Crown Transportation St. Louis, Inc.

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Crown Transportation St. Louis, Inc. and ADI Business Group, Inc. d/b/a Crown Logistics, Single Employer and Highway, City and Air Freight Drivers, Dockmen, Marine Officers As­ sociation, Dairy Workers, and Helpers Local Union No. 600, affiliated with International Brotherhood of Teamsters, AFL–CIO. Case 14– CA–24312 April 18, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge and amended charge filed by the Union on October 28 and December 30, 1996, the General Counsel of the National Labor Relations Board issued a complaint on December 31, 1996, against Crown Transportation St. Louis, Inc. and ADI Business Group, Inc. d/b/a Crown Logistics, Single Employer (the Respondent), alleging that it has vio­ lated Section 8(a)(5) and (1) of the National Labor Re­ lations Act. Although the Respondent filed an answer to the complaint, it withdrew that answer on March 14, 1997. On March 24, 1997, the General Counsel filed a Motion for Summary Judgment with the Board. On March 25, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re­ spondent filed no response. The allegations in the mo­ tion are therefore undisputed. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, un­ less good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Here, although the Re­ spondent initially did file an answer, the Respondent withdrew its answer to the complaint on March 14, 1997. The Respondent’s withdrawal of its answer to the complaint has the same effect as a failure to file an answer, i.e., all allegations in the complaint must be considered to be true. See Maislin Transport, 274 NLRB 529 (1985). Accordingly, in the absence of good cause being shown otherwise, we grant the General Counsel’s Mo­ tion for Default Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Crown Transportation St. Louis, Inc. (Crown Transportation), a Missouri cor­ poration, with an office in Kansas City, Missouri, and a place of business at Borden Pasta in St. Louis, Mis­ souri (the St. Louis facility), has been engaged in the transportation of food and other products. During the 12-month period ending November 30, 1996, Crown Transportation, in conducting its business operations, purchased and received at its St. Louis, Missouri facil­ ity goods valued in excess of $50,000 directly from points outside the State of Missouri, performed serv­ ices valued in excess of $50,000 in States other than the State of Missouri, and performed services valued in excess of $50,000 for enterprises who meet other than a solely indirect standard for the assertion of the Board’s jurisdiction. At all material times, ADI Business Group, Inc. (ADI), a Missouri corporation with its principal office in Shawnee Mission, Kansas, and a place of business at Borden Pasta in St. Louis, Missouri (the St. Louis facility), has been engaged in the transportation of food and other products. During the 12-month period ending November 30, 1996, ADI, in conducting its business operations, purchased and received at its St. Louis, Missouri facility goods valued in excess of $50,000 directly from points outside the State of Mis­ souri, performed services valued in excess of $50,000 in States other than the State of Missouri, and per- formed services valued in excess of $50,000 for enter­ prises who meet other than a solely indirect standard for assertion of the Board’s jurisdiction. At all material times, Crown Transportation and ADI have been affiliated business enterprises with common officers, ownership, directors, management, and supervision; have formulated and administered a common labor policy; have shared common premises and facilities; have provided services for and made sales to each other; have interchanged personnel with each other; and have held themselves out to the public as single-integrated business enterprises. Based on its operations described above, Crown Transportation and ADI constitute a single-integrated business enterprise and a single employer within the meaning of the Act. We find that, at all material times, Crown Transpor­ tation and ADI have been employers engaged in com­ merce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con­ stitute a unit appropriate for the purposes of collective 323 NLRB No. 76 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining within the meaning of Section 9(b) of the Act: All drivers employed by the Respondent at its St. Louis, Missouri facility, excluding office clerical and professional employees, guards and super- visors as defined in the Act. On March 7, 1994, the Union was certified as the exclusive collective-bargaining representative of the unit. This recognition has been embodied in a collec­ tive-bargaining agreement effective from July 27, 1994, through July 27, 1998 (1994–1998 collective- bargaining agreement). At all times since March 7, 1994, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. Since about August 1, 1996, the Respondent has failed to continue in effect all the terms and conditions of the agreement described above, by conduct includ­ ing failing and refusing to pay employees’ wages and accrued vacation pay due and failing to make health and welfare fund contributions. The Respondent en- gaged in this