Michigan Expediting Service; Michigan Expediting Services, Inc., Action Express, Inc., And Vincent Express, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1986

282 N.L.R.B. 210 (N.L.R.B. 1986)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abdul Samad Ra'oof Shabazz and Jacqueline Craig,
a co-partnership d/b/a Michigan Expediting
Service; Michigan Expediting Services, Inc.,
Action Express , Inc., and Vincent Express, Inc.
and Ewan Greig and Local 299, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 7-
CA-25514 and 7-CA-25533
20 November 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
Upon a charge in Case 7-CA-25514 filed by
Ewan Greig 18 February 19861 and amended 15
April,2 and a charge in Case 7-CA-25533 filed by
the Union 21 February and amended 7 April,3 the
General Counsel of the National Labor Relations
Board issued a consolidated complaint 30 April4
and amended complaint 11 Julys against Abdul
Samad Ra'oof Shabazz and Jacqueline Craig, a co-
partnership d/b/a Michigan Expediting Service,
Michigan Expediting Services, Inc., Action Ex-
press, Inc., and Vincent Express, Inc. (collectively
called the Respondent), alleging that it has violated
Section 8(a)(3) and (1) of the National Labor Rela-
tions Act.
The amended complaint alleges that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging and inflicting bodily harm on em-
ployee Ewan Greig because he joined, supported,
and/or assisted the Union, and by discharging em-
ployee William Moss because he made common
cause with Greig in trying to protect Greig from
physical abuse from the Respondent growing out
of Greig's illegal discharge. The amended com-
plaint also alleges that the Respondent violated
Section 8(a)(1) of the Act by telling employees that
Greig was being discharged because of his support
i All dates are in 1986 unless otherwise indicated.
a The original charge in Case 7-CA-25514 was served by certified
marl about 18 February on the Respondent Action Express , Inc. The
amended charge was served by certified mail 28 April on the Respond-
ents Abdul Samad Ra'oof Shabazz and Jacqueline Craig d/b/a Michigan
Expediting Service and on Respondent Michigan Expediting Service,
Vincent Express, and Action Express . The amended charge was un-
claimed by the Respondents.
3 The original charge in Case 7-CA-25533 was served by certified
mail on the Respondent Michigan Expediting Services , Inc. and the Re-
spondent Action Express on 21 February . The amended charge was
served by certified mail 28 April on the Respondents , Abdul Samad
Ra'oof Shabazz and Jacqueline Craig, a co-partnership d/b/a Michigan
Expediting Service; Michigan Expediting Services , Inc., Action Express
Inc., and Vincent Express, Inc . The amended charge was unclaimed by
the Respondents.
4 The complaint was served by certified mail on the Respondents 30
April but was unclaimed On 6 June the Respondents were again served
with a copy of the complaint . This was also unclaimed
The amended complaint was served by certified mail on the Re-
spondents 11 July and was received by the Respondents 24 July.
for and/or activities on behalf of the Union, and by
threatening employees who supported the Union
with physical harm. The amended complaint also
alleges that the unfair labor practices set forth
above are so serious and substantial in nature and
so pervasive in character as to render nugatory the
holding of a fair initial representation election and
warrant the issuance of a bargaining order. Al-
though properly served copies of the charges and
complaints, the Respondent failed to file an
answer.6
On 2 July the General Counsel filed with the
Board a motion to transfer the case to the Board
and for Default Summary Judgment. On 11
August, following the amendment to the complaint,
the General Counsel filed an addendum to its
Motion for Default Summary Judgment. On 12
August 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
Respondent did not file a response to the Notice to
Show Cause. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Default 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 consolidated com-
plaint states that unless an answer is filed within 10
days from the service, "all of the allegations in the
Consolidated Complaint shall be deemed to be ad-
mitted true and may be so found by the Board."
Further, according to the Motion for Default Sum-
mary Judgment, on 15 May the Regional Attorney
advised the Respondent that the Regional Office
had not received an answer and that if an answer
was not filed by 29 May, a motion for default judg-
ment would be sought. On 6 June the Respondent
was again served with a copy of the consolidated
complaint. On 11 July counsel for the General
Counsel enclosed with a copy of the amended
complaint a letter stating that "it is the intention of
the Counsel for the General Counsel to pursue the
Motion for Default Summary Judgment dated June
27, 1986 should Respondents not file a timely
answer as called for on page 7 of the Amended
6 The Respondent's refusal or failure to claim certified mail should not
serve to defeat the purposes of the Act. Sheet Metal Workers Local 49
(Driver-Miller Plumbing), 124 NLRB 888, 890 (1959), Pasco Packing Ca,
115 NLRB 437 (1956)
282 NLRB No. 30
MICHIGAN EXPEDITING SERVICE 211
Complaint." The Respondent has failed to file an
answer to the complaint or the amended complaint,
and has failed to file a response to the Notice To
Show Cause. Accordingly, in the absence of good
cause being shown for failure to, file a timely
answer, we grant the General Counsel's Motion for
Default Summary Judgment insofar as the com-
plaint alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging and in-
flicting bodily harm on employee Ewan Greig and
by, discharging employee William Moss and violat-
ed Section 8(a)(1) of the Act by telling employees
that Greig was being discharged because of his
union activities and by threatening employees who
supported the Union with physical harm.
