Schuener Construction Company,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1275 (N.L.R.B. 1981)

SCHUENER CONSTRUCTION COMPANY
Schuener Construction Company and Local No. 324,
International Union of Operating Engineers,
AFL-CIO. Case 7-CA-19360
September 30, 1981
DECISION AND ORDER
BY MEMBER: XNNING, JNKINS, ANI)
ZIMMIERNIAN
Upon a charge filed on May 29, 1981,' by Local
No. 324, International Union of Operating Engi-
neers, AFL-CIO, herein called the Union, and
duly served on Schuener Construction Company,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 7, issued a complaint on
July 8, against Respondent, alleging that Respond-
ent had engaged in and was engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge and complaint and
notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges, inter alia, that by virtue of col-
lective-bargaining agreements between the Union
and Associated General Contractors of America,
Detroit Chapter, Associated General Contractors
of America, Michigan Chapter, and the Michigan
Road Builders Association, to which agreements
Respondent has agreed to be bound, the Union has
been and is now the exclusive bargaining repre-
sentative of all of Respondent's employees in the
following appropriate unit:
All operating engineers, mechanics, oilers and
apprentice engineers employed by Schuener
Construction Company, but excluding guards
and supervisors as defined in the Act.
The complaint further alleges that since on or
about August 1, 1980, Respondent has failed and
refused, and continues to fail and refuse, to bargain
collectively and in good faith with the Union as
the representative of the employees in the above-
described unit in violation of Section 8(a)(5) and
(I) of the Act by having, unilaterally and without
notice to the Union, evaded, breached, and modi-
fied the terms of the current collective-bargaining
agreements to which it is bound between the Asso-
ciations and the Union, in paying unit employees
for services performed but without making the re-
quired fringe benefit payments into various fringe
'Unlcss ohherwi c noted ll da te l a re in 1}81
benefit funds established for the benefit of unit em-
ployees of Respondent. Subsequently, Respondent
timely filed an answer to the complaint, admitting
in part and denying in part the allegations con-
tained therein.
Thereafter, on August 24, the General Counsel
filed with the Board in Washington, D.C., a
Motion for Summary Judgment, with attached ex-
hibits. Subsequently, on September 2, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause, by September
16, why the General Counsel's Motion for Sum-
mary Judgment should not be granted. As of this
date, Respondent has failed to file a response to the
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Respondent's answer to the complaint admits,
inter alia, that it is a Michigan corporation engaged
in commerce within the meaning of the Act, that
the Union is a labor organization within the mean-
ing of the Act, and that the above-described unit is
appropriate for bargaining within the meaning of
Section 9(b) of the Act. Respondent's answer fur-
ther admits that it is bound by the collective-bar-
gaining agreements negotiated between the Union
and the associations referred to above, that those
agreements are by their terms in full force and
effect, and that the Union has been, and is now, the
exclusive representative of Respondent's employees
in the above-described unit for the purposes of col-
lective bargining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment. Respondent's answer
also admits that the above-referenced collective-
bargaining agreements provide, inter alia, for the
payment by Respondent of moneys into various
fringe benefit funds established for the benefit of
unit employees of Respondent. Respondent denies
the conclusory 8(a)(1) and (5) allegations of the
complaint, and, while admitting that it failed to
make the required fringe benefit payments mandat-
ed in the collective-bargaining agreements to
which it is bound, asserts that its failure to do so
was caused by financial conditions beyond the con-
trol of Respondent and was not intended to evade.
breach, or modify the terms of said collective-bar-
gaining agreements.
We find no merit to Respondent's assertions. It is
well established that an employer acts in deroga-
258 NLRB No. 173
1 75
DECISIONS OF NATIONAL LABOR REL.ATIONS 13BOARD
tion of its bargaining obligation under Section 8(d)
of the Act when, during the life of a collective-bar-
gaining agreement to which it is bound, it unilater-
ally modifies or otherwise repudiates terms and
conditions of employment contained in the agree-
ment. Morelli Construction Company, 240 NLRB
1190 (1979). It is equally well established that that
economic necessity is not cognizable as a defense
to the unilateral repudiation of monetary provisions
in a collective-bargaining agreement. Id. We there-
fore find that no material issues of fact exist in this
proceeding which warrant a hearing. Accordingly,
we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Michigan corporation with its
principal office and place of business in Alpena,
Michigan, and is engaged in excavating and earth-
moving work in the commercial construction and
road building industry within the State of Michi-
gan. During the year ending December 1980, a rep-
resentative period, Respondent, in the course and
conduct of its operations, provided construction
services from its Alpena, Michigan, place of busi-
ness valued in excess of $100,000, of which services
valued in excess of $50,000 were furnished to the
State of Michigan. During the same representative
period, the State of Michigan, in the course and
conduct of its operations, received goods and serv-
ices valued in excess of $50,000 directly from sup-
pliers located outside the State of Michigan.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction.
