Ryan Iron Works, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 893 (N.L.R.B. 2005)

RYAN IRON WORKS, INC.
345 NLRB No. 56
893
Ryan Iron Works, Inc. and Shopmen’s Local 501,
International Association of Bridge, Structural
and Ornamental Ironworkers, AFL–CIO and
National Shopmen Pension Fund. Cases 1–CA–
33353, 1–CA–33762, 1–CA–33956, and 1–CA–
34066
August 27, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On October 29, 2003, Administrative Law Judge Mar-
tin J. Linsky issued the attached supplemental decision,
and on March 30, 2004, issued the attached second sup-
plemental decision. The Respondent, the General Coun-
sel, and Charging Party National Shopmen Pension Fund
(Fund) each filed exceptions and a supporting brief. The
Respondent filed an answer to the General Counsel’s and
the Fund’s briefs in support of exceptions, and the Gen-
eral Counsel and the Fund each filed an answer to the
Respondent’s brief in support of exceptions. The Fund
filed a reply to the Respondent’s answer and the Respon-
dent filed a reply to the General Counsel’s and Fund’s
answers.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision,
the second supplemental decision, and the record in light
of the exceptions and briefs1 and has decided to affirm
the judge’s rulings, findings, and conclusions as modi-
fied, and to adopt the modified recommended Order2 as
further modified herein.3
I. INTRODUCTION
The judge found that the Respondent is obligated to
make payments to the Union’s Pension Fund for the
strike replacement employees for the period December 8,
1995 (end of strike), to October 1, 2001, and for the em-
ployees whose entitlement under the Pension Fund had
not vested as of the time they left the Respondent’s em-
ploy prior to October 2001, and to pay interest on these
payments. We adopt these findings for the reasons stated
by the judge. However, as explained below, we reverse
the judge’s finding that the Respondent was not obligated

1 The Respondent’s request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
2 The judge’s original recommended Order was modified by the
judge in his second supplemental decision.
3 We shall modify the judge’s recommended order in accordance
with our finding below that the Respondent is required to pay liqui-
dated damages on the delinquent Pension Fund contributions. In addi-
tion, we shall modify the recommended order to specify the interest rate
as stated in the parties’ stipulation.
to pay liquidated damages on the Pension Fund contribu-
tions that were delinquent.
II. BACKGROUND
This is a compliance proceeding on the underlying de-
cision.4 In that decision, the Board held that the Respon-
dent violated Section 8(a)(5) and (1) by making unilat-
eral changes in unit employees’ wages, benefits, and
working conditions before the parties had reached an
impasse in contract negotiations, and by unilaterally
ceasing pension payments on behalf of unit employees as
of November 10, 1995.5
The Board ordered the Respondent, among other
things, to make whole both the unit employees, with in-
terest, and the Fund for losses resulting from these uni-
lateral changes.
After the Respondent sought review of the Board’s de-
cision, the First Circuit enforced the Board’s decision in
relevant part.6
III. RELEVANT FACTS
Following the court’s decision, the Respondent, on Oc-
tober 1, 2001, began making contributions to the Fund
for all employees employed by the Respondent on that
date, including its strike replacement employees. How-
ever, the Respondent did not make contributions for em-
ployees who had worked for less than 5 years (the vest-
ing period under the Pension Fund), and whose employ-
ment had terminated before that date. Further, the Re-
spondent did not make any contributions for replacement
employees for hours worked before October 2001.
The Board’s amended compliance specification, which
issued on March 21, 2003, alleged, among other things,
that the 1992–1995 agreement established the terms and
conditions of employment for all unit employees, includ-
ing strike crossovers, and that the strike replacements
were entitled to these same terms and conditions com-
mencing December 8, 1995, the day the strike ended.
The compliance specification also alleged that the back-
pay period for pension contributions commenced on No-
vember 6, 1995, for strike crossovers, and on December
8, 1995, for the strikers and the permanent replacements,

4 332 NLRB 506 (2000).
5 The Board also found that this conduct and the unlawful attempt to
bypass the union representative and deal directly with bargaining unit
employees converted the strike from an economic strike into an unfair
labor practice strike.
6 Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1 (1st Cir. 2001). How-
ever, the court disagreed with the Board’s finding that the strike was an
unfair labor practice strike rather than an economic one. The court,
therefore, denied enforcement of that portion of the Board’s order
granting reinstatement and backpay to unfair labor practice strikers. Id.
at 14.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD894
and continued through October 1, 2001, the day that the
Respondent started making contributions to the Fund.
In its answer to the amended compliance specification,
the Respondent admitted that the 1992–1995 agreement
established the terms and conditions for the strike cross-
overs and that the backpay period for pension contribu-
tions commenced on November 6, 1995, for strike cross-
overs. However, the Respondent denied that the agree-
ment applied to the replacement employees. It also de-
nied that the backpay period for pension contributions
commenced “on December 8, 1995 for permanent re-
placements or for any employees who would not have
vested under the Union pension plan (i.e., any terminated
employee whose employment with Respondent lasted for
less than five (5) years).” The amended compliance
specification was further amended at the hearing to al-
lege that the Respondent was obligated to pay liquidated
damages and interest on the delinquent contributions.
The parties have stipulated as follows:
Section 8.14 of the Fund’s Rules and Regulations pro-
vides that if an employer is found delinquent in the
payment of contributions, the employer shall pay the
Plan, in addition to amounts its [sic] is otherwise di-
rected to pay, liquidated damages in the amount of 20
percent of the delinquency but not less than interest on
such delinquency. The Fund, on occasion and at its
discretion, has chosen not to seek liquidated damages.
The Fund further provides that the interest paid on de-
linquent payments is based on the Internal [R]evenue
Code interest rates.7

7 The pertinent Trust Agreement, effective January 1, 1989, provides
at art. IX, sec. 5. Liquidated Damages and Interest:
It is recognized and acknowledged by all parties, including the partici-
pating employers, that the prompt and accurate payment of contribu-
tions is essential to the maintenance of an employee benefit trust fund
and the benefit plans and that it would be extremely difficult, if not
impossible, to fix the actual expense and damage to the Trust Fund
that would result from the failure of a participating employer to pay
the required contributions within the time provided. Therefore, any
participating employer in default for ten (10) working days shall be
delinquent in the payment of contributions, and such employer shall
be liable for liquidated damages of twenty percent (20%) of the
amount of the contributions which are owed or twenty-five dollars
($25.00), whichever is greater. In addition, the delinquent contribu-
tions shall bear interest, from the original due date until they are paid,
at the rate then charged by the Pension Benefit Guaranty Corporation
for late payment of premiums. The Trustees shall have the authority,
however, to waive all or part of the liquidated damages or interest for
good cause shown.
The Trust Agreement is incorporated into the collective-bargaining
agreement between the Respondent and the Union..
The Fund’s Statement of Policy for Collection of Delinquent Contri-
butions (“Delinquency Policy”) describes the liquidated damages in
similar language. Sec. 5(a) of the Delinquency Policy further provides:
. . . Liquidated damages are provided herein because actual damages
are not susceptible of precise prediction. The liquidated damages pro-
The record shows that the Fund has on occasion
waived liquidated damages in circumstances involving
bankrupt employers or as a part of a settlement. These
waivers are consistent with the Plan’s rules, which pro-
vide that the trustees can waive liquidated damages for
good cause shown.8
IV. JUDGE’S DECISION
The judge found that the Respondent is obligated to
make the above-described contributions to the Fund, and
to pay interest on these contributions, as set forth in the
amended compliance specification.9 However, the judge
found no evidence that payment of the 20-percent liqui-
dated damages was necessary to make the Fund whole.
Citing G. T. Knight Co.,10 where the respondent was or-
dered to pay 12-percent liquidated damages, the adminis-
trative law judge by implication suggested that some
unproven lower percentage of liquidated damages may
have been sufficient to make the Fund whole. In agree-
ment with the Respondent, the judge cited well-settled
precedent that remedies for violations of the Act are to be
remedial not punitive,11 and found that the Respondent
was not obligated to pay these liquidated damages be-
cause they were not shown to be remedial.
We affirm the judge in all respects, except that we dis-
agree with the judge’s finding that the liquidated dam-
ages set forth in the compliance specification are not
remedial. For the reasons explained below, we find that
these payments are necessary to make the Fund whole,
and, therefore, the Respondent is obligated to pay them.

