Wheels Transportion Services, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1085 (N.L.R.B. 2003)

WHEELS TRANSPORTATION SERVICES 1085
Wheels Transportation Services, Inc.; Gleb Glinka,
Trustee in Bankruptcy and International Broth-
erhood of Teamsters, Local 597, AFL–CIO. Case
1–CA–40832
November 28, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND
WALSH
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
an answer to the complaint.2 Upon a charge and an
amended charge filed by the Union on April 10, and June
18, 2003, respectively,3 the General Counsel issued the
complaint on June 24, 2003, alleging that the Respondent
has violated Section 8(a)(1) and (5) of the Act. The Re-
spondent failed to file an answer.
On October 24, 2003, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On October
29, 2003, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
no response. The allegations in the motion are therefore
undisputed.4

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com-
plaint. Accordingly, we construe the General Counsel’s motion as a
motion for default judgment.
2 The complaint refers to Wheels Transportation Services, Inc. as
“the Respondent,” and alleges that Gleb Glinka has been designated as
the bankruptcy trustee of the Respondent Company with full authority
to continue its operations. However, the caption in the complaint and
motion for default judgment names trustee Glinka as the Respondent.
Further, the motion for default judgment refers to trustee Glinka as “the
Respondent” in describing service of the complaint. See discussion,
infra, at fn. 4. The Board has historically considered a bankruptcy
trustee having authority to continue the business to be an alter ego of
the company that existed before the bankruptcy petition was filed. See,
e.g., Waterbury Hotel Management, 333 NLRB 482, 487 fn. 5, 554
(2001), enfd. 314 F.3d 645 (D.C. Cir. 2003); Airport Limousine Service
231 NLRB 932 (1977); and Marion Simcox, Trustee, 178 NLRB 516
(1969). See also NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528
(1984) (debtor-in-possession is the same “entity” which existed before
the bankruptcy petition). Thus, it is apparent from the circumstances
that the General Counsel is alleging that both the Company and the
bankruptcy trustee are “the Respondent.” We shall therefore refer to
them both as the Respondent herein, and have modified the caption
accordingly.
3 The amended charge was essentially identical to the original
charge, except that it also named bankruptcy trustee Glinka. The origi-
nal charge, which named only Wheels Transportation Services, Inc. and
was served on the Company by certified mail, was returned marked
“Refused.” However, a respondent’s failure or refusal to claim certi-
fied mail or to provide for receiving appropriate service cannot serve to
defeat the purposes of the Act. See I.C.E. Electric, Inc., 339 NLRB
247 fn. 2 (2003), and cases cited therein.
4 The amended charge, complaint, and Notice to Show Cause were
not separately served on Wheels Transportation Services (which, as
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was filed by July 8, 2003, all the
allegations in the complaint would be considered admit-
ted. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated August 6, 2003, notified Respondent’s counsel that
unless an answer was received by August 20, 2003, a
motion for default judgment would be filed.5
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s motion for default judgment.6
On the entire record, the Board makes the following
Findings of Fact
I. JURISDICTION
At all material times, Wheels Transportation Services,
Inc., a nonprofit corporation with an office and place of
business in Berlin, Vermont, has been engaged in provid-
ing public transportation services in Washington County,
Vermont.
Annually, in conducting its business operations de-
scribed above, Wheels Transportation Services derives
gross revenues in excess of $250,000, and purchases and
receives at its Berlin facility goods valued in excess of
$5000 directly from points outside the State of Vermont.

