Nestor Brothers, Inc.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nestor Brothers, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 693 , affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 3-CA-6137 January 20, 1976 DECISION AND ORDER By CHAIRMAN MURPHY-AND MEMBERS FANNING AND JENKINS Upon a charge filed on July 3, 1975, by Chauf- feurs, Teamsters and Helpers Local Union No. 693, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Nestor Brothers, Inc., herein called the Respon- dent, the Acting General Counsel of the National Labor Relations Board, hereinafter the General Counsel, by the Regional Director for Region 3, is- sued a complaint on August 22, 1975, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5), (3), and (1) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the alleged 8(a)(5), (3), and (1) un- fair labor practices, the complaint alleges, in sub- stance, (1) that Respondent has refused to bargain collectively with the incumbent Union, the duly des- ignated exclusive and contractual bargaining repre- sentative of all Respondent's employees in an appro- priate unit at Vestal, New York, one of its several terminals (a) by bargaining directly with unit em- ployees, (b) by refusing to bargain with the Union about the potential sale and discontinuance of its Vestal terminal operations and the effects thereof on unit employees, and (c) by unilaterally discontinuing the use of its union employees and contracting out their work to independent contractors; and (2) that Respondent discriminatorily terminated and refused to reemploy employees at its Vestal terminal. On October 10, 1975, the General Counsel, by counsel, filed directly with the Board a Motion for Summary Judgment based upon Respondent's fail- ure to file an answer as required by Section 102.20 of the Board's Rules and Regulations, Series 8, as amended. Subsequently, on October 23, 1975, 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 did not file a re- sponse 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 $, 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 ad- mitted 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 duly 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 allega- tions in the Complaint shall be deemed to be admit- ted to be true and may be so found by the Board." The complaint issued on August 22, 1975. On August 27, 1975, Respondent filed a letter with the Regional Director stating, inter alia, that Respondent on Au- gust 12, 1975, had made an assignment for the bene- fit of creditors and that Stanley R. Rudin, Esq., was appointed assignee. On September 16, 1975, 25 days after the issuance of the complaint, counsel for the General Counsel sua sponte extended the time for an- swering, notifying Respondent that failure to file by September 22, 1975, would result in the filing of a Motion for Summary Judgment. On September 24, 1975, Respondent filed with the Regional Director a request for an extension of time to file an answer until October 6, 1975. The Regional Director on Sep- tember 25, 1975, granted the requested extension. 222 NLRB No. 46 NESTOR BROTHERS, INC. According to the Motion for Summary Judgment, counsel for the General Counsel, on October 6, 1975, spoke by phone with Respondent's counsel and the assignee at which time he was informed that no an- swer to the complaint was forthcoming from either Respondent or the assignee because of the assign- ment for the benefit of -creditors.' As noted, the Respondent did not at any time file an answer to the complaint, despite the two exten- sions granted by the Regional Director; nor did it file a response to the Notice To Show Cause and, there- fore, the allegations of the General Counsel's Motion for - Summary Judgment stand uncontroverted. 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. FINDINGS OF FACT I . THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation with its principal place of business and a terminal at Ves- tal Parkway West, Vestal, New York, where it has engaged in the business of providing and performing interstate transportation of commodities as a com- mon carrier. It also operates other terminals in New York and New Jersey. During the past year, Respon- dent, in the course and conduct of its business opera- tions, performed services valued in excess of $50,000 of which services valued in excess of $50,000 were performed in States other than the State of New York where Respondent is located. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. It. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers Local Union No. 693, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 1 A copy of the September 16, 1975, letter extending the time to answer was sent to Stanley R. Rudm, Esq, the assignee On October 6, 1975, the assignee was served with a copy of the complaint and notice of hearing. III. UNFAIR LABOR PRACTICES A. The 8(a)(5) and (1) Violations 1. The unit 467 The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All truckdrivers, over-the-road drivers, dock- men and warehousemen employed by Respon- dent at its Vestal, New York, terminal, exclud- ing office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The representative status of the Union Since 1949 the Union has been the duly designated representative for the purpose of collective bargain- ing in the above-described unit and Respondent and the Union have been parties to successive collective- bargaining agreements of which the most recent be- came effective on July 3, 1973, and by its terms ex- pires on March 31, 1976. 