Cleveland Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 324 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cleveland Freight Lines, Inc. and Truck Drivers
Union, Local No. 407, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
Cleveland Freight Lines, Inc. and Automobile Trans-
porters, New trailer and Armored Car Drivers,
Mechanics and Garagemen Union, Local No.
964. Cases 8-CA-13887-1, 8-CA-13887-2, and
8-CA-13887-4
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND ZIMMERMAN
Upon charges filed in Cases 8-CA-13887-1 and
8-CA-13887-2 on June 2, 1980,1 as amended on
July 22, by Truck Drivers Union, Local No. 407,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called Local No. 407, and in Case
8-CA-13887-4, on June 6, as amended on July 22,
by Automobile Transporters, New Trailer and Ar-
mored Car Drivers, Mechanics and Garagemen
Union, Local No.964, herein called Local No. 964,
and duly served on Cleveland Freight Lines, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 8, issued an Order con-
solidating cases, consolidated complaint and notice
of consolidated hearing on July 25, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1)
and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charges, amended charges, order consolidating
cases, consolidated complaint and notice of consoli-
dated hearing before an administrative law judge
were duly served on the parties to this proceeding.
Respondent has failed to file an answer to the com-
plaint.
On October 3, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 17,
the Board issued an Order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent did
not file a response to the Notice To Show Cause
and therefore the allegations of the Motion for
Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I All dates hereinafter are 1980 unless otherwise indicated.
254 NLRB No. 38
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 provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations 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 admitted to be true and shall be
so found by the Board unless good cause to
the contrary is shown.
The Order consolidating cases, consolidated
complaint and notice of consolidated hearing
served on Respondent specifically stated that unless
an answer to the complaint was filed within 10
days of service thereof "all of the allegations in the
Consolidated Complaint shall be deemed to be ad-
mitted to be true and may be so found by the
Board." According to the uncontroverted allega-
tions of the Motion for Summary Judgment, coun-
sel for the General Counsel on August 18, by certi-
fied mail, notified Respondent that it had failed to
file an answer to the consolidated complaint as re-
quired by Section 102.20 and Section 102.21 of the
Board's Rules and Regulations, Series 8, as amend-
ed, and that unless Respondent filed an answer to
the consolidated complaint by close of business on
August 26, counsel for the General Counsel would
file a Motion for Summary Judgment. Counsel for
the General Counsel, on August 22, was informed
telephonically by Respondent's counsel that Re-
spondent did not intend to file an answer. No
answer had been filed as of the date of filing of the
Motion for Summary Judgment, and as noted, Re-
spondent has not filed any response to the Notice
To Show Cause.
No good cause for failure to file an answer
having been shown, in accordance with the rule as
set forth above, the allegations of the consolidated
complaint are deemed to be admitted. Accordingly,
we find as true all the allegations of the consolidat-
ed complaint and grant the Motion for Summary
Judgment.
324
CLEVELAND FREIGHT LINES. INC.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Cleveland Freight Lines, Inc., is and
has been at all times material herein a corporation
duly organized under and existing by virtue of the
laws of the State of Ohio with its sole facility lo-
cated at 17877 St. Clair Avenue, Cleveland, Ohio,
where it is engaged in the interstate transportation
of goods. During the calendar year ending Decem-
ber 31, 1979, in the course and conduct of its busi-
ness operations, Respondent received revenues in
excess $50,000 from the interstate transportation of
goods.
We find, on the basis of the foregoing, that Re-
spondent 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.
II. THE LABOR ORGANIZATIONS INVOLVED
Local No. 407 and Local No. 964 are, and have
been at all times material herein, labor organiza-
tions within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violation
On or about December 15, Respondent, through
its agent Carl Munn, threatened an employee with
plant closure if the employees remained members
of Local No. 407.
Accordingly, we find that, by the aforesaid con-
duct, Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed them under Section 7 of the Act, and
that, by such conduct, Respondent thereby en-
gaged in and is engaging in an unfair labor practice
within the meaning of Section 8(a)(l) of the Act.
B. The 8(a)(5) Violations
The unit
The following employees of Respondent consti-
tute appropriate units for purposes of collective
bargaining within the meaning of Section 9(b) of
the Act:
(1) All truck drivers, warehousemen and
loaders employed at the Respondent's facility
located at 17877 St. Clair Avenue, Cleveland,
Ohio, but excluding all office clerical employ-
ees and professional employees, guards and su-
pervisors as defined in the Act, and all other
employees.
