Rapid Air Expediting, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 931 (N.L.R.B. 1975)

RAPID AIR EXPEDITING , INC. 931
Rapid Air Expediting , Inc. and Local Union No. 299,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 7-CA-11772
September 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Judgment. Subsequently, on June 3, 1975, 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.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Upon a charge filed on February 5, 1975, by Local
Union No. 299, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on Rapid Air Expediting, Inc., herein called the Re-
spondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 7, issued a complaint on April 7, 1975,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practic-
es affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an Administrative Law Judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that the Union and Re-
spondent entered into a collective-bargaining agree-
ment effective from July 1, 1973, to March 31, 1976,
and that the Union is the exclusive collective-bar-
gaining representative of Respondent's employees in
the contractual unit. It alleges violations of Section
8(a)(5) and (1) of the Act by the Respondent unilat-
erally changing terms and conditions of employment
of unit employees and by failing to make contractu-
ally agreed contributions to the Union's health and
welfare and pension funds, by ceasing to deduct
dues, and by bargaining directly with the employees
and refusing to bargain about the effects of termina-
tion of its operation. The complaint also alleges vio-
lations of Section 8(a)(1) of the Act by the Respon-
dent threatening employees with discharge if they
engaged in protected strike activities or brought em-
ployment grievances to the Union's attention, advis-
ing employees it would be futile to try to compel its
payment of fringe benefit contributions through in-
tercession of the Union and threatening closure of its
place of business if employees continued to support
the Union. Respondent failed to file an answer to the
complaint.
On May 27, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
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 thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions 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 ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint duly served on the Respondent spe-
cifically states that unless an answer to the complaint
is filed by the Respondent within 10 days of service
thereof "all the allegations of the Consolidated Com-
plaint shall be deemed to be admitted by it to be true
and may be so found by the Board." As indicated
above, no response to the notice to show cause has
been filed by the Respondent. The uncontroverted
allegations of the Motion for Summary Judgment al-
lege not only that the Respondent had been duly
served with the complaint by registered mail, but also
that as of May 23, 1975, the date of the motion here-
in, no answer has been filed, despite a letter to Re-
spondent from counsel to the General Counsel advis-
ing it to file an answer by May 23, 1975, and advising
Respondent of the consequences of the failure to file
an answer.
No good cause to the contrary having been shown,
in accordance with the rule set forth above, the alle-
gations of the consolidated complaint are deemed to
be admitted and are found to be true. We shall, ac-
cordingly, grant the Motion for Summary Judgment.
220 NLRB No. 133
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Rapid Air Expediting, Inc., is a Michigan corpora-
tion engaged in the business of air freight pickup and
delivery, and related services , at its only office and
place of business at 28451 Wick Road in the city of
Romulus, Michigan, the only facility involved in this
proceeding. During the year ending December 31,
1974, a representative period, Rapid Air Expediting,
Inc., performed in the course and conduct of its busi-
ness operations , services valued in excess of
$100,000, of which services valued in excess of
$50,000 in the aggregate were performed for Associ-
ated Air Freight and 5-Star Air Freight, each of
which annually ships products valued in excess of
$50,000 directly in interstate commerce.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 299, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violations
Since on or about August 5, 1974, and particularly
in November and December 1974, and continuing to
date, Respondent has (1) threatened to discharge em-
ployees if they were to engage in protected concerted
strike activities or, if they were to bring their griev-
ances concerning conditions of employment to the
attention of the Union; (2) advised its employees that
it would be futile to seek to compel payment of the
fringe benefit contributions to the Union's health
and welfare and pension funds through intercession
of the Union; and (3) threatened employees with the
closure of its Romulus, Michigan , place of business if
the employees continued their support for the Union.
Accordingly, we find that the Respondent has,
since August 5, 1974, and at all times thereafter, in-
terfered with, restrained , and coerced , and is interfer-
ing with, restraining, and coercing, its employees in
the exercise of rights guaranteed in Section 7 of the
Act and that by such conduct Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
B. The 8(a)(5) and (1) Violations
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes with the meaning of Section 9(b) of the
Act:
All truckdrivers, helpers, dockmen, warehouse-
men, checkers, powerlift operators, hostlers of
Employer, and such other employees as may be
presently or hereafter represented by the Union,
engaged in local pick-up, delivery, and assem-
bling of freight within the area located within
the jurisdiction of the Local Union, not to ex-
ceed a radius of twenty-five (25) miles.
2. The Union's representative status
On or about July 3, 1973, Respondent and the
Union entered into a collective-bargaining agree-
ment effective from July 1, 1973, through March 31,
1976, in which , inter alia, the Respondent recognized
the Union as the exclusive representative of the unit
employees and the Union continues to be such exclu-
sive representative within the meaning of Section 9(a)
of the Act.
