City Cartage Company

266 NLRB No. 80 MJH D--9770 Adrian, MI UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD CITY CARTAGE COMPANY and TRUCK DRIVERS AND HELPERS UNION LOCAL NO. 164, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA Case 7--CA--21179 DECISION AND ORDER Upon a charge filed on September 16, 1982, by Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on City Cartage Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on November 3, 1982, 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. 266 NLRB No. 80 D--9770 With respect to the unfair labor practices, the complaint alleges in substance that Respondent violated Section 8 (a) (1) and (5) of the Act, as amended, by repudiating the collectivebargaining agreement with the Union by refusing to deduct dues from employees in the bargaining unit, described below, pursuant to the terms of a dues-checkoff provision of the collectivebargaining agreement and employees' duly executed checkoff authorizations. The complaint further alleges that Respondent indicated it would no longer be bound by the collectivebargaining agreement and refused to apply the terms and conditions thereof, and, finally, that Respondent unilaterally abrogated the terms of the grievance procedure of the collectivebargaining agreement by refusing to participate in grievance meetings, and arbitration hearings pursuant to the collectivebargaining agreement, all in violation of Section 8 (a) (1) and (5) of the Act. Pursuant to said complaint and notice of hearing Respondent was required to file an answer to the complaint within 10 days from service thereof, and pursuant to Section 102.20 and 102.21 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, Respondent's time to file an answer to the complaint expired on November 16, 1982. 1 On November 24, the Regional Director for Region 7 directed a letter to Respondent serving notice that unless it filed an answer to the complaint in this proceeding by December 6, counsel for the General Counsel 1 All dates herein, except as otherwise noted, refer to 1982. D--9770 would file a Motion for Default Judgment. By letter received December 6, Respondent, by it counsel, informed the Regional Director that Respondent was no longer in business, had no assets, and would be dissolved. Respondent submitted no evidence to document this claim. There was no affidavit of service on the parties with the letter and no other indication that such service had been made. On December 22, 1982, no answer to the complaint having been filed, counsel for the General Counsel filed with the Board in Washington, D.C., ''Motions for Transfer and Continuance of Case Before the Board and for Default Judgment, with attachments. Subsequently, on January 5, 1983, the Board issued an order transferring the proceedings to the Board and Notice To Show Cause why the General Counsel's motions should not be granted. 2 To date, Respondent has not responded to the Board's 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 threemember panel. Upon the entire record in this proceeding, the Board makes the following: 2 The Board's show cause notice directed Respondent to file its response in writing with the Board in Washington, D.C., on or before January 19, 1983, with affidavits of service on the parties to this proceeding as to why the General Counsel's motions should not be granted. D--9770 Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regulations, 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 specifically states that, unless an answer to the complaint is filed 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 may be SO found by the Board. As of the date of filing of the Motion for Default Judgment, no answer had been filed by Respondent. As outlined above, the General Counsel, according to the uncontroverted assertions of his Motion for Default Judgment, notified Respondent in a letter dated November 24, 1982, that its answer was overdue and that he intended to move for a default judgment based on the allegations of the complaint. Respondent also failed to file any response to the Board's show cause notice. Insofar as Respondent's December 6 letter purports to be an answer to the complaint, it fails in its purpose in that it lacks the required specificity, was not timely filed, and was not properly served on the parties to this proceeding. As Respondent has not filed a timely and proper answer and has not established D--9770 ''good cause'' under Section 102.20 of the Board's Rules and Regulations why the allegations of the complaint should not be deemed admitted, we find as true all such allegations and grant the Motion for Default Judgment. 3 On the basis of the entire record, the Board makes the following: Findings of Fact I. The Business of Respondent Respondent, at all times material herein, a Michigan corporation, with its principal office and place of business at 1235 E. Beecher Street, Adrian, Michigan, is engaged in the interstate and intrastate transportation of machinery and commodities. During the year ending December 31, 1981, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations within the State of Michigan, described above, derived gross revenues in excess of $250,000 from the transportation of machinery and commodities, of which in excess of $50,000 was derived from services performed for enterprises in the State of Michigan which themselves, in the course and conduct of their business operations, annually purchase and cause to be transported and delivered to their Michigan facilities directly from points located outside the State of Michigan, goods and materials valued in excess of $50,000. