Endicott Forging & Mfg.

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 180 (N.L.R.B. 1995)

180
319 NLRB No. 31
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Endicott Forging & Manufacturing, Inc. and Inter-
national Brotherhood of Boilermakers, Iron
Ship Builders & Helpers, AFL–CIO, Local
Union No. 1101. Case 3–CA–19024
September 29, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge filed by the Union on December 7,
1994, and an amended charge filed on January 19,
1995, the General Counsel issued a complaint on Janu-
ary 31, 1995, against Endicott Forging & Manufactur-
ing, Inc., the Respondent, alleging that it has violated
Section 8(a)(1) and (5) of the National Labor Relations
Act. The Respondent filed an answer admitting in part
and denying in part the allegations in the complaint,
and asserting affirmative defenses.
The complaint alleges, and the Respondent admits,
that since on or about May 1, 1994, the Respondent
has failed to provide medical and dental insurance cov-
erage as required by its collective-bargaining agree-
ment with the Union. The complaint further alleges,
and the Respondent admits, that since on or about
March 1, 1994, the Respondent has failed to pay medi-
cal claims under a program of self-insurance as rep-
resented to and agreed to by the Union. The complaint
also alleges that since on or about November 11, 1994,
the Respondent has failed to provide the Union with
information regarding the payment or nonpayment by
the Respondent of medical bills submitted by unit em-
ployees. The Respondent’s answer admits that it de-
layed providing any information until May 19, 1995,
and that the information provided at that time was in-
complete.
Although the Respondent essentially admits in its
answer the operative facts giving rise to the unfair
labor practices, it attempts to explain why it failed to
meet its contractual obligations to employees rep-
resented by the Union. The Respondent asserts that it
has suffered financial declines which have impaired its
ability to meet its insurance obligations, but that it in-
tends to fully meet its obligations when it is financially
able. The Respondent claims that as of April 10, 1995,
it arranged for insurance coverage and that it is in the
process of completing payment of medical bills sub-
mitted by unit employees under a program of self-in-
surance. The Respondent claims that on May 19, 1995,
it provided to the Union a list of unit employees’ med-
ical bills, as requested, that it intends to update the list
when time permits, and that its delay in providing the
requested information was caused by reduced staffing
and demands of managing the business which had not
permitted performance of the necessary analysis.
On July 28, 1995, the General Counsel filed a ‘‘Mo-
tion to Transfer Proceeding to Board, to Strike Re-
spondent’s Affirmative Defense and for Summary
Judgment and Issuance of Board’s Decision and
Order.’’ The General Counsel asserts, inter alia, that
the Respondent’s answer essentially admits all the alle-
gations of the complaint and raises no material issues
of fact warranting a hearing and that the Respondent’s
affirmative defenses, even if proven, would not con-
stitute an adequate defense to the allegations in the
complaint. On August 2, 1995, 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 Respondent filed no response. The allega-
tions in the motion are therefore undisputed.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint, the Respondent ad-
mits its failure to pay medical claims under a program
of self-insurance and its failure to provide medical and
dental insurance coverage for unit employees as re-
quired by its collective-bargaining agreement with the
Union. The Respondent’s defense is one of economic
necessity. It is well established that Section 8(a)(5) and
(1) of the Act prohibits an employer that is a party to
an existing collective-bargaining agreement from modi-
fying the terms and conditions of employment of that
agreement without obtaining the consent of the Union.
Kane Systems Corp., 315 NLRB 355 (1994); Nick
Robilotto, Inc., 292 NLRB 1279 (1989). Here, the Re-
spondent has admitted that it breached its collective-
bargaining agreement with the Union without having
the Union’s consent. The Respondent has also admitted
that it did not adhere to its agreement with the Union
to provide a program of self-insurance.
