NTI-CA, Inc.

372 NLRB No. 71 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- 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. NTI-CA, Inc. and General Teamsters, Airline, Aero- space and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local 986. Cases 31–CA–297870 and 31–CA–304306 April 6, 2023 DECISION AND ORDER1 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY The General Counsel seeks a default judgment in this case on the ground that NTI-CA, Inc. (the Respondent) has failed to file an answer to the complaint. Upon charges and amended charges filed by General Teamsters, Airline, Aerospace and Allied Employees, Warehousemen, Driv- ers, Construction, Rock and Sand, Local 986 (the Union),2 the General Counsel issued a consolidated complaint on December 13, 2022, against the Respondent, alleging that it had violated Section 8(a)(5) and (1) of the Act. The Re- spondent failed to file an answer. On January 26, 2023, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. Thereafter, on January 30, 2023 the Board is- sued 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 allega- tions in the motion are therefore undisputed. RULING ON MOTION FOR DEFAULT JUDGMENT Section 102.20 of the Board’s Rules and Regulations provides that a respondent “must specifically admit, deny, or explain each of the facts alleged in the complaint, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement operating as a denial.” It also provides that the allegations in a 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 here affirmatively stated that unless an answer was received by December 27, 2022, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the General Counsel’s motion disclose that by letter dated December 29, 2022, the Respondent was advised that unless an an- swer was received by January 5, 2023, a motion for default 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. judgment would be filed. Nevertheless, the Respondent failed to file an answer. In the absence of good cause being shown for the failure to file an answer, we deem the allegations in the complaint to be admitted as true, and we grant the General Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a Nevada corporation with a headquarters and principal place of business in Las Vegas, Nevada, and a facility located in Inglewood, California, where it has been engaged in the business of providing transportation services. In conducting its operations described above during cal- endar year 2021, the Respondent generated gross revenues in excess of $500,000. In conducting its operations described above during cal- endar year 2021, the Respondent purchased and received at its Las Vegas facility services valued in excess of $5000 directly from companies located outside the State of Ne- vada. Accordingly, we find that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 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 1. At all material times, John Kindt held the position of the Respondent’s owner and has been an agent of the Re- spondent within the meaning of Section 2(13) of the Act. 2(a). The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time bus drivers em- ployed by the Respondent at its facility located at 333 Hindry Ave., Inglewood, CA 90301. (b) Since about July 2002, and at all material times, the Respondent has recognized the Union as the exclusive collective-bargaining representative of the unit. This recognition has been embodied in successive collective- bargaining agreements, the most recent of which was ef- fective from November 1, 2019 through October 31, 2022. (c) At all times since about July 2002, based on Sec- tion 9(a) of the Act, the Union has been the exclusive col- lective-bargaining representative of the unit. 2 Charge 31–CA–297870 was filed on June 14, 2022, and amended on July 27, August 16, and November 17. Charge 31–CA–304306 was filed on September 27, 2022. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 3(a). The collective-bargaining agreement described above contains an article, Article 2, Sections 2 and 3, per- taining to the deduction and remittance of union member- ship dues to the Union and the reporting of such deduc- tions to the Union. (b) On the dates set forth below, the Respondent failed to continue in effect all the terms and conditions of the collective-bargaining agreement described in paragraphs 2(a) and 3 by: (i) From October 2021 through February 2022, failing to remit dues to the Union pursuant to the provisions described in 3(a) despite having de- ducted the dues from the wages of unit employees pursuant to the provisions described in paragraph 3. (ii) From March 2022 through the beginning of June 2022, failing to deduct and/or remit dues to the Union pursuant to the provisions described in par- agraph 3. (iii) From March 2022 through the beginning of June 2022, failing to furnish the Union with dues- related information pursuant to the provisions de- scribed in paragraph 3. (c) The terms and conditions of employment described in paragraphs 3(a)(i)-(iii) are mandatory subjects of bar- gaining. (d) The Respondent engaged in the conduct described in paragraphs 3(a)(i)-(iii) without the Union’s consent. 4(a). The collective-bargaining agreement described in paragraph 2(a) contains an article – Article 15 – pertaining to the grievance and arbitration procedure. (b) About March 21, 2022, pursuant to the grievance and arbitration provisions set forth in paragraph 4(a), the Union filed a grievance regarding the Respondent’s con- duct described in paragraph 3(b)(i) and (ii). (c) About April 21, 2022, pursuant to the grievance and arbitration provision set forth in paragraph 4, the Un- ion filed a grievance regarding the Respondent’s conduct described in paragraph 3(a)(i) and (ii). (d) About May 4, 2022, pursuant to the grievance and arbitration provision set forth in paragraph 4, the Union requested to arbitrate the grievances described in para- graphs 4(a) and 4(b).