Enjoi Transportation, LLC

National Labor Relations Board - Board Decisions

Sep 28, 2012

358 NLRB No. 158 (N.L.R.B. 2012)

358 NLRB No. 158
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Enjoi Transportation, LLC and Local 243, Interna-
tional Brotherhood of Teamsters. Cases 07–CA–
072086 and 07–CA–075061
September 28, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the consolidated complaint. Upon a
charge filed by Local 243, International Brotherhood of
Teamsters, the Union, on January 9, and amended on
February 13, 2012, and a charge filed by the Union on
February 22, 2012, the Acting General Counsel issued an
order consolidating cases, consolidated complaint, and
notice of hearing on April 23, 2012, against Enjoi Trans-
portation, LLC, the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the Act. The Respondent
failed to file an answer.
On July 6, 2012, the Acting General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on July 10, 2012, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response.1 The allegations in the mo-
tion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the consolidated complaint affirma-
tively stated that unless an answer was received by May
7, 2012, the Board may find, pursuant to a motion for
default judgment, that the allegations in the consolidated
complaint are true. Further, the undisputed allegations in
the Acting General Counsel’s motion disclose that the
Region, by letter dated June 18, 2012, advised the Re-

1 The Respondent requested an extension of time to file a response to
the Notice to Show Cause. In its request, the Respondent contended
that due to economic hardship brought on by the city of Detroit’s finan-
cial crisis it could not meet financial obligations and could not hire an
attorney to respond to the instant charges. On July 25, 2012, the Board
granted the Respondent’s request. However, despite this extension, the
Respondent has failed to file a response to the Notice to Show Cause.
spondent that unless an answer was received by June 26,
2012, a motion for default judgment would be filed.
Nevertheless, the Respondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting General
Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a
Michigan limited liability company with an office and
place of business located at 2866 E. Grand Blvd., De-
troit, Michigan, and has been engaged in the operation of
providing transit and paratransit services to the public.
During the calendar year ending December 31, 2011, a
representative period, the Respondent, in conducting its
business operations described above, derived gross reve-
nues in excess of $250,000, and purchased and received
at its Detroit, Michigan facility goods and materials val-
ued in excess of $50,000 directly from points outside the
State of Michigan.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(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.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Paulette Hamilton CEO/Chairman
Gregory Lynn Vice President of Business
Development
Sylvia Tyler Human Resources Manager
At all material times, Frank Vogel held the position of
the Respondent’s consultant, and has been an agent of
the Respondent within the meaning of Section 2(13) of
the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time drivers and dis-
patchers employed by the Respondent at or out of its
facility located at 2866 E. Grand Blvd., Detroit, Michi-
gan; but excluding all office clerical employees, mana-
gerial employees, confidential employees, professional
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
employees, technical employees, and guards and su-
pervisors as defined in the Act.
On October 15, 2010, a Board representation election
was conducted among the employees in the unit in Case
07–RC–023375 in which a majority of the employees
cast ballots designating the Union as representative of the
unit for purposes of collective bargaining.
On October 25, 2010, the Union was certified as the
exclusive collective-bargaining representative of the unit.
At all times since October 15, 2010, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
The Respondent engaged in the following conduct:
1. On about December 27, 2011, the Respondent uni-
laterally eliminated unit employees’ health insurance.
2. About January 2012, the Respondent unilaterally
revised its vehicle accident policy for the unit.
3. The subjects set forth above relate to wages, hours,
and other terms and conditions of employment of the unit
and are mandatory subjects for the purposes of collective
bargaining.
4. The Respondent engaged in the conduct described
above without affording the Union prior notice and an
opportunity to bargain with the Respondent with respect
to this conduct and the effects of this conduct on the unit.
5. At various times from about January 2012, through
April 2012, the Respondent and the Union met for the
purposes of negotiating an initial collective-bargaining
agreement with respect to wages, hours, and other terms
and conditions of employment.
6. During the period described, the Respondent en-
gaged in the following conduct:
(a) Refused to meet at reasonable times for bargaining;
(b) Cancelled bargaining sessions that were previously
agreed to for the following dates: January 3, 2012; Feb-
ruary 17 and 22, 2012; and
(c) Unilaterally revised its vehicle accident policy for
the unit.
7. By its overall conduct, including the conduct de-
scribed in paragraph 6 above, the Respondent has failed
and refused to bargain in good faith with the Union as
the exclusive collective-bargaining representative of the
unit.
CONCLUSION OF LAW
1. By the conduct described in paragraphs 1, 2, 4, 6,
and 7 above, the Respondent has been failing and refus-
ing to bargain collectively and in good faith with the Un-
ion as the exclusive collective-bargaining representative
of its employees, in violation of Section 8(a)(5) and (1)
of the Act.
2. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to bargain collectively and in
good faith with the Union as the exclusive collective-
bargaining representative of its employees by refusing to
meet at reasonable times and cancelling scheduled bar-
gaining sessions while negotiating an initial collective-
bargaining agreement, we shall order the Respondent, on
request, to meet and bargain in good faith with the Union
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
Having further found that the Respondent violated
Section 8(a)(5) and (1) by unilaterally eliminating unit
employees’ health insurance without affording the Union
an opportunity to bargain with respect to this conduct
and the effects of this conduct on the employees in the
unit, we shall order the Respondent to rescind this action,
restore the unit employees’ health insurance until such
time as the Respondent and the Union have bargained in
good faith to an agreement or impasse on the terms and
conditions of employment of the unit employees, and
make the unit employees whole by reimbursing them for
any expenses ensuing from the Respondent’s unilateral
change to the health insurance benefits, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts
to be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
Further, having found that the Respondent violated
Section 8(a)(5) and (1) by unilaterally revising its vehicle
accident policy for the unit, we shall order the Respon-
dent to rescind this unilateral change and restore the
status quo until such time as the Respondent and the Un-
ion have bargained in good faith to an agreement or im-
passe on the terms and conditions of employment of the
unit employees. In addition, we shall order the Respon-
dent to make the unit employees whole for any loss of
earnings and other benefits they may have suffered as a
result of the unlawful change, in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
ENJOI TRANSPORTATION, LLC 3
in New Horizons for the Retarded, supra, compounded
daily as prescribed in Kentucky River Medical Center,
supra. We shall additionally order the Respondent to
remove from its files any reference to the unlawful disci-
pline issued to employees as a result of the revised vehi-
cle accident policy and notify the employees in writing
that this has been done and that the discipline will not be
used against them in any way.2
ORDER
The National Labor Relations Board orders that the
Respondent, Enjoi Transportation, LLC, Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Local 243, International Brotherhood of
Teamsters (the Union), as the exclusive collective-
bargaining representative of the employees in the unit.
The bargaining unit is:
All full-time and regular part-time drivers and dis-
patchers employed by the Respondent at or out of its
facility located at 2866 E. Grand Blvd., Detroit, Michi-
gan; but excluding all office clerical employees, mana-
gerial employees, confidential employees, professional
employees, technical employees, and guards and su-
pervisors as defined in the Act.
(b) Unilaterally eliminating the unit employees’ health
insurance without providing the Union prior notice and
the opportunity to bargain.
(c) Unilaterally revising its vehicle accident policy for
the unit without providing the Union prior notice and the
opportunity to bargain.
(d) Refusing to meet at reasonable times for bargain-
ing.
(e) Cancelling previously agreed upon bargaining ses-
sions.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