(2) All office clerical employees employed
at the Respondent's facility located at 17877
St. Clair Avenue, Cleveland, Ohio, excluding
all truck drivers, dockmen and all professional
employees, guards and supervisors as defined
in the Act.
(3) All working foremen, journeymen me-
chanics, journeymen trailermen, apprentices
and garagemen employed at the Respondent's
facility located at 17877 St. Clair Avenue,
Cleveland, Ohio, but excluding all office cleri-
cal employees and, professional employees,
guards and supervisors as defined in the Act,
and all other employees.
Local No. 407 has been recognized by Respon-
dent as, and has been, the collective-bargaining
representative of the employees in the unit de-
scribed above in paragraph (1) for approximately
20 years, and at all times material herein. The cur-
rent collective-bargaining agreement was effective
from April 1, 1979, until March 31, 1982. Local
No. 407 has been recognized by Respondent as,
and has been, the collective-bargaining representa-
tive of the employees in the unit described in para-
graph (2) since October 1977, and has entered into
a collective-bargaining agreement with Local No.
407 concerning the employees in that unit. At all
times material herein, Local No. 407 was and con-
tinues to be such exclusive representative for those
units within the meaning of Section 9(a) of the Act.
Local No. 964 has been recognized by, and has
bargained collectively with, Respondent for ap-
proximately 20 years and has been at all times ma-
terial to date the exclusive representative for pur-
poses of collective bargaining of the employees in
the appropriate collective-bargaining unit described
above in paragraph (3), and Local No. 964 contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act. The current
collective-bargaining agreement is effective from
June 1, 1979, until May 31, 1982.
Effective May 29, Respondent ceased operations
of its business, thereby eliminating all job positions
of employees in the appropriate bargaining units
described above.
Respondent engaged in the acts and conduct de-
scribed in the paragraph immediately above with-
out prior notice to Local No. 407 or Local No.
964, and without having afforded either Local No.
407 or Local No. 964 an opportunity to negotiate
and bargain as the exclusive representative of Re-
spondent's employees with respect to the effects of
such acts and conduct.
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that, by the acts set forth
above, Respondent has refused to bargain collec-
tively, and is refusing to bargain collectively, with
the representative of its employees, and has thereby
engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(l) and (5) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent has refused to
bargain about its decision to cease operation of its
business and the effects thereof, we shall order that
Respondent be required, upon request, to bargain
collectively with the Unions concerning that deci-
sion and the effects upon the employees of the clo-
sure with respect to the unit or units each repre-
sents. Further, as a result of Respondent's refusal to
discuss with its employees' collective-bargaining
representatives its decision to close the facility
where they were employed and the effects of that
decision, all of the former Cleveland Freight Lines,
Inc., employees were denied the services of their
collective-bargaining representative at the time
when those representatives might have been able-
had they been afforded the opportunity-to negoti-
ate an agreement or agreements with Respondent
which could have avoided the shutdown of the
Cleveland Freight Lines, Inc., operations or, at the
least, would have ameliorated the consequences of
the closing vis-a-vis the employees who worked
there. Thus, in order to make these former employ-
ees whole for the losses they have suffered as a
result of Respondent's unlawful refusal to bargain,
we shall accompany our order to bargain with a
limited backpay requirement designed both to make
whole the employees for losses suffered as the
result of the violation, and to recreate in some
practical manner a situation in which the parties'
bargaining position is not entirely devoid of eco-
nomic consequences for Respondent. For this
reason, Respondent shall be ordered to pay back-
pay to the employees employed at Respondent's fa-
cility located at 17877 St. Clair Avenue, Cleveland,
Ohio, as of May 29, 1980, the date Respondent
ceased operation of its business, in a manner similar
to that required in P. B. Mutrie Motor Transport.2
Thus, backpay shall be computed at the rate of the
employees' normal wages when last in Respon-
dent's employ for May 29, 1980, the date on which
Respondent closed its facility at 17877 St. Clair
Avenue, until the occurrence of the earliest of the
following conditions with respect to each of the
units: (1) the date Respondent bargains to agree-
ment with the appropriate union on those subjects
pertaining to the decision to close and the effects
of the closing on the respective unit employees at
its facility located at 17877 St. Clair Avenue; (2) a
bona fide impasse in bargaining; (3) the failure of
the Unions to request bargaining within 5 days of
this Decision, or to commence negotiations within
5 days of Respondent's notice of ts desire to bar-
gain with the Unions; or (4) the subsequent failure
of the Unions to bargain in good faith. 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 Company, 90
NLRB 289 (1950), together with interest as pro-
vided in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
Finally, as Respondent's facility at 17877 St.
