279 N.L.R.B. 771 (N.L.R.B. 1986)

Gmw, Inc.

National Labor Relations Board - Board DecisionsApr 30, 1986

279 N.L.R.B. 771 (N.L.R.B. 1986)

GMW, INC 771 GMW, Inc . and District No. 77, International Asso- ciation Of Machinists and Aerospace Workers, AFL-CIO and Drivers Local Union No. 749, affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America and General Drivers, Help- ers and Truck Terminal Employees Local No. 120, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America and General Drivers, Help- ers and Inside Employees Local No . 487, affili- ated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and General Drivers , Dairy Employ- ees, Warehousemen , Helpers and Inside Em- ployees Local Union No . 346, affiliated with International Brotherhood of Teamsters, Chauf- feurs , Warehousemen and Helpers of America and General Drivers , Helpers, Warehousemen and Inside Employees Union Local No. 160, af- filiated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America and Over-The-Road, City Transfer, Cold Storage , Grocery and Market Drivers , Helpers and Inside Employees Union Local No . 544, affiliated with International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America and Drivers, Warehouse & Dairy Employees Union, Local No. 75 , affiliated with the International Broth- erhood of Teamsters , Chauffeurs, Warehouse- men & Helpers of America and Teamsters "General" Local Union No . 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica and Teamsters Joint Council 39, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America (On behalf of Local 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 (former- ly 30-CA-7696), and 18-CA-8208 (formerly 30-CA-7715) 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon charges filed by the Unions on 24 January; 2, 23, 24, and 29 March; and 1 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 failed to file answers. On 25 April 1983 the Company's counsel advised counsel for the General Counsel by telephone that the Company had recently filed a petition for bank- ruptcy under Chapter 7 of the Bankruptcy Act; that a trustee had been appointed to represent the Company's interest; and that counsel would no longer represent the Company in these proceed- ings . i On 25 and 26 April and 11 May 1983, coun- sel for the General Counsel, telephonically and by letter, solicited the Company's trustee's cooperation and participation in resolving these cases by sum- mary judgment. On 25 May 1983 counsel for the General Counsel advised the Company's trustee that, should no answer be filed, counsel for the General Counsel would move the Board for sum- mary judgment. On 16 June 1983 the Company's trustee in bankruptcy confirmed in writing to the Acting Regional Director for Region 18 that no answer 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. In a Decision and Order dated 29 March 19853 the Board denied the Motion for Summary Judgment and remanded the case to the Regional Director for further appropriate action. In denying the motion, the Board concluded that the record was inadequate in certain respects. Spe- cifically, the Board sought the following informa- tion which it deemed critical in deciding whether the Company violated the Act: when the Company filed the bankruptcy petition, whether the alleged violations occurred before or after the filing date, whether or when the Company'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. On 28 May 1985 counsel for the General Coun- sel filed a Renewed Motion for Summary Judg- ment with accompanying stipulations signed by all the parties which provide the information sought by the Board. On 31 May 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the renewed motion should not be granted. The Company filed no re- sponse. The parties stipulated that the Company i 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-3024, it was withdrawn by the Company's trustee 3 274 NLRB 1479 (1985) 279 NLRB No. 101 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceased business at each of its facilities and has not engaged in any business operations since 31 March 1983, and that the Company filed its petition under Chapter 7 of the Bankruptcy Code on 12 April 1983. In his Renewed Motion for Summary Judg- ment, counsel for the General Counsel asserts that, because all the violations alleged in the complaint and the Company' s cessation of business occurred prior to the filing of the petition, there is no occa- sion or necessity for the trustee to assume or reject the collective-bargaining agreement. The Supreme Court held in NLRB v. Bildisco & Bildisco4 that from the filing of a petition in bank- ruptcy until formal acceptance the collective-bar- gaining agreement is not an enforceable contract within the meaning of Section 8(d) of the National Labor Relations Act and that a debtor-in-posses- sion does not commit an unfair labor practice when it unilaterally rejects or modifies a collective-bar- gaining agreement before formal rejection is ap- proved by the bankruptcy court.5 The Board has held that Bildisco did not question or dispute its au- thority to adjudicate or remedy prepetition unfair labor practices. 6 Because all the unfair labor prac- tices occurred prepetition, and because all the alle- gations in the complaint remain undisputed, we shall grant the Motion for Summary Judgment. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Renewed 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 complaints state that unless an answer is filed within 10 days of service, "all the allegations in complaint shall be deemed admitted true and shall be so found by the Board." Further, the undisputed allegations in the Motion for Summary Judgment disclose that the General Counsel, by letter dated 25 May 1983, no- tified the trustee in bankruptcy that unless an answer was received a Motion for Summary Judg- ment would be filed. 