KEPHART TRUCKING CO.

National Labor Relations Board - Board Decisions

Jan 6, 2014

360 NLRB No. 22 (N.L.R.B. 2014)

360 NLRB No. 22
NOTICE: This opinion is subject to formal revision before publication in
the bound volumes of NLRB decisions. Readers are requested to no-
tify the Executive Secretary, National Labor Relations Board, Wash-
ington, D.C. 20570, of any typographical or other formal errors so
that corrections can be included in the bound volumes.
Kephart Trucking Company and International
Brotherhood of Teamsters, Local No. 125, AFL–
CIO. Case 22–CA–109611
January 6, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
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. Upon a charge filed by the
International Brotherhood of Teamsters, Local No. 125,
AFL–CIO (the Union) on July 22, 2013, the General
Counsel issued a complaint on September 19, 2013,
against Kephart Trucking Company (the Respondent)
alleging that it violated Section 8(a)(5) and (1) of the
Act. The Respondent failed to file an answer.
On November 4, 2013, the General Counsel filed a
motion for default judgment with the Board. On No-
vember 6, 2013, 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 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 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 stated
that unless an answer was received by October 3, 2013,
the Board may find, pursuant to a motion for default
judgment, that the allegations in the complaint are true.
On October 1, 2013, the National Labor Relations Board
closed due to a lapse in appropriated funds. As noted in
the Federal Register notice posted on the Board’s public
website, the Agency granted, sua sponte, an extension of
time to file or serve any document for which the grant of
an extension is permitted by law. The terms of the ex-
tension were that for each day on which the Agency’s
offices were closed for all or any portion of the day, 1

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 motion as a Motion for Default
Judgment.
day would be added to the time for filing or service of
the documents. The Agency’s offices were closed for a
total of 16 days. Under the Agency’s terms, the Re-
spondent’s filing period was extended to October 21,
2013. By letter dated October 22, 2013, the Region ex-
tended that period until October 29, 2013, and advised
the Respondent that unless an answer was filed, the Re-
gion would file a motion for default judgment. The Re-
spondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer to the complaint, we deem the alle-
gations in the complaint to be admitted as true, and we
grant the General Counsel’s Motion for Default Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsylvania
corporation with an office and place of business in South
Kearney, New Jersey (the South Kearney facility), has
been engaged in the interstate transportation and freight
management of solid waste.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, purchased and received at its
South Kearney facility goods and materials valued in
excess of $50,000 directly from suppliers located outside
the State of New Jersey.
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.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Timothy Kephart has held the
position of the Respondent’s owner and vice president
and has been a supervisor of the Respondent within the
meaning of Section 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 driv-
ers’ unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All full time and regular part time drivers, employed by
the Employer at its 23 Second Street, South Kearney,
New Jersey facility only. Excluded are all other office
clerical employees, temporary employees, dispatchers,
warehouse employees, mechanics, professional em-
ployees, office employees, managers, guards and su-
pervisors as defined by the Act.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
About July 12, 2010, the Union was certified as the
exclusive collective-bargaining representative of the
drivers’ unit.
At all times since July 12, 2010, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the drivers’ unit.
The following employees of the Respondent (the me-
chanics’ unit) constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full time and regular part time mechanics, em-
ployed by the Employer at its 23 Second Street, South
Kearney, New Jersey facility only. Excluded are all
other office clerical employees, temporary employees,
dispatchers, warehouse employees, drivers, profession-
al employees, office employees, managers, guards and
supervisors as defined by the Act.
About September 16, 2010, the Union was certified as
the exclusive collective-bargaining representative of the
mechanics’ unit.
At all times since September 16, 2010, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the mechanics’
unit.
About June 14, 2013, the Union, by its labor counsel,
Bruce Leder, requested to bargain over the effects of the
Respondent’s closure of its South Kearney facility.
Since about June 14, 2013, the Respondent failed and
refused to bargain collectively with the Union about the
effects of the closure of the South Kearney facility.
The effects of the closure of the South Kearney facility
relate to the wages, hours, and other terms and conditions
of employment of the drivers’ unit and mechanics’ unit,
and are mandatory subjects for the purposes of collective
bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain collec-
tively and in good faith with the exclusive collective-
bargaining representative of its employees, in violation
of Section 8(a)(5) and (1) of the Act, and has thereby
engaged in unfair labor practices affecting commerce
within the meaning of 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 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 its decision to close
the South Kearney facility, we shall order the Respond-
ent to bargain with the Union, on request, about the ef-
fects of that decision. As a result of the Respondent’s
unlawful conduct, however, the unit employees have
been denied an opportunity to bargain through their col-
lective-bargaining representative at a time when the Re-
spondent might still have been in need of their services
and a measure of balanced bargaining power existed.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the Union.
A bargaining order alone, therefore, cannot serve as an
adequate remedy for the unfair labor practices commit-
ted.
Accordingly, we deem it necessary, in order both to
ensure that meaningful bargaining occurs and to effectu-
ate the policies of the Act, to accompany our bargaining
order with a limited backpay requirement designed to
make whole the unit employees for losses suffered as a
result of the violations and to recreate in some practica-
ble manner a situation in which the parties’ bargaining
position is not entirely devoid of economic consequences
for the Respondent. We shall do so by ordering the Re-
spondent to pay backpay to the unit employees in a man-
ner similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified in Melody
Toyota, 325 NLRB 846 (1998).2
Thus, the Respondent shall pay its unit employees
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 the occurrence of the earliest of
the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects of its decision to close its South
Kearney facility on the 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 on which the Respondent ceased its operations

