369 N.L.R.B. 24 (N.L.R.B. 2020)

Carl R. Bieber, Inc.

National Labor Relations Board - Board DecisionsFeb 4, 2020

369 N.L.R.B. 24 (N.L.R.B. 2020)

369 NLRB No. 24 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Carl R. Bieber, Inc. and International Brotherhood of Teamsters Local 429. Case 04–CA–235770 February 4, 2020 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the International Brotherhood of Teamsters Local 429 (the Union) on February 12, 2019, the General Counsel issued a complaint on May 23, 2019, against Carl R. Bieber, Inc. (the Respondent), alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The Respondent failed to file an answer. On June 27, 2019, the General Counsel filed with the National Labor Relations Board a Motion for Default Judgment. On July 3, 2019, the Board issued an order transferring the proceeding 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 mo- tion are therefore undisputed. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a 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 states that unless an answer was received by June 6, 2019, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undis- puted allegations in the General Counsel’s motion dis- close that the Region, by letter dated June 10, 2019, noti- fied the Respondent that unless an answer was received by June 17, 2019, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an an- swer. In the absence of good cause being shown for the lack of a timely answer, we deem the allegations in the com- plaint to be admitted as true. We therefore grant in part the General Counsel’s Motion for Default Judgment. We deny, however, the Motion for Default Judgment as to the allegation that the Respondent violated the Act by 1 Remanded on other grounds sub nom. Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964). failing to remit dues to the Union beginning about October 1, 2018, following the expiration of the parties’ collective- bargaining agreement on March 1, 2018. On December 16, 2019, the Board issued its decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Cen- ter, 368 NLRB No. 139 (2019). In Valley Hospital Medi- cal Center, the Board overruled Lincoln Lutheran of Ra- cine, 362 NLRB 1655 (2015), returned to Bethlehem Steel, 136 NLRB 1500 (1962),1 and held that dues-checkoff pro- visions are “enforceable through Section 8(a)(5) of the Act only for the duration of the contractual obligation created by the parties.” 368 NLRB No. 139, slip op. at 1. The Board also decided to apply the rule of Valley Hospital Medical Center retroactively in all pending cases. Id., slip op. at 8. According to the uncontroverted allegations of the General Counsel’s complaint, the Respondent ceased remitting dues to the Union following the expiration of the parties’ collective-bargaining agreement. Under the rule of Valley Hospital Medical Center, the General Counsel has not alleged a cognizable claim that the Respondent vi- olated the Act by its failure to remit union dues after the contract expired. We accordingly deny the motion for de- fault judgment with respect to this allegation, which is dis- missed. On the entire record, the Board makes the following FINDINGS OF FACT At all material times, the Respondent has been a Penn- sylvania corporation with an office located in Kutztown, Pennsylvania, and has been engaged in the interstate trans- portation of passengers. In conducting its operations dur- ing the calendar year ending December 31, 2018, the Re- spondent performed services valued in excess of $50,000 in states other than the Commonwealth of Pennsylvania. 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 the Union is a labor organization within the meaning of Section 2(5) of the Act. At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the mean- ing of Section 2(11) of the Act and agents of the Respond- ent within the meaning of Section 2(13) of the Act: Steven G. Haddad - President John Kowals - Operations Manager David Okraska - Operations Manager DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regularly scheduled full-time bus drivers, mechan- ics, head mechanic, assistant head mechanic, wash crew and head of the wash crew, but excluding all other em- ployees, including but not limited to, dispatchers, office employees, casual employees, guards and supervisors within the meaning of the National Labor Relations Act. At all material times, the Respondent has recognized the Union as the exclusive collective-bargaining representa- tive of the unit. This recognition has been embodied in successive collective-bargaining agreements, the most re- cent of which was effective from March 2, 2014, to March 1, 2018. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. Since about January and February 2019, more precise dates being presently unknown, the Respondent has failed to pay wages to the unit. Since about February 9, 2019, the Respondent has failed to pay vacation benefits to the unit. 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 bar- gaining. 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 Re- spondent with respect to this conduct and the effects of this conduct. CONCLUSIONS OF LAW By the conduct described above, the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive bargaining representative of its unit employees in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices de- scribed above affect commerce within the meaning of Sec- tion 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, having found that the Respondent has violated Section 8(a)(5) and (1) by failing and refusing, since about January and Feb- ruary 2019, to pay wages to the unit, and since about Feb- ruary 9, 2019, to pay vacation benefits to the unit, we shall order the Respondent to make employees whole by paying them the wages and vacation benefits that have not been paid to them since those respective dates. Such amounts are to be computed in the manner set forth in Ogle Protec- tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Additionally, we shall order the Respondent to compensate the unit employees for any adverse tax conse- quences of receiving a lump-sum backpay award in ac- cordance with Don Chavas, LLC d/b/a Tortillas Don Cha- vas, 361 NLRB 101 (2014), and to file a report with the Regional Director for Region 4 allocating the backpay award to the appropriate calendar years for each employee in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). ORDER The National Labor Relations Board orders that the Re- spondent, Carl R. Bieber, Inc., Kutztown, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with the International Brotherhood of Teamsters Local 429 as the exclusive collective-bargaining representative of the employees in the bargaining unit by unilaterally changing the terms and conditions of employment of its unit em- ployees without first notifying the Union and giving it an opportunity to bargain. (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) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of em- ployees in the following bargaining unit: All regularly scheduled full-time bus drivers, mechan- ics, head mechanic, assistant head mechanic, wash crew and head of the wash crew, but excluding all other em- ployees, including but not limited to, dispatchers, office employees, casual employees, guards and supervisors within the meaning of the National Labor Relations Act. (b) Rescind the changes in its unit employees’ terms and conditions of employment that were unilaterally im- plemented beginning in or about January 2019. (c) Make whole the unit employees, with interest, for any loss of earnings and other benefits ensuing from its failure to pay wages and vacation benefits to the unit since CARL R. BIEBER, INC. 3 January 2019, in the manner set forth in the remedy sec- tion of this decision. (d) Compensate the unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 4, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (e) 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, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary 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 Kutztown, Pennsylvania, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since January 2019. (g) Within 21 days after service by the Region, file with the Regional Director for Region 4 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. February 4, 2020 ______________________________________ John F. Ring, Chairman 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 _____________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member (SEAL) 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 vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a 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 ac- tivities. WE WILL NOT fail and refuse to bargain in good faith with the International Brotherhood of Teamsters Local 429 (Union) by changing unit employees’ terms and con- ditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of our unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of employees in the following bargaining unit: All regularly scheduled full-time bus drivers, mechan- ics, head mechanic, assistant head mechanic, wash crew and head of the wash crew, but excluding all other em- ployees, including but not limited to, dispatchers, office United States Court of Appeals Enforcing an Order of the National Labor Relations Board” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 employees, casual employees, guards and supervisors within the meaning of the National Labor Relations Act. WE WILL rescind the changes in the unit employees’ terms and conditions of employment that were unilaterally implemented beginning in or about January 2019. WE WILL make unit employees whole, with interest, for any loss of earnings and other benefits ensuing from our failure to pay wages and vacation benefits to the unit since January 2019. WE WILL compensate the unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 4, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. CARL R. BIEBER, INC. The Board’s decision can be found at http://www.nlrb.gov/case/04-CA-235770 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570, or by calling (202) 273-1940.