Edwards Brothers Cartage Co., Inc.

National Labor Relations Board - Board Decisions

May 6, 1976

223 N.L.R.B. 1335 (N.L.R.B. 1976)

EDWARDS BROTHERS CARTAGE CO., INC. 1335
Edwards Brothers Cartage Co ., Inc., H & S Cartage
Co., their President and Agent , Henry J. Solecki,
Jr., and Specialty Delivery & Warehouse Corp. and
Truck Drivers Local Union No. 299 , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , Ind. Case 7-CA-
11285
May 6, 1976
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On March 31, 1975, the National Labor Relations
Board, in the absence of exceptions, issued its Order
(unpublished), adopting the findings and conclusions
of the Administrative Law Judge as contained in his
Decision of February 28, 1975, directing Respon-
dents H & S Cartage Co., herein called H & S, and
Edwards Brothers Cartage Co., Inc., herein called
Edwards, found to be a single employer, their offi-
cers, agents, successors, and assigns, to, inter alia,
make whole Edward Paidosz, Larry Kibby, and Wil-
bur Bayennes for any loss of vacation pay they might
have suffered by reason of the Respondents' unfair
labor practices in violation of Section 8(a)(1) and (5)
of the Act. On September 11, 1975, the United States
Court of Appeals for the Sixth Circuit entered its
order enforcing the Order of the Board.
Issues have arisen (1) concerning the liability of
Respondents H & S and Edwards and the alter ego or
successorship liability of Specialty Delivery & Ware-
house Corp., herein called Specialty, a Michigan cor-
poration, incorporated by Respondent Henry J. So-
lecki, Jr., president and agent of Respondents H & S
and Edwards, and (2) concerning the amount of back
vacation pay due under the Board's Order as en-
forced by the court. As a result, the Regional Direc-
tor for Region 7, on November 14, 1975, issued and
duly served on the Respondents, including Specialty,
a Backpay Specification and Notice of Hearing
which alleges, in substance, that (1) up to the is-
suance of the Board's Order of March 31, 1975, Re-
spondent Henry J. Solecki, Jr., was the president and
majority stockholder of Respondent Edwards, and
president and owner of one-third of the stock of Re-
spondent H & S; (2) on February 7, 1975, Respon-
dent Specialty was incorporated by Henry J. Solecki,
as sole incorporator; (3) since its incorporation, Spe-
cialty has been engaged in the same local cartage and
warehouse operations as Respondent Edwards I and
1 In his Decision of February 28, 1975, the Administrative Law Judge had
found that Edwards' operations had been closed without prior notice to, or
consultation or bargaining with, the Union.
H & S utilizing the same premises , and substantially
the same employees , equipment , and physical assets
utilized by these two Respondents ; (4) all three cor-
porations have been under the control of Henry J.
Solecki who , since the Board 's Order of October 31,
1975, has been aware of the potential liability of Re-
spondents Edwards , H & S, and Henry J . Solecki to
make whole Edward Paidosz , Larry Kibby, and Wil-
bur Bayennes for their loss of vacation pay; and (5)
Specialty is a mere continuation of the business oper-
ations of Respondent Edwards and H & S and is
their successor or alter ego.
On February 17, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment . Subsequently , on February 25,
1976, 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 . None of the Re-
spondents thereafter filed a response to Notice To
Show Cause.
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 findings:
Section 102.54 of the Board's Rules and Regula-
tions provides , in pertinent part , as follows:
(a) . . . The respondent shall, within 15 days
from the service of the specification , if any, file
an answer thereto ... .
*
(c) . . . If the respondent fails to file any an-
swer to the specification within the time pre-
scribed by this section, the Board may, either
with or without taking evidence in support of
the allegations of the specification and without
notice to the respondent, find the specification
to be true and enter such order as may be appro-
priate... .
The specification issued on November 14, 1975,
and duly served on the Respondents, specifically
states that the Respondents shall, within 15 days
from the date of the specification (November 14,
1975), file an answer to the specification in the man-
ner required by the Board's Rules and Regulations,
and, if the failure to do so is not adequately ex-
plained, such allegations shall be deemed to be ad-
mitted to be true and the Respondents shall be pre-
cluded from introducing any evidence controverting
them. In his motion, counsel for the General Counsel
223 NLRB No. 199
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleges that : (1) On January 6, 1976, Henry J. So-
lecki, Jr., informed him that Respondents' counsel
would no longer be representing them; (2) on Janu-
ary 21 and 23, 1976, he advised Mr. Solecki by tele-
phone that, if no answer were filed, he would file the
instant motion and Mr . Solecki informed him that no
answer would be filed; (3) by letter dated January 26,
1976, he advised the Respondents that the instant
motion would be filed if no answer were received by
January 29, 1976; and (4) no answer had been re-
ceived as of February 12, 1976.
As the General Counsel's motion stands uncontro-
verted , the allegations of the specification are
deemed to be admitted to be true and are so found
by the Board. Accordingly, on the basis of the allega-
tions of the specification, which are accepted to be
true, the Board finds the facts as set forth therein,
concludes that Respondent Specialty is the successor
or alter ego of Respondents Edwards and H & S and
that the net amount of back vacation pay due Ed-
ward Paidosz, Larry Kibby, and Wilbur Bayennes is
as stated in the computation of the specification, and
orders the payment thereof by the Respondents
jointly and severally.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents
Edwards Brothers Cartage Co., Inc., H & S Cartage
Co., their president and agent, Henry J. Solecki, Jr.,
and Specialty Delivery & Warehouse Corp., Detroit,
Michigan, their officers, agents, successors, and as-
signs , shall jointly and severally make whole Edward
Paidosz, Larry Kibby, and Wilbur Bayennes by pay-
ment to them the amounts set forth adjacent to their
names , plus interest accrued at the rate of 6 percent
per annum to be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
until payment of all back vacation pay due, less tax
withholdings required by Federal and state law:
Larry Kibby $296.55
Edward Paidosz 795.00
Wilbur Bayennes 889.65