A.T.L. Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 564 (N.L.R.B. 1985)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.T.L. Corporation and General Teamsters Local
Union No. 174, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 19-
CA-16889
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 10 July 1984,1
and amended 8 August, the General Counsel of the
National Labor Relations Board issued a complaint
31 October against the Company, the Respondent,
alleging that it has violated Section 8(a)(5), (3), and
(1) of the National Labor Relations Act. Although
properly served copies of the charge, amended
charge, and complaint, the Company has failed to
file an answer.
On 28 November the General Counsel filed a
Motion for Summary Judgment. On 5 December
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 Company
filed no response. The allegations in the motion 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 of 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
allegations in the Motion for Summary Judgment
disclose that counsel for the General Counsel, by
letter dated 21 November, notified the Respondent
that unless an answer was received by 26 Novem-
ber a Motion for Summary Judgment would be
filed.
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Washington corporation, is
engaged in the business of warehousing and distrib-
I All dates are in 1984 unless otherwise indicated
uting import freight at its facility in Kent, Wash-
ington. During the 12 months preceding issuance of
the complaint, a representative period, the Re-
spondent sold and shipped goods valued in excess
of $50,000 to points outside the State of Washing-
ton. We find that the Company is an employer en-
gaged in commerce within the meaning of Section
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
A. The Unit and the Union 's Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All warehouse helpers, solo [truckdrivers] semi
and heavy-duty hostlers, dispatchers, and
working foremen employed by the Respondent
at its Kent, Washington facility, but excluding
office clerical employees, guards and supervi-
sors as defined in the Act and all other em-
ployees.
Since about 1 May 1982, the Union has been the
designated exclusive collective-bargaining repre-
sentative of the employees in the unit, and has been
recognized as such by the Respondent. Such recog-
nition has been embodied in successive collective-
bargaining agreements, the most recent of which is
effective by its terms for the period 1 May 1982 to
30 April 1985.
B. The 8(a)(5) and (1) Violations
About 6 July, the Company, by James A.
Wilson,2 unilaterally subcontracted driving and
hauling work which had previously been per-
formed by bargaining unit employees. The Compa-
ny failed to provide prior notice to the Union of
the subcontracting and did not afford the Union
the opportunity to negotiate and bargain as the ex-
clusive representative of the unit employees.
About 7 and 8 July, the Company, acting
through Wilson, bypassed the Union and dealt di-
rectly with three of the discharged employees3 by
offering them nonunion employment at wage rates
and with benefits different from those specified in
the applicable collective-bargaining agreement.
2 At all times material , James A Wilson has been the Company 's presi-
dent and a supervisor and an agent of the Company respectively within
the meaning of Sec 2(11) and (13) of the Act
9 The record does not reflect the identity of the three employees
274 NLRB No. 80
A.T L. CORP.
C. The 8(a)(3) and (1) Violations
About 6 July, in furtherance of its subcontracting
decision, the Company discharged the following
bargaining unit employees: Erik Sears, Bruce Mick-
elson , Danny C. Eades, Allan Thornton, Mike
Lovett, and Wendell Boyle.
CONCLUSIONS OF LAW
1. By, about 6 July, unilaterally subcontracting
bargaining unit driving and hauling work, without
prior notice to or bargaining with the Union, the
Company has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
2. By, about 7 and 8 July, bypassing the Union
and dealing directly with three unit employees by
offering them nonunion employment at wage rates
and with benefits different from those specified in
the collective-bargaining agreement , the Company
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
3. By, about 6 July, in furtherance of its subcon-
tracting decision, discharging employees Erik
Sears, Bruce Mickelson, Danny C. Eades, Allan
Thornton, Mike Lovett, and Wendell Boyle, the
Company has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in
certain 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.
We shall, inter alia, order the Company to rein-
state the driving and hauling work it unlawfully
subcontracted to nonunit employees and to refrain
from making any changes unilaterally in connec-
tion with those operations without first bargaining
concerning any such decision. We shall also order
the Company to offer Erik Sears, Bruce Mickelson,
Danny C. Fades, Allan Thornton, Mike Lovett,
and Wendell Boyle immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and to
make them whole for any loss of earnings they
may have suffered as a result of the discrimination
practiced against them. Backpay shall be computed
as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
ORDER
565
The National Labor Relations Board orders that
the Respondent, A.T.L. Corporation, Kent, Wash-
ington, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with General Teamsters
Local Union No. 174, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the ex-
clusive representative of the employees in the bar-
gaining unit by unilaterally subcontracting driving
and hauling work previously performed by unit
employees at its Kent, Washington facility.
(b) Bypassing the Union and bargaining directly
with unit employees by offering them nonunion
employment at wages and with benefits different
from those specified in the applicable collective-
bargaining agreement.
(c) Discharging or otherwise discriminating
against any employee for supporting the Union or
any other union.
(d) 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) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing unit concerning any decision to subcontract
driving and hauling work:
All warehouse helpers, solo [truckdrivers] semi
and heavy-duty hostlers, dispatchers, and
working foremen employed by the Respondent
at its Kent, Washington facility, but excluding
office clerical employees, guards and supervi-
sors as defined in the Act and all other em-
ployees.
(b) Reinstate at its Kent, Washington facility the
driving and hauling work previously performed by
unit employees represented by the Union.
(c) Offer Erik Sears, Bruce Mickelson, Danny C.
Eades, Allan Thornton, Mike Lovett, and Wendell
Boyle immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them in the manner set
forth in the remedy section of the decision.
(d) Remove from its files any reference to the
unlawful discharges and notify the employees in
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing that this has been done and that the dis-
charges will not be used against them in any way.
(e) 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.
(f) Post at its facility in Kent, Washington, copies
of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
a 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 refuse to bargain with General
Teamsters Local Union No. 174, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as
the exclusive representative of the employees in the
bargaining unit by unilaterally subcontracting driv-
ing and hauling work.
WE WILL NOT bypass the Union and bargain di-
rectly with unit employees by offering them non-
union employment at wages and with benefits dif-
ferent from those specified in the applicable collec-
tive-bargaining agreement.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting the Union
or any other union.
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
the Union as the exclusive representative of all em-
ployees in the bargaining unit concerning any deci-
sion to subcontract driving and hauling work.
All warehouse helpers, solo [truckdrivers] semi
and heavy-duty hostlers, dispatchers, and
working foremen employed by us at our Kent,
Washington facility, but excluding office cleri-
cal employees, guards and supervisors as de-
fined in the Act and all other employees.
WE WILL reinstate the driving and hauling work
previously performed by unit employees represent-
ed by the Union.
WE WILL offer Erik Sears, Bruce Mickelson,
Danny C. Eades, Allan Thornton, Mike Lovett,
and Wendell Boyle immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole, with interest, for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL remove from our files any reference to
the unlawful discharges and notify the employees
in writing that this has been done and that the dis-
charges will not be used against them in any way.
A.T.L. CORPORATION