Tolmich, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

255 N.L.R.B. 1269 (N.L.R.B. 1980)

TOLMICH. INC.
Tolmich, Inc. d/b/a Orange County Metal Process-
ing and General Truck Drivers, Office, Food
and Warehouse Local 952, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America. Case 21-CA-19025
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on May 7, 1980, by General
Truck Drivers, Office, Food and Warehouse Local
952, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
herein called the Union, and duly served on Tol-
mich, Inc. d/b/a Orange County Metal Processing,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 21, issued a complaint
and notice of hearing on June 13, 1980, against Re-
spondent alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) 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 proceeding. Respondent failed to
file an answer to the complaint.
On August 7, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on August 13, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent failed to file a response to
Notice to Show Cause and therefore the allegations
in the Motion for Summary Judgment stand uncon-
troverted.
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 Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
252 NLRB No. 177
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
the Respondent specifically states that unless an
answer was filed to the complaint within 10 days
from the service thereof "all of the allegations of
the complaint shall be deemed to be admitted to be
true and may be so found by the Board." Further,
according to the uncontroverted allegations of the
Motion for Summary Judgment, the Regional Di-
rector for Region 21, pursuant to Section 102.22 of
the Board's Rules and Regulations, warned Re-
spondent in writing that unless an answer was filed
by July 24, 1980, a motion would be made before
the Board for entry of an order based on the un-
denied allegations of the complaint. Respondent
has failed to file an answer to the complaint or to
respond to the Notice To Show Cause. Thereafter,
on August 7, 1980, no answer having been filed,
counsel for the General counsel filed the instant
Motion for Summary Judgment.
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to
file a timely answer, the allegations of the com-
plaint are deemed admitted and are found to be
true and, accordingly, we grant the General Coun-
sel's Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, is, and at
all times material herein has been, engaged in the
business of processing metals; it operates a facility
located at 1711 Kimberly Avenue, Fullerton, Cali-
fornia. Respondent annually provides services
valued in excess of $50,000 to customers located
within the State of California, each of which, in
turn, annually sells and ships goods and products
valued in excess of $50,000 directly to customers
located outside the State of California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Office, Food and Ware-
house Local 952, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, herein called the Union, has been at all
times material herein a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All crane operators, helpers, rackers, truck-
drivers, and maintenance men; excluding plant
guards, watchmen, office and/or clerical
workers, executives and supervisors as defined
in the Act.
At all times material herein, since at least 1972,
the Union has been the collective-bargaining repre-
sentative of the employees in the unit within the
meaning of Section 9(a) of the Act. Since at least
1972, and continuing to date, Respondent has been
party to successive collective-bargaining agree-
ments, the most recent of which is effective from
April 15, 1979, at least until April 14, 1981, with
the Union, as the exclusive representive for pur-
poses of collective bargaining of Respondent's em-
ployees in the appropriate unit.
B. The Request To Bargain and Respondent's
Refusal
On or about January 1980, Respondent unilater-
ally changed the rates of pay, wages, and condi-
tions of employment of employees in the appropri-
ate unit described above by, but not limited to, dis-
continuing health and welfare benefits established
for the benefit of such employees without first bar-
gaining with the Union with respect to such dis-
continuances.
Since at least April 1980, and continuing to date,
the Union has requested, and continues to request,
that Respondent remit to it moneys which Respon-
dent has deducted from employees' paychecks pur-
suant to their dues-checkoff authorization.
Since at least January 1980, and continuing to
date, Respondent has failed and refused to bargain
with the Union as the exclusive representative for
the purposes of collective bargaining of the em-
ployees in the unit found appropriate by unilateral-
ly changing terms and conditions of employment
by, but not limited to, discontinuing health and
welfare benefits established for the benefit of such
employees.
Since at least April 1980, and continuing to date,
Respondent has failed and refused to bargain with
the Union as the exclusive representative for the
purposes of collective bargaining of the employees
in the unit described above, by repudiating and fail-
ing to abide by, and by continuing to repudiate and
fail to abide by, the terms and conditions of em-
ployment as provided for in the collective-bargain-
ing agreement described above, including, but not
limited to, the failure to remit uniformly required
union dues, initiation fees, and/or assessments to
the Union when said moneys are deducted from
the pay of its employees pursuant to duly executed
authorizations.
Accordingly, we find that Respondent has, as
noted above, since on or about January 1980, and
on or about April 1980, refused to bargain collec-
tively in good faith, and is refusing to bargain col-
lectively in good faith, with the Union as the ex-
clusive representative of the employees in the ap-
propriate unit. By such action, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE .FFECT OF THE UNFAIR ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, 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 Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative actions designed to effectu-
ate the policies of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Tolmich, Inc. d/b/a Orange County Metal
Processing, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. General Truck Drivers, Office, Food and
Warehouse Local 952, International Brotherhood
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TOLMICH. INC.
