K & M Produce

National Labor Relations Board - Board Decisions

Jun 16, 1981

256 N.L.R.B. 1231 (N.L.R.B. 1981)

K & M PRODUCE 1231
K & M Produce and Truck Drivers & Helpers
Local Union No. 823, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case 17-
CA- 10024
June 16, 1981
DECISION AND ORDER
Upon a charge filed on November 10, 1980, by
Truck Drivers & Helpers Local Union No. 823, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, and duly served
on K & M Produce, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
17, issued a complaint on December 19, 1980,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding. Re-
spondent has failed to file an answer and thus the
allegations of the complaint stand uncontroverted.
On February 23, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
27, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
has failed to file a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
256 NLRB No. 185
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
Respondent specifically states that, unless an
answer to the complaint is filed by Respondent
within 10 days from the service thereof, "all of the
allegations in the complaint shall be deemed to be
admitted to be true and may be so found by the
Board."
Further, according to the memorandum in sup-
port of the Motion for Summary Judgment, coun-
sel for the General Counsel, by letter dated Febru-
ary 3, 1981, specifically informed Respondent's
owners, Lloyd Creekmore, William Kimble, and
Steve McKellar, that failure to file an answer to
the complaint by February 11, 1981, possibly
would result in the filing of the Motion for Sum-
mary Judgment. This letter was received by Re-
spondent on February 5, 1981.
To date, neither an answer to the complaint nor
a response to the Notice To Show Cause has been
filed by either Respondent or any of its owners. No
good cause to the contrary having been shown, the
allegations of the complaint herein are deemed to
be admitted and are so found by the Board. Ac-
cordingly, we grant the General Counsel's Motion
for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a proprietorship engaged in the nonretail
sale and distribution of produce and frozen foods at
a facility located at 512--520 East 7th Street,
Joplin, Missouri, herein called the facility. Re-
spondent, in the course and conduct of its business
operations within the State of Missouri, annually
purchases goods and services valued in excess of
$50,000 directly from sources located outside the
State of Missouri, and annually sells goods and
services valued in excess of $50,000 directly to cus-
tomers located outside the State of Missouri.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers & Helpers Local Union No. 823,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
K & M PRODUCE 1231, __
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees at the Joplin, Missouri, facility
engaged in manual labor such as truck drivers,
helpers, housemen, fruit packers, warehouse-
men, deliverymen, loaders, unloaders, and
checkers; excluding office clerical employees,
salesmen, janitors, watchmen, owners, part-
ners, officers, managers, assistant managers and
supervisors as defined in the Act.
From on or about February 1, 1979, until on or
about September 6, 1980, Thomas Fruit Company
was engaged in the nonretail sale and distribution
of produce and frozen foods at the facility. On or
about July 1, 1979, Thomas Fruit Company recog-
nized the Union as the exclusive bargaining repre-
sentative of the employees in the above-described
unit. Such recognition has been embodied in
successive collective-bargaining agreements, the
most recent of which is effective by its terms for
the period July 4, 1980, until July 3, 1981.
On or about September 6, 1980, Respondent pur-
chased the assets of Thomas Fruit Company, in-
cluding the building and part of the inventory,
equipment, and trucks and, since on or about Sep-
tember 8, 1980, has been engaged in the same busi-
ness operations, at the same location, selling the
same products and services to substantially the
same customers, and has had as a majority of its
employees individuals who were previously em-
ployed by Thomas Fruit Company at the facility.
Accordingly, we find that by virtue of these oper-
ations Respondent has continued as the employing
entity and is a successor of Thomas Fruit Compa-
ny. We further find that at all times material herein
the Union has been and continues to be the exclu-
sive bargaining representative, within the meaning
of Section 9(a) of the Act, of all of Respondent's
employees in the above-described unit at the facili-
ty. N.L.R.B. v. Burns International Security Services,
Inc., 406 U.S. 272 (1972).
Commencing on or about October 23, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
Respondent's employees in the above-described
unit. Since on or about October 23, 1980, Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in the said unit.
In addition, on or about October 23, 1980, the
