Barr Saunders, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 976 (N.L.R.B. 1979)

E I)CISIONS OF NATIONAL L.ABOR RELATIONS BOARD
Barr-Saunders, Inc. and Warehouse, Mail Order, Of-
fice, Technical and Professional Employees Union,
Local 743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 13-CA- 17282
December 14, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) Mi MBI RS PNEIl I
ANI) TRtIISDAI.F
Upon a charge filed February 13, 1978, by Ware-
house, Mail Order, Office, Technical and Professional
Employees Union, Local 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Charging Party,
and duly served on Barr-Saunders, Inc., herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 13, on April 28, 1978, issued a complaint and
notice of hearing on May 22, 1979, a reissued com-
plaint and notice of rescheduled hearing, and on Au-
gust 24, 1979, an amendment to the reissued com-
plaint, alleging that Respondent has engaged in and is
engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Respondent filed answers
admitting in part, and denying in part, the allegations
of the complaint and reissued complaint. On August
27, 1979, Respondent withdrew its answers and
waived its right to file an answer to the amendment to
the reissued complaint and to a hearing before an
administrative law judge.
On September 4, 1979, counsel for the General
Counsel filed with the Board a motion to transfer the
case to the Board and Motion for Summary Judg-
ment, with e.hibits attached. The General Counsel
moved that, as Respondent had withdrawn its an-
swers, all the allegations of the complaint, as
amended by the amendment to the reissued com-
plaint, be deemed to be admitted to be true and be so
found by the Board and requests that the Board issue
an order transferring the case directly to itself and
granting the Motion for Summary Judgment. There-
after, on September 11, 1979, the Board issued an
order transferring the proceeding to the Board and
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted. Respondent failed to file a response to the
Notice To Show Cause and, therefore, the allegations
in the Motion for Summary Judgment stand uncon-
troverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
e.plain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on Re-
spondent specifically stated that unless an answer was
filed to the complaint within 10 days from the service
thereof "all the allegations in the Complaint shall be
deemed to be admitted true and may be so found by
the Board." Although Respondent filed timely an-
swers, it subsequently withdrew said answers and fur-
ther waived the right to file an answer to the amend-
ment to the reissued complaint. The withdrawal of an
answer necessarily has the same effect as a respon-
dent's failure to file an answer,' and thus the allega-
tions of the complaint must be deemed admitted as
true as if no answer had been filed. No good cause to
the contrary having been shown, in accordance with
the rule set forth above, the allegations of the com-
plaint against Respondent are deemed admitted and
are found to be true. Accordingly. we grant the Mo-
tion for Summary Judgment.2
On the basis of the entire record, the Board makes
the following:
FINI)ING(S OF FA('I
1. I1: BUSINESS OF RI:SPONI)ENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and exist-
NarA Ppline Companln. 202 NIRB 234 (1973): NWiAev (hevrolet
Sales. I-. 199 NLRB 411 (1972).
a tgle ruck and Trailer Re'nIll Dnision ,f E 7 A 7 I.e;ing, Inc, 211
NRB 804 (1974).
246 NLRB No. 151
976
BARR SAL
ing bx virtue ofl the laws of the State of Illinois. ti'c-
tive on or about October 28. 1977. Barr SupplI (..
an Illinois corporation. which was engaged in the
pipe, valve, and ittings distribution husiness. piur-
chased froml Saunders & Comrpan\. an Illi nois co(rpo-
ration. its assets utilized in connection wi ith its ipe.
valve, and ittings distribution business the located
at 4201 Ramond I)rive. lillside. Illinois alnd its
pipe shop business, then loca ted at 370() North San-
dra Street. Franklin Park. Illinois. Said assets in-
cluded, but were not limited to. all accounts receix-
able, ll inventor\ . ;and certain leasehold iterests. As
a result thereofi since October 28. 1977. Saunders &
Conlpanv has ceased to operate the said business. Re-
spondent's name \as cliangeI frIomi Barr Suppl ( o.
to Barr-Slunders. Inc.. ;lnd t all tiles lmalerial
herein. Respondent hts owned a1nd operatted tlie said
business. an11d enaged in sbstantial!\ tle ,anic hiusi-
ness operations tornierlx en aged ill b SalIndeli.