4 465 U S 513 (1984) 5 We are mindful that the Bankruptcy Amendments and Federal Judgeship Act of 1984 Congress enacted 10 July 1984 modifies Bildisco and governs a debtor-in-possession 's rejection of a collective-bargaining agreement The statute does not apply, however, to cases such as the in- stant one in which the bankruptcy petition was filed before its enactment Pub L 98-353, Â§ 541, 98 Stat 333, 390-391 (1984) 6 Dunmyre Motor Express, 275 NLRB 299 (1985), Lake Castings, 274 NLRB 225 (1985), Edward Cooper Painting, 273 NLRB 1870 (1985) 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 Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Minnesota corporation , was en- gaged at all material times as a common carrier in the interstate transportation of freight at its Rose- ville, Minnesota facility, where during calendar year 1982 it has gross revenue in excess of $50,000 from the transportation of freight and commodities in interstate commerce from the State of Minnesota directly to points outside the State of Minnesota. We find that Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Unions are labor organi- zations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Units The following employees of the Company con- stitute units appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: 1. All full-time and regular part-time machinists and mechanics employed by the Company at its Roseville, Minnesota ; Kansas City, Missouri; St. Louis, Missouri; Omaha, Nebraska; Milwaukee, Wisconsin; and Des Moines, Iowa facilities; exclud- ing all other employees, office clerical employees, drivers, guards and supervisors as defined in the Act. 2. All full-time and regular part-time over-the- road and local cartage drivers and dock workers employed by the Company at its Sioux Falls, South Dakota facility; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. 3. All full-time and regular part-time over-the- road and cartage drivers and dock workers em- ployed by the Company at or out of its Roseville, Minnesota facility; excluding all other employees, guards and supervisors as defined in the Act. 4. All full-time and regular part-time office cleri- cal employees employed by the Company at its Roseville, Minnesota facility; excluding all other employees, administrative, professional and confi- dential employees, guards and supervisors as de- fined in the Act. GMW, INC 773 5. All full-time and regular part-time over-the- road and local cartage drivers and dock workers employed by the Company at or out of its Manka- to, Minnesota facility; excluding all other employ- ees, guards and supervisors as defined in the Act. 6. All full-time and regular part-time over-the- road and local cartage drivers and dock workers employed by the Company at or out of its Duluth, Minnesota facility; excluding all other employees, guards and supervisors as defined in the Act. 7. All full-time and regular part-time over-the- road and local cartage drivers and dock workers employed by the Company at or out of its Roches- ter, Minnesota facility; excluding all other employ- ees, guards and supervisors as defined in the Act. 8. All full-time and regular part-time over-the- road and local cartage drivers and dock workers employed by the Company at or out of its Brain- erd, Minnesota facility; excluding all other employ- ees, guards and supervisors as defined in the Act. 9. All full-time and regular part-time drivers, dockmen, warehousemen, and clerical employees employed by the Company at its Green Bay, Wis- consin facility; excluding all other employees, guards and supervisors as defined in the Act. 10. All full-time and regular part-time drivers, dockmen, and warehousemen, and clerical employ- ees employed by the Company at its West Allis, Wisconsin facility; excluding all other employees, guards and supervisors as defined in the Act. 11. All full-time and regular part- time drivers, dockmen, warehousemen, and clerical employees employed by the Company at its Wausau, Wiscon- sin facilities; excluding all other employees, guards and supervisors as defined in the Act. 12. All full-time and regular part-time drivers, dockmen, warehousemen, and clerical employees employed by the Company at its La Crosse, Wis- consin facilities; excluding all other employees, guards and supervisors as defined in the Act. 13. All full-time and regular part-time drivers, dockmen, warehousemen, and clerical employees employed by the Company at its Madison, Wiscon- sin facilities; excluding all other employees, guards and supervisors as defined in the Act. 14. All full-time and regular part-time drivers, dockmen, warehousemen, and clerical employees employed by the Company at its Eau Claire, Wis- consin facilities; excluding all other employees, guards and supervisors as defined in the Act. B. The Collective-Bargaining Agreements 1. Since about 1978 the Company has recognized Machinists District 77 as the exclusive collective- bargaining representative of the employees in the unit described in section II, A, 1. Such recognition has been embodied in successive collective-bargain- ing agreements between the Company and Machin- ists District 77, the most recent of which was effec- tive by its terms 1 July 1982 to 30 June 1985. 2. Since about 1968 the Company has recognized Teamsters Local 749 as the exclusive collective- bargaining representative of the employees in the unit described in section II, A, 2. Such recognition has been embodied in successive collective-bargain- ing agreements between the Company and Team- sters Local 749, the most recent of which was ef- fective by its terms 1 April 1982 to 31 March 1985. 