Independent Steel Products, LLC

National Labor Relations Board - Board Decisions

Jun 28, 2005

344 N.L.R.B. 904 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 114
904
Independent Steel Products, LLC and Local 2947,
United Brotherhood of Carpenters and Joiners
of America. Case 29–CA–26283
June 28, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On December 2, 2004, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel and Charging Party filed exceptions and
supporting briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, to adopt his recommended Order
as modified and set forth in full below, and to substitute a
new notice for that of the judge.
The complaint alleged, and the judge found, that the
Respondent violated Section 8(a)(1) and (5) of the Act
by withdrawing in an untimely manner from multiem-
ployer bargaining, insisting on bargaining individually
with the Union, and thereafter unilaterally changing unit
employees’ health care benefits. The judge ordered the
Respondent to cease and desist from this unlawful con-
duct, to bargain on request with the Union through the
multiemployer association (the Association), and to re-
sume compliance with its financial obligations to the
Union’s Welfare Fund (health care benefits). Because
the judge found that the Respondent was not on notice
that the General Counsel was additionally contending
that the Respondent failed to execute the collective-
bargaining agreement that was entered into by the Asso-
ciation and Union on August 24, 2004, or failed to abide
by its terms, the judge declined to find that the Respon-
dent’s failure to do so violated the Act, and declined to
order the Respondent to execute and abide by the agree-
ments as a remedial measure.
Both the General Counsel and the Charging Party ex-
cepted to the judge’s recommended order.1 Although not
asserting that the judge erred in failing to find that the
Respondent violated the Act by not executing and abid-
ing by the Association agreement, they contend that the
judge erred by not ordering the Respondent to abide by
the agreement, which they claim is one of the standard
remedies for an employer’s untimely withdrawal from
multi-employer bargaining. The Charging Party further
argues that ordering the Respondent to bargain through
the Association at this point makes no sense given that
the Association has already reached an agreement with

1 The Respondent filed no exceptions.
the Union, and because it would effectively give the Re-
spondent what it did not lawfully achieve—individual
bargaining. The Respondent did not file a brief in reply
to these exceptions.
In light of the limited scope of the pleadings and to en-
sure against possible infringement of the Respondent’s
due process rights, on April 21, 2005, the Board issued a
Notice to Show Cause.2 This notice specified the addi-
tional relief sought by the General Counsel and allowed
the Respondent until May 5, 2005, to present arguments
why the Board should not modify the remedy in the
manner proposed by the exceptions. The Respondent
filed no response to the Notice.
In the absence of opposition from the Respondent, the
Board has decided to grant the requested modification of
the remedial order in accordance with the General Coun-
sel’s and Charging Party’s exceptions.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Independent Steel Products, LLC, Farming-
dale, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Withdrawing in an untimely manner from mul-
tiemployer bargaining through the Hollow Metal Door
and Buck Association (the Association), and insisting on
bargaining with the Union on an individual basis.
(b) Failing and refusing to abide by the terms of the
collective-bargaining agreement between the Association
and the Union, executed August 24, 2004.
(c) Unilaterally changing the health care benefits pro-
vided to its employees.

2 Chairman Battista and Member Schaumber; Member Liebman dis-
senting.
3 Thus, we shall order the Respondent to abide by the terms of the
Association agreement in all respects, including resuming contributions
to the Union’s Welfare Fund as ordered by the judge. We shall also
order the Respondent to make the unit employees whole for any loss of
earnings and other benefits they may have suffered as a result of the
Respondent’s failure to abide by the agreement, computed in accor-
dance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). We shall further order the
Respondent to make whole all benefit funds provided by the Associa-
tion agreement for any failure to make the contractually required con-
tributions, with any additional amounts due funds computed in the
manner set forth in Merryweather Optical Co., 240 NLRB 1213, 1216,
fn. 7 (1979). Finally, we shall order the Respondent to reimburse em-
ployees for any losses they may have suffered as a result of its failure to
make contributions to contractually-required benefit funds, in the man-
ner prescribed in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest as pro-
vided in New Horizons for the Retarded, supra.
INDEPENDENT STEEL PRODUCTS, LLC 905
(d) In any like or related manner interfering with, re-
straining, or coercing its 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) Abide by the terms of the collective-bargaining
agreement between the Association and the Union (the
Association agreement), executed August 24, 2004.
