Shulman Transport Enterprises, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1979

244 N.L.R.B. 298 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shulman Transport Enterprises, Inc., Shulman Air-
freight, Inc., RPR, Drake Motor Lines, Inc., Shulco
Cosolidators, Inc., Drake Marine Division, et al.
and Local 851, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and Local 295, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 22-CA 8605 and 22
CA 8606
August 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed in Case 22-CA-8605 on July
25, 1978, and amended on August 21, 1978, by Local
851, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called Local 851, and a charge filed in Case 22-CA-
8606 on July 25, 1978, and amended on August 21,
1978, and October 6, 1978, by Local 295, Interna-
tional Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America, herein called Lo-
cal 295, and duly served on Shulman Transport
Enterprises, Inc., Shulman Airfreight, Inc., Shulman
Airfreight, Inc., RPR. Drake Motor Lines, Inc.,
Shulco Consolidators, Inc., Drake Marine Division,
et a/., herein called Respondent, and on Local 821,
Manufacturing, Retail Services, Clerical and Miscel-
laneous Employees, herein called Local 821, the Gen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 22, issued an
order consolidating cases, complaint, and notice of
hearing on October 27, 1978, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1), (2), and (3) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended.' Copies of the charges, complaint,
and notice of hearing before an administrative law
judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practice charges,
the consolidating complaint alleges in substance that
Respondent offered employment to its employees as
I On August 2, 1978. Shulman Transport Enterprises, Inc.. and Shulman
Airfreight. Inc., filed petitions for an arrangement under Chapter XI of the
Backruptcy Act. I I U.S.C. 701, et seq. (1976). Pursuant to Bankruptcy rule
11-44. 11 U.S.C. appendix. Chap. II rules (1976), an automatic stay of
proceedings against the debtor-Respondent went into effect. On October 23.
1978. the bankruptcy judge for the United States District Court for the
Southern District of New York entered an order vacating the automatic stay
insofar as it applied to proceedings before the Board.
independent contractors to induce them to abandon
membership in or refuse to give assistance or support
to Local 295; offered its employees employment to
induce them to abandon membership in or give assist-
ance and support to Locals 295 and 851; recognized
Local 821 as the exclusive representative of Respon-
dent's clerical employees at a time when Local 821
did not represent an uncoerced majority of those em-
ployees; and discharged certain of its employees be-
cause of their membership in Locals 295 and 851.
On May 30, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment with exhibits attached. Subsequently, on
June 7, 1979, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
has filed no response to the Notice To Show Cause
and, accordingly, 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 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:
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 allegations 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 admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint served on Respondent and Local
821 stated that, unless an answer was filed within 10
days from the service thereof, "all of the allegations
contained in the Complaint shall be deemed to be
true and may be so found by the Board."
Since Respondent and Local 821 have failed to file
an answer to the complaint, the allegations of the
complaint are deemed to be admitted and are found
244 NLRB No. 50
298
SHULMAN TRANSPORT ENTERPRISES
to be true. Accordingly, we grant the General Coun-
sel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. 'TE BUSINESS OF RESPONDENT
Shulman Transport Enterprises, Inc., and Drake
Motor Lines, Inc., are, and have been at all times
material herein, Delaware corporations. Drake Motor
Lines, Inc. and RPR are wholly owned subsidiaries of
Shulman Transport Enterprises, Inc., Shulman Air-
freight, Inc., Drake Marine Division, Shulco Consoli-
dators, Inc., and various other foreign subsidiaries are
all wholly owned subsidiaries of Drake Motor Lines.
Inc. These corporations constitute, and at all times
material herein have constituted, a single integrated
business enterprise which has common officers, direc-
tors, and stockholders and which formulates and ad-
ministers common labor policies.
Respondent is engaged in the business of the inter-
state transportation of goods, and has its principal
offices located at 20 Olney Avenue, Cherry Hill, New
Jersey. It operates terminals located at the above ad-
ress, and at 50 Van Keuren Avenue, Jersey City, New
Jersey, herein called the Jersey City terminal; 145-58
167th Street, Jamaica, New York, herein called the
JFK terminal; and 315 West 36th Street, New York,
New York, herein called the 36th Street terminal.
