Scioto Haulers

National Labor Relations Board - Board Decisions

Feb 14, 1984

268 N.L.R.B. 921 (N.L.R.B. 1984)

SCIOTO HAULERS
Scioto Haulers, Inc. and United Paperworkers Inter-
national Union, Local Union No. 1152, AFL-
CIO-CLC. Cases 9-CA-18856 and 9-CA-
19486
14 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Upon charges filed by the Union 19 October
1982 and 28 March 1983, the General Counsel of
the National Labor Relations Board issued a con-
solidated amended complaint 27 April 1983 against
the Company, the Respondent, alleging that it has
violated Sections 8(a)(1), (3), and (5) and 8(d) of
the National Labor Relations Act. Although prop-
erly served copies of the charges, order consolidat-
ing cases, and consolidated amended complaint, the
Company has failed to file an answer.
On 20 May 1983 the General Counsel filed a
Motion for Summary Judgment. On 26 May 1983
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Company
filed no response. 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 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
amended complaint states that unless an answer is
filed within 10 days of service, "all the allegations
in the complaint shall be deemed to be admitted to
be true and shall be so found by the Board." Fur-
ther, the undisputed allegations in the Memoran-
dum in Support of Motion for Summary Judgment
disclose that the General Counsel by letter dated
10 May 1983 notified the Company that unless an
answer was received by 17 May 1983, a Motion for
Summary Judgment would be filed.
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judg-
ment. '
I In granting the General Counsel's Motion for Summary Judgment.
Chairman Dotson specifically relies on the total failure of Respondent to
contest either the factual allegations or the legal conclusions of the Gen-
eral Counsel's complaints. Thus, the Chairman regards this proceeding as
being essentially a default judgment which is without precedential value.
268 NLRB No. 127
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, an Ohio corporation, is engaged
in the business of refuse removal at its facility in
Circleville, Ohio, where during the calendar year
ending 31 December 1982 it provided services
valued in excess of $50,000 for other nonretail en-
terprises located within the State of Ohio, each of
which, in turn, annually sells and ships goods and
materials valued in excess of $50,000 from points
within the State of Ohio directly to points outside
the State of Ohio. We find that the Company is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union's Representative
Status
The following employees of the Company con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All truck drivers, helpers and mechanics em-
ployed at [the Company's] Circleville, Ohio fa-
cility, but excluding all guards and supervisors
as defined in the National Labor Relations
Act.
Since 14 October 1980 the Union, by virtue of
Section 9(a) of the Act, has been and now is the
certified collective-bargaining representative of the
unit employees. On or about 4 May 1981 the Union
and the Company entered into a collective-bargain-
ing agreement which was to remain in effect until 1
May 1983, and thereafter from year to year, unless
either party served a notice on the other party of
its desire to terminate or modify said agreement 60
days prior to I May 1983.
B. The 8(a)(1) Violation
On or about 7 May 1982 the Company, acting
through its supervisor and agent, Joseph H. Ogan,
at the Company's facility, threatened unit employ-
ees with loss of employment unless they agreed to
forgo a wage increase provided in the collective-
bargaining agreement. Accordingly, we find that
the Respondent, by its conduct, violated Section
8(a)(1) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The 8(a)(3) and (1) Violation
On or about 8 November 1982 the Company laid
off its employee Rodney D. Crago because he
joined, supported, or assisted the Union and en-
gaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, and in order to discourage employees from
engaging in such activities or other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection. Accordingly, we
find that the Company, by its conduct, violated
Section 8(a)(3) and (1) of the Act.
D. The 8(a)(5) and (1) and 8(d) Violations
On or about 7 May 1982 the Company, acting
through its supervisor and agent, Joseph H. Ogan,
without prior notice to or bargaining with the
Union, bypassed the Union and dealt directly with
its employees in the above-described unit by solicit-
ing employees to agree to defer a wage increase
provided in the applicable collective-bargaining
agreement. Further, since on or about 13 Decem-
ber 1982 the Company has refused, without prior
notice or bargaining with the Union, to abide by
the grievance procedure contained in the collec-
tive-bargaining agreement. Accordingly, we find
that the Company, by such conduct, violated Sec-
tion 8(a)(5) and (1) and Section 8(d) of the Act.