(b) Make employees whole, with interest, for any
losses they may have suffered as a result of the Respon-
dent’s failure to abide by the agreement, consistent with
the modified remedy described above.
(c) Make the Union’s Welfare Fund and all other bene-
fit funds required by the Association agreement whole,
with interest, for any contributions that were not made
because of the Respondent’s failure to abide by the terms
of the agreement (in the case of the Welfare Fund, the
contributions that were not made from April 1, 2004),
and reimburse unit employees for any expenses they in-
curred as a result of the failure to make such contribu-
tions, with interest, in the manner set forth in the remedy
section of the judge’s decision, as modified herein.
(d) Preserve and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of money due under the terms
of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in the Bronx and Queens, New York, copies
of the attached notice marked “Appendix.”4 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous 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 a facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees employed by the Respondent at any time
since April 1, 2004.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps it has taken to comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT withdraw in an untimely manner from
multiemployer bargaining through the Hollow Metal
Door and Buck Association (the Association) and WE
WILL NOT insist on bargaining with the Union on an indi-
vidual basis.
WE WILL NOT unilaterally change the health care bene-
fits given to our employees.
WE WILL NOT fail and refuse to abide by the terms of
the collective-bargaining agreement reached between the
Association and the Union (the Association agreement)
and executed August 24, 2004.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of your rights
as set forth above.
WE WILL abide by the terms of the Association agree-
ment and WE WILL make our employees whole, with in-
terest, for any losses they suffered as a result of our fail-
ure to abide by its terms.
WE WILL make the Union’s Welfare Fund and all other
benefit funds required by the Association agreement
whole, with interest, for any missed payments (since
April 1, 2004, to the Welfare Fund) in accordance with
the terms of the Association agreement, and WE WILL
reimburse unit employees, with interest, for any expenses
they may have incurred as a result of our failure to make
required payments to the funds.
INDEPENDENT STEEL PRODUCTS, LLC
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD906
James Kearns Esq., for the General Counsel
Wendell Shepherd Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on November 9, 2004. The
charge was filed on May 5, 2004, and the complaint was issued
on August 2, 2004. In substance, the complaint alleges that
after negotiations had begun between the Union and the Hollow
Metal Door and Buck Association, of which the Respondent
was a member, the Respondent withdrew from the Association
and unilaterally changed the health insurance benefits of its
employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed,1 I
make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the Answer did not deny (and
therefore admitted), paragraphs 1 through 6 along with para-
graphs 8, 10, 11, and 14 of the complaint. Accordingly I make
the following findings.
1. The Respondent is a corporation with its principle office
and place of business located at 55 Engineer Lane, Farming-
dale, New York, where it has been engaged in the manufactur-
ing of steel products. (The other evidence was that it is en-
gaged in the manufacturing of steel doors.)
2. That during the past year, which period is representative
of its annual operations generally, the Respondent in the course
of its business operations, purchased and received at its Farm-
ingdale facility supplies and materials valued in excess of
$50,000 directly from points located outside the State of New
York.
3. That at all material times, the Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
4. That the Union is a labor organization within the meaning
of Section 2(5) of the Act.
5. That the Hollow Metal Door and Buck Association has
been an organization composed of various employers engaged
in steel door production and that one purpose of this Associa-
tion is to represent its employer-members in negotiating and
administering collective-bargaining agreements with the Union.
6. That the appropriate bargaining unit consists of certain
employees of the Respondent and the various employer-
members of the Association that authorized the Association to
bargain on their behalf. The classifications of employees within
the bargaining unit are:

1 The Respondent did not appear at the hearing and did not file a
Brief. It did, however, file an answer to the complaint which admitted
certain allegations and denied others. I also note that a new attorney,
Lawrence Rosenbluth, requested an adjournment of the hearing on
October 14, 2004, because of his unfamiliarity with the case and this
was granted by Judge Biblowitz on October 15, 2004.