3. Respondent's refusal to bargain
Commencing on or about August 5, 1974, and
continuing at all times thereafter to date , the Respon-
dent has refused , and continues to refuse, to recog-
nize and bargain with the Union as the exclusive rep-
resentative for collective bargaining of all employees
in said unit by (1) unilaterally changing the terms
and conditions of employment of the employees in
the unit without prior notice and meaningful oppor-
tunity to bargain being given to the Union, ceasing to
make the appropriate contractually required contri-
butions on behalf of its employees to the Union's
health and welfare and pension funds , and ceasing to
make the appropriate payroll deductions and trans-
mission to the Union of employee union dues as re-
quired by the collective-bargaining agreement be-
tween Respondent and the Union; (2) engaging in
acts of individual direct bargaining with employees
concerning their terms and conditions of employ-
ment in derogation of Respondent's obligations to
RAPID AIR EXPEDITING, INC.
bargain in good faith exclusively with the Union in
respect to the rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment
of the employees in the unit; and (3 ) after determin-
ing to terminate operations , failing and refusing to
give notice of its intent to terminate or to bargain
with the Union concerning the effects of the termina-
tion of operations upon the employees in the unit.
Accordingly, we find that the Respondent has,
since August 5, 1974, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit , and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act, we shall
order that it cease and desist therefrom , and take
certain affirmative action designed to effectuate the
policies of the Act.
We have found that Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) and we
shall order it to cease and desist therefrom.
With respect to Respondent 's violations of Section
8(a)(5) of the Act, we have found that it unilaterally
ceased making contractually required contributions
on behalf of its employees to the Union's health and
welfare and pension funds . Accordingly, we shall or-
der it to reinstitute and pay all such contributions
due and owing under the collective -bargaining agree-
ment and make whole its employees for any losses
they may have incurred as a result of such changes.
We have also found that Respondent ceased making
appropriate payroll deductions and failed to transmit
employee union dues to the Union and we shall or-
der it to make the appropriate payroll deductions,
transmit employee union dues to the Union, and
abide by the terms and conditions of the collective-
bargaining agreement between it and the Union.
933
Having found that Respondent engaged in direct
bargaining with the employees we shall order that it
cease and desist therefrom.
Having further found that Respondent, after de-
termining to terminate operations, failed and refused
to give notice of its intent to terminate or to bargain
with the Union concerning the effects of the termina-
tion of operations upon the employees in the unit, we
shall order Respondent to bargain with the Union
with respect to such effects.
In addition, because of Respondent's unlawful
failure to bargain about the effects of its termination
of operations, its employees in the unit have been
denied an opportunity to bargain through their col-
lective-bargaining representative when the parties
each maintained bargaining power. For this reason,
Respondent shall be ordered to pay employees back-
pay in a manner similar to that required in Transma-
rine Navigation Corporation, 170 NLRB 389 (1968).
Backpay shall be computed at the rate of their nor-
mal wages as when they were in Respondent's em-
ploy and from 5 days after the date of this Decision
and Order until the occurrence of the earliest of the
following conditions; (1) the date the Respondent
bargains to agreement with the Union on those sub-
jects pertaining to the effects of termination of its
operations; (2) a bona fide impasse in bargaining; (3)
the failure of the Union to request bargaining within
5 days of this Decision and Order, or to commence
negotiations within 5 days of Respondent's notice of
its desire to bargain with the Union; or (4) the subse-
quent failure of the Union to bargain in good faith;
but in no event shall the sum paid to any of these
employees exceed the amount each would have
earned as wages from the time Respondent terminat-
ed its operations to the time each secured equivalent
employment elsewhere, or the date on which Re-
spondent shall have offered to bargain, whichever
occurs first; provided, however, in no event shall this
sum be less than such employees would have earned
for a 2-week period at the rate of their normal wages
when last in the Respondent's employ.'
In addition to requiring Respondent to post copies
of the notice, we shall order it to mail copies of the
notice to its employees at their last known address
and to the Union.
We also expressly reserve the right to modify the
terms of the Order and the Remedy, if made neces-
sary by a change of conditions in the future, and to
make such supplements thereto as may hereafter be-
come necessary in order to define or clarify their ap-
plication to a specific set of circumstances not now
apparent.
1 Automation Institute of Los Angeles, Inc, d/b/a West Coast Schools, 208
NLRB 725 (1974)
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Rapid Air Expediting, Inc. is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local Union No. 299, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All truckdrivers, helpers, dockmen, warehouse-
men, checkers, powerlift operators, hostlers of Em-
ployer, and such other employees as may be present-
ly or hereafter represented by the Union, engaged in
local pick-up, delivery, and assembling of freight
within the area located within the jurisdiction of the
Local Union, not to exceed a radius of twenty-five
(25) miles, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since on or about July 1, 1973, the above-
named labor organization has been and now is the
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 5, 1974, and at
all times thereafter, to bargain collectively as de-
scribed in paragraph III, B, above, with the above-
named labor organization as the exclusive bargaining
representative of all the employees of Respondent in
the appropriate unit, Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and ( 1) of the Act.
