Wyoming Asphalt Paving Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1981

256 N.L.R.B. 894 (N.L.R.B. 1981)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wyoming Asphalt Paving Co., Inc. and Local 7, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 7-CA-18082
June 24, 1981
DECISION AND ORDER
Upon a charge filed on August 1, 1980, by Local
7, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Wyo-
ming Asphalt Paving Co., Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 7, issued a complaint on August 29,
1980, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce 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.
With respect to the unfair labor practices, the
complaint alleges in substance that at all times ma-
terial herein and since on or about January 17,
1978, the Union has been the designated exclusive
collective-bargaining representative of Respond-
ent's employees in an appropriate unit, and that
since on or about January 17, 1978, the Union has
been recognized as such representative by Re-
spondent and such recognition has been embodied
in a collective-bargaining agreement effective by its
terms for the period June 1, 1977, to June 1, 1980.
The complaint further alleges that on or about
March 3, 1980, the Union, by letter, requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of its
employees in the appropriate unit with respect to
their rates of pay, wages, hours of employment,
other terms and conditions of employment, and a
new collective-bargaining agreement setting forth
such matters, and that since on or about March 3,
1980, Respondent has failed and refused to bargain
with the Union.
On March 16, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, asserting that Respondent has
failed to file an answer to the complaint. Subse-
quently, on March 19, 1981, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent has filed no response to the
Notice To Show Cause and, accordingly, the alle-
256 NLRB No. 127
gations of the Motion for Summary Judgment
stand uncontroverted.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides:
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 an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
According to the uncontroverted allegations of
the Motion for Summary Judgment, Respondent
failed to file an answer to the complaint. More-
over, as no answer had been filed, on January 20,
1981, the Regional Attorney wrote to Respondent
informing it that Regional Office records indicated
that Respondent had not filed an answer, and that,
if an appropriate answer were not filed by Febru-
ary 3, 1981, a Motion for Default Judgment would
be sought. A copy of the Regional Attorney's
letter was attached to the Motion for Summary
Judgment as Exhibit "E." Although Respondent
was thus additionally warned about the conse-
quences of failing to file an answer to the com-
plaint, Respondent did not file such an answer and
further failed to file a response to the Notice To
Show Cause. No good cause to the contrary
having been shown, in accordance with the rule set
forth above, the allegations of the complaint herein
are deemed to be admitted and found to be true.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has
maintained its office and place of business at 470
North 12th Street in the city of Plainwell, Michi-
WYOMING ASPHALT PAVING CO., INC. 895
gan, where it is engaged in the nonretail business of
asphalt paving. Respondent's Plainwell, Michigan,
facility is the only facility involved in this proceed-
ing. During the year ending December 31, 1979,
which period is representative of its operations
during all times material herein, Respondent in the
course and conduct of its business operations pur-
chased and caused to be transported and delivered
to its Plainwell place of business asphalt valued in
excess of $50,000, which asphalt was transported
and delivered to said place of business in Plainwell,
Michigan, and received from Marathon Oil Com-
pany located in the State of Michigan, which oil
company had received the said goods and materials
delivered to Respondent directly from points locat-
ed outside the State of Michigan.
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
Local 7, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. The Collective-Bargaining Representative
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All truck drivers employed by the employer at
its Plainwell, Michigan, facility; but excluding
all office clerical employees, guards and super-
visors as defined in the Act.
2. The bargaining history
At all times since January 17, 1978, the Union
has been the designated exclusive collective-bar-
gaining representative of Respondent's employees
in an appropriate unit and, by virtue of Section 9(a)
of the Act, has been and is now the exclusive rep-
resentative of all the employees in said unit for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
B. The Request to Bargain and Respondent's
Refusal
Since on or about March 3, 1980, and at all times
thereafter, the Union has requested Respondent to
bargain collectively for a new contract with it as
the exclusive collective-bargaining representative
of all the employees in the above-described unit.
Commencing on or about March 3, 1980, and con-
tinuing at all times thereafter to date, Respondent
has failed and refused to bargain with the Union as
the exclusive representative for the purposes of col-
lective bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
March 3, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement. We shall also order Respondent to post
appropriate notices.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Wyoming Asphalt Paving Co., Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 7, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All truckdrivers employed by Respondent at
its Plainwell, Michigan, facility, but excluding all
office clerical employees and guards and supervi-
sors as definied in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 17, 1978, the above-named labor
organization has been and now is the exclusive rep-
resentative of all employees in the aforesaid appro-
priate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about March 3, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
Wyoming Asphalt Paving Co., Inc., Plainwell,
Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local 7, Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All truck drivers employed by the Employer
at its Plainwell, Michigan, facility; but exclud-
ing all office clerical employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Plainwell, Michigan, location
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
i In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the u ords in the notice reading "Posled by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United Sates 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Local 7, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILl. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
WYOMING ASPHALT PAVING CO., INC. 897
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All truck drivers employed by the Employ-
er at its Plainwell, Michigan, facility; but ex-
cluding all office clerical employees, guards
and supervisors as defined in the Act.
WYOMING ASPHALT PAVING CO.,
INC.