(e) Since March 21, 2022, the Re- spondent has failed to continue in effect all the terms and conditions of the agreement described in paragraph 2(a) and 4 by failing and refusing to process and arbitrate the Union’s grievances described in paragraphs 4(b)-4(d). (e) The terms and conditions of employment described in paragraph 4(e) are mandatory subjects for the purposes of collective bargaining. (f) The Respondent engaged in the conduct described above in paragraph 4(e) without the Union’s consent. 5. By the conduct described in paragraphs 3(c) and 4(d), the Respondent effectively repudiated the collective- bargaining agreement described in paragraph 2(a). 6(a). About June 1, 2022, the Union requested that the Respondent bargain collectively about the Respondent’s conduct described above in paragraph 3(a). (b) Since about June 1, 2022, the Respondent has failed and refused to bargain collectively about the sub- jects set forth in paragraph 3(a). (c) The subjects set forth in paragraph 3(a) relate to wages, hours, and other terms and conditions of employ- ment of the unit and are mandatory subjects for the pur- poses of collective bargaining. 7(a). On June 1, 2022, the Union requested, in writing, that the Respondent furnish the Union with the following information: 1. Please provide dues deduction reports for Lo- cal 986 bargaining unit employees from October 2021 to the present. 2. Where are the dues that NTI-CA has deducted from Local 986 bargaining unit employees, but not remitted to Local 986, since October 2021? a. Have the dues been segregated in a des- ignated account? b. Please provide bank statements and/or ac- count statements showing where the dues have been deposited and the current balance of the accounts(s). 3. Does NTI-CA intend to remit back dues owed to Local 986 since October 2021? If so, when? If not, why not? 4. Does NTI-CA intend to make payments to other creditors before paying back dues to Local 986? If so, please provide the basis for the Com- pany’s position that it has the right to do so. (b) The information request by the Union, as described in paragraph 7, is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bar- gaining representative of the unit. (c) Since about June 1, 2022, the Respondent has failed and refused to furnish the Union with the infor- mation requested by it as described in paragraph 7. 8(a). Around the beginning of June 2022, the Union learned that the Respondent had ceased all operations, shut down its facility, and laid off all unit employees em- ployed by the Respondent, with the exact date of the NTI-CA INC. 3 closure and layoffs being unknown to the Union, but par- ticularly within the knowledge of the Respondent.3 (b) The Respondent engaged in the conduct described above in paragraph without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to the effects of this con- duct. CONCLUSIONS OF LAW 1. By failing and refusing to bargain collectively with the Union about the effects on unit employees of the Re- spondent’s decision to cease its operations and by failing to provide the Union with the requested information, the Respondent has been failing to bargain collectively with the exclusive collective-bargaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act. 2. By failing to continue in effect all the terms and con- ditions of the parties’ collective-bargaining agreement, the Respondent has been failing and refusing to bargain col- lectively 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 Section 8(a)(5) and (1) of the Act. 3. The unfair labor practices of the Respondent de- scribed above affect commerce within the meaning of Sec- tion 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, to remedy the Respondent’s unlawful failure and refusal to bargain with the Union about the effects of the Respondent’s de- cision to cease its operations, we shall order the Respond- ent to bargain with the Union, on request, about the effects of its decision. As a result of the Respondent’s unlawful conduct, however, the unit employees have been denied an opportunity to bargain through their collective-bargain- ing representative at a time when the Respondent might still have been in need of their services and a measure of balanced bargaining power existed. Meaningful bargain- ing cannot be assured until some measure of economic strength is restored to the Union. A bargaining order 3 Although the complaint alleges that the Respondent’s cessation of operations is a mandatory subject of bargaining, we need not address that allegation because there is no allegation that the failure to bargain about the decision to close violates the Act. Instead, the complaint specifically alleges only that the Respondent violated the Act by failing to give notice and afford the Union an opportunity to bargain about the effects of that conduct. The Board has long held that the effect of such decisions on alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to ensure that meaningful bargaining occurs and to effectuate the policies of the Act, to accompany our bargaining order with a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the violation and to recreate in some practicable manner a sit- uation in which the parties’ bargaining position is not en- tirely devoid of economic