Angelo Cartage Co., Inc. And Banner Transportation, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1985

274 N.L.R.B. 865 (N.L.R.B. 1985)

ANGELO CARTAGE CO
Angelo Cartage Company, Inc. and Banner Trans-
portation , Inc. and Local 299, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 7-CA-
22901
12 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union on 9 Decem-
ber 1983, the General Counsel of the National
Labor Relations Board issued a complaint on 27
January 1984 against the Companies, the Respond-
ents, alleging that they have violated Section
8(a)(1), (3), and (5) of the National Labor Relations
Act. Although properly served copies of the
charge and complaint, the Companies have failed
to file an answer. On 18 May 1984 the Regional
Director aproved an informal settlement agreement
and withdrew the complaint. On 26 September
1984 the Regional Director issued an "Order Set-
ting Aside Settlement Agreement and Reissuing
Complaint and Notice of Hearing" on the basis of
the Respondents' failure and refusal to comply
with the terms of the settlement agreement.
Thereafter, on 31 December 1984, the General
Counsel filed "Motions for Transfer and Continu-
ance of Case Before the Board and for Default
Summary Judgment, and Request for Expediting
Processing." On 9 January 1985 the Board issued
an order transferring the proceeding to the Board
and a Notice to Show Cause why the motions
should not be granted. The Companies filed no re-
sponse. The allegations in the motions 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." Further, the undisputed alle-
gations in the Motion for Default Summary Judg-
ment disclose that the Regional Attorney for
Region 7, by letter dated 17 October 1984, notified
the Companies that unless an answer was received
immediately, a Motion for Default Summary Judg-
ment would be filed.
In the absence of good cause being shown for
the failure to file a timely answer and a failure to
865
respond to the Notice to Show Cause, we grant the
General Counsel's Motions for Transfer and Con-
tinuance of Case Before the Board and for Default
Summary Judgment' and Request for Expediting
Processing.
On the entire record, the Board makes the fol-
lowing ,
FINDINGS OF FACT
I. ALTER EGO STATUS
At all times material herein Respondent Angelo
and Banner have had substantially identical owner-
ship, management , labor and personnel policies,
business purposes, operations, equipment, and su-
pervision of employees at their shared Ferry Street
and Green Street facilities. By virtue of the busi-
ness operations described above and by the acts
and conduct described below, we find that Re-
spondents Angelo and Banner are alter egos of
each other.
II. JURISDICTION
The Companies, Michigan corporations, are en-
gaged in the freight hauling business at their facili-
ties in Detroit, Michigan, where each corporation
annually performs services valued in excess of
$50,000; and those services are performed for vari-
ous enterprises located in States other than the
State of Michigan. We find that the Companies in-
dividually or collectively are employers engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
Since approximately 1940 and at all times materi-
al herein, the Union has been the designated collec-
tive-bargaining representative of a unit of Respond-
ent Angelo 's employees . Respondent Angelo has
signed successive contracts with the Union, the
most recent of which is effective from 1 March
1982 to 31 March 1985 , recognizing the Union as
the exclusive bargaining representative of a unit of
all full-time and regular part-time truckdrivers and
mechanics employed at Respondent Angelo's
Michigan terminals within the Union 's jurisdiction
in the State of Michigan . That unit is more fully
' In granting the General Counsel 's Motion for Default Summary
Judgment , Chairman Dotson specifically relies on the total failure of the
Respondents to contest either the factual allegations or the legal conclu-
sions of the General Counsel's complaint Thus, the Chairman regards
this proceeding as being essentially a default summary judgment which is
without precedential value
274 NLRB No. 120
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described in Respondent Angelo's collective-bar-
gaining agreement with the Union and is an appro-
priate unit within the meaning of Section 9(b) of
the Act.
