Rally Farms, Inc.

National Labor Relations Board - Board Decisions

Jul 15, 1977

230 N.L.R.B. 931 (N.L.R.B. 1977)

RALLY FARMS, INC.
Rally Farms, Inc. and Milk Drivers' Union Local 753,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 13-CA-16091
July 15, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on December 30, 1976, by
Milk Drivers' Union Local 753, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union,
and duly served on Rally Farms, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 13, issued a complaint and notice of hearing
and two amendments to the complaint on February
25 and March 2 and 4, 1977, respectively, alleging
that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (I) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint and notice
of hearing before an Administrative Law Judge, and
the amendments to the complaint were duly served
on the parties to this proceeding. Respondent failed
to file an answer to the complaint.
On April 14, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 26, 1977, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent did not file a
response to the Notice To Show Cause and therefore
the allegations of the Motion for Summary Judgment
stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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 provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
230 NLRB No. 135
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 so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on
Respondent specifically stated that unless an answer
to the complaint was filed within 10 days of 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
uncontroverted allegations of the Motion for Sum-
mary Judgment, by letters dated March 3 and 4,
1977, the attorney for Respondent's president and
Respondent's attorney respectively informed the
Regional Office that Respondent had "ceased to
operate" and was "insolvent." Thereafter, by letter
dated March 21, 1977, counsel for the General
Counsel advised the Respondent that unless an
answer were filed by March 25, 1977, a Motion for
Summary Judgment would be filed. Subsequently,
the same letter, dated March 28, 1977, was again sent
to, and served on, Respondent. As of April 4, 1977,
the date of the Motion for Summary Judgment,
Respondent had failed to file an answer or to explain
the reason for such failure. Respondent has also
failed to file a response to the Notice To Show
Cause. No good cause for failure to file an answer
having been shown, in accordance with the rule set
forth above, the allegations of the complaint are
deemed to be admitted. Accordingly, we find as true
all the allegations of the complaint and grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, at all times material herein, has
maintained a place of business at 4201 West Chicago
Avenue, Chicago, Illinois, where it is engaged in the
business of selling and distributing dairy products
from its wholesale facilities to retail facilities. During
the past fiscal or calendar year, a typical representa-
tive period, Respondent, in the course and conduct
of its business operations, purchased and received at
its Chicago, Illinois, location goods valued in excess
of $50,000, which goods were shipped directly from
points outside Illinois, and it shipped goods valued in
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excess of $50,000 from its Chicago, Illinois, location
directly to points outside Illinois.
We find, on the basis of the foregoing, that
Respondent 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
Milk Drivers' Union Local 753, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representative Status of the Union
I. All commission wholesale routemen, route
foremen, assistant route foremen, vacation men,
solicitors or adjusters, special and extra routemen,
truckers and van day men, truckers and van night
men, tank day men, tank night men, retail store
solicitors; but excluding all office, clerical, adminis-
trative, and supervisory employees with authority to
hire, discharge, discipline, or change the status of an
employee, or effectively recommend such action, and
all employees presently represented by other labor
organizations, constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
2. At all times material herein, the Union has
been the recognized collective-bargaining representa-
tive of Respondent's employees in the unit described
above and, by virtue of Section 9(a) of the Act, is and
has been the exclusive collective-bargaining repre-
sentative of said employees for the purpose of
collective bargaining with respect to rates of pay,
wages, hours, and other terms and conditions of
employment. The most recent collective-bargaining
agreement between Respondent and the Union
became effective May 1, 1974, and expired of its own
terms April 30, 1976.
B. The Unilateral Changes
Commencing on or about June 30, 1976, and
continuing to date, Respondent, without first giving
notice to and bargaining with the Union, has
unilaterally withheld payments to the health and
welfare fund and the pension severance fund, which
payments are among the terms and conditions of
employment of Respondent's employees in the unit
described above.
C. The Requests and Refusals To Bargain
Commencing on or about September 1, 1976, the
Union requested, and continuing to date is request-
ing, Respondent to bargain collectively with respect
to rates of pay, wages, hours, and other terms and
conditions of employment, as the exclusive bargain-
ing representative of Respondent's employees in the
unit described above. Commencing on or about
September 1, 1976, and continuing to date, Respon-
dent did refuse, and continues to refuse, to bargain
collectively with the Union as the duly recognized
exclusive bargaining representative of Respondent's
employees in the unit described above.
We find that by the acts and conduct set forth
above, in section III, B and C, Respondent has
refused to bargain collectively in good faith, and is
refusing to bargain collectively in good faith, with the
Union as the exclusive representative of the employ-
ees in the above-described appropriate unit, and
thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
that it take certain affirmative action as set forth
below designed to effectuate the purposes and
policies of the Act.
Having found that Respondent has engaged in an
unfair labor practice by its discontinuance of
payments to the health and welfare fund and the
pension severance fund, we shall order Respondent