During the 12 months preceding the issuance of the
complaint, Respondent, in the course and conduct of
its business operations, derived revenue in excess of
$50, 000 from services provided to employers in com-
merce for the interstate transportation of goods.
We find, on the basis of the foregoing, that Respon-
dent 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 ORGANIZATIONS INVOLVED
Local 295, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is, and has been at all times material herein.
a labor organization within the meaning of Section
2(5) of the Act.
Local 851, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is, and has been at all times material herein,
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRA(II(HES
A. The 8(a)(l) Vio/ations
On or about July 18, 1978, at its Jersey City termi-
nal. Respondent, by its supervisor. Al Nadolny. of-
fered employment to its employees if they refiused to
remain members of or give assistance and support to
Locals 295 and 851. On or about Jul 5 21. 1978. at its
Jersey City terminal, Respondent. by its regional op-
erations manager, Carl Gaboff. offered jobs as in-
dependent contractors to its drivers and warehouse-
men if they refused to remain members of or give
assistance and support to Local 295. On or about Au-
gust 3, 1978, at its Jersey City terminal, Respondent,
by its operations manager, David Levinson. offered
employment to its employees if they refused to re-
main members of or give assistance and support to
Locals 295 and 851.
Accordingly, we find that by the conduct described
above Respondent has interfered with, restrained,
and coerced, and is now interfering with, restraining.
and coercing, its employees in the exercise of the
rights guaranteed them by Section 7 of the Act, and
thereby has engaged in, and is now engaging in, un-
fair labor practices within the meaning of Section
8(a)(l) of the Act.
B. The 8(a)(2) Violations
On or about July 7, 1978, Respondent recognized,
and since that date has continued to recognize. Local
821 as the exclusive representative of its office clerical
employees at its Jersey City terminal, even though
Local 821 has at no time represented a majority of
those employees.
Accordingly. we find that by the conduct described
above Respondent has rendered and is rendering un-
lawful assistance and support to a labor organization.
and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(2)
and (I) of the Act.
C. The 8(a)(3) Violations
On or about July 21. 1978, Respondent discharged
the employees listed in Appendix A [omitted from
publication] at its Jersey City, JFK. and 36th Street
terminals.
Respondent discharged the employees listed in Ap-
pendix A, attached hereto, because of their member-
ship in Locals 295 and 851. Since the dates of the
discharges Respondent has failed and refused to rein-
state or to recall the employees to their former or
substantially equivalent positions of employment be-
cause of their membership in locals 295 and 851.
299
I)l:('ISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly we find that by the conduct described
above Respondent has discriminated, and is now dis-
criminating, against employees in regard to the hire,
tenure, and other terms and conditions of employ-
ment of its employees, thereby discouraging member-
ship in labor organizations. By this conduct Respon-
dent has engaged in, and is now engaging in, unfair
labor practices within the meaning of Section 8(a)(3)
and (I) of the Act.
IV. 'lIF EFFE('T OF TIHE UNFAIR I.ABOR PRA('TI(CES
UPON (COMMERC'E
The activities of Respondent, set forth in section
III, above, occurring in connection with the 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), (2), and (3) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent has interfered with,
restrained, and coerced its employees in the exercise
of their right to freely select their own bargaining rep-
resentative by according unlawful assistance and sup-
port to Local 821 in violation of Section 8(a)(2) and
(1) of the Act, we shall order it to withdraw and with-
hold all recognition from Local 821 until such time as
Local 821 shall have been certified by the Board as
the exclusive representative of the employees in ques-
tion.
Having found that Respondent discriminatorily
discharged the 128 employees identified in Appendix
A [omitted from publication] we shall order that Re-
spondent offer them immediate and full reinstatement
to their former positions or, if such positions no
longer exist, to substantially equivalent positions.
without prejudice to their seniority or other rights
and privileges previously enjoyed. We shall also order
that Respondent made them whole for any loss of
earnings they may have suffered by reason of the dis-
crimination against them, by payment to them of a
sum equal to what they would have earned from the
date of their discharges until they are fully reinstated
or receive valid offers of reinstatement, less any net
interim earnings. Backpay shall be computed in ac-
cordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in
Florida Sleel Corporation, 231 NLRB 651 (1977).2
Finally, we shall require Respondent to post copies
of the attached notice at its various places of business.