vided for in this paragraph are estimated, to the best of the Trustees’
ability, to approximate the cost to the Fund of the additional adminis-
trative expenses caused by a delinquency. Those costs necessarily in-
crease once a matter is referred to counsel. Such costs include, but are
not limited to, expenses related to Fund office employees who must be
assigned to collection activities and expenses for additional accounting
and reporting activities.
8 Although these fund documents reference interest rate calculations
in different ways, they all conform to that prescribed under Sec. 6621
of the Internal Revenue Code.
See the parties’ stipulation above. See also the Trust Agreement, ef-
fective January 1, 1989, art. IX, sec. 5, supra.
9 In discussing the contributions for the employees not vested in the
Pension Plan, the judge stated that there are 17 employers in New Eng-
land that are participatory employers in the Fund, of which 7 are in
Massachusetts. However, according to the parties’ stipulation, there are
10 New England shops, exclusive of the Respondent (4 of which are in
Massachusetts), that have contracts requiring that contributions be
made to the Fund. This inadvertent error does not affect our finding
regarding the nonvested employees.
10 268 NLRB 468 (1983).
11 Republic Steel Corp. v. NLRB, 311 U.S. 7, 10 (1940).
RYAN IRON WORKS, INC. 895
Analysis
In determining whether the payment of liquidated
damages is appropriate, we find instructive Merry-
weather Optical Co.,12 which holds, in pertinent part:
. . . [T]he Board does not provide at the adjudicatory
stage . . . for the addition of interest at a fixed rate on
unlawfully withheld fund payments. We leave to the
compliance [stage] the question of whether Respondent
must pay any additional amounts into the benefit funds
in order to satisfy our “make-whole” remedy. These
additional amounts may be determined, depending
upon the circumstances of each case, by reference to
provisions in the documents governing the funds at is-
sue and, where there are no governing provisions, to
evidence of any loss directly attributable to the unlaw-
ful withholding action . . . .
Applying this precedent, we find that the judge erred
in finding that payment of the 20-percent liquidated
damages on all delinquent contributions is not required
because of an absence of evidence that this entire amount
is needed to make the Fund whole. The above passage in
Merryweather Optical makes clear that the appropriate-
ness of liquidated damages may be determined “by refer-
ence to provisions in the documents governing the funds
at issue. . . .” Thus, because the provisions in the gov-
erning documents of the Fund clearly provide for specific
liquidated damages, Merryweather dictates that the con-
tractual terms be enforced.13

12 240 NLRB 1213, 1216 fn. 7 (1979).
13 See, e.g., Emsing’s Supermarket, 307 NLRB 421, 423, 428
(1992), and Peerless Roofing Co., Ltd., 247 NLRB 500, 504 (1980),
enfd. 641 F.2d 734 (9th Cir. 1981), cited by the General Counsel, where
liquidated damages were found appropriate remedial relief where speci-
fied in the governing documents. See also J.R.R. Realty Co., 301
NLRB 473, 483 (1991), enfd. mem. 955 F.2d 764 (D.C. Cir. 1992),
cert. denied mem. 506 U.S. 829 (1992) (“The Board has regularly pro-
vided for the payment of liquidated damages to certain funds where the
trust agreement provides for liquidated damages.”).
Chairman Battista and Member Schaumber do not necessarily agree
with current Board law. However, the Respondent has not argued for a
change in this precedent and, in the absence of a three-member majority
of the Board willing to re-examine it, they have applied it for the pur-
pose of deciding this case.
Member Liebman agrees with the Board’s well-established law in
this area. A liquidated-damages remedy based on the provisions of
plan documents that were agreed upon in collective bargaining is
clearly within the Board’s remedial authority. The Board is not impos-
ing some penalty of its own devising, but rather is enforcing a lawful
contractual provision. Federal labor policy, in turn, fully endorses
awards of liquidated damages in this context, up to the 20 percent
awarded here, as Sec. 502(g)(2) of the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1132(g)(2) illustrates. See gener-
ally Operating Engineers Local 139 Health Benefit Fund v. Gustafson
Construction Corp., 258 F.3d 645, 654–655 (7th Cir. 2001). Given the
Board’s duty under Sec. 8(a)(5) of the Act to protect the process, and
The judge erred in finding a necessity for additional
evidence that liquidated damages in the amount of 20
percent are needed to make the Fund whole. Under Mer-
ryweather Optical, supra, such evidence is required only
when the documents governing the funds do not specify
the amount of liquidated damages. Id.
Here, as described above, the parties stipulated that
“Section 8.14 of the Fund’s Rules and Regulations pro-
vides that if an employer is found delinquent in the pay-
ment of contributions, the employer shall pay the Plan, in
addition to amounts its [sic] is otherwise directed to pay,
liquidated damages in the amount of 20 percent of the
delinquency but not less than interest on such delin-
quency.” Where “documents show an agreed upon
method for determining the additional costs to the funds
. . . it is appropriate that the remedy . . . take that agree-
ment into consideration.” Peerless Roofing, supra, 247
NLRB at 505.14
Our dissenting colleague finds the 20-percent liqui-
dated damages not appropriate here because the Fund’s
Statement of Policy for Collection of Delinquent Contri-

preserve the results, of collective bargaining, it would be anomalous for
the Board to second guess a collectively-bargained remedy.
14 Relying on G. T. Knight Co., supra, the Respondent argues that in
order to support an award of liquidated damages there must be record
evidence establishing that the damages bear a reasonable relationship to
the actual losses suffered by the fund. The General Counsel and the
Fund argue that the Board does not require, in addition to the documen-
tary evidence set forth above, testimonial evidence establishing the cost
of collecting the delinquent funds, and that G. T. Knight does not hold
that the language of the trust document itself would be insufficient to
justify an award of liquidated damages. In that case, an administrative
law judge found that liquidated damages were appropriate based on the
language of the trust agreement and the oral testimony by a manage-
ment trustee that the amount for the liquidated damages “covers ex-
penses to the trust relating to administration or internal overhead which
is created by the need to collect delinquencies.” We agree with the
General Counsel and the Fund that G. T. Knight does not stand for the
proposition that the language in a trust agreement would be insufficient,
standing alone, to support an award of liquidated damages. First, it
does not appear that any exceptions were filed to the portion of the
judge’s decision in that case pertaining to liquidated damages. Thus,
that case is of no precedential value with respect to the liquidated dam-
ages issue. Second, even if the case can properly be relied on as prece-
dent, the mere fact that testimonial evidence was introduced in that case
in addition to the documentary evidence does not establish a require-
ment that such testimonial evidence must be produced. To find that
G. T. Knight establishes such a requirement would be inconsistent with
other Board precedent awarding liquidated damages based solely on the
language of the fund documents. See Emsing’s Supermarket, supra,
and Peerless Roofing Co., supra, where the trust agreements alone were
relied upon in awarding the liquidated damages. See also AC Electric,
333 NLRB 987, 1003 (2001) (The Board adopted the judge’s finding
regarding liquidated damages that “just as the fund contributions are
deemed part of a make whole remedy, so too, the provisions which are
designed to make whole the funds themselves for delinquent or non-
payment of contributions on behalf of discriminatees have the same
legitimate purpose.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD896
butions states that the 20-percent figure is implicated
when a “lawsuit” is filed by “Fund counsel.”15 The dis-
sent contends that because this is an administrative pro-
ceeding, there has been no “lawsuit” that has triggered
the imposition of 20-percent liquidated damages. We
disagree. The Fund is a Charging Party in this case,
which has resulted in a Board Order enforced in pertinent
part by the First Circuit. Indeed, the parties’ stipulation,
which sets forth the 20-percent amount that is called for
in section 8.14 of the Fund’s Rules and Regulations, re-
flects the parties’ understanding that the Fund documents
implicate the 20-percent liquidated damages provision in
these circumstances. Contrary to our colleague, we can
find nothing in the record to suggest that the applicable
language contemplates that unfair labor practice proceed-
ings do not implicate the imposition of the 20-percent
liquidated damages.
We further note that the language of the Trust Agree-
ment sets forth the specific purpose of the liquidated
damages. As quoted above, article IX, section 5 explains
that “[i]t is recognized and acknowledged by all parties,
including the participating employers, that the prompt
and accurate payment of contributions is essential to the
maintenance of an employee benefit trust fund and the
benefit plans and that it would be extremely difficult, if
not impossible, to fix the actual expense and damage to
the Trust Fund that would result from the failure of a
participating employer to pay the required contributions
within the time provided.”16 This language specifying
that the liquidated damages are “to fix the actual expense

