Valiant Metal Products

National Labor Relations Board - Board Decisions

Sep 13, 1979

244 N.L.R.B. 1049 (N.L.R.B. 1979)

VALIANT METAL PRODUCTS
Valiant Metal Products, Corp. and Sheet Metal
Workers International Association, Local Union
No. 137, AFL-CIO. Cases 22-CA-8862 and 22-
CA-8991
September 13. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.ILO
Upon charges filed on November 22, 1978, and
February 7, 1979, by Sheet Metal Workers Interna-
tional Association, Local Union No. 137, AFL-CIO.
herein called the Union, and duly served on Valiant
Metal Products. Corp., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 22, issued
a complaint against Respondent alleging that Re-
spondent had engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charges.
the complaint, and notice of hearing were duly served
on the above-mentioned parties.
With respect to the unfair labor practices the com-
plaint alleges that since on or about May 22, 1978,
and at all times material to date Respondent has uni-
laterally changed existing terms and conditions of
employment by failing and refusing to make pension
and welfare contributions to the Union as required by
the applicable collective-bargaining agreement.' Al-
though duly served, Respondent has failed to file an
answer to the complaint?
On July 16, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment based on Respondent's failure to file an
answer to the complaint. Subsequently, on July 25,
1979, the Board issued an Order transferring the pro-
ceeding to the Board and a Notice To Show Cause
The initial charge in Case 22-CA-8862, alleging that since May 1978
Respondent failed to make contributions to the Union's pension and welfare
funds as was required by the parties' collective-bargaining agreement. was
filed on November 22, 1978. Subsequently, on December 13. 1978, the Re-
gional Director approved the Union's request to withdraw the charge upon
Respondent's representation that it would remedy the alleged violations. Af-
ter the filing on February 7, 1979, of a second charge in Case 22-CA-8991
alleging that Respondent had failed to remedy, as promised, the aforemen-
tioned alleged violations, and was continuing to fail to make contractual
pension and welfare payments the Regional Director, on March 22, 1979.
withdrew his approval of the Union's withdrawal of the charge in Case 22
CA-8862 and on March 23, 1979, issued a consolidated complaint in Cases
22-CA-8862 and 22-CA-8991.
2 The only responses to the complaint were two letters from Respondent's
former attorney, dated March 27, 1979. and April 4, 1979. respectively, in-
forming the Regional Office that Respondent is insolvent, and that in mid-
March 1979 Respondent's secured creditors enforced their liens on Respon-
dent's assets.
why the General Counsel's Motion tfor Summar'
Judgment should not be granted. Respondent did not
file a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(h) 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-mernher panel.
Upon the entire record in this proceeding the
Board makes the following:
Ruling on the Motion for Summar Judgment
Rule 102.20 of the Board's Rules and Regulations.
Series 8. as amended. provides:
The respondent shall, within 10 days roin the
service of the complaint. file an answer thereto.
The respondent shall specifically admit. den. or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge. in which case the respondent shall so state.
such statement operating as a denial. All allega-
tions 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 adimit-
ted to be true and shall be so found by the
Board, unless good cause to the contrar is
shown.
The complaint and notice of hearing served on Re-
spondent herein specifically state that unless an an-
swer is filed within 10 days of service thereof "all
allegations contained in the C('omplaint shall be
deemed to be admitted to be true and may he so
found b the Board." Aside from the atbrmentioned
letters from Respondent's former attorney. notifying
the General Counsel of Respondent's insolvency and
apparent liquidation, circumstances relevant only to
compliance, Respondent has failed to file an answer
to the complaint or to respond to the Notice To Show
Cause. Therefore, the allegations of the Motion tbr
Summary Judgment stand ucontroverted.
In view of Respondent's failure to answer and no
other good cause having been shown therefore, the
uncontroverted allegations of the complaint are
deemed admitted and are found to be true. Accord-
ingly, we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FAC(T
I. THE BUSINESS OF RSPONDEN I
Respondent, a New York corporation with its prin-
cipal office and place of business located at 553 Greg-
244 NLRB No. 170
1(W49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ory Avenue, Weehawken, New Jersey, is engaged in
the manufacture, sale, and distribution of steel shelv-
ing, cabinets, and related products. During the 12-
month period immediately preceding the issuance of
the complaint and notice of hearing Respondent
caused to be manufactured, sold, and distributed at
its Weehawken facility products valued in excess of
$50,000, of which products valued in excess of
$50,000 were shipped from said Weehawken facility
in interstate commerce directly to States of the
United States other than the State of New Jersey.
We find on the basis of the foregoing that Respon-
dent has been at all times material herein an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effec-
tuate the policies of the Act to assert jurisdiction
herein.
ues to refuse to bargain collectively with the Union as
the exclusive representative of the employees in the
above-described appropriate unit, and that, by such
refusal, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
II. THE LABOR ORGANIZATION INVOLVED
V. THE REMEDY
The Union, Sheet Metal Workers International As-
