Maislin Transport Of Delaware, Inc. And Maislin Transport Of Delaware, Inc. Debtor-In-Possession

MAISLIN TRANSPORT Maislin Transport of Delaware, Inc. and Maislin Transport of Delaware, Inc. Debtor-in-Posses- sion and Chicago Truck Drivers' Helpers and Warehouse Workers Union (Independent). Case 13-CA-22456 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union 11 August 1982, the General Counsel of the National Labor Relations Board issued a complaint 20 September 1982 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. After being properly served copies of the charge and com- plaint, the Company filed an answer to the com- plaint 12 October 1982. By letter dated 18 July 1983 the Company informed the Union that 11 July 1983 the Company filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code. By letter of 7 September 1983 to the General Counsel, the Company withdrew its answer to the com- plaint, noting, however, that withdrawal was con- ditioned on its understanding that any judgment rendered would be subject to the Company's pend- ing bankruptcy proceedings. On 29 September 1983 the General Counsel filed a Motion for Summary Judgment. On 3 October 1983 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 Company filed no response. The allegations in the motion are therefore undisputed 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 found by the Board." The Company's withdrawal of its answer has the same effect as failure to file an answer. Accordingly, we grant the General Coun- sel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION 529 The Company, a Delaware corporation, has been engaged in the business of interstate trucking of general and specific commodities at terminals locat- ed in several States, including Bedford Park, Illi- nois. During the fiscal or calendar year preceding the issuance of the complaint, a representative period, the Company derived revenues in excess of $50,000 from the transportation of freight and com- modities from the State of Illinois directly to points outside the State. We find that the Company is an employer engaged in commerce within the mean- ing of Section 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. A. The Unit and the Union 's Representative Status The following employees of the Company con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All truck drivers and helpers employed by the Employer at its facility presently located at 6633 West 75th Street, Bedford Park, Illinois 60638, excluding all mechanics, utility men, office clerical employees, guards and supervi- sors as defined in the Act. Since about 1979, the Union has been recognized as the exclusive collective-bargaining representative of the employees in the unit. Such recognition has been embodied in a collective-bargaining agree- ment, effective by its terms from 1 April 1979 through 31 March 1982. B. The Refusals to Bargain On various dates in May 1982, the Company by- passed the Union and dealt directly with its em- ployees in the described unit by announcing that a vote would be taken for the purpose of soliciting their support to reduce contractually established wages by 15 percent; polling its employees to de- termine their willingness to accept a 15-percent wage reduction; and speaking to individual em- ployees to solicit their signatures in support of the proposed wage reduction. About 12 June 1982 the Company unilaterally reduced the unit employees' wages by 15 percent. Further, the Company unilat- erally failed to pay unit employees contractually established cost-of-living allowances from 1 April to 12 June 1982. Accordingly, we find that the 277 NLRB No. 74 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, by its conduct, has violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By bypassing the Union and dealing directly with its employees in the unit, and by unilaterally reducing wages and eliminating cost-of-living al- lowances for unit employees, the Company has en- gaged 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 designed to effectuate the policies of the Act. We shall order the Respondent to bargain on request with the Union and make whole unit em- ployees for loss of wages suffered from 12 June 1982 to 11 July 1983,1 and for the Respondent's elimination of cost-of-living allowances from 1 April to 12 June 1982. Backpay shall be made in a manner consistent with Board policy as stated in Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). ORDER The National Labor Relations Board orders that the Respondent, Maislin Transport of Delaware, Inc., and Maislin Transport of Delaware Inc. Debtor-in-Possession, Bedford Park, Illinois, its of- ficers, agents, successors, and assigns, shall I Cease and desist from (a) Refusing to bargain collectively with Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent), as the exclusive bargaining representative of the employees in the bargaining unit, by bypassing the Union and dealing directly ' Consistent with the Supreme Court's recent opinion in NLRB v Bi!- disco & Bildisco, 104 S Ct 1188 (1984), our remedy extends only to 11 July 1983, the date the Respondent filed its Chapter 11 bankruptcy peti- tion Bildisco held in relevant part that an employer does not violate Sec 8(a)(5) and ( 1) and Sec 8 (d) of the Act by altering terms and conditions of a collective-bargaining agreement during the interim between the filing of a Chapter 11 petition and the bankruptcy court's determination wheth- er the agreement may be rejected Although the Respondent's unilateral changes in terms and conditions of employment occurred after its agree- ment with the Union expired, the Bildisco rationale clearly permits post- bankruptcy petition unilateral changes which would otherwise be unlaw- ful id at 1200 fn 14, distinguishing NLRB v Katz, 369 U S 736 (1962) At the same time, however, a debtor-in -possession "remains obligated to bargain in good faith over the terms and conditions of a possible new contract " 104 S Ct at 1201 Member Hunter, for the reasons fully set forth in Edward Cooper Paint- ing, 273 NLRB 1768 (1985), disagrees with terminating the remedy as of 11 July 1983, the date the Respondent filed its bankruptcy petition, be- cause all the violations found preceded the filing of the petition with unit employees, and by unilaterally eliminat- ing cost-of-living allowances and reducing wages. (b) 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. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment, including wages and cost-of-living al- lowances: All truck drivers and helpers employed by the Employer at its facility presently located at 6633 West 75th Street, Bedford Park, Illinois 60638, excluding all mechanics, utility men, office clerical employees, guards and supervi- sors as defined in the Act. (b) Make whole unit employees by reimbursing them for losses of pay suffered by its failure to pay cost-of-living allowances between 1 April and 12 June 1982, and its reduction of wages between 12 June 1982 and 11 July 1983, in the manner set forth in the remedy section of this decision. (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) Post at its Bedford Park, Illinois terminal copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. z 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 " MAISLIN TRANSPORT 531 APPENDIX No FICE 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 refuse to bargain with Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent), as the exclusive representa- tive of the employees in the bargaining unit, by by- passing the Union and dealing directly with unit employees, and by unilaterally eliminating cost-of- living allowances and reducing wages. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment including wages and cost-of-living allowances, for our em- ployees in the bargaining unit: All truck drivers and helpers employed by us at our facility presently located at 6633 West 75th Street, Bedford Park, Illinois 60638, ex- cluding all mechanics , utility men, office cleri- cal employees, guards and supervisors as de- fined in the Act. WE WILL make whole unit employees by reim- bursing them, with interest, for losses of pay suf- fered by our failure to pay cost-of-living allow- ances between 1 April and 12 June 1982, and our reduction of wages between 12 June 1982 and 11 July 1983. MAISLIN TRANSPORT OF DELAWARE, INC. AND MAISLIN TRANSPORT OF DELAWARE, INC. DEBTOR-IN-POSSES- SION