 for each such
shift, the Respondent violated Section 8(a)(1) and (5) of
the Act.
5. The above unfair labor practice affected commerce
as defined in the Act.
THE REMEDY
The normal remedy in cases of this type is a direction
the employer file with the entity designated in the ex-
pired contract the requisite report and payments, to
make employees whole for losses they suffered by virtue
of the nonpayment , and any interest , penalties , or other
sums due affected employees and the entity.
Citing Hassett Maintenance Co., 260 NLRB 1211
(1982), the Respondent argues directing such a remedy in
this case would "unjustly enrich" the Fund and consti-
tute a "windfall ," noting either the Fund or the Re-
spondent or both provided health plan coverage to all
unit employees for January 1987.
The argument ignores the fact the Respondent unilat-
erally and without union or Fund concurrence failed in
early January 1987 to file a report reflecting the number
of shifts unit employees worked between December 1
and 22 , 1986, accompanied by the requisite payments, re-
fused in late January 1987, following its reaching of de-
linquency status, to comply with the Fund 's request for
such report and payments , and unilaterally , without
Fund or union concurrence , instituted its health plan for
all unit employees7 in January 1987, rather than dovetail-
ing coverage by its plan as contract plan coverage ex-
pired.
It also ignores the fact that payments to the Fund rep-
resent a pool designed to cover a broad spectrum of em-
ployees, which is why the contract plan contains a porta-
bility feature and provides coverage even though a par-
ticular employee has worked 12 and not 22 shifts during
the covered period . As the Ninth Circuit stated in Stone
Boat Yard, supra:
The company is merely required to repay what it
has unlawfully withheld . As in [Antonino 's Restau-
rant, supra] it was the company that unlawfully
chose to incur the additional expense of a private
insurance program . Even if Stone 's substitute fringe
benefit program met the present needs of its em-
ployees, the diversion of contributions from the
7 At times pertinent there were approximately 140 employees in the
unit This finding is based on testimony by one of the Respondent's
owners
251
union funds undercut the ability of those funds to
provide for future needs . 715 F.2d 441, at 446.8
I shall therefore recommend the Respondent be or-
dered to file with the Fund a report reflecting the
number of shifts each unit employee worked between
December 1 and 22 , 1986, to tender $2 to the Fund for
each such shift, to make whole any unit employees who
suffered any losses due to the Respondent 's failure to
timely tender to the Fund the payments just set forth,
and to pay to those employees and to the Fund such in-
terest , penalties, etc., as may appear warranted in the
compliance phase of this proceeding.9
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'o
ORDER
The Respondent , Shelter Island , Inc., San Diego, Cali-
fornia, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to file with the San Diego Bartenders and
Culinary Workers Insurance Trust Fund a report reflect-
ing the number of shifts each of its employees within the
following unit worked between the dates of December 1
and 22, 1986:
All kitchen and stockroom employees, lunch and
dining room employees , bartenders and cocktail
lounge employees , special occasion bartenders,
housekeeping and service department employees,
and cafeteria employees employed by the Employ-
er; excluding all other employees , office clerical em-
ployees, professional employees , guards, and super-
visors as defined in the Act.
(b) Refusing to pay to the Fund $2 for each such shift.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) File with the Fund the report described above.
(b) Pay to the Fund the amount or amounts described
above.
(c) Make whole any employees within the aforesaid
unit for any losses they may have suffered by virtue of
Shelter Island , Inc.'s nonpayment of the prescribed
amount or amounts.
(d) Pay to such employees and to the Fund any inter-
est, penalties , or other payments adjudged due and pay-
able in the compliance stage of this proceeding.
(e) Post at its facilities at San Diego , California , copies
of the attached notice marked "Appendix."" Copies of
a Also see Antonino's Restaurant , supra ; Buck Brown Contracting Co
supra; and Southwestern Steel & Supply, supra.
° See Taurus Waste Disposal, 263 NLRB 309 (1982 ); and Merryweather
Optical Co., 240 NLRB 1213 (1979 ), for guidance
10 If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations , the finding. conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
11 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-
Continued
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the notice, on forms provided by the Regional Director
for Region 21, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
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 "
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.