United Rigging & Hauling

National Labor Relations Board - Board Decisions

Mar 25, 1993

310 N.L.R.B. 828 (N.L.R.B. 1993)

828
310 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 E.g., Rapid Fur Dressing, 278 NLRB 905 (1986); Nestle Co.,
251 NLRB 1023 (1980); Pere Marquette Park Lodge, 237 NLRB
855, 861 (1978).
United Rigging & Hauling and Drivers, Chauffeurs,
& Helpers Local Union No. 639, a/w Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Case 5–CA–22728
March 25, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Drivers, Chauffeurs &
Helpers Local Union No. 639, a/w International Broth-
erhood of Teamsters, AFL–CIO (the Union) on May
15, 1992, the General Counsel of the National Labor
Relations Board issued a complaint on June 26, 1992,
against United Rigging & Hauling, Inc. (the Respond-
ent), alleging that it has violated Section 8(a)(5) and
(1) of the National Labor Relations Act by unilaterally
ceasing to make contractually required contributions to
various funds, including but not limited to, a pension
fund and a health and welfare fund, and by failing to
deduct and remit union dues to the Union on behalf of
its employees. The Respondent filed a timely answer,
admitting in part and denying in part the allegations in
the complaint.
On January 11, 1993, the General Counsel filed with
the Board a Motion for Summary Judgment, with ex-
hibits attached, asserting that the Respondent’s answer
to the complaint raises no genuine issues of fact that
require an evidentiary hearing and that summary judg-
ment should be granted. On January 13, 1993, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On January 29, 1993, the Re-
spondent filed a response.
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 the Respondent ad-
mits that it failed to make the above-described contrac-
tually required payments without the Union’s consent.
The Respondent states that its failure to pay was
caused by severe financial distress resulting in the fil-
ing of a petition for bankruptcy. In its response to the
Notice to Show Cause the Respondent suggests that
the Board, in accordance with the provisions of 11
USC Chapter 11, stay all further proceedings and ac-
tions against the Respondent.
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 that agreement without obtaining
the consent of the union.2 Here, the Respondent has
admitted that it unilaterally failed and refused to make
contractually required payments to various funds, in-
cluding but not limited to, a pension fund and a health
and welfare fund and has failed to deduct and remit
union dues to the Union. 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 financially 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) of the Act by failing
to abide by a provision of a collective-bargaining
agreement. Nick Robilotto, Inc., 292 NLRB 1279
(1989); General Split Corp., 284 NLRB 418 (1987). It
is also well established that the Board’s jurisdiction
and authority to hear and determine an unfair labor
practice case to its final disposition are exempted from
the automatic stay provisions of the Bankruptcy Act
under the exception of 11 U.S.C. § 362 (b)(4) and (5).
See American Fleet Maintenance Co., 289 NLRB 764
(1988); Phoenix Co., 274 NLRB 995 (1985). There
being no material facts in dispute, we grant the Gen-
eral Counsel’s Motion for Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation with an of-
fice and place of business in Beltsville, Maryland, is
engaged in the transportation and installation of heavy
equipment. During the 12 months preceding issuance
of the complaint, a representative period, the Respond-
ent, in the course and conduct of its business, provided
goods and services valued in excess of $50,000 from
its Beltsville, Maryland facility directly to points lo-
cated outside the State of Maryland. The Respondent
admits, and we find, that it 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
A. The Unit
Since at least 1980 and at all times material, the
Union has been the designated exclusive collective-
bargaining representative of a unit of the Respondent’s
employees as described in successive collective-bar-
gaining agreements and has been recognized as such
by the Respondent. The unit is a unit appropriate for
829UNITED RIGGING & HAULING
3 The Respondent in its answer denied that the unit as described
in the complaint was appropriate. The Respondent admitted, how-
ever, that it is a party to a collective-bargaining agreement with the
Union, and it is undisputed that this agreement contains a provision
describing the unit. Further, the Respondent did not contend in its
response to the Notice to Show Cause that the unit as alleged was
inappropriate or that the General Counsel’s motion should be denied
because of alleged inappropriateness of the unit. Under these cir-
cumstances, we find that the unit as alleged in the complaint is an
appropriate unit.
4 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.’’
collective-bargaining purposes within the meaning of
Section 9(b) of the Act.3 Recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which was effective by its terms for
the period May 23, 1989, to May 22, 1992. The Union
continues to be the exclusive representative under Sec-
tion 9(a) of the Act.
B. The 8(a)(5) and (1) Violations
Since on or about November 15, 1991, the Respond-
ent has unilaterally ceased to make contractually re-
quired contributions to various funds, including but not
limited to, a pension fund and a health and welfare
fund, and has failed to deduct and remit union dues to
the Union. Accordingly, we find that the Respondent
has failed and refused to bargain collectively and in
good faith with the Union as the representative of its
employees, and that the Respondent thereby has en-
gaged in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing to abide by and adhere to its collective-
bargaining agreement by unilaterally ceasing to make
contractually required contributions to various funds,
including but not limited to, a pension fund and a
health and welfare fund, and by failing to deduct and
remit dues to the Union, the Respondent has engaged
in unfair labor practices 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 violated Sec-
tion 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 the Respondent to make the contrac-
tually required contributions to various funds, includ-
ing but not limited to, the pension fund and the health
and welfare fund, and to remit to the Union dues owed
for those unit employees who had authorized the Re-
spondent to deduct and remit them to the Union pursu-
ant to the parties’ collective-bargaining agreement. In
addition, we shall also order the Respondent to make
its employees whole for any losses they may have suf-
fered because of its failure to make various fund con-
tributions in accord with Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). All payments to employees and the
Union shall include interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), except
that any additional amounts due the benefit funds shall
be computed in the manner prescribed in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979).
ORDER
The National Labor Relations Board orders that the
Respondent, United Rigging & Hauling, Inc., Belts-
ville, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to abide by and adhere to its collective-
bargaining agreement with the Union by unilaterally
ceasing to make contractually required contributions to
various funds, including but not limited to, a pension
fund and a health and welfare fund, and by failing to
deduct and remit union dues to the Union.
(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) Make whole unit employees for any loss of ben-
efits, including making required payments to contrac-
tual benefits plans, in the manner set forth in the rem-
edy section of this Decision and Order.
(b) Remit to the Union dues owed for those unit em-
ployees who have authorized the Respondent to deduct
and remit them to the Union pursuant to the parties’
collective-bargaining agreement, in the manner set
forth in the remedy section of this Decision and Order.
(c) Post at its facility in Beltsville, Maryland, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 5, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
830 DECISIONS 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
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 abide by and adhere to our
collective-bargaining agreement with the Union by uni-
laterally ceasing to make contractually required con-
tributions to various funds, including but not limited
to, a pension fund and a health and welfare fund, and
by failing to deduct and remit union dues to the Union.
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 make whole unit employees for any loss
of benefits, including making required contributions to
contractual funds in the manner required by the Deci-
sion and Order of the National Labor Relations Board.
WE WILL remit to the Union dues owed for those
unit employees who have authorized us to deduct and
remit them to the Union pursuant to the parties’ collec-
tive-bargaining agreement.
UNITED RIGGING & HAULING, INC.