Tolmich, Inc.

TOLMICH, INC. Tolmich, Inc. d/b/a Orange County Metal Processing and General Truck Drivers, Office, Food and Ware- house Local 952, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 21 CA- 17520 June 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENE I.O AND TRUlSDAI.E Upon a charge and amended charge filed on Feb- ruary 7 and 26, 1979, respectively, by General Truck Drivers, Office, Food and Warehouse Local 952, In- ternational Brotherhood of Teamsters. Chauffeurs. Warehousemen & Helpers of America, herein called the Union, and duly served on Tolmich, Inc., d/b/a Orange County Metal Processing, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on March 21, 1979, against Respondent alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hear- ing before an administrative law judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On April 16, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subsequently, on April 20, 1979, the Board issued an Order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent failed to file a response to Notice To Show Cause. and therefore the allegations in the Motion for Sum- mary Judgment stand uncontroverted. 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. The complaint and notice of hearing served on Re- spondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations of the complaint shall be deemed to be admitted to he true and may he so found by the Board." Further, according to the un- controverted allegations of the Motion for Summary Judgment, the Regional Director for Region 21, pur- suant to Section 102.22 of the Board's Rules and Regulations, warned Respondent in writing that un- less an answer was filed by April 9. 1979, a motion would be made before the Board for entry of an order based on the undenied allegations of the complaint. Respondent has failed to file an answer to the com- plaint or to respond to the Notice o Show Cause. Thereafter. on April 16, 1979, no answer having been filed, counsel tir the General Counsel filed the instant Motion or Summar, Judgment. Accordingly. under the rule set forth above, no good cause having been shown tlr the faillure to htile a timely answer, the allegations of the complaint are deemed admitted and are found to be true and, ac- cordingly. we grant the General Counsel's Motion for Summar\ Judgment. On the basis of the entire record, the Board makes the following: FINDINGS ()F FA( I I. IHE BUSINESS OF RESI()NI)EN1 Respondent, a California corporation, is, and at all times material herein has been, engaged in the busi- ness of processing metals: it operates a facility located at 1711 Kimberly Avenue, Fullerton, California. Re- spondent annually provides services valued in excess of $50,000 to customers located within the State of California, each of which, in turn, annually sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of California. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, an 243 NLRB No. 27 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 herein. II. TIHE LABOR ORGANIZATION INVOLVEI) General Truck Drivers Local 235. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called Local 235, until January 1, 1979; and Sales Drivers. Food Pro- cessors, Warehousemen & Helpers. Local 952, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Local 952, until January 1, 1979, were labor organiza- tions within the meaning of Section 2(5) of the Act. On or about January 1, 1979, Local 235 and Local 952 merged, creating General Truck Drivers, Office. Food and Warehouse Local 952, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, which is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. IHE UNFAIR I.ABOR PRA('CIICES A. The Unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All crane operators, helpers, rackers, truckdriv- ers, and maintenance men; excluding plant guards, watchmen, office and/or clerical work- ers, executives and supervisors as defined in the Act. At all times material herein, since at least 1972, the Union or its predecessor Local 235 has been the col- lective-bargaining representative of the employees in the unit within the meaning of Section 9(a) of the Act. Since at least 1972 and continuing to date Respon- dent has been party to successive collective-bargain- ing agreements, the most recent of which is effective from April 15, 1977, until April 14, 1979, with the Union and its predecessor Local 235 as the exclusive representative for purpose of collective bargaining of Respondent's employees in the appropriate unit. B. The Request To Bargain and Respondent s Refusal On or about July 7, 1978, and continuing to date, the Union and its predecessor Local 235 has re- quested and continues to request that Respondent re- mit to it moneys which Respondent had deducted from employees' paychecks pursuant to their dues- checkoff authorization. On or about January 26, 1979, and continuing to date, the Union has re- quested and continues to request that Respondent furnish it with relevant information necessary to en- force the terms and conditions of the collective-bar- gaining agreement described herein above including, but not limited to, the names and addresses of new employees and their hire dates and vacation, holiday, and sick leave pay information. Since at least August 7, 1978, and continuing to date, Respondent has failed and refused to bargain with the Union and its predecessor Local 235 as the exclusive representative for the purposes of collective bargaining of the employees in the appropriate unit by repudiating and failing to abide by, and by con- tinuing to repudiate and failing to abide by, the terms and conditions of employment as provided for in the collective-bargaining agreement described here- inabove including, but not limited to, the failure to remit uniformly required union dues, initiation fees. and/or assessments to the Union and its predecessor Local 235 when said moneys are deducted from the pay of its employees pursuant to duly executed au- thorizations. Since at least January 26. 1979, and continuing to date, Respondent has failed and refused to bargain with the Union as the exclusive representative of the employees in the appropriate unit for the purposes of collective bargaining by failing and refusing to pro- vide the information described herein above. Accordingly, we find that Respondent has, as noted above, since on or about August 7, 1978, and on or about January 26, 1979, refused to bargain collec- tively in good faith and is refusing to bargain collec- tively in good faith with the Union and its prede- cessor as the exclusive representative of the employees in the appropriate unit. By such action Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( I ) of the Act. IV. [iE EFFECT OF THE UNFAIR L.ABOR PRA(II('.S UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations described in section I, above, have a close, intimate. and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. 'riHE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- 202 TOIMICH, INC ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the poli- cies of the Act. The Board. upon the basis of the foregoing facts and the entire record, makes the following: CoN('LUSIONS OF LAW' 1. Tolmich, Inc.. d/b/a Orange County Metal Pro- cessing is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers Local 235, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called Local 235. until January 1. 