15 Sec. 5 of the Fund’s Statement of Policy for Collection of Delin-
quent Contributions provides, in pertinent part:
a. The amount of the liquidated damages for the late payment
of contributions shall be 5% of the amount of the delinquent con-
tributions. This rate shall increase to 12% if the employer’s de-
linquent account is referred to counsel for collection. . . .
. . . .
c. Liquidated damages shall be calculated from the due date,
and shall become due and owing if a lawsuit is filed pursuant to
Section 3. If a lawsuit is filed, the amount of the liquidated dam-
ages owed shall be the greater of:
1. Interest on the delinquent contributions . . .; or
2. 20% of the delinquent contributions.
Sec. 3(b) provides that [the Fund’s] counsel “shall initiate legal ac-
tion for any delinquency or other amount owed (no matter how deter-
mined) in excess of $500.00, unless legal counsel recommends a differ-
ent course of action . . . .”
16 See also the Fund’s Delinquency Policy, sec. 5(a), quoted above,
which provides that “[l]iquidated damages are provided herein because
actual damages are not susceptible of precise prediction. The liqui-
dated damages provided for in this paragraph are estimated, to the best
of the Trustees’ ability, to approximate the cost to the Fund of the addi-
tional administrative expenses caused by a delinquency. . . . [and that]
[s]uch costs include, but are not limited to, expenses related to Fund
office employees who must be assigned to collection activities and
expenses for additional accounting and reporting activities.”
and damage to the Trust Fund” demonstrates the reme-
dial, not punitive, purpose of the 20-percent liquidated
damages.
We also find, contrary to the Respondent and our dis-
senting colleague, that NLRB v. G & T Terminal Packag-
ing Co., 246 F.3d 103, 128 (2d Cir. 2001), is distinguish-
able. In that case, and unlike the circumstances pre-
sented here, the applicable trust documents—setting
forth an 18-percent liquidated damages rate—were not
incorporated into the parties’ collective-bargaining
agreement. Recognizing this nonincorporation, the Sec-
ond Circuit remanded the case to “develop the record
further in order to arrive at an interest rate that bears a
reasonable relationship to those losses directly attribut-
able to the Company’s unlawful withholding.”17 Thus,
whatever merit there may be to the Second Circuit’s
analysis, it clearly has no bearing here, where the Fund
documents are incorporated into the collective-
bargaining agreement. Indeed, by requiring adherence to
the liquidated damages rate in this case, we are effectuat-
ing the national policy of requiring adherence to collec-
tive-bargaining agreements.
Additionally, requiring adherence to the Fund’s liqui-
dated damages provision is consistent with the well-
settled doctrine that in compliance proceedings the party
offering an affirmative defense against the amount speci-
fied in a compliance specification has the burden of prov-
ing the mitigation of that amount.18 Here, the Respon-
dent contends that 20 percent of the delinquent contribu-
tions as liquidated damages is excessive, but has pre-
sented no evidence that a lesser amount would be suffi-
cient to make the Fund whole. Thus, there simply is no
evidentiary support for the judge’s implicit suggestion
that some lesser amount, such as the 12-percent figure in
G. T. Knight Co., supra, might be adequate.
For the reasons stated above, we find that the judge in-
correctly found that the Respondent was not obligated to
pay 20-percent liquidated damages on delinquent contri-
butions to the Fund.19 Instead, we find that the Respon-

17 Id.
18 See, e.g., United States Can Co., 328 NLRB 334, 338 (1999),
enfd. 254 F.3d 626 (7th Cir. 2001); A.P.R.A. Fuel Oil Buyers Group,
Inc., 324 NLRB 630, 632 fn. 3 (1997), enfd. mem. 159 F.3d 1345 (2d
Cir. 1998).
19 We clarify that, as also specified in that Trust Agreement, cited
above, this is “[i]n addition” to the interest due on the delinquent con-
tributions. Thus, we reject the Respondent’s contention that the Re-
spondent should not be ordered to pay both the liquidated damages and
interest on the delinquent contributions.
We further note that, contrary to the Respondent’s contention in its
reply brief, there was nothing improper in the General Counsel’s
amendment of the amended compliance specification on the last day of
the hearing to include liquidated damages and interest on the delinquent
contributions. In any event, as the Fund has pointed out, the Respon-
RYAN IRON WORKS, INC. 897
dent is obligated to pay liquidated damages in accor-
dance with section 8.14 of the Fund’s Rules and Regula-
tions, as stipulated by the parties, “in the amount of 20
percent of the delinquency but not less than interest on
such delinquency,” with interest based on the Internal
Revenue Code interest rates. We, therefore, reverse the
judge and order that the Respondent pay the liquidated
damages as set forth in the amended compliance specifi-
cation.
ORDER
The National Labor Relations Board adopts the modi-
fied recommended Order of the administrative law judge
as further modified below and orders that the Respon-
dent, Ryan Iron Works, Inc., Raynham, Massachusetts,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as further modified.
1. Substitute the following for paragraph 3.
“3. Pay liquidated damages in the amount of 20 per-
cent of the delinquent contributions but not less than the
interest on such delinquency, and, in addition, pay inter-
est on the delinquent contributions. All interest shall be
based on the Internal Revenue Code interest rates.”
MEMBER SCHAUMBER, dissenting in part.
I agree with the majority in all respects except that I
would not order the Respondent to pay liquidated dam-
ages in the amount of 20 percent of its delinquent contri-
butions. In my view, such an award is not an appropriate
make-whole remedy in the circumstances of this case.
Any order issued by this Agency is subject to the over-
riding rule that remedies for violations of the Act are to
be remedial, not punitive. Republic Steel Corp. v. NLRB,
311 U.S. 7, 10 (1940). On this record, the order entered
by the majority contravenes this rule. It requires the Re-
spondent to pay the National Shopmen Pension Fund
delinquent contributions of $270,145.06, plus interest,
plus liquidated damages equal to 20 percent of the un-
paid contributions. There is no evidence of any expense
incurred by the Fund as a consequence of the Respon-
dent’s failure to pay the contributions when they were
owed. In these circumstances, the Fund has failed to
demonstrate that payment of any liquidated damages is
necessary to make it whole for losses incurred as a result
of the Respondent’s unfair labor practices.
Under current Board law, this showing arguably is not
required in order to establish an employee benefit fund’s

