Tucson Yellow Cab, Inc., A Debtor In Possession

170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tucson Yellow Cab, Inc., a Debtor in Possession and Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 320, International IRrotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 28- CA-6857 18 April 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 23 November 1982 the National Labor Rela- tions Board issued a decision in this proceeding in which it found that the Respondent , Tucson Yellow Cab, Inc., a debtor in possession, had vio- lated Section 8(a)(1) and (5) of the National Labor Relations Act.' The Board declined to issue a re- medial order to accompany its decision , in compli- ance with a permanent injunction issued on 23 June 1982 by the United States Bankruptcy Court for the District of Arizona.2 The injunction ordered that the Board refrain from continuing proceedings against the Respondent, except for the purpose of determining whether the Respondent had commit- ted an unfair labor practice. On 25 January 1983 the United States Bankrupt- cy Appellate Panels of the Ninth Circuit vacated the bankruptcy court's injunction . On 8 February 1983 the General Counsel made a motion request- ing that the Board now issue a remedial order. We affirm the findings of fact and conclusions of law, as modified herein, set forth in our earlier de- cision and issue this Order to remedy the outstand- ing violation. In our earlier decision, we found that the Re- spondent violated the Act by failing , since about 1 November 1981, to make certain contractually re- quired contributions on behalf of its unit employees to the Western Conference of Teamsters Pension Trust Fund . We noted that the Respondent was a party to a bankruptcy proceeding . We also note that the Respondent filed its Chapter 11 petition on 27 January 1981 and that the Bankruptcy Court ap- proved rejection of the collective -bargaining agree- ment on 12 April 1982. Subsequent to the issuance of our earlier decision, the United States Supreme Court in NLRB v. Bildisco & Bildisco, 115 LRRM 2805, 100 LC $ 10,771 (1984), held that a debtor in possession does not commit an unfair labor practice when it unilaterally rejects or modifies a collective- bargaining agreement after the filing of a petition 1 265 NLRB 452 (1982) 2 In the Matter of Tucson Yellow Cab Company, Inc., debtor, No 81- 00103 (B C Anz June 23, 1982) in bankruptcy. Accordingly, we find that the Re- spondent did not violate the Act by failing to make the pension fund contributions as alleged in the complaint. We shall revise our Conclusions of Law and Order accordingly. CONCLUSIONS OF LAW 1. Tucson Yellow Cab, Inc., a debtor in posses- sion, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 310, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular and extra drivers, dispatchers, tele- phone operators, and mechanics, excluding office clerical employees, and guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been the exclusive representative of the employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing, since about 18 March 1982 and to date, to bargain collectively with the Union as the exclusive bargaining representative of all the employees of the Respondent in the appro- priate unit, concerning the effects on its unit em- ployees of its decision to cease operations and sell its assets, the Respondent has violated Section 8(a)(5) and (1) of the Act. 6. Except as found herein, the other allegations of the complaint are dismissed. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent has unlaw- fully refused to bargain over the effects of its deci- sion to cease operations and sell its assets. To remedy this, we shall order the Respondent to bar- gain with the Union, on request, concerning the ef- fects of its decision. Further, in order to assure meaningful bargaining and to effectuate the pur- poses of the Act, we shall accompany our Order to bargain with a requirement that the Respondent provide backpay to unit employees in a manner 275 NLRB No. 32 TUCSON YELLOW CAB similar to that prescribed in Transmarine Navigation Corp., 170 NLRB 389 (1968).3 The Respondent shall pay employees backpay at the rate ' of their normal wages when last in the Respondent's employ from 5 days after the date of this Order until the occurrence of the earliest of the following conditions : (1) the' date the Respondent bargains to agreement with the Union on those subjects per- taining to the effects of the closing on its unit em- ployees; (2) a bona fide impasse in bargaining; -(3) the failure of the Union to request bargaining within 5 days of this Order, or to commence nego-' tiations within 5 days of the Respondent's notice of its desire to bargain with the Union ; or (4) the sub- sequent failure of, the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount each would have earned as wages from the date on which the Respondent terminated its operations to the time he or she secured equivalent employment elsewhere, or the date on which the Respondent" shall have of- fered to bargain, whichever occurs sooner; provid- ed, however, that in no event shall this sum be