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in 3 See Frank E. Sims Construction Co., Inc., 242 NLRB 607 (1979). D--9770 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 Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning Section 2(5) of the Act. III. The Unfair Labor Practices A. The Collective-Bargaining Agreement 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All truck drivers, dockmen, and riggers employed by the Respondent at its Adrian place of business, but excluding guards and supervisors as defined in the Act. 2. The bargaining history At all times since 1970, by virtue of successive collectivebargaining agreements between Respondent and the Union, and continuing to date, 4 the Union has been the exclusive representative for the purposes of collective bargaining of the employees in the unit described above in section III, A, paragraph 1, by virtue of Section 9 (a) of the Act, has been and is now the exclusive representative of all employees in said unit 4 The most recent collective-bargaining agreement, by mutual agreement of the parties, was extended on a year-to-year basis and is set to expire March 31, 1983. D--9770 for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. B. Repudiation of the Collective-Bargaining Agreement At all times material herein, Donald Miller has occupied the position of president and consultant, and has been and is now a supervisor of Respondent, within the meaning of Section 2 (11) of the Act, and its agent. 1. Since in or about May 1982, and continuing to date, Respondent, by and through its agent, Donald Miller, has unilaterally without notice to or bargaining with the Union, failed and refused to deduct dues from the employees in the bargaining unit described above in section III, A, paraqraph 1, and to transmit said dues to the Union pursuant to the terms of a dues-checkoff provision contained in the collective-bargaining agreement described above, and pursuant to duly executed employees' checkoff authorizations. 2. On June 3, 1982, Respondent, by and through its agent, Donald Miller, repudiated the collective-bargaining agreement described above by sending a telegram to the Union indicating it no longer considered itself bound to said collective-bargaining agreement, and refusing to apply the terms and conditions as contained in the agreement. 3. Since on or about June 10, 1982, Respondent, by its agent, Donald Miller, unilaterally and without giving notice to the Union and providing meaningful opportunity to bargain, abrogated the terms of the grievance procedure by refusing to 9770 participate in grievance meetings and arbitration hearing pursuant to the terms of the grievance procedure provisions contained in the collective-bargaining agreement described above. 4. By the acts described in section III, B, paragraphs 1, 2, and 3, above, and by each of said acts, Respondent did refuse to bargain collectively and is refusing to bargain collectively with the representative of its employees, and thereby violated Section 8 (d) of the Act with regard to its obligation not to modify or terminate contract provisions without agreement of the Union. 5. By the acts described in section III, B, paragraphs 1 through 4, and by each of said acts, Respondent did refuse to bargain collectively and is refusing to bargain collectively with the representative of its employees, and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and Section 2 (6) and (7) of the Act. 6. By the acts described in section III, B, paragraphs 1 through 4, and by each of said acts, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, its employees in the exercise of the rights quaranteed in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the Act. D--9770 IV. The Effects 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 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 meaning of Section 8(a) (5) and (1) of the Act, we shall order that it take certain affirmative action designed to effectuate the policies of the Act. We shall order Respondent, upon request, to bargain in good faith with the Union as the exclusive bargaining representative of its employees within the unit described above in section III, A, paragraph 1. We shall further order Respondent to comply with the terms and conditions of the above-described collective-bargaining agreement and make employees and the Union whole for any losses incurred as a result of Respondent's failure to abide by the terms of the collective-bargaining agreement, with interest as described in Florida Steel Corporation, 231 NLRB 651 (1977) 5 5 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). D--9770 Conclusions of Law 1. City Cartage Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truckdrivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All truck drivers, dockmen, and riggers employed by Respondent at its Adrian place of business, but excluding 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. Donald Miller has occupied the position of president and consultant and has been and is now a supervisor of Respondent within the meaning of Section 2(11) of the Act, and its agent. 