Since on or ahbout October 28. 1977. and continilllilng
thereafter, a majority and/ or ai substantial numberl oh
Respondent's emplosees iat the Ibrmner location of
Saunders, nioted above, were flrmerl clmploled bi
Saunders and were thereafter eiplo\ed b\ Respon-
dent in substantiall, the same or similar fulntions uin-
til on or ahbout I[)ecember 7. I977. Respondent is,. and
has been at all times material herein. a successor em-
ployer to Saunders & Compan\ in the business opera-
tions described herein.
Respondent in the course and conduct of its busi-
ness operations, and based on the shipment of goods
of Saunders plus its o wn shipment of goods during
the period from October 28, 1977. through October
28. 1978. shipped goods from its Illinois facilities di-
rectly to States outside the State of Illinois in an
amount valued in excess of $50,000. Respondent and
its predecessor, during the same period, purchased
and had shipped to its Illinois facilities directly from
States outside the State of Illinois goods valued in
excess of $50,000.
We find. on the basis of the foregoing. that Respon-
dent is, and has been at all times material herein. an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11. itE I.ABI()R ()R(iANI/.AION [N\()It\1I)
Warehouse, Mail Order. Office. Technical and Pro-
fessional Employees Union, Local 743. International
Brotherhood of Teamsters. Chauffeurs. Warehouse-
men and Helpers of America. is a labor organiztion
within the meaning of Section 2(5) of the Act.
Nt)[RS. IN( 977
111. 1111 l \1 \I I R \ lk 'R\( IS
At all times material herein tile tollox\ ii niamed
persons occuIpied tile lositions indicated ;1nd ha xe
been, A;nd are now, supervisors a;Id algents of Respoll-
dent xkithin tile meaning oft Section 2 I ) of the Act:
Wa;rrcn N. 3ir. r., president: iand Richard Pr se.
\ice resident of tinance andl adtniriistration.
()n or a:bout AuguLst I 1977. Saunders & ('onpLiti!
entered into a collective-h;lgailninig agreenment x kith
the lt lion. ;Ie agre ent.lel h its termsl is Clctixe
until Mal;lrch 1. 1979. At all times niaterial herein the
t loil n emplo\ es at Respondent's fcilities de-
scribed abose have constituted a illit appropriile tor
the ptrpose of collcctix hbargailning \ thill thile e;l i-
ll o Section 1(th) otf tile \ct:
All \ ailrehoiiS. Iproducil tiolanld lAIntClnaltne 1lll-
piOeC\s: xcluding t olifce cleric.I eploNces pro-
tesSiolln I cplox ees. gLuarlls andtl uperS i l rs .s
definlled i te Acl.
\t all tiimes mlaterial herein. the Lnion hIas been tile
desiglna;ted .ind elected representatie ftor the pur-
pose of' colletie ba;rgaining of the eiplo\ecs ie-
scribed abovIe nid, hb virtute of' Sectionl 9 a ) of tile
,Act, has been tle excl usive representatle of 11 Cill-
plees in said unit for te purpose of collecti\e bahr-
gaining ith respect to w\ages, hours. and other ter1ms
tindl conditions of ermplo)nient.
On or about l)ecembcr 7. 1977. Respondent ctased
operation of its lillside. Illinois. facilit, and termi-
na;ted the eplo\ees at said fcilits \, ithout bargaill-
ing Swithl te I liion o,er te etVcts of the termination
of its operations on the eplloees in the above-de-
scribed unit. Since on or abhout Deceniber I. 1977.
and continuing to date. the lnilion has requested and
Respondent has refused to bargain with the nion
over the effects of the termination of its operation at
its Hillside. Illinois. facility. on the employees in the
above-described unit.
At all times material herein since December 7.