conduct without the Union’s consent. These terms and conditions of employment are manda­ tory subjects for the purpose of collective bargaining. About September 20, 1996, the Respondent closed its facility and laid off all unit employees without no­ tice to the Union and without affording the Union an opportunity to bargain over the effects of the closing and the resulting layoffs. About September 25 and Oc­ tober 23, 1996, the Union, by letter, requested that the Respondent bargain collectively with the Union as the exclusive collective-bargaining representative of the unit over the effects on the unit of the decision to close its facility and the resulting layoffs. These sub­ jects relate to wages, hours, and other terms and condi­ tions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. Since about September 25, 1996, the Respondent has failed and refused to bargain with the Union as the ex­ clusive collective-bargaining representative of the unit over the effects of the closure of its facility and the resulting layoffs. Since about October 23, 1996, the Union, by letter, has requested that the Respondent furnish the Union with information relating to policing the 1994–1998 collective-bargaining agreement and the closure of the Respondent’s St. Louis facility. The requested informa­ tion is necessary for and relevant to, the Union’s per­ formance of its duties as the exclusive collective-bar- gaining representative of the unit. Since about October 23, 1996, the Respondent has failed and refused to fur­ nish the Union with the requested information. CONCLUSION OF LAW By the acts and conduct described above, the Re­ spondent has been failing and refusing to bargain col­ lectively and in good faith with the exclusive collec­ tive-bargaining representative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifically, having found that the Respondent vio­ lated Section 8(a)(5) and (1) by failing and refusing to pay employees wages and accrued vacation pay due since about August 1, 1996, we shall order the Re­ spondent to make the unit employees whole for any loss of earnings attributable to its unlawful conduct. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Furthermore, having found that the Respondent has violated Section 8(a)(5) and (1) by failing to make contractually required health and welfare fund con­ tributions since about August 1, 1996, we shall order the Respondent to make whole its unit employees by making all such delinquent contributions, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit employees for any expenses ensuing from its fail­ ure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Service, supra, with interest as pre- scribed in New Horizons for the Retarded, supra.1 In addition, having found that the Respondent vio­ lated Section 8(a)(5) and (1) by failing and refusing to bargain over the effects of the closure, we shall require the Respondent to bargain with the Union concerning the effects of closing its facility on its employees, and shall accompany our order with a limited backpay re­ quirement designed both to make whole the employees for losses suffered as a result of the violations and to re-create in some practicable manner a situation in which the parties’ bargaining position is not entirely devoid of economic consequences for the Respondent. We shall do so by ordering the Respondent to pay 1 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the Respondent’s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, but the amount of such re­ imbursement will constitute a setoff to the amount that the Respond­ ent otherwise owes the fund. CROWN TRANSPORTATION ST. LOUIS, INC. 3 backpay to the terminated employees in a manner simi­ lar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968). Thus, the Respondent shall pay its terminated em­ ployees backpay at the rate of their normal wages when last in the Respondent’s employ from 5 days after the date of this Decision and Order until occur­ rence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closing of its facility on its employees; (2) a bona fide impasse in bargaining; (3) the Union’s failure to request bargaining within 5 days of the date of this Decision and Order, or to commence negotiations within 5 days of the Respondent’s notice of its desire to bargain with the Union; (4) the Union’s subsequent failure to bargain in good faith; but in no event shall the sum paid to these employees exceed the amount they would have earned as wages from the date on which the Respondent terminated its operations, to the time they secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner; pro­ vided, however, that in no event shall this sum be less than the employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent’s employ. Backpay shall be based on earnings which the terminated employees would nor­ mally have received during the applicable period, less any net interim earnings, and shall be computed in ac­ cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, supra. In addition, having found that the Respondent has failed to provide the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees, we shall order the Respondent to furnish the Union the information re- quested on October 23, 1996. Finally, in view of