All employees, including mechanics, machinists, welders,
layout employees, bench hands, grainers and finishers, as-
semblers, operators, sprayers, fillers, grinders, punch and drill
press operators, maintenance employees, hi-lo operators,
sanders, dippers, packers, laborers and utility employees, but
excluding guards and supervisors as defined in Section 2(11)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Frank Morino, the Union’s president, testified that his Union
has had a longstanding bargaining relationship with the Re-
spondent and its predecessor companies. In this respect, it
seems that the present owners, David and Steven Glaser, oper-
ated similar companies under different names and sold the
business to another person in the 1990s. The facility was moved
to New Jersey, and the Glasers, along with many of the em-
ployees also moved to New Jersey as employees of the new
enterprise. The Union also followed these various moves and
continued to represent the employees through a series of collec-
tive-bargaining agreements.
In the 1990s the Company was known as Well Built Steel
Products and in 2000 it moved from Hoboken, New Jersey, to
Farmingdale.
Morino testified that in 2000, he received a call from the
Glasers who told him that they desired to purchase the assets of
Well Built, employ the existing group of workers and enter
into a collective-bargaining agreement with the Union.
According to Morino, the Glasers executed two agreements
in January 2001. One was a collective-bargaining agreement,
and the other an agreement to make payments on the accrued
indebtedness that that predecessor company was owing to the
Health Fund and the Pension Fund on behalf of the bargaining
unit employees. After these agreements were signed, the
Glasers took over the business and in February 2001, resumed
operations in Farmingdale, New York. The collective-
bargaining agreement that they executed was the same as the
one that had previously been signed by Well Built and also was
the same as the contract negotiated between the Union and the
Association. However, the contract itself was between the
Union and the Respondent. The term of the contract was effec-
tive, retroactive from August 1, 2000, to July 31, 2003.
Morino testified that in June 2003, he met with the represen-
tatives of the Association and was told that its members in-
cluded the Respondent, along with General Fireproof, Acme
Steel, FHA Corp., and LIF Industries. The head of the Associa-
tion was Jack Teich and its attorney was Scott Travella.
A series of 11 or 12 bargaining sessions took place between
July 1, 2003, and March 2004. Morino testified that one or
both of the Glasers attended and participated in about 9 or 10 of
these bargaining sessions. By March 2004, the Union and the
Association had not reached an agreement. However, Morino
testified that at various points during the negotiations, the par-
ties agreed to extend the terms of the contract that had expired
on July 31, 2003.
By letter dated March 22, 2004, Neil Frank wrote to Charles
Claytor, the Fund administrator and a trustee of the Union. He
stated that his firm had been retained to represent the Respon-
INDEPENDENT STEEL PRODUCTS, LLC 907
dent in connection with its welfare fund and requested a group
of fund documents.
Morino testified that he and Claytor had a meeting with
Frank on March 26, 2004. He testified that at that point, the
Respondent owed the Welfare Fund the sum of $1,900,000.
According to Morino, Frank, expressed a desire to negotiate for
a new collective-bargaining agreement on behalf of the Re-
spondent in addition to negotiating about the fund delinquency.
Morino told him that they were only there to talk about the
money owed to the fund and that they were not going to bar-
gain about a new collective-bargaining agreement inasmuch as
the Union was already bargaining with the Association.
By letter dated March 29, 2004, Frank stated; “This letter is
to confirm that negotiations are scheduled for Wednesday
March 31 . . . at your offices.” With respect to this letter, Mar-
ino testified that this does not represent any agreement by the
Union to negotiate and that during the March 26, 2004 meeting
he merely said that he would be coming back from Washington
and would be available to talk. He states that he never made
any agreement to bargain separately for a collective-bargaining
agreement.
By letter dated March 29, 2004, the Union’s attorney,
Wendell Shepherd, wrote to Frank as follows:
This letter is to inform you that Local 2947 does not
consent to the withdrawal of your client, Independent Steel
Products, LLC, from the Hollow Metal Door and Buck
Association multi-employer bargaining unit. However,
the Union and the Funds of course wish to reach an
agreement concerning the delinquencies due the Funds.
By letter dated March 31, 2004, Frank stated:
As you know, Hollow Metal Trust Fund has advised
Independent Steel Products, LLC and its employees that it
will not provide health insurance coverage past March 31,
2004. Further, I was advised on March 30, 2004, that you
have cancelled negotiations scheduled for March 31, 2004
. . . at which time we were prepared to discuss and negoti-
ate all matters in dispute between the parties, including the
payment of an initial deposit towards the past due pay-
ment. In light of the cancellations, Independent Steel
Products, LLC has arranged to cover its employees with
an alternative health plan, which includes the basic ele-
ments of the Fund’s health plan beginning April 1, 2004.