1977, Respondent neglected and failed to inform or
noitif the Union of its decision to cease permanently
operations at its Hillside. Illinois. tfacilit, although
the Union requested that Respondent meet and bar-
gain with it concerning the effects of Respondent's
decision upon the employees in the above-described
unit.
At no time material herein did Respondent meet
and bargain with the Union concerning its decision to
cease its operations or concerning the effects of that
decision upon its employees.
Accordingl. we find that. b the atforesaid con-
duct. Respondent did refuse. and continues to date to
refuse. to bargain collecti\el\ with tile lni(on as the
exclusive representative of the emploees in the ap-
I)l:( SIl()NS (1 NA' IONAI lABOR R.AII()NS B()ARI)
propriate unit. By such conduct. Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and 1I) of tihe
Act.
By the conduct described above. Respondent has
interfered with. restrained, and coerced its emploccs
in the exercise of the rights gularllceed theml h Sec-
tionr 7 of' the Act and that. hb such conduct, ReKspon-
dent rhas eilgalged in and is enI;ig111ig in Ullflir lhbo
practices within the imeairinig ' Section X(a (I) ol tlhe
Act.
I\. II 1 1 II I ( ) I I I t I 1 I Z I () R P'R \ ( I1( IS
t I()\ ( ()\1X11 R( I
I ie' .tctliltle,, 1' Respondent set tirthl ill Sectionl
111. abose. occlTrring 1ll onliO iIlCt0 sx ilh its operatillons
described in section 1. ahbox. has e a close. iltilllate.
a;nd sulstaiti atl relalionship to ra. ttratfic, and co11n-
illerce .lllolig tile seral Stites a1id telnd to leid to
labor disputes burdening and ohst!ructiig comimiierce
and the free flow of comnierce.
V. THF RIMEDY
lHaving found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of' Section 8(a)( and (5) of the Act, we shall
order that it cease and desist therefrom, and take cer-
tain atfirmative action designed to efiectuate the poli-
cies of the Act.
Such affirmative action shall include that Respon-
dent, upon request, bargain with the Union, as the
exclusive representative of its employees in the appro-
priate unit, with regard to the effect Respondent's
closing of its hlillside, Illinois, facility has had, and
may have, on its employees.
As a result of Respondent's unlawful failure to bar-
gain about the effects of its ceasing its operations of
its Hillside, Illinois, facility, the laid-off. transferred,
and discharged employees have been denied an op-
portunity to bargain through their collective-bargain-
ing representative at time when Respondent was still
in need of their services, and a measure of balanced
bargaining power existed. Meaningful bargaining
cannot be assured until some measure of economic
strength is restored to the Union. A bargaining order
alone, therefore, cannot serve as an adequate remedy
for the unfair labor practices committed.
Accordingly. we deem it necessary. in order to ef-
fectuate the purposes of the Act, to require Respon-
dent to bargain with the Union concerning the effects
of its decision to cease its operation of its 1Hillside,
Illinois. facility, and we shall include in our order a
limited hackpav requirement' designed both to make
hole the employees for losses. it' any. suitered as a
result of the violation and to recreate in some practi-
cable manner a situationl in which the t'nion's bar-
gaining position is not entirely devoid of' economic
consequences lor Respondent. V:e shall do so in this
case hb requiring Respondent o pa backpa\ to its
cmploees i a manner imilar t) that required in
Il'tlrolml ii i \vgtiUlI Iol ( rporliot n 11 and il/ Sull/).(id-
t.ri Ienricoioo.l 'l icr.tni I.. 17(1 NIRB 3X9
(I 9 X). I hus. Respondenl shall pa\ cemplos ees hack-
pa; aIt tile ate of' tliheir orillal .ages xhenl last In
Respondenl's emplox froml 5 da s after the date of
this l)ecisioni aind Ordler until t1he occrlrence ol'11 the
c;arliest of te lollowing conditions: (I) the idate Re-
spondeilt h;lrgains to agleellient v ith the I ['imi oln
those suhljccts pertaining to the e1ffects o the closing
of Reslpondlclls lillside. Illinois. t'acilit\ on unit em-
ploeccs: (2)a bona tide iilpassC in hbargaining: (3) the
I lion's F ilure to request bargainiing within 5 dals of'
llis I)cSi1stol's issuance or to colllmence egotiations
wkithiln S da s of' Respondent's notice of' its desire to
ha rgailln ith tile UInion; or (4) the :nion's subse-
quenit tfilure to bargain in good faith: but in no event
shall such sums paid to any of these emplosees ex-
ceed the amiount each would have earned as wages
frolm on or about [)ecember 7 1977. the date on
which Respondent terminated its Ilillside. Illinois.