3. Since about 1968 the Company has recognized Teamsters Local 120 as the exclusive collective- bargaining representative of the employees in the units described in section II, A, 3, and 4. Such rec- ognition has been embodied in successive collec- tive-bargaining agreements between the Company and Teamsters Local 120, the most recent of which was effective by its terms 1 April 1982 to 31 March 1985. 4. Since about 1968 the Company has recognized Teamsters Local 487 as the exclusive collective- bargaining representative of the employees in the unit described in section II, A, 5. Such recognition has been embodied in successive collective-bargain- ing agreements between the Company and Team- sters Local 487, the most recent of which was ef- fective by its terms 1 April 1982 to 31 March 1985. 5. Since about 1968 the Company has recognized Teamsters Local 346 as the exclusive collective- bargaining representative of the employees in the unit described in section II, A, 6. Such recognition has been embodied in successive collective-bargain- ing agreements between the Company and Team- sters Local 346, the most recent of which was ef- fective by its terms 1 April 1982 to 31 March 1985. 6. Since about 1968 the Company has recognized Teamsters Local 160 as the exclusive collective- bargaining representative of the employees in the unit described in section II, A, 7. Such recognition has been embodied in successive collective- bargain- ing agreements between the Company and Team- sters Local 160, the most recent of which was ef- fective by its terms 1 April 1982 to 31 March 1985. 7. Since about 1968 the Company has recognized Teamsters Local 544 as the exclusive collective- bargaining representative of the employees in the unit described in section II, A, 8. Such recognition has been embodied in successive collective- bargain- ing agreements between the Company and Team- sters Local 544, the most recent of which was ef- fective by its terms 1 April 1982 to 31 March 1985. 8. Since about 1978 the Company has recognized Teamsters Local 75 as the exclusive collective-bar- gaining representative of the employees in the unit 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described in section II, A, 9. Such recognition has been embodied in successive collective-bargaining agreements between the Company and Teamsters Local 75, the most recent of which was effective by its terms 1 March 1982 to 31 March 1985. 9. Since about 1978 the Company has recognized Teamsters Local 200 as the exclusive collective- bargaining representative of the employees in the unit described in section II, A, 10. Such recogni- tion has been embodied in successive collective- bargaining agreements between the Company and Teamsters Local 200, the most recent of which was effective by its terms 1 March 1982 to 31 March 1985. 10. Since about 1978 the Company has recog- nized Teamsters Locals 446, 199, 695, and 662 as the exclusive collective-bargaining representatives of the employees in the units described in section II, A, 11, 12, 13, and 14, respectively. Such recog- nition has been embodied in successive National Master Freight, Central States Area Over-the-Road and Local Cartage agreements, the most recent of which were effective by their terms 1 March 1982 to 31 March 1985. C. The Refusals to Bargain The Company has unilaterally 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 pay- ment of wages to the employees in the units repre- sented by Machinists District 77 and Teamsters Locals 75, 200, 446, 199, 695, and 662; (2) since about 2 September 1982, discontinuing the remit- tance of dues to Teamsters Local 749 in accord- ance with the collective-bargaining agreement cov- ering the employees in the unit it represents; and (3) since about 21 January 1983 discontinuing the payment of wages and benefits to the employees in the units represented by all the Unions in accord- ance with the collective-bargaining agreements covering all the units. 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 employees to repudiate the wage and benefit schedules and provisions set forth in their respective collective- bargaining agreements and to enter into individual employment agreements. Accordingly, we find that the Company, by this conduct, has violated Section 8(a)(5) and (1) and Section 8(d) of the Act.7 7 Chairman Dotson agrees that the Respondent violated Sec 8(a)(5) and (1) Its direct dealing with employees and its solicitation of employ- ees to enter into individual employment agreements establish that the Re- spondent 's conduct amounted to more than a mere breach of contract CONCLUSIONS OF LAW By the activities of the Company set forth in sec- tion II , above , occurring in connection with the operations described in section I, above , the Com- pany has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1 ) and of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act. We shall order the Respondent to make unit em- ployees whole for any loss of wages or other bene- fits caused by its failure to adhere to the terms of the collective-bargaining agreements, including making the required payments for dues, health and welfare funds, and pension benefits." The Respond- ent shall also reimburse its employees for any ex- penses ensuing from the Respondent's unlawful failure to make such payments as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Backpay shall be made in a manner consistent with Board policy as stated in Ogle Protection Service, 183 NLRB (1970), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). The Respondent's li- ability for such payments shall terminate as of 31 March 1983, the date the Respondent ceased doing business at all of its facilities. As the Respondent is no longer in business, copies of the attached notice marked "Appendix" should be mailed by the Re- spondent