Distributing Corporation

DECISIONS OF NATIONAL LABOR RELATIONS BOARD SDS Distributing Corporation and Q-M Distributing Corporation, Its Successor and Alter Ego and Brew- ery Delivery Employees Local Union 46, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and Local 807, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Party in Interest. Cases 29-CA 6207 and 29 CA- 6314 September 25, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE Upon charges filed on February 10 and April 6, 1978, by the Brewery Delivery Employees Local Union 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 46, and duly served on SDS Dis- tributing Corporation and Q-M Distributing Corpo- ration, its Successor and Alter Ego, herein called Re- spondents, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a consolidated complaint on April 11, 1978, against Respondents, alleging that Respon- dents had engaged in and were engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(aX 1), (2), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint, as consolidated, alleges in substance that on January 31, 1978, Respondents discharged all of their employees in violation of an existing collective-bar- gaining agreement, refused reinstatement to such em- ployees, hired other employees to perform the former employees' work, and recognized a rival union as the bargaining representative of such other employees. It further alleges that on or about January 31, 1978,' Respondents refused, and continue to date to refuse, to bargain collectively with Local 46 as the exclusive bargaining representative, although Local 46 has re- quested and is requesting it to do so. It additionally alleged that since on or about February 1, 1978, Re- spondents have refused to honor or give effect to its collective-bargaining agreement with Local 46, has unilaterally changed the terms and conditions of work of its employees, and has engaged in individual I The complaint inadvertently sets the date of January 13, 1978. which, as is clear from the other allegations in the complaint. should read January 31., 1978. bargaining. Finally, the complaint alleges that Re- spondents, by engaging in the foregoing conduct, vio- lated the Act as set forth above. On July 26, 1978, Respondents' president, being advised by registered mail of pending summary judg- ment proceedings, telephoned the counsel for the General Counsel stating that no answer to the com- plaint would be filed on behalf of Respondents, nor would any appearance be made at the hearing then scheduled for August 14, 1978. Thereafter, counsel for the General Counsel advised Respondents by let- ter of his intention to move for summary judgment and on November 27, 1978, he filed a Motion for Summary Judgment directly with the Board based on Respondents' failure to file a timely answer under Sections 102.20 and 102.21 of the Board's Rules and Regulations, Series 8, as amended. On December 11, 1978, the Board issued an order transferring the matter to the Board and a Notice To Show Cause why the Motion for Summary Judgment should not be granted, stating therein that Respon- dents should file their response in writing with the Board by December 26, 1978. No response was timely filed. However, the Board received a letter from Respondents on December 27, 1978. advising that "we categorically deny all the charges made by Local 46 and want our day in court to examine the people making the charges." There was no affidavit of service showing service on the parties and no other indication that such service was made. 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 Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state. such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admit- ted to be true and shall be so found by the Board, unless good cause to the contrary is shown. 245 NLRB No. 46 322 SDS DISTRIBUTING CORPORATION The complaint specifically stated that unless an an- swer was filed within 10 days of service thereof "all of the allegations in the complaint shall be deemed to be admitted to be true and may be so found by the Board." Also, as outlined above, the General Coun- sel, according to the uncontroverted allegations of the Motion for Summary Judgment, notified Respon- dents on more than one occasion that their answer was overdue and that he intended to move for sum- mary judgment based on the allegations of the com- plaint. In reply Respondents stated that they did not intend to file an answer and they also failed to file a timely response to the Notice To Show Cause. How- ever, Respondents by letter dated December 27, 1978. generally denied "all charges made by Local 46" and stated that they wanted a "day in court to examine the people making the charges." Insofar as the letter purports to be an answer to the complaint, it fails in its purpose in that it lacks the required specificity, was not timely filed, and was not properly served on the parties to this proceeding. Insofar as it purports to be a response to the Notice To Show Cause, it also fails in its purpose not only because it was not timely filed nor duly served, but also because it does not even attempt to explain or justify or proffer an excuse for the failure to file a proper and timely answer to the complaint and because it fails to establish any sound reason why the Motion for Summary Judg- ment should not be granted. As Respondents have not filed a timely proper answer and have not estab- lished "good cause" under Section 102.20 of the Board's Rules and Regulations as to why the allega- tions of the complaint should not be deemed admit- ted, we find as true all such allegations and grant the Motion for Summary Judgment. Upon the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondents SDS and Q-M are New York corpo- rations engaged in the sale and distribution of beer and related products. During the prior year, Respon- dents have severally, in the course and conduct of their business, purchased and caused to be trans- ported and delivered in interstate commerce beer and other goods and materials valued in excess of $50,000 directly from States of the United States other than the State in which they are located. At all times material herein, Elmer Sidden has been the president of Respondents acting on their behalf and as an agent thereof. Until January 31, 1978, Re- spondent SDS maintained its facility at 34 Forrest Street, Brooklyn, New York; and since February 1., 1978, Respondent Q-M has maintained its place of business at 420 Kent Avenue, Brooklyn. New York. On or about November 26. 