Duane Bowman, Jr. & Family

National Labor Relations Board - Board Decisions

Feb 25, 1985

274 N.L.R.B. 291 (N.L.R.B. 1985)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dane County Dairy; Bowman Enterprises, Inc.;
MAJJAJ Bowman, Inc,; Bowman Farms, Inc.;
Mary Ann Bowman; Mary Ann Bowman d/b/a
MAJJAJ Frigid Freight; Duane Bowman, Jr.;
Duane Bowman , Jr., d/b/a Bowman Enter-
prises , Inc.; Duane Bowman , Jr., d/b/a Duane
Bowman , Jr. & Associates; Duane Bowman, Jr.,
d/b/a Duane Bowman , Jr. & Family and Driv-
ers, Salesmen , Warehousemen , Milk Processors,
Cannery, Dairy Employees and Helpers Local
No. 695, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America. Case 30-CA-8309
25 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon an original charge filed by the Union I1
April 1984 and amended charges filed 17, 23, and
25 May 1984, the General Counsel of the National
Labor Relations Board issued a complaint 13 June
1984 against the business entities named in the cap-
tion of this Decision and Order, herein collectively
referred to as the Respondent, alleging that the Re-
spondent has violated Section 8(a)(5), (4), (3), and
(1) of the National Labor Relations Act. Although
properly served copies of the original charge, the
amended charges, and the complaint, the Respond-
ent failed to timely answer.
On 31 October 1984 the General Counsel filed a
Motion for Summary Judgment. On 1 November
1984 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 a response.2 The General Counsel
filed an opposition to the Respondent's response.
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
I The complaint, Motion for Summary Judgment, and Notice to Show
Cause, in addition to naming as respondents the 10 business entities set
forth in the caption of this Decision, also named "Stop N Go of Madison,
Inc " as an "agent, joint employer and/or party in interest " We have
omitted Stop N Go of Madison, Inc from the caption We note that our
Order binds, among others, agents of the Respondent
2 The Board's 1 November 1984 order transferring the proceeding to
the Board and Notice to Show Cause gave the Respondent until 15 No-
vember to respond By mailgram dated 14 November 1984 the Respond-
ent was given an extension until 30 November 1984 in which to file a
response The Respondent's response was filed 12 December 1984
291
found by the Board." The undisputed allegations in
the Motion for Summary Judgment disclose that by
letter dated 3 July 1984 and in a telephone conver-
sation on or about 17 July 1984, the General Coun-
sel further advised the Respondent of the require-
ment that it file an answer.
With its response to the General Counsel's
Motion for Summary Judgment, the Respondent
provided the Board with a purported "answer" to
the complaint. It moved the Board to accept its
"answer," asserting that its previous failure to file
an answer resulted from "excusable neglect." We
deny the Respondent's motion since the Respond-
ent has failed to show good cause why it did not
file a timely answer to the complaint.3 According-
ly, we find that the allegations of the complaint are
deemed to be admitted.
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 Judg-
ment.4
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. SINGLE EMPLOYER AND ALTER EGO STATUS
In accordance with the allegations of the com-
plaint, we find that the various business entities
named in the caption of this Decision and Order,
Dane County Dairy; Bowman Enterprises, Inc.;
MAJJAJ Bowman, Inc.; Bowman Farms, Inc.;
Mary Ann Bowman, an Individual; Mary Ann
Bowman d/b/a MAJJAJ Frigid Freight; Duane
Bowman Jr., an Individual; Duane Bowman, Jr.,
d/b/a Bowman Enterprises, Inc.; Duane Bowman
3 In its response to the Notice to Show Cause, the Respondent con-
tends that its neglect in failing to file a timely answer was excusable be-
cause counsel for the General Counsel did not rely on the failure to file
an answer in injunction proceedings related to the instant matter in a
United States district court, the General Counsel led the Respondent to
believe that there would be a hearing before an administrative law judge,
until shortly before the scheduled hearing when he informed the ' Re-
spondent that it was canceled and that he would file a motion for summa-
ry judgment, and the Respondent incurred considerable expense in pre-
paring for the hearing The Respondent further argues that the General
Counsel was "aware" that it denied the allegations of the complaint and
that the Board is not prejudiced by the Respondent's failure'to file an
answer The Respondent does not deny that it was properly served with
the complaint Nor does it deny the further assertions in the Motion for
Summary Judgment that it was informed of the necessity of answering on
two subsequent occasions Moreover, we note that the Respondent nei-
ther filed an answer nor requested an extension of time in which to do so
until approximately 6 months after the complaint issued and 6 weeks after
the motion was filed In these circumstances we find the Respondent has
not shown good cause why it failed to file a timely answer
4 In granting the General Counsel's Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of Respondent to
timely contest either the facutal allegations or the legal conclusions of the
General Counsel's complaint Thus, the Chairman regards this proceeding
as being essentially a default judgment which is without precedential
value
274 NLRB No. 42
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jr., d/b/a Duane Bowman , Jr. & Associates; and
Duane Bowman , Jr. d/b/a Duane Bowman, Jr. &
Family, are alter egos, and that they constitute a
single integrated enterprise and constitute a single
employer within the meaning of Section 2(2) of the
Act.