consequences for the Respond- ent. We shall do so by ordering the Respondent to pay backpay to the unit employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified by Melody Toyota, 325 NLRB 846 (1998).4 Accordingly, the Respondent shall pay its unit employ- ees backpay at the rate of their normal wages when last in the Respondent’s employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closure on the unit employees; (2) the parties reach a bona fide impasse in bargaining; (3) the Union fails to request bargaining within 5 business days after receipt of this Decision and Order or to commence negotiations within 5 business days after receipt of the Re- spondent’s notice of its desire to bargain with the Union; or (4) the Union subsequently fails to bargain in good faith. In no event shall the sum paid to these employees ex- ceed the amount they would have earned as wages from the date on which the Respondent ceased operations to the time they secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner. However, in no event shall this sum be less than the employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent’s employ. Backpay shall be based on earnings that the unit employ- ees normally would have received during the applicable period and shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded unit employees is a mandatory subject of bargaining. See Kohler & Sons, Inc., 355 NLRB 221, 222 fn. 3 (2010); Nick & Bob Partners, 340 NLRB 1196, 1198 (2003). Accordingly, we find that the complaint supports a cause of action as to the failure to bargain over the effects of the Re- spondent’s decision to cease its operations and to lay off its unit employ- ees. 4 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Additionally, we shall order the Respondents to com- pensate the unit employees for any adverse tax conse- quences of receiving lump-sum backpay awards in ac- cordance with Don Chavas, LLC d/b/a Tortillas Don Cha- vas, 361 NLRB 101 (2014), and to file a report with the Regional Director for Region 31 allocating the backpay award to the appropriate calendar years for each employee in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). In addition to the backpay allocation report, we shall order the Respondent to file with the Re- gional Director for Region 31 a copy of each backpay re- cipient’s corresponding W-2 form(s) reflecting the back- pay award. Cascade Containerboard Packaging—Niag- ara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). Further, having found that the Respondent violated Sec- tion 8(a)(5) and (1) within the meaning of Section 8(d) by failing to remit dues to the Union from October 2021 through February 2022, and failing to deduct and/or remit dues to the Union from March 2022 through the beginning of June 2022, without the Union’s consent, we shall order the Respondent to make the Union whole for any dues the Union would have received absent the Respondent’s un- lawful conduct, including those the Union would have re- ceived since October 2021, with interest at the rate pre- scribed in New Horizons, supra, compounded daily as pre- scribed in Kentucky River Medical Center, supra, and without recouping the money owed for past dues from em- ployees.5 We shall additionally order the Respondent to furnish the Union with dues-related information from March 2022 through the beginning of June 2022. Having also found that the Respondent violated Section 8(a)(5) and (1) within the meaning of Section 8(d) by fail- ing and refusing to process and arbitrate the grievances filed by the Union, we shall order the Respondent, on re- quest, to respond to the grievances and/or requests for ar- bitration, including the grievances submitted by the Union on about March 21 and April 21, 2022 and its request for arbitration submitted on about May 4, 2022. In addition, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees, we shall order the Respondent to furnish 5 See Distler Construction Co., 363 NLRB 187, 190 fn. 2 (2015). To prevent a double recovery by the Union, however, payment by the Re- spondent to the Union under this remedy shall be offset by the amount of dues actually collected by the Union from members who authorized the Union with the information that it requested on June 1, 2022. Finally, in view of the fact that the Respondent has ceased operations, we shall order the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of its former unit employees who were employed at any time since October 2021, in order to in- form them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Re- spondent, NTI-CA, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with General Teamsters, Airline, Aerospace and Allied Employees, Warehousemen, Drivers, Con- struction, Rock and Sand, Local 986 (the Union) as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit with respect to the effects of its decision to cease operations, shut down its facility and lay off all unit employees prior to June 2022. All full-time and regular part-time bus drivers employed by the Respondent at its facility lo- cated at 333 Hindry Ave., Inglewood, CA 90301. (b) Failing and refusing to deduct and/or remit dues to the Union in accordance with the parties’ collective-bar- gaining agreement and failing to furnish the Union with dues-related information. (c) Failing and refusing to process and arbitrate griev- ances filed by the Union in accordance with the parties’ collective-bargaining agreement. (d) Failing and refusing to furnish the Union with re- quested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive col- lective-bargaining representative of the