276 N.L.R.B. 1320 (N.L.R.B. 1985)

Briggs Transportation Co.

National Labor Relations Board - Board DecisionsSep 30, 1985

276 N.L.R.B. 1320 (N.L.R.B. 1985)

1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Briggs Transportation Co. and International Broth- erhood of Teamsters , Chauffeurs , Warehouse- men and Helpers of America, Locals 17 and 961. Case 18-CA-8222 (formerly Case 27- CA-8267)1 30 September 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON Upon charges filed by the Unions on 10 Febru- ary 1983, the General Counsel of the National Labor Relations Board issued a complaint on 7 June 1983 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Re- lations Act. Although properly served copies of the charge and complaint, the Company has failed to file an answer. On 25 March 1985 the General Counsel filed a Motion for Summary Judgment and on 1 April 1985 the General Counsel filed an Amended Motion for Summary Judgment. In her motion the General Counsel asserts that the duly served com- plaint stated that unless the Respondent filed an answer within 10 days of service, all of the allega- tions in the complaint would be deemed to be ad- mitted as true and would be so found by the Board. The General Counsel further asserts that on 16 June 1983 the Acting Regional Director for Region 18 issued an order extending time to file an answer giving the Respondent until 15 July 1983 to provide an answer. About 15 July 1983 the Re- spondent was informally granted a further exten- sion of time in which to file an answer. The pur- pose of this extension was to allow the Respondent an opportunity to settle the instant charges as well as certain other unfair labor practice charges then pending against it.2 This effort was undertaken in view of the fact that on 25 January 1983 the Re- spondent filed for reorganization under Chapter 11 of Title 11 of the United States Bankruptcy Code. Thereafter, on 16 August 1984 the United States Bankruptcy Court for the District of Minnesota, Minneapolis Division, issued an order that the Re- i On 10 February 1983 the Unions filed unfair labor practice charges against the Company with Region 27. The Acting Regional Director for Region 27 thereafter issued a complaint and notice of hearing On 3 June 1983 the General Counsel of the National Labor Relations Board issued an order transferring the case to Region 18. 2 On 1 February 1985 the National Labor Relations Board issued Deci- sions and Orders [not reported in Board volumes] in Cases 18-CA-8199, 18-CA-8220, and 18-CA-8221 and on 5 February 1985 the Board issued Decisions and Orders in Cases 18-CA-8200, 18-CA-8072, and 18-CA- 8099 pursuant to the provisions of Settlement Stipulations involving the Respondent and various charging parties Efforts to settle the instant matter were not successful. spondent be liquidated under Chapter 7 of Title 11 of the United States Code effective 27 August 1984. The motion further asserts that during tele- phone conversations prior to and on 8 March 1985, the General Counsel informed the Respondent through its attorney that summary judgment would be sought if no answer were filed. On 8 March 1985 the Respondent notified the General Counsel that it would not file an answer. On 3 April 1985, following the General Counsel's motion the Board issued 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 allegations in the complaint and the motion are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The complaint alleges, inter alia, that at all times material the Union, known as the Teamsters Na- tional Freight Industry Negotiating Committee or the Committee, has been designated by the employ- ees and recognized by the Respondent as the exclu- sive representative of all the Company's over-the- road drivers and all city drivers and warehouse employees and that such recognition has been em- bodied in successive collective-bargaining agree- ments, the most recent of which was effective by its terms for the period from 1 April 1982 to 31 March 1985. It also alleges that at all times material the Union, Local 961, has been designated by the employees and recognized by the Company as the exclusive collective-bargaining representative of all employees performing clerical work in the Compa- ny's Denver, Colorado terminal office and that such recognition was embodied in a collective-bar- gaining agreement effective by its terms for the period from 2 October 1981 to 1 October 1984. The complaint further alleges that about 24 Janu- ary 1983 the Respondent laid off all its employees in the two units described above without advance notice to or bargaining with the Unions and that about the same date the Respondent closed its Denver, Colorado terminal without advance notice to or bargaining with the Unions regarding the ef- fects of the closure on the employees. The com- plaint alleges that since 26 January 19833 the Unions requested and are requesting the Respond- ent to bargain collectively with them with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and that 3 All dates hereafter refer to 1983 unless otherwise noted. 276 NLRB No. 149 BRIGGS TRANSPORTATION CO. the Respondent has since that time continuously re- fused to do so. The undisputed allegations of the complaint and the motion establish that the Respondent's action in closing the Denver terminal and laying off all unit employees there occurred on 24 January, 1 day prior to its filing a petition in bankruptcy.4 The Unions have requested bargaining since 26 January and the Respondent has declined. The alleged vio- lations involve only the Respondent's failure to bargain over the effects of the closing and over both the decision and the effects of the layoff on the unit employees. 