1976, Rheingold Brewer- ies, Inc.. sold and transferred the business of the sale and distribution of its products to Respondent SDS which thereafter hired Rheingold employees as its own, in the unit found appropriate herein, and as- sumed the collective-bargaining agreement between Rheingold and Local 46 covering said employees. On January 31, 1978, Respondent SDS closed its facility and transferred its delivery operation, equipment. and supervisors to Respondent Q-M. Since February 1, 1978, the delivery employees of Respondent Q-M have performed substantially the same work as had been performed by the delivery employees of Respon- dent SDS, using equipment the latter had and being supervised by the same supervisors previously em- ployed by Respondent SDS. At all times material herein, Respondents have had common ownership, directors, and operators, with the operators formulat- ing and administering the labor policy for both com- panies. Accordingly, we find that Respondent Q-M is, and has been, the successor to and alter ego of Re- spondent SDS. We find, on the basis of the foregoing, that Respon- dents, and each of them, are and have been at all times material herein 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 herein. II. HE LABOR ORGANIZATIONS INVOLVED Brewery Delivery Employees Local Union 46 and Local 807, both affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR I.ABOR PRACTICES A. The 8(a)(5) and (1) Violations I. The unit and Local 46's representative status At all times material, Local 46, by virtue of Section 9(a) of the Act, has been the exclusive representative for purposes of collective bargaining within the mean- ing of Section 9(b) of the Act of all the employees in the following appropriate unit: all drivers, helpers, warehousemen, beer plumbers and clerks employed by Respondents at the Forrest Street plant and then at the Kent Avenue plant, exclusive of all officials of Respondents, office clerical employees, guards, and all supervisors as defined in Section 2(11) of the Act. On or about January 17. 1977. Respondent SDS 323 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to and did assume the collective-bargaining agreement covering employees in the appropriate unit between Rheingold Breweries, Inc., a predecessor, and Local 46, said contract to run until May 31, 1978. and further agreed to and did continue to employ the employees of Rheingold covered by the said collec- tive-bargaining agreement. At all times material Lo- cal 46 has requested Respondents to honor and give effect to the aforesaid collective-bargaining agree- ment and recognize and bargain with it as the exclu- sive representative of Respondent Q-M's employees in the appropriate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment of such employees. 2. Refusals to bargain Commencing on or about January 31, 1978, and continuing at all times thereafter, Respondents have refused to recognize and bargain with Local 46 as the bargaining representative of the employees in the ap- propriate unit, and have refused to honor and give effect to the collective-bargaining agreement, which they adopted, covering the employees in said unit. On or about February 1, 1978, and at all times thereafter, Respondents have unilaterally changed existing wage rates, hours of employment, and other terms and con- ditions of employment of employees in the appropri- ate unit without prior notice to Local 46 and without having afforded that Union an opportunity to negoti- ate and bargain concerning such changes. Respon- dents also have bargained directly and individually with the employees in said unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Accordingly, we find that Respondents have since January 31, 1978, and at all times thereafter, includ- ing February 1, 1978, refused to bargain collectively with Local 46 as the exclusive representative of the employees in the appropriate unit in the manner set forth above, and that, by such refusals, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. B. The 8(a)(2) and (1) Violations On or about March 2, 1978, Respondent Q-M rec- ognized Local 807 as the representative of all the de- livery employees at the Kent Avenue plant when at times relevant Local 46 was the exclusive bargaining representative of such employees and when such em- ployees were part of the appropriate unit covered by the outstanding bargaining agreement between Re- spondents and Local 46. Accordingly, we find that, by recognizing Local 807 at a time when they were obligated to recognize and bargain with Local 46 as the exclusive representative of their employees, Re- spondents have unlawfully rendered and are render- ing assistance to Local 807 and are contributing un- lawful financial and other assistance to the Union. and that, by such conduct, Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(2) and () of the Act. C. The 8(a)(3) and (1) Violations On or about January 31, 1978, Respondent SDS discharged all employees employed in the appropriate unit. At all times thereafter Respondents have failed and refused to reinstate, or offer to reinstate, said em- ployees to their former or substantially equivalent po- sitions, notwithstanding that in January and Febru- ary 1978 Respondents hired other employees to fill such positions. The employees of Respondent SDS were discharged and denied reinstatement because they were members of and represented by Local 46 and for the purpose of Respondent SDS to avoid dealing with Local 46. Accordingly, we find that, by discharging and re- fusing to reinstate the employees