noted above, had previously refused service of the original charge).
However, the amended charge, complaint, and Notice to Show Cause
were properly served on bankruptcy trustee Glinka, as well as the
Company’s counsel of record, Richard Scholes. As noted above, the
Board has treated a bankruptcy trustee with authority to operate the
business as the alter ego of the debtor employer. Accordingly, we find
that service on trustee Glinka and the Company’s counsel of record was
sufficient. See Somerville Construction Co., 338 NLRB 1178 fn. 2
(2003) (where two companies are alter egos, it is well established that
service on one company is sufficient to constitute service on the other).
5 There is no indication that a similar reminder letter was sent to the
Company or Trustee Glinka. However, we find that this does not war-
rant denial of the motion for default judgment. See, e.g., T-3 Group,
Ltd., 339 NLRB No. 94, slip op. at 1 fn. 2 (2003) (not reported in Board
volume); Superior Industries, 289 NLRB 834, 835 fn. 13 (1988).
6 It is well established that the institution of bankruptcy proceedings
does not deprive the Board of jurisdiction or authority to entertain and
process an unfair labor practice case to its final disposition. See, e.g.,
Cardinal Services, 295 NLRB 933 fn. 2 (1989), and cases cited there.
Board proceedings fall within the exception to the automatic stay provi-
sions for proceedings by a governmental unit to enforce its police or
regulatory powers. See id.; NLRB v. 15th Avenue Iron Works, Inc., 964
F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns Aircraft, Inc. v.
NLRB, 703 F.2d 23 (1st Cir. 1983).
340 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
Since about April 23, 2003, Gleb Glinka has been duly
designated by the United States Bankruptcy Court, Dis-
trict of Vermont, as the trustee in bankruptcy of Wheels
Transportation Services, with full authority to continue
the Company’s operations and to exercise all powers
necessary to the administration of the business.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that International Brotherhood of
Teamsters, Local 597, AFL–CIO (the Union) is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Donna Bates held the position of
the Respondent’s executive director, and has been a su-
pervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees who
drive the Respondent’s vans and buses, mechanical
work now assigned to unit employees, pre/post trip
cleaning of buses/vans, and incidental cleaning relating
to each employee’s work area, but excluding primary
maintenance and cleaning duties relating to the build-
ings and grounds currently performed under separate
contract, all other employees, guards and supervisors as
defined in the National Labor Relations Act, as
amended.
Since at least 1995, and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the unit, and since that date the Union
has been recognized as such representative by the Re-
spondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which is effective from January 2, 2002, to December
31, 2003.
At all times since at least 1995, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
On about April 7, 2003, the Respondent closed its Ber-
lin facility, ceased its operations, and laid off all its unit
employees.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to the effects of this conduct.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of the unit employees, and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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. Specifically, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of the Respondent’s
decision to close its Berlin, Vermont facility and lay off
all of the unit employees, we shall order the Respondent
to bargain with the Union, on request, about the effects
of that decision. Because of the Respondent’s unlawful
conduct, however, the unit employees have been denied
an opportunity to bargain through their collective-
bargaining representative at a time when the Respondent
might still have been in need of their services and a
measure of balanced bargaining power existed. Mean-
ingful bargaining cannot be assured until some measure
of economic strength is restored to the Union. A bar-
gaining order alone, therefore, cannot serve as an ade-
quate remedy for the unfair labor practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Respon-
dent to pay backpay to the unit employees in a manner
similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified in Melody
Toyota, 325 NLRB 846 (1998).7
Thus, the Respondent shall pay the laid-off unit em-
ployees backpay 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 occurrence of the

7 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
WHEELS TRANSPORTATION SERVICES 1087
earliest of the following conditions: (1) the date the Re-
spondent bargains to agreement with the Union on those
subjects pertaining to the effects of the closing of its fa-
cility on its unit employees; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5 business
days after receipt of the Respondent’s notice of its desire
to bargain with the Union; or (4) the Union’s subsequent
failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date they were laid off to the time they secured
equivalent employment elsewhere, or the date on which
the Respondent shall have offered to bargain in good
faith, whichever occurs sooner. However, in no event
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent’s employ. Backpay
shall be based on earnings which the unit employees
would normally have received during the applicable pe-
riod, less any net interim earnings, and shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Finally, because the Respondent’s Berlin, Vermont fa-
cility has closed, we shall order the Respondent to mail a
copy of the attached notice to the Union and to the last
known addresses of any unit employees who were em-
ployed by the Respondent on or after April 7, 2003, in
order to inform them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Wheels Transportation Services, Inc.; Gleb
Glinka, Trustee in Bankruptcy, Berlin, Vermont, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Brotherhood of Teamsters,
Local 597, AFL–CIO, as the exclusive collective-
bargaining representative of employees in the unit set
forth below, concerning the effects on the unit employees
of its decision to close its Berlin, Vermont facility and
lay off all the unit employees. The bargaining unit is:
All full-time and regular part-time employees who
drive the Respondent’s vans and buses, mechanical
work now assigned to unit employees, pre/post trip
cleaning of buses/vans, and incidental cleaning relating
to each employee’s work area, but excluding primary
maintenance and cleaning duties relating to the build-
ings and grounds currently performed under separate
contract, all other employees, guards and supervisors as
defined in the National Labor Relations Act, as
amended.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union concerning the
effects on the unit employees of the Respondent’s deci-
sion to close its Berlin, Vermont facility and lay off all
the unit employees, and reduce to writing and sign any
agreement reached as a result of such bargaining.
(b) Pay to the unit employees their normal wages for
the period set forth in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”8 to the Union
and any unit employees who were employed by the Re-
spondent on or after April 7, 2003.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to bargain collectively
and in good faith with International Brotherhood of
Teamsters, Local 597, AFL–CIO, as the exclusive collec-
tive-bargaining representative of our employees in the
following unit, concerning the effects on the unit em-
ployees of our decision to close our Berlin, Vermont fa-
cility and lay off all the unit employees. The bargaining
unit is:
All full-time and regular part-time employees who
drive our vans and buses, mechanical work now as-
signed to unit employees, pre/post trip cleaning of
buses/vans, and incidental cleaning relating to each
employee’s work area, but excluding primary mainte-
nance and cleaning duties relating to the buildings and
grounds currently performed under separate contract,
all other employees, guards and supervisors, as defined
in the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union con-
cerning the effects on unit employees of our decision to
close our Berlin, Vermont facility and lay off all the unit
employees, and reduce to writing and sign any agreement
reached as a result of such bargaining.
WE WILL pay unit employees limited backpay in con-
nection with our failure to bargain over the effects of our
decision to close the Berlin, Vermont facility and lay off
all the unit employees, as required by the Decision and
Order of the National Labor Relations Board.

WHEELS TRANSPORTATION SERVICES,
INC.; GLEB GLINKA, TRUSTEE IN
BANKRUPTCY