Duane Bowman, Jr. & Family

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dane County Dairy; Bowman Enterprises, Inc.; MAJJAJ Bowman, Inc,; Bowman Farms, Inc.; Mary Ann Bowman; Mary Ann Bowman d/b/a MAJJAJ Frigid Freight; Duane Bowman, Jr.; Duane Bowman , Jr., d/b/a Bowman Enter- prises, Inc.; Duane Bowman , Jr., d/b/a Duane Bowman, Jr. & Associates; Duane Bowman, Jr., d/b/a Duane Bowman , Jr. & Family and Driv- ers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Local No. 695, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America. Case 30-CA-8309 25 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon an original charge filed by the Union I1 April 1984 and amended charges filed 17, 23, and 25 May 1984, the General Counsel of the National Labor Relations Board issued a complaint 13 June 1984 against the business entities named in the cap- tion of this Decision and Order, herein collectively referred to as the Respondent, alleging that the Re- spondent has violated Section 8(a)(5), (4), (3), and (1) of the National Labor Relations Act. Although properly served copies of the original charge, the amended charges, and the complaint, the Respond- ent failed to timely answer. On 31 October 1984 the General Counsel filed a Motion for Summary Judgment. On 1 November 1984 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 a response.2 The General Counsel filed an opposition to the Respondent's response. Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from service of the complaint, unless good cause is shown. The complaint states that, unless an answer is filed within 10 days of service, "all the allegations in the complaint shall be deemed to be admitted to be true and shall be so I The complaint, Motion for Summary Judgment, and Notice to Show Cause, in addition to naming as respondents the 10 business entities set forth in the caption of this Decision, also named "Stop N Go of Madison, Inc " as an "agent, joint employer and/or party in interest " We have omitted Stop N Go of Madison, Inc from the caption We note that our Order binds, among others, agents of the Respondent 2 The Board's 1 November 1984 order transferring the proceeding to the Board and Notice to Show Cause gave the Respondent until 15 No- vember to respond By mailgram dated 14 November 1984 the Respond- ent was given an extension until 30 November 1984 in which to file a response The Respondent's response was filed 12 December 1984 291 found by the Board." The undisputed allegations in the Motion for Summary Judgment disclose that by letter dated 3 July 1984 and in a telephone conver- sation on or about 17 July 1984, the General Coun- sel further advised the Respondent of the require- ment that it file an answer. With its response to the General Counsel's Motion for Summary Judgment, the Respondent provided the Board with a purported "answer" to the complaint. It moved the Board to accept its "answer," asserting that its previous failure to file an answer resulted from "excusable neglect." We deny the Respondent's motion since the Respond- ent has failed to show good cause why it did not file a timely answer to the complaint.3 According- ly, we find that the allegations of the complaint are deemed to be admitted. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Summary Judg- ment.4 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. SINGLE EMPLOYER AND ALTER EGO STATUS In accordance with the allegations of the com- plaint, we find that the various business entities named in the caption of this Decision and Order, Dane County Dairy; Bowman Enterprises, Inc.; MAJJAJ Bowman, Inc.; Bowman Farms, Inc.; Mary Ann Bowman, an Individual; Mary Ann Bowman d/b/a MAJJAJ Frigid Freight; Duane Bowman Jr., an Individual; Duane Bowman, Jr., d/b/a Bowman Enterprises, Inc.; Duane Bowman 3 In its response to the Notice to Show Cause, the Respondent con- tends that its neglect in failing to file a timely answer was excusable be- cause counsel for the General Counsel did not rely on the failure to file an answer in injunction proceedings related to the instant matter in a United States district court, the General Counsel led the Respondent to believe that there would be a hearing before an administrative law judge, until shortly before the scheduled hearing when he informed the ' Re- spondent that it was canceled and that he would file a motion for summa- ry judgment, and the Respondent incurred considerable expense in pre- paring for the hearing The Respondent further argues that the General Counsel was "aware" that it denied the allegations of the complaint and that the Board is not prejudiced by the Respondent's failure'to file an answer The Respondent does not deny that it was properly served with the complaint Nor does it deny the further assertions in the Motion for Summary Judgment that it was informed of the