Evans Express Co.

EVANS EXPRESS COMPANY Evans Express Company, Inc. and Intercontinental Systems, Inc. and Local Union No. 617, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 22-CA-6897 September 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on April 2, 1976, and amended on May 17, 1976, by Local Union No. 617, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Evans Express Company, Inc. and Intercontinental Systems, Inc., herein collectively called the Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 22, issued a complaint and notice of hearing on May 20, 1976, against Respondent, 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 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. On August 9, 1976, counsel for the General 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 July 5, 1977, 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. On July 21, 1977, a response to the Notice To Show Cause was filed. 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. Respondent's refusal to accept service of the complaint does not invalidate service otherwise properly made and dtes not constitute good 232 NLRB No. 100 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 state that, unless an answer to the complaint is filed by Respondent within 10 days of service thereof, "all of the allegations contained in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." According to the uncontroverted allegations of the Motion for Summary Judgment, Respondent has failed and refused to accept service of the complaint which was properly served on Respondent by registered mail.' Furthermore, and as noted above, Respondent has failed to file an answer to the complaint. According to the response to the Notice To Show Cause, Evans Express Company, Inc. was adjudicat- ed a bankrupt by the United States District Court for the Southern District of New York in June 1976. The response to the Notice To Show Cause was submit- ted by an attorney who represents the trustee in bankruptcy. The response claims that the trustee in bankruptcy was not made a party to any action of the Board, and that he has not received a copy of the complaint or the Motion for Summary Judgment. Furthermore, the response contends that any claims against the bankrupt company must be filed with the bankruptcy court, and, as the time for filing such claims has long since expired, any person with a claim must obtain an order from the court allowing the filing of a late claim. As indicated above, Respondent refused to accept service of the complaint and notice of hearing. While not alleged as a reason why an answer to the complaint was not filed, we would not, as noted above, find this to be sufficient reason for failure to file an answer. Furthermore, the response to the Notice To Show Cause does not deny the commis- sion of any unfair labor practices by Respondent. and, therefore, the allegations of the complaint stand uncontroverted. The response claiming bankruptcy does not explain why Respondent failed to contact cause for failure to file an answer to the complaint. Robert Brandis andJohn Brandsr, a Partnership d b la Brandis Aireraft, 195 NLRB 711 (1972) 655 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Office of the Board concerning the items properly served on it and the necessity for action on its part. We find that the response to the Notice To Show Cause does not constitute good cause for Respondent's failure to file a timely answer within the meaning of Section 102.20 of the Board's Rules and Regulations. 2 Therefore, in accord with the rule set forth above, the allegations of the complaint are deemed to be admitted and are so found by the Board, and the General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Evans Express Company, Inc. and Intercontinental Systems, Inc., herein collectively referred to as the Respondent, are corporations duly organized under and existing by virtue of the laws of the State of New York. Evans and Intercontinental maintain their principal offices and places of business in Schenecta- dy, New York, and in New York, New York, respectively, where they are engaged in the business of providing common carrier trucking and related services. To this end, Respondent maintains trucking terminals in New York and New Jersey, including a terminal in Hoboken, New Jersey. Evans and Intercontinental are, and at all times material herein have been, affiliated business enter- prises with common ownership and officers, integrat- ed operations, and common labor relations policies, and therefore constitute a single integrated business enterprise. They shall be treated as a single employer for the purposes of the Act. Respondent has, during the past 12 months, which period is representative of its operations at all times material herein, provided common carrier trucking services valued in excess of $50,000, of which services valued in excess of $50,000 were provided and performed outside the State of New York. 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 ORGANIZATION INVOLVED Local Union No. 617, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and 2 In this regard, see The Monroe Furniture Cornmpany, Inc., 231 NLRB 143 (1977). Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The 8(a)(5) and (I) Violations The following employees of the Respondent constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act: All employees employed at the Respondent's Hoboken, New Jersey, terminal, including drivers and warehousemen, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. On or before 1973, a majority of the employees in the above-described unit designated the Union as their representative for the purposes of collective bargaining with Respondent. At all times material herein and continuing to date, Respondent and the Union have been parties to a collective-bargaining agreement governing wages, hours, and other terms and conditions of employment of the bargaining unit employees. Since on or about December 1, 1975, and continuing to date, Respondent has failed and refused, and continues to fail and refuse, to bargain in good faith with the Union as the exclusive bargaining representative of the unit employees. Additionally, on or about December 5, 1975, Respondent unilaterally changed the wages, hours, and other terms and conditions of employment of unit employees by unilaterally transferring the work that had been performed by unit employees at the Hoboken, New Jersey, terminal to other of its places of business without notice to and without bargaining about such transfer with the Union. Accordingly, we find that, by the aforesaid con- duct, Respondent has (1) since on or about Decem- ber 5, 1975, unilaterally changed the terms and conditions of unit employees without bargaining with the Union; and (2) since on or about December I, 1975, refused to bargain with the Union as the exclusive representative of the employees in the appropriate bargaining unit. By such actions, we conclude that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. B. The 8(a)(3) and (1) Violations On or about December 5, 1975, Respondent discharged the following employees employed at its 656 EVANS EXPRESS COMPANY Hoboken, New Jersey, terminal because said em- ployees are members of or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or for other mutual aid and protection: Donald Banks Robert Black Garry Boomhower Carmen DeSomma Thomas Elliassen Louis Ihle Keith Manalio Thomas Marnin Arthur Sconfienza Elias Watkins