Blue & White Bus Co. of Watts, Inc.

BLUE & WHITE BUS COMPANY 973 Blue & White Bus Company of Watts, Inc. and United Transportation Union. Cases 21-CA-10101 and 21-CA-10222 August 18, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon charges and an amended charge filed on June 23 and August 13, 1971, and March 22, 1972, respectively by United Transportation Union, herein called the Charging Party, and duly served on Blue & White Bus Company of Watts, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a consolidated complaint on April 21, 1972, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5), (3), (2), and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the consolidated complaint alleges in substance that Respondent violated Section 8(a)(5), (2), and (1) of the Act: (1) on or about April 15, 1971, by refusing to bargain in good faith with the Charging Party and its Local 1563, herein collectively called the Unions, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and (2) on or about June 21, 1971, and on numerous occasions thereafter, by encouraging the employees to abandon their support of and/or membership in the Unions and to join the Common- wealth Guild, herein called Guild. The complaint also alleges that: (1) because of the Respondent's unfair labor practice conduct, the employees on July 17, 1971, concertedly ceased work and struck; (2) that the Respondent violated Section 8(a)(3), (2), and (1) of the Act by failing and refusing to accept the unconditional offer of the employees to return to their former or substantially equivalent positions; (3) that Respondent, by failing and refusing to reinstate the employees because they had joined or assisted the Unions, had refused to abandon their support of and/or membership in the Unions, had refused to join the Guild, or had engaged in other concerted activities for the purpose of collective bargaining or mutual aid or protection and/or participated in the strike, has committed an unfair labor practice within the meaning of the Act. The Respondent did not file an answer to the consolidated complaint. On May 22, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based upon Respondent's failure to file an answer as required by Section 102.20 of the Board's Rules and Regulations, Series 8, as amended. Subsequently, on May 26, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent 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 National Labor Relations Board has delegated its authority 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 complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations 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 admitted 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 the Respondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations of the com- plaint shall be deemed to be admitted to be true and may be so found by the Board." As noted, the Respondent did not at any time file an answer to the complaint, nor did it file a response to the Notice To Show Cause. No good cause to the contrary having been shown, in accordance with the rules set forth above, the allegations in the complaint are deemed to be admitted and are found to be true.' We shall, accordingly, grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: i Wilson and Sons, 193 NLRB No. 51, and cases cited therein 198 NLRB No. 134 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation, maintains its office and terminal at 210 East 121st Street, Los Angeles, California, and is, and has been at all times material herein, engaged in providing public bus transportation services in the Los Angeles, Califor- nia, area. Respondent annually, in the normal course and conduct of its business operations, derived gross revenues in excess of $250,000 and also purchased and received goods, products, supplies, equipment, and services, and received finances valued in excess of $2,500 directly from suppliers located outside the State, or directly from suppliers located within the State who, received those goods, products, supplies, equipment, services, and finances directly from outside the State. We find, on the basis of the foregoing, that Respondent 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 herein. II. THE LABOR ORGANIZATIONS INVOLVED United Transportaiton Union and its Local 1563 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The 8(a)(5) Violation 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing within the meaning of Section 9(b) of the Act: All bus drivers, mechanics, and servicemen employed by Respondent at its terminal located at 210 East 121st Street, Los Angeles, California; excluding all office clerical employees, dispatch- ers, guards, watchmen, and supervisors. 2. The certification On May 9, 1968, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 21, designated Brotherhood of Railroad Trainmen , AFL-CIO, CLC, herein called the Trainmen , as their representative for the purpose of collective bargaining with the Respondent and on May 17, 1968, the Regional Director certified the Trainmen as the exclusive collective -bargaining representative of the employees in said unit. Between May and July 1968, the Unions became the successor to the Trainmen and continued to be such exclusive representative within the meaning of Section 9(a) of the Act. The Unions were parties to successive collective-bargaining agreements with Respondent, the most recent bargaining agreement having a term of July 1, 1968, to June 30, 1971. 3. The request to bargain and Respondent's refusal Commencing on or about April 15, 1971, and at all times thereafter, the Unions have requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Commencing on or about April 15, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse to bargain in good faith with the Unions and has engaged in, and continues to engage in, overall surface and bad-faith bargaining, including but not limited to, failing to give binding authority to any member of its negotiating team, engaging in dilatory tactics, failing to meet and bargain at reasonable times and places, failure to discuss paycheck and insurance issues , repeatedly suggesting to unit em- ployees that they abandon the Unions and join the Guild, and failing to make either contract proposals or counterproposals. Accordingly, we find that the Respondent has, since April 15, 1971, and at all times thereafter, refused to bargain collectively and in good faith with the Unions as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and that by such conduct, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. B. The 8(a)(3) Violation On or about July 17, 1971, Respondent's employ- ees in the appropriate unit ceased work concertedly and went on strike. The cessation of work and the strike were caused and prolonged by Respondent's unfair labor practice conduct. On or about August 9, 1971, and at all times thereafter, Respondent has failed and refused to accept the unfair labor practice strikers' uncondition- al offer to return to their former or substantially equivalent positions of employment and failed and refused to reinstate them because they had joined or BLUE & WHITE BUS COMPANY 975 assisted the Unions, or had refused to abandon their support of and/or membership in the Unions, or either of them, or had refused to join the Guild, or had engaged in other concerted activities for the purpose of collective bargaining or mutual aid or protection and/or participated in the July 17, 1971, strike. Accordingly, we find that Respondent, by the conduct described above, discriminated in regard to the terms and conditions of employment of its employees, thereby discouraging membership in a labor organization and that by such