The Board, upon the basis of' the foregoing facts
and the entire record, makes the following:
CON(CI.U:SIONS () LAW'
I. Shulman Transport Enterprises, Inc., Shulman
Airfreight, Inc., RPR, Drake Motor Lines, Inc.,
Shulco Consolidators, Inc., Drake Marine Division,
et al., constitute a single employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Locals 851 and 295, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By offering employment to its employees if they
refused to remain members of or give assistance and
support to Locals 295 and 851, and by offering jobs as
independent contractors to its drivers and warehouse-
men if they refused to remain members of or give
assistance and support to Local 295, Respondent has
engaged in and is now engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
4. By recognizing Local 821, Manufacturing, Re-
tail Services, Clerical and Miscellaneous Employees,
as the collective-bargaining representative of its cleri-
cal employees in its Jersey City terminal at a time
when Local 821 did not represent an uncoerced ma-
jority of those employees. Respondent has engaged in
and is now engaging in unfair labor practices within
the meaning of Section 8(a)(2) and (1) of the Act.
5. By discharging the 128 employees identified in
Appendix A [omitted from publication] on or about
July 21, 1978, Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(3)
and (I) of the Act.
6. 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 Rela-
tions Board hereby orders that the Respondent, Shul-
man Transport Enterprises, Inc., Shulman Airfreight,
Inc., RPR, Drake Motor lines Inc., Shulco Consoli-
dators. Inc., Drake Marine Division, et al., Cherry
Hill, New Jersey, its officers, agents successors, and
assigns, shall:
2 See, generall. Isis Plumbing and Iearitg (ao. 138 NLRB 716 (1962).
300
SHU.MAN RANSPORT ENTERPRISES
1. Cease and desist from:
(a) Offering its employees employment to induce
them to refrain from remaining members of' or to
give any assistance or support to, Locals 295 and 851.
(b) Offering its drivers and warehousemen jobs as
independent contractors to induce them to refrain
from remaining members of: or to give any assistance
or support to. Local 295.
(c) Recognizing Local 821 as the exclusive repre-
sentative of its clerical employees for the purpose of
collective bargaining unless and until said labor or-
ganization has been duly certified by the National
Labor Relations Board as the exclusive bargaining
representative of such employees.
(d) Discharging employees, refusing to reinstate
them, or otherwise discriminating against them be-
cause of their membership in Locals 295 and 851.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Local 821 as the exclusive representative of its clerical
employees for the purposes of collective bargaining.
unless and until the said labor organization has been
duly certified by the National Labor Relations Board
as the exclusive representative of such employees.
(b) Offer the employees listed in Appendix A, at-
tached hereto, immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed; and make them whole for any loss of
earnings they may have suffered due to the discrimi-
nation practiced against them by paying each of them
a sum equal to what he or she would have earned, less
any net interim earnings, plus interest.
(c) Post at its offices and terminals at 20 Olney
Avenue, Cherry Hill, New Jersey; 50 Van Keuren
Avenue, Jersey City, New Jersey; 145-58 167th
Street, Jamaica, New York; and 315 West 36th
Street, New York, New York, copies of the attached
notice marked "Appendix B."' Copies of said notice.
on forms provided by the Regional Director for Re-
gion 22, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
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 hb Order of the
National La)r Relations Board" shall read "Pisted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ees are customarily posted. Reasonable steps shall he
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 22. in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX B
Nol-I¢E T F. MIl.o)l Yis
POSTEI) BY ORI)R ()01 11I
NAI()IONAI LABOR RI:.AIAIONS BOARD
An Agency of the United States Government
Wi WiI.1. NOI offer our employees employ-
ment to induce them to refrain from remaining
members of, or to give any assistance or support
to, Locals 295 and 851. International Brother-
hood of' Teamsters. Chauffeurs. Warehousemen
and Helpers of America.