2 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
Neither the complaint nor the motion specifies the impact, if any, on the
unit employees of the Respondent’s decision to close. Thus, we do not
know whether, or to what extent, the refusal to bargain about the effects
of this decision had an impact on the unit employees. In these circum-
stances, we shall permit the Respondent to contest the appropriateness
of a Transmarine backpay remedy at the compliance stage. See, e.g.,
Buffalo Weaving & Belting, 340 NLRB 684, 685 fn. 3 (2003); and ACS
Acquisition Corp., 339 NLRB 736, 737 fn. 2 (2003).
3
KEPHART TRUCKING CO.
to the time they secured equivalent employment else-
where, or the date on which the Respondent shall have
offered to bargain in good faith, whichever occurs soon-
er. 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 period, less any net interim earnings, and shall
be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).
Additionally, we shall order the Respondent to com-
pensate the unit employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and to file a report with the Social Security Administra-
tion allocating the backpay award to the appropriate cal-
endar quarters for unit employees.
Finally, in view of the fact that the Respondent has
closed its South Kearney facility, we shall order the Re-
spondent to mail a copy of the attached notice to the Un-
ion and to the last known addresses of the unit employees
who were employed by the Respondent at any time since
June 14, 2013, in order to inform them of the outcome of
this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Kephart Trucking Company, South
Kearney, New Jersey, its officers, 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 No. 125, AFL–CIO (the Union) as the exclusive
collective-bargaining representative of the employees in
the following drivers’ and mechanics’ bargaining units
by failing and refusing to bargain with the Union over
the effects of the Respondent’s decision to close its
South Kearney, New Jersey facility:
The Drivers’ Unit
All full-time and regular part-time drivers, employed
by the Employer at its 23 Second Street, South
Kearney, New Jersey facility only. Excluded are all
other office clerical employees, temporary employees,
dispatchers, warehouse employees, mechanics, profes-
sional employees, office employees, managers, guards
and supervisors as defined by the Act.
The Mechanics’ Unit
All full-time and regular part-time mechanics, em-
ployed by the Employer at its 23 Second Street, South
Kearney, New Jersey facility only. Excluded are all
other office clerical employees, temporary employees,
dispatchers, warehouse employees, drivers, profession-
al employees, office employees, managers, guards and
supervisors as defined by the Act.
(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 collectively and in good faith
with the Union concerning the effects of the Respond-
ent’s decision to close its South Kearney, New Jersey
facility and reduce to writing and sign any agreement
reached as a result of such bargaining.
(b) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision,
with interest.
(c) Compensate the unit employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(d) 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 rec-
ords 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.
(e) 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”3 to the Union
and to all unit employees who were employed by the
Respondent at the time that it closed its facility about
June 14, 2013.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the

3 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.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Region attesting to the steps the Respondent has taken to
comply.
Dated, Washington, D.C. January 6, 2014
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Harry I. Johnson, III, Member
______________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 mail 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 bargain collectively
and in good faith with International Brotherhood of
Teamsters, Local No. 125, AFL–CIO as the exclusive
collective-bargaining representative of our unit employ-
ees set forth below by failing to bargain with the Union
over the effects of our decision to cease operations of our
South Kearney, New Jersey facility:
The Drivers’ Unit
All full-time and regular part-time drivers, employed
by us at our 23 Second Street, South Kearney, New
Jersey facility only. Excluded are all other office cleri-
cal employees, temporary employees, dispatchers,
warehouse employees, mechanics, professional em-
ployees, office employees, managers, guards and su-
pervisors as defined by the Act.
The Mechanics’ Unit
All full-time and regular part-time mechanics, em-
ployed by us at our 23 Second Street, South Kearney,
New Jersey facility only. Excluded are all other office
clerical employees, temporary employees, dispatchers,
warehouse employees, drivers, professional employees,
office employees, managers, guards and supervisors as
defined by the Act.
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, on request, bargain collectively and in good
faith with the Union concerning the effects on our unit
employees of our decision to close our South Kearney,
New Jersey facility on about June 14, 2013, and reduce
to writing and sign any agreement reached as a result of
such bargaining.
WE WILL pay the unit employees their normal wages
for the period set forth in the Decision and Order of the
Board, with interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file a report with the Social
Security Administration allocating the backpay award to
the appropriate calendar quarters.
KEPHART TRUCKING COMPANY