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 admited to be true and shall be so found by the Board." The Respondent did not file an answer to the complaint. As noted above, the General Counsel advised the Respondent on more than one occasion during telephone conversations following the Respondent's receipt of the com- plaint and an extension of time in which to answer the complaint that its failure to file an answer would result in the General Counsel's moving for summary judgment against the Respondent. During a telephone conversation on 8 March 1985 the Re- spondent informed the General Counsel that it would not file an answer to the complaint. Subse- quently, on 25 March 1985, the General Counsel filed the instant Motion for Summary Judgment. 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 Company, a Minnesota corporation with its principal office and place of business at St. Paul, Minnesota, and terminals throughout the United States, including Denver, Colorado, is engaged in the business of transportation of freight by truck. In the course of its business the Company annually 4 In NLRB P. Bildisco & Bildisco, 465 U.S. 513 (1984), the Supreme Court held that an employer may unilaterally reject a collective-bargain- ing agreement at any time following its filing a petition in bankruptcy. However, the Court reaffirmed an employer's general obligation to rec- ognize and bargain with its employees' exclusive representative, inde- pendent of the adherence to the terms of an extant labor agreement. See Karsh's Bakery, 273 NLRB 1131 (1984). 1321 provides transportation services valued in excess of $50,000 outside the State of Minnesota and receives revenues in excess of $50,000 from the interstate transportation of freight. We find that the Compa- ny is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and the Unions are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES About 24 January the Company closed its Denver, Colorado terminal and laid off all unit em- ployees working at that location. The Company has failed to bargain with the Unions over the ef- fects of the closing and over the decision to lay off all unit employees and the effects of that decision on the employees since 26 January when the Unions requested bargaining. Accordingly, we find that the Company has refused to bargain with the exclusive representatives of its unit employees and that it has thereby engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing to bargain with the Unions the Com- pany has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent 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 have found that the Respondent has unlaw- fully refused to bargain over the effects of its deci- sion to close its Denver, Colorado terminal. To remedy this, we shall order the Respondent to bar- gain with the Unions, on request, concerning the effects of its decision. Further, in order to assure meaningful bargaining and to effectuate the pur- poses of the Act, we shall accompany our Order to bargain with a requirement that the Respondent provide backpay to unit employees in a manner similar to that prescribed in Transmarine Corp., 170 NLRB 389 (1968). The Respondent shall pay em- ployees backpay at the rate of their normal wages when last in the Respondent's employ from 5 days after the date of this Order until the occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closing on its unit employees; (2) a bona fide 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Order, or to commence negotiations within 5 days of the Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount each would have earned as wages from the date on which the Respondent ter- minated its operation to the time he or she secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bar- gain, whichever 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 the Respondent's employ. Interest shall be paid in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). amount of backpay due under the terms of this Order. (e) Mail an exact copy of the attached notice marked "Appendix" 5 to the Unions and to all em- ployees who were employed in the units at the Denver, Colorado facility. Copies of the notice on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be mailed immedi- ately upon receipt, as directed above. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 5 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 ORDER The National Labor Relations Board orders that the Respondent, Briggs Transportation Co., Denver, Colorado its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Unions over the effects of its decision to close the Denver, Colora- do terminal. (b) Refusing to bargain with the Unions over the decision and the effects of its decision of lay off all unit employees at its Denver, Colorado terminal. (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) On request bargain with the Unions with re- spect to the effects of its decision to close the Denver, Colorado terminal. (b) On request bargain with the Unions with re- spect to the decision and the effects of its decision to lay off all unit employees at the Denver, Colora- do terminal. (c) Pay the terminated unit employees their normal wages for the period specified by the Na- tional Labor Relations Board, with interest. (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 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 the Unions over the effects of our decision to close the Denver, Colorado terminal. WE WILL NOT refuse to bargain with the Unions over the decision to lay off all employees of the Denver, Colorado terminal. WE WILL NOT refuse to bargain with the Unions over the effects of our decision to lay off all em- ployees of the Denver, Colorado terminal. 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 with the Unions over the effects of our decision to close the Denver, Colorado terminal and over the decision and the effects of our decision to lay off all em- ployees at that location. WE WILL pay the employees who were em- ployed by us their normal wages for a period speci- fied by the National Labor Relations Board, plus interest. BRIGGS TRANSPORTATION CO.