sociation, Local Union No. 137, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III111. THE UNFAIR LABOR PRACTICES
At all times since on or about August 1, 1977, and
continuing to date, the Union has been the exclusive
representative of employees employed at Respon-
dent's Weehawken, New Jersey, facility in the follow-
ing appropriate unit:
All production and maintenance employees em-
ployed at Respondent's Weehawken plant in-
cluding brake set-up men, operators of brakes,
shears, presses, sprayers, arc welders, and spot
welders, bench men, general labor utility work-
ers, and all other employees, but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
Thereafter, Respondent was and is a party to a collec-
tive-bargaining agreement entered into on August 1,
1977, which continues in effect until July 31, 1980.
Since on or about May 22, 1978, and continuing to
date Respondent has failed and refused, and contin-
ues to fail and refuse, to bargain collectively with the
Union as the duly recognized exclusive representative
of the employees in the above-described unit by uni-
laterally changing existing terms and conditions of
employment by failing and refusing to make the pen-
sion and welfare payments required by section XVI
of the aforementioned collective-bargaining agree-
ment.
Accordingly, we find that, by engaging in the con-
duct found above, Respondent did refuse and contin-
Having found that Respondent engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (I) of the Act, we shall order
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
To remedy Respondent's violation of Section
8(a)(5) and (I) of the Act we shall order Respondent
to make whole its employees by transmitting the re-
quired current and accrued pension and welfare pay-
ments to the Union.3
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Valiant Metal Products, Corp., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Sheet Metal Workers International Association,
Local Union No. 137, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Weehawken, New Jer-
I Because the provisions of employee benefit fund agreements are variable
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 Re-
spondent must pay any additional amounts into the benefit funds in order to
satisfy our "make-whole" remedy. These additional amounts may be deter-
mined, depending on the circumstances of each case, by reference to provi-
sions in the documents governing the funds at issue and by reference 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 on
investment of the portion of funds withheld, additional administrative costs.
etc., but not collateral losses. See Merryweather Optical Company, 240 NLRB
1213 (1979),
1050
VALIANT METAL PRODUCTS
sey, plant, including brake set-up men, operators of
brakes, shears, presses, sprayers, arc welders, and spot
welders, bench men, general labor utility workers,
and all other employees, but excluding all office cleri-
cal employees, professional employees, guards and
supervisors 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 August 1, 1977, the above-named labor
organization has been and now is the exclusive repre-
sentative of all employees in the aforesaid appropri-
ate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to make the pension and
welfare payments required by section XVI of the par-
ties' collective-bargaining agreement since May 22.
1978. Respondent has violated Section 8(a)(5) of the
Act.
6. By the aforesaid actions, Respondent has inter-
fered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the exer-
cise of the rights guaranteed them by Section 7 of the
Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 Rela-
tions Board hereby orders that the Respondent, Val-
iant Metal Products, Corp., Weehawken, New Jersey,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to make contractually re-
quired pension and welfare payments to the Union.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole its employees in the manner set
forth in the section of this Decision entitled "The
Remedy" for Respondent's unlawful failure to make
current and accrued pension and welfare payments as
required by Respondent's collective-bargaining agree-
ment with the Union.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amounts owed
under the terms of this Order.
(c) Post at its place of business at \Weehawken.
New Jersey, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms pro-
vided bh the Regional Director for Region 22, after
being duly signed b Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained b3 it for 6(I consecu-
tive days thereafter, in conspicuous places. including
all places where notices to employees arc custolmarily
posted. Reasonable steps shall be taken bh Respon-
dent to insure that said notices are not altered. de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 22. in
writing. within 20 days from the date of this Order.
what steps have been taken to comply herewith.
I In the esent that this Order is enforced b) a Judgmetm it a nited States
court of appeals, the Aords in the notice reading "Posted b Order of the
National I.abor Relations Board" shall read "Posted Pursuant to Judgment
of the nited States (lourt of Appeals Enforcing an Order lt Ihc Ni llornal
Labor Relations Board"
APPEND)IX
NOTIC( To EMPLOYEES
POS I)ED BY ORDER O(1 il:
NATIONAl LABOR REI ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities.
WE WiLLl NOT fail and refuse to make pension
and welfare payments required by our contract
with Sheet Metal Workers International Associ-
ation, Local Union No. 137, AFL CIO.
WE WILL NOt in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them hb
Section 7 of the Act.
WE \WILL make whole our employees by pay-
ing those current and accrued pension and wel-
fare benefits we wrongfully withheld.
VALIANT METAL PRODU(IS (CO()RP.
105(S