NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,445, CENTRA INC. et al. and ARCHER BAILEY III and TEAMSTERS LOCAL UNION NO. 964, aw INTERNATIONAL UNION OF TEAMSTERS, AFL-CIO., (Aug. 19, 1994), National Labor Relations Board, (Aug 19, 1994)

CENTRA INC. et al. and ARCHER BAILEY III and TEAMSTERS LOCAL UNION NO. 964, aw INTERNATIONAL UNION OF TEAMSTERS, AFL-CIO.

314 NLRB No. 144.Case Nos. 8-CA-19212 and -19282. August 19, 1994 Robert W. Leiner, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Paul C. Lund, for General Counsel. James M. Brogan and A. Christopher Young (Harvey, Pennington, Herting & Renneisen, Ltd.), Philadelphia, Pennsylvania, for Respondent. [1]

Back Pay--Union Welfare Payments--Employer’s Failure to Pay.--An employer was liable to two groups of discriminatees for past-due union health and welfare funds that were owed by the employer under a collective bargaining agreement. The employees had not refused bona fide offers of reinstatement, had not foresworn their desire to be covered by the union-negotiated funds and were not covered by an employer-sponsored fund. Section 10(c).

Back reference: ¶5465.471.

Supplemental decision (back pay) Sub nom D & S Leasing, Inc. (CA-6 1992) 120 LC ¶11,069.

From Text of Board’s Decision

On December 20, 1993, Administrative Law Judge Robert W. Leiner issued the attached supplemental decision. The Respondents filed exceptions and a supplemental supporting brief. [2]

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, [3] and conclusions. [4]

¹	The name of the Charging Party has been changed to reflect the new official name of the International Union.
²	The Respondents also filed a motion to reopen the record to consider additional evidence pertaining to a Federal district and appellate court determinations concerning D & S Leasing’s withdrawal liability under the Multi-Employer Pension Plan Amendments Act of 1980, 29 U.S.C. §1381-1461, contending that this evidence is material to the issue of the Respondents’ pension fund liability as required by the relevant collective-bargaining agreements. The General Counsel filed a memorandum in opposition to the Respondents’ motion, and the Central Stages, Southeast and Southwest Areas Pension and Health and Welfare Funds (Central States Funds) filed a motion to intervene in order to address the merits of the Respondents’ motion and the method of calculating interest on delinquent fund contributions. After reviewing the parties’ submissions, we deny the Respondents’ motion on the grounds that it does not present newly discovered evidence. See Holly Farms Corp., [1992-93 CCH NLRB ¶17,914] 311 NLRB 273, 281 (1993). In this regard, we note that the Federal district court’s decision, which was summarily affirmed by the Sixth Circuit Court of Appeals, issued before the compliance hearing closed. For the same reason, we deny the Respondents’ request that a hearing be held to determine whether to reopen the record. We also deny Central States Funds’ motion to intervene.
³	The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In fn. 4 of his decision, the judge advertently stated that the Respondents commenced operations with the Group B employees as new hires on June 2, 1991, rather than 1986. We correct the error. In adopting the judge’s findings that the Respondents are required to remit payments to the pension and health and welfare funds on behalf of the unit employees, Member Devaney does not rely on the judge’s analysis of “concrete evidence” of the employees’ economic interest in the future of the funds, or on his related finding that the burden of proof shifted to the Respondents to demonstrate that the employees have no future interest. See Ron Tirapelli Ford, [1991-92 CCH NLRB ¶16,856] 304 NLRB 576, 576 at fn. 2 (1991), enf. denied, [124 LC ¶10,582] 987 F.2d 433 (7th Cir. 1993).
⁴	The judge failed to include a recommended Order in his supplemental decision. Accordingly, we have set forth an order that conforms to the judge’s conclusions, which we have adopted, regarding the Respondents’ liability to the pension and health and welfare funds.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,445, CENTRA INC. et al. and ARCHER BAILEY III and TEAMSTERS LOCAL UNION NO. 964, aw INTERNATIONAL UNION OF TEAMSTERS, AFL-CIO., (Aug. 19, 1994), National Labor Relations Board, (Aug 19, 1994)

CENTRA INC. et al. and ARCHER BAILEY III and TEAMSTERS LOCAL UNION NO. 964, aw INTERNATIONAL UNION OF TEAMSTERS, AFL-CIO.

