Michigan Expediting Service; Michigan Expediting Services, Inc., Action Express, Inc., And Vincent Express, Inc.

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abdul Samad Ra'oof Shabazz and Jacqueline Craig, a co-partnership d/b/a Michigan Expediting Service; Michigan Expediting Services, Inc., Action Express, Inc., and Vincent Express, Inc. and Ewan Greig and Local 299, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Cases 7- CA-25514 and 7-CA-25533 20 November 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a charge in Case 7-CA-25514 filed by Ewan Greig 18 February 19861 and amended 15 April,2 and a charge in Case 7-CA-25533 filed by the Union 21 February and amended 7 April,3 the General Counsel of the National Labor Relations Board issued a consolidated complaint 30 April4 and amended complaint 11 Julys against Abdul Samad Ra'oof Shabazz and Jacqueline Craig, a co- partnership d/b/a Michigan Expediting Service, Michigan Expediting Services, Inc., Action Ex- press, Inc., and Vincent Express, Inc. (collectively called the Respondent), alleging that it has violated Section 8(a)(3) and (1) of the National Labor Rela- tions Act. The amended complaint alleges that the Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging and inflicting bodily harm on em- ployee Ewan Greig because he joined, supported, and/or assisted the Union, and by discharging em- ployee William Moss because he made common cause with Greig in trying to protect Greig from physical abuse from the Respondent growing out of Greig's illegal discharge. The amended com- plaint also alleges that the Respondent violated Section 8(a)(1) of the Act by telling employees that Greig was being discharged because of his support i All dates are in 1986 unless otherwise indicated. a The original charge in Case 7-CA-25514 was served by certified marl about 18 February on the Respondent Action Express , Inc. The amended charge was served by certified mail 28 April on the Respond- ents Abdul Samad Ra'oof Shabazz and Jacqueline Craig d/b/a Michigan Expediting Service and on Respondent Michigan Expediting Service, Vincent Express, and Action Express . The amended charge was un- claimed by the Respondents. 3 The original charge in Case 7-CA-25533 was served by certified mail on the Respondent Michigan Expediting Services , Inc. and the Re- spondent Action Express on 21 February. The amended charge was served by certified mail 28 April on the Respondents, Abdul Samad Ra'oof Shabazz and Jacqueline Craig, a co-partnership d/b/a Michigan Expediting Service; Michigan Expediting Services , Inc., Action Express Inc., and Vincent Express, Inc . The amended charge was unclaimed by the Respondents. 4 The complaint was served by certified mail on the Respondents 30 April but was unclaimed On 6 June the Respondents were again served with a copy of the complaint . This was also unclaimed The amended complaint was served by certified mail on the Re- spondents 11 July and was received by the Respondents 24 July. for and/or activities on behalf of the Union, and by threatening employees who supported the Union with physical harm. The amended complaint also alleges that the unfair labor practices set forth above are so serious and substantial in nature and so pervasive in character as to render nugatory the holding of a fair initial representation election and warrant the issuance of a bargaining order. Al- though properly served copies of the charges and complaints, the Respondent failed to file an answer.6 On 2 July the General Counsel filed with the Board a motion to transfer the case to the Board and for Default Summary Judgment. On 11 August, following the amendment to the complaint, the General Counsel filed an addendum to its Motion for Default Summary Judgment. On 12 August 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 did not file a response to the Notice to Show Cause. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Default 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 consolidated com- plaint states that unless an answer is filed within 10 days from the service, "all of the allegations in the Consolidated Complaint shall be deemed to be ad- mitted true and may be so found by the Board." Further, according to the Motion for Default Sum- mary Judgment, on 15 May the Regional Attorney advised the Respondent that the Regional Office had not received an answer and that if an answer was not filed by 29 May, a motion for default judg- ment would be sought. On 6 June the Respondent was again served with a copy of the consolidated complaint. On 11 July counsel for the General Counsel enclosed with a copy of the amended complaint a letter stating that "it is the intention of the Counsel for the General Counsel to pursue the Motion for Default Summary Judgment dated June 27, 1986 should Respondents not file a timely answer as called for on page 7 of the Amended 6 The Respondent's refusal or failure to claim certified mail should not serve to defeat the purposes of the Act. Sheet Metal Workers Local 49 (Driver-Miller Plumbing), 124 NLRB 888, 890 (1959), Pasco Packing Ca, 115 NLRB 437 (1956) 282 NLRB No. 30 MICHIGAN EXPEDITING SERVICE 211 Complaint." The Respondent has failed to file an answer to the complaint or the amended complaint, and has failed to file a response to the Notice To Show Cause. Accordingly, in the absence of good cause being shown for failure to, file a timely answer, we grant the General Counsel's Motion for Default Summary Judgment insofar as the com- plaint alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging and in- flicting bodily harm on employee Ewan Greig and by, discharging employee William Moss and violat- ed Section 8(a)(1) of the Act by telling employees that Greig was being discharged because of his union activities and by threatening employees who supported the Union with physical harm. As noted above, the complaint additionally al- leges that these unfair labor practices are so serious and substantial in nature and so pervasive in char- acter as to render nugatory the holding of a fair initial representation election and warrant the entry of a bargaining order. In determining whether a bargaining order is appropriate to remedy an em- plloyer's misconduct, we utilize the test delineated in NLRB Y. Gissel Packing Co., 395 U.S. 575 (1969). In evaluating the nature and pervasiveness of a company's unfair labor practices, that test requires us to consider many factors before making a deter- mination whether a bargaining order is warranted. In weighing the pervasive effect of a violation, rel- evant considerations include the number of em- ployees directly affected by the violation, the size of the unit, the extent of dissemination among the work force, and the identity of the perpetrator of the unfair labor practice. The complaint in the in- stant case alleges that the Respondent discharged two employees and inflicted bodily injury on one of them, told employees an employee was being discharged for union activities, and threatened bodily injury on employees who supported the Union. The complaint further alleges, in conclusion- airy terms that such unfair labor practices preclud- ed the holding,of a fair' election and that therefore a bargaining order is warranted. In our view, the complaint does not allege sufficient facts to deter- mine whether a bargaining order is warranted. See Handy Dan's Convenience Store, 275 NLRB 394 (11985); Power Jet Industrial Cleaning, 270 NLRB 975 (1984). Although the unfair labor practices here are serious in nature, the complaint does not allege sufficient facts to enable .the Board to evalu- ate the pervasiveness of the violations. For exam- ple, the complaint does not allege the size of the unit,' the number of employees who witnessed the infliction of bodily injury on Greig, the number of employees who heard the Respondent's statement that Greig was being discharged for union activi- ties, and the number of employees subjected to the Respondent's - threat. The complaint also does not allege the extent of dissemination, if any, of these violations among the work force to those employ- ees not directly affected by them. Accordingly, we deny the Motion for Default Summary Judgment insofar as it alleges that a bargaining order is ap- propriate. We shall, however, remand this case for a hearing before an administrative law judge only on the issue of whether a bargaining order is an ap- propriate remedy under the circumstances of this case. On the entire record , the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION Abdul Samad Ra'oof Shabazz and Jacqueline Craig are owners of a co-partnership doing busi- ness under the name of Michigan Expediting Serv- ice. Each of Michigan Expediting Service, Inc.; Action Express, Inc:; and Vincent Express, Inc. is a Michigan corporation maintaining its principal office and place of business at 1403 E. State Fair, Detroit, Michigan. The Respondent is engaged in the intrastate transportation of freight by motor ve- hicles as a common carrier. During the calendar year ending 31 December 1985, a representative period, the Respondent and each of its entity com- panies performed services valued in excess of $50,000 for General Motors Corporation, Ford Motor Company, and Chrysler Corporation. During the calendar year ending 31 December 1985, a representative period, each of General Motors Corporation, Ford Motor Company, and Chrysler Corporation had 'annual gross revenues in excess of $500,000, and each purchased goods and materials valued in excess of $50,000, which were transported and delivered to its facilities in the State of Michigan directly from points located out- side the State of Michigan.' At all material times, all the entities comprising the Respondent have been 'affiliated business enter- prises with common offices and/or ownership, di- rectors, management, and supervision, have formu- lated and administered a common labor policy af- fecting employees of the operations, have shared common facilities and equipment, and have provid- ed services for each other and have allowed inter- change of employees and payroll functions. We find that the Respondent constitutes a single inte- grated business enterprise and a single and/or joint employer within the meaning of the Act. At all material times, Michigan Expediting Serv- ice, Inc., Action Express, Inc., and Vincent Ex- 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD press, Inc. have had substantially identical manage- ment, labor and personnel policies, business pur- poses, operations, equipment, and supervision of employees at their shared Detroit facility. We find that all these entities are `alter egos of each other. We find that the Respondent and each entity of the Respondent are employers individually and collec- tively engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. We also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES About 14 February, the Respondent, through its agent Wattie Bishop, discharged and inflicted bodily harm on the Charging