Clair Avenue, Cleveland, Ohio, is no longer open,
it would be of little value to require Respondent to
post a notice at this site. Accordingly, we shall
order that Respondent mail signed copies of a
notice to all of the employees in each of the affect-
ed units.
The Board, upon the basis of the foregoing facts
in the entire record, makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Cleveland Freight Lines,
Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Truck Drivers Union, Local No. 407, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, and Automobile Transporters, New Trailer and
Armored Car Drivers, mechanics and Garagemen
Union, Local No. 964, are labor organizations
within the meaning of Section 2(5) of the Act.
2 226 NLRB 1325 (1976).
326
CLEVELAND FREIGHT LINES, INC.
3. The following employees of Respondent con-
stitute appropriate units for purposes of collective
bargaining within the meaning of Section 9(b) of
the Act:
(1) All truck drivers, warehousemen and
loaders employed at the Respondent's facility
located at 17877 St. Clair Avenue, Cleveland,
Ohio, but excluding all office clerical employ-
ees and professional employees, guards and su-
pervisors as defined in the Act, and all other
employees.
(2) All office clerical employees employed
at the Respondent's facility located at 17877
St. Clair Avenue, Cleveland, Ohio, excluding
all truck drivers, dockmen and all professional
employees, guards and supervisors as defined
in the Act.
(3) All working foremen, journeymen me-
chanics, journeymen trailermen, apprentices
and garagemen employed at the Respondent's
facility located at 17877 St. Clair Avenue,
Cleveland, Ohio, but excluding all office cleri-
cal employees and professional employees,
guards and supervisors as defined in the Act,
and all other employees.
4. By threatening an employee with plant closure
if the employees remained members of Local No.
407, Respondent has restrained, coerced, and inter-
fered with employees in the enjoyment of their
rights under Section 7 of the Act and thereby vio-
lated Section 8(a)(l) of the Act.
5. By unilaterally ceasing operation of its busi-
ness, without notice to, or consultation with, Local
No. 407 as the representative of the employees in
the units described in paragraphs (1) and (2) above,
and Local No. 964 as the representative of the em-
ployees in the unit described in paragraph (3)
above, Respondent has violated Section 8(a)(5) and
(1) of the Act.
6. By failing to bargain with Local No. 407 over
the effects of its ceasing operation of its business as
it pertains to employees in the units described
above in paragraphs (1) and (2), and with Local
No. 964 over the effects of its ceasing operation of
its business as it pertains to employees in the unit
described in paragraph (3) above, Respondent has
violated Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Cleveland Freight Lines, Inc., Cleveland, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure if
the employees remain members of Truck Drivers
Union, Local No. 407, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America or any other labor or-
ganization.
(b) Refusing to bargain in good faith with Truck
Drivers Union, Local No. 407 affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, with re-
spect to each of the unit of employees it represents,
and with Automobile Transporters, New Trailer
and Armored Car Drivers, Mechanics and Garage-
men Union, Local No. 964 with respect to the unit
of employees it represents, concerning the decision
and effects of its decision to cease operation of its
business located at 17877 St. Clair Avenue, Cleve-
land, Ohio, Truck Drivers Union, Local No. 407
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, represents the following units:
(1) All truck drivers, warehousemen and
loaders employed at the Respondent's facility
located at 17877 St. Clair Avenue, Cleveland,
Ohio, but excluding all office clerical employ-
ees and professional employees, guards and su-
pervisors as defined in the Act, and all other
employees.
(2) All office clerical employees employed
at the Respondent's facility located at 17877
St. Clair Avenue, Cleveland, Ohio, excluding
all truck drivers, dockmen and all professional
employees, guards and supervisors as defined
in the Act.