dent did not except to the timeliness of this amendment. Finally, we
agree with the judge that the fact that the Fund has occasionally waived
liquidated damages as part of a settlement or in circumstances where an
employer is bankrupt is not relevant here.
Member Schaumber affirms the judge’s ruling allowing the amend-
ment to the compliance specification in the absence of any evidence or
contention that the Respondent was prejudiced thereby.
entitlement to liquidated damages. Rather, it appears to
be the Board’s practice to award such damages, even
absent evidence demonstrating their relationship to losses
actually suffered, as long as the liquidated damages are
called for in the fund’s governing documents.1
This practice was criticized by the U.S. Court of Ap-
peals for the Second Circuit in its decision in NLRB v. G
& T Terminal Packaging Co., 246 F.3d 103, 128 (2d Cir.
2001), remanded as mod. 19 Fed. Appx. 16 (2d Cir.
2001). There, the court refused to enforce a Board Order
requiring payment of 18-percent annual interest on de-
linquent contributions owed to a benefit fund as called
for in the fund’s governing documents. Instead, the court
remanded the issue to the Board “to develop the record
further in order to arrive at an interest rate that bears a
reasonable relationship to those losses directly attribut-
able to the Company’s unlawful withholding.”
The court explained the remand in the following terms:
Although the Board has broad discretion in fash-
ioning remedial orders, its orders may not cross the
line that divides the remedial from the punitive. The
record before us is insufficiently developed for us to
determine whether the 18 percent interest rate bears
some reasonable relationship to the actual losses suf-
fered by the funds due to the Company’s underpay-
ments, or whether it amounts to a punitive measure
against the Company. Without any information in
the record regarding the performance of the funds
during the period in question, an award of 18 percent
interest may simply result in a windfall to the Union.
While it is true that Merryweather [Optical Co.,
240 NLRB 1213, 1218 fn. 7 (1979)] directs the
Board to look at the trust documents in the first in-
stance, in our view it is also significant that Merry-
weather describes the relevant evidence as “evidence
of any loss directly attributable to the unlawful
withholding.”
246 F.3d at 128 (internal citations omitted; emphasis in
original).2

1 Emsing’s Supermarket, 307 NLRB 421, 423, 428 (1992) (liqui-
dated damages of 10 percent of unpaid contributions awarded based on
provisions of plan documents), enfd. 872 F.2d 1279 (7th Cir. 1989);
Peerless Roofing Co., Ltd., 247 NLRB 500, 504 (1980), enfd. 641 F.2d
734 (9th Cir. 1981) (same). See generally Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979) (payments to funds based on terms
of governing documents or on evidence of actual loss if governing
documents silent).
2 The majority distinguishes NLRB v. G & T Terminal Packaging
Co., supra, on the grounds that in that case the trust agreement provid-
ing for liquidated damages was not incorporated into the parties’ collec-
tive-bargaining agreement. In light of the court’s analysis set forth
above, I disagree with this characterization of the court’s holding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD898
In my view, the criticism of the Board’s current prac-
tice leveled by the Second Circuit deserves careful con-
sideration. When a fund sues an employer for delinquent
contributions, courts routinely assess the validity of liq-
uidated damages provisions to determine whether they
amount to a penalty.3 I see no valid reason for the Board
to apply a less rigorous standard to claims for liquidated
damages in our cases. To the contrary, a principal justi-
fication for the provision of liquidated damages is to
compensate a fund for the cost of collecting the delin-
quent contributions.4 Whatever merit that justification
may have in cases where the Fund initiates Employment
Retirement Income Security Act (ERISA) or Section 301
litigation, in Board proceedings this Agency acts as the
Fund’s collection agent.5
However, as noted in the majority opinion, in the ab-
sence of a three-member majority of the Board willing to
re-examine current Board law, I join my colleagues in

3 Parkhurst v. Armstrong Steel Erectors, 901 F.2d 796, 798 (9th Cir.
1990) (20-percent liquidated damages rejected as a penalty for late
contributions where it was not shown to be a good-faith attempt to set
an amount reflective of anticipated damages); Idaho Plumbers & Pipe-
fitters Health & Welfare Fund v. United Mechanical Contractors, 875
F.2d 212, 217–218 (9th Cir. 1989) (same). See also Bricklayers Pen-
sion Trust Fund v. Rosati, Inc., 23 Fed. Appx. 360, 362 (6th Cir. 2001)
(approving liquidated damages of $5 to $10 per employee per week for
unpaid contributions, plus 12-percent interest, where fund showed its
return on investments was 12–20 percent and its overall collection
expenses equaled its total assessed liquidated damages).
4 The Fund’s Statement of Policy for Collection of Delinquent Con-
tributions sec. 5 is illustrative:
. . . Liquidated damages are provided herein because actual damages
are not susceptible of precise prediction. The liquidated damages pro-
vided for in this paragraph are estimated, to the best of the Trustees’
ability, to approximate the cost to the Fund of the additional adminis-
trative expenses caused by a delinquency. Those costs necessarily in-
crease once a matter is referred to counsel. Such costs include, but are
not limited to, expenses related to Fund office employees who must be
assigned to collection activities and expenses for additional accounting
and reporting activities.
5 ERISA does not authorize the Board to award 20-percent liqui-
dated damages. Sec. 502(g)(2) of ERISA authorizes such liquidated
damages only in “an action under this subchapter by a fiduciary for or
on behalf of a plan to enforce section 1145 of this title in which a
judgment in favor of the plan is awarded.” This provision has no ap-
plication to an unfair labor practice proceeding instituted by the Gen-
eral Counsel. While liquidated damages may be awarded by a Federal
court in a delinquent contribution case not covered by Sec. 502(g)(2),
the Federal courts are split on the question of whether they are limited
by the common law rule making contract penalty clauses unenforce-
able. Compare, Operating Engineers Local 139 Health Benefit Fund v.
Gustafson Construction, 258 F.3d 645, 655 (7th Cir. 2001) (rejecting
applicability of common law rule) with Idaho Plumbers & Pipefitters
Health & Welfare Fund v. United Mechanical Contractors, 875 F.2d
212, 216–217 (9th Cir. 1989) (applying common law rule) and Michi-
gan Carpenters Council Health & Welfare Fund, 933 F.2d 376, 390
(6th Cir. 1991) (same). For the reasons stated above, there are persua-
sive reasons favoring application of that rule in cases before this
Agency.
applying this precedent on an institutional basis for the
purpose of deciding this case. Under that precedent, liq-
uidated damages may be awarded only if they are: (1)
justified by evidence of losses “directly attributable to
the unlawful withholding action”; or (2) called for in the
Fund’s governing documents. Merryweather Optical Co.,
supra, 240 NLRB at 1216 fn. 7. As noted above, there is
no record evidence justifying an award of liquidated
damages in this case. In my view, the provisions of the
various Fund documents also do not establish the Fund’s
entitlement to 20-percent liquidated damages.
The Fund’s Trust Agreement provides for 20-percent
liquidated damages, plus interest, and authorizes the
Fund trustees to “waive all or part of the liquidated dam-
ages for good cause shown.” The Fund’s Statement of
Policy for Collection of Delinquent Contributions, which
effectuates the Trust Agreement, on the other hand, only
provide for liquidated damages of 5 percent, increased to
12 percent if the employer’s account is referred for col-
lection. Twenty-percent liquidated damages are called
for only when a lawsuit is filed by Fund counsel.6 Like-
wise, the Fund’s Rules and Regulations only address
liquidated damages in the context of a court judgment in
favor of the Fund against an employer.7 Consistent with

