Turner-Brooks of Ohio, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1993

310 N.L.R.B. 856 (N.L.R.B. 1993)

856
310 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Turner-Brooks of Ohio, Inc. and Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local No.
20 a/w International Brotherhood of Team-
sters, AFL–CIO. Case 8–CA–24925
March 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by Teamsters, Chauffeurs,
Warehousemen and Helpers, Local No. 20 a/w Inter-
national Brotherhood of Teamsters, AFL–CIO, the
Union, the General Counsel of the National Labor Re-
lations Board issued a complaint on November 16,
1992, against Turner-Brooks of Ohio, Inc., the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Although
properly served copies of the charge and complaint,
the Respondent has failed to file an answer.
On February 22, 1993, the General Counsel filed a
Motion for Summary Judgment. On February 26, 1993,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion 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. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all the allegations
in the complaint shall be considered to be admitted to
be true and shall be so found by the Board.’’ Further,
the undisputed allegations in the Motion for Summary
Judgment disclose that the Region, by letters dated De-
cember 14, 1992, and January 13, 1993, notified the
Respondent that unless an answer was received on or
before January 4, 1993, and on or before January 29,
1993, respectively, 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
The Respondent, an Ohio corporation, with an office
and place of business in Toledo, Ohio, has been en-
gaged in the retail and wholesale sale of carpet and tile
products. Prior to ceasing business in July 1992, the
Respondent purchased and received at its Toledo, Ohio
facility goods valued in excess of $50,000 directly
from points outside the State of Ohio. 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
The following employees constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All truck drivers, helpers, and warehousemen em-
ployed by the Respondent at its 115 S. Reynolds
Road, Toledo, Ohio facility, but excluding all of-
fice clerical employees, and professional employ-
ees, guards and supervisors as defined in the Act
and all other employees.
The Union has been the designated exclusive collec-
tive-bargaining representative of the unit employees
and has been recognized as such representative by the
Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which is effective from March 1, 1991, to
February 28, 1994. Based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit employees at all material
times.
Since about June 22, 1992, the Union, by letter, has
requested that the Respondent furnish it with the fol-
lowing information:
1. The name and address of the individual or
entity to whom your company is being sold.
2. The reasons why your company is being
sold.
3. Whether or not the purchaser will continue
to do business at the same location at which your
company operates.
4. Whether or not the purchaser will hire the
present employees of your company.
5. Whether or not your company, or any part
of it, will continue to do business under its cur-
rent ownership.
857TURNER-BROOKS OF OHIO
1 Included within the request for information was a request for the
social security numbers of the Respondent’s present employees. The
Board has previously held that social security numbers are not pre-
sumptively relevant. Accordingly, in the absence of a showing here
of their potential or probable relevance, we dismiss the allegation
concerning the failure to produce social security numbers. Sea-Jet
Trucking Corp., 304 NLRB 67 (1991).
6. Whether or not your company, or any part
of it, will continue to do business under its cur-
rent [sic—perhaps other] ownership.
7. The name, address, social security number,
date of birth, and date of hire of your company’s
present employees.
8. The names of any bargaining unit employees
who are presently on layoff, the date upon which
such employees were laid off and the date such
employees will be recalled.
9. The names of any bargaining unit employees
for whom you have deducted dues and assess-
ments and have not remitted to the Union.
10. The date upon which you last remitted dues
to the Union and the month for which such dues
were deducted.
11. Please provide a copy of the current senior-
ity list.
12. The names of any bargaining unit employ-
ees who have lost their seniority rights within the
last six months, the reasons for which they lost
their seniority rights, and the dates upon which
such employees lost their seniority rights.
13. The names of any bargaining unit employ-
ees who are currently on a leave of absence from
the company and the dates upon which such em-
ployees commenced his or her leave of absence
and the date upon which such employee is sched-
uled to return to work.
14. The names of any bargaining unit employ-
ees who have left the bargaining unit to enter the
Armed Forces of the United States and the date
upon which such employees left the bargaining
unit for such purpose.
15. The names of any bargaining unit employ-
ees who are owed back wages, the amount of
such wages which are owed, the reasons such
wages are owed, and the dates upon which such
wages should have been paid.
16. The job classifications of each of the em-
ployees mentioned in paragraph 7 above.
17. The names of any employees who are cur-
rently apprentices and their date of hire.
18. Whether or not any of the employees re-
ferred to in paragraph 7 above are owed holiday
pay.
19. Whether or not there are any outstanding
grievances and please provide copies of the same.
20. Whether or not any of the employees re-
ferred to in paragraph 7 above are owed vacation
pay and the names of any employees who are
presently on vacation.
21. Whether or not the company is current in
its contributions to the Teamsters Local 20 Insur-
ance, Health and Welfare Plan and Trust, the date
the last payment was made to the Teamsters Local
20 Insurance, Health and Welfare Plan and Trust.
22. Whether or not the company is current in
its contributions to the Central States Southeast
and Southwest Areas Pension Fund, the date the
last payment was made to the Central States
Southeast and Southwest Areas Pension Fund.
