347 N.L.R.B. 90 (N.L.R.B. 2006)

American Commercial Finance, Inc.

National Labor Relations Board - Board DecisionsAug 14, 2006

347 N.L.R.B. 90 (N.L.R.B. 2006)

347 NLRB No. 90 American Commercial Finance, Inc. and Local 580, International Brotherhood of Teamsters. Case 7–CA–49153 August 14, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge and amended charges filed by the Union on December 15, 2005, and February 6 and March 14, 2006, respectively, the Gen- eral Counsel issued the complaint on March 15, 2006, against American Commercial Finance, Inc., the Re- spondent, alleging that it has violated Section 8(a)(1) and (5) of the Act. The Respondent failed to file an answer. On April 14, 2006, the General Counsel filed a Motion for Default Judgment with the Board. On April 20, 2006, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations 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 affirmatively stated that unless an answer was filed by March 29, 2006, all the allegations in the complaint could be considered ad- mitted. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that the Region, by letter dated March 29, 2006, notified the Respondent that unless an answer was received by April 5, 2006, a mo- tion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’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, a corporation with a place of business at 9608 Davis Highway, Dimon- dale, Michigan, has been engaged in the business of pro- viding freight, pickup, and delivery service for DHL Ex- press (USA), Inc. During the calendar year 2005, a rep- resentative period, the Respondent, in the course and conduct of its business operations described above, de- rived gross revenues in excess of $500,000. During this same period, the Respondent provided services valued in excess of $50,000 to DHL Express (USA), Inc., which is directly engaged in interstate commerce. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Local 580, International Brother- hood of Teamsters (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Sean Howard has held the posi- tion of president of the Respondent and has been a su- pervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act, and an agent of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time drivers and ware- house employees employed by the Respondent at its place of business located in the DHL Express (USA), Inc., distribution facility at 9608 Davis Highway, Dimondale, Michigan, but excluding all office clerical employees, and guards and supervisors as defined in the Act. At all material times, by virtue of a certification of rep- resentative issued by the Board in Case 7–RC–22822 on January 28, 2005, the Union has been the designated collective-bargaining representative of the unit, and has been recognized as the representative by the Respondent. At all material times, by virtue of Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the unit. About December 14, 2005, the Union, by letter, re- quested that the Respondent furnish the Union with, “the name of the person who informed the Employer [Re- spondent] that approval from the International Union was required prior to implementation and execution” of a collective-bargaining agreement over which the Union and the Respondent were bargaining. The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since about December 14, 2005, the Respondent has failed and refused to furnish the Union with the informa- tion requested by it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 About December 2005, the Respondent implemented changes in its health insurance policy for the unit by changing the benefit coverage of the policy. The subject set forth above relates to wages, hours, and other terms and conditions of employment of the unit, and is a mandatory subject for the purposes of collective bargaining. The Respondent changed the benefit cover- age of the health insurance policy without affording the Union notice and a meaningful opportunity to bargain with respect to this conduct and its effects on the unit. Since about April 2005, during the course of collec- tive-bargaining negotiations, the Respondent, by its agent Sean Howard, made previously agreed-to contractual provisions for the unit contingent on approval by a third party and refused to enter into a collective-bargaining agreement unless the Union signed an addendum pre- sented by the Respondent regarding approval by a third party. CONCLUSION OF LAW By the conduct described above, the Respondent has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining representa- tive of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 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, having found that the Respondent has violated Section 8(a)(1) and (5) by implementing changes in its health insurance policy for the unit by changing the benefit coverage of the policy, we shall order the Respondent to rescind the changes implemented in its health insurance policy for the unit employees and restore the status quo ante that existed prior to the unlawful changes. We shall also or- der the Respondent to make the unit employees whole for any expenses they may have incurred as a result of the Respondent’s unlawful conduct, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Ser- vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In addition, having found that the Respondent has failed and refused since December 14, 2005, to furnish the Union with the information that it requested on about that same date, we shall order the Respondent to furnish the Union with the requested information. ORDER The National Labor Relations Board orders that the Respondent, American Commercial Finance, Inc., Dimondale, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Local 580, International Brotherhood of Teamsters as the exclusive representative of the employ- ees in the following appropriate unit by unilaterally changing the benefit coverage of the unit employees’ health insurance policy. The unit is: All full-time and regular part-time drivers and ware- house employees employed by the Respondent at its place of business located in the DHL Express (USA), Inc., distribution facility at 9608 Davis Highway, Dimondale, Michigan, but excluding all office clerical employees, and guards and supervisors as defined in the Act. (b) Failing and refusing to furnish the Union with in- formation necessary for and relevant to the performance of its duties as the exclusive collective-bargaining repre- sentative of the employees in the unit. (c) Making previously agreed-to contractual provisions for the unit contingent on approval by a third party and refusing to enter into a collective-bargaining agreement unless the Union signs an addendum presented by the Respondent regarding approval by a third party. (d) 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) Rescind the unilateral changes implemented De- cember 2005 to the unit employees’ health insurance policy and restore the status quo that existed in Decem- ber 2005 prior to the Respondent’s unilateral changes in the benefit coverage of the policy, until the Respondent bargains with the Union in good faith to an agreement or an impasse. (b) Reimburse unit employees for any expenses result- ing from its unlawful changes in their health insurance policy, with interest, in the manner set forth in the rem- edy section of this decision. (c) Furnish the Union with the information it requested by letter on about December 14, 2005. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for AMERICAN COMMERCIAL FINANCE, INC. 3 good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amounts due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Dimondale, Michigan, copies of the at- tached notice marked “Appendix.”1 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 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since April 2005. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO 1 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 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 activities. WE WILL NOT fail and refuse to bargain collectively and in good faith with Local 580, International Brother- hood of Teamsters as the exclusive representative of the employees in the following appropriate unit by unilater- ally changing the benefit coverage of the unit employees’ health insurance policy. The unit is: All full-time and regular part-time drivers and ware- house employees employed by us at our place of busi- ness located in the DHL Express (USA), Inc., distribu- tion facility at 9608 Davis Highway, Dimondale, Michigan, but excluding all office clerical employees, and guards and supervisors as defined in the Act. WE WILL NOT fail and refuse to furnish the Union with information necessary for and relevant to the perform- ance of its duties as the exclusive collective-bargaining representative of the employees in the unit. WE WILL NOT make previously agreed-to contractual provisions for the unit contingent on approval by a third party and refuse to enter into a collective-bargaining agreement unless the Union signs an addendum pre- sented by us regarding approval by a third party. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the unilateral changes implemented December 2005 to the unit employees’ health insurance policy and restore the status quo that existed in Decem- ber 2005 prior to our unilateral changes in the benefit coverage of the policy, until we bargain with the Union in good faith to an agreement or impasse. WE WILL reimburse unit employees for any expenses resulting from our unlawful changes in their health insur- ance policy, with interest. WE WILL furnish the Union with the information it re- quested by letter on about December 14, 2005. AMERICAN COMMERCIAL FINANCE, INC.