3. The requests and refusal to bargain Commencing on or about May 1, 1975, and on various dates thereafter starting on May 12, 1975, and continuing to date, the Union has requested that the Respondent bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. However, Re- spondent has refused, and continues to refuse, to rec- ognize and bargain with the Union (1) by bargaining directly with unit employees concerning rates of pay, hours of employment, and other terms and condi- tions of employment, including changing the em- ployees' status- to independent contractors; (2) by re- fusing to bargain collectively with the Union with regard to the potential sale and discontinuance of operations at its Vestal, New York, terminal and the effect thereof on employees; and (3) by unilaterally, and without notice to the Union, discontinuing the use of union employees and contracting their work to independent contractors. Accordingly, we find that the Respondent has, by the conduct described above, since May 12, 1975, and at all times thereafter, refused to bargain collec- tively with the Union as the exclusive representative of the employees in, the appropriate unit, and that, by such refusal, Respondent has engaged in and is en- gaging-in unfair labor practices within the meaning 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8(a)(5) and (1) of the Act. B. The 8(a)(3) and (1) Violations From May 27 to June 4, 1975, and from June 27 to July 11, 1975, and on July 14, 1975, Respondent (1) terminated the employees of the above-described unit and refused and continues to refuse to employ these employees because they were union members, because they sought to bargain collectively through the Union, and because they engaged in other con- certed activity; and (2) unilaterally terminated union employees and contracted their work to independent contractors. Accordingly, we find that, by the Respondent's aforesaid conduct, it discriminated in regard to the hire and tenure and terms and conditions of employ- ment of its employees, thereby discouraging mem- bership in a labor organization, and that by such conduct the Respondent engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 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 opera- tions described in section I, 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 Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5), (3), and (1) of the Act, we shall order that it cease and desist therefrom and take cer tain affirmative action designed to effectuate the pol- icies of the Act. We shall order the Respondent to cease and desist from bargaining directly with unit employees, from refusing to discuss the potential sale and discontin- uance of its Vestal, New York, operations and the effect thereof on unit employees and from unilateral- ly terminating its union employees and contracting out their work. Having found that Respondent uni- laterally may have discontinued its operations at its Vestal, New York, terminal and that Respondent dis- criminatorily terminated the employment of employ- ees in the above-described unit, and at all times since has failed and refused to reinstate them to their for- mer or substantially equivalent positions, we shall, in accord with established precedent, provide the fol- lowing alternative remedies:2 1. We shall order that Respondent resume its dis- continued Vestal, New York, terminal operations and offer the terminated unit employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and that Respondent make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. Backpay shall be based on the earnings which they would normally have received from the date of their termination to the date of Respondent's offer of reinstatement, less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 2. Alternatively, in the event that Respondent does not resume its discontinued operations, we shall order that it make whole the aforesaid discrimina- torily terminated employees for any loss of pay suf- fered by reason of the discrimination against them by paying to each of them a sum of money equal to the amount each would normally have earned as wages from the date of his termination until such time as each secures, or did secure, substantially equivalent employment with other employers,' computed in ac- cordance with the Board's usual formula set forth in F. W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra. In addition to requiring Respondent to post copies of the notice, we shall order it to mail copies of the notice to its employees at their last known address and to the Union. Since the unfair labor practices committed by Re- spondent were of a character which go to the very heart of the Act, we shall also order Respondent to cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act. We also expressly reserve the right to modify the backpay and reinstatement provisions of this Deci- sion and Order, if made necessary by a change in conditions in the future, and to make such supple- ments thereto as may hereafter become necessary in order to define or clarify their application to a specif- ic set of circumstances not now apparent. The Board, upon the basis of the foregoing facts and the entire record, makes the following: 2 Bashore Meat Products, Inc., 218 NLRB No 68 (1975), Eclectic, Inc, 209 NLRB 270 (1974). 3 Bonnie Lass Knitting Mills, Inc, 126 NLRB 1396 (1960) NESTOR BROTHERS, INC. 469 CONCLUSIONS OF LAW 1. Nestor Brothers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union No. 693, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All truckdrivers, over-the-road drivers, dock- men and warehousemen employed by Respondent at its Vestal, New York, terminal, excluding office cleri- cal employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 8(b) of the Act. 4. Since 1949, the above-named labor organiza- tion has been the exclusive representative of all em- ployees in the aforesaid appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9(a) of the Act. 5. By the acts described in section III, above, Re- spondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5), (3), and (1) of the Act. 6. 