H. JURISDICTION
The Respondent is engaged in the wholesaling,
storage, and delivery of dairy products in the
Madison, Wisconsin area. It annually purchases and
receives goods and materials valued in excess of
$50,000 from suppliers located within the State of
Wisconsin which suppliers in turn received the
goods and materials directly from outside the State,
and/or it annually purchases and receives goods
and materials valued in excess of $50,000 directly
from suppliers located outside the State of Wiscon-
sin.5 We find that the Respondent is an employer
engaged in commerce within the meaning of Sec-
tion 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.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
The following employees of the Respondent con-
stitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding driver salesmen, milk and ice cream,
relief drivers, truckdrivers, working foremen
and garage employees at Respondent Dane
County Dairy's Madison, Wisconsin facility.
Since at least 1971 the Union has been the exclu-
sive collective-bargaining representative, within the
meaning of Section 9(a) of the Act, with respect to
5 In its response to the Notice to Show Cause the Respondent con-
tends that it does not satisfy the Board's criteria for asserting jurisdiction
over nonretail businesses In asserting jurisdiction over the Respondent
here „ in addition to relying on the allegations of the complaint , we rely
on certain admissions of Respondent Duane Bowman in testimony which
he gave in a proceeding closely related to the present case in the United
States District Court for the Western District of Wisconsin, transcripts of
which were attached as exhibits to the Motion for Summary Judgment
Bowman testified that in the first 7 months of 1984 he purchased approxi-
mately $1 5 million in dairy products from an Iowa dairy He further tes-
tified that these purchases were made as part of the continuation of the
wholesale dairy business previously engaged in by Respondent Dane
County Dairy We find further that, as alleged in the complaint, Bowman
is sole stockholder and registered agent of Dane County Dairy, agent for
Bowman Enterprises, Inc , agent for each of his sole proprietorships
named in , the caption of this decision , and supervisor and consultant for
MAJJAJ Bowman, Inc and the sole proprietorships of Mary Ann
Bowman named in the caption of this decision Moreover , in asserting ju-
risdiction here we take administrative notice of our decisions in Dane
County Dairy, 269 NLRB 218 (1984), and Dane County Dairy, 273 NLRB
No 209 (Jan 30, 1985), in which we recently asserted jurisdiction over
Respondeht Dane County Dairy based on the Board 's indirect inflow
standard
the employees in the above unit, and the Respond-
ent has recognized it as such.
B. The Alleged Violations of Section 8(a)(5)
and (1)
At all times material herein the Union has been
the exclusive bargaining representative of the em-
ployees in the unit described above. On or about 27
March 1984 the Respondent notified the Union that
it was laying off the employees in the bargaining
unit . Prior to notifying the Union of its decision to
lay off the employees, the Respondent did not
afford the Union notice or an opportunity to bar-
gain over either the decision or the effects of the
layoff. On 27 March and 5 April 1984 the Union
requested from the Respondent information rele-
vant to the impending layoffs. Since that time the
Respondent has failed and refused to provide the
Union with the requested information. On or about
5 April 1984 the Union requested bargaining over
the Respondent's decision to lay off the employees
and the effects of that decision. Since that time the
Respondent has failed and refused to bargain with
the Union over the decision or its effects. Between
7 and 27 April 1984 the Respondent laid off the
employees in the bargaining unit . On or about 24
April 1984 the Respondent refused to meet with
the Union on the ground that no bargaining unit
members were present at the meeting.
