FOUR WINDS SERVICES, INC.

National Labor Relations Board - Board Decisions

Feb 14, 2012

358 NLRB No. 6 (N.L.R.B. 2012)

358 NLRB No. 6
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.
Four Winds Services, Inc. and General Truck Driv-
ers, Warehousemen Helpers, Sales and Service
and Casino Employees, Teamsters Local Union
No. 957. Case 9–CA–62287
February 14, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
The Acting General Counsel seeks a default judgment
in this case on the ground that Four Winds Services, Inc.,
the Respondent, has failed to file an answer to the con-
solidated complaint and compliance specification. Upon
a charge filed on August 8, 2011, by General Truck
Drivers, Warehousemen Helpers, Sales and Service and
Casino Employees, Teamsters Local Union No. 957, the
Union, the Acting General Counsel issued the consoli-
dated complaint and compliance specification on October
21, 2011, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act. The Respondent failed to
file an answer.
On November 22, 2011, the Acting General Counsel
filed a Motion for Default Judgment with the Board.
Thereafter, on November 25, 2011, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondent filed no response. The allega-
tions in the motion 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 a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed within 21 days from service of the compliance
specification. In addition, the consolidated complaint
and compliance specification affirmatively stated that
unless an answer was received by November 11, 2011,
the Board may find, pursuant to a motion for default
judgment, that the allegations in the consolidated com-
plaint and compliance specification are true. Further, the
undisputed allegations in the Acting General Counsel’s
memorandum in support of his motion disclose that the
Region, by letter dated November 14, 2011, notified the
Respondent that unless an answer was received by No-
vember 21, 2011, a motion for default judgment would
be filed.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the con-
solidated complaint and compliance specification to be
admitted as true, and we grant the Acting General Coun-
sel’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, a corporation
with an office and place of business in Fairborn, Ohio,
has been engaged as a contractor providing fuel distribu-
tion and aircraft maintenance services at the Wright Pat-
terson Air Force Base under contract with the Federal
government. During the 12-month period preceding the
issuance of the consolidated complaint and compliance
specification, the Respondent, in conducting its opera-
tions described above, purchased and received at its Fair-
born, Ohio facility goods valued in excess of $50,000
directly from points outside the State of Ohio.
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:
Dennis Carson - Vice President
Roberta Carver-Carson - President
John Liegl - Human Resource Manager
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 Fuels Specialist personnel employed by the Re-
spondent at Wright Patterson Air Force Base, Fairborn,
Ohio excluding all office clerical employees, all profes-
sional employees, guards, lab technicians and supervi-
sors as defined in the Act.
Since about January 2006, and at all material times, the
Union has been the designated exclusive collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
bargaining representative of the unit, and since then, the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which is effective from October 1, 2009 to September
30, 2012, (the 2009–2012 agreement).
At all times since at least January 2006, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit.
On about the dates set forth below, the Respondent
failed to continue in effect all the terms and conditions of
employment of the unit as set forth in the 2009–2012
agreement, by the following conduct:
1) Since about May 1, 2011, failing to remit to the Un-
ion the union dues deducted from employees’ paychecks
as provided in article VI, subsection 6.2 of the 2009–
2012 agreement.
2) Since about May 1, 2011, failing to make the
weekly contributions to the Union’s Ohio Conference of
Teamsters & Industry Health and Welfare Fund as pro-
vided in article XX of the 2009–2012 agreement.
3) About July 15, 2011, failing to pay employee their
accrued vacation pay as provided in article XIV, subsec-
tion 14.1 of the 2009–2012 agreement.
The Respondent engaged in the conduct described
above without the Union’s consent.
The terms and conditions of employment described
above are mandatory subjects for the purpose of collec-
tive bargaining.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively with the
exclusive collective-bargaining representative of its em-
ployees within the meaning of Section 8(d) of the Act in
violation of Section 8(a)(5) and (1) of the Act, and has
thereby engaged in unfair labor practices affecting com-
merce 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 has violated Section 8(a)(5)
and (1) by failing to continue in effect all the terms and
conditions of employment of the unit as set forth in the
2009–2012 agreement by, inter alia, since May 1, 2011,
failing to remit to the Union the union dues deducted
from employees’ paychecks as provided in the 2009–
2012 agreement, we shall order the Respondent to remit
to the Union the amount set forth in appendix A of the
consolidated complaint and compliance specification,
plus interest accrued to the date of payment at the rate
prescribed in New Horizons for the Retarded, 283 NLRB
1171 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB No. 8 (2010),
enf. denied on other grounds sub nom. Jackson Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).1
Additionally, having found that the Respondent has
violated Section 8(a)(5) and (1) by, inter alia, failing to
continue in effect all the terms and conditions of em-
ployment of the unit as set forth in the 2009–2012 agree-
ment, by failing since May 1, 2011, to make the weekly
contributions to the Union’s Ohio Conference of Team-
sters & Industry Health and Welfare Fund as provided in
the 2009–2012 agreement, we shall order the Respondent
to make the fund contributions on behalf of the unit em-
ployees in the amounts set forth in appendix B of the
consolidated complaint and compliance specification,
plus interest accrued to the date of payment at the rate
prescribed in New Horizons for the Retarded, supra,
compounded daily as prescribed in Kentucky River Medi-
cal Center, supra.
Further, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to continue in effect all
the terms and conditions of employment of the unit as set
forth in the 2009–2012 agreement, by failing as of July
15, 2011, to pay the employees their accrued vacation
pay as provided in the 2009–2012 agreement, we shall
order the Respondent to make the unit employees whole
by paying them the amounts set forth in appendix C of
the consolidated complaint and compliance specification,
plus interest accrued to the date of payment at the rate
prescribed in New Horizons for the Retarded, supra,
compounded daily as prescribed in Kentucky River Medi-
cal Center, supra, and minus tax withholding required by
Federal and State laws.
Finally, although there is no assertion in the motion for
default judgment that the Respondent has closed its Fair-
born Ohio operation, the motion states that the Respon-
dent terminated all of its employees on July 15, 2011.
Accordingly, in addition to the customary notice-posting
provisions, we shall order the Respondent to mail a copy
of the attached notice to the Union and to the last known
addresses of all unit employees employed by the Re-
spondent at any time since May 1, 2011, in order to in-
form them of the outcome of this proceeding.

