A.A.A. Associates

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peter Pasch and Al Cannelli , Copartners d/b/a A.A.A. Associates, E.O.E. Trucking and Starlight Trucking and Local 816, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Local 875, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 29-CA-3021 July 31, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on September 7, 1972, by Local 816, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Peter Pasch and Al Cannelli, Copartners d/b/a A.A.A. Associates, E. O.E. Trucking and Starlight Trucking, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a complaint on November 30, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(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 alleges, in substance, and (1) on or about Au- gust 11 and 15, 1972, the Respondent has refused, and continues to date to refuse, to bargain collectively with the Union designated and selected by a majority of its employees in the appropriate unit as the exclu- sive bargaining representative, although the Union has requested, and is requesting, it to do so; (2) on various dates in August 1972, the Respondent interro- gated its employees concerning their union member- ship, activities, and sympathy, threatened its employees with discharge, with closing of its business, and with other reprisals if they became or remained union members or assisted the Union; (3) on various dates in August 1972 the Respondent urged and solic- ited its employees to join Local 875, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Local 875; (4) on various dates in August 1972, the Respondent suspended employees Moses G. Coker and Pedro J. Rosa for 2 days and employee Martin A. Dabney for 1 day and subsequently discharged the aforesaid em- ployees as well as employees David E. Diaz, Roose- velt Frank, and Jose F. Ero and failed and refused to reinstate them because they joined and assisted the Union and engaged in other concerted activity for mutual aid and protection and because they refused to join or assist Local 875; and (5) the Respondent engaged in the aforesaid conduct in order to under- mine the Union and destroy its majority status. The Respondent did not file an answer to the complaint. On March 12, 1973, counsel for the General Coun- sel filed directly with the Board a Motion for Summa- ry Judgment based on the 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 March 13, 1973, 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 grant- ed. Respondent failed to file a response to 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 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 allega- tion in the complaint not specifically denied or explained in an answer filed, unless the respon- dent 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 states that unless an answer to the complaint is filed by the Respondent within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted by it to be true and may be so found by the Board." Further, according to the Motion for Summary Judgment, on January 29, 1973, counsel for the General Counsel mailed to Respondent by regular mail a letter notify- ing it of its failure to file an answer and requesting that counsel for the General Counsel be contacted. 205 NLRB No. 14 A.A.A. ASSOCIATES On February 1, 1973, counsel for the General Counsel served on the Respondent at three locations, by both registered and regular mail, notification of the failure to file an answer and of the intention to move for summary judgment, unless an answer were promptly filed. Two of the registered notices were returned marked "refused" and one marked "unclaimed." Two of the notices served by regular mail were also re- turned marked "refused." 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 allega- tions of the complaint are deemed to be admitted and are found to be true. We shall, accordingly, 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 THE RESPONDENT The Respondent is a copartnership composed of Peter Pasch and Al Cannelli, copartners doing busi- ness under the trade names and styles of A.A.A. Asso- ciates, E.O.E. Trucking, and Starlight Trucking. Until on or about August 25, 1972, the Respondent main- tained its principal office and place of business at 361 Troutman Street, Kings County, New York, New York, and thereafter at presently unknown locations in New York, New York, where it has engaged in providing and performing intrastate and interstate trucking services and related services. During the past year, in the course of its business operations, the Re- spondent derived gross revenues in excess of $500,000 from its intrastate and interstate trucking services, of which in excess of $50,000 was derived from the trans- portation of foods and materials in interstate com- merce directly to States of the United States other than the State in which is located. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED Local 816, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and Local 875, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, are labor organizations within the meaning of Section 2(5) of the Act. III UNFAIR LABOR PRACTICES A. The 8(a)(5) Violations 1. The unit 125 The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All drivers, drivers' helpers, and warehouse employees of Respondent, exclusive of office clerical employees and all supervisors as defined in Section 2(11) of the Act. 2. The representative status of the Union On or about August 8, 1972, a majority of the em- ployees of Respondent in said unit designated and selected the Union as their representative for the pur- pose of collective bargaining with the Respondent and the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. 3. The requests to bargain and Respondent's refusal Commencing on or about August 11 and 15, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about August 11 and 15, 1972, and continuing at all times thereafter to date, the Respon- dent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive represen- tative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since August 11, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es within the meaning of Section 8(a)(5) and (1) of the Act. B. The Independent 8(a)(1) Violations On various dates in August 1972, the Respondent, by its partners and agents, (1) at its place of business and offices of Local 875, interrogated its employees concerning their membership in, activities on behalf of, and sympathy in and for the Union; and (2) threat- ened its employees with discharge, with the closing of 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its business, and with other reprisals, if they became or remained members of the Union and if they gave any assistance or support to it. Accordingly, we find that, by the aforesaid con- duct, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under Section 7 of the Act and that, by such conduct, the Respondent thereby engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. C. The 8(a)(2) Violations On various dates in August 1972, the Respondent, by its partners and agents, at its place of business and the offices of Local 875, urged and solicited its em- ployees to join Local 875. Accordingly, we find that, by such conduct, the Respondent has interfered with the formation and administration of a labor organization and has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. D. The 8(a)(3) Violations On August 14 and 15, 1972, the Respondent sus- pended employees Moses G. Coker and Pedro J. Rosa for 2 days, on August 15, 1972, suspended employee Martin A. Dabney for 1 day, and on August 25, 1972, discharged the aforesaid three employees, as well as employees David E. Diaz, Roosevelt Frank, and Jose F. Ero and refused to reinstate them or offer them reinstatement, to their former or substantially equiva- lent positions of employment because said employees joined and assisted the Union and engaged in other concerted activity for the purpose of collective bar- gaining and mutual aid and