Gmw, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1479 (N.L.R.B. 1985)

GMW, INC
GMW, Inc. and District No. 77, International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO
GMW, Inc. and Drivers Local Union No. 749, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America
GMW, Inc. and General Drivers , Helpers and Truck
Terminal Employees Local No. 120, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America
GMW, Inc. and General Drivers , Helpers and Inside
Employees Local No. 487, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America
GMW, Inc. and General Drivers , Dairy Employees,
Warehousemen , Helpers and Inside Employees
Local No. 346, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America
GMW, Inc. and General Drivers, Helpers, Warehou-
semen and Inside Employees Union Local No.
160, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America
GMW, Inc. and Over-The-Road , City Transfer, Cold
Storage, Grocery and Market Drivers , Helpers
and Inside Employees Union Local No. 544, af-
filiated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America
GMW, Inc. and Drivers, Warehouse & Dairy Em-
ployees Union , Local No. 75, affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America
GMW, Inc. and Teamsters "General" Local Union
No. 200 , affiliated with the International Broth-
erhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America
1479
GMW, Inc. and Teamsters Joint Council 394 affili-
ated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Help-
ers of America (On behalf of Locals 446, 199,
662, and 695). Cases 18-CA-8024, 18-CA-
8095, 18-CA-8124-1, 18-CA-8124-2, 18-CA-
8124-3, 18-CA-8124-4, 18-CA-8124-5, 18-
CA-8206 (formerly 30-CA-7688), 18-CA-
8207 (formerly), 30-CA-7696), and 18-CA-
8208 (formerly 30-CA-7715)
29 March 1985
ORDER DENYING MOTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon charges filed by the Unions on 24 January;
2, 23, 24, and 29 March; and I and 11 April 1983,
the General Counsel of the National Labor Rela-
tions Board issued complaints on 10 March; 11 and
26 April; and 10 May 1983 against the Company,
the Respondent, alleging that it has violated Sec-
tions 8(a)(5) and ( 1) and 8 (d) and Section 2(6) and
(7) of the National Labor Relations Act. Although
properly served copies of the charges and com-
plaints, the Company has failed to file answers. On
25 April 1983 the Company's counsel advised the
General Counsel by telephone that the Company
had recently filed a petition for bankruptcy under
Chapter 7 of the Bankruptcy Act; that a trustee
had been appointed to represent the Company's in-
terests; and that counsel would no longer represent
the Company in these proceedings.' On 25 and 26
April, and 11 May 1983, the General Counsel, by
telephone and by letter, solicited the Company's
trustee's cooperation and participation in resolving
these cases by Summary Judgment. On 25 May
1983 the General Counsel advised the Company's
trustee that, should no answers be filed, the Gener-
al Counsel would move the Board for Summary
Judgment. On 16 June 1983 the Company's trustee
in bankruptcy confirmed in writing to the Acting
Regional Director for Region 18 that no answers
would be filed.2
On 18 July 1983 the General Counsel filed a
Motion for Summary Judgment. On 22 July 1983
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Company
filed no response.
' By letters dated 6 and 17 May 1983, the Company's counsel con-
firmed that he and his firm would no longer represent the Company in
the instant proceedings
2 Although the Company filed an answer in Case 18-CA-8024, it was
withdrawn by the Company's trustee
274 NLRB No. 214
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruling on the Motion for Summary Judgment
The complaint alleges that the Company has uni-
laterally implemented changes in the terms and
conditions of employment by: (1) since about 17
December 1982, increasing from 3 to 4 weeks the
holdback period for the payment of wages to the
employees in the units represented by Machinists
District 77 and Teamsters Locals 200, 446, 199,
695, and 662; (2) since about 2 September 1982, dis-
continuing the remittance of dues to Teamsters
Local 749 in accordance with the collective-bar-
gaining agreement covering the employees in the
unit it represents; and (3) since about 21 January
1983, discontinuing the payment of wages and ben-
efits to the employees in the units represented by
all of the Unions in accordance with the collective-
bargaining agreements covering all the units. The
complaint also alleges that , since about January
1983 and/or 21 March 1983, the Company, acting
through its president, Haak , bypassed the Unions,
dealt directly with its employees in the units repre-
sented by all the Unions , and solicited them to re-
pudiate the wage and benefit schedules and provi-
sions set forth in their collective- bargaining agree-
ments and to enter into individual employment
agreements.
The Bankruptcy Code provides that in a case
under Chapter 7 the trustee may assume or reject
an executory contract of the debtor, but if the
trustee does not assume or reject the contract
within 60 days of the filing of the petition , then the
contract is deemed rejected.3 Although the Re-
3 11 U S C § 365 (a) provides
(a) Except as provided in Sections 765 and 766 of this title and in
subsections (b), (c), and (d) of this section , the trustee, subject to the
court's approval, may assume or reject any executory contract or un-
expired lease of the debtor
spondent failed to file an answer to the complaint,
it informed the Region that it is a debtor in Chap-
ter 7 proceedings . Nothing before us, however, in-
forms us when the Respondent filed the bankrupt-
cy petition , whether the alleged violations oc-
curred before or after the filing date, whether or
when the Respondent 's trustee formally assumed or
rejected the collective -bargaining agreement after
the petition 's filing , and whether the Bankruptcy
Court permitted the rejection of the contract. Such
information is critical in deciding whether the Re-
spondent violated the Act.4 Accordingly, in light
of the Bankruptcy Code provisions, we conclude
that the current record is inadequate to determine
whether the General Counsel, as the moving party,
is entitled to a judgment as a matter of law. The
General Counsel 's Motion for Summary Judgment
must therefore be denied.
ORDER
The General Counsel 's Motion for Summary
Judgment is denied , and the proceeding is remand-
ed to the Regional Director for further appropriate
action.
I I U.S.C. 1(d)(1) provides:
(dXl) In a case under Chapter 7 of this title, if the trustee does not
assume or reject an executory contract or unexpired lease of the
debtor within 60 days after the order for relief, or within such addi-
tional times as the court , for cause , within such 60-day period, fixes,
then such contract or lease is deemed rejected
I I U.S.C. 1301 provides:
A voluntary case under a chapter of this title is commenced by the
filing with the bankruptcy court of a petition under such chapter by
an entity that may be a debtor under such chapter The commence-
ment of a voluntary case under a chapter of this title constitutes an
order for relief under such chapter.
4 Cf. Earle Equipment Co., 270 NLRB 827 (1984)
This information is also necessary in order for the Board to consider
the possible application of NLRB v. Bild sco & Bddisco, 104 S Ct
1188, 115 LRRM 2805 ( 1984), to this proceeding