6 Fund’s Statement of Policy for Collection of Delinquent Contribu-
tions sec. 5 provides as follows:
a. The amount of the liquidated damages for the late payment
of contributions shall be 5% of the amount of the delinquent con-
tributions. This rate shall increase to 12% if the employer’s de-
linquent account is referred to counsel for collection. . . .
. . . .
c. Liquidated damages shall be calculated from the due date,
and shall become due and owing if a lawsuit is filed pursuant to
Section 3. If a lawsuit is filed, the amount of the liquidated dam-
ages owed shall be the greater of:
1. Interest on the delinquent contributions . . .; or
2. 20% of the delinquent contributions
Sec. 5 additionally provides for assessment of attorneys’ fees and costs
against a delinquent employer for the cost of collection efforts.
Sec. 3 (a) provides:
When a delinquency matter is turned over to the Fund’s coun-
sel for collection, legal counsel shall send a letter to the employer
demanding the required remittance report and payment of the de-
linquent contributions and the liquidated damages.” Section 3(b)
provides that counsel “shall initiate legal action for any delin-
quency or other amount owed (no matter how determined) in ex-
cess of $500.00, unless legal counsel recommends a different
course of action. . . .” Section 3(c) authorizes counsel to enter
into settlement negotiations and to waive liquidated damages
and/or fees without further approval by the Trustees “in instances
where the delinquent employer promises prompt payment of the
full amounts owed.
7 Fund’s Rules and Regulations sec. 8.14(a):
If a court awards a judgment in favor of the Plan against an employer
that is found delinquent in the payment of Contributions or With-
drawal Liability, the employer shall pay the Plan, in addition to the
amounts the court is otherwise directed to award pursuant to Section
RYAN IRON WORKS, INC. 899
the foregoing, the Fund’s administrator testified at the
hearing that the Fund charged liquidated damages of “up
to 20%.”
The parties’ stipulation regarding liquidated damages
is not to the contrary. The stipulation accurately states
that section 8.14 of the Fund’s Rules and Regulations
provides for 20-percent liquidated damages.8 The stipu-
lation does not, however, address the other plan docu-
ments cited above, much less contradict them. Even if it
did, I would not allow the stipulation to outweigh the
plain terms of the Fund’s governing documents.
As shown, those documents do not clearly call for 20-
percent liquidated damages unless a lawsuit was filed
against the Respondent by Fund counsel. There is no
evidence that this requirement has been satisfied.9 The
requisite foundation for awarding liquidated damages in
the amount of 20 percent, therefore, has not been prop-
erly laid. In these circumstances, I would limit any
award of liquidated damages to 5 percent, the minimum
amount stated in the plan documents.
Thomas J. Morrison, Esq., for the General Counsel.
Robert P. Corcoran, Esq. (Gleason & Corcoran), of Boston,
Massachusetts, for the Respondent.
Marc Rifkind, Esq. (Slevin & Hart, P.C.), of Washington, D.C.,
for the National Shopmen Pension Fund.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. The proce-
dural history of this case will be set forth more fully below.
Suffice it to write at this point that after a hearing before and
decision by an administrative law judge, a decision from the
National Labor Relations Board (the Board), and a decision
from the U.S. Court of Appeals for the First Circuit (the Court),
this case came before me on April 23, 2003, for a hearing on a
compliance specification, i.e., making individual employees
and their pension fund whole by the payment of backpay and
pension fund contributions.

