Shelbyville Mixing Center, Inc.

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the E x­ ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Shelbyville Mixing Center, Inc. and General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, AFL–CIO. Case 9–CA–39593 May 20, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS WALSH AND ACOSTA The General Counsel seeks a default judgment1 in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on September 11, 2002, the General Counsel is- sued the complaint on November 26, 2002, against Shel­ byville Mixing Center, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the Act. The Respondent failed to file an answer. On January 22, 2003, the General Counsel filed a Mo­ tion for Summary Judgment, and memorandum in sup- port, with the Board. On January 24, 2003, 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 Respondent filed no response. The alle­ gations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless 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. Further, the undisputed allegations in the Ge n­ eral Counsel’s motion disclose that the Region, by letter dated January 6, 2003, notified the Respondent that unless an answer were received by January 13, 2003, a Motion for Default Judgment would be filed. In the absence of good cause being shown for the fail­ ure to file a timely answer, we grant the General Coun­ sel’s Motion for Default Judgment. On the entire record, the Board makes the following 1 The General Counsel’s motion requests summary judgment on the ground that the Respondent has failed to file an answer to the com­ plaint. Accordingly, we construe the General Counsel’s motion as a motion for default judgment. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, has been engaged in staging and loading new automo­ biles for shipment throughout the southeastern United States at its facility in Shelbyville, Kentucky. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, provided services valued in excess of $50,000 for Norfolk and Southern Railway Company, which in turn annually meets the Board’s direct inflow and outflow jurisdictional standards. We find that the Respondent is an employer engaged in commerce 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 At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Mike Willis – General Manager and Part Owner Mike Ford – Terminal Manager Dave Blyth – Supervisor The following employees of the Respondent (the unit), constitute a unit appropriate for the purposes of collec­ tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time rail loaders, rail unloaders, and switchers employed by Respondent at its Shelbyville, Kentucky location, excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act. On May 8, 1998, the Union was certified as the exclu­ sive collective-bargaining representative of the unit. Since the same date, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining rep­ resentative of the unit for the purposes of collective bar- gaining. The parties are currently signatory to a collective- bargaining agreement called the National Master Auto- mobile Transporters Agreement and the Central and Southern Areas Supplemental Agreement through an Addendum (Local Rider) effective from September 4, 1998 to May 31, 2003 (the Agreement). The Agreement contains a grievance/arbitration provision. This subject relates to wages, hours, and other terms and conditions of 339 NLRB No. 11 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employment of the unit and is a mandatory subject for the purposes of collective bargaining. Since about August 26, 2002, the Respondent failed to continue in effect all the terms and conditions of the Agreement by repudiating the grievance procedure of the contract without the consent of the Union, and by failing and/or refusing to accept, acknowledge or respond to grievances, to participate in the scheduling of arbitrations or to participate in the arbitration of grievances which had been filed prior to August 26, 2002. CONCLUSION OF LAW By the acts and conduct described above, the Respon­ dent has been failing and refusing to bargain collectively and in good faith with the exclusive collective- bargaining representative of its employees, within the meaning of Section 8(d) of the Act, in violation of Sec­ tion 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer­ tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we shall order the Respondent to comply with the contractual grievance procedure, to process all grievances that have not been processed since August 26, 2002, and to par­ ticipate in the scheduling of arbitrations and the arbitra­ tion of grievances that were filed prior to that date and any other grievances that the Union has appropriately designated for arbitration. ORDER The National Labor Relations Board orders that the Respondent, Shelbyville Mixing Center, Inc., Shelby­ ville, Kentucky, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing to continue in effect all the terms and conditions of the September 4, 1998—May 31, 2003 collective-bargaining agreement with General Drivers, Warehousemen and Helpers, Local Union No. 89, affili­ ated with the International Brotherhood of Teamsters, AFL–CIO, by repudiating the grievance procedure of the contract without the Union’s consent, and by failing and/or refusing to accept, acknowledge or respond to grievances, participate in the scheduling of arbitrations or participate in the arbitration of grievances. The appro­ priate unit is: All full-time and regular part-time rail loaders, rail unloaders, and switchers employed by Respondent at its Shelbyville, Kentucky location, excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exe rcise 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) Comply with the contractual grievance procedure, process all grievances that have not been processed since August 26, 2002, and participate in the scheduling of arbitrations and the arbitration of grievances that were filed prior to that date and other grievances that the Un­ ion has appropriately designated for arbitration. (b) Within 14 days after service by the Region, post at its facility in Shelbyville, Kentucky, copies of the at­ tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al­ tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil­ ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no­ tice to all current employees and former employees em­ ployed by the Respondent at any time since August 26, 2002. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re­ sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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.” SHELBYVILLE MIXING CENTER, INC. 3 Dated, Washington, D.C. May 20, 2003 ______________________________________ Robert J. Battista, Chairman ______________________________________ Dennis P. Walsh, Member ______________________________________ R. Alexander Acosta, 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 vio­ lated the Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected ac­ tivities. WE WILL NOT fail to continue in effect all the terms and conditions of our September 4, 1998—May 31, 2003 collective-bargaining agreement with General Drivers, Warehousemen and Helpers, Local Union No. 89, affili­ ated with the International Brotherhood of Teamsters, AFL–CIO, by repudiating the grievance procedure of the contract without the Union’s consent, and by failing and/or refusing to accept, acknowledge or respond to grievances, participate in the scheduling of arbitrations or participate in the arbitration of grievances. The appro­ priate unit is: All full-time and regular part-time rail loaders, rail unloaders, and switchers employed by us at our Shel­ byville, Kentucky location, excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act. 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 comply with the contractual grievance proce­ dure, process all grievances that have not been processed since August 26, 2002, and participate in the scheduling of arbitrations and the arbitration of grievances that were filed prior to that date and other grievances that the Un­ ion has appropriately designated for arbitration. SHELBYVILLE MIXING CENTER, INC.