necessity of answering on two subsequent occasions Moreover, we note that the Respondent nei- ther filed an answer nor requested an extension of time in which to do so until approximately 6 months after the complaint issued and 6 weeks after the motion was filed In these circumstances we find the Respondent has not shown good cause why it failed to file a timely answer 4 In granting the General Counsel's Motion for Summary Judgment, Chairman Dotson specifically relies on the total failure of Respondent to timely contest either the facutal allegations or the legal conclusions of the General Counsel's complaint Thus, the Chairman regards this proceeding as being essentially a default judgment which is without precedential value 274 NLRB No. 42 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jr., d/b/a Duane Bowman, Jr. & Associates; and Duane Bowman, Jr. d/b/a Duane Bowman, Jr. & Family, are alter egos, and that they constitute a single integrated enterprise and constitute a single employer within the meaning of Section 2(2) of the Act. H. JURISDICTION The Respondent is engaged in the wholesaling, storage, and delivery of dairy products in the Madison, Wisconsin area. It annually purchases and receives goods and materials valued in excess of $50,000 from suppliers located within the State of Wisconsin which suppliers in turn received the goods and materials directly from outside the State, and/or it annually purchases and receives goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wiscon- sin.5 We find that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 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. III. ALLEGED UNFAIR LABOR PRACTICES A. The Unit The following employees of the Respondent con- stitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding driver salesmen, milk and ice cream, relief drivers, truckdrivers, working foremen and garage employees at Respondent Dane County Dairy's Madison, Wisconsin facility. Since at least 1971 the Union has been the exclu- sive collective-bargaining representative, within the meaning of Section 9(a) of the Act, with respect to 5 In its response to the Notice to Show Cause the Respondent con- tends that it does not satisfy the Board's criteria for asserting jurisdiction over nonretail businesses In asserting jurisdiction over the Respondent here„ in addition to relying on the allegations of the complaint , we rely on certain admissions of Respondent Duane Bowman in testimony which he gave in a proceeding closely related to the present case in the United States District Court for the Western District of Wisconsin, transcripts of which were attached as exhibits to the Motion for Summary Judgment Bowman testified that in the first 7 months of 1984 he purchased approxi- mately $1 5 million in dairy products from an Iowa dairy He further tes- tified that these purchases were made as part of the continuation of the wholesale dairy business previously engaged in by Respondent Dane County Dairy We find further that, as alleged in the complaint, Bowman is sole stockholder and registered agent of Dane County Dairy, agent for Bowman Enterprises, Inc , agent for each of his sole proprietorships named in , the caption of this decision , and supervisor and consultant for MAJJAJ Bowman, Inc and the sole proprietorships of Mary Ann Bowman named in the caption of this decision Moreover , in asserting ju- risdiction here we take administrative notice of our decisions in Dane County Dairy, 269 NLRB 218 (1984), and Dane County Dairy, 273 NLRB No 209 (Jan 30, 1985), in which we recently asserted jurisdiction over Respondeht Dane County Dairy based on the Board 's indirect inflow standard the employees in the above unit, and the Respond- ent has recognized it as such. B. The Alleged Violations of Section 8(a)(5) and (1) At all times material herein the Union has been the exclusive bargaining representative of the em- ployees in the unit described above. On or about 27 March 1984 the Respondent notified the Union that it was laying off the employees in the bargaining unit. Prior to notifying the Union of its decision to lay off the employees, the Respondent did not afford the Union notice or an opportunity to bar- gain over either the decision or the effects of the layoff. On 27 March and 5 April 1984 the Union requested from the Respondent information rele- vant to the impending layoffs. Since that time the Respondent has failed and refused to provide the Union with the requested information. On or about 5 April 1984 the Union requested bargaining over the Respondent's decision to lay off the employees and the effects of that decision. Since that time the Respondent has failed and refused to bargain with the Union over the decision or its effects. Between 7 and 27 April 1984 the Respondent laid off the employees in the bargaining unit . On or about 