502(g)(2) of ERISA, liquidated damages in the amount of 20 percent
of the delinquency but not less than interest on such delinquency.
8 The parties stipulated as follows:
Section 8.14 of the Fund’s Rules and Regulations provides that if an
employer is found delinquent in the payment of contributions, the em-
ployer shall pay the Plan, in addition to amounts its [sic] is otherwise
directed to pay, liquidated damages in the amount of 20 percent of the
delinquency but not less than interest on such delinquency. The Fund,
on occasion and at its discretion, has chosen not to seek liquidated
damages. The Fund further provides that the interest paid on delin-
quent payments is based on the Internal [R]evenue Code interest rates.
9 The Fund was a Charging Party in the underlying unfair labor prac-
tice case that gave rise to this proceeding. Ryan Iron Works, 332
NLRB 506 (2000), enfd. in part. 257 F.3d 1 (1st Cir. 2001). Under the
plain terms of the Fund’s governing documents, participation in an
administrative proceeding before the Board is insufficient to trigger the
imposition of 20-percent liquidated damages.
Before going on the record the parties tried to settle the case
and successfully reached a partial settlement on April 24, 2003,
which settled a large part of this case. The terms of that partial
settlement were put on the record on April 24, 2003. The par-
tial settlement, which I approved, called for the payment of
$437,000 plus interest, in the amount of $126,000 to be paid to
individual discriminatees and to the National Shopmen Pension
Fund (the Fund). In addition, the partial settlement called for
an increase in the starting pay of helpers to $11.04 per hour. A
payment schedule was also agreed to by the parties.
Three issues remain to be decided (1) whether Ryan Iron
Works, Inc. (Respondent), should be ordered to make poststrike
pension contributions on behalf of permanent replacements; (2)
whether Respondent should be ordered to make pension fund
contributions on behalf of former employees who had not
vested in the Fund prior to their leaving Respondent’s employ;
and (3) if contributions are to be paid to the Fund is Respondent
required to pay liquidated damages and interest on delinquent
fund contributions as called for in the pension fund trust docu-
ments.
A hearing was held before me on April 24 and July 15, 2003.
I will be deciding this case on the basis of the entire record in
this case to include consideration of the demeanor of the wit-
nesses and post-hearing briefs submitted by counsel for the
General Counsel, counsel for Respondent, and counsel for the
National Shopmen Pension Fund.
A. Procedural History of the Case
This proceeding arises from an unfair labor practice case
which arose in the context of unsuccessful negotiations be-
tween Respondent and Shopmen’s Local 501, International
Association of Bridge, Structural and Ornamental Ironworkers,
AFL–CIO (the Union). Respondent and the Union had negoti-
ated a series of collective-bargaining agreements over the years,
the most recent of which terminated on September 10, 1995.
Prior to the termination of this 1992 agreement, the Union filed
a charge alleging that Respondent had engaged in bad-faith
bargaining. The following day, union officials and employees
voted against Respondent’s bargaining proposal and voted in
favor of a strike. The strike commenced on September 11,
1995, the day after the 1992 agreement terminated. The parties
continued to bargain without success and in October 1995,
Respondent started to hire replacement workers. Respondent
also unilaterally ceased making contributions to the Pension
Fund on November 10, 1995. On December 6, 1995, Respon-
dent received an employee petition stating that the employees
did not wish to be represented by the Union. On the basis of
that petition, Respondent withdrew recognition from the Union
on December 7, 1995. The following day, December 8, 1995,
the Union made an unconditional offer to return to work on
behalf of all striking employees. Although Respondent initially
rejected the offer on the ground that the striking employees had
been permanently replaced, Respondent subsequently reinstated
all but 12 of the original 61 strikers. See Ryan Iron Works,
Inc., 332 NLRB 506 (2000).
On September 29, 2000, the Board issued its Decision and
Order and affirmed, with modifications, the October 27, 1996
decision of Administrative Law Judge James L. Rose. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD900
Board held that Respondent had violated Section 8(a)(5) of the
National Labor Relations Act (the Act), by making unilateral
changes in unit employees’ wages, benefits, and working con-
ditions before the parties had reached an impasse in their con-
tract negotiations; and unilaterally ceasing pension payments on
behalf of unit employees as of November 10, 1995. In addi-
tion, the Board held that Respondent’s conduct in unlawfully
attempting to bypass the union representative and deal directly
with bargaining unit employees had converted the strike from
an economic strike to an unfair labor practice strike. As a rem-
edy, and in order to effectuate the policies of the Act, the Board
ordered Respondent, among other things, to:
(a) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and conditions
of employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All production and maintenance employees employed
by the Respondent at its Raynham, Massachusetts lo-
cations, but excluding office and clerical em-ployees,
draftsmen, engineering employees, watch-men,
guards and supervisors as defined in the Act.
(b) On request of the Union, rescind the unilateral
changes made on and after November 6, 1995, reinstating
the prior terms and conditions of employment for bargain-
ing unit employees, and make whole both the unit em-
ployees, with interest, and the National Shopmen Pension
Fund for losses resulting from these unilateral changes.
[Id.]
Respondent sought review of the Board’s Decision and Or-
der in the United States Court of Appeals for the First Circuit.
On September 28, 2001, the court entered its Amended Judg-
ment affirming the above-referenced relief ordered by the
Board, including the requirement that Respondent make the
Fund and the bargaining unit employees whole for losses result-
ing from its unilateral termination of contributions to the Pen-
sion Fund. Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1 (1st Cir.
2001). Following the court’s decision, Respondent and the
Union commenced collective-bargaining negotiations. Al-
though no successor agreement has as yet been reached, com-
mencing on October 1, 2001, Respondent started making con-
tributions to the Pension Fund for all individuals employed by
Respondent on that date, including its replacement employees.
Respondent, however, did not make contributions for employ-
ees who worked for less than 5 years and whose employment
terminated before October 1, 2001. Neither did it contribute for
any replacement employees with respect to hours worked prior
to October 2001.
The Board issued its amended compliance specification on
March 21, 2003. In its amended compliance specification, the
Board alleged, among other things, that the terms and condi-
tions of employment are established by the 1992–1995 agree-
ment and that strike replacements are entitled to the same terms
and conditions of employment beginning December 8, 1995,
the day the strike ended, and that pension contributions are due
for the entire unit, including replacement workers, from De-
cember 8, 1995, through October 1, 2001, the day Respondent
started making contributions to the Pension Fund.
In its answer to the amended compliance specification, Re-
spondent asserted as a second affirmative defense the follow-
ing:
No pension contributions are due for any replacement. Nor
are pension contributions due on behalf of any employee
whose employment has already terminated, and whose em-
ployment lasted for less than five years, since any such em-
ployee would not have vested in the Pension Fund. Requiring
payment on behalf of such employees would be punitive not
remedial, and would represent a windfall to the fund.
B. The Pension Fund
The Fund, a multiemployer pension plan within the meaning
of ERISA Section 3(37), 29 U.S.C. § 1002(37), is a national
fund, which currently has 156 participating employers. Re-
spondent is required to contribute to the Fund pursuant to the
terms of its 1992–1995 collective-bargaining agreement with
the Union on behalf of its production and maintenance employ-
ees employed at Respondent’s Raynham, Massachusetts loca-
tions, but excluding office and clerical employees, watchmen,
guards, and supervisors. Approximately 48 employees are
covered by the agreement.
The agreement requires that Respondent contribute to the
Pension Fund on behalf of all employees performing bargaining
unit work at the rate $.91 per hour. Because the Fund is a mul-
tiemployer defined benefit pension plan, Respondent’s contri-
butions are pooled with other employer contributions and in-
vestment earnings to fund the pension benefits of all employees
who accrue pension or death benefits under the terms of the
Fund’s plan of benefits. Thus, any contributions that are not
paid with respect to hours of employment covered by the ex-
pired agreement reduce the pool that is available to pay benefits
to all Fund participants, including Respondent’s bargaining unit
employees and former employees.
This occurs because, unlike a defined contribution plan, such
as a 401(k) plan, Fund participants’ pension accruals do not
equal the amount of contributions made with respect to the
hours that they worked. Rather, pension accruals are deter-
mined under the Fund’s written plan of benefits based on the
contribution rate for the participant’s employer and the partici-
pant’s hours of service and are generally paid in the form of a
monthly benefit for the participant’s life.
The Fund retains an actuary to determine the amount of con-
tributions necessary to fund benefits that it will have to pay.
That calculation assumes that a certain number of employees
for whom contributions are made to the Fund will never be-
come eligible for pension benefits because they have not
worked sufficient hours to become a Fund participant or, if they
have achieved participant status, have not completed the years
of service with participating employers necessary to vest under
terms of the plan. If the plan did not contain those threshold
requirements, then the cost of funding the pension benefit
would be significantly higher since the Fund would have to
provide pension benefits to a greater number of employees.
Thus, unless the amount of Fund assets increased because of
increased employer contributions or investment earnings, the
RYAN IRON WORKS, INC. 901
amount of pension benefits to which a vested employee would
be entitled at retirement would be significantly lower.
To become a participant in the Fund, an employee must work
at least 1000 hours during a 12-consecutive month period.
Once an employee becomes a participant in the Fund, the par-
ticipant will become entitled to a pension benefit only if the
participant “vests,” i.e., works for a contributing employer for 5
years and works for at least 1000 hours in each of those years.
The 5 years required to vest need not be completed consecu-
tively. The participant may, for example, work for 2 years for a
contributing employer, work for a noncontributing employer
for 2 years, and then return to another contributing employer
for another 3 years. At that point, the participant will have
accumulated 5 years of vesting service provided he or she has
worked for at least 1000 hours in each of those 5 years for a
contributing employer. In other words, a participant will not
lose his vesting credits even though he stops working for a
contributing employer. However, if a participant fails to work
for a contributing employer for 10-consecutive years, thus,
incurring a permanent break in service, the participant will
forfeit all accumulated vesting and pension credits. But if a
participant after 9 years of not working for a contributing em-
ployer works just 501 hours in a year for a contributing em-
ployer and leaves that position the 10-year period starts to run
all over again.
A participant also receives vesting credit for all hours
worked for a contributing employer in a position for which no
contributions are due if he or she has contiguous service with
the employer in a position for which contributions are due.
Thus, Respondent’s replacement workers who were employed
on the date that Respondent commenced contributions to the
Fund on their behalf (October 1, 2001) are entitled to vesting
credit for all uninterrupted service with Respondent prior to that
