Domestic Steel Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 785 (N.L.R.B. 1981)

DOMESTIC STEEL CO.. INC.
Domestic Steel Sales Co., Inc. and Local 810, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
29-CA-8334
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on September 25, 1980, by
Local 810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein the Union, and duly served on Domestic
Steel Sales Co., Inc., herein Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 29,
issued a complaint on November 10, 1980, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge and the complaint and notice of hearing
before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that commencing on
or about April 25, 1980, Respondent has refused,
and continues to fail and refuse, to transmit to the
Union moneys deducted from the wages of its em-
ployees for dues and initiation fees for the months
of April, May, June, July, and August, 1980, pursu-
ant to the terms of the collective-bargaining agree-
ment between it and the Union; that since on or
about April 25, 1980, Respondent has refused and
continues to fail and refuse to make contributions
to the Union's pension and welfare funds on behalf
of its employees in the appropriate unit for the
months of April, May, June, July, and August,
1980, pursuant to the terms of the said collective-
bargaining agreement; and that since on or about
August 29, 1980, and thereafter, the Union has re-
quested Respondent to meet with it and to bargain
with it regarding the effects upon the unit employ-
ees of Respondent's closing its business, but that
since August 29, 1980, and continuing to date Re-
spondent has refused and continues to refuse to
bargain with the Union concerning these effects.
Respondent failed to file an answer to the com-
plaint.
On May 6, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on May 13, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
258 NLRB No. 104
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent did
not file a response to the Notice To Show Cause
and, therefore, the allegations in the Motion for
Summary Judgment stand uncontroverted.
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:
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
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
Respondent on November 10, 1980, specifically
stated that unless an answer to the complaint was
filed within 10 days from the service thereof "all of
the allegations in the Complaint shall be deemed to
be admitted true and may be so found by the
Board." As noted above, Respondent has failed to
file an answer to the complaint and has further
failed to file a response to the Notice To Show
Cause. According to the Motion for Summary
Judgment, Respondent was notified by telegram
dated April 27, 1981, that an answer to the com-
plaint had not been received, and that, if an answer
were not received forthwith, appropriate action
would be taken. Respondent has not filed an
answer to the complaint.
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.'
' Eagh' liuck and Trailer Rental Diiion ofY : 1. & r Leaing. Inc.. 211
NI R 1 804(1974)
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, has its
principal office in Brooklyn, New York, where it is
engaged in the cutting, sale, and distribution of
steel and related products. During the past year, a
representative period, Respondent, in the course
and conduct of its business operations, purchased
and had shipped to its Brooklyn plant materials
valued in excess of $50,000, of which materials
valued in excess of $50,000 were delivered to said
plant in interstate commerce directly from States
other than the State of New York.
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
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 810, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
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 production and maintenance employees of
Respondent, employed at the Brooklyn, New
York plant, excluding office clericals, guards
and supervisors as defined in the Act.
At all times material herein, Respondent has
been a member of The Steel Warehouse League, an
employer association comprised of employers en-
gaged in the cutting, warehousing, and sale of steel
and related products. The League exists for the
purpose, inter alia, of representing its employer-
members in negotiating and administering collec-
tive-bargaining agreements with labor organizations
covering the employees of its employer-members.
Since about 1960, the League and Local 810 have
been parties to collective-bargaining agreements,
including a current collective-bargaining agreement
effective from on or about December 1, 1978, to
and including November 30, 1981, by which the
League and its employer-members, including Re-
spondent, have recognized Local 810 as the exclu-
sive bargaining representative of their employees in
the unit described above. The collective-bargaining
agreement contains a provision requiring the em-
ployer-members of the League, including Respond-
ent, upon receipt of written authorization from em-
ployees, to deduct moneys, including but not limit-
ed to, dues and initiation fees, from the wages of
said employees, and to transmit such moneys to
Local 810. The collective-bargaining agreement
also contains provisions which require the employ-
er-members of the League, including Respondent,
to make periodic contributions to Local 810's pen-
sion and welfare funds, on behalf of each of its em-
ployees covered by said agreement, for the purpose
of providing pension and welfare benefits for said
employees.
On or about August 29, 1980, Respondent closed
its business and laid off its remaining employees
who were in the unit described above. Since on or
about April 25, 1980, Respondent has refused to
transmit to Local 810 moneys deducted from the
wages of its employees for union dues and initi-
ation fees and refused to make contributions to
Local 810 pension and welfare funds on behalf of
its employees for the months of April, May, June,
July, and August, 1980, pursuant to the terms of
the collective-bargaining agreement. Since on or
about August 29, 1980, Respondent has refused to
bargain collectively with Local 810 regarding the
effects on the unit employes of the closing of Re-
spondent's business.