In its answer, the Respondent also admits that it
failed, in a timely fashion, to provide the Union with
information regarding the Respondent’s payment or
nonpayment of medical bills submitted by unit em-
ployees. The Union requested the information on or
about November 11, 1994, and the Respondent pro-
vided a portion of it on or about May 19, 1995, a
delay of some 7 months. It is well settled that informa-
tion regarding insurance is relevant and necessary to a
union’s performance of its duties as bargaining agent
and that this information, when requested, must be pro-
vided on a timely basis. Seiler Tank Truck Service, 307
NLRB 1090, 1101 (1992). The Respondent has admit-
ted that it failed to provide the pertinent information
in a complete and timely fashion.
The Respondent has admitted all the facts material
to a resolution of the unfair labor practice issues raised
by the complaint. An employer’s claim that it is finan-
cially unable to pay for contractually required benefits,
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181ENDICOTT FORGING & MFG.
1 Because we find the Respondent’s affirmative defenses to be in-
adequate, we also grant the General Counsel’s motion to strike. Nick
Robilotto, supra, 292 NLRB at 1280. 2 See, e.g., Enertech Electrical, 309 NLRB 896, 897 (1992).
‘‘even if proven, does not constitute an adequate de-
fense to an allegation that an employer has unlawfully
failed to abide by provisions of a collective-bargaining
agreement.’’ Zimmerman Painting & Decorating, 302
NLRB 856, 857 (1991). Equally without merit is the
Respondent’s defense that the demands of its business
precluded it from timely furnishing the requested infor-
mation. It is well established that an employer must
apply no lesser degree of ‘‘diligence and promptness’’
in collective-bargaining matters than it brings to
‘‘other business affairs of importance.’’ J. H. Rutter-
Rex Mfg. Co., 86 NLRB 470, 506 (1949). Therefore,
the Respondent’s answer to these complaint allegations
has raised no issues warranting a hearing.
In the absence of any material issues warranting a
hearing, we grant the General Counsel’s Motion for
Summary Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation with its
principal office and place of business located in Endi-
cott, New York, is engaged in the manufacture and
sale of metal forging. During the 12-month period pre-
ceding issuance of the complaint, the Respondent, in
conducting its business operations, derived gross reve-
nues in excess of $50,000, and 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 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 and the Union’s Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining pur-
poses 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 material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit employees and
has been recognized as the representative by the Re-
spondent. Such recognition has been embodied in a se-
ries of collective-bargaining agreements, the most re-
cent of which had a term of May 19, 1994, to May
20, 1995. At all times since 1944, based on Section
9(a) of the Act, the Union has been the exclusive col-
lective-bargaining representative of the unit employees.
B. The Refusal to Bargain
Since on or about May 1, 1994, and continuing
thereafter, the Respondent has failed to continue in ef-
fect the terms and conditions of the collective-bargain-
ing agreement described above by failing to provide
medical and dental insurance coverage as required by
its collective-bargaining agreement with the Union.
Since on or about March 1, 1994, and continuing
thereafter, the Respondent has failed to pay medical
claims under a program of self-insurance as rep-
resented to and agreed to by the Union. The Respond-
ent engaged in the above-described conduct without
the Union’s consent. Indeed, it was not until on or
about November 1, 1994, that the Union was put on
notice that the Respondent had been delinquent in pay-
ing medical claims under the program of self-insur-
ance, and in making timely health insurance contribu-
tions and providing health insurance coverage. The
terms and conditions of employment described above
are mandatory subjects for the purposes of collective
bargaining.2
Since on or about November 11, 1994, the Union
has requested a list of medical bills submitted by unit
employees and designation of the payment or non-
payment and related documentation concerning the sta-
tus of payment of such bills, for a relevant period. The
information requested by the Union is necessary for,
and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit employees. The Respondent has failed and re-
fused to provide this information completely and with-
out unreasonable delay.
By the above-described conduct, the Respondent has
failed and refused to bargain collectively with the ex-
clusive collective-bargaining representative of its em-
ployees within the meaning of Section 8(d) and in vio-
lation of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
By failing since on or about May 1, 1994, to abide
by the terms of the collective-bargaining agreement be-
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182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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.’’
tween the Respondent and the Union by failing to pro-
vide medical and dental insurance coverage, and by
failing, since on or about March 1, 1994, to pay medi-
cal claims under a program of self-insurance agreed to
by the Union, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1), Section 8(d), and Section
2(6) and (7) of the Act.