date. If no contributions are received for the contiguous service
period, then the Fund will not receive the anticipated funding
for those benefits. In contrast to the nonreplacement bargaining
unit employees for whom contributions were made during the
entire 5-year vesting period, the replacement employees would
be 100-percent vested on the first day for which contributions
were made with respect to them since they were already em-
ployed by Respondent for more than 5 years as of October 1,
2001.
Notwithstanding the plan’s 5-year vesting requirement dis-
cussed above, the plan provides for a death benefit to both
vested and nonvested participants in the event a participant dies
prior to retirement. For nonvested participants, the amount of
the death benefit is equal to the amount of the contributions
paid to the Fund on the participant’s behalf. Thus, all Respon-
dent’s current and former employees who have satisfied the
plan’s participation requirements, i.e., 1 or more years of vest-
ing service, are eligible for a death benefit.
C. Pension Fund Contributions on Behalf of
Permanent Replacements
The strike began on September 11, 1995, and ended on De-
cember 8, 1995. The strike ended when the Union on behalf of
the striking employees made an unconditional offer to return to
work.
Following the commencement of the strike, Respondent be-
gan hiring replacement employees. Respondent considered
their replacement employees to be permanent replacements and
considered the strikers to be, contrary to the General Counsel,
the Union, the judge, and the Board, economic strikers. The
Eight Circuit agreed with Respondent that the strikers were
economic strikers.
Respondent was free to set the terms and conditions of em-
ployment of the replacement workers without consulting with
the Union during the strike because of the Union’s inherent
conflict of interest in representing both striking employees on
the one hand and their replacements on the other hand. See
Detroit Newspapers, 327 NLRB 871 (1999); Service Electric
Co., 281 NLRB 633 (1986).
However, once the strike ended with the Union making an
unconditional offer to return to work on behalf of the striking
employees the inherent conflict ceased to exist. The terms and
conditions of employment of the replacement employees were
to be the same as that for returning striking employees. Ac-
cordingly, Respondent was obligated to make pension fund
contributions on behalf of the replacement employees begin-
ning on December 8, 1995, the day the strike ended. All parties
cite the Board case of Service Electric Co., supra. Counsel for
the General Counsel and counsel for the Fund correctly point
but that in Service Electric, supra, the union did not make an
unconditional offer to return work when the strike ended in that
case but the union did make such an unconditional offer to
return to work in the instant case. Therefore, I find that Re-
spondent’s reliance in Service Electric is misplaced. And, in
this case the same terms and conditions of employment to in-
clude pension fund contributions were to be the same for re-
placement workers and returning strikers.
However, Respondent did not start making contributions on
behalf of replacement employees until October 1, 2001, after
the U.S. Court of Appeals for the First Circuit issued its
Amended Judgment ordering Respondent to make the Fund
whole on September 28, 2001.
The question is whether or not Respondent has to make pen-
sion fund contributions on behalf of replacement employees
who worked for Respondent between December 8, 1995, and
October 1, 2001, and the answer is yes.
After the strike ended the replacement employees were to
have pension fund contributions made on their behalf. The
same as pension contributions were to be made on behalf of the
returning striking employees. Such payments are the only way
to comply with the court order to make the Fund whole.
D. Pension Fund Contributions on Behalf of Employees
not Vested in the Plan
Employees on behalf of whom pension contributions are
made cannot vest and later receive a pension until they have 5-
qualifying years of contributions being made on their behalf to
the Fund.
A significant number of employees in this case left Respon-
dent’s employ and do not have from Respondent alone or from
Respondent in combination with any other employer 5 years of
vested service.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD902
Respondent maintains that it should not be required to make
Fund contributions on behalf of those nonvested employees
because it is speculative if they will ever vest and earn a pen-
sion and a payment to the Fund on their behalf would constitute
a windfall for the Fund. And, lastly, ordering contributions on
their behalf would be punitive in nature and the remedy for
violations of the Act are remedial only. See Republic Steel
Corp. v. NLRB, 311 U.S. 7 (1940).
Respondent relies on a Second Circuit decision and a Board
decision to support its position. See NLRB v. Coca-Cola Bot-
tling Co. of Buffalo, Inc., 191 F.3d 316 (2d Cir. 1999), citing an
earlier case, i.e., Manhattan Eye Ear & Throat Hospital v.
NLRB, 942 F.2d 151 (2d Cir. 1991); and Arandess Management
Co. 337 NLRB 245 (2001).
There are sharp distinctions between the cases relied on by
Respondent and this case. The pension fund was not a party to
either the Second Circuit case or the Board case whereas, the
Fund here is a separate and distinct party to this litigation and
the relief ordered by the First Circuit specifically calls for a
remedy running to the pension fund itself and not just making
the individual discriminates whole as was the case in the Coca-
Cola, supra, and Arandess, supra, cases. The First Circuit,
unlike the cases relied on by Respondent, specifically ordered
that the Fund itself be made whole. The plain meaning of this
court order is that if Respondent should have made contribu-
tions to the Fund in the past and did not it should do so now.
Additionally, while the interests of the discriminatees in
Coca Cola & Arandess may have been speculative they are not
so speculative in the instant case. Coca-Cola had a 10-year
vesting requirement and all credit would be lost after a 3-year
break in service. Arandess Management Co. had a 5-year vest-
ing requirement and vesting credits would be lost after 5 years.
In this case, the vesting period is 5 years and vesting credit is
lost if the participant fails to work for 10-consecutive years for
a contributing employer. There are currently 156 participating
employers in the Fund nationwide to include 17 employers in
New England to include 7 in Massachusetts. The Union now
has a referral hall in operation, which could expedite employees
no longer working for Respondent to get a position with an-
other contributing employer. And, as noted above, if an em-
ployer works just 501 hours in a year for a contributing em-
ployer that starts the 10-year clock running again.
In addition in the instant case Respondent’s former non-
vested employees do receive a nonspeculative benefit, i.e., a
death benefit from the Fund equal to all the contributions made
on their behalf provided the employee had a minimum of 1 year
of vesting service.
In short the pension fund benefit to non-vested employees in
the instant case is not speculative and Respondent should com-
ply with the court’s order and make the fund whole. Any other
outcome would be an unjust windfall for Respondent and unfair
to the Fund and the nonvested employees.
Accordingly, Respondent should make pension fund contri-
butions on behalf of all its former employees who have not as
yet vested based on the time of their employ with Respondent.
E. Should the Fund be Paid Interest and
Liquidated Damages
The remedies for violations of the Act are remedial in nature
and not punitive in nature, e.g., employees unlawfully dis-
charged in violation of Section 8(a)(3) of the Act are offered
reinstatement and backpay, with interest, but not punitive dam-
ages. See Republic Steel Corp. v. NLRB, supra.
While the pension fund documents call for the payment of
liquidated damages at the rate of 20 percent for delinquent con-
tributions in addition to interest Respondent argues that the
payment of liquidated damages and even interest if ordered to
be paid would be punitive and not remedial.
In cases involving bankrupt employers or as part of a settle-
ment, the Fund will on occasion waive liquidated damages.
The plan rules provide that the trustees can waive liquidated
damages for good-cause shown.
If the plan called for the payment of treble damages for de-
linquent contributions as an incentive to employers to make
Fund contributions in a timely fashion I believe it would be
punitive, and not remedial, for the Board, in the context of un-
fair labor practice litigation, to order the payment of treble
damages.
In section 2 of its Amended Judgment and Order the court
ordered that Respondent “make whole both the unit employees,
with interest, and the National Shopmen Pension Fund: . . . .”
Respondent argues that the plain meaning of this part of the
order means no interest payment to the Fund because the court
specifically orders interest to unit employees but not to the
Fund.
I view it differently. Interest on backpay is the obvious way
to fashion a make whole remedy. The “making whole” of the
Fund may call for something other than interest.
The Board wrote the following in Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1977):
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 of 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 determined, depending upon the
circumstances of each case, by reference to provisions in the
documents governing the funds at issue and, where there are
no governing provisions, to evidence of any loss directly at-
tributable to the unlawful withholding action, which might in-
clude the loss of return on investment of the portion of funds
withheld, additional administrative costs, etc., but not collat-
eral losses.
Respondent can’t comply with the court’s order to make the
Fund whole by simply making the contributions to the Fund
that should have been made years earlier because the Fund, if it
had received the contributions in a timely fashion, would have
invested the moneys, or paid the moneys out in pension or
death benefits, etc.
The problem with 20-percent liquidated damages on all de-
linquent contributions is that there is no evidence that this 20
RYAN IRON WORKS, INC. 903
percent is needed to make the Fund whole and not, for example,
some lesser percentage. The General Counsel cites GT Knight
Co., 268 NLRB 468 (1983), where 12-percent liquidated dam-
ages was upheld by the Board. If the Fund in the instant case
provided for 25 or 35 or 40 percent in liquidated damages that
may be requiring the Respondent to do more than “make
whole” the Fund.
The Fund documents not only call for liquidated damages in
the amount of 20 percent but also call for the payment of inter-
est on delinquent contributions.
Respondent should be ordered to pay the interest called for
in the trust documents on all delinquent contributions, i.e., the
rate of interest charged by the Pension Benefit Guaranty Corpo-
ration. See section 9.05 of Trust (GC Exh. 7) and (CP Exh. 1).
Based on the foregoing I issue the following recommended1
ORDER
The Respondent, Ryan Iron Works, Inc., Raynham, Massa-
chusetts, its officers, agents, successors, and assigns, shall
1. Make contributions to the Fund on behalf of strike re-
placements plus interest for those strike replacements who
worked for Respondent at any time during the period of De-
cember 8, 1995, when the strike ended, and October 1, 2001,
when Respondent began making payments to the Fund on be-
half of the strike replacements still on its payroll.
2. Make contributions to the Fund plus interest on behalf of
its former employees who have not as yet vested in the plan
because they have not as yet worked a minimum of 1000 hours
a year for 5 years for a contributing employer.
3. Respondent is not required to pay liquidated damages on
the amount of delinquent contributions, but should pay interest.
The interest will be computed at the rate of interest charged by
the Pension Benefit Guaranty Corporation.
4. The strike replacement employees and the employees who
had not as yet vested are listed on Appendix A which is at-
tached to this decision and made a part thereof and the indi-
viduals listed should be paid the amount opposite that person’s
name, plus interest. The names and the amounts come from
General Counsel’s Exhibit 3.2
5. Respondent should comply with the terms and conditions
of the partial settlement of this case reached on April 24, 2003.
APPENDIX A
REPLACEMENT WORKERS
EMPLOYEE NAME PENSIONCONTRIBUTION
Aime, Ronel $ 253.89
Amaro, Fernandez 1,041.95
Bergen, John 12,123.93
Costa, Jose 12,497.49

