Endicott Forging & Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 29, 1996

322 N.L.R.B. 4 (N.L.R.B. 1996)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Endicott Forging & Manufacturing, Inc. and Inter-
national Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Help­
ers, AFL–CIO. Case 3–CA–19889
August 29, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon a charge filed on February 12, 1996, the Gen­
eral Counsel of the National Labor Relations Board is-
sued a complaint on April 9, 1996, against Endicott
Forging & Manufacturing, Inc., the Respondent, alleg­
ing that it has violated Section 8(a)(1) and (5) of the
National Labor Relations Act. Although properly
served copies of the charge and complaint, the Re­
spondent failed to file an answer.
On August 9, 1996, the General Counsel filed a Mo­
tion for Summary Judgment with the Board. On Au-
gust 12, 1996, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re­
spondent filed no response. The allegations in the mo­
tion are therefore undisputed.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un­
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al­
legations in the Motion for Summary Judgment dis­
close that the Region, by letter dated July 12, 1996,
notified the Respondent that unless an answer was re­
ceived by July 19, 1996, a Motion for Summary Judg­
ment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business located at 1901
North Street, Endicott, New York, has been engaged in
the manufacture and sale of metal forging. During the
12 months preceding issuance of the complaint, Re­
spondent purchased and received goods and materials
valued in excess of $50,000 which were shipped to its
Endicott facility directly from points located outside
the State of New York. We find that the Respondent
is an employer engaged in commerce within the mean­
ing of Section 2(2), (6), and (7) of the Act, and that
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL–CIO
(Local Union No. 1101), the Union, has been a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con­
stitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act:
All employees in production and maintenance (but
excluding the die department, office, clerical em­
ployees, and all supervisors, foremen and assistant
foremen in charge of any classes of employees)
for whom the union, is or may be, during the term
of this agreement, certified by the National Labor
Relations Board as the exclusive collective bar-
gaining representative as determined by the elec­
tion conducted by the National Labor Relations
Board of November 28, 1944.
Since about 1944, and at all times thereafter, the
Union has been the designated exclusive collective-
bargaining representative of the unit and since then the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in a
series of collective-bargaining agreements, the most re-
cent of which has a term of May 20, 1995, to May 24,
1996. At all times since 1944, based on Section 9(b)
of the Act, the Union has been the exclusive collec­
tive-bargaining representative of the unit.
Since about August 20, 1995, and continuing there-
after, the Respondent has failed and refused to make
required payments into the contractual 401(k) pension
plan. Since about the same date, and continuing there-
after, Respondent has also failed and refused to remit
loan repayments from employees into the contractual
401(k) pension plan. Since about November 20, 1995,
and continuing thereafter, the Respondent has failed
and refused to make the annual and quarterly contrac­
tual bonus payments. The Respondent engaged in the
conduct described above without the Union’s consent.
The terms and conditions of employment described
above are mandatory subjects for the purposes of col­
lective bargaining.
Since about November 30, 1995, in writing, the
Union has requested a list of the names of all present
and former unit employees whose loan repayments, via
payroll deduction into the 401(k) plan, have not been
322 NLRB No. 4
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
deposited by the Respondent to employee accounts,
and the dates and the amounts of the loan payments
deducted from employees’ paychecks that were not
forwarded and deposited to their respective 401(k) ac­
counts. This information is necessary for, and relevant
to, the Union’s performance of its duties as the exclu­
sive collective-bargaining representative of the unit.
Since about November 30, 1995, the Respondent has
failed and refused to furnish the Union with the re-
quested information.
