Maislin Transport Of Delaware, Inc. And Maislin Transport Of Delaware, Inc. Debtor-In-Possession

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 529 (N.L.R.B. 1985)

MAISLIN TRANSPORT
Maislin Transport of Delaware , Inc. and Maislin
Transport of Delaware , Inc. Debtor-in-Posses-
sion and Chicago Truck Drivers ' Helpers and
Warehouse Workers Union (Independent). Case
13-CA-22456
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 11 August
1982, the General Counsel of the National Labor
Relations Board issued a complaint 20 September
1982 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. After being
properly served copies of the charge and com-
plaint, the Company filed an answer to the com-
plaint 12 October 1982. By letter dated 18 July
1983 the Company informed the Union that 11 July
1983 the Company filed a bankruptcy petition
under Chapter 11 of the Bankruptcy Code. By
letter of 7 September 1983 to the General Counsel,
the Company withdrew its answer to the com-
plaint, noting, however, that withdrawal was con-
ditioned on its understanding that any judgment
rendered would be subject to the Company's pend-
ing bankruptcy proceedings.
On 29 September 1983 the General Counsel filed
a Motion for Summary Judgment. On 3 October
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company filed no response. The allegations in the
motion are therefore undisputed
Ruling on 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 complaint states
that unless an answer is filed within 10 days of
service, "all the allegations in the complaint shall
be deemed to be admitted to be true and shall be so
found by the Board." The Company's withdrawal
of its answer has the same effect as failure to file an
answer. Accordingly, we grant the General Coun-
sel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
529
The Company, a Delaware corporation, has been
engaged in the business of interstate trucking of
general and specific commodities at terminals locat-
ed in several States, including Bedford Park, Illi-
nois. During the fiscal or calendar year preceding
the issuance of the complaint, a representative
period, the Company derived revenues in excess of
$50,000 from the transportation of freight and com-
modities from the State of Illinois directly to points
outside the State. We find that the Company is an
employer engaged in commerce within the mean-
ing of Section 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.
A. The Unit and the Union 's Representative
Status
The following employees of the Company con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All truck drivers and helpers employed by the
Employer at its facility presently located at
6633 West 75th Street, Bedford Park, Illinois
60638, excluding all mechanics, utility men,
office clerical employees, guards and supervi-
sors as defined in the Act.
Since about 1979, the Union has been recognized as
the exclusive collective-bargaining representative
of the employees in the unit. Such recognition has
been embodied in a collective-bargaining agree-
ment, effective by its terms from 1 April 1979
through 31 March 1982.
B. The Refusals to Bargain
On various dates in May 1982, the Company by-
passed the Union and dealt directly with its em-
ployees in the described unit by announcing that a
vote would be taken for the purpose of soliciting
their support to reduce contractually established
wages by 15 percent; polling its employees to de-
termine their willingness to accept a 15-percent
wage reduction; and speaking to individual em-
ployees to solicit their signatures in support of the
proposed wage reduction. About 12 June 1982 the
Company unilaterally reduced the unit employees'
wages by 15 percent. Further, the Company unilat-
erally failed to pay unit employees contractually
established cost-of-living allowances from 1 April
to 12 June 1982. Accordingly, we find that the
277 NLRB No. 74
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, by its conduct, has violated Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By bypassing the Union and dealing directly
with its employees in the unit, and by unilaterally
reducing wages and eliminating cost-of-living al-
lowances for unit employees, the Company has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
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 designed to effectuate the policies of the
Act. We shall order the Respondent to bargain on
request with the Union and make whole unit em-
ployees for loss of wages suffered from 12 June
1982 to 11 July 1983,1 and for the Respondent's
elimination of cost-of-living allowances from 1
April to 12 June 1982. Backpay shall be made in a
manner consistent with Board policy as stated in
Ogle Protection Service, 183 NLRB 682 (1970), with
interest as prescribed in Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co.,
138 NLRB 716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondent, Maislin Transport of Delaware,
Inc., and Maislin Transport of Delaware Inc.
Debtor-in-Possession, Bedford Park, Illinois, its of-
ficers, agents, successors, and assigns, shall
I Cease and desist from
(a) Refusing to bargain collectively with Chicago
Truck Drivers, Helpers and Warehouse Workers
Union (Independent), as the exclusive bargaining
representative of the employees in the bargaining
unit, by bypassing the Union and dealing directly
' Consistent with the Supreme Court's recent opinion in NLRB v Bi!-
disco & Bildisco, 104 S Ct 1188 (1984), our remedy extends only to 11
July 1983, the date the Respondent filed its Chapter 11 bankruptcy peti-
tion Bildisco held in relevant part that an employer does not violate Sec
8(a)(5) and ( 1) and Sec 8 (d) of the Act by altering terms and conditions
of a collective -bargaining agreement during the interim between the filing
of a Chapter 11 petition and the bankruptcy court's determination wheth-
er the agreement may be rejected Although the Respondent's unilateral
changes in terms and conditions of employment occurred after its agree-
ment with the Union expired, the Bildisco rationale clearly permits post-
bankruptcy petition unilateral changes which would otherwise be unlaw-
ful id at 1200 fn 14, distinguishing NLRB v Katz, 369 U S 736 (1962)
At the same time , however , a debtor-in - possession "remains obligated to
bargain in good faith over the terms and conditions of a possible new
contract " 104 S Ct at 1201
Member Hunter, for the reasons fully set forth in Edward Cooper Paint-
ing, 273 NLRB 1768 (1985), disagrees with terminating the remedy as of
11 July 1983, the date the Respondent filed its bankruptcy petition, be-
cause all the violations found preceded the filing of the petition
with unit employees, and by unilaterally eliminat-
ing cost-of-living allowances and reducing wages.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment, including wages and cost-of-living al-
lowances:
All truck drivers and helpers employed by the
Employer at its facility presently located at
6633 West 75th Street, Bedford Park, Illinois
60638, excluding all mechanics, utility men,
office clerical employees, guards and supervi-
sors as defined in the Act.
(b) Make whole unit employees by reimbursing
them for losses of pay suffered by its failure to pay
cost-of-living allowances between 1 April and 12
June 1982, and its reduction of wages between 12
June 1982 and 11 July 1983, in the manner set forth
in the remedy section of this decision.
(c) Preserve and, on 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.
(d) Post at its Bedford Park, Illinois terminal
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Re-
gional Director for Region 13, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
z 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
MAISLIN TRANSPORT 531
APPENDIX
No FICE 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.
WE WILL NOT refuse to bargain with Chicago
Truck Drivers, Helpers and Warehouse Workers
Union (Independent), as the exclusive representa-
tive of the employees in the bargaining unit, by by-
passing the Union and dealing directly with unit
employees , and by unilaterally eliminating cost-of-
living allowances and reducing wages.
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, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment including
wages and cost-of-living allowances, for our em-
ployees in the bargaining unit:
All truck drivers and helpers employed by us
at our facility presently located at 6633 West
75th Street, Bedford Park, Illinois 60638, ex-
cluding all mechanics , utility men , office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
WE WILL make whole unit employees by reim-
bursing them, with interest, for losses of pay suf-
fered by our failure to pay cost-of-living allow-
ances between 1 April and 12 June 1982, and our
reduction of wages between 12 June 1982 and 11
July 1983.
MAISLIN TRANSPORT OF DELAWARE,
INC. AND MAISLIN TRANSPORT OF
DELAWARE, INC. DEBTOR-IN-POSSES-
SION