1979; and Sales Drivers. Food Pro- cessors, Warehousemen & Helpers, Local 952, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Local 952, until January 1, 1979, were labor organiza- tions within the meaning of Section 2(5) of the Act. General Truck Drivers, Office. Food and Warehouse Local 952, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union. is a labor organization within the meaning of Section 2(5) of the Act. 3. All crane operators, helpers, rackers, truckdriv- ers, and maintenance men at Respondent's facility lo- cated at 1711 Kimberly Avenue, Fullerton, Califor- nia; but excluding plant guards, watchmen, office and/or clerical workers, executives, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since at least 1972, the Union or its predecessor has been the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 7, 1978, and at all times thereafter to bargain with the Union or its predecessor Local 235 as the exclusive representative for the purposes of collective bargaining of the em- ployees in the appropriate unit, by repudiating and failing to abide by and by continuing to repudiate and failing to abide by the terms and conditions of employment as provided for in the collective-bargain- ing agreement described herein above including, but not limited to, the failure to remit uniformly required union dues, initiation fees, and/or assessments to the Union and its predecessor Local 235 when said mon- eys are deducted from the pay of its employees pursu- ant to duly executed authorizations, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By refusing on or about January 26, 1979, and at all times thereafter to bargain with the Union as the exclusive representative of the employees in the appropriate unit for purposes of collective bargaining by failing and refusing to provide relevant informa- tion necessary to enforce the terms and conditions of the existing collective-bargaining agreement de- scribed herein above including, but not limited to, the names and addresses of new employees and their hire dates and information as to vacation, holiday, and sick leave pay, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusal to bargain Respondent has interfered with, restrained, and coerced and is in- terfering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent. Tol- mich, Inc., d/b/a Orange County Metal Processing, Fullerton, California. its officers, agents. successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pas. wages, hours. and other terms and con- ditions of employment with General Truck Drivers. Office. Food and Warehouse Local 952. International Brotherhood of Teamsters. Chauffeurs. Warehouse- men & Helpers of America and its predecessor Gen- eral Truck Drivers Local 235. International Brother- hood of Teamsters. Chauffeurs. Warehousemen & Helpers of America in the following appropriate unit: All crane operations, helpers. rackers. truckdriv- ers. and maintenance men; excluding plant guards, watchmen, office and/or clerical work- ers. executives and supervisors as defined in the Act. (b) Failing and refusing to honor and abide by the terms and conditions provided for in the collective- bargaining agreement described in section A, above, including, but not limited to, failure to remit uni- formly required union dues, initiation fees, and/or as- sessments, when said moneys are deducted from the weekly pay of its employees pursuant to duly ex- ecuted authorizations to General Truck Drivers, Of- 203 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fice, Food and Warehouse Local 952, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America and its predecessor Gen- eral Truck Drivers Local 235, International Brother- hood of Teamsters, Chauffeurs. Warehousemen & Helpers of America as the exclusive bargaining repre- sentative of' its employees in the appropriate unit. (c) Failing and refusing to provide relevant infor- mation necessary to enforce the terms and conditions of the existing collective-bargaining agreement de- scribed hereinabove including, but not limited to, the names and addresses of new employees and their dates of hire and information regarding vacation, holiday, and sick leave pay benefits. (d) In any like or related manner interfering with, restraining, 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) Honor and abide by the terms and conditions of employment provided for in the collective-bargain- ing agreement with General Truck Drivers, Office, Food and Warehouse Local 952, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and its predecessor General Truck Drivers Local 235, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Help- ers of America. (b) Remit to the Union or its predecessor Local 235 all dues, initiation fees, and/or assessments which would have been remitted but for Respondent's fail- ure to honor and abide by the collective-bargaining agreement, with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).' (c) Provide relevant information necessary to en- force the terms and conditions of the existing collec- tive-bargaining agreement described hereinabove in- cluding, but not limited to, the names and addresses of new employees and their hire dates and vacation, holiday, and sick leave pay information. (d) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. (e) Post at its facility located at 1711 Kimberly Avenue, Fullerton. California, copies of the attached notice marked "Appendix." 2 Copies of said notice, on I See, generally. Isis Plumbing & Healing Co.. 138 NLRB 716 (1962). 2 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." forms provided by the Regional Director for Region 21. after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered., defaced, or covered by any other material. (I') Notify the Regional Director for Region 21. in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NO7ICE TO EMPI.OYI S POSI eD BY ORDER OF 1111 NATIONAL LABOR RELAII()NS BOARD An Agency of' the United States Government W li WIl.. NOT refuse to honor and abide by the terms and conditions of employment provided in the collective-bargaining agreement with Gen- eral Truck Drivers, Office, Food and Warehouse Local 952, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and its prede- cessor, General Truck Drivers Local 235, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the ex- clusive representative of the employees in the bargaining unit described below. WE WILL NOI in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL. remit to the Union and its prede- cessor, General Truck Drivers Local 235, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, all dues, initiation fees, and/or assessments, with interest, which would have been remitted but for our fail- ure to honor and abide by the collective-bargain- ing agreement. The bargaining unit is: All crane operators, helpers, rackers, truckdriv- ers and maintenance men at our facilities located at 1711 Kimberly Avenue. Fullerton, California; excluding plant guards. watchmen, office and/or clerical workers, executives and supervisors as defined in the Act. WE WILL provide relevant information neces- sary to enforce the terms and conditions of the existing collective-bargaining agreement herein, including, but not limited to. names and ad- 204 TOLMICH, INC. dresses of new employees and their hire dates, and vacations, holiday, and sick leave pay infor- mation. WE WILL, upon request, bargain with the above-named Union. as the exclusive representa- tive of all the employees in the bargaining unit described above, with respect to rates of pay. wages, hours, and other terms and conditions of employment. TOLMI(H IN('. D/B/A ORANGE Co()NTY MErAL PROC'ESSIN(i 205