Party, Ewan Greig, because he joined, supported, and/or assisted the Union. Also about 14 February the Respondent, through its agent Wattie Bishop, discharged em- ployee William Moss because he made common cause with Greig in trying to protect Greig from physical abuse from Bishop growing out of the Re- spondent's discharge' of Greig. We find that by these acts, the Respondent has violated Section 8(a)(3) and (1) of the Act. About 14 February, at its Detroit facility, the Respondent, through its agent Wattie Bishop, told employees that Greig was being discharged be- cause of his support for and/or activities on behalf of the Union. Also about 14 February, at the Board's Regional, Office of Region 7, the Respond- ent, through Wattie Bishop, threatened employees who supported the charging Union with physical harm. We find that by these acts, the Respondent has violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW By discharging and inflicting bodily harm on Ewan Greig, and by discharging William Moss about 14 February, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. By telling employees that Greig was being dis- charged because of his support for and/or activities on behalf of the Union, and by threatening employ- ees who supported the Union with physical harm, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. Act. We shall order the Respondent to offer em- ployees Ewan Greig and William Moss immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed. We shall further order the Respondent to make the above-named employees whole for any loss of earnings they may have suffered as a result of the discrimination against them, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). We shall also order the Respondent to remove from its files any reference to the unlawful discharges and to notify the employees in writing that this has been done and that the unlawful discharges will not be used against them in any way. We shall further order the Respondent to post an appropriate notice to employees. As previously noted, we shall also remand this case for hearing on the limited issue of whether a bargaining order is an appropriate remedy under the circumstances of this case.7 ORDER The National Labor Relations Board orders that the Respondent, Abdul Samad Ra'oof Shabazz and Jacqueline Craig, a co-partnership d/b/a Michigan Expediting Service, Michigan Expediting Services, Inc., Action Express, Inc., and Vincent Express, Inc., Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging or inflicting bodily harm on em- ployees because they join, support, and/or assist Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. (b) Discharging employees for trying to protect other employees from physical abuse growing out of their illegal discharges. (c) Telling employees that other employees are being discharged because of their support for and/or activities on behalf of the Union or any other labor organization. (d) Threatening employees who support the Union or any other labor organization with physi- cal harm. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- REMEDY Having found that the Respondent has violated Section 8(a)(3) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the 7 The General Counsel seeks a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause Accordingly,- we deny the General Counsel's request. MICHIGAN EXPEDITING SERVICE 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) Offer Ewan Greig and William Moss immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful discharges of Greig and Moss, and notify them in writing that this has been done and that the discharges will not be used against them in any way. (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 Detroit, Michigan facility copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able 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. IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for the purpose of holding a hearing before an administrative law judge only on the issue of the appropriateness of a bargaining order as an additional remedy under the circumstances of this case. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 213 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 discharge or inflict bodily harm on you because you join, support, and/or assist Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE WILL NOT discharge you for trying to pro- tect other employees from physical abuse growing out of their illegal discharges. WE WILL NOT tell you that other employees are being discharged because of their support for and/or activities on behalf of the Union, or any other labor organization. , WE WILL NOT threaten employees who support the Union, or any other labor organization, with physical harm. 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 offer, employees Ewan Greig and Wil- liam Moss immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharges, , less any net in- terim earnings, plus interest. WE WILL notify Ewan Greig and William Moss that we have removed from our files any reference to their discharges and that we will not use the dis- charges 'against them in any way. ABDUL ' SAMAD RA'OOF SHABAZZ AND JACQUELINE CRAIG, A CO-PART- NERSHIP D/B/A MICHIGAN EXPEDIT- ING SERVICE; MICHIGAN EXPEDITING SERVICES, INC., ACTION EXPRESS, INC., AND VINCENT EXPRESS, INC. 8 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 Nation- all Labor Relations , Board" shall read "Pasted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."