As noted above, the complaint additionally al-
leges that these unfair labor practices are so serious
and substantial in nature and so pervasive in char-
acter as to render nugatory the holding of a fair
initial representation election and warrant the entry
of a bargaining order. In determining whether a
bargaining order is appropriate to remedy an em-
plloyer's misconduct, we utilize the test delineated
in NLRB Y. Gissel Packing Co., 395 U.S. 575 (1969).
In evaluating the nature and pervasiveness of a
company's unfair labor practices, that test requires
us to consider many factors before making a deter-
mination whether a bargaining order is warranted.
In weighing the pervasive effect of a violation, rel-
evant considerations include the number of em-
ployees directly affected by the violation, the size
of the unit, the extent of dissemination among the
work force, and the identity of the perpetrator of
the unfair labor practice. The complaint in the in-
stant case alleges that the Respondent discharged
two employees and inflicted bodily injury on one
of them, told employees an employee was being
discharged for union activities, and threatened
bodily injury on employees who supported the
Union. The complaint further alleges, in conclusion-
airy terms that such unfair labor practices preclud-
ed the holding,of a fair' election and that therefore
a bargaining order is warranted. In our view, the
complaint does not allege sufficient facts to deter-
mine whether a bargaining order is warranted. See
Handy Dan's Convenience Store, 275 NLRB 394
(11985); Power Jet Industrial Cleaning, 270 NLRB
975 (1984). Although the unfair labor practices
here are serious in nature, the complaint does not
allege sufficient facts to enable .the Board to evalu-
ate the pervasiveness of the violations. For exam-
ple, the complaint does not allege the size of the
unit,' the number of employees who witnessed the
infliction of bodily injury on Greig, the number of
employees who heard the Respondent's statement
that Greig was being discharged for union activi-
ties, and the number of employees subjected to the
Respondent 's - threat . The complaint also does not
allege the extent of dissemination , if any , of these
violations among the work force to those employ-
ees not directly affected by them. Accordingly, we
deny the Motion for Default Summary Judgment
insofar as it alleges that a bargaining order is ap-
propriate . We shall, however, remand this case for
a hearing before an administrative law judge only
on the issue of whether a bargaining order is an ap-
propriate remedy under the circumstances of this
case.
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Abdul Samad Ra'oof Shabazz and Jacqueline
Craig are owners of a co-partnership doing busi-
ness under the name of Michigan Expediting Serv-
ice. Each of Michigan Expediting Service, Inc.;
Action Express, Inc:; and Vincent Express, Inc. is
a Michigan corporation maintaining its principal
office and place of business at 1403 E. State Fair,
Detroit, Michigan. The Respondent is engaged in
the intrastate transportation of freight by motor ve-
hicles as a common carrier. During the calendar
year ending 31 December 1985, a representative
period, the Respondent and each of its entity com-
panies performed services valued in excess of
$50,000 for General Motors Corporation, Ford
Motor Company, and Chrysler Corporation.
During the calendar year ending 31 December
1985, a representative period, each of General
Motors Corporation, Ford Motor Company, and
Chrysler Corporation had 'annual gross revenues in
excess of $500,000, and each purchased goods and
materials valued in excess of $50,000, which were
transported and delivered to its facilities in the
State of Michigan directly from points located out-
side the State of Michigan.'
At all material times, all the entities comprising
the Respondent have been 'affiliated business enter-
prises with common offices and/or ownership, di-
rectors, management, and supervision, have formu-
lated and administered a common labor policy af-
fecting employees of the operations, have shared
common facilities and equipment, and have provid-
ed services for each other and have allowed inter-
change of employees and payroll functions. We
find that the Respondent constitutes a single inte-
grated business enterprise and a single and/or joint
employer within the meaning of the Act.
At all material times, Michigan Expediting Serv-
ice, Inc., Action Express, Inc., and Vincent Ex-
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
press, Inc. have had substantially identical manage-
ment, labor and personnel policies, business pur-
poses, operations, equipment, and supervision of
employees at their shared Detroit facility. We find
that all these entities are `alter egos of each other.