of Respondent SDS, Respondents have discriminated against their em- ployees in regard to their terms and conditions of em- ployment, and that, by such conduct, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACI(CES UPON OMMERCE The activities of Respondents set forth in section 111, above, occurring in connection with their opera- tions described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), (3), and (5) of the Act, we shall order that they cease and desist therefrom and take certain affirmative action designed to effec- tuate the policies of the Act.2 Thus, we shall order In his Motion for Summary Judgment. counsel for the General Counsel implies that Respondents have closed or relocated their business and thus requests that the various affirmative provisions of the complaint be made 324 SDS DISTRIBUTING CORPORATION them to (I) recognize and bargain with Local 46 for employees in the appropriate unit at their Kent Street location; (2) honor and give effect to their bargaining agreement with Local 46 covering the employees in the appropriate unit; (3) offer to the discriminatees immediate and full reinstatement to their former jobs or, if such jobs are no longer available, to substan- tially equivalent jobs at their Kent Avenue location; (4) pay backpay to the discriminatees for any losses resulting from the discrimination against them from the date of their unlawful discharge to the date Re- spondents offer them full and proper reinstatement; and (5) pay to the appropriate Local 46 plan any and all amounts due in pension, health, welfare, or vaca- tion benefits which are due and owing for all unit employees from the date of their discharge to the date Respondents offer them reinstatement, to the extent that such contributions have not been made. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and inter- est shall be paid on all backpay as prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977); see gen- erally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Contributions owing Local 46 employee bene- fit plans shall be computed in the manner set forth in Merryweather Optical Company, 240 NLRB 1213 (1979). Finally, we shall order Respondents to mail to each employee employed by them in the appropriate unit during 1978 a copy of the notice attached hereto as an appendix. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondents SDS Distributing Corporation and Q-M Distributing Corporation are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Q-M Distributing Corporation is, and has been, the successor to and alter ego of Re- spondent SDS Distributing Corporation. 3. Brewery Delivery Employees Local Union 46 and Local 807, both affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 4. All drivers, helpers, warehousemen, beer plumb- ers, and clerks employed by Respondents at the For- est Street plant and then at the Kent Avenue plant, applicable to any location to which Respondents have moved their business or to any location where they may reopen their business. However, there are no facts before us warranting our departing from the customary remedial provisions, and thus the matter raised by the General Counsel can best be resolved at the compliance stage of this proceeding. exclusive of all officials of Respondents, office clerical employees, guards, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act. 5. At all times material herein, Local 46 has been, and is now, the exclusive representative of the em- ployees in the unit described above for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing on or about January 31, 1978, and thereafter by continuing to refuse to recognize and bargain with Local 46 as the exclusive representative of their employees in the appropriate unit: by failing to honor and give effect to its bargaining agreement with Local 46 on and after January 31, 1978: by mak- ing unilateral changes on or about February 1, 1978, and thereafter, in the rates of pay, wages, hours, and other terms and conditions of employment of the em- ployees in the appropriate unit; and by bargaining directly and individually with the employees in said unit concerning those matters, Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By on or about January 31, 1978, and thereafter, discharging and failing or refusing to reinstate Re- spondent SDS Distributing Corporation's employees because of their membership in and representation by Local 46 and, in order to avoid recognizing and deal- ing with that union, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 8. By recognizing on or about March 2, 1978. Lo- cal 807 as the bargaining representative of Respon- dent Q-M Distributing Corporation's delivery em- ployees at a time when such employees were represented by Local 46 (as the exclusive bargaining representative in the appropriate unit), and by assist- ing and contributing financial and other support to Local 807, Respondents have engaged in and are en- gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. By the aforesaid violations described in para- graphs 6, 7, and 8 above, Respondents have interfered with, restrained, and coerced, and are interfering with, restraining, and coercing, employees in the exer- cise of the rights guaranteed them in Section 7 of the Act, and thereby have engaged in, and are engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(l) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 325 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondents, SDS Distributing Corporation and Q-M Distributing Cor- poration, Brooklyn, New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Brewery Delivery Employees Local 46, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of their employees in the following appropriate unit: All drivers, helpers, warehousemen, beer plumb- ers and clerks employed by the Respondents at the Forrest Street plant and then at the Kent Avenue plant, exclusive of all officials of Respon- dent, office clerical employees, guards and all su- pervisors as defined in Section 2(11) of the Act. (b) Refusing