the fact that the Respondent’s fa­ cility is currently closed, we shall order the Respond­ ent to mail a copy of the attached notice to the Union and to the last known addresses of its former employ­ ees in order to inform them of the outcome of this pro­ ceeding. ORDER The National Labor Relations Board orders that the Respondent, Crown Transportation St. Louis, Inc. and ADI Business Group, Inc. d/b/a Crown Logistics, Sin­ gle Employer, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally failing to continue in effect all the terms and conditions of the 1994–1998 collective-bar- gaining agreement covering employees in the follow­ ing unit, including failing or refusing to pay the unit employees wages and accrued vacation pay that is due and failing to make health and welfare fund contribu­ tions on their behalf: All drivers employed by the Respondent at its St. Louis, Missouri facility, excluding office clerical and professional employees, guards and super- visors as defined in the Act. (b) Closing its facility and laying off unit employees without providing notice to the Union and an oppor­ tunity to bargain over the effects of the closing and the resulting layoffs. (c) Failing to provide the Union with requested in- formation that is necessary for and relevant to the Union’s performance of its duties as the exclusive col­ lective-bargaining representative of the unit. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Honor the terms and conditions of the 1994– 1998 collective-bargaining agreement, and make the unit employees whole for any loss of earnings, bene­ fits, or expenses that they incurred resulting from its failure to honor the agreement since August 1, 1996, in the manner set forth in the remedy section of this decision. (b) On request, bargain collectively and in good faith with the Union with respect to the effects on the unit employees of its decision to close its St. Louis fa­ cility and to lay off its unit employees, and reduce to writing and sign any agreement reached as a result of such bargaining. (c) Pay the unit employees their normal wages for the period set forth in the remedy section of this deci­ sion. (d) Provide the Union the information requested on October 23, 1996. (e) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security pay­ ment 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) Within 14 days after service by the Region, mail an exact copy of the attached notice marked ‘‘Appen- dix’’2 to Highway, City and Air Freight Drivers, Dockmen, Marine Officers Association, Dairy Work­ ers, and Helpers Local Union No. 600, affiliated with International Brotherhood of Teamsters, AFL-CIO, and 2 If 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.’’ 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to all unit employees who were employed by the Re­ spondent at any time since October 28, 1996, at the St. Louis, Missouri facility. Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s authorized represent­ ative, shall be mailed immediately upon receipt. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 18, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or­ dered us to post and abide by this notice. WE WILL NOT unilaterally fail to continue in effect all the terms and conditions of the 1994–1998 collec­ tive-bargaining agreement with Highway, City and Air Freight Drivers, Dockmen, Marine Officers Associa­ tion, Dairy Workers, and Helpers Local Union No. 600, affiliated with International Brotherhood of Team­ sters, AFL–CIO, covering the following unit, including failing or refusing to pay the unit employees wages and accrued vacation pay that is due and failing to make health and welfare fund contributions on their behalf: All drivers employed by us at our St. Louis, Mis­ souri facility, excluding office clerical and profes­ sional employees, guards and supervisors as de- fined in the Act. WE WILL NOT close our facility or lay off unit em­ ployees without providing notice to the Union and an opportunity to bargain over the effects of the closing and the resulting layoffs. WE WILL NOT fail to provide the Union with re- quested information that is necessary for and relevant to the Union’s performance of its duties as the exclu­ sive collective-bargaining representative of the unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL honor the terms and conditions of the 1994–1998 collective-bargaining agreement, and WE WILL make the unit employees whole for any loss of earnings, benefits, or expenses that they incurred re­ sulting from our failure to honor the agreement since August 1, 1996, in the manner set forth in a decision of the National Labor Relations Board. WE WILL, on request, bargain collectively and in good faith with the Union with respect to the effects on the unit employees of our decision to close our St. Louis facility and to lay off our unit employees, and reduce to writing and sign any agreement reached as a result of such bargaining. WE WILL pay the unit employees their normal wages for the period set forth in a decision of the National Labor Relations Board. WE WILL provide the Union the information it re- quested on October 23, 1996. CROWN TRANSPORTATION ST. LOUIS, INC. AND ADI BUSINESS GROUP, INC. D/B/A CROWN LOGISTICS, SINGLE EM­ PLOYER