River Brothers Ambulette Service

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1476 (N.L.R.B. 1977)

1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willie Rivers d/b/a Rivers Brothers Ambulette
Service and Local 531 , International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Cases 29-CA-5195 and 29-
CA-5281
April 14, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
Upon charges filed on September 15, 1976, and
October 28, 1976,1 by Local 531, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Willie Rivers d/b/a
Rivers Brothers Ambulette Service, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 29, issued a complaint and notice of hearing
on October 29, and an order consolidating cases and
consolidated amended complaint and notice of
hearing on November 30, against the Respondent,
alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3), (5), and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charges,
complaints, order consolidating cases, and notice of
hearing were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
consolidated amended complaint alleges that the
Respondent refused to recognize and bargain with
the Union, unilaterally changed the method of
payment of its employees, created the impression of
surveillance of its employees' union activities, re-
quested its employees to repudiate the Union,
threatened its employees with discharge and other
reprisals if they joined or supported the Union,
interrogated its employees concerning their member-
ship in and support of the Union, threatened to go
out of business if the Union became the bargaining
representative of its employees, and discharged four
employees because of their union activity.
The complaint and notice of hearing served on the
Respondent specifically stated that unless an answer
were filed within 10 days from the service of the
complaint "all of the allegations of said complaint
shall be deemed to be admitted to be true and may
be so found by the Board." The complaint was
served on the Respondent on or about October 29,
and the consolidated amended complaint and notice
I Unless otherwise indicated all dates herein refer to 1976.
of hearing was served on the Respondent on
December 2. On December 21, counsel for the
General Counsel solicited Edward Rivers, the man-
ager of the Respondent and brother of Willie Rivers,
to file an answer. On December 27, counsel for the
General Counsel spoke with Edward Rivers on the
telephone and informed Rivers that he would move
for summary judgment if the Respondent did not file
an answer to the consolidated amended complaint.
Rivers orally advised counsel for the General
Counsel that the Respondent would not file an
answer in Cases 29-CA-5915 and 29-CA-5281. To
date, no answer has been filed by or on behalf of the
Respondent to either the complaint or the consoli-
dated amended complaint.
On January 7, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 27,
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. The
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
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 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 complaint,
unless the respondent is without knowledge, in
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.
As noted above, the Respondent has not filed an
answer within the allotted time. As the Respondent
has not made application for an extension of time to
228 NLRB No. 184
RIVERS BROTHERS AMBULETTE SERVICE 1477
file an answer nor has shown good cause for its
failure to do so, the allegations of the complaint are
deemed, and found, to be true. Accordingly, we shall
grant the General Counsel's 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
Willie Rivers, and individual, is, and has been at all
times material herein, an individual proprietor doing
business under the trade name and style of Rivers
Brothers Ambulette Service, with its principal office
and place of business at 198-21 Hollis Avenue,
Hollis, Queens, New York, where it is engaged in
providing ambulette and related services. During the
year September 1, 1975, through August 31, 1976, the
Respondent, in the course and conduct of its
business operations, performed services valued in
excess of $50,000 directly for the Human Resources
Administration of the City of New York. The city of
New York annually purchases goods, materials, and
services valued in excess of $50,000 from enterprises
located outside New York State and in States of the
United States, and political subdivisions thereof,
other than New York State.
We find, on the basis of the foregoing, that the
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
Local 531, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen 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 8(a)(5) Violations
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All drivers, dispatchers and helpers of Respon-
dent employed at its Queens plant, exclusive of all
other employees including office clerical employ-
ees, guards, and all supervisors as defined in
Section 2(11) of the Act.
The Union was duly selected as the collective-
bargaining representative of the employees in said
unit on or about August 19, and continues to be the
exclusive representative within the meaning of
Section 9(a) of the Act.
Commencing on or about August 20, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative to all
the employees in the above-described unit, and the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive collective-bargaining representative of all
employees in that unit.
Accordingly, we find that the Respondent has,
since August 20, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
On or about September 3, the Respondent unilater-
ally, and without bargaining with the Union,
changed the method of payment and other terms and
conditions of employment of the employees in the
unit described above. We find that by such conduct
the Respondent further violated Section 8(a)(5) and
(1) of the Act.
B. The 8(a)(3) Violations
On or about August 26 , the Respondent discharged
employee George Durden , and on or about Septem-
ber 13 , the Respondent discharged employees James
Walker, Gehover Dublin , and Cynthia Hardnettt
(also known as Carolyn P. Calhoun ) because of their
membership in, and activities on behalf of, the
Union , and because they engaged in concerted
activities for the purpose of collective bargaining or
other mutual aid and protection.
Accordingly, we find that by the discharges of
Durden , Walker, Dublin, and Hardnett , and by its
failure to reinstate and recall these employees, the
Respondent discriminated in regard to the terms and
conditions of employment of its employees because
of their union and other concerted activities, thereby
discouraging membership in a labor organization,
and that by such conduct the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and ( 1) of the
Act.