314 NLRB No. 144.Case Nos. 8-CA-19212 and -19282. August 19, 1994 Robert W. Leiner, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Paul C. Lund, for General Counsel. James M. Brogan and A. Christopher Young (Harvey, Pennington, Herting & Renneisen, Ltd.), Philadelphia, Pennsylvania, for Respondent. [1]

Back reference: ¶5465.471.

Supplemental decision (back pay) Sub nom D & S Leasing, Inc. (CA-6 1992) 120 LC ¶11,069.

From Text of Board’s Decision

On December 20, 1993, Administrative Law Judge Robert W. Leiner issued the attached supplemental decision. The Respondents filed exceptions and a supplemental supporting brief. [2]

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, [3] and conclusions. [4]

¹	The name of the Charging Party has been changed to reflect the new official name of the International Union.
²	The Respondents also filed a motion to reopen the record to consider additional evidence pertaining to a Federal district and appellate court determinations concerning D & S Leasing’s withdrawal liability under the Multi-Employer Pension Plan Amendments Act of 1980, 29 U.S.C. §1381-1461, contending that this evidence is material to the issue of the Respondents’ pension fund liability as required by the relevant collective-bargaining agreements. The General Counsel filed a memorandum in opposition to the Respondents’ motion, and the Central Stages, Southeast and Southwest Areas Pension and Health and Welfare Funds (Central States Funds) filed a motion to intervene in order to address the merits of the Respondents’ motion and the method of calculating interest on delinquent fund contributions. After reviewing the parties’ submissions, we deny the Respondents’ motion on the grounds that it does not present newly discovered evidence. See Holly Farms Corp., [1992-93 CCH NLRB ¶17,914] 311 NLRB 273, 281 (1993). In this regard, we note that the Federal district court’s decision, which was summarily affirmed by the Sixth Circuit Court of Appeals, issued before the compliance hearing closed. For the same reason, we deny the Respondents’ request that a hearing be held to determine whether to reopen the record. We also deny Central States Funds’ motion to intervene.
³	The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In fn. 4 of his decision, the judge advertently stated that the Respondents commenced operations with the Group B employees as new hires on June 2, 1991, rather than 1986. We correct the error. In adopting the judge’s findings that the Respondents are required to remit payments to the pension and health and welfare funds on behalf of the unit employees, Member Devaney does not rely on the judge’s analysis of “concrete evidence” of the employees’ economic interest in the future of the funds, or on his related finding that the burden of proof shifted to the Respondents to demonstrate that the employees have no future interest. See Ron Tirapelli Ford, [1991-92 CCH NLRB ¶16,856] 304 NLRB 576, 576 at fn. 2 (1991), enf. denied, [124 LC ¶10,582] 987 F.2d 433 (7th Cir. 1993).
⁴	The judge failed to include a recommended Order in his supplemental decision. Accordingly, we have set forth an order that conforms to the judge’s conclusions, which we have adopted, regarding the Respondents’ liability to the pension and health and welfare funds.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,445, CENTRA INC. et al. and ARCHER BAILEY III and TEAMSTERS LOCAL UNION NO. 964, aw INTERNATIONAL UNION OF TEAMSTERS, AFL-CIO., (Aug. 19, 1994), National Labor Relations Board, (Aug 19, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,445, CENTRA INC. et al. and ARCHER BAILEY III and TEAMSTERS LOCAL UNION NO. 964, aw INTERNATIONAL UNION OF TEAMSTERS, AFL-CIO., (Aug. 19, 1994), National Labor Relations Board, (Aug 19, 1994)

From Text of Board’s Decision

Footnotes