operations to the time they secured equivalent em-
ployment elsewhere, or the date on which Respon-
dent shall have offered to bargain, which ever occurs
sooner: provided, however, that in no event shall this
sum be less than these employees would have earned
for a 2-week period at the rate of' their normal wages
when last in Respondent's employ. Backpay shall be
based on earnings which the terminated employees
would normally have received during the applicable
period, less any net interim earnings, and shall be
computed on a quarterly basis in the manner set forth
in F. W. Woolworth CompanV. 90 NLRB 289 (1950),
with interest thereon computed in the manner pre-
scribed in Florida Steel Corporation, 231 NRB 651
(1977). 4
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CO()N(CISI()NS 01()F LAW
I. Barr-Saunders, Inc.. is and has been, at all times
material herein, a successor emplover to Saunders &
Ve have indicated that hackpa5 orders are appropriate means ol reme-
dying 81a){S) llaiiton, , the pe inolved hereitl even where such viola-
lions are unaccompanied h a discriminator) shutdow n of operation (t
Rr l Phiting and Plishing ( In, . 148 NlRB 545. 548 (964). and cases
ciled herein
See. generally I Phmlmintg Ileating (',. 138 N.RB 716 (1962).
978
F1tRR SAt NI)FRS. IN(
Compan., in the business operations described in sec-
tion i. above.
2. Barr-Saunders, Inc.. is an emcploier engaged in
commerce itlun the meaning ot Section 2(6) and (7)
of the Act.
3. Warehouse. Mail Order. ()flice. echnical anilt
Professional tlmployees Union. I oca;l 743. Interna-
tiona;l Brotherhood of Teanmsters. ('hlaulllurs. l`\i re-
housemen and Helpers of America. i a l Ar r, llli
tation within the meaning of Section 2(5 ) ot the \c1
4. All warehouse. production and maintenance
employees. excluding office clerical emplo\ees. pro-
fessional emploees. guards and supervisors as de-
fined in the Act, of Respondent t at its lillside. Illinlis.
operatioiis. constitute a unit appropriate for te pur-
poses of' collecti\c bargaining ith the meaninig ot'
Section 9(b) of' the \ct.
5. B fatiling and refusing, since on or habout I)e-
cember I. 1977. and at all tinmes thereafter, to recog-
nize and bargain svith the t nion ;as the exclusi\e col-
lective-bargaining representative of' its eplo ees ill
the appropriate unit, concerning the effects of' its deci-
sion to permanently cease its operations at its Hill-
side, Illinois. facility upon unit emplohees noted
above. Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. B the acts described in section 111. above, Re-
spondent has interfered with. restrained, and coerced
its employees in the exercise of the rights guaranteed
them by Section 7 of the Act and. by such conduct.
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)( I)
of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
OR D R
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended. the National Labor Rela-
tions Board hereb, orders that the Respondent. Barr-
Saunders. Inc.. Franklin Park. Illinois. its officers
agents. successors, and assigns. shall:
I. Cease and desist from:
(a) Failing and refusing to bargain with Ware-
house. Mail Order. Office, Technical and Professional
Employees Union. Local 743. International Brother-
hood of Teamsters. Chauffeurs. Warehousemen and
Helpers of America, as the exclusive collective-hbar-
gaining representative of all employees in the appro-
priate unit described below, concerning the effects of(
its termination of its Hillside, Illinois. operations on
I)ecember 7. 1977. on said employees. The appropri-
late unit is:
All arehouse, production and naintenalnce em-
plo, ces, excluding office clerical emplo,!ccs. pro-
tfesional employees. guards and] slperisors as
defined in the Act.