by return-receipted certified mail to all persons employed by the Company in the units de- scribed previously between 2 September 1982 and 31 March 1983 at their last known address. We shall further order the Respondent to remit to Teamsters Local 749 with interest as prescribed in Florida Steel, above, membership dues owed for Rather , it constituted a substantial repudiation of its contractual and bar- gaining obligation See Chairman Dotson's dissent in Rapid Fur Dressing, 278 NLRB 905 (1986) 8 Because the provisions of employee benefit fund agreements are vari- able and complex , the Board does not provide for the addition of a fixed rate of interest on unlawfully withheld fund payments at the adjudicatory stage of a proceeding We leave to the compliance stage the question whether the Respondent must pay any addi t ional amounts into the benefit funds in order to satisfy our "make-whole " remedy Depending on the circumstances of each case , these additional amounts may be determined by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions , by evidence of any losses directly attributable to the unlawful withholding, which might include the loss of return on investment of the portion of funds withheld, addi- tional administrative costs, etc , but not collateral losses Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) GMW, INC. 775 each employee who executed a dues-deduction au- thorization. ORDER The National Labor Relations Board orders that the Respondent, GMW, Inc., Roseville, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Unions as the exclusive bargaining representatives of the employ- ees in the bargaining units, by failing and refusing to adhere to the terms of its collective-bargaining agreements with the Unions by changing the hold- back period for the payment of wages to the em- ployees in the units represented by Machinists Dis- trict 77 and Teamsters Locals 75, 200, 446, 199, 695, and 662; by discontinuing the remittance of dues to Teamsters Local 749 for the unit it repre- sents ; by discontinuing the payment of wages and benefits to the employees in the units represented by all the Unions; and by bypassing the Unions, dealing directly with its employees in the units rep- resented by all the Unions, and soliciting them to repudiate the wage and benefit schedules and pro- visions set forth in their collective-bargaining agreements and to enter into individual employ- ment agreements. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the right guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Adhere to the terms of the collective-bargain- ing agreements between the Respondent and the Unions, except that the Respondent's liability under those agreements shall terminate as of 31 March 1983, the date the Respondent ceased doing busi- ness at all of its facilities. (b) Make whole the employees in the various units for any loss of wages and benefits suffered as a result of the Respondent's failure to abide by the terms of its collective-bargaining agreements with the Unions in the manner set forth in the remedy section of this decision, except that the Respond- ent's liability shall terminate as of 31 March 1983, the date the Respondent ceased doing business at all of its facilities. (c) Reimburse Teamsters Local 749 for member- ship dues owed for each employee who executed a dues-deduction authorization in the unit represent- ed by that Union, in the manner provided in the remedy section of this decision. (d) Preserve and, or 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. (e) Mail to all persons employed in the units de- scribed above by the Respondent between 2 Sep- tember 1982 and 31 March 1983 at their last known address by return-receipted certified mail a copy of the attached notice marked "Appendix"9 Copies of the notice, on forms provided by the Regional Di- rector for Region 18, after being signed by the Re- spondent's authorized representative, shall be mailed by the Respondent immediately upon re- ceipt thereof. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 9 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with the Unions as the exclusive representatives of the employees in the bargaining units , by failing and refusing to adhere to the terms of our collective-bargaining agreements with the Unions by changing the hold- back period for the payment of wages in the units represented by Machinists District 77 and Team- sters Locals 200, 446, 199, 695, and 662; by discon- tinuing the remittance of membership dues to Teamsters Local 749; by discontinuing the payment of wages and benefits to the employees in the units represented by all the Unions; and by bypassing the Unions, dealing directly with its employees in the 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD units represented by all the Unions and soliciting them to repudiate the wage and benefit schedules and provisions set forth in their collective-bargain- ing agreements and to enter into individual em- ployment agreements. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL adhere to the terms of our collective- bargaining agreements, except that our liability under those agreements shall terminate as of 31 March 1983, the date we ceased doing business at all of our facilities. WE WILL make whole all the unit employees for any loss of wages and benefits suffered as a result of our failure to abide by the terms of our collec- tive-bargaining agreements with the Unions, with interest, except that our liability shall terminate as of 31 March 1983, the date we ceased doing busi- ness at all of our facilities. WE WILL reimburse Teamsters Local 749 with interest for membership dues owed for each em- ployee who executed a dues-deduction authoriza- tion in the unit represented by that Union. GMW, INC.