We remain available to discuss all issues involving the
CBA, including the welfare plan and resolution of past de-
linquencies. . . .
Morino testified that he and other representatives of the Un-
ion met with Frank on April 1, 2004, for the purpose of talking
about the fund delinquencies. He states that Frank insisted on
linking discussion of those delinquencies with negotiations for
a new collective-bargaining agreement. Morino testified that
the Union rejected this and that Frank said that the Company
had made arrangements to provide health services through HIP.
Later on April 1, 2004, Frank faxed a letter to the Union that
offered a new health plan through HIP. The letter went on to
state; “Absent your agreement to negotiate all the items in dis-
pute between the parties, including terms of a collective-
bargaining agreement, the company intends to implement the
above plan on Friday, April 9, 2004. We are prepared to nego-
tiate at any time, and await your call to schedule a meeting.”
Frank sent another letter to Shepherd on April 1, 2001, that
stated; “An excellent discussion of withdrawal from an associa-
tion is found in the 1986 case of Jo-Vin Dress., 279 NLRB 525.
I am sure you will conclude after review, our client’s with-
drawal is permissible.”
On April 2, 2004, Morino attempted to visit and talk to the
employees of the Respondent at the shop. He was denied ac-
cess.
By letter dated April 6, 2004, Shepherd wrote to Frank and
reiterated the Union’s position that it did not consent to the
Respondent withdrawing from the Association.
By letter dated April 9, 2004, Frank responded by stating:
Our client’s withdrawal from association bargaining
and our request to bargain individually for a renewed con-
tract with the union is well supported by “unusual circum-
stances” recognized by the National Labor Relations
Board and appropriate case law.
We are intent on completing negotiations for a contract
and have every intention of dealing with the union toward
that end.
In view of your April 6, 2004 letter in which you abso-
lutely and unequivocally refuse to bargain with our client,
our client has no choice but to implement the terms of our
written offer to you dated April 1, 2004.
On April 20, 2004, Frank sent another letter in response to
Shepherd’s April 6 letter in which he disagreed with her legal
conclusions and again offered to bargain on an individual basis.
In addition, he stated:
Our objective has been and continues to be: 1) Contin-
ued representation of the employees by the union, as this
relationship has worked well for over fifty years; 2) Pro-
viding the employees with an immediate and reasonable
wage increase, their first in over fourteen months; 3) Al-
lowing the employer to overcome its current dire circum-
stances by replacing the outrageously priced Hollow Metal
Health and Welfare Plan with the HIP plan we have previ-
ously described; and 4) Finding a reasonable way to deal
with the o/s welfare deficiency of over $2,000,000 so the
fund will eventually be paid.
Continuing in the Hollow Metal Health Fund would
eliminate all possibility of objectives two through 4 from
occurring. With those goals in mind, we have offered
$420,000 over the term of three year renewed contract to
pay down the Welfare Fund deficiency. Independent Steel
would pay the Fund $50,000 at the beginning of each con-
tract year for a total of $150,000. Further it would pay an
additional $7,500 monthly for 36 months for a total of
$270,000. At the end of this contract, we would negotiate
additional payments and so on. In order to provide a real-
istic chance of ultimately retiring the debt, we ask the
Trustees to suspend interest, penalties, and liquidated
damages for the term of the agreement, subject to prompt
payment of the agreed to settlement sums by our client
during the contract term.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD908
This letter went on to state, inter alia, that the Respondent
could not pay off the past deficiencies and survive; that if the
health plan remained unchanged, the Company would have to
lay off more employees; that the Fund obtained a judgment of
$1,950,000 plus interest and froze the Company’s payroll ac-
count; that due to nonpayments the employees were without
health coverage; and that the Fund will “end up shutting down
the company unless a less expensive health plan is put into
place immediately.”
On April 29, 2004, Frank faxed a letter to Shepherd stating
that the Respondent would no longer enforce the arbitration,
check off or union security clauses of the agreement until nego-
tiations were completed and a revised contract was signed. He
again offered to negotiate.
Moses Majett Jr., the Union’s shop steward, testified that in
April 2004, he and the employees were told by the Glasers that
they were getting new health insurance and were issued HIP
eligibility cards. He also testified that the employees were told
that there was no more union.