CONCLUSION OF LAW
By the acts and conduct described above, the Re­
spondent has failed and refused to bargain collectively
with the exclusive collective-bargaining representative
of its employees within the meaning of Section 8(d) of
the Act, and has thereby engaged in unfair labor prac­
tices affecting commerce within the meaning of Sec­
tion 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.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing and refus­
ing, since August 20, 1995, to make required payments
and to remit loan repayments from employees into the
contractual 401(k) pension plan, we shall order the Re­
spondent to make all required payments and remit any
such loan repayments into the 401(k) pension plan, in­
cluding any additional amounts due the plan in accord­
ance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). In addition, the Respondent shall re­
imburse the employees for any expenses incurred as a
result of its unlawful conduct, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Furthermore, having found that the Respondent has
failed and refused since November 20, 1995, to make
annual and quarterly contractual bonus payments, we
shall order the Respondent to make such payments and
to make the unit employees whole for any loss of earn­
ings resulting from its refusal to do so. Backpay shall
be computed in accordance with Ogle Protection Serv­
ice, 183 NLRB 682 (1979), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest as prescribed in New Horizons
for the Retarded, supra.
Finally, having found that the Respondent has failed
and refused to supply necessary and relevant informa­
tion requested by the Union, we shall order the Re­
spondent to furnish the Union with the information re-
quested.
ORDER
The National Labor Relations Board orders that the
Respondent, Endicott Forging & Manufacturing, Inc.,
Endicott, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to make payments into the
contractual 401(k) pension plan for employees in the
following bargaining unit:
All employees in production and maintenance (but
excluding the die department, office, clerical em­
ployees, and all supervisors, foremen and assistant
foremen in charge of any classes of employees)
for whom the union, is or may be, during the term
of this agreement, certified by the National Labor
Relations Board as the exclusive collective bar-
gaining representative as determined by the elec­
tion conducted by the National Labor Relations
Board of November 28, 1944.
(b) Failing and refusing to remit loan repayments
from employees into the contractual 401(k) pension
plan.
(c) Failing and refusing to make annual and quar­
terly contractual bonus payments.
(d) Failing and refusing to provide necessary and
relevant information requested by International Broth­
erhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL–CIO.
(e) In any like or related manner interfering with, re-
straining, 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 all required payments and remit any loan
repayments from employees into the contractual 401(k)
pension plan that have not been made or remitted since
August 20, 1995, and reimburse the unit employees for
any expenses incurred as a result of its unlawful con-
duct, with interest, as set forth in the remedy section
of this decision.
(b) Make annual and quarterly contractual bonus
payments, and make the unit employees whole for its
failure to do so since November 20, 1995, with inter­
est, as set forth in the remedy section of this decision.
(c) Furnish the Union with the information it re-
quested on November 30, 1995.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay­
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
ENDICOTT FORGING & MFG. 3
(e) Within 14 days after service by the Region, post
at its facility in Endicott, New York, copies of the at­
tached notice marked ‘‘Appendix.’’1 Copies of the no­
tice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since February 12, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. August 29, 1996
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
������������������
Sarah M. Fox, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
1 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.’’
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 fail or refuse to make payments into
the contractual 401(k) pension plan for employees in
the following bargaining unit:
All employees in production and maintenance (but
excluding the die department, office, clerical em­
ployees, and all supervisors, foremen and assistant
foremen in charge of any classes of employees)
for whom the union, is or may be, during the term
of this agreement, certified by the National Labor
Relations Board as the exclusive collective bar-
gaining representative as determined by the elec­
tion conducted by the National Labor Relations
Board of November 28, 1944.
WE WILL NOT fail or refuse to remit loan repay­
ments from employees into the contractual 401(k) pen­
sion plan.
WE WILL NOT fail or refuse to make annual and
quarterly contractual bonus payments.
WE WILL NOT fail or refuse to provide necessary
and relevant information requested by International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL–CIO.
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 all required payments and remit any
loan repayments from employees into the contractual
401(k) pension plan that have not been made or remit­
ted since August 20, 1995, and WE WILL reimburse the
unit employees for any expenses incurred as a result
of our unlawful conduct, with interest.
WE WILL make annual and quarterly contractual
bonus payments, and WE WILL make the unit employ­
ees whole for any loss of earnings resulting from our
failure to do so since November 20, 1995, with inter­
est.
WE WILL furnish the Union with the information it
requested on November 30, 1995.
ENDICOTT FORGING & MANUFACTUR­
ING, INC.