Wintz Freightways

National Labor Relations Board - Board Decisions

Feb 6, 1997

322 N.L.R.B. 186 (N.L.R.B. 1997)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Wintz Freightways, Inc. and District Lodge 34,
Local Lodge 804, of the International Associa­
tion of Machinists and Aerospace Workers,
AFL–CIO. Case 9–CA–33761
February 6, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND HIGGINS
Upon a charge and amended charge filed by the
Union on March 25 and September 30, 1996, the Gen­
eral Counsel of the National Labor Relations Board is-
sued a complaint on October 3, 1996, against Wintz
Freightways, Inc., the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act. Although properly served copies of the
charge, amended charge, and complaint, the Respond­
ent failed to file an answer.
On January 13, 1997, the General Counsel filed a
Motion for Summary Judgment with the Board. On
January 14, 1997, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re­
spondent filed no response. The allegations in the mo­
tion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un­
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al­
legations in the Motion for Summary Judgment dis­
close that the Region, by letters dated December 9 and
12, 1996, notified the Respondent that unless an an­
swer were received by December 19, 1996, 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 Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the business of transporting
freight from its Cincinnati, Ohio facility. During the
12-month period preceding issuance of the complaint,
the Respondent, in conducting its operations, derived
gross revenues in excess of $50,000 for the transpor­
tation of freight from points within the State of Ohio
directly to points outside the State of Ohio. We find
that the Respondent is an employer engaged in com­
merce within the meaning of Section 2(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.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con­
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All mechanics employed by the Respondent at its
Cincinnati, Ohio facility, excluding all profes­
sional employees, office clerical employees and
all guards and supervisors as defined in the Act.
Since about 1990 and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit, and since then
the Union has been recognized as such representative
by the Respondent. This recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which is effective from May 6,
1995, through May 6, 1999. At all times since 1990
and at all material times, based on Section 9(a) of the
Act, the Union has been the exclusive collective-bar-
gaining representative of the unit.
Since about September 25, 1995, the Respondent
has been failing to continue in effect all the terms and
conditions of the 1995–1999 agreement by failing to
make payments to the Health and Welfare Fund and to
pay the medical expenses of the unit employees, and
by failing to make payments to the pension fund. Since
about February 5, 1996, the Respondent has also been
failing to process employee grievances arising from the
failure to pay into the Health and Welfare Fund. In ad­
dition, since about February 15, 1996, the Respondent
has failed to remit to the Union dues deducted from
employees’ pay pursuant to the contractual dues-check-
off clause. Finally, since about May 3, 1996, the Re­
spondent has failed to pay employees’ wages and ac­
crued vacation pay. These terms and conditions of em­
ployment are mandatory subjects for the purpose of
collective bargaining. The Respondent engaged in this
conduct without the Union’s consent.
322 NLRB No. 186
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
By the acts and conduct described above, the Re­
spondent has been failing and refusing to bargain col­
lectively and in good faith with the exclusive collec­
tive-bargaining representative of its employees within
the meaning of Section 8(d) of the Act, and has there-
by engaged in unfair labor practices affecting com­
merce within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act.
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 de-
signed to effectuate the policies of the Act. Specifi­
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing, since about Septem­
ber 25, 1995, to continue in effect all the terms and
conditions of the 1995–1999 collective-bargaining
agreement by failing to make contractually required
contributions to the Health and Welfare Fund and the
pension fund and to pay the medical expenses of the
unit employees, we shall order the Respondent to make
whole its unit employees by making all such delin­
quent contributions, including any additional amounts
due the funds in accordance with Merryweather Opti­
cal Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addi­
tion, the Respondent shall reimburse unit employees
for any expenses ensuing from its failure to make the
required contributions and/or expense payments, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).1
In addition, having found that the Respondent has
been failing, since about February 5, 1996, to process
employee grievances arising from the failure to pay
into the Health and Welfare Fund, we shall order the
Respondent to process grievances as required by the
terms of the collective-bargaining agreement.
Furthermore, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing, since about
February 15, 1996, to remit to the Union dues de­
ducted from employees’ pay pursuant to the contrac­
tual dues-checkoff clause, we shall order the Respond­
ent to remit such withheld dues as required by the
1 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Respondent’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re­
imbursement will constitute a setoff to the amount that the Respond­
ent otherwise owes the fund.
agreement, with interest as prescribed in New Horizons
for the Retarded, supra.
Finally, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to pay wages and ac­
crued vacation pay to the unit employees since about
May 3, 1996, we shall order the Respondent to make
the unit employees whole for any loss of earnings at­
tributable to its unlawful conduct. Backpay shall be
computed in accordance with Ogle Protection Service,
supra, with interest as prescribed in New Horizons for
the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Wintz Freightways, Inc., Cincinnati, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to continue in effect all the terms and
conditions of the collective-bargaining agreement with
District Lodge 34, Local Lodge 804, of the Inter-
national Association of Machinist and Aerospace
Workers, AFL–CIO, effective from May 6, 1995,
through May 6, 1999, by failing to make payments to
the Health and Welfare Fund or pension fund or failing
to pay the medical expenses for the following unit em­
ployees:
All mechanics employed by the Respondent at its
Cincinnati, Ohio facility, excluding all profes­
sional employees, office clerical employees and
all guards and supervisors as defined in the Act.
(b) Failing to process employee grievances arising
from the failure to pay into the Health and Welfare
Fund.
(c) Failing to remit to the Union dues deducted from
unit employees’ pay pursuant to the contractual dues-
checkoff clause.
(d) Failing to pay employees’ wages and accrued va­
cation pay.
(e) 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) Comply with the terms and conditions of the
1995–1999 collective-bargaining agreement by making
all contractually required contributions to the Health
and Welfare Fund and the pension fund and paying the
medical expenses of the unit employees, and make the
unit employees whole for any loss of benefits or ex­
penses ensuing from its failure to do so since Septem­
ber 25, 1996, in the manner set forth in the remedy
section of this decision.
(b) Process grievances as required by the collective-
bargaining agreement.
(c) Remit to the Union any withheld dues that have
not been remitted since about February 15, 1996, plus
WINTZ FREIGHTWAYS 3
interest computed in the manner set forth in the rem­
edy section of this decision.
(d) Make the unit employees whole, with interest,
for any loss of earnings attributable to its failure to pay
unit employees wages and accrued vacation pay since
about May 3, 1996, in the manner set forth in the rem­
edy section of this decision.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay­
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its facility in Cincinnati, Ohio, copies of the at­
tached notice marked ‘‘Appendix.’’2 Copies of the no­
tice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no­
tices are not altered, defaced or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since March 25, 1996.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. February 6, 1997
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
������������������
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
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

