Tucson Yellow Cab, Inc., a debtor in possession

National Labor Relations Board - Board Decisions

Nov 23, 1982

265 N.L.R.B. 452 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tucson Yellow Cab, Inc., a debtor in possession and
Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 310, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 28-
CA-6857
November 23, 1982
DECISION
BY MEMBERS JENKINS, ZIMMERMAN AND
HUNTER
Upon a charge filed on March 19, 1982, by
Teamsters, Chauffeurs, Warehousemen and Help-
ers, Local Union No. 310, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, and
duly served on Tucson Yellow Cab, Inc., a debtor
in possession, herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 28, issued a
complaint on April 28, 1982, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge
and the complaint and notice of hearing before an
administrative law judge were duly served on the
parties to this proceeding.
Respondent failed to file an answer to the com-
plaint or request an extension of time for filing an
answer.
On June 14, 1982, counsel for the General Coun-
sel filed directly with the Board a motion to trans-
fer and continue the matter before the Board and a
Motion for Summary Judgment, with exhibits at-
tached. Subsequently, on June 25, 1982, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment
should not be granted. Respondent did not thereaf-
ter file a response to the Notice To Show Cause,
and thus the allegations of the Motion for Sum-
mary 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:
265 NLRB No. 62
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. 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 the answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted as true and shall be so
found by the Board, unless good cause to be
contrary is shown.
The complaint and notice of hearing issued on
April 28, 1982, and duly served on Respondent and
the Union, specifically states that unless an answer
to the complaint is filed by Respondent within 10
days of service thereof "all of the allegations in the
complaint shall be deemed to be admitted to be
true and shall be so found by the Board." Further,
according to the uncontroverted allegations of the
General Counsel's memorandum in support of the
Motion for Summary Judgment, by letter dated
May 26, 1982, and attached to the Motion for Sum-
mary Judgment, counsel for the General Counsel
advised Respondent that an answer was required
and that if Respondent failed to file an answer, a
Motion for Summary Judgment would be filed
with the Board. Respondent did not file an answer,
but advised counsel for the General Counsel by
letter to "take any action you deem proper under
the circumstances."
Good cause for failure to answer the complaint
has not been shown. Under the rule set forth
above, the allegations of the complaint are deemed
admitted and are found to be true. Accordingly,
we grant the Motion for Summary Judgment, to
the extent set forth below.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is the debtor in possession of Tucson
Yellow Cab, Inc., an Arizona corporation engaged
in the business of operating a fleet of taxicabs.
During the past calendar year, which period is rep-
resentative of its annual operations generally, Re-
spondent, in the course and conduct of its business
operations, derived gross revenues in excess of
$500,000. During the same period Respondent pur-
chased and received at its Tucson, Arizona, facility
products, goods, and materials valued in excess of
452
TUCSON YELLOW CAB, INC.
S50,000 from other enterprises located within the
State of Arizona, each of which other enterprises
had received the said products, goods, and materi-
als directly from points located outside the State of
Arizona.
We find, on the basis of the foregoing, that Re-
spondent 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
Teamsters, Chauffeurs, Warehousemen and Help-
ers, Local Union No. 310, 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.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent consti-
tute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All regular and extra drivers, dispatchers, tele-
phone operators, and mechanics; excluding
office clerical employees and guards and su-
pervisors as defined in the Act.
At all times material, the Union has been the des-
ignated exclusive collective-bargaining representa-
tive of Respondent's employees in the above-de-
scribed unit, and has been recognized as such by
Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the
most recent of which is effective by its terms for
the period November 1, 1979, to November 1,
1982.
Since on or about November 1, 1981, and con-
tinuing to date, Respondent has failed and refused
to adhere to and abide by the terms of the above-
described collective-bargaining agreement by uni-
laterally failing and refusing to make its required
contributions on behalf of its unit employees to the
Western Conference of Teamsters Pension Trust
Fund as provided for in the collective-bargaining
agreement.
Since on or about March 18, 1982, and continu-
ing to date, Respondent has failed and refused to
meet and confer or otherwise to negotiate with the
Union over the effects upon the employees in the
bargaining unit of Respondent's decision to cease
its operations and sell its assets.
We find that by the aforesaid conduct Respond-
ent has failed and refused, and is failing and refus-
ing, to bargain collectively and in good faith with
the Union as the exclusive representative of the
employees in the appropriate unit. By such con-
duct, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(aX5) and (1) of the Act.
IV. THE BANKRUPTCY PROCEEDING
Respondent is a party to a bankruptcy proceed-
ing currently pending in the United States Bank-
ruptcy Court for the District of Arizona. On June
23, 1982, Judge William A. Scanland of that Court
issued an order granting a permanent injunction
which ordered that the Board, its agents, attorneys,
employees, and successors be "restrained and in-
joined [sic] until further order of this Court from
proceeding with or continuing in any manner the
. . . administrative proceeding [herein] other than
to determine whether or not an unfair labor prac-
tice has been committed by the debtor [Respond-
ent]." X
In compliance with this injunction, therefore, we
grant the General Counsel's Motion for Summary
Judgment only to the extent that we find Respond-
ent has committed the unfair labor practices dis-
cussed above. However, for the convenience and
information of all parties, we note the terms of the
remedy normally granted for violations of the type
found herein. In addition to an order requiring Re-
spondent to cease and desist from the violations
found, we would order Respondent to make the
contractually required pension fund contributions
which have been unlawfully withheld, together
with any additional amounts as set forth in
Merryweather Optical Company, 240 NLRB 1213
(1979). Further, the normal remedy for the effects
bargaining violation would include an order to bar-
gain over those effects as well as a limited backpay
requirement intended to restore the economic
strength of the Union, as specified in Transmarine
Navigation Corporation and its Subsidiary, Interna-
tional Terminals, Inc., 170 NLRB 389 (1982).2 In
view of this injunction, and the limited nature of
the present Decision, we shall retain jurisdiction
over this proceeding pending the outcome of the
bankruptcy proceedings described above.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
I In the Matter of Tucson Yellow Cab Company, Inc.. debtor, No. 81-
00103. (B.C. Ariz. 1982.)
The Board, a defendant in the bankruptcy proceeding, ha appealed
Judge Scanland's order to the United States Court of Appeals for the
Ninth Circuit Bankruptcy Panel.
Member Hunter finds it unnecessary to decide at this time whether
he would join in ordering a Transmarine remedy in this case.
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Tucson Yellow Cab, Inc., a debtor in posses-
sion, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 310, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All regular and extra drivers, dispatchers, tele-
phone operators, and mechanics, excluding office
clerical employees and guards and supervisors as
defined in the Act 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 Union has
been the exclusive representative of the employees
in the above-described appropriate unit for the pur-
poses of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By failing and refusing, since on or about No-
vember 1, 1981, and continuing to date, to make its
contractually required contributions on behalf of its
unit employees to the Western Conference of
Teamsters Pension Trust Fund, Respondent has
violated Section 8(a)(S) and (1) of the Act.
6. By failing and refusing, since on or about
March 18, 1982, and continuing to date, to meet
and confer or otherwise to negotiate with the
Union over the effects upon its unit employees of
its decision to cease operations and sell its assets,
Respondent has violated Section 8(aXS) and (1) of
the Act.
454