Cleveland Freight Lines, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cleveland Freight Lines, Inc. and Truck Drivers Union, Local No. 407, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Cleveland Freight Lines, Inc. and Automobile Trans- porters, New trailer and Armored Car Drivers, Mechanics and Garagemen Union, Local No. 964. Cases 8-CA-13887-1, 8-CA-13887-2, and 8-CA-13887-4 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND ZIMMERMAN Upon charges filed in Cases 8-CA-13887-1 and 8-CA-13887-2 on June 2, 1980,1 as amended on July 22, by Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called Local No. 407, and in Case 8-CA-13887-4, on June 6, as amended on July 22, by Automobile Transporters, New Trailer and Ar- mored Car Drivers, Mechanics and Garagemen Union, Local No.964, herein called Local No. 964, and duly served on Cleveland Freight Lines, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 8, issued an Order con- solidating cases, consolidated complaint and notice of consolidated hearing on July 25, against Respon- dent, 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 charges, amended charges, order consolidating cases, consolidated complaint and notice of consoli- dated hearing before an administrative law judge were duly served on the parties to this proceeding. Respondent has failed to file an answer to the com- plaint. On October 3, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 17, the Board issued an Order transferring the pro- ceeding 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 response to the Notice To Show Cause and therefore the allegations of the Motion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- I All dates hereinafter are 1980 unless otherwise indicated. 254 NLRB No. 38 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 provides: 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 Order consolidating cases, consolidated complaint and notice of consolidated hearing served on Respondent specifically stated that unless an answer to the complaint was filed within 10 days of service thereof "all of the allegations in the Consolidated Complaint shall be deemed to be ad- mitted to be true and may be so found by the Board." According to the uncontroverted allega- tions of the Motion for Summary Judgment, coun- sel for the General Counsel on August 18, by certi- fied mail, notified Respondent that it had failed to file an answer to the consolidated complaint as re- quired by Section 102.20 and Section 102.21 of the Board's Rules and Regulations, Series 8, as amend- ed, and that unless Respondent filed an answer to the consolidated complaint by close of business on August 26, counsel for the General Counsel would file a Motion for Summary Judgment. Counsel for the General Counsel, on August 22, was informed telephonically by Respondent's counsel that Re- spondent did not intend to file an answer. No answer had been filed as of the date of filing of the Motion for Summary Judgment, and as noted, Re- spondent has not filed any response to the Notice To Show Cause. No good cause for failure to file an answer having been shown, in accordance with the rule as set forth above, the allegations of the consolidated complaint are deemed to be admitted. Accordingly, we find as true all the allegations of the consolidat- ed complaint and grant the Motion for Summary Judgment. 324 CLEVELAND FREIGHT LINES. INC. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent Cleveland Freight Lines, Inc., is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Ohio with its sole facility lo- cated at 17877 St. Clair Avenue, Cleveland, Ohio, where it is engaged in the interstate transportation of goods. During the calendar year ending Decem- ber 31, 1979, in the course and conduct of its busi- ness operations, Respondent received revenues in excess $50,000 from the interstate transportation of goods. 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 that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Local No. 407 and Local No. 964 are, and have been at all times material herein, labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Violation On or about December 15, Respondent, through its agent Carl Munn, threatened an employee with plant closure if the employees remained members of Local No. 407. Accordingly, we find that, by the aforesaid con- duct, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and that, by such conduct, Respondent thereby en- gaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(l) of the Act. B. The 8(a)(5) Violations The unit The following employees of Respondent consti- tute appropriate units for purposes of collective bargaining within the meaning of Section 9(b) of the Act: (1) All truck drivers, warehousemen and loaders employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, but excluding all office clerical employ- ees and professional employees, guards and su- pervisors as defined in the Act, and all other employees. (2) All office clerical employees employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, excluding all truck drivers, dockmen and all professional employees, guards and supervisors as defined in the Act. (3) All working foremen, journeymen me- chanics, journeymen trailermen, apprentices and garagemen employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, but excluding all office cleri- cal employees and, professional employees, guards and supervisors as defined in the Act, and all other employees. Local No. 407 has been recognized by Respon- dent as, and has been, the collective-bargaining representative of the employees in the unit de- scribed above in paragraph (1) for approximately 20 years, and at all times material herein. The cur- rent collective-bargaining agreement was effective from April 1, 1979, until March 31, 1982. Local No. 407 has been recognized by Respondent as, and has been, the collective-bargaining representa- tive of the employees in the unit described in para- graph (2) since October 1977, and has entered into a collective-bargaining agreement with Local No. 407 concerning the employees in that unit. At all times material herein, Local No. 407 was and con- tinues to be such exclusive representative for those units within the meaning of Section 9(a) of the Act. Local No. 964 has been recognized by, and has bargained collectively with, Respondent for ap- proximately 20 years and has been at all times ma- terial to date the exclusive representative for pur- poses of collective bargaining of the employees in the appropriate collective-bargaining unit described above in paragraph (3), and Local No. 964 contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. The current collective-bargaining agreement is effective from June 1, 1979, until May 31, 1982. Effective May 29, Respondent ceased operations of its business, thereby eliminating all job positions of employees in the appropriate bargaining units described above. Respondent engaged in the acts and conduct de- scribed in the paragraph immediately above with- out prior notice to Local No. 407 or Local No. 964, and without having afforded either Local No. 407 or Local No. 964 an opportunity to negotiate and bargain as the exclusive representative of Re- spondent's employees with respect to the effects of such acts and conduct. 