We find that the Respondent and each entity of the
Respondent are employers individually and collec-
tively engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. We also find
that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
About 14 February, the Respondent, through its
agent Wattie Bishop, discharged and inflicted
bodily harm on the Charging Party, Ewan Greig,
because he joined, supported, and/or assisted the
Union. Also about 14 February the Respondent,
through its agent Wattie Bishop, discharged em-
ployee William Moss because he made common
cause with Greig in trying to protect Greig from
physical abuse from Bishop growing out of the Re-
spondent's discharge' of Greig. We find that by
these acts, the Respondent has violated Section
8(a)(3) and (1) of the Act.
About 14 February, at its Detroit facility, the
Respondent, through its agent Wattie Bishop, told
employees that Greig was being discharged be-
cause of his support for and/or activities on behalf
of the Union. Also about 14 February, at the
Board's Regional, Office of Region 7, the Respond-
ent, through Wattie Bishop, threatened employees
who supported the charging Union with physical
harm. We find that by these acts, the Respondent
has violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
By discharging and inflicting bodily harm on
Ewan Greig, and by discharging William Moss
about 14 February, the Respondent has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
By telling employees that Greig was being dis-
charged because of his support for and/or activities
on behalf of the Union, and by threatening employ-
ees who supported the Union with physical harm,
the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
Act. We shall order the Respondent to offer em-
ployees Ewan Greig and William Moss immediate
and full reinstatement to their former positions or,
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed. We shall further order the Respondent to
make the above-named employees whole for any
loss of earnings they may have suffered as a result
of the discrimination against them, to be computed
in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). We shall
also order the Respondent to remove from its files
any reference to the unlawful discharges and to
notify the employees in writing that this has been
done and that the unlawful discharges will not be
used against them in any way. We shall further
order the Respondent to post an appropriate notice
to employees. As previously noted, we shall also
remand this case for hearing on the limited issue of
whether a bargaining order is an appropriate
remedy under the circumstances of this case.7
ORDER
The National Labor Relations Board orders that
the Respondent, Abdul Samad Ra'oof Shabazz and
Jacqueline Craig, a co-partnership d/b/a Michigan
Expediting Service, Michigan Expediting Services,
Inc., Action Express, Inc., and Vincent Express,
Inc., Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or inflicting bodily harm on em-
ployees because they join, support, and/or assist
Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization.
(b) Discharging employees for trying to protect
other employees from physical abuse growing out
of their illegal discharges.
(c) Telling employees that other employees are
being discharged because of their support for
and/or activities on behalf of the Union or any
other labor organization.
(d) Threatening employees who support the
Union or any other labor organization with physi-
cal harm.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
REMEDY
Having found that the Respondent has violated
Section 8(a)(3) and (1) of the Act, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
7 The General Counsel seeks a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure subject to the supervision
of the United States court of appeals enforcing this Order Under the cir-
cumstances of this case, we find it unnecessary to include such a clause
Accordingly,- we deny the General Counsel's request.
MICHIGAN EXPEDITING SERVICE
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) Offer Ewan Greig and William Moss immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them in the manner set forth
in the remedy section of this decision.
(b) Remove from its files any reference to the
unlawful discharges of Greig and Moss, and notify
them in writing that this has been done and that
the discharges will not be used against them in any
way.
(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 Detroit, Michigan facility copies of
the attached notice marked "Appendix ."8 Copies
of the notice , on forms provided by the Regional
Director for Region 7, after being signed by the
Respondent's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able 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.
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for the purpose
of holding a hearing before an administrative law
judge only on the issue of the appropriateness of a
bargaining order as an additional remedy under the
circumstances of this case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
213
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 discharge or inflict bodily harm
on you because you join, support, and/or assist
Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization.
WE WILL NOT discharge you for trying to pro-
tect other employees from physical abuse growing
out of their illegal discharges.
WE WILL NOT tell you that other employees are
being discharged because of their support for
and/or activities on behalf of the Union, or any
other labor organization. ,
WE WILL NOT threaten employees who support
the Union, or any other labor organization, with
physical harm.
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 offer, employees Ewan Greig and Wil-
liam Moss immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions without
prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other ben-
efits resulting from their discharges, , less any net in-
terim earnings, plus interest.
WE WILL notify Ewan Greig and William Moss
that we have removed from our files any reference
to their discharges and that we will not use the dis-
charges 'against them in any way.
ABDUL ' SAMAD RA'OOF SHABAZZ
AND JACQUELINE CRAIG, A CO-PART-
NERSHIP D/B/A MICHIGAN EXPEDIT-
ING SERVICE; MICHIGAN EXPEDITING
SERVICES, INC., ACTION EXPRESS,
INC., AND VINCENT EXPRESS, INC.
8 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-
all Labor Relations , Board" shall read "Pasted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."