24 April 1984 the Respondent refused to meet with the Union on the ground that no bargaining unit members were present at the meeting. We find, as alleged in the complaint, that by laying off its employees in the bargaining unit without affording the Union an opportunity to bar- gain;6 by failing and refusing to bargain with the Union regarding the layoff after the Union request- ed bargaining; by failing and refusing to provide the Union with requested information concerning the layoff; and by refusing to meet with the Union because no bargaining unit employee was present, the Respondent has violated Section 8(a)(5) and (1) of the Act. C. The Alleged Violations of Section 8(a)(3), (4), and (1) As noted above, between 7 April and 27 April 1984 the Respondent laid off the employees in the bargaining unit. The complaint alleges that the Re- spondent's layoff of the bargaining unit employees was motivated by the employees' membership in and activities on behalf of the Union and constitut- ed discrimination against them in violation of Sec- tion 8(a)(3) and (1) of the Act. The complaint fur- 5 Member Hunter finds it unnecessary to pass on the allegation that the Respondent violated Sec 8(a)(5) and (1) of the Act by laying off the bar- gaining unit employees in view of his agreement that the Respondent vio- lated Sec 8(a)(4) and (3) by the same conduct See Mashkin Freight Lines, 272 NLRB 427 fn 7 (1984) DANE COUNTY DAIRY ther alleges that the layoff of the employees was motivated by the employees' giving affidavits to the Board and testifying in a previous Board hear- ing and constituted discrimination against them in violation of Section 8(a)(4) and (1) of the Act. Be- cause, as noted above, the allegations of the com- plaint are deemed admitted and found to be true in the absence of a timely answer having been filed, we find that by laying off the bargaining unit em- ployees the Respondent violated Section 8(a)(3), (4), and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent has committed unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by unilaterally laying off the em- ployees in the bargaining unit described above without first notifying the Union and giving it an opportunity to bargain; by failing and refusing to bargain with the Union regarding the layoff after the Union requested bargaining; by failing and re- fusing to provide the Union with requested infor- mation related to the layoff; and by refusing to meet with the Union because no bargaining unit employee was present. 2. The Respondent has committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by laying off its bargaining unit em- ployees because of their membership in and activi- ties on behalf of the Union. 3. The Respondent has committed unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act by laying off its bargaining unit em- ployees because they gave affidavits to agents of the Board and testified in a previous Board hear- ing. 4. The described conduct constitutes unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5), (4), (3), and (1) of the Act, we shall order that it cease and desist and take certain af- firmative action designed to effectuate the policies of the Act. Accordingly, we shall order the Re- spondent to bargain with the Union concerning layoffs of employees, and to provide the Union with requested information concerning the April 1984 layoff. In addition, we shall order the Re- spondent to offer the bargaining unit employees it laid off between 7 April and 27 April 1984 immedi- ate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their se- 293 niority or other rights and privileges previously en- joyed, and to make the employees whole for any loss of earnings that they may have suffered by reason of the Respondent's layoff of them. Backpay will be computed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with in- terest as set forth in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). In view of the violations' found herein, considered in light of our previous deci- sions, noted above, in which we found that the Re- spondent Dane County Dairy previously violated the Act, we find that a broad cease-and-desist order is warranted under the standards of Hickmott Foods, 242 NLRB 1357 (1979). ORDER The National Labor Relations Board orders that the Respondent, Dane County Dairy; Bowman En- terprises, Inc.; MAJJAJ Bowman, Inc.; Bowman Farms, Inc.; Mary Ann Bowman, an Individual; Mary Ann Bowman d/b/a MAJJAJ Frigid Freight; Duane Bowman, Jr., an Individual; Duane Bowman, Jr., d/b/a Bowman Enterprises, Inc.; Duane Bowman, Jr., d/b/a Duane Bowman, Jr. & Associates; Duane Bowman, Jr., d/b/a Duane Bowman, Jr. & Family, Madison, Wisconsin, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off or otherwise discriminating against employees because of their membership in or activities