conduct Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. C. The 8(a)(2) Violation On June 21, 1971, and on numerous occasions thereafter, Respondent attempted to persuade em- ployees in the appropriate unit to abandon their support of and/or membership in the Unions and to join the Guild. By the aforesaid conduct, Respondent has rendered, and is rendering, unlawful aid and assistance and support to the Guild. Accordingly, we find that by such conduct Respon- dent interfered with the formation and administra- tion of a labor organization and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) 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 opera- tions described in section I, above, have a close, intimate, 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 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), (3), (2), and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectua- the policies of the Act. To remedy the Respondent's violation of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached , embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817 ; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). Having found that the Respondent discriminatorily violated Section 8(a)(3) and (1) of the Act by failing and refusing on or about August 9, 1971, to accept the unfair labor practice strikers ' unconditional offer to return to work and by failing and refusing to reinstate them to their former positions , we shall order the Respondent to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, if necessary, by discharg- ing other employees who may have replaced them, and make them whole for any loss of earnings they may have suffered by payment to them of sums of money equal to the full amounts they normally would have earned as wages from the dates of their unconditional offer to return to work of August 9, 1971, to the date of the Respondent's reinstatement offer, less net earnings , in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Further, having found that Respondent also violated Section 8(a)(2) and (1) of the Act by attempting to persuade the employees to abandon their support of and/or membership in the Union and to join the Guild, we shall order that Respondent cease and desist from continuing this conduct. Since the unfair labor practices committed by the Respondent were of a character which go to the very heart of the Act, we shall order the Respondent to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. The Board, upon the basis of the foregoing facts and the entire record , makes the following: CONCLUSIONS OF LAW 1. Blue & White Bus Company of Watts, Inc., is 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Transportation Union and its Local 1563 are labor organizations within the meaning of Section 2(5) of the Act. 3. All bus drivers, mechanics, and servicemen employed by Respondent at its terminal located at 210 East 121st Street, Los Angeles, California; excluding all office clerical employees, dispatchers, guards, watchmen, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On May 9, 1968, the Trainmen was the certified and exclusive representative of all employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. Between May and July 1968, the Unions became the successor to the Trainmen and continued to be such exclusive representative within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 15, 1972, and at all times thereafter, to bargain collectively with the Unions as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the acts described in section III, A, B, and C, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to 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)(5), (3), (2), and (1) of the Act. 7. 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 Relations Board hereby orders that Respondent, Blue & White Bus Company of Watts, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with United Transporta- tion Union and its Local 1563 as the exclusive bargaining representative of its employees in the following appropriate unit: All bus drivers, mechanics, and servicemen employed by Respondent at its terminal located at 210 East 121st Street, Los Angeles, California; excluding all office clerical employees, dispatch- ers, guards, watchmen, and supervisors. (b) Discouraging membership in, or activities on behalf of, United Transportation Union or its Local 1563, or any other labor organization, by failing or refusing to reinstate any employees or otherwise discriminating in regard to hire or tenure of employ- ment or any terms or conditions of employment of any of its employees because of their union activities. (c) Assisting the Commonwealth Guild by urging unit employees to abandon their support of and/or membership in United Transportation Union or its Local 1563. (d) 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, 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, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Offer to the unfair labor practice strikers, whose August 9, 1971, unconditional offer to return to work had been rejected by the Respondent, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, if necessary by discharging other employees who may have replaced them. (c) Make whole the unfair labor practice strikers in the manner set forth in the section entitled "The Remedy," for any loss of pay each may have suffered by reason of the Respondent's discrimination against him. (d) Notify immediately any unfair labor practice striker, if presently serving in the Armed Forces of the United States, of the right to full reinstatement upon application, after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (e) 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 necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Los Angeles, California, office and BLUE & WHITE BUS COMPANY 977 terminal, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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." 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 bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Transportation Union and its Local 1563 as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT discourage membership in, or activities on behalf of, United Transportation Union or its Local 1563, or any other labor organization, by failing or refusing to reinstate any employees or otherwise discriminating in regard to hire or tenure of employment or any terms or conditions of employment of any of the employees because of their union activities. WE WILL NOT assist the Commonwealth Guild by urging unit employees to abandon their support of and/or membership in the United Transportation Union or its Local 1563. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Unions, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect 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 agree- ment. The bargaining unit is: All bus drivers, mechanics, and servicemen employed by Respondent at its terminal located at 210 East 121st Street, Los Ange- les, California; excluding all office clerical employees, dispatchers, guards, watchmen, and supervisors. WE WILL offer to the unfair labor practice strikers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, if necessary by discharging other employees who may have replaced them. WE WILL make whole the unfair labor practice strikers for any loss of pay each may have suffered as a result of the discrimination practiced against him. All employees are free to become, remain, or to refrain from becoming or remaining, members of any labor organization. BLUE & WHITE BUS COMPANY OF WATTS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately any unfair labor practice striker, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200.