Phillips Brothers, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phillips Brothers, Inc. and Teamsters, Chauffeurs and Helpers Union Local No. 43, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-5945 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on July 23, 1980, Teamsters, Chauffeurs and Helpers Union Local No. 43, affili- ated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Phillips Brothers, Inc., herein called Respon- dent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 30, issued a complaint on August 22, 1980, 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) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. Re- spondent failed to file an answer to the complaint. With respect to the unfair labor practices, the complaint alleges in substance that on or about May 30, 1980, Respondent ceased business at its Kenosha, Wisconsin, location and laid off its sales people without notice to the Union and without having afforded the Union the opportunity to ne- gotiate and bargain over this action. On September 25, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent failed to filed a response the to Notice To Show Cause and, ac- cordingly, the allegations of 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: 254 NLRB No. 86 The respondent shall, within 10 days from the service of the complaint, file an answer there- to. 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 Respondent specifically states that unless an answer to the complaint is filed by Respondent within 10 days from the service thereof "all of the allegations contained in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, on September 10, 1980, in a letter sent by certified mail, Respondent was advised by counsel for the General Counsel that the Board had not yet received an answer to the complaint; and that counsel for the General Counsel would file a motion for summary judgment if an answer was not filed by the close of business on September 19, 1980. No answer was received by September 25, 1980, the date of the Motion for Summary Judgment. Nor did Respondent reply to the Notice To Show Cause. Accordingly, under the rule set forth above, no good cause having been shown for Respondent's failure to file an answer, the allegations of the com- plaint are deemed admitted and are found to be true. We therefore 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 RESPONDENT Respondent, a Wisconsin corporation with its office and principal place of business in Kenosha, Wisconsin, has been engaged in the wholesale sale of tobacco and related products. During the calen- dar year ending December 31, 1979, Respondent purchased and received goods valued in excess of $50,000 directly from points located outside the State of Wisconsin. We find, on the basis of the foregoing, that Re- spondent 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 718 PHILLIPS BROTHERS INC. that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE I.ABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs and Helpers Union Local No. 43, 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. III. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of Respondent consti- tute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All employees of Respondent located at 9037 Sheridan Road, Kenosha, Wisconsin, but ex- cluding gift house employees, office clerical and professional employees, guards and super- visors as defined in the Act. The Union has been the collective-bargaining representative of the employees in the above-de- scribed unit at all times material herein and at least since June 1, 1978, when it and Respondent execut- ed a collective-bargaining agreement effective through May 31, 1981, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. Shutdown of Kenosha Facility and Permanent Layoff of Sales Employees Without Prior Notice to the Union On or about May 30, 1980, Respondent ceased doing business at its Kenosha, Wisconsin, facility and permanently laid off its sales employees. Re- spondent engaged in said conduct without prior notice to the Union and without affording the Union an opportunity to negotiate and bargain with it regarding the effects of such conduct. Ac- cordingly, we find that Respondent has since May 30, 1980, and at all times thereafter, by said con- duct, failed and refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such failure and refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act by closing its Kenosha, Wisconsin, facility, and by permanently laying off its sales employees without prior notice to the Union and without bargaining with the Union con- cerning the effects of such action, we shall for the purpose of effectuating the policies of the Act order that it cease and desist from such unfair labor practices and that it take certain affirmative action including payment to the sales employees of wages, with interest,' at the rate prevailing when last in Respondent's employ from 5 days after the issu- ance of our Order until the occurrence of the earli- est of the following conditions: (1) the date Re- spondent bargains to agreement with the Union on the subjects pertaining to the effect of discontinua- tion of its operations and layoff of sales employees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Decision or to commmence negotiations within 5 days of Respondent's notice of its desire to bar- gain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event should the sum paid to any of these employ- ees exceed the amount each would have earned as wages from May 30, 1980, the date on which Re- spondent terminated its Kenosha, Wisconsin, oper- ations, to the time each sales employee secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs sooner; provided, however, that in no event should this sum be less than these sales employees would have earned for a 2-week period at the rate of their normal wages when last in Re- spondent's employ. CONCI.USIONS OF LAW 1. Phillips Brothers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs and Helpers Union Local No. 43, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All employees of Respondent, located at 9037 Sheridan Road, Kenosha, Wisconsin, but excluding gift house employees, office clerical and profession- al employees, guards and supervisors as defined in 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 June 1, 1978, the above-named labor or- ganization has been and now is the recognized ex- clusive 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. i Sc 1 J WmIxJlworth Comnpany, 9 NIIRB 28 (1950),1 anld Florida Sleel (orporation, 231 N.R 651 (1477) Se arso [is Pltnhirng & eatrng Co., 138 N.RB 716( 1962) 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By ceasing to do business at its Kenosha, Wis- consin, facility and permanently laying off its sales employees without prior notice to the Union and without affording the Union an opportunity to ne- gotiate and bargain thereon, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By said failure and refusal to bargain as to the shutdown and layoff, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the ex- ercise 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. 7. The said unfair labor practices are unfair labor practices affecting commerce within the meaning 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, Phillips Brothers, Inc., Kenosha, Wisconsin, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Team- sters, Chauffeurs and Helpers Union Local No. 43, affiliated with the International Brotherhood of Teamsters, Chauffeurs and Helpers of America, with respect to the effects of closing down Respon- dent's Kenosha, Wisconsin, facility, and laying off the sales employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 in good faith with the aforesaid labor organization with respect to the ef- fects of closing down the Kenosha, Wisconsin, fa- cility and laying off the sales employees and, if an understanding is reached, embody it in a signed agreement. (b) Pay the laid-off employees their normal wages in the manner and for the period set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, 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 Kenosha, Wisconsin, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative, 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Mail an exact copy of the attached notice marked "Appendix," to Teamsters, Chauffeurs and Helpers Union Local No. 43, affilated with the In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and to all sales employees who were laid off as a result of the closing of the Kenosha, Wisconsin, terminal. Copies of said notice, on forms provided for the Regional Director for Region 30, after being duly signed by Respondent's authorized representative, shall be mailed immediately upon receipt thereof, as directed. (f) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event hat 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National .abor 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 with Teamsters, Chauffeurs and Helpers Union Local No. 43, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, with re- spect to the effects of closing our Kenosha, Wisconsin, facility, and laying off our sales employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. 720 PHILLIPS BROTHERS, INC. WE WILL, upon request, bargain collectively with the above-named Union with respect to the effects of closing our Kenosha, Wisconsin, facility, and laying off our sales employees. WE WILL pay the sales employees who were employed at the Kenosha, Wisconsin, facility their normal wages for a period required by a Decision and Order of the National Labor Re- lations Board. PHILLIPS BROTHERS, INC. 721