B. The Alleged Violations of Section 8(a)(1) and
(3)
On or about 30 September 1983 the Respondents
permanently laid off all employees in the above-de-
scribed unit and closed the Ferry Street facility. In
addition on or about 1 October 1983 Respondent
Banner hired some of the above referred to unit
employees as new employees at its Green Street fa-
cility to 'do the same work functions under the
same supervision as previously, but with a loss of
wages and benefits which these employees previ-
ously had enjoyed by virtue of their collective-bar-
gaining agreement between the Respondents and
the Union. The complaint alleges that the Respond-
ents' layoff of unit employees and the subsequent
rehire of unit employees at subcontract wages and
benefits were motivated by the Respondents' desire
to avoid paying contractual wages and fringe bene-
fits and to thereby discourage employees from en-
gaging in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion. The complaint further alleges that this dis-
criminatory conduct violated Section 8(a)(3) of the
Act. Because, as noted above, the allegations of the
complaint are deemed admitted and found to be
true in the absence of a timely answer having been
filed, we find that by closing the Ferry Street,facil-
ity, laying off unit employees, and subsequently re-
hiring some of those unit employees at subcontract
wages, the Respondents violated Section 8(a)(1)
and (3) of the Act.
C. The Alleged Violations of Section 8(a)(1) and
(5)
As noted above at all times material herein the
Union has been the exclusive bargaining represent-
ative of the employees in the unit described above
and has been party to a current collective -bargain-
ing agreement with the Respondents covering
those employees . In or about late September 1983,
the Respondents circumvented the Union and dealt
directly with the employees in order to obtain a re-
duction in wages and/or modification or cessation
of fringe benefit payments as set forth in the cur-
rent collective -bargaining agreement . On or about
1 October 1983 and continuing to 7 December
1983, the Respondents failed and refused to main-
tain in full force and effect all the terms and condi-
tions of employment contained in the current col-
lective -bargaining agreement by reducing the wage
rate of unit employees and by unilaterally failing to
make full fringe benefit contributions on behalf of
unit employees. In addition, since on or about 1
October 1983, the Respondents have refused to
recognize and bargain in good faith with the Union
as the collective-bargaining representative of the
unit employees.
We find, as alleged in the complaint, that by
closing the Ferry Street facility, laying off unit em-
ployees, rehiring unit employees at subcontract
terms, 2 circumventing the Union and dealing di-
rectly with unit employees, failing and refusing to
maintain contractual terms, and by failing and re-
fusing to recognize and bargain with the Union as
the collective-bargaining representative of the unit
employees, the Respondents have violated Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. By discriminatorily laying off unit employees,
discriminatorily closing the Ferry Street facility,
and discriminatorily rehiring unit employees at sub-
contract wages and fringe benefits, the Respond-
ents have engaged in unfair labor practices affect-
ing commerce within the meaning of Section
8(a)(3) of the Act.
2. By unilaterally closing the Ferry Street facili-
ty, unilaterally laying off unit employees and rehir-
ing unit employees at subcontract wages and fringe
benefits, circumventing the Union and dealing di-
rectly with the unit employees, failing and refusing
to maintain contractual terms, and failing and refus-
ing to recognize and bargain with the Union as the
collective-bargaining representative of the unit em-
ployees, the Respondents have refused to bargain
collectively with the Union and thereby have en-
gaged in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
3. By all of the aforesaid conduct, the Respond-
ents have interfered with, restrained, and coerced
the unit employees in the exercise of the rights
guaranteed them by Section 7 of the Act, and
thereby have engaged in unfair labor practices af--
fectmg commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have en-
gaged in certain unfair labor practices, we shall
order them to cease and desist and to take certain
affirmative action designed to effectuate the poli-
2 Member Hunter finds it unnecessary to pass on the allegations that
the Respondents violated Sec 8(a)(5) of the Act by unilaterally closing
the Ferry Street facility, laying off unit employees, and rehiring unit em-
ployees at subcontract wages and benefits in view of his agreement with
his colleagues that the Respondents have violated Sec 8(a)(3) by this
conduct See Mashkin Freight Lines, 272 NLRB 427 fn 7 (1984)
ANGELO CARTAGE CO 867
cies of the Act. Accordingly, we shall order the
Respondents to bargain with the Union concerning
the closing of the Ferry Street facility, the layoff of
unit employees, and the refusal to pay employees
wages and benefits as provided in the contract, and
to cease and desist from circumventing the Union
and dealing directly with unit employees, failing
and refusing to maintain contractual terms, and re-
fusing to recognize and bargain with the Union as
the unit employees' collective-bargaining represent-
ative. In addition, we shall order the Respondents
to offer the bargaining unit employees that they un-
lawfully laid off immediate and full reinstatement
to their former positions or, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and to make the
employees whole for any loss of earnings that they
may have suffered by reason of the Respondents'
unlawful layoff and failure to maintain contractual
wages and benefits.3 Backpay will be computed in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in Flor-
ida Steel Corp., 231 NLRB 651 (1977). See general-
ly Isis Plumbing Co., 138 NLRB 716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondents, Angelo Cartage Company, Inc.