Morino testified that at some point after April 1, 2004, the
Company ceased making all payments to the Welfare Fund. He
also testified that at some point after that date, the Company
ceased making payments to the Pension Fund.
On August 24, 2004, the Union and the Association entered
into a new contract to run for the period from August 1, 2003,
to July 31, 2007. This was in the form of a handwritten memo-
randum setting forth the various terms, including new rates of
pay and new rates for fund contributions. The document was
signed by Morino and various other people on behalf of the
Union and by Jack Teicher, the president of the Association.
By letter dated September 14, 2004, the new agreement was
sent to David Glaser of Independent Steel. The Union has not
received any response, and according to the testimony of Moses
Majett, it is evident that the terms of this agreement have not
been implemented by the Company. I note however, that the
September 14 letter did not explicitly request the Respondent to
sign, adopt, or implement the August 24 agreement.
III. ANALYSIS
The evidence shows that after reacquiring this business, the
Glasers, in 2001, entered into a contract with the Union cover-
ing the employees of Independent Steel at the Farmingdale
facility. That contract was set to expire on July 31, 2003. The
evidence also shows that in June 2003, union representatives
met with the Hollow Metal Door and Buck Association, a mul-
tiemployer association set up to negotiate collective-bargaining
agreements on behalf of its employer-members. At the first
meeting, the president of the Association notified the Union as
to which employers it was negotiating on behalf of and listed
the Respondent as one of them. During at least 9 or 10 of the
bargaining sessions that took place between July 1 and March
2004, either David or Steven Glaser was present at the negotia-
tions. Therefore, there is no question but that the principles of
the Respondent unequivocally authorized the Association to
bargain on their behalf. Retail Associate, Inc., 120 NLRB 388
(1959).
In Charles D. Bonanno Linen Service v. NLRB, 454 U.S.
404, 410–411 (1982) the Supreme Court noted that the Retail
Associates rules “permit any party to withdraw prior to the date
set for negotiation of a new contract or the date on which nego-
tiations actually begin, provided that adequate notice is given.
Once negotiations for a new contract have commenced, how-
ever, withdrawal is permitted only if there is ‘mutual consent’
or ‘unusual circumstances.” The “unusual circumstances” ex-
ception has historically been limited to only the most extreme
situations, such as where the employer is subject to extreme
financial pressures or where the multiemployer unit has dissi-
pated to the point where the unit is no longer a viable bargain-
ing entity. Id. at 410–411.
In Hi-Way Billboards, 206 NLRB 22, (1973), enfd. denied
500 F.2d 181 (5th Cir. 1974), the Board held that an employer
may withdraw from multiemployer bargaining even after nego-
tiations have begun in the following circumstances. For exam-
ple, the Board has held that an employer may withdraw from
group negotiations after they have begun where (1) the em-
ployer is subject to extreme economic difficulties resulting in
an arrangement under the bankruptcy laws. U.S. Lingerie
Corp., 170 NLRB 750 (1968); (2) where the employer is faced
with the imminent prospect of closing, Spun-Jee Corp., 171
NLRB 557 (1968); and (3) where the employer is faced with
the prospect of being forced out of business for lack of quali-
fied employees and the union refuses to assist the employer by
providing employees. Atlas Electrical Service Co., 176 NLRB
827 (1969). However, an assertion of dire economic circum-
stances will not justify withdrawal from the unit after an
agreement is reached. Co.-Ed Garment Co., 231 NLRB 848,
(1977); Arco Elec Co., v. NLRB, 618 F.2d 698, (10th Cir.
1980).
On the other hand, unusual circumstances were not found
when (1) an employer asserted a good-faith doubt of the un-
ion’s majority status among his own employees. Sheridan
Creations, 148 NLRB 1503 (1964), enfd., 357 F.2d 245 (2d
Cir. 1966); (2) where all the employer’s unit employees were
discharged. John J. Corbett Press, Inc., 163 NLRB 154 (1967),
enfd. 401 F.2d 673 (2d Cir. 1968); (3) where the Union exe-
cuted separate individual contracts with individual em-
ployer-members of the Association; We Painters, Inc., 176
NLRB 964 (1969); (4) where the employer had been suspended
from the association for its failure to pay dues. Senco Inc., 177
NLRB 882; (5) where the employer was subjected to a strike;
State Electrical Service 198 NLRB 593 (1972), enfd. 477 F.2d
749 (1973); and (6) where the employer suffered a sharp de-
cline in its business. Serv-All Co., 199 NLRB 1131 (1972),
enfd. denied on other grounds 491 F.2d 1273 (10th Cir. 1974).