C. The Independent 8(a)(1) Violations
On or about August 30, the Respondent, by
Edward Rivers, its supervisor, requested its employ-
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees to repudiate their membership in the Union and
to refrain from giving assistance or support to the
Union. On or about August 30 and September 1,
Rivers threatened Respondent 's employees with
discharge and other reprisals if they became or
remained members of the Union and if they gave any
assistance or support to it. The Respondent, on or
about September 1, interrogated its employees
concerning the employees' membership in, activities
on behalf of, and sympathy for the Union. Finally,
on or about September 2, Supervisor Rivers threat-
ened the employees that Respondent would go out of
business if the Union were to become the bargaining
representative of the Respondent 's employees. We
find, accordingly, that by the aforesaid conduct the
Respondent interfered with, restrained , and coerced
its employees in the exercise of their rights guaran-
teed under Section 7 of the Act and that, by such
conduct, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the 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 the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), 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.
As the Respondent , on or about August 20, and at
all times thereafter , refused and continues to refuse
to bargain with the Union as the exclusive collective-
bargaining representative of the employees in the
above-described unit , and on September 3, without
bargaining with the Union , unilaterally changed the
method of payment and other terms and conditions
of employment of the employees in the bargaining
unit, we shall order the Respondent to cease and
desist from such conduct and, upon request, to
bargain collectively with the Union as the exclusive
representative of all employees in the described unit.
As we have found that on August 26 and
September 13 the Respondent discharged employees
Durden , Walker , Dublin , and Hardnett , and since
that time has refused to reinstate them to their
former positions , we shall order that the Respondent
offer them immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may
have suffered by payment to them of sums of money
equal to the amount they normally would have
earned as wages from the dates of the respective
discharges , less net earnings , in accordance with the
formulas set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
As the unfair labor practices committed by the
Respondent are of a character which goes to the very
heart of the Act, we shall order the Respondent to
cease and desist from infringing in any other manner
upon the rights of employees guaranteed by Section 7
of the Act.
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Respondent, Willie Rivers d/b/a Rivers Broth-
ers Ambulette Service , is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Local 531, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All drivers , dispatchers and helpers of Respon-
dent employed at its Queens plant, exclusive of all
other employees including office clerical employ-
ees, guards, and all supervisors as defined in
Section 2(11) of the Act.
4. By the acts described in section III, A, B, and
C, above, the Respondent has interfered with,
restrained , and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act and
thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a)(1),
(3), and (5) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
RIVERS BROTHERS AMBULETTE SERVICE 1479
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Willie Rivers d/b/a Rivers Brothers Ambulette
Service, Hollis, New York, its agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging and refusing to reinstate employees
because of their membership in or activities on
behalf of Local 531, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or otherwise discouraging membership
in that Union.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local 531, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All drivers, dispatchers and helpers of Respon-
dent employed at its Queens plant, exclusive of all
other employees including office clerical employ-
ees, guards, and all supervisors as defined in
Section 2(11) of the Act.
(c) Unilaterally changing the method of payment
or other terms and conditions of employment of the
employees in the appropriate unit without prior
notification to and bargaining with the Union.
(d) Requesting its employees to repudiate their
membership in Local 531, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America, and to refrain from giving assis-
tance or support to that Union.
(e) Threatening its employees with discharge or
other reprisals if they become or remain members of,
or if they give any assistance or support to, the
Union.
(f) Interrogating its employees concerning their
membership in, activities on behalf of, or sympathy
in and for the Union.
(g) Threatening to close the plant if the Union is
successful in its organizational campaign.
(h) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of 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) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Offer to George Durden, James Walker,
Gehover Dublin, and Cynthia Hardnett (also known
as Carolyn P. Calhoun) immediate and full reinstate-
ment to their former jobs at the Respondent's Hollis,
Queens, New York, plant or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss
of earnings suffered by reason of Respondent's
discrimination against them, in the manner set forth
in the section of this Decision entitled "The Reme-
dy "
(c) 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.
(d) Post at its plant in Hollis, Queens, New York,
copies of the attached notice marked "Appendix."2
Copies of said notice, on forms provided by the
Regional Director for Region 29, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
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
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge and refuse to reinstate
employees because of their membership in or
activities on behalf of Local 531, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or otherwise
discourage membership in that Union.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of employment with Local
531, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representa-
tive of all employees in the following appropriate
unit:
All drivers, dispatchers and helpers of
Respondent employed at its Queens plant,
exclusive of all other employees including
office clerical employees, guards, and all
supervisors as defined in Section 2(11) of the
Act.
WE WILL NOT unilaterally change the method of
payment or other terms and conditions of
employment of the employees in the appropriate
unit without prior notification to and bargaining
with the Union.
WE WILL NOT request our employees to
repudiate their membership in Local 531, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and to
refrain from giving assistance or support to that
Union.
WE WILL NOT threaten our employees with
discharge or other reprisals if they become or
remain members of, or if they give any assistance
or support to, the Union.
WE WILL NOT interrogate our employees con-
cerning their membership in, activities on behalf
of, or sympathy in and for the Union.
WE WILL NOT threaten to close the plant if the
Union is successful in its organizational cam-
paign.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them in Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid
appropriate unit with respect 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 offer to George Durden, James
Walker, Gehover Dublin, and Cynthia Hardnett
(also known as Carolyn P. Calhoun) immediate
and full reinstatement to their former jobs at our
Queens plant or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and WE WILL make each of them whole
for any loss of earnings suffered by reason of our
discrimination against them, with interest thereon
at 6 percent.
WILLIE RIVERS D/B/A
RIVERS BROTHERS
AMBULETTE SERVICE