We find , as alleged in the complaint, that by
laying off its employees in the bargaining unit
without affording the Union an opportunity to bar-
gain ;6 by failing and refusing to bargain with the
Union regarding the layoff after the Union request-
ed bargaining; by failing and refusing to provide
the Union with requested information concerning
the layoff; and by refusing to meet with the Union
because no bargaining unit employee was present,
the Respondent has violated Section 8(a)(5) and (1)
of the Act.
C. The Alleged Violations of Section 8(a)(3), (4),
and (1)
As noted above, between 7 April and 27 April
1984 the Respondent laid off the employees in the
bargaining unit. The complaint alleges that the Re-
spondent's layoff of the bargaining unit employees
was motivated by the employees' membership in
and activities on behalf of the Union and constitut-
ed discrimination against them in violation of Sec-
tion 8 (a)(3) and (1) of the Act. The complaint fur-
5 Member Hunter finds it unnecessary to pass on the allegation that the
Respondent violated Sec 8(a)(5) and (1) of the Act by laying off the bar-
gaining unit employees in view of his agreement that the Respondent vio-
lated Sec 8(a)(4) and (3) by the same conduct See Mashkin Freight
Lines, 272 NLRB 427 fn 7 (1984)
DANE COUNTY DAIRY
ther alleges that the layoff of the employees was
motivated by the employees' giving affidavits to
the Board and testifying in a previous Board hear-
ing and constituted discrimination against them in
violation of Section 8(a)(4) and (1) of the Act. Be-
cause, as noted above, the allegations of the com-
plaint are deemed admitted and found to be true in
the absence of a timely answer having been filed,
we find that by laying off the bargaining unit em-
ployees the Respondent violated Section 8(a)(3),
(4), and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent has committed unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act by unilaterally laying off the em-
ployees in the bargaining unit described above
without first notifying the Union and giving it an
opportunity to bargain; by failing and refusing to
bargain with the Union regarding the layoff after
the Union requested bargaining; by failing and re-
fusing to provide the Union with requested infor-
mation related to the layoff; and by refusing to
meet with the Union because no bargaining unit
employee was present.
2. The Respondent has committed unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act by laying off its bargaining unit em-
ployees because of their membership in and activi-
ties on behalf of the Union.
3. The Respondent has committed unfair labor
practices within the meaning of Section 8(a)(4) and
(1) of the Act by laying off its bargaining unit em-
ployees because they gave affidavits to agents of
the Board and testified in a previous Board hear-
ing.
4. The described conduct constitutes unfair labor
practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5), (4), (3), and (1) of the Act, we shall
order that it cease and desist and take certain af-
firmative action designed to effectuate the policies
of the Act. Accordingly, we shall order the Re-
spondent to bargain with the Union concerning
layoffs of employees, and to provide the Union
with requested information concerning the April
1984 layoff. In addition, we shall order the Re-
spondent to offer the bargaining unit employees it
laid off between 7 April and 27 April 1984 immedi-
ate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
293
niority or other rights and privileges previously en-
joyed, and to make the employees whole for any
loss of earnings that they may have suffered by
reason of the Respondent's layoff of them. Backpay
will be computed in the manner prescribed in F
W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as set forth in Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962). In view of the violations' found
herein, considered in light of our previous deci-
sions, noted above, in which we found that the Re-
spondent Dane County Dairy previously violated
the Act, we find that a broad cease-and-desist
order is warranted under the standards of Hickmott
Foods, 242 NLRB 1357 (1979).
ORDER
The National Labor Relations Board orders that
the Respondent, Dane County Dairy; Bowman En-
terprises, Inc.; MAJJAJ Bowman, Inc.; Bowman
Farms, Inc.; Mary Ann Bowman, an Individual;
Mary Ann Bowman d/b/a MAJJAJ Frigid
Freight; Duane Bowman, Jr., an Individual; Duane
Bowman, Jr., d/b/a Bowman Enterprises, Inc.;
Duane Bowman, Jr., d/b/a Duane Bowman, Jr. &
Associates; Duane Bowman, Jr., d/b/a Duane
Bowman, Jr. & Family, Madison, Wisconsin, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off or otherwise discriminating
against employees because of their membership in
or activities on behalf of Drivers, Salesmen, Ware-
housemen, Milk Processors, Cannery, Dairy Em-
ployees and Helpers Local No. 695, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America.