In the present case, the Respondent’s attempt to withdraw
from multiemployer bargaining occurred after negotiations had
started. Moreover, the evidence shows that despite its attempt
to negotiate separately (while at the same time trying to resolve
its past delinquencies for fund payments), this was specifically
rejected by the Union which insisted on multiemployer bargain-
ing. As the Employer did not appear at the hearing, it is self-
evident that it presented no evidence to justify a contention that
it was privileged to withdraw from multiemployer bargaining
by virtue of “unusual circumstances.”
In view of the above, I conclude that the Respondent violated
Section 8(a)(1) and (5) of the Act by its attempt to withdraw
INDEPENDENT STEEL PRODUCTS, LLC 909
from multiemployer bargaining and insisting on bargaining on
an individual basis.
Also, because the Respondent was obligated to continue to
bargain through the Association, and as that bargaining had not
resulted in an impasse, the Respondent was not free to unilater-
ally change the existing terms and conditions of employment
that its employees enjoyed by virtue of the expired contract.
Thus, in the absence of the Union’s consent either to change the
existing benefits and/or its consent to bargain on an individual
basis, I also conclude that the Respondent violated Section
8(a)(1) & (5) of the Act by unilaterally changing the health plan
that had previously been given to its employees by virtue of the
expired contract. Control Services, Inc. 303 NLRB 481 (1991).
The complaint in this case alleges only that the Respondent
violated the Act by; (1) its untimely withdrawal from multiem-
ployer bargaining; and (2) by its unilateral change in the health
benefit contained in the expired contract. The complaint does
not allege and therefore the Respondent was not put on notice
that the General Counsel was contending that the Respondent
failed to execute the terms of the new contract that was exe-
cuted on August 24, 2004, that was sent to the Respondent on
September 14, 2004. Nor does the complaint allege that the
Respondent has failed to implement the terms and conditions of
the August 24, 2004 agreement or that it has failed to pay its
employees the wages and/or benefits contained in that agree-
ment. Further, the complaint does not allege that the Respon-
dent has failed to make any contributions to the pension fund.
In light of the above, I cannot conclude that the Respondent
has violated the Act in any manner other than what is alleged in
the complaint because the Respondent was not put on notice
that these allegations were being made. (Had it been advised of
these allegations and the concomitantly greater potential liabil-
ity, the Respondent might have made a greater effort to attend
the hearing, assuming of course, that it is still in business.) I
therefore shall limit my conclusions and the recommended
remedy and Order to the allegations set forth in the complaint.2

2 There would be nothing to prevent the Union from demanding that
the Respondent execute the new association contract and filing a new
charge in the event that the Respondent refused to do so. Of course, the
Union has to be mindful of the 10(b) statute of limitations.
CONCLUSIONS OF LAW
1. By withdrawing from multiemployer bargaining and in-
sisting on bargaining directly with Local 2947, United Brother-
hood of Carpenters and Joiners of America, the Respondent,
Independent Steel Products, LLC, has violated Section 8(a)(1)
and (5) of the Act.
2. By unilaterally changing the employees Health care bene-
fits, the Respondent has violated Section 8(a)(1) and (5) of the
Act.
3. The aforesaid violations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the Welfare Fund, the Respondent should be
required to resume payments to the Fund as required in its pre-
vious collective-bargaining agreement with the Union and
make those contributions it failed to make from April 1, 2004.3
Payments due to the fund under this decision shall be made
with interest to be computed according to the practice set forth
in Merryweather Optical Co., 240 NLRB 12l3, 1216 fn. 7
(l979). In addition, the Respondent shall reimburse unit em-
ployees for any expenses ensuing from its failure, if any, to
make such required payments or contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981).
[Recommended Order omitted from publication.]

3 This is not meant to absolve the Respondent from any monetary
obligations it had to make contributions to the Welfare Fund prior to
April 1, 2004. But in the context of this complaint, those other delin-
quencies can be addressed in different forums.