Walter Wilgocki At all times since on or about December 5, 1975, Respondent has failed and refused, and continues to fail and refuse, to reinstate the above-named employ- ees to their former positions or, if such positions no longer exist, to substantially equivalent positions. Accordingly, we find that, by the aforesaid con- duct, Respondent has discriminated in regard to the terms and conditions of employment of its employ- ees, thereby discouraging membership in the Union, and that by such conduct Respondent has engaged 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 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), and (1) of the Act, we shall order that Respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Such affirmative action shall include that Respon- dent, upon request, meet and bargain with the Union as the exclusive representative of its employees, and that it shall cease and desist from unilaterally transferring unit work or otherwise making unilateral changes in its employees' terms and conditions of employment without consulting with the Union. Additionally, we shall order Respondent to restore the status quo ante by reinstituting the work of its :' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1%962). Hoboken drivers and warehousemen and by offering the terminated bargaining unit employees reinstate- ment to the positions which they held prior to their unlawful termination, or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. We shall also order Respondent to make the unlawfully discharged employees whole for any loss of earnings they may have suffered because of the discrimination against them, to be computed in accordance with the formula approved in F W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 Having found that the unfair labor practices committed by Respondent were of a character which goes to the very heart of the Act, we shall also order 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. Evans Express Company, Inc. and Interconti- nental Systems, Inc., constitute a single integrated operation which is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 617, a/w 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 employees employed by Respondent at its Hoboken, New Jersey, terminal, including drivers and warehousemen, but excluding office clerical employees, professional employees, guards, 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. At all times material herein, the Union has been the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By the acts described in section III, A, above, Respondent has refused to bargain collectively in good faith with the above-named labor organization as the exclusive bargaining representative of all the employees in the appropriate bargaining unit de- scribed above, and thereby has engaged in unfair labor practices in violation of Section 8(a)(5) and ( ) of the Act. 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By the acts described in Section III, B, above, Respondent has discriminated in regard to hire and tenure of employment of its employees, thereby discouraging membership in or activities on behalf of a labor organization, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(3) 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 the Respondent, Evans Express Company, Inc. and Intercontinental Systems, Inc., Hoboken, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local Union No. 617, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of Respondent's employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment. (b) Unilaterally transferring unit work or otherwise unilaterally changing the wages, hours, and other terms and conditions of employment of unit employ- ees without notice to and bargaining with their duly designated collective-bargaining representative. The appropriate unit is: All employees employed at the Respondent's Hoboken, New Jersey, terminal, including drivers and warehousemen, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (c) Discharging employees or otherwise discrimi- nating against them with respect to their tenure of employment or any term or condition of employment because of their membership in, support of, or activities on behalf of the above-named labor organization, or any other labor organization. (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 designed to effectuate the policies of the Act: (a) Reinstitute and restore the work previously performed by its Hoboken, New Jersey, drivers and warehousemen represented by Local Union No. 617, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. (b) Bargain collectively with Local Union No. 617, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of Respondent's employees in the appropriate unit described above with respect to wages, hours, and other terms and conditions of employment. (c) Offer to reinstate Donald Banks, Robert Black, Garry Boomhower Carmen DeSomma, Thomas Elliassen, Louis Ihle, Keith Manalio, Thomas Mar- nin, Arthur Sconfienza, Elias Watkins, and Walter Wilgocki to their former 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 losses they may have suffered by reason of the discrimina- tion against them as set forth in the section of this Decision 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 terminal in Hoboken, New Jersey, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 22, 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, defaced, or covered by any other material. (f) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 4 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 with Local Union No. 617, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- 658 EVANS EXPRESS COMPANY sentative of all employees employed by the Employer at its Hoboken, New Jersey, terminal, including drivers and warehousemen, but exclud- ing office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. WE WILL NOT unilaterally transfer unit work or otherwise unilaterally change the wages, hours, and other terms and conditions of employment for the employees in the appropriate unit de- scribed above without notice to and bargaining with the exclusive collective-bargaining represen- tative of our employees. WE WILL NOT discharge employees or otherwise discriminate against them with respect to their tenure of employment or any term or condition of employment because of their membership in, support of, or activities on behalf of the above- named labor organization or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights as guaranteed to them in Section 7 of the Act. WE WILL reinstitute and restore the work previously performed by our Hoboken, New Jersey, drivers and warehousemen in the appro- priate unit represented by Local Union No. 617, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL bargain collectively with Local Union No. 617, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, as the exclusive bargaining representative of our employees in the appropri- ate unit with respect to wages, hours, and other terms and conditions of employment. WE WILL offer to Donald Banks, Robert Black, Garry Boomhower, Carmen DeSomma, Thomas Elliassen, Louis Ihle, Keith Manalio, Thomas Marnin, Arthur Sconfienza, Elias Watkins, and Walter Wilgocki reinstatement to their former jobs, or, if such jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses they may have suffered by reason of our discrimination against them, plus interest. EVANS EXPRESS COMPANY, INC. AND INTERCONTINENTAL SYSTEMS, INC. 659