(b) Laying off or otherwise discriminating
against employees because they gave affidavits to
agents of the Board or testified in Board hearings.
(c) Laying off employees in the unit described
below without first notifying the Union and afford-
ing it an opportunity to bargain; failing and refus-
ing to bargain with the Union regarding the layoff
of bargaining unit employees after the Union has
requested bargaining thereon; failing and refusing
to provide the Union with requested information
concerning the layoff of bargaining unit employees;
and refusing to meet with the Union because no
bargaining unit members are present.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise 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 laid off
between 7 April and 27 April 1984 immediate and
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
full reinstatement to their former positions or, if
such positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges previously en-
joyed and make them whole for any loss of pay
they may have suffered as a result of their layoffs
computed in the manner set forth in the section of
this decision entitled "Remedy."
(b) Expunge from its files any reference to the
layoffs of the employees laid off between 7 April
and 27 April 1984, and notify them in writing that
this has been done and that evidence of these un-
lawful layoffs will not be used as a basis for future
personnel actions against them.
(c) 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.
(d) On request, provide the Union with the infor-
mation the Union requested concerning the April
1984 layoff of bargaining unit employees.
(e) Prior to implementing any layoff of bargain-
ing unit employees, notify the Union and afford it
an opportunity to bargain. The bargaining unit is:
All production and mainteannce employees, in-
cluding driver salesmen , milk and ice cream,
relief drivers, truckdrivers, working foremen
and garage employees at Respondent Dane
County Dairy's Madison, Wisconsin facility.
(f) Post at its Madison, Wisconsin area facility or
facilities copies of the attached notice marked "Ap-
pendix."? Copies of the notice, on forms provided
by the Regional Director for Region 30, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent 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.
' 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 lay off or otherwise discriminate
against any of you for supporting Drivers, Sales-
men, Warehousemen, Milk Processors, Cannery,
Dairy Employees and Helpers Local No. 695, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other Union.
WE WILL NOT lay off or otherwise discriminate
against any of you because of your participation in
proceedings before the National Labor Relations
Board.
WE WILL NOT refuse to bargain collectively with
Drivers, Salesmen, Warehousemen, Milk Proces-
sors, Cannery, Dairy Employees and Helpers Local
No. 695, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America by unilaterally laying off our
employees in the bargaining unit described below
without first notifying the Union and giving it an
opportunity to bargain; by refusing to meet and
bargain with the Union concerning such layoffs
upon the Union's request; by failing and refusing to
supply the Union with requested information con-
cerning such a layoff; or by refusing to meet with
the Union on the ground that no bargaining unit
members are present at the meeting.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer our employees whom we laid off
in April 1984 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 or privi-
leges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits
resulting from their layoffs, less any net interim
earnings, plus interest.
WE WILL expunge from our files any references
to the layoffs of bargaining unit employees in April
1984, and WE WILL notify each of them that this
has been done and that evidence of the unlawful
layoffs or suspensions will not be used as a basis
for future personnel actions against him.
DANE COUNTY DAIRY 295
WE WILL, on request , provide the Union with
the information it requested concerning the April
1984 layoff of employees.
WE WILL , prior to implementing any layoff of
employees in the bargaining unit described below,
notify the Union and afford it an opportunity to
bargain . The appropriate bargaining unit is:
All production and maintenance employees, in-
cluding driver salesmen , milk and ice cream,
relief drivers , truckdrivers, working foremen
and garage employees at our Madison, Wis-
consin facility.
DANE COUNTY DAIRY ; BOWMAN
ENTERPRISES , INC.; MAJJAJ
BOWMAN , INC.; BOWMAN FARMS,
INC.; MARY ANN BOWMAN , AN INDI-
VIDUAL ; MARY ANN BOWMAN D/B/A
MAJJAJ FRIGID FREIGHT; DUANE
BOWMAN JR., AN INDIVIDUAL;
DUANE BOWMAN JR., D/B/A
BOWMAN ENTERPRISES , INC.; DUANE
BOWMAN JR., D/B/A DUANE
BOWMAN JR. & ASSOCIATES; DUANE
BOWMAN JR., D/B/A DUANE
BOWMAN JR. & FAMILY