Since on or about 7 December 1982 the Compa-
ny, despite the Union's request, has failed and re-
fused to bargain collectively with it as the exclu-
sive collective-bargaining representative of the em-
ployees in the above-described unit with respect to
the effects on employees of the Company's decision
to terminate its business operations effective 13 De-
cember 1982. Accordingly, we find that the Com-
pany, by such conduct, violated Section 8(a)(5) and
(1) and Section 8(d) of the Act.
On or about 17 December 1982 the Company
withdrew its recognition of the Union as the exclu-
sive collective-bargaining representative of the em-
ployees in the above-described unit. Accordingly,
we find that the Company, by such conduct, vio-
lated Section 8(a)(5) and (1) and Section 8(d) of the
Act.
CONCLUSIONS OF LAW
1. By threatening employees, on or about 7 May
1982, with the loss of employment unless they
agreed to forgo a wage increase provided for in
the collective-bargaining agreement, the Company
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By discharging employee Rodney D. Crago,
on or about 8 November 1982, because he joined,
supported, or assisted the Union and engaged in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and
in order to discourage employees from engaging in
such activities or other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, the Company has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
3. By bypassing the Union and dealing directly
with its employees through the conduct described
in paragraph 5 above, without prior notice to, or
bargaining with, the Union as the exclusive repre-
sentative of its employees in the above-described
appropriate unit, the Company has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) and Section 8(d) of the Act.
4. By refusing, since on or about 13 December
1982, to abide by the grievance procedure con-
tained in the collective-bargaining agreement, with-
out prior notice to, or bargaining with, the Union,
the Company has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 8(d) of the Act.
5. By failing and refusing, since on or about 7
December 1982, to bargain with the Union, upon
the Union's request, as the exclusive collective-bar-
gaining representative of the employees in the
above-described appropriate unit with respect to
the effects on employees of its decision to termi-
nate its business operations, the Company has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) and Section 8(d) of the
Act.
6. By withdrawing its recognition, on or about
17 December 1982, of the Union as the exclusive
collective-bargaining representative of the employ-
ees in the above-described appropriate unit, the
Company has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 8(d) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
With respect to the Respondent's unlawful fail-
ure to bargain with the Union about the effects of
its decision to close its Circlevile, Ohio business
operations, the terminated employees have been
denied an opportunity to bargain through their col-
lective-bargaining representative at a time when
the Respondent might still have been in need of
their services and a measure of balanced bargaining
922
SCIOTO HAULERS
power existed. Meaningful bargaining cannot be as-
sured until some measure of economic strength is
restored to the Union. A bargaining order alone,
therefore, cannot serve as an adequate remedy for
the unfair labor pactices committed.
Accordingly, we deem it necessary, in order to
effectuate the purposes of the Act, to require the
Respondent to bargain with the Union concerning
the effects of the shutdown on its employees, and
shall accompany our order with a limited backpay
requirement designed both to make the employees
whole for losses suffered as a result of the viola-
tions and to recreate in some practicable manner a
situation in which the parties' bargaining position is
not entirely devoid of economic consequences for
the Respondent. We shall do so in this case by re-
quiring that the Respondent pay backpay to its em-
ployees in a manner similar to that required in
Transmarine Navigation Corp., 170 NLRB 389
(1968). The Respondent shall pay employees back-
pay at the rate of their normal wages when last in
the Respondent's employ 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 subjects pertaining to the ef-
fects of the plant shutdown on its employees; (2) a
bona fide impasse in bargaining; (3) the failure of
the Union to request bargaining within 5 days of
the date of this decision, or to commence negotia-
tions within the 5 days of the Respondent's notice
of its desire to bargain with the Union; (4) the sub-
sequent 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 they would
have earned as wages from 13 December 1982, the
date on which the Respondent terminated its oper-
ations, to the time they secured equivalent employ-
ment elsewhere, or the date on which the Re-
spondent shall have offered to bargain, whichever
occurs sooner; provided, however, that in no event
shall this sum be less than the amount these em-
ployees would have earned for a 2-week period at
the rate of their normal wages when last in the Re-
spondent's employ.
With respect to the 8(a)(3) and (1) discharge of
employee Rodney D. Crago, the Respondent shall
make the estate of Crago whole for any loss of
earnings he may have suffered as a result of his
layoff between 8 November 1982 and 10 December
1982, plus interest, with backpay to be computed in
accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondent, Scioto Haulers, Inc., Circleville,
Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the
Union as the exclusive representative of the em-
ployees in the following appropriate bargaining
unit:
All truck drivers, helpers and mechanics em-
ployed at [Respondent's] Circleville, Ohio fa-
cility, but excluding all guards and supervisors
as defined in the National Labor Relations
Act.