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All crane operators, helpers, rackers, truck-
drivers, and maintenance men at Respondent's fa-
cility located at 1711 Kimberly Avenue, Fullerton,
California; but excluding plant guards, watchmen,
office and/or clerical workers, executives, and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since at least 1972, the Union or its predeces-
sor has been the exclusive representative of all em-
ployees in the aforesaid appropriate unit for the
purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. By refusing on or about January 1980, and at
all times thereafter, to bargain with the Union as
the exclusive representative for the purposes of col-
lective bargaining of the employees in the appro-
priate unit, by, but not limited to, discontinuing
health and welfare benefits established for the
benefit of such employees without first bargaining
with the union with respect to such discontin-
uances, unilaterally changing rates of pay and con-
ditions of employment, and by continuing to repu-
diate and fail to abide by, the terms and conditions
of employment as provided for in the collective-
bargaining agreement described herein above, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) of the Act.
6. By refusing on or about April 1980, and at all
times thereafter to bargain with the Union as the
exclusive representaive of the employees in the ap-
propriate unit, for the purposes of collective bar-
gaining by repudiating and failing to abide by and
continuing to repudiate and fail to abide by the
terms of the collective-bargaining agreement de-
scribed above, including, but not limited to the fail-
ure to remit uniformly required union dues, initi-
ation fees, and/or assessments when such are de-
ducted from the pay of its employees pursuant to
duly executed authorizations, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with. restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. 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 Respondent,
Tolmich, Inc. d/b/a Orange County Metal Pro-
cessing, Fullerton, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with General Truck
Drivers, Office, Food and Warehouse Local 952,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, by
unilaterally discontinuing health and welfare bene-
fits established for the benefit of its employees, in
the following appropriate unit:
All crane operators, helpers, rackers, truck-
drivers, and maintenance men; excluding plant
guards, watchmen, office and/or clerical
workers, executives and supervisors as defined
in the Act.
(b) Failing and refusing to honor and abide by
the terms and conditions provided for in the collec-
tive-bargaining agreement described in section A,
above, including but not limited to failure to remit
uniformly required union dues, initiation fees, and/
or assessments, when said moneys are deducted
from the weekly pay of its employees pursuant to
duly executed authorizations to General Truck
Drivers, Office, Food and Warehouse Local 952,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, as the
exclusive bargaining representative of its employees
in the appropriate unit.
(c) 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) Honor and abide by the terms and conditions
of employment provided for in the collective-bar-
gaining agreement with General Truck Drivers,
Office, Food and Warehouse Local 952, Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen & Helpers of America.
(b) Remit to the Union all dues, initiation fees,
and/or assessments which would have been remit-
ted but for Respondent's failure to honor and abide
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the collective-bargaining agreement, with inter-
est thereon to be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).'
(c) Make appropriate payments to the funds es-
tablished by the terms of the contract, which Re-
spondent has failed to pay, in accordance with the
terms and conditions of the collective-bargaining
agreement.2
(d) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment.
(e) Post at its facility located at 1711 Kimberly
Avenue, Fullerton, California, copies of the at-
tached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 21, after being duly signed by Re-
spondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
I See. generally. is Plumbing & Hlearing Co., 138 NLRB 716 (1962).
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 benefit
funds in order to satisfy our "make-whole" remedy These additional
amounts may be determined, depending upon the circumstances of each
case, by reference o provisions in the documents governing the fund at
issue and, where there are no governing provisions, to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return ol investment of the portion of funds Withheld.
additional administraive costs, etc , but not collateral losses.
Merryweather Optical (mpunpa. 240 NLRB 1213 (1979).
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the nlotice reading "Posted By
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor 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
concerinig rates of pay, wages, hours, and
other terms and conditions of employment
with General Truck Drivers, Office, Food and
Warehouse & Helpers of America, by unilater-
ally discontinuing health and welfare benefits
established for the benefit of our employees, in
the following appropriate unit:
All crane operators, helpers, rackers, truck-
drivers and maintenance men at our facilities
located at 1711 Kimberly Avenue, Fuller-
ton, California; excluding plant guards,
watchmen, office and/or clerical workers,
executives and supervisors as defined in the
Act.
WE WILL NOT refuse to honor and abide by
the terms and conditions of employment pro-
vided in the collective-bargaining agreement
with the above-named Union, as the exclusive
representative of the employees in the bargain-
ing unit described above.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them
by Section 7 of the Act.
WE WILL honor and abide by the terms of
the existing collective-bargaining agreement
between our company and the Union.
WE WILL remit to the Union all dues, initi-
ation fees, and/or assessments, with interest,
which would have been remitted but for our
failure to honor and abide by the collective-
bargaining agreement.
WE WIltl make appropriate payments to the
funds established by the terms of the collec-
tive-bargaining agreement, which our compa-
ny has failed to pay in accordance with the
terms and conditions of the collective-bargain-
ing agreement.
WE. WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all the employees in the bargaining
unit described above, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment.
TOLMICH, INC. 1)/B/A ORANGE
COUNTY METAI. PROCESSING
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