By failing since on or about November 11, 1994, to
timely provide the Union with all the insurance infor-
mation requested by it that is relevant to its duties as
collective-bargaining representative, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1),
Section 8(d), and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that the
Respondent cease and desist and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing to provide
contractually required medical and dental insurance
coverage for its unit employees and by failing to pay
medical claims under a program of self-insurance
agreed to by the Union, we shall order the Respondent
to restore the employees’ medical and dental insurance
coverage and make the employees whole by reimburs-
ing them for any losses or expenses ensuing from the
Respondent’s 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).
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) by failing to timely provide all rel-
evant insurance information to the Union, we shall
order the Respondent to completely and without delay
provide the Union with the requested information.
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) Refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of the unit
employees by failing and refusing to provide contrac-
tually required medical and dental insurance coverage
and by failing and refusing to pay medical claims
under a program of self-insurance agreed to by the Re-
spondent and the Union.
(b) Refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of the unit
employees by failing and refusing to timely provide
the Union with complete information regarding the
payment or nonpayment of medical bills submitted by
unit employees.
(c) 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) Restore the employees’ medical and dental insur-
ance coverage and make employees whole by reim-
bursing them for any losses or expenses they may have
incurred during the period that the Respondent failed
to provide contractually required medical and dental
insurance coverage or failed to pay medical claims
under a program of self-insurance, in the manner set
forth in the remedy section of this decision.
(b) Provide the Union, in a complete and timely
fashion, with any information it has failed to provide
regarding the payment or nonpayment of medical ex-
penses submitted by unit employees.
(c) On request, bargain with International Brother-
hood of Boilermakers, Iron Ship Builders & Helpers,
AFL–CIO, Local Union No. 1101, as the exclusive
collective-bargaining representative of the employees
in the following appropriate 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.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
(e) Post at its facility in Endicott, New York, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 3, 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
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183ENDICOTT FORGING & MFG.
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.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER COHEN, dissenting in part.
I would not grant summary judgment as to the al-
leged delay in furnishing information. Respondent as-
serts that it provided information to the Union on May
19, 1995, and alleges that reduced staffing and other
business demands precluded an earlier response. Re-
spondent also promised to update the information as
soon as possible. I believe that these assertions raise
factual issues which require a hearing.
My colleagues argue that Respondent had the obli-
gation to treat the Union’s request no less diligently
than it treated other business demands. I agree. How-
ever, there is no showing that Respondent treated other
business demands with greater diligence. Again, a
hearing would serve to flesh out this inherently factual
issue.
In sum, without passing on the ultimate merits, I
would not deny Respondent a hearing on these issues.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain with the Union as
the exclusive collective-bargaining representative of
our unit employees by failing and refusing to provide
contractually required medical and dental insurance
coverage and by failing to pay medical claims under
a program of self-insurance agreed to by the Union.
WE WILL NOT refuse to bargain with the Union as
the exclusive collective-bargaining representative of
our unit employees by failing and refusing to timely
provide the Union with complete information regarding
our payment or nonpayment of medical expenses sub-
mitted by unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed by Section 7 of the Act.
WE WILL restore the employees’ medical and dental
insurance coverage and we will make them whole by
reimbursing employees for any losses or expenses they
may have incurred during the period in which we
failed to maintain contractually required medical and
dental insurance coverage and failed to pay medical
claims under a program of self-insurance.
WE WILL provide the Union, in a complete and
timely fashion, with any information we have pre-
viously failed to provide regarding the payment or
nonpayment of medical expenses submitted by unit
employees.
WE WILL on request bargain with International
Brotherhood of Boilermakers, Iron Ship Builders &
Helpers, AFL–CIO, Local Union No. 1101, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate 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.
ENDICOTT FORGING & MANUFACTUR-
ING, INC.
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