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 Re- lations Board hereby orders that the Respondent, Nestor Brothers, Inc., Vestal, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively by bargaining directly with employees concerning rates of pay, hours of employment, and other terms and condi- tions of employment, including changing the em- ployees' status to independent contractors, by refus- ing to bargain with regard to the potential sale and discontinuance of operations at its Vestal, New York, terminal and the effect thereof on unit employees, and by unilaterally discontinuing the use of its union employees and contracting their work to indepen- dent contractors without prior bargaining with Chauffeurs, Teamsters and Helpers Local Union No. 693, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union selected as the exclu- sive bargaining representative of the employees in the following unit: All truckdrivers, over-the-road drivers, dock- men and warehousemen employed by Respon- dent at its Vestal, New York, terminal, exclud- ing office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) Discouraging its employees' membership in, or activities on behalf of the above-named Union, or any other labor organization, by discriminatorily ter- minating employees because they were union mem- bers, and/or sought to bargain collectively through the above-named Union and/or engaged in other concerted activity, or by discriminating in any other manner in regard to hiring or tenure or any other term or condition of employment. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their Section 7 rights. 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 any decision to sell or discontinue opera- tions, or any portion thereof, and the effect thereof on unit employees, and with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, em- body such understanding in a signed agreement. (b) Either (1) reopen its discontinued Vestal, New York, terminal operations and offer to unit employ- ees who were terminated as a result of the discontin- uance immediate and full reinstatement to their for- mer jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their discriminatory terminations, or, alter- natively, (2) if the discontinued operations are not resumed, make the terminated employees whole for any loss of pay suffered by reason of the discrimina- tion against them in the manner'set forth in the sec- tion above entitled "The Remedy." (c) 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. (d) Post at its terminal in Vestal, New York, cop- 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ies of the attached notice marked "Appendix." 4 Cop- ies of said notice, on forms provided by the Regional Director for Region 3, 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 no- tices to employees are customarily posted. Respon- dent shall mail copies of the notice to employees at their last known addresses and to the Union. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the Board reserves to itself the right to modify the backpay and reinstate- ment provisions of this Decision and Order, if made necessary by a change of conditions in the future, and to make such supplements thereto as may here- after become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. 4In 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 by bargaining directly with our employees concern- ing rates of pay, hours of employment, and other terms and conditions of employment, in- cluding changing our employees' status to inde- pendent contractors, by refusing to bargain with regard to the potential sale and discontinuance of operations at our Vestal, New York, terminal and the effect thereof on unit employees, and by unilaterally discontinuing the use of our union employees and contracting their work to inde- pendent contractors without prior bargaining with Chauffeurs, Teamsters and Helpers Local Union No. 693, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other union selected as the exclusive bargaining repre- sentative of our employees. The bargaining unit is: All truckdrivers, over-the-road drivers, dockmen, and warehousemen employed by Respondent at its Vestal, New York, terminal, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL NOT discourage our employees' mem- bership in, or activities on behalf of, the above- named Union, or any other labor organization, by discriminatorily terminating employees be- cause they were union members, and/or sought to bargain collectively through the Union and/ or engaged in other concerted activity, or by dis- criminating in any other manner in regard to hiring or tenure or any other term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL, upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the above-de- scribed unit with respect to any decision to sell or discontinue operations, or any portion there- of, and the effect thereof on unit employees, and with respect to 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 WILL, either reopen our discontinued Ves- tal, New York, terminal operations and offer to unit employees who were terminated as a result of the discontinuance immediate and full rein- statement to their former jobs or, if such jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings suffered by reason of their discriminatory terminations, or alternative- ly, if the discontinued operations are not re- sumed, make the terminated employees whole for any loss of pay suffered by reason of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named Union, or any other labor organiza- tion, except to the extent that this right may be af- fected by an agreement in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. NESTOR BROTHERS, INC.