unit employees. (e) In any like or related 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 necessary to effectuate the policies of the Act. (a) On request, bargain collectively and in good faith with the Union about the effects of its decision to cease operations prior to June 2022 and reduce to writing and sign any agreements reached as a result of such bargain- ing. dues check-off since October 2021, notwithstanding the Respondent’s failure to remit such amount to the Union. See A.W. Farrell & Sons, 361 NLRB 1487, 1487 fn. 3 (2014). NTI-CA INC. 5 (b) Pay to the unit employees their normal wages for the period set forth in the remedy section of this decision, with interest. (c) Compensate the unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 31, within 21 days from the date of this Order, a report allo- cating the backpay awards to the appropriate calendar years for each employee. (d) File with the Regional Director for Region 31 a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay awards. (e) Make the Union whole for any dues that the Re- spondent failed to deduct and/or remit under the parties’ collective-bargaining agreement and furnish the Union with dues-related information in the manner set forth in the remedy section of this decision. (f) On request, respond to grievances and/or demands for arbitration, including the grievances submitted by the Union on about March 21 and April 21, 2022, and its re- quest for arbitration submitted on about May 4, 2022. (g) Furnish to the Union in a timely manner the infor- mation it requested on June 1, 2022. (h) Preserve and, within 14 days of a request, or such additional time as the Regional Director for Region 31 may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll rec- ords, social security payment records, timecards, person- nel records and reports, and all other records including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (i) Within 14 days after service by the Region, duplicate and mail, at its own expense and after being signed by the Respondent’s authorized representative, copies of the at- tached notice marked “Appendix,”6 to the Union and to all unit employees who were employed by the Respondent at any time since October 2021. In addition to the physical mailing of paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means.7 (j) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certification 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Mailed by Order of the National Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 7 Because the facilities involved in this proceeding have closed, we do not modify the notification remedy as set forth in Danbury Ambulance of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. April 6, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, 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 vi- olated 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 bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to bargain collectively and in good faith with General Teamsters, Airline, Aer- ospace and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local 986 (the Union) as the exclusive collective-bargaining representative of our unit employees in the following appropriate unit by failing and refusing to bargain over the effects of our decision to cease operations. The unit is: Service, Inc., 369 NLRB No. 68 (2020) (holding that, if the facility in- volved in proceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notification obligation is delayed until 14 days after the facility reopens and a substantial complement of employ- ees have returned to work). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 All full-time and regular part-time bus drivers employed by the Respondent at its facility located at 333 Hindry Ave., Inglewood, CA 90301. WE WILL NOT fail and refuse to deduct and/or remit membership dues to the Union in accordance with the collective-bargaining agreement and WE WILL NOT fail to furnish dues-related information to the Union. WE WILL NOT fail and refuse to process and arbitrate grievances filed by the Union in accordance with the collective-bargaining agreement. WE WILL NOT fail and refuse to furnish the Union with requested information that is necessary for and relevant to the performance of its duties as the exclusive collec- tive-bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain collectively and in good faith with the Union concerning the effects of our deci- sion to cease operations and WE WILL reduce to writing and sign any agreements reached as a result of such bar- gaining. WE WILL pay our unit employees their normal wages for the period set forth in the Decision and Order of the National Labor Relations Board, with interest. WE WILL compensate our affected employees for the adverse tax consequences, if any, of receiving lump- sum backpay awards, and WE WILL file with the Re- gional Director for Region 31, within 21 days of the date of the Board’s Order, a report allocating the backpay awards to the appropriate calendar years for each em- ployee. WE WILL file with the Regional Director for Region 31 copies of your W-2 forms reflecting the backpay awards. WE WILL, on request, respond to grievances and/or demands for arbitration, including the grievances sub- mitted by the Union on about March 21 and April 21, 2022, and its request for arbitration submitted on about May 4, 2022. WE WILL furnish the Union with the information it re- quested on June 1, 2022. NTI-CA, INC. The Board’s decision can be found at www.nlrb.gov/case/31-CA-297870 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.