or failing to honor or give effect to their collective-bargaining agreement with Local 46 covering the employees in the appropriate unit. (c) Unilaterally changing existing rates of pay, wages, hours, and other terms and conditions of em- ployment of employees in the appropriate unit with- out prior notice to Local 46 and without having af- forded Local 46 an opportunity to negotiate and bargain concerning such changes. (d) Bargaining directly and individually with the employees in the appropriate unit. (e) Discharging and failing or refusing to reinstate employees because they are members of Local 46 or represented by that labor organization and in order to avoid recognizing or dealing with Local 46. (f) Recognizing Local 807, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representative of its em- ployees, unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employ- ees. (g) Assisting or contributing financial or other sup- port to Local 807. (h) In any other manner interfering with, restrain- ing, or coercing employees in the exercise 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, recognize and bargain with Lo- cal 46 as the exclusive bargaining representative of their employees in the above-described appropriate unit concerning 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) Upon request by Local 46, honor and give ef- fect to the bargaining agreement with that labor or- ganization covering employees in the above-described appropriate unit. (c) Withdraw and withhold all recognition from Local 807 as the exclusive representative of its em- ployees for the purposes of collective bargaining un- less and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (d) Offer the discharged employees of Respondent SDS Distributing Corporation immediate and full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (e) Make the discharged employees of Respondent SDS Distributing Corporation whole for any loss of earnings or benefits they may have suffered due to the discrimination practiced against them in the manner and to the extent set forth in the Remedy section of this Decision. (f) Make whole the appropriate Local 46 plans or fund for any and all sums due and owing in pension, health, welfare, or vacation benefits for all unit em- ployees from the date of their unlawful discharge to the date Respondents offer them full and proper rein- statement in the manner set forth in the Remedy sec- tion of this Decision. (g) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necesary to analyze the amounts of backpay due under the terms of this Order. (h) Post at its Kent Avenue, Brooklyn, New York, place of business copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 29, af- ter being duly signed by Respondents' representative, shall be posted by Respondents immediately upon re- ceipt thereof. The posted notices shall be maintained by Respondents for 60 consecutive days thereafter, in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. Copies of the notice shall also be In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 326 SDS DISTRIBUTING CORPORATION mailed to the last known address of all unit employ- ees employed during 1978. (i) Notify the Regional Director for Region 29. in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively with Brewery Delivery Employees Local 46, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the bargaining representative in the following appropriate unit: All drivers, helpers, warehousemen, beer plumbers and clerks employed by us at the Forrest Street and then at the Kent Avenue plant, exclusive of all company officials, office clerical employees, guards and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT refuse or fail to honor or give effect to our collective-bargaining agreement with Local 46 covering employees in the appro- priate unit. WE WILL NOT change existing rates of pay, wages, hours, and other terms and conditions of employment of employees in the appropriate unit without prior notice to Local 46 and without having afforded Local 46 an opportunity to ne- gotiate and bargain concerning such changes. WE WILL NOT bargain directly and individ- ually with the employees in the appropriate unit. WE WILL NOT discharge and fall or refuse to reinstate our employees because they are mem- bers of Local 46 or of any other union and in order to avoid recognizing or dealing with Local 46 or any other union. WE WILL NOT recognize Local 807, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representative of our employees unless and until it has been duly certified by the National Labor Relations Board as their representative. WE WILL NOT assist or contribute financial or other support to Local 807. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, recognize and bargain with Local 46 as the exclusive bargaining repre- sentative of our employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. WE %'IL.L, upon request of Local 46, honor and give effect to the bargaining agreement with that labor organization covering employees in the ap- propriate unit. WE WLl. withdraw and withhold all recogni- tion from Local 807 as the exclusive representa- tive of our employees for the purpose of collec- tive bargaining unless and until Local 807 has been duly certified by the National Labor Rela- tions Board as the exclusive representative of our employees. WE WILL offer to the employees of SDS Dis- tributing Corporation discharged on January 31, 1978, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed by them. WE WILL make the employees of SDS Distrib- uting Corporation discharged on January 31, 1978, whole for any loss of earning or benefits they may have suffered due to our unlawful dis- crimination against them together with interest. WE WILL make whole the appropriate Local 46 plan for any and all sums due and owing in pension, health, welfare, or vacation benefits for all unit employees from the date of their unlaw- ful discharge until the date we offer them full and proper reinstatement. SDS DISTRIBUTING CORPORATION 327