Automobile Transporters, New Trailer and Ar-
mored Car Drivers, Mechanics and Garagemen
Union, Local No. 964 represents the following
unit:
(3) All working foremen, journeymen me-
chanics, journeymen trailermen, apprentices
and garagemen employed at the Respondent's
facility located at 17877 St. Clair Avenue,
Cleveland, Ohio, but excluding all office cleri-
cal employees and professional employees,
guards and supervisors as defined in the Act,
and all other 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.
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with Truck Drivers
Union, Local No. 407 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the representative
of the employees in the units described above in
paragraphs l(b)(l) and (2), and with Automobile
Transporters, New Trailer and Armored Car Driv-
ers, Mechanics and Garagemen Union, Local No.
964, as the representative of the employees in the
unit described above in paragraph l(b)(3), concern-
ing its decision to cease operation of its business lo-
cated at 17877 St. Clair Avenue, and the effects
thereof on the employees in said units.
(b) Pay the employees in the units described
above in paragraphs l(b) (1), (2), and (3) employed
at Respondent's facility located at 17877 St. Clair
Avenue, as of May 29, 1980, their normal wages,
with interest thereon in the manner and for the
period set forth in the section of this Decision enti-
tled "The Remedy."
(c) Preserve and, upon request, make available to
the Board, or any of its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records relevant and necessary
to a determination of compliance with paragraph
(a) above.
(d) Furnish to the Regional Director for Region
8 the names and most recent addresses in its posses-
sion of all employees employed by Respondent at
its facility located at 17877 St. Clair Avenue,
Cleveland, Ohio, on May 29, 1980, and all those
employed currently and sign a sufficient number of
copies of the attached notice marked "Appendix"3
for mailing by the Regionl Director to each of
these employees.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
plant closure if they remain members of Truck
Drivers Union, Local No. 407, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America or any other union.
WE WILL NOT refuse to bargain in good
faith with Truck Drivers Union, Local No.
407, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, with respect to each of
the units of our employees it represents, and
with Automobile Transporters, New Trailer
and Armored Car Drivers, Mechanics and Ga-
ragemen Union, Local No. 964, with respect
to the unit of our employees it represents, con-
cerning our decision and the effects thereof to
cease operation of our business located at
17877 St. Clair Avenue, Cleveland, Ohio.
Truck Drivers Union, Local No. 407, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, represents the following units:
(1) All truck drivers, warehousemen and
loaders employed at the Employer's facility
located at 17877 St. Clair Avenue, Cleve-
land, Ohio, but excluding all office clerical
employees and professional employees,
guards and supervisors as defined in the Act,
and all other employees.
(2) All office clerical employees employed
at the Employer's facility located at 17877
St. Clair Avenue, Cleveland, Ohio, exclud-
ing all truck drivers, dockmen and all pro-
fessional employees, guards and supervisors
as defined in the Act.
Automobile Transporters, New Trailer and
Armored Car Drivers, Mechanics and Garage-
men Union, Local No. 964 represents the fol-
lowing unit:
(3) All working foremen, journeymen me-
chanics, journeymen trailermen, apprentices
and garagemen employed at the Employer's
facility located at 17877 St. Clair Avenue,
Cleveland, Ohio, but excluding all office
clerical employees and professional employ-
ees, guards and supervisors as defined in the
Act, and all other employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL, upon request, bargain with Truck
Drivers Union, Local No. 407, affiliated with
International Brotherhood of Teamsters,
328
CLEVELAND FREIGHT LINES. INC.
Chauffeurs, Warehousemen and Helpers of
America, as the representative of our employ-
ees in the units described above in paragraphs
(1) and (2), and with Automobile Transporters,
New Trailer and Armored Car Drivers, Me-
chanics and Garagemen Union, Local No. 964,
as the representative of our employees in the
unit described above in pargraph (3) concern-
ing our decision to close our plant located at
17877 St. Clair Avenue, and the effects thereof
on our employees in the units represented by
Truck Drivers Union, Local No. 407, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, and on our employees in the unit
represented by Automobile Transporters, New
Trailer and Armored Car Drivers, Mechanics
and Garagemen Union, Local No. 964.
WE WILL pay our employees in the units de-
scribed above who were employed at our fa-
cility located at 17877 St. Clair Avenue, as of
May 29, 1980, their normal wages in the
manner and for the period required by a Deci-
sion of the National Labor Relations Board,
plus interest.
CLEVELAND FREIGHT LINES, INC.
329