protection and because they refused to join or assist Local 875. Accordingly, we find that, by the Respondent's aforesaid conduct, it discriminated in regard to the terms and conditions of employment of its employees, thereby discouraging membership in a labor organiza- tion, and that by such conduct the Respondent en- gaged in and is 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 PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, 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 THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 effectuate the policies of the Act. To remedy the Respondent's violations of Section 8(a)(5) and (1) of the Act, we shall order that it cease therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an under- standing is reached, embody such understanding in a signed agreement. Having also found that the Respondent discrimina- torily suspended employees Moses G. Coker, Pedro J. Rosa, and Martin A. Dabney and thereafter discrimi- natorily discharged them and David E. Diaz, Roose- velt Frank, and Jose J. Ero and has failed and refused to reinstate them or offer them reinstatement to their former or substantially equivalent positions of em- ployment, we shall order that the Respondent 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 senior- ity and other rights and privileges, and to make them whole for any loss of earnings they may have suffered by payment to them of sums of money equal to the amount they normally would have earned as wages on the days of their suspension, as well as from the date of their respective discharges to the date of the Respondent's offer of reinstatement, less net earnings, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing and Heating Co., 138 NLRB 716. As the unfair labor practices committed by the Re- spondent 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. Peter Pasch and Al Cannelli, Copartners d/b/a A.A.A. Associates, E.O.E. Trucking and Starlight Trucking, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. A.A.A. ASSOCIATES 2. Local 816, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and Local 875 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. All drivers, drivers' helpers, and warehouse em- ployees of Respondent, exclusive of office clerical em- ployees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since on or about August 8, 1972, the above- named labor organization has been and now is the exclusive representative of all employees in the afore- said 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 11, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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 set forth in section III, A, B, C, and D, Respondent has interfered with , restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guar- anteed to them in Section 7 of the Act , and thereby has engaged in and is engaging in unfair labor practic- es 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 Rela- tions Board hereby orders that Respondent, Peter Pasch and Al Cannelli, Copartners d/b/a A.A.A. As- sociates, E.O.E. Trucking and Starlight Trucking, 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 condi- tions of employment , with Local 816, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All drivers, drivers' helpers, and warehouse employees of Respondent, exclusive of office 127 clerical employees and all supervisors as defined in Section 2(11) of the Act. (b) Interrogating its employees concerning their membership in, activities on behalf of, and sympathy in and for Local 816, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (c) Threatening its employees with discharge, with closing of its business, and with other reprisals if they became or remained members of , or assisted or sup- ported, Local 816, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (d) Assisting Local 875, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, by urging and soliciting unit employ- ees to join Local 875, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (e) Discouraging membership in, or activities on behalf of, Local 816, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by its employees by discriminatorily suspending, discharg- ing, and failing or refusing to reinstate, or by other- wise discriminating in regard to the hire and tenure of employment of, any of its employees because they joined or assisted Local 816, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or engaged in other concerted activity for the purpose of collective bargaining and mutual aid and protec- tion. (f) In any other manner interfering with, re- straining, 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 Moses G. Coker, Pedro J. Rosa, Martin A. Dabney, David E. Diaz, Roosevelt Frank, and Jose J. Ero immediate and full reinstatement to their for- mer jobs or, if those jobs no longer exist , to substan- tially equivalent positions without prejudice to their seniority and other rights and privileges. (c) Make whole Moses G. Coker, Pedro J. Rosa, Martin A. Dabney, David E. Diaz, Roosevelt Frank, and Jose J. Ero for any loss of pay each of them may have suffered by reason of the discrimination against 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him by payment to each of them of a sum of money equal to the amount of money each normally would have earned as wages on the days he was suspended, and from the date of his discharge to the date of the Respondent's offer of reinstatement, in the manner set forth in the section herein entitled "The Remedy." (d) 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. (e) Post at its New York, New York, locations co- pies of the attached notice marked "Appendix." I Co- pies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 an other material. (f) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 1 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Local 816, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative 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 agreement. The bargaining unit is: All drivers, drivers' helpers, and warehouse employees of Respondent, exclusive of office clerical employees and all supervisors as de- fined in Section 2(11) of the Act. WE WILL NOT interrogate our employees con- cerning their membership in, activities on behalf of, and sympathy in and for Local 816, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten our employees with dis- charge, with closing of its business, and with other reprisals if they became or remained mem- bers of, or assisted or supported, Local 816, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT assist Local 875, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, by urging and soliciting unit employees to join Local 875, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. WE WILL NOT discourage membership in, or ac- tivities on behalf of, Local 816, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by our employees by discri- minatorily suspending, discharging, and failing or refusing to reinstate, or by otherwise discrimi- nating in regard to the hire and tenure of employ- ment of, any of our employees because they joined or assisted Local 816, International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, or engaged in other concerted ac- tivity for the purpose of collective bargaining and mutual aid and protection. 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 offer Moses F. Coker, Pedro J. Rosa, Martin A. Dabney, David E. Diaz, Roosevelt Frank, and Jose J. Ero immediate and full rein- statement to their formerjobs or, if thosejobs no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed and make them whole for any loss of pay suffered as A.A.A. ASSOCIATES 129 a result of the discrimination practiced against them. PETER PASCH AND AL CAN- NELLI , COPARTNERS D/B/A A.A.A. ASSOCIATES, E.O.E. TRUCKING AND STARLIGHT TRUCKING (Employer) 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, 16 Court Street, Fourth Floor, Brook- lyn, New York 11241, Telephone 212-596-3535. Dated By (Representative) (Title)