Wti wV .i NOI offer our drivers and warehouse-
men jobs as independent contractors to induce
them to refrain from remaining members of, or
to give any assistance or support to. Local 295.
WY WIl. NOI recognize Local 821. Manufac-
turing. Retail Services. Clerical and Miscella-
neous Employees, as the exclusive bargaining
representative of our clerical employees for the
purpose of collective bargaining, unless and until
Local 821 has been duly certified by the National
Labor Relations Board as the exclusive repre-
sentative of such employees.
WtE WI.t. NOI discharge. refuse to reinstate, or
otherwise discriminate against employees be-
cause of their membership in Local 295 and 851.
WE NVIl.l. NOI in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WE Wlit.. withdraw and withhold all recogni-
tion from Local 821 as the exclusive representa-
tive of our clerical employees for the purposes of
collective bargaining unless and until Local 821
has been duly certified by the National Labor
Relations Board as the exclusive representative
of such employees.
WE WILI. offer the following employees imme-
diate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or any other rights or privileges previ-
ously enjoyed: and k-E vii.L. make them whole
for any loss of earnings they maN have suffered
as a result of our discrimination, less an, net in-
terim earnings, plus interest:
301
0I)2(ISIONS OF NATIONAL LABOR RELATIONS BOARD
PLATFORM
P. Piccione
V. Branca
H. Young
J. Hickey
J. Cruz
C. Quinton
J. Brigham
J. Neville
H. Dawson
M. Levy
W. Perry
M. Cote
J. Calderon
A. Rotunno
S. Butcher
J. Kanaska
J. Sainthill
R. James
A. Martyr
R. Ali
E. Zimmerman
J. Marone
V. Campo
H. Chrisco
A. Scardaci
E. Martin
A. Williams
J. Gallino
S. Zuckerman
M. DePinto
M. Hopkins
E. Heyward
I. Levy
L. Casella
EMPLOYEES
B. HIaynes
J. Wormtey
A. Maritata
A. Plotkin
J. Hudley
W. Neville
H. Bryant
S. Weitz
A. Ferrer
D. Vail
V. Boyd
G. Philips
E. Hopkins
P. Liquori
N. Gaffney
L. White
W. Shaw
W. Levenson
MECHANICS
T. Kim
N. Fornoratto
DRIVERS
B. Silver
M. Dalessio
H. Kuhn
G. Toner
G. Nieves
R. Smolt
J. Grogan
C. Mitchell
M. Kwartin
B. Guttman
S. Feinstein
A. Tobias
F. Neverman
F. Fino
D. Johnson
J. Garner
A. McConnell
R. Stokelin
G. Matthews
H. Evans
H. Taylor
H. Russ
E. Chandler
F. Haase
E. Bonlarron
L. Suggs
I)RIVERS
CLERICAL
Joyce Davison
Michael Melnick
Theodore Corbin
Rex Alexis
Marcella Haake
Marie Fusco
Theresa Corso
Barbara Barett
Blanche Hyatt
Preston Barnes
Joan Holt
Robert Lisco
Catherine Ozarski
Harvey Gilmore
Merlin Meyer
Martha Bradley
Barbara Grancio
Frederick Berman
H. bert
I). Sullivan
R. Quinn
M. Goldman
A. Wong
C('1. Flagg
Ch. Flagg
Q. Williamson
A. Williamson
E. Bravo
H. Cortes
A. Kacewitz
EMPI.OYEES
Edmund Williams
Salvatore D)eCarlo
Ella Minton
Victor Reid
Rita Mulewski
James Kane
Michael George
Anthony DeNello
Stephen Kitson
Rosemary Clark
Louise Garretson
Keith Neman
Raule Espinoza
Richard Cappiello
Margaret Sysak
Joan Zampetti
Betty Nelson
Hsin Chuen Hsu
StHUI.MAN TRANSPORI ENlIRPRISES, IN(., StHU.-
MAN AIRFRI(II, IN(., RPR. DRAKE MO()R
LINES. INC., SHItI.(O CONSI.IDAIORS, IN(.,
DRAKE MARINE DIVISION, El' AI.
302