Freyco Trucking, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 2003

338 N.L.R.B. 774 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774
Freyco Trucking, Inc. and Freyco Excavating, Inc.
and Teamsters Local Union 142, an affiliate of
the International Brotherhood of Teamsters,
AFL–CIO. Case 13–CA–40204–1
January 28, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The General Counsel seeks summary 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
Union on May 17, 2002, the General Counsel issued the
complaint on August 22, 2002, against Freyco Trucking,
Inc. and Freyco Excavating, Inc., the Respondents, alleg-
ing that they have violated Section 8(a)(1) and (5) of the
Act. The Respondents failed to file an answer.
On October 15, 2002, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On October
16, 2002, 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.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary 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 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 allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated September 24, 2002, notified the Respondent
that unless an answer was received by October 2, 2002, a
Motion for Summary Judgment would be filed.
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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Freyco Trucking,
Inc., an Indiana corporation, with a place of business in
Merrillville, Indiana, has been engaged in the business of
transporting construction materials and equipment to
various jobsites.
During the 12-month period preceding issuance of the
complaint, a representative period, Respondent Freyco
Trucking, Inc., in conducting its operations described
above, purchased and received at its Merrillville, Indiana
facility goods valued in excess of $50,000 from other
enterprises, including Bulka Materials and Levy Corpo-
ration, located within the State of Indiana, each of which
other enterprises had received these goods directly from
points outside the State of Indiana. We find that Re-
spondent Freyco Trucking, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
At all material times, Respondent Freyco Excavating,
Inc., an Indiana corporation, with a place of business in
Merrillville, Indiana, has been engaged in the business of
transporting construction materials and equipment to
various jobsites.
During the 12-month period preceding issuance of the
complaint, a representative period, Respondent Freyco
Excavating, Inc., in conducting its operations described
above, purchased and received at its Merrillville, Indiana
facility goods valued in excess of $50,000 from other
enterprises, including Bulka Materials and Levy Corpo-
ration, located within the State of Indiana, each of which
other enterprises had received these goods directly from
points outside the State of Indiana. We find that Re-
spondent Freyco Excavating, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
In addition, we find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, William H. Frey held the posi-
tion of Respondent Freyco Trucking, Inc.’s owner, and
has been a supervisor within the meaning of Section
2(11) of the Act and an agent of Respondent Freyco
Trucking, Inc., within the meaning of Section 2(13) of
the Act.
At all material times, William H. Frey held the posi-
tion of Respondent’s Freyco Excavating, Inc.’s owner,
and has been a supervisor within the meaning of Section
2(11) of the Act and an agent of Respondent Freyco Ex-
cavating, Inc. within the meaning of Section 2(13) of the
Act.
The following employees of Respondent Freyco
Trucking, Inc. (the trucking unit), constitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All general construction and maintenance group em-
ployees, asphalt pavers, working foremen, journeymen
mechanics, Class B mechanics, mechanics helpers and
338 NLRB No. 97
FREYCO TRUCKING, INC. 775
all employees working in the Mechanical and Mainte-
nance occupation classifications employed by Freyco
Trucking, Inc., at the Company’s facility located at
8350 Whitcomb, Merrillville, Indiana; but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
The following employees of Respondent Freyco Exca-
vating, Inc. (the excavating unit), constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees performing the work for the job classifi-
cations described in Article I, Section 4 and Article 11
of the collective bargaining agreement between Freyco
Excavating, Inc. and the Union employed by Freyco
Excavating, Inc., at the Company’s facility located at
8350 Whitcomb, Merrillville, Indiana, but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
At all material times, the Union has been the desig-
nated collective-bargaining representative of the Truck-
ing unit and has been recognized as the representative by
Respondent Freyco Trucking, Inc. This recognition has
been embodied in successive collective-bargaining agree-
ments, the most recent of which is effective by its terms
on June 1, 2001, and expires on May 31, 2004.
At all material times, the Union, by virtue of Section
9(a) of the Act, has been and is the exclusive bargaining
representative of the Trucking unit described above for
the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment.
At all material times, the Union has been the desig-
nated collective-bargaining representative of the
Excavating unit described above and has been recognized
as the representative by Respondent Freyco Excavating,
Inc. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of
which is effective by its terms on June 1, 2000, and ex-
pires on May 31, 2003.
At all material times, the Union, by virtue of Section
9(a) of the Act, has been and is the exclusive bargaining
representative of the excavating unit described above for
the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment.
Since about April 8, 2002, and continuing, the Union,
by letter, requested that Respondent Freyco Trucking,
Inc., and Respondent Freyco Excavating, Inc., furnish the
Union with the following information:
(i) A copy of all payroll records for the last 1-year pe-
riod; and
(ii) A copy of all payments made to the Health and
Welfare Fund and the Pension Fund for the last 1-year
period.
Since about April 19, 2002, and continuing to date,
Respondent Freyco Trucking, Inc., and Respondent
Freyco Excavating, Inc., have failed and refused to fur-
nish the Union with the information requested.
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the Trucking and Excavating units.1
CONCLUSION OF LAW
By the acts and conduct described above, Respondent
Freyco Trucking, Inc. and Respondent Freyco Excavat-
ing, Inc. have been failing and refusing to bargain collec-
tively and in good faith with the Union as the exclusive
collective-bargaining representative of the units, and
have thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5),
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondents have failed and
refused to provide requested information to the Union
which is necessary and relevant to the performance of its
functions as the exclusive collective-bargaining represen-
tative of the unit employees, we shall order the Respon-
dents to provide the information requested by the Union.
ORDER
The National Labor Relations Board orders that the
Respondents, Freyco Trucking, Inc. and Freyco Excavat-
ing, Inc., Merrillville, Indiana, their officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide necessary and rele-
vant information to the Union, on request.
(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) Furnish to the Union the information it requested
by letter dated April 8, 2002.

1 We construe the Union’s request as pertaining to the payroll re-
cords of unit employees and to benefit fund payments made on their
behalf, although the information request is not described in these spe-
cific terms.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776
(b) Within 14 days after service by the Region, post at
its facility in Merrillville, Indiana, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondents’ authorized repre-
sentative, shall be posted by the Respondents and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondents have gone out of business or closed the facility
involved in these proceedings, the Respondents shall
duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees
employed by the Respondents at any time since April 8,
2002.
(c) 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 Respondents have taken to
comply.
APPENDIX

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 vio-
lated 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
activities.

WE WILL NOT fail and refuse to provide necessary and
relevant information to the Union, on request.
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 furnish to the Union the information it re-
quested by letter dated April 8, 2002.

FREYCO TRUCKING, INC. AND FREYCO
EXCAVATING, INC.