(b) In a like or related manner interfering v ith.
restrainiLng. or coercing emploees in the exercise of'
lie rigLhis guaranteed them bh Sectionl 7 of' the ct.
2. lake the lollowxing affirmative action which the
Board finds will effectuate the policies of the \ct:
(a) Recognize and. upon request. bargain collec-
tivel\ and in good fiith with ;Warehouse, Mail ()rdr.
O()tice. lechnical and Professional mplooees I nn.
[.ocil 743 International Brotherhood of lealisters,
('haulteurs Warehousemen and I elpers it' A mlnrica.
as the exclusive representati e c of the emploes in the
alforesaid appropriate unit, with regard to the effects
of its decision to permanentl\ cease operations at its
llillside. Illinois. facilit.
(b) Make whole emplo\ ees in the appropriate unit
for an' loss of' pa} the\ ma' have suffered as a result
of the termination of its Hillside. Illinois, facilit fior
the period set forth in the section of this D[ecision
entitled "The Remed."
(c) Preserve and, upon request, make a ailable to
the Bolard or its agents. for examination and copying.
all payroll records, social security payment records.
timecards. personnel records and reports. and all
other records necessary to analyze the amount oft
backpal due under the terms of this Order.
(d) Post at its F:ranklin Park, Illinois, facility. or
any other facility to which it has subsequently moved.
copies of the attached notice marked "Appendix,"'
and mail copies of said notices to all employees laid
off, transferred or discharged on or about December
7. 1977. as a result of the termination of its Hillside,
Illinois. facility. Copies of said notice, on forms pro-
vided by the Regional Director for Region 13. after
being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places. including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced. or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
In the eent that the. Order 15 enlortcd h .a Judrgment iI I nited Sil's,
(ourl ,i A.ppea . the ords in he ntice reding 'P ted h ()rder t he
Nmtldilit [I ahr Relahins Board'" .hall read TP'-,rd Purslai/ll t, , ludgilent
t lit I Fited Sille. Court of Appes rintrctilng .an Order (ie Nationaln
I abor Relaitin, Board
9)79
I)l.(ISIONS ()1: NA II()NA. I.AH()OR R A I IONS BOH()ARI)
API' ND[)I X
NO) 11(: TO) E il .¢ )YI:: s
PO()SI I) BY ORI)I:R ()I 11i
NAII()NAI LAB()R RlIAlII()ANS B)\RI)
An Agency of the United Staltes G(overnmenlt
Wt Xii1 NOI( flil and refuse to bargain with
Warehouse, Mail Order ()Ofice, Technical and
Professional Employees Uinion. Local 743. Inter-
national Brotherhood of ''eamsters. ('haull'elurs.
Warehousemen and Helpers of America, as the
exclusive collective-bargaining representative of1
our employees in the appropriate unit described
below, concerning the ellfects, on our employees,
of' our decision to permanently cealse opcration
at our I lillside, Illinois. flacilit\. Ihe appropriate
unit Is:
All sa rehouse, production and minltenance
emplo ees. excluding offlice clerical eiplo ees,
prolfessional employees, guards and super\i-
sors as defined in the Act.
Wl VIii. N()I in an\ like or related manner
interfre with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
\Wi \\ ii recognize anld, upon request. bargain
collectively and in good aith with Warehouse.
Mail Order, Oflice, Technical and Profelssional
lmploy ees Union, Local 743. International
Brotherhood of Teamsters, ('haufleurs. Ware-
housemen and I lelpers of America. as the exclu-
si e representative of the employees in the
above-described appropriate unit, with regard to
the effects on our employees ol' our decision to
permanently cease operation at our Hillside. Illi-
nois, facility.
'W1 1 ii1 make whole the emploN ee s in the
approprilte unit lo an! loss if pa' the\ mna'
hlave suffcred as a result of the termination of our
I illside. Illinois, facility for the period decided
bh the National l.abor Relations Board. with in-
terest.
B2RR-SAt N)I RS. IN( .
980