6. By its acts and conduct as described in para-
graph III , B, above, Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. By the conduct referred to in paragraphs 5 and
6, above, Respondent has interfered with, restrained,
and coerced , and is interfering with, restraining, and
coercing, employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor prac-
tices 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 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 Re-
lations Board hereby orders that the Respondent,
Rapid Air Expediting, Inc., Romulus, Michigan, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local
Union No. 299, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America , as the exclusive bargaining representative
concerning rates of pay, wages, hours, and other
terms and conditions of employment , including re-
fusing to bargain concerning the effects of the termi-
nation of its operations upon unit employees, unilat-
erally changing terms and conditions of employment
by ceasing to make contractually required contribu-
tions on behalf of the employees to the Union's
health and welfare and pension funds and ceasing to
make payroll deductions and transmission to the
Union of employee dues, and bargaining directly
with employees in the following unit:
All truckdrivers, helpers, dockmen, warehouse-
men, checkers, powerlift operators, hostlers of
Employer, and such other employees as may be
presently or hereafter represented by the Union,
engaged in local pick-up, delivery, and assem-
bling of freight within the area located within
the jurisdiction of the Local Union, not to ex-
ceed a radius of twenty-five (25) miles.
(b) Threatening to discharge employees if they en-
gage in protected, concerted strike activities or if they
bring grievances concerning conditions of employ-
ment to the attention of the Union.
(c) Advising employees it would be futile to seek
to compel the payment of fringe benefit contribu-
tions in their behalf to the union funds through the
intercession of the Union.
(d) Threatening employees with closure of its op-
erations if employees continue their support for the
Union.
(e) 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 which the
Board finds will effectuate the policies of the Act:
(a) Reinstitute and pay all due and owing contrac-
tually required contributions on behalf of its employ-
ees to the Union's health and welfare and pension
funds and make whole its employees for any losses
they may have incurred as a result of Respondent's
failure to make such contribution in the manner set
forth in "The Remedy."
(b) Make appropriate payroll deductions and
transmit employee union dues to the Union and
abide by the terms and conditions of the collective-
RAPID AIR EXPEDITING, INC.
bargaining agreement and supplements thereto be-
tween Respondent and the Union.
(c) Pay its employees, terminated as a result of
any decision to terminate operations, their normal
wages for the period set forth and in the manner set
forth in the section of this Decision entitled "The
Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(e) Upon request, bargain in good faith with the
above-named labor organization as the exclusive rep-
resentative of all employees in the aforesaid appro-
priate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment and
the effects of any decision to terminate its operation
in the manner set forth in the section of this Decision
entitled "The Remedy," and, if an understanding is
reached, embody such understanding in a signed
agreement.
(f) Post at its Romulus, Michigan, place of busi-
ness copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by
the Regional Director for Region 7, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Copies of notices shall also be mailed to the last
known address of each employee. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered , defaced , or covered by any
other material.
(g) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
The Board reserves the right to modify the terms
of this Order, if made necessary by a change of con-
ditions in the future, and to make such supplements
thereto as may hereafter become necessary in order
to define or clarify their application to a specific set
of circumstances not now apparent.
2 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
935
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
with Local Union No. 299, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
bargaining representative concerning rates of
pay, wages, hours, and other terms and condi-
tions of employment, including refusing to bar-
gain concerning the effects of the termination of
its operations upon unit employees, unilaterally
changing terms and conditions of employment
by ceasing to make contractually required con-
tributions on behalf of the employees to the
Union's health and welfare and pension funds
and ceasing to make payroll deductions and
transmission to the Union of employee dues,
and bargaining directly with employees in the
unit described below.
WE WILL NOT threaten to discharge employees
if they engage in protected concerted activities
of if they bring grievances concerning condi-
tions of employment to the attention of the
Union.
WE WILL NOT advise employees it would be
futile to seek to compel the payment of fringe
benefit contributions in their behalf to the union
funds through the intercession of the Union.
WE WILL NOT threaten employees with closure
of our operations if employees continue their
support for the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL reinstitute and pay all due and owing
contractually required contributions on behalf
of our employees to the Union's health and wel-
fare and pension funds, and make whole our
employees for any losses they may have incurred
as a result of our failure to make such contribu-
tion.
WE WILL make appropriate payroll deductions
and transmit employee union dues to the Union
and abide by the terms and conditions of the
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement and supple-
ments thereto between us and the Union.
WE WILL pay our employees, terminated as a
result of any decision to terminate operations,
their normal wages for the period and in the
manner set forth in the Section of this Decision
entitled "The Remedy."
WE WILL, upon request, bargain in good faith
with the above-named Union, as the exclusive
representative 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 the effects of any de-
cision to terminate our operation , and, if an un-
derstanding is reached, embody such
understanding in a signed agreement. The bar-
gaining unit is:
All truckdrivers, helpers, dockmen, ware-
housemen, checkers, power-lift operators,
hostlers of Employer, and such other employ-
ees as may be presently or hereafter repre-
sented by the Union, engaged in local pick-
-up, delivery, and assembling of freight within
the area located within the jurisdiction of the
Local Union, not to exceed a radius of twen-
ty-five (25) miles.
RAPID AIR EXPEDITING, INC.