Accordingly, we find that by the foregoing con-
duct Respondent has refused and continues to fail
and refuse, to bargain collectively with the Union
as the exclusive representative of the employees in
the appropriate unit, and that, by such refusal, Re-
spondent 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 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. ITH RME)Y
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
786
DOMESTIC STEEL SALES CO., INC.
take certain affirmative action designed to effectu-
ate the policies of the Act.
To remedy Respondent's violation of Section
8(a)(5) and (1) of the Act, we shall order it to cease
and desist from refusing to bargain with the Union
over the effects of the closing of its business upon
Respondent's employees in the unit and, if an un-
derstanding is reached, to embody such under-
standing in a signed agreement.
We shall further order that Respondent pay to
the Local 810 pension and welfare funds the contri-
butions which it should have made pursuant to the
terms of the collective-bargaining agreement retro-
active to April 25, 1980.2
We shall also order Respondent to transmit to
the Union all membership dues and initiation fees
which, since April 25, 1980, Respondent has with-
held from the wages of the unit employees pursu-
ant to the collective-bargaining agreement, with in-
terest computed thereon in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977). 3
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Domestic Steel Sales Co., Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 810, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent employed at the Brooklyn, New York,
plant, excluding office clericals, guards and super-
visors 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 about 1960, the above-named labor orga-
nization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
! 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 unlaw, fully
withheld fund payments. We leave to the compliance stage the question
whether Respondent Domestic Steel Sales Co.. Inc., must pa, an, addi-
tional amounts into the benefit funds in order to satisfy our "make
whole" remedy These additional amounts may be determined. depending
on the circumstances of each case. by reference to provisions in the doc-
uments governing the funds 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 on investment
of the portion of funds swithheld. additional administrative costs. etc.. but
not collateral losses. Merrvwe-athcer Optical Company. 24() NRHB 1213
(1979),
:' See. generally. Iviv Plumbing & Heatiung Co., 138 NLRB 716 (1962)
Member Jenkins would award interest in accord with his dissen in
Olympic Mdiral Corporration. 250 NLRB 146 (1980()
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about August 29, 1980, and
at all times thereafter, to bargain collectively in
good faith with the Union over the effect on its
employees of the closing of its business; by refusing
to make pension and welfare fund contributions for
employees since April 25, 1980; and by refusing to
transmit to the Union moneys deducted from the
wages of its employees for union dues and initi-
ation fees since April 25, 1980, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the acts described in section III, above,
Respondent has refused to recognize and bargain
with Local 810 and 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 engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(l) of the Act.
7. 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,
Domestic Steel Sales Co., Inc., Brooklyn, New
York, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Local
810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, over effects of the closing of its business on the
employees in the appropriate unit.
(b) Refusing to make pension and welfare fund
contributions for employees pursuant to the collec-
tive-bargaining agreement.
(c) Refusing to transmit to the Union moneys de-
ducted from the wages of its employees for union
dues and initiation fees pursuant to the collective-
bargaining agreement.
(d) 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) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over the effects of the closing of its business and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Make whole its employees by mailing contri-
butions to the Local 810 pension and welfare funds
in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Transmit to the Union all memberhship dues
and initiation fees which Respondent has withheld
from the wages of the unit employees pursuant to
the collective-bargaining agreement, in the manner
set forth in the section of this Decision entitled
"The Remedy."
(d) Mail copies of the attached notice marked
"Appendix," 4 on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent's representative, to the last known ad-
dress of the employees involved and to the Union.
(e) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps Respondent have taken to
comply herewith.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "By Order of
the National Labor Relations Board" shall read "Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Local 810, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, concerning the effects of
the closing of our business on the employees in
the bargaining unit described below
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to the ef-
fects of the plant closing and, if an understand-
ing is reached, embody such understanding in
a signed agreement. The bargaining unit is:
All production and maintenance employees
of the Employer employed at the Brooklyn,
New York plant, excluding office clericals,
guards and supervisors as defined in the Act.
WE Wl. L make whole our employees by
paying Local 810 pension and welfare funds
the contributions which should have been
made, since April 25, 1980, pursuant to the
terms of our written agreement with the
above-named Union.
WE WILL transmit to said Union all mem-
bership dues and initiation fees which, since
April 25, 1980, were deducted from the wages
of our employees pursuant to the collective-
bargaining agreement, with interest.
DOME STIC STEEl. SAI.ES CO., INC.
788