Union requested Respondent to furnish the Union
with the following information:
All information and documentation evidencing
the wages, benefits, and other terms and condi-
tions of employment extended employees of
the successor enterprise.
The information requested by the Union on or
about October 23, 1980, is necessary for, and rele-
vant to, the Union's performance of its function as
the exclusive collective-bargaining representative
of the employees in the above-described unit. Since
on or about October 23, 1980, Respondent has
failed and refused to furnish the Union said infor-
mation requested by it.
Accordingly, we find that Respondent has, since
on or about October 23, 1980, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the em-
ployees in the appropriate unit, and that, by such
refusal, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement. In this connection, we shall order that
Respondent, upon request, furnish to the Union the
information that it requested on October 23, 1980.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
K & M PRODUCE 1233
CONCLUSIONS OF LAW
1. K & M Produce is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Truck Drivers & Helpers Local Union No.
823, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees at Respondent's Joplin, Missou-
ri, facility engaged in manual labor such as truck
drivers, helpers, housemen, fruit packers, warehou-
semen, deliverymen, loaders, unloaders, and check-
ers, but excluding office clerical employees, sales-
men, janitors, wathchmen, owners, partners, offi-
cers, managers, assistant managers and supervisors
as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the above-named
labor organization has been and now is the exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about October 23, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By refusing on or about October 23, 1980, and
at all times material thereafter, to bargain collec-
tively with the above-named labor organization as
the exclusive representative of all employees of Re-
spondent in the appropriate unit by refusing to fur-
nish the said labor organization with information
concerning the present terms and conditions of em-
ployment of the employees in the above-described
unit, Respondent has engaged in unfair labor prac-
tices within the meaning Section 8(a)(5) of the Act.
7. By the aforesaid refusals to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
K & M Produce, Joplin, Missouri, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Truck Drivers &
Helpers Local Union No. 823, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All employees at Respondent's Joplin, Missou-
ri, facility engaged in manual labor such as
truck drivers, helpers, housemen, fruit packers,
warehousemen, deliverymen, loaders, un-
loaders, and checkers; excluding office clerical
employees, salesmen, janitors, watchmen,
owners, partners, officers, managers, assistant
managers and supervisors as defined in the
Act.
(b) Refusing to bargain collectively with the
above-named labor organization by refusing to fur-
nish the said labor organization with information
concerning the present terms and conditions of em-
ployment of the employees in the above-described
unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Upon request, bargain collectively with the
above-named labor organization by furnishing it
with information concerning present terms and
conditions of employment requested in its letter of
October 23, 1980.
(c) Post at its facility at 512-520 East 7th Street,
Joplin, Missouri, copies of the attached notice
marked "Appendix."' Copies of said notice, on
' In the eent that this Order enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Continued
K & N4 PRODUCE
1234 DECISIONS OF NATIONAL LABOR RELATIONS H)OARD
forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
)rder of1 Ihe National I ahor Relations Board" shall read "Posted Pursu-
anlll t a JdglnIllt f he ilTlid Staties (ourt of Appeals Fnforclg lan
O)rder of Ithe National I abhor Relaions Bloard'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Truck Drivers & Helpers Local Union
No. 823, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT refuse to bargain collectively
with the above-named labor organization by
refusing to furnish it with the information con-
cerning present terms and conditions of em-
ployment it has requested with respect to the
employees in the unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All employees at our Joplin, Missouri, facili-
ty engaged in manual labor such as truck
drivers, helpers, housemen, fruit packers,
warehousemen, deliverymen, loaders, un-
loaders, and checkers; excluding office cleri-
cal employees, salesmen, janitors, wathch-
men, owners, partners, officers, managers,
assistant managers, and supervisors as de-
fined in the Act.
WE WILL, upon request, bargain collectively
with the above-named labor organization by
furnishing it with the information requested in
its October 23, 1980, letter.
K & M PRODUCE