325 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that, by the acts set forth above, Respondent has refused to bargain collec- tively, and is refusing to bargain collectively, with the representative of its employees, and has thereby engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)(5) 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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)(l) and (5) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectu- ate the policies of the Act. Having found that Respondent has refused to bargain about its decision to cease operation of its business and the effects thereof, we shall order that Respondent be required, upon request, to bargain collectively with the Unions concerning that deci- sion and the effects upon the employees of the clo- sure with respect to the unit or units each repre- sents. Further, as a result of Respondent's refusal to discuss with its employees' collective-bargaining representatives its decision to close the facility where they were employed and the effects of that decision, all of the former Cleveland Freight Lines, Inc., employees were denied the services of their collective-bargaining representative at the time when those representatives might have been able- had they been afforded the opportunity-to negoti- ate an agreement or agreements with Respondent which could have avoided the shutdown of the Cleveland Freight Lines, Inc., operations or, at the least, would have ameliorated the consequences of the closing vis-a-vis the employees who worked there. Thus, in order to make these former employ- ees whole for the losses they have suffered as a result of Respondent's unlawful refusal to bargain, we shall accompany our order to bargain with a limited backpay requirement designed both to make whole the employees for losses suffered as the result of the violation, and to recreate in some practical manner a situation in which the parties' bargaining position is not entirely devoid of eco- nomic consequences for Respondent. For this reason, Respondent shall be ordered to pay back- pay to the employees employed at Respondent's fa- cility located at 17877 St. Clair Avenue, Cleveland, Ohio, as of May 29, 1980, the date Respondent ceased operation of its business, in a manner similar to that required in P. B. Mutrie Motor Transport.2 Thus, backpay shall be computed at the rate of the employees' normal wages when last in Respon- dent's employ for May 29, 1980, the date on which Respondent closed its facility at 17877 St. Clair Avenue, until the occurrence of the earliest of the following conditions with respect to each of the units: (1) the date Respondent bargains to agree- ment with the appropriate union on those subjects pertaining to the decision to close and the effects of the closing on the respective unit employees at its facility located at 17877 St. Clair Avenue; (2) a bona fide impasse in bargaining; (3) the failure of the Unions to request bargaining within 5 days of this Decision, or to commence negotiations within 5 days of Respondent's notice of ts desire to bar- gain with the Unions; or (4) the subsequent failure of the Unions to bargain in good faith. Backpay shall be based on earnings which the terminated employees would normally have received during the applicable period, 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), together with interest as pro- vided in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, as Respondent's facility at 17877 St. Clair Avenue, Cleveland, Ohio, is no longer open, it would be of little value to require Respondent to post a notice at this site. Accordingly, we shall order that Respondent mail signed copies of a notice to all of the employees in each of the affect- ed units. The Board, upon the basis of the foregoing facts in the entire record, makes the following: CONCLUSIONS OF LAW 1. The Respondent, Cleveland Freight Lines, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, and Automobile Transporters, New Trailer and Armored Car Drivers, mechanics and Garagemen Union, Local No. 964, are labor organizations within the meaning of Section 2(5) of the Act. 2 226 NLRB 1325 (1976). 326 CLEVELAND FREIGHT LINES, INC. 3. The following employees of Respondent con- stitute appropriate units for purposes of collective bargaining within the meaning of Section 9(b) of the Act: (1) All truck drivers, warehousemen and loaders employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, but excluding all office clerical employ- ees and professional employees, guards and su- pervisors as defined in the Act, and all other employees. (2) All office clerical employees employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, excluding all truck drivers, dockmen and all professional employees, guards and supervisors as defined in the Act. (3) All working foremen, journeymen me- chanics, journeymen trailermen, apprentices and garagemen employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, but excluding all office cleri- cal employees and professional employees, guards and supervisors as defined in the Act, and all other employees. 