(b) Refusing to bargain in good faith about the
effects on the employees in the above-described ap-
propriate unit of the decision to terminate its busi-
ness operations.
(c) Bypassing the Union and dealing directly
with its employees concerning terms and condi-
tions of employment without prior notice to, or
bargaining with, the Union as the exclusive repre-
sentative of the employees in the above-described
appropriate unit.
(d) Refusing to honor and abide by the collec-
tive-bargaining agreement with the Union, effective
by its terms from on or about 4 May 1981 until 1
May 1983, and thereafter from year to year, includ-
ing the grievance procedure provided therein.
(e) Discharging or otherwise discriminating
against any employee for supporting United Paper-
workers International Union, Local No. 1152,
AFL-CIO-CLC, or any other union.
(f) Threatening employees with loss of employ-
ment unless they agree to forgo wage increases
provided for in the collective-bargaining agree-
ment.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
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) On request, bargain with the Union as the ex-
clusive representative of the employees in the ap-
propriate unit described in paragraph l(a) above
concerning terms and conditions of employment
and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) On request, bargain with the Union as the ex-
clusive representative of the employees in the unit
described in paragraph l(a) above regarding the ef-
fects of closing its Circleville, Ohio business oper-
ations on its employees and, if an understanding is
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached, embody such understanding in a signed
agreement.
(c) Honor and abide by the collective-bargaining
agreement with the Union, effective by its terms
from on or about 4 May 1981 until I May 1983,
and thereafter from year to year, including the
grievance procedure provided therein.
(d) Pay the employees laid off on 13 December
1983 their normal wages for the period set forth in
the remedy section of this decision.
(e) Make the estate of Rodney D. Crago whole
for any loss of earnings and other benefits he may
have suffered as a result of the discrimination prac-
ticed against him, in the manner set forth in the
remedy section of this decision.
(f) Remove from its files any reference to the un-
lawful discharge of Rodney D. Crago on 8 No-
vember 1982, and notify his estate in writing that
this has been done and that the discharge will not
be used against his heirs in any way.
(g) 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.
(h) Post at its facility in Circleville, Ohio, and
forthwith mail to all affected employees, copies of
the attached notice marked "Appendix." 2 Copies
of the notice, on forms provided by the Regional
Director for Region 9, 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. A copy of said
notice, signed in the same manner, shall be immedi-
ately mailed to the last known address of each
person formerly employed at Scioto Haulers, Inc.,
as described in subparagraphs 2(d) and (e) of this
Order.
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
2 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
il 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 refuse to recognize and bargain
with United Paperworkers International Union,
Local Union No. 1152, AFL-CIO-CLC, as the ex-
clusive representative of the employees in the fol-
lowing appropriate bargaining unit:
All truck drivers, helpers and mechanics em-
ployed at the Employer's Circleville, Ohio fa-
cility, but excluding all guards and supervisors
as defined in the Act.
WE WILL NOT refuse to bargain in good faith
about the effects on the employees in the appropri-
ate unit of the decision to close the facility.
WE WILL NOT bypass the Union and deal direct-
ly with our employees concerning terms and condi-
tions of employment, without prior notice to, or
bargaining with, the Union as the exclusive repre-
sentative of the employees in the appropriate unit.
WE WILL NOT refuse to honor and abide by the
collective-bargaining agreement including the
grievance procedure provided therein.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting United Pa-
perworkers International Union, Local Union No.
1152, AFL-CIO-CLC, or any other union.
WE WILL NOT threaten employees with loss of
employment unless they agree to forgo wage in-
creases provided for in the collective-bargaining
agreement.
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, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit.
WE WILL, on request, bargain with the Union re-
garding the effects of closing our Circlevile, Ohio
operations, and put in writing and sign any agree-
ment reached.
WE WILL honor and abide by the collective-bar-
gaining agreement, including the grievance proce-
dure provided therein.
WE WILL pay the employees who were em-
ployed at the Circleville operations their normal
wages for a period required by this Decision and
Order.
WE WILL make whole the estate of Rodney D.
Crago for any loss of earnings suffered as a result
924
SCIOTO HAULERS 925
of his layoff between 8 November 1982 and 10 De- to his discharge and that the discharge will not be
cember 1982, plus interest. used against his heirs in any way.
WE WILL notify the estate of Rodney D. Crago
that we have removed from our files any reference SCIOTO HAULERS, INC.