on behalf of Drivers, Salesmen, Ware- housemen, Milk Processors, Cannery, Dairy Em- ployees and Helpers Local No. 695, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. (b) Laying off or otherwise discriminating against employees because they gave affidavits to agents of the Board or testified in Board hearings. (c) Laying off employees in the unit described below without first notifying the Union and afford- ing it an opportunity to bargain; failing and refus- ing to bargain with the Union regarding the layoff of bargaining unit employees after the Union has requested bargaining thereon; failing and refusing to provide the Union with requested information concerning the layoff of bargaining unit employees; and refusing to meet with the Union because no bargaining unit members are present. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer the bargaining unit employees laid off between 7 April and 27 April 1984 immediate and 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges previously en- joyed and make them whole for any loss of pay they may have suffered as a result of their layoffs computed in the manner set forth in the section of this decision entitled "Remedy." (b) Expunge from its files any reference to the layoffs of the employees laid off between 7 April and 27 April 1984, and notify them in writing that this has been done and that evidence of these un- lawful layoffs will not be used as a basis for future personnel actions against them. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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. (d) On request, provide the Union with the infor- mation the Union requested concerning the April 1984 layoff of bargaining unit employees. (e) Prior to implementing any layoff of bargain- ing unit employees, notify the Union and afford it an opportunity to bargain. The bargaining unit is: All production and mainteannce employees, in- cluding driver salesmen, milk and ice cream, relief drivers, truckdrivers, working foremen and garage employees at Respondent Dane County Dairy's Madison, Wisconsin facility. (f) Post at its Madison, Wisconsin area facility or facilities copies of the attached notice marked "Ap- pendix."? Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. ' 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al 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 ordered us to post and abide by this notice. WE WILL NOT lay off or otherwise discriminate against any of you for supporting Drivers, Sales- men, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Local No. 695, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other Union. WE WILL NOT lay off or otherwise discriminate against any of you because of your participation in proceedings before the National Labor Relations Board. WE WILL NOT refuse to bargain collectively with Drivers, Salesmen, Warehousemen, Milk Proces- sors, Cannery, Dairy Employees and Helpers Local No. 695, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America by unilaterally laying off our employees in the bargaining unit described below without first notifying the Union and giving it an opportunity to bargain; by refusing to meet and bargain with the Union concerning such layoffs upon the Union's request; by failing and refusing to supply the Union with requested information con- cerning such a layoff; or by refusing to meet with the Union on the ground that no bargaining unit members are present at the meeting. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer our employees whom we laid off in April 1984 immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their layoffs, less any net interim earnings, plus interest. WE WILL expunge from our files any references to the layoffs of bargaining unit employees in April 1984, and WE WILL notify each of them that this has been done and that evidence of the unlawful layoffs or suspensions will not be used as a basis for future personnel actions against him. DANE COUNTY DAIRY 295 WE WILL, on request, provide the Union with the information it requested concerning the April 1984 layoff of employees. WE WILL, prior to implementing any layoff of employees in the bargaining unit described below, notify the Union and afford it an opportunity to bargain . The appropriate bargaining unit is: All production and maintenance employees, in- cluding driver salesmen , milk and ice cream, relief drivers, truckdrivers, working foremen and garage employees at our Madison, Wis- consin facility. DANE COUNTY DAIRY ; BOWMAN ENTERPRISES, INC.; MAJJAJ BOWMAN, INC.; BOWMAN FARMS, INC.; MARY ANN BOWMAN , AN INDI- VIDUAL; MARY ANN BOWMAN D/B/A MAJJAJ FRIGID FREIGHT; DUANE BOWMAN JR., AN INDIVIDUAL; DUANE BOWMAN JR., D/B/A BOWMAN ENTERPRISES, INC.; DUANE BOWMAN JR., D/B/A DUANE BOWMAN JR. & ASSOCIATES; DUANE BOWMAN JR., D/B/A DUANE BOWMAN JR. & FAMILY