and Banner Transportation, Inc., Detroit, Michi-
gan, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Closing their Ferry Street facility, laying off
unit employees, rehiring unit employees at subcon-
tract wages and fringe benefits, or otherwise dis-
criminating against employees because of their
membership in or activities on behalf of Local 299,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
(b) Closing their Ferry Street facility, laying off
unit employees, rehiring unit employees at subcon-
tract wages and fringe benefits, circumventing the
Union and dealing directly with the unit employ-
ees, failing and refusing to maintain contractual
terms, or otherwise failing and refusing to recog-
nize and bargain with the Union as the collective-
bargaining representative of the unit employees.
(c) 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) Offer the bargaining unit employees unlawful-
ly laid off immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions without
prejudice to their seniority or other rights and
privileges previously enjoyed and make the em-
ployees whole for any loss of pay they may have
suffered as a result of the Respondents' unlawful
layoff and failure to maintain contractual wages
and benefits, computed in a manner set forth in the
section of the decision entitled "Remedy."
(b) On request, bargain in good faith with the
Union regarding the closing of the Green Street fa-
cility and the layoff of bargaining unit employees.
(c) Maintain all terms and conditions contained
in their current contract with the Union and bar-
gain in good faith with the Union regarding all
terms and conditions of employment.
(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.
(e) Post at their facilities in Detroit, Michigan,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional 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 Respondents' to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have 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
3 See Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd 661 of the United States Court of Appeals Enforcing an Order of the Nation`
F 2d 940 (9th Cir 1981) al Labor Relations Board "
868 DECISIONS OF 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT close our facilities, lay off unit
employees, fail to abide by contractual terms, or
otherwise discriminate against our employees be-
cause of their support of or membership in Local
299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other union.
WE WILL NOT refuse to bargain with Local 299,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as
the exclusive bargaining representative of employ-,
ees in the bargaining unit by unilaterally closing
one of our facilities, unilaterally laying off unit em-
ployees, unilaterally failing to abide by our current
contract with the Union and WE WILL NOT refuse
to pay wages and benefits contained in that con-
tract, circumvent the Union and deal directly with
unit employees, or fail and refuse to recognize and
bargain with the Union as the collective-bargaining
representative of our employees.
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 our employees whom we unlaw-
fully laid off immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights and privi-
leges they previously enjoyed and WE WILL make
our employees whole for any loss suffered by
reason of our unlawful layoff and failure to main-
tain contractual wages and benefits less any net in-
terim earnings, plus interest.
WE WILL abide by and maintain all terms and
conditions of employment contained in our current
contract with the Union and WE WILL recognize
and bargain in good faith with the Union concern-
ing all terms and conditions of employment.
ANGELO CARTAGE COMPANY, INC.
AND BANNER TRANSPORTATION, INC.
869
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