5. At all times since 1970, by virtue of successive collective-bargaining agreements between Respondent and the Union, and continuing to date, the Union has been and is now the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargining within the meaning of Section 9(a) of the Act. 6. By unilaterally and without notice to or bargaining with the Union failing and refusing to deduct dues for the employees in the appropriate bargaining unit or to transmit said dues to the Union pursuant to the terms of a dues-checkoff provision contained in the collective-bargaining agreement and pursuant to duly executed employees' checkoff authorizations, since in or D--9770 about May 1982, and continuing to date, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and Section 8(d) of the Act. 7. By repudiating the collective-bargaining agreement on June 3, 1982, by and through its agent, Donald Miller, by sending a-telegram to the Union indicating it no longer considered itself bound to said collective-bargaining agreement, and refusing to apply the terms and conditions as contained in the agreement, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and Section 8 (d) of the Act. 8. By unilaterally and without giving notice to the Union or providing meaningful opportunity to bargain, abrogating the terms of the grievance procedure by refusing to participate in grievance meetings and arbitration hearings pursuant to the provisions of the collective-bargaining agreement, since on or about June 10, 1982, by and through its agent, Donald Miller, Respondent has engaged in and is enqaqing in unfair labor practices within the meaning of Section 8 (a) (5) and Section 8 (d) of the Act. 9. By the acts described above in paragraphs 6 through 8, and by each of said acts, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, 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 affecting commerce within the meaning of Section 8 (a) (1) of the Act. D--9770 10. The acts of Respondent described above constitute 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 Relations Board hereby orders that the Respondent, City Cartage Company, Adrian, Michigan, 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 Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in the following appropriate unit: All truck drivers, dockmen, and riggers employed by Respondent at its Adrian place of business but excluding quards and supervisors as defined in the Act. (b) Failing and refusing to deduct dues for the employees in the bargaining unit described above and to transmit said dues to the Union pursuant to the collective-bargaining agreement and employees' duly executed checkoff authorizations. (c) Repudiating the collective-barqaining agreement with the Union, or refusing to apply the terms and conditions contained in that agreement. (d) Abrogating the terms of the grievance procedure by refusing to participate in grievance meetings and arbitration hearings pursuant to the terms of the grievance procedure provisions contained in the collective-bargaining agreement. D--9770 (e) In any like or related manner interfering with, restraining, 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) Bargain in good faith with Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the appropriate unit described above. (b) Honor and abide by the terms and conditions of employment provided for in the collective-bargaining agreement with Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (c) Upon request by the Union remit to it all duesdeduction payments which would have been remitted but for Respondent's failure to honor and abide by the collectivebargaining agreement, with interest thereon to be computed in the manner set forth in the section herein entitled ' 'The Remedy. 1 (d) Make whole the employees in the above unit for any losses they may have incurred as a result of the Respondent's refusal to abide by the terms of the collective-bargaining agreement, in the manner set forth in the section herein entitled 'The Remedy 1 (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, D--9770 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 each of its locations where unit employees work copies of the attached notice marked ''Appendix. 16 Copies of said notice, on forms provided by the Regional Director for Region 7, 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other material. 6 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. D--9770 (g) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. March 7, 1983 John C. Miller, Chairman Howard Jenkins, Jr. , Member Robert P. Hunter, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--9770 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 Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in the following appropriate unit: All truck drivers, dockmen, and riggers employed by us at our Adrian place of business but excluding quards and supervisors as defined in the Act. WE WILL NOT fail and refuse to deduct dues for employees in the bargaining unit described above and to transmit said dues to the Union pursuant to the collective-barqaining agreement and the employees' duly executed checkoff authorizations. WE WILL NOT repudiate the collective-bargaining agreement with the Union by refusing to apply the terms and conditions contained in that agreement. WE WILL NOT abrogate the terms of the grievance procedure by refusing to participate in grievance meetings and arbitration hearings pursuant to the terms of the grievance procedure provisions contained in the collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights quaranteed them by Section 7 of the Act. WE WILL bargain in good faith with Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our employees in the appropriate unit described above. WE WILL honor and abide by the terms and conditions of employment provided for in the collective-bargaining agreement with Truck Drivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. D--9770 WE WILL upon request by said Union remit to it all dues-deduction payments which would have been remitted but for our failure to honor and abide by the collective-bargaining agreement, with interest. WE WILL make whole our employees, in the above unit, for any losses they may have incurred as a result of our refusal to abide by the terms of the collectivebarqaining agreement, with interest. CITY CARTAGE COMPANY (Employer) Dated By (Representative) (Title) 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 compliance with its provisions may be directed to the Board's Office, Patrick V. McNamara Federal Building, Room 300, 477 Michigan Avenue, Detroit, Michigan 48226, Telephone 313--226-- 3244.