less than these employees would have earned for a 2- week period at the rate of their normal -wages when last in the Respondent's employ. Interest shall be paid in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Further, the' Respondent shall be required, in consultation with the Union , to establish a prefer- ential hiring list of all its laid-off unit employees following the system of seniority provided for in the collective-bargaining agreement or, if there is none, any nondiscriminatory system . If the Re- spondent ever resumes operations and engages in the same business anywhere in the Tucson area, it shall be required to offer these employees reinstate- ment. Finally, in view of the fact that the Respond- ent is no longer in operation and its former em- ployees may be in different locations, we shall order the Respondent to mail to each of its unit employees employed on the date it ceased oper- ations copies of the attached notice signed by the Respondent. ORDER The National Labor Relations Board orders that the Respondent, Tucson Yellow Cab, Inc., a debtor 9 Member Hunter finds it appropriate here to provide for the payment of limited backpay as is customary in cases where the Board has found only an "effects-bargaining" violation In so finding, however, he notes that it is the bankruptcy court which has the authority to determine the allowability and priority of monetary claims resulting from Board orders See generally his dissent in Edward Cooper Painting, 273 NLRB 1870 (1985) in possession, Tucson, Arizona, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to bargain collectively with Team-, stern, Chauffeurs, Warehousemen and Helpers, Local Union No. 310, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of the_ Respondent's employees in the ' unit described below, concerning the effects of ceasing operations and selling assets . The bargain- ing.unit; is: All regular and extra drivers,I dispatchers, tele- phone operators, and mechanics employed by us at our Tucson, Arizona facility, excluding office clerical employees, guards and supervi- sors as' defined in the Act. (b) In any like or. related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the , Board finds will effectuate the policies of the Act. • - (a) On request, bargain with the Union as the ex- clusive representative of the unit employees with respect to the effects on such employees of its deci- sion to cease operations and sell its assets, and reduce to writing any agreement reached as a result of such bargaining. (b) Pay the terminated unit employees their normal wages for the period specified by the Na- tional Labor Relations Board, with interest. (c) Establish in consultation with the Union a preferential hiring list of all employees in the unit who were laid off as a result of ceasing operations, pursuant to the system of seniority provided for in the collective-bargaining agreement or, if there is none, any nondiscriminatory system. If operations are ever resumed in the Tucson area, offer rein- statement to those employees. If the Respondent resumes operations of the Tucson facility, it shall offer all those in the unit reinstatement to their former positions or, if such positions no longer exist; to substantially equivalent positions. ' (d) 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. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Mail an exact copy of the attached notice marked "Appendix"4 to the Union and to all em- ployees who were employed in the unit at the Tucson, Arizona facility. Copies of the notice on forms provided by the Regional Director for Region 28, after being signed by the Respondent's authorized representative, shall be mailed immedi- ately upon receipt, as directed above. (f) Notify the Regional Director within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 4 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 fail and refuse to bargain collec- tively with Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 310, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive col- lective-bargaining representative of the employees in the unit described below, concerning the effects on the employees of our decision to cease oper- ations and sell our assets. The bargaining unit is: All regular and extra drivers, dispatchers, tele- phone operators, and mechanics employed by us at our Tucson, Arizona, facility; excluding office clerical employees, guards, and supervi- sors as defined the Act. 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 collectively with Teamsters, Chauffeurs, Warehousemen and Help- ers, Local Union No. 310, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, concerning the effects on our unit employees of our decision to cease operations and sell our assets. WE WILL pay the employees who were em- ployed by us their normal wages for a period speci- fied by the National Labor Relations Board, plus interest. WE WILL establish a preferential hiring list of all terminated employees in the bargaining unit and, if we resume operations in the Tucson, Arizona area, we shall offer these employees reinstatement. TUCSON YELLOW CAB, INC., A DEBTOR IN POSSESSION