II. THE I.ABOR ORGANIZATION INVOIVED
Local No. 324, International Union of Operating
Engineers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. HE UNFAIR L.ABOR PRACTICES
A. The Representative Status of the Union
All operating engineers, mechanics, oilers, and
apprentice engineers employed by Respondent, but
excluding guards and supervisors as defined in the
Act, constitute a unit of employees appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
At all times since July 18, 1962, by virtue of an
agreement to be bound by collective-bargaining
agreements negotiated between the Union and the
Associated General Contractors of America, De-
troit Chapter, the Associated General Contractors
of America, Michigan Chapter, and the Michigan
Road Builders Association, which by their terms
were in full force and effect during all times mate-
rial herein, the Union has been the recognized col-
lective-bargaining representative of Respondent's
employees in the unit described above and, by
virtue of Section 9(a) of the Act, is and has been
the exclusive collective-bargaining representative
of said employees for the purpose of collective bar-
gaining with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
B. The Unilateral Changes
Since on or about August 1, 1980, and continu-
ing to date, Respondent, without first giving notice
to and bargaining with the Union, has unilaterally
modified the terms of the collective-bargaining
agreements referred to above by failing to make
contractually provided-for payments into various
fringe benefit funds established for the benefit of
Respondent's employees in the unit described
above. Accordingly, we find that Respondent, by
the acts and conduct set forth herein, did refuse,
and is refusing, to bargain collectively in good faith
with the Union as the exclusive representative of
the employees in the unit found appropriate, and
thereby has engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
that it take certain affirmative action as set forth
below designed to effectuate the purposes and poli-
cies of the Act. We shall, in particular, order Re-
spondent to make whole employees in the collec-
tive-bargaining unit involved herein by making all
1276
SCHUENER CONSTRUCTION COMI'PANY
fringe benefit fund payments, which should have
been made pursuant to the terms of the applicable
collective-bargaining agreements between the As-
sociation and the Union, but were not made as a
result of Respondent's unfair labor practices.2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCUSIONS OF LAW
I. Schuener Construction Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local No. 324, International Union of Operat-
ing Engineers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All operating engineers, mechanics, oilers, and
apprentice engineers employed by Respondent, but
excluding guards and supervisors as defined in the
Act, constitute a unit of employees appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein the above-named
labor organization has been the exclusive repre-
sentative of all the employees in the aforesaid ap-
propriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By the acts and conduct described in section
III,B, above, Respondent has refused to bargain
collectively in good faith, and is refusing to bargain
collectively in good faith, with the above-named
labor organization as the exclusive representative
of Respondent's employees in the above-described
appropriate unit, and thereby has engaged in, and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
6. By the acts and conduct described in section
III,B, above, Respondent has interfered with, re-
strained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise
of the rights guaranteed them in Section 7 of the
Act, and thereby has engaged in, and is engaging
in, unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Because the provisions (of employee benefil fund agreements are ari-
able and complex, Ihe Board does not pros.ide at the adjudicator) tage
of a proceeding for the addition of interest at a fixed rate on unlasxfull
withheld fuid payments. We' lease o the compliance stage the question
, hether Respondent must pay any additirlinal aount, intol th benefit
funds in order to satisfy our "make hole" remed Ilhee ddilional
amounts ma he determined, depending uponl the circunst;lances of each
case, h reference to prolisilOls in the docunents goserlllnlg the fllids It
issue and. here there are lno g errlring pros 1 iotll. to exildencc ofi iAl
loss directls attributable to the unlav ful s itltholding ati l. . hlclh nuighl
include the loss of return on nsestmellt of the portionll of fldsl held, ad-
ditionlal admninistrati.e costs. etc, hlt iolt co llaltral losse
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Schuener Construction Company. Alpena, Michi-
gan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Unilaterally refusing to make fringe benefit
fund payments provided for in any applicable col-
lective-bargaining agreements entered into with
Local No. 324, International Union of Operating
Engineers, AFL-CIO, without first giving notice
to and bargaining with the aforesaid Union as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All operating engineers, mechanics, oilers, and
apprentice engineers employed by Schuener
Construction Company, but excluding guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with Local
No. 324, International Union of Operating Engi-
neers, AFL-CIO. as the bargaining representative
of its employees in the above-described appropriate
unit as to rates of pay, wages, hours, and other
terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Make whole the employees in the above-de-
scribed unit in the manner set forth in the section
of this Decision entitled "The Remedy" for Re-
spondent's unlawful failure to make all fringe bene-
fit fund payments required by its contract with the
Union.
(c) Post at its Alpena, Michigan, location copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter. in conspicuous places, including all
places where notices to employees are customarily
In I the senl t atll this ll rdr enforled h\ ai JiudrI it ot ll tl d
Slitate ( ourti of Appeals. thle sord I The iolice rctding "Po'.tcd hs
O)rder ,t liet Nationlll I hor Rellon, IHeoardl h lll ra td s'Io' d Pti rll-rs-
ail to ai Judgmteit ot' the I'itled Slate (Colurt )f Appt' 1-1 "t l 'illg an
()rdcr of the Natioial bhor Rliaoll,,s ard
1 277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
No-ricl; To EMPI.OYs IS
PosrriT) BY ORDER OF THIE
NATIONAI. LABOR REIATIONS BOARD
An Agency of the United States Government
W. Will NOT unilaterally refuse to make
fringe benefit fund payments provided for in
any applicable collective-bargaining agree-
ments entered into with Local No. 324, Inter-
national Union of Operating Engineers, AFL-
CIO, without first giving notice to and bar-
gaining with that Union as the exclusive bar-
gaining representative of employees in the fol-
lowing appropriate bargaining unit:
All operating engineers, mechanics, oilers,
and apprentice engineers employed by us,
but excluding guards and supervisors as de-
fined in the Act.
WE WIll. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WIIL., upon request, bargain collectively
with the above-named Union as the bargaining
representative of our employees in the above-
described appropriate unit as to rates of pay,
wages, hours, and other terms and conditions
of employment and, if an understanding is
reached, embody such understanding in a
signed agreement.
WE WlII. make whole the employees in the
appropriate bargaining unit described above by
making all fringe benefit fund payments which
should have been made pursuant to the terms
of the applicable collective-bargaining agree-
ments between ourselves and the above-named
Union but were not made as a result of our un-
lawful conduct.
SCHUI.NIER CONSTRUCTION COMPANY
1278