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT fail to continue in effect all the terms
and conditions of the collective-bargaining agreement
with District Lodge 34, Local Lodge 804, of the Inter-
national Association of Machinist and Aerospace
Workers, AFL–CIO, effective from May 6, 1995,
through May 6, 1999, by failing to make payments to
the Health and Welfare Fund or pension fund or failing
to pay the medical expenses for the following unit em­
ployees:
All mechanics employed by us at our Cincinnati,
Ohio facility, excluding all professional employ­
ees, office clerical employees and all guards and
supervisors as defined in the Act.
WE WILL NOT fail to process employee grievances
arising from the failure to pay into the Health and
Welfare Fund.
WE WILL NOT fail to remit to the Union dues de­
ducted from unit employees’ pay pursuant to the con­
tractual dues-checkoff clause.
WE WILL NOT fail to pay employees’ wages and ac­
crued vacation pay.
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 comply with the terms and conditions of
the 1995–1999 collective-bargaining agreement by
making all contractually required contributions to the
Health and Welfare Fund and the pension fund and
paying the medical expenses for the unit employees,
and WE WILL make the unit employees whole for any
loss of benefits or expenses ensuing from our failure
to do so since September 25, 1996, in the manner set
forth in a decision of the National Labor Relations
Board.
WE WILL process grievances as required by the col­
lective-bargaining agreement.
WE WILL remit to the Union any withheld dues that
have not been remitted since about February 15, 1996,
plus interest.
WE WILL make the unit employees whole, with in­
terest, for any loss of earnings attributable to our fail­
ure to pay unit employees wages and accrued vacation
pay since about May 3, 1996, in the manner set forth
in a decision of the National Labor Relations Board.
WINTZ FREIGHTWAYS, INC.