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2 Applying the rationale of Harding Glass Co., 377 NLRB 1116
(2002), I will not order that 401(k) contributions Respondent made on
behalf of employees listed in App. A be off set against the moneys
owed the Fund pursuant to this recommended supplemental decision.
Cournoyer, Robert 3,443.44
Cyrus, Oldemar 0.00
Derois, Paul E. 287.56
DeSanto, Caesar 2,247.02
DiPalma, Michael 2,541.37
Dowding, Gary 3,072.16
Dowding, Michael 3,420.62
Espada, Edwin 260.26
Farrell, Frederick L. 926.38
Goslant, Mark 561.47
Harsh, Donald 12,262.93
Hemmer, Monk 13,448.21
Jackson, William 7,150.88
Kourafas, Peter 1,763.58
Laramee, Robert 3,013.92
Magiera, Eugene 273.91
Manley, Donald S. 586.57
Marchand, Steven 2,439.71
Molina, Eddie 244.79
Perez, Wayne 241.15
Picillo, John 1,120.21
Psolka, Thomas 287.56
Reynolds, Gordon 148.33
Rice, Jordan 538.72
Riley, Michael 13,994.89
Rios, Rafael 4,018.05
Rodrigues, Joao 7,186.73
Silva, Antonio 99.19
Swanson, Milton F. 12,601.45
Tammelleo, Jason 433.16
Tougas, Leonard 2,840.11
Tougas, William G. 8,571.84
TOTALS $ 135,943.43
NONVESTING EMPLOYEES
EMPLOYEE NAME PENSIONCONTRIBUTION
Almeida, James $ 85.54
Amaral, Edwin 209.30
Applebaum, Matthew 84.63
Azevedo, Graceliano 1,113.84
Badoud, Anthony 54.83
Baker, Jeremy 595.14
Barabe, Jessica 27.30
Botelho, Michael 81.90
Boudreau, Joseph I. 203.39
Brown, Alexander, III 1,655.97
Brum, Joseph 326.24
Cabral, Jeffrey 821.28
Carisen, Richard 1,143.42
Carlton, David 243.20
Carmo, Carlos 2,105.97
Carmo, Nuno 3,157.36
Casillas, Jose 481.16
Coakley, Robert S. 6,817.49
Colon, Gilberto 295.30
Couto, Matthew 392.44
Coward, Allen 1,701.71
Dalton, Kenneth 410.87
DaSilva, Adam J. 1,053.73
DaSilva, Cesar 60.74
Davis, Jason 703.66
DeCarvalho, Louis H. 525.07
Deluca, William J. 177.68
DeMarco, Joseph 1,490.90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD904
DeSouza, Richardo 447.72
Dias, Erik D. 1,854.13
Dias, Kevin 7,136.68
DiSano, James 61.65
DosSantos, Eduardo 609.47
Druan, Timothy 1,531.30
Dunn, William J. 1,983.57
Edsall, Jason K. 72.80
Ellis, William J. 117.16
Emidio, Joaquim 596.73
Enos, Scott W. 214.76
Enos, William H. 287.56
Fabas, Richard 341.48
Fadlallah, Ghazi 336.02
Fernandes, Scott 6,700.82
Ferreira, Fernando 1,679.86
Ferriera, Silvestre 1,288.56
Flynn, MacJames 452.73
Francazio, Joseph 218.40
Ghabboura, Hisham Z. 684.32
Gilcoine, Daniel J. 307.81
Glass, William L. 1,784.53
Guncheon, William 347.62
Hanlin, Douglas A. 2,438.71
Hayden, Christopher D. 2,667.91
Ireland, Douglas W. 739.15
Johnson, Zachary 874.28
Johnstone, Joshua R. 111.70
LaFleur, Michael 1,144.78
Lawrence, Alan 508.69
Lourenceo, Jose M. 2,115.52
Lovenberg, Joshua 2,446.76
Lund, Michael J. 58.01
Lynas, John 877.24
Maaser, Henry J. 200.43
Machnik, Thomas E. 116.48
Mann, Charles E. 403.59
Marvel, David W. 847.21
McLellan, Allen 205.66
Medeiros, Christopher C. 2,745.24
Medeiros, Ildeberto 35.49
Medeiros, Kevin J. 173.36
Medeiros, Michael T. 616.07
Mello, Antonio 386.07
Mello, Robert 3,969.43
Menard, Eric 514.15
Nascimento, Mariano 125.58
Nazario, Jose 1,887.57
Nickikoulias, Nicholas J. 448.63
Noyes, George 121.49
Paiva, Shannon E. 42.32
Peixoto, Christopher M. 124.44
Pereira, Roy 740.97
Pimental, Kenneth 63.70
Pires, Antonio 139.23
Rampersad, Deorash 1,936.71
Raposo, Erik 94.64
Rifai, Admed 3,481.43
Riley, Sean 239.33
Rodrigues, Steven J. 7,484.07
Saraiva, Silverio 3,000.34
Sawler, James G. 85.09
Scarano, Richard E. 40.04
Simpson, Steven T. 1,530.17
Smerker, Larry 1,252.39
Souza, John 1,422.77
Spearin, Brad W. 305.76
Suarez, Jerry 1,160.48
Sylvia, Adam T. 473.43
Sylvia, Tina M. 36.86
Tavares, Roberto 31.29
Teixeira, Humberto A. 6,529.75
Teixeira, Richard J. 462.28
Terry, Matthew J. 133.54
Trott, John E. 4,310.73
Vieira, Mario J. 42.54
Vincent, Leo R. 627.67
Zim, Adilson E. 798.30
TOTALS $ 118,445.21
Thomas J. Morrison and Sandra L. Jean, Esqs., for the General
Counsel.
Robert P. Corcoran, Esq. (Gleason & Corcoran), of Boston,
Massachusetts, for the Respondent.
Marc Rifkind, Esq. (Slevin & Hart, P.C.), of Washington, D.C.,
for the National Shopmen Pension Fund.
SECOND SUPPLEMENTAL DECISION
MARTIN J. LINSKY, Administrative Law Judge. On October
29, 2003, I issued a supplemental decision in the above-
captioned case. The case was then transferred to and continued
before the Board.
On January 26, 2004, in response to a motion to remand
made by counsel for the General Counsel, the Board remanded
the case to me for the limited purpose of my reconsideration
regarding the pension contribution, if any, to be made on behalf
of Oldemar Cyrus, a strike replacement employee.
The motion to remand was made on the grounds that I relied
on an exhibit which contained inadvertent clerical errors.
Thereafter on February 17, 2004, counsel for the General
Counsel filed an unopposed motion to the judge to amend find-
ings to conform to corrected evidence.
The counsel for the General Counsel’s motion is granted.
In my October 29, 2003 supplemental decision, I inadver-
tently referred in the caption of the case to Case “1–CA–
34026” which should be changed to read Case “1–CA–34066.”
In addition, due to a clerical error in General Counsel’s Ex-
hibit 3 the amount found due and owing to the pension fund on
behalf of strike replacement worker Oldemar Cyrus was re-
corded in appendix A to my October 29, 2003 decision as
“$0.00” and should instead be recorded as “$15,756.42.” This
change will increase the total pension contribution due on be-
half of replacement workers, not counting interest, to
$151,699.85 rather than $135,943.43.