to make whole the employees involved therein (I) by
paying all health and welfare fund and pension
severance fund contributions, as provided in the
expired collective-bargaining agreement, which have
not been paid and which would have been paid
absent Respondent's unlawful conduct found herein,
and (2) by continuing such payments until such time
932
RALLY FARMS, INC.
as Respondent negotiates in good faith with the
Union to a new agreement or to an impasse.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Rally Farms, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Milk Drivers' Union Local 753, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All commission wholesale route men, route
foremen, assistant route foremen, vacation men,
solicitors or adjusters, special and extra route men,
truckers and van day men, truckers and van night
men, tank day men, tank night men, retail store
solicitors, but excluding all office, clerical, adminis-
trative and supervisory employees with authority to
hire, discharge, discipline, or change the status of an
employee, or effectively recommend such action, and
all employees presently represented by other labor
organizations, 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 is now, the
recognized and exclusive representative of all em-
ployees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By the acts and conduct described in section
III, B and C, above, Respondent has refused to
bargain collectively in good faith, and is refusing to
bargain collectively in good faith, with the above-
named labor organization as the exclusive represen-
tative of the employees in the above-described
appropriate unit, and thereby has engaged in, and is
engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the acts and conduct described in section
II, B and C, above, Respondent has interfered with,
restrained, and coerced, and is interfering with,
restraining, and coercing, employees in the exercise
of the rights guaranteed them under Section 7 of the
Act, and thereby has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
Rally Farms, Inc., Chicago, Illinois, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Unilaterally withholding payments to the health
and welfare fund and pension severance fund, which
payments are among the terms and conditions of
employment of Respondent's employees in the unit
described below, without first giving notice to and
bargaining with Milk Drivers' Union Local 753,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of those employ-
ees. The appropriate bargaining unit is:
All commission wholesale routemen, route
foremen, assistant route foremen, vacation men,
solicitors or adjusters, special and extra routemen,
truckers and van day men, truckers and van night
men, tank day men, tank night men, retail store
solicitors; but excluding all office, clerical, admin-
istrative, and supervisory employees with authori-
ty to hire, discharge, discipline, or change the
status of an employee, or effectively recommend
such action, and all employees presently repre-
sented by other labor organizations.
(b) Refusing to bargain collectively in good faith
with respect to rates of pay, wages, hours, and other
terms and conditions of employment with Milk
Drivers' Union Local 753, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America, as the exclusive representative of
the employees in the above-described appropriate
unit.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Milk
Drivers' Union Local 753, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the bargaining representative of its
employees in the above-described appropriate unit as
to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Make whole the employees in the appropriate
bargaining unit described above by (1) paying all
contributions to the health and welfare fund and the
pension severance fund, as provided in the expired
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement, which have not
been paid and which would have been paid absent
Respondent's unlawful conduct found herein, and (2)
continuing such payments until such time as Respon-
dent negotiates in good faith with the aforesaid labor
organization to a new agreement or to an impasse.
(c) Post at its Chicago, Illinois, location copies of
the attached notice marked "Appendix." I Copies of
said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I In the event that 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 National 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
WE WILL NOT unilaterally withhold payments
to the health and welfare fund and pension
severance fund, which payments are among the
terms and conditions of employment of our
employees in the unit described below, without
first giving notice to and bargaining with Milk
Drivers' Union Local 753, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargain-
ing representative of those employees. The appro-
priate bargaining unit is:
All commission wholesale routemen,
route foremen, assistant route foremen,
vacation men, solicitors or adjusters, special
and extra routemen, truckers and van day
men, truckers and van night men, tank day
men, tank night men, retail store solicitors;
but excluding all office, clerical, administra-
tive, and supervisory employees with author-
ity to hire, discharge, discipline, or change
the status of an employee, or effectively
recommend such action, and all employees
presently represented by other labor organi-
zations.
WE WILL NOT refuse to bargain collectively in
good faith with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment with Milk Drivers' Union Local 753,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees in
the above-described appropriate unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL, upon request, bargain collectively
with the above-named Union as the bargaining
representative of our employees in the above-
described appropriate unit as to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
WE WILL make whole the employees in the
appropriate bargaining unit described above by
paying all contributions to the health and welfare
fund and the pension severance fund, as provided
in the expired collective-bargaining agreement,
which have not been paid and which would have
been paid absent our unlawful conduct, and by
continuing such payments until such time as we
negotiate in good faith with the above-named
Union to a new agreement or to an impasse.
RALLY FARMS, INC.
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