Rally Farms, Inc.Download PDFNational Labor Relations Board - Board DecisionsJul 15, 1977230 N.L.R.B. 931 (N.L.R.B. 1977) Copy Citation 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 931 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 933 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. 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