1 The compliance specification states that the time period for which
the Respondent failed to remit dues to the Union and failed to contrib-
ute to the Union’s benefit fund is from May 1, 2011 through July 15,
2011, the date on which the Respondent discharged all of its employ-
ees.
FOUR WINDS SERVICES 3
ORDER
The National Labor Relations Board orders that the
Respondent, Four Winds Services, Inc., Fairborn, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with General Truck Drivers, Warehousemen
Helpers, Sales and Service and Casino Employees,
Teamsters Local Union No. 957 as the exclusive collec-
tive-bargaining representative of the employees in the
following unit by failing to continue in effect all the
terms and conditions of employment of the unit as set
forth in the October 1, 2009 to September 30, 2012 col-
lective-bargaining agreement, by failing to remit to the
Union the union dues deducted from employees’ pay-
checks as provided in article VI, subsection 6.2 of the
parties’ agreement; failing to make the weekly contribu-
tions on behalf of unit employees to the Union’s Ohio
Conference of Teamsters & Industry Health and Welfare
Fund as provided in article XX of the parties’ agreement;
and failing to pay employees their accrued vacation pay
as provided in article XIV, subsection 14.1 of the parties’
agreement. The unit is:
All Fuels Specialist personnel employed by the Re-
spondent at Wright Patterson Air Force Base, Fairborn,
Ohio excluding all office clerical employees, all profes-
sional employees, guards, lab technicians and supervi-
sors as defined in the Act.
(b) 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. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remit to the Union the union dues deducted from
employees’ paychecks, as provided in the parties 2009–
2012 agreement, in the amount of $3277.50, as set forth
in appendix A of the consolidated complaint and compli-
ance specification, with interest in the manner set forth in
the remedy section of this decision.
(b) Make all weekly contributions that the Respondent
has failed to make to the Union’s Ohio Conference of
Teamsters & Industry Health and Welfare Fund on be-
half of unit employees as provided in the parties’ 2009–
2012 agreement, in the amount of $61,600, as set forth in
appendix B of the consolidated complaint and compli-
ance specification, with interest in the manner set forth in
the remedy section of this decision.
(c) Make the unit employees whole for its failure to
pay them their accrued vacation pay as provided in the
parties’ 2009–2012 agreement, by paying them the
amounts following their names, the total of which is
$53,221.18, as set forth in appendix C of the consoli-
dated complaint and compliance specification, with in-
terest in the manner set forth in the remedy section of
this decision.
(d) 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.
(e) Within 14 days after service by the Region, post at
its facility in Fairborn, Ohio, copies of the attached no-
tice marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means.3 Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since May 1, 2011. Further, in view of the fact that
the Respondent has terminated the unit employees, we
shall order the Respondent to mail a copy of the attached
notice to the Union and to the last known addresses of all
unit employees employed at the Fairborn, Ohio facility at
any time since May 1, 2011.

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted and Mailed by Order
of the National Labor Relations Board” shall read “Posted and Mailed
Pursuant to a Judgment of the United States Court of Appeals Enforc-
ing an Order of the National Labor Relations Board.”
3 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(f) 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. February 14, 2012
Mark Gaston Pearce, Chairman
Brian E. Hayes, Member
Richard F. Griffin, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED AND MAILED 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, mail, 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 collectively
and in good faith with General Truck Drivers, Ware-
housemen Helpers, Sales and Service and Casino Em-
ployees, Teamsters Local Union No. 957 as the exclusive
collective-bargaining representative of the employees in
the following unit by failing to continue in effect all the
terms and conditions of employment of the unit as set
forth in our October 1, 2009 to September 30, 2012 col-
lective-bargaining agreement, by failing to remit to the
Union the union dues deducted from employees’ pay-
checks as provided in article VI, subsection 6.2 of the
agreement; failing to make the weekly contributions on
behalf of unit employees to the Union’s Ohio Conference
of Teamsters & Industry Health and Welfare Fund as
provided in article XX of the agreement; and failing to
pay our employees their accrued vacation pay as pro-
vided in article XIV, subsection 14.1 of the agreement.
The unit is:
All Fuels Specialist personnel employed by us at
Wright Patterson Air Force Base, Fairborn, Ohio ex-
cluding all office clerical employees, all professional
employees, guards, lab technicians and supervisors as
defined in the Act.
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 remit to the Union the dues deducted from
employees’ paychecks pursuant to our 2009–2012 agree-
ment, in the amount totaling $3277.50, plus interest.
WE WILL make all weekly contributions that we have
failed to make to the Union’s Ohio Conference of Team-
sters & Industry Health and Welfare Fund on behalf of
unit employees pursuant to our 2009–2012 agreement, in
the amount of $61,600, plus interest.
WE WILL make the unit employees whole for our fail-
ure pay them their accrued vacation pay pursuant to our
2009–2012 agreement, by paying them the amounts set
forth in the Board’s Order, the total of which is
$53,221.18, plus interest.
FOUR WINDS SERVICES, INC.
FOUR WINDS SERVICES 5
Appendix A
Appendix B
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Appendix C