2 In his uncontested motion, the Acting General Counsel contends
that the Respondent, through its unlawful conduct in the instant matter,
breached a formal settlement agreement that initially extended the
Respondent’s bargaining obligation for a 1-year period. See Enjoi
Transportation, LLC, Cases 07–CA–053141; 07–CA–053729 (unpub-
lished Decision and Order issued December 30, 2011). Therefore, the
Acting General Counsel argues that an additional extension of the
certification year is warranted in this case. We find it unnecessary in
this proceeding to include that remedy, as it is included in our previous
Order, which has been enforced by the court of appeals, and we need
not repeat it here. See Bryan Adair Construction Co., 341 NLRB 247,
247 fn. 4 (2004); cf. Apex Electrical Services, 350 NLRB 40, 43 fn. 6
(2007).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of unit employees
concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement.
(b) Rescind the unilateral cancellation of the employ-
ees’ health insurance and restore the status quo that ex-
isted prior to the cancellation.
(c) Reimburse the unit employees for any expenses re-
sulting from the unilateral cancellation of their health
insurance, in the manner set forth in the remedy section
of this decision.
(d) Rescind the unilateral change in the vehicle acci-
dent policy and restore the status quo that existed prior to
the revision.
(e) Make the unit employees whole for any loss of
earnings and other benefits suffered as a result of the
Respondents’ unilateral change, in the manner set forth
in the remedy section of the decision.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline
issued to employees as a result of the revised vehicle
accident policy and within 3 days thereafter notify the
employees in writing that this has been done and that the
unlawful discipline will not be used against them in any
way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Detroit, Michigan, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such

3 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In addition, the Respondent
will mail signed copies of the notice at the Respondent’s
own expense, to all current employees and former em-
ployees employed by the Respondent at any time since
December 27, 2011.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. September 28, 2012
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Richard F. Griffin, Jr., Member
______________________________________
Sharon Block, Member
(SEAL) NATIONAL 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with Local
243, International Brotherhood of Teamsters (the Union)
as the exclusive collective-bargaining representative of
our employees in the unit. The bargaining unit is:
All full-time and regular part-time drivers and dis-
patchers employed by us at or out of its facility located
at 2866 E. Grand Blvd., Detroit, Michigan; but exclud-
ing all office clerical employees, managerial employ-
ees, confidential employees, professional employees,
technical employees, and guards and supervisors as de-
fined in the Act.
WE WILL NOT unilaterally eliminate your health insur-
ance without providing the Union prior notice and the
opportunity to bargain.
WE WILL NOT unilaterally revise the vehicle accident
policy for the unit without providing the Union prior
notice and the opportunity to bargain.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union for an initial agreement
by refusing to meet at reasonable times for bargaining.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union for an initial agreement
by cancelling meetings scheduled with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as your
exclusive collective-bargaining representative concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement.
WE WILL rescind our unilateral elimination of your
health insurance and restore the status quo that existed
prior to the cancellation.
WE WILL reimburse you for any expenses resulting
from the unilateral cancellation of your health insurance,
with interest.
WE WILL rescind our unilateral change to the vehicle
accident policy and restore the status quo that existed
prior to the unilateral action.
WE WILL make you whole for any loss of earnings and
other benefits suffered as a result of our unilateral
change, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to unlawful
discipline issued to employees as a result of our unlawful
revision of the vehicle accident policy, and WE WILL,
within 3 days thereafter, notify our employees in writing
that this has been done and that the discipline will not be
used against them in any way.
ENJOI TRANSPORTATION, LLC