4. By threatening an employee with plant closure if the employees remained members of Local No. 407, Respondent has restrained, coerced, and inter- fered with employees in the enjoyment of their rights under Section 7 of the Act and thereby vio- lated Section 8(a)(l) of the Act. 5. By unilaterally ceasing operation of its busi- ness, without notice to, or consultation with, Local No. 407 as the representative of the employees in the units described in paragraphs (1) and (2) above, and Local No. 964 as the representative of the em- ployees in the unit described in paragraph (3) above, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By failing to bargain with Local No. 407 over the effects of its ceasing operation of its business as it pertains to employees in the units described above in paragraphs (1) and (2), and with Local No. 964 over the effects of its ceasing operation of its business as it pertains to employees in the unit described in paragraph (3) above, Respondent has violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid 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, Cleveland Freight Lines, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with plant closure if the employees remain members of Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America or any other labor or- ganization. (b) Refusing to bargain in good faith with Truck Drivers Union, Local No. 407 affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, with re- spect to each of the unit of employees it represents, and with Automobile Transporters, New Trailer and Armored Car Drivers, Mechanics and Garage- men Union, Local No. 964 with respect to the unit of employees it represents, concerning the decision and effects of its decision to cease operation of its business located at 17877 St. Clair Avenue, Cleve- land, Ohio, Truck Drivers Union, Local No. 407 affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, represents the following units: (1) All truck drivers, warehousemen and loaders employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, but excluding all office clerical employ- ees and professional employees, guards and su- pervisors as defined in the Act, and all other employees. (2) All office clerical employees employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, excluding all truck drivers, dockmen and all professional employees, guards and supervisors as defined in the Act. Automobile Transporters, New Trailer and Ar- mored Car Drivers, Mechanics and Garagemen Union, Local No. 964 represents the following unit: (3) All working foremen, journeymen me- chanics, journeymen trailermen, apprentices and garagemen employed at the Respondent's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, but excluding all office cleri- cal employees and professional employees, guards and supervisors as defined in the Act, and all other employees. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 327 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with Truck Drivers Union, Local No. 407 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the representative of the employees in the units described above in paragraphs l(b)(l) and (2), and with Automobile Transporters, New Trailer and Armored Car Driv- ers, Mechanics and Garagemen Union, Local No. 964, as the representative of the employees in the unit described above in paragraph l(b)(3), concern- ing its decision to cease operation of its business lo- cated at 17877 St. Clair Avenue, and the effects thereof on the employees in said units. (b) Pay the employees in the units described above in paragraphs l(b) (1), (2), and (3) employed at Respondent's facility located at 17877 St. Clair Avenue, as of May 29, 1980, their normal wages, with interest thereon in the manner and for the period set forth in the section of this Decision enti- tled "The Remedy." (c) Preserve and, upon request, make available to the Board, or any of its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records relevant and necessary to a determination of compliance with paragraph (a) above. (d) Furnish to the Regional Director for Region 8 the names and most recent addresses in its posses- sion of all employees employed by Respondent at its facility located at 17877 St. Clair Avenue, Cleveland, Ohio, on May 29, 1980, and all those employed currently and sign a sufficient number of copies of the attached notice marked "Appendix"3 for mailing by the Regionl Director to each of these employees. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 3 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 Pursu- ant 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 threaten our employees with plant closure if they remain members of Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other union. WE WILL NOT refuse to bargain in good faith with Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, with respect to each of the units of our employees it represents, and with Automobile Transporters, New Trailer and Armored Car Drivers, Mechanics and Ga- ragemen Union, Local No. 964, with respect to the unit of our employees it represents, con- cerning our decision and the effects thereof to cease operation of our business located at 17877 St. Clair Avenue, Cleveland, Ohio. Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, represents the following units: (1) All truck drivers, warehousemen and loaders employed at the Employer's facility located at 17877 St. Clair Avenue, Cleve- land, Ohio, but excluding all office clerical employees and professional employees, guards and supervisors as defined in the Act, and all other employees. (2) All office clerical employees employed at the Employer's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, exclud- ing all truck drivers, dockmen and all pro- fessional employees, guards and supervisors as defined in the Act. Automobile Transporters, New Trailer and Armored Car Drivers, Mechanics and Garage- men Union, Local No. 964 represents the fol- lowing unit: (3) All working foremen, journeymen me- chanics, journeymen trailermen, apprentices and garagemen employed at the Employer's facility located at 17877 St. Clair Avenue, Cleveland, Ohio, but excluding all office clerical employees and professional employ- ees, guards and supervisors as defined in the Act, and all other 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 National Labor Rela- tions Act, as amended. WE WILL, upon request, bargain with Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Teamsters, 328 CLEVELAND FREIGHT LINES. INC. Chauffeurs, Warehousemen and Helpers of America, as the representative of our employ- ees in the units described above in paragraphs (1) and (2), and with Automobile Transporters, New Trailer and Armored Car Drivers, Me- chanics and Garagemen Union, Local No. 964, as the representative of our employees in the unit described above in pargraph (3) concern- ing our decision to close our plant located at 17877 St. Clair Avenue, and the effects thereof on our employees in the units represented by Truck Drivers Union, Local No. 407, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and on our employees in the unit represented by Automobile Transporters, New Trailer and Armored Car Drivers, Mechanics and Garagemen Union, Local No. 964. WE WILL pay our employees in the units de- scribed above who were employed at our fa- cility located at 17877 St. Clair Avenue, as of May 29, 1980, their normal wages in the manner and for the period required by a Deci- sion of the National Labor Relations Board, plus interest. CLEVELAND FREIGHT LINES, INC. 329