23. Whether or not the purchaser of your com-
pany will recognize the Union as the bargaining
representative of bargaining unit employees.
24. And, whether or not the purchaser of your
company will assume any and all obligations
under the current Collective Bargaining Agree-
ment.
With the exception of employees’ social security
numbers,1 the information requested by the Union is
necessary for, and relevant to, the Union’s performance
of its duties as the exclusive collective-bargaining rep-
resentative of the unit employees. Since about June 22,
1992, the Respondent has failed and refused to furnish
the Union with the information requested by it.
Since on or about July 1, 1992, the Respondent has
failed and refused to honor the terms of its agreement
with the Union by failing to make health and welfare
and pension contributions and by failing to make vaca-
tion payments to, and on behalf of, the unit employees.
These subjects relate to wages, hours, and other terms
and conditions of employment of the unit employees
and are mandatory subjects for the purposes of collec-
tive bargaining. The Respondent engaged in this con-
duct without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and the effects
of this conduct on its unit employees. The Respondent
engaged in this conduct without the Union’s consent.
On or about July 1, 1992, the Respondent closed its
Toledo, Ohio facility. The effect of the Respondent’s
closure relates to wages, hours, and other terms and
conditions of employment of the unit employees and is
a mandatory subject for the purposes of collective bar-
gaining. The Respondent engaged in this conduct with-
out affording the Union an opportunity to bargain with
the Respondent with respect to the effects of this con-
duct.
CONCLUSION OF LAW
By failing to furnish the Union with information
necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining rep-
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resentative of the unit employees; by failing to honor
the terms of its agreement with the Union by failing
to make health and welfare and pension contributions
and by failing to make vacation payments to, and on
behalf of, unit employees; and by failing to bargain
with the Union about the effect of closure of its To-
ledo, Ohio facility on unit employees, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(d) and Section
2(6) and (7) of the Act and in violation of Section
8(a)(1) and (5) 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.
Specifically, having found that the Respondent has
violated Section 8(a)(1) and (5) by failing to make
contractually required payments for pension, health and
welfare, and vacation, we shall order the Respondent
to make whole its unit employees by making all pay-
ments that have not been made and that would have
been made but for the Respondent’s unlawful failure to
make them, including any additional amounts applica-
ble to such delinquent payments as determined in ac-
cordance with the criteria set forth in Merryweather
Optical Co., 240 NLRB 1213 (1979). In addition, the
Respondent shall reimburse unit employees for any ex-
penses ensuing from its failure to make such required
payments, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 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. 1979),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Finally, the Respond-
ent shall make whole its unit employees by paying
them the vacation pay each is owed, with interest as
set forth in New Horizons for the Retarded, supra.
Moreover, we shall require the Respondent to pro-
vide the Union with the information it requested by
letter of June 22, 1992, with the exception of employ-
ees’ social security numbers. Finally, to remedy the
Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of closure of its To-
ledo, Ohio facility, we shall order it to bargain with
the Union, on request, concerning the effects of that
decision. Because of the Respondent’s unlawful failure
to bargain with the Union about the effects of the deci-
sion to close its Toledo, Ohio facility, the bargaining
unit employees have been denied an opportunity to
bargain through their collective-bargaining representa-
tive at a time when the Respondent might still have
been in need of their services and a measure of bal-
anced 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 practice committed.
Accordingly, we deem it necessary in order to en-
sure that meaningful bargaining occurs and to effec-
tuate the policies of the Act, to require not only that
the Respondent bargain with the Union, on request,
about the effects of the closure, but we shall also ac-
company our order with a limited backpay requirement
designed both to make the employees whole for losses
as a result of the Respondent’s failure to bargain, and
to recreate in some practicable manner a situation in
which the parties’ bargaining position is not entirely
devoid of economic consequences for the Respondent.
We shall do so by requiring the Respondent to pay
backpay to unit employees in a manner similar to that
required in Transmarine Navigation Corp., 170 NLRB
389 (1968).
The Respondent shall pay unit employees backpay
at the rate of their normal wages when last in the Re-
spondent’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 Respond-
ent bargains to agreement with the Union on those
subjects pertaining to the effects of the plant closure
on unit employees; (2) a bona fide impasse in bar-
gaining; (3) the failure of the Union to request bar-
gaining within 5 days of the date of this Decision and
Order, or to commence negotiations within the 5 days
of the Respondent’s notice of its desire to bargain with
the Union; or (4) the subsequent failure of the Union
to bargain in good faith.
In no event shall the sum paid to any of these em-
ployees exceed the amount they would have earned as
wages from the date on which the Respondent termi-
nated its operations to the time they secured equivalent
employment elsewhere, or the date on which the Re-
spondent shall have offered to bargain, whichever oc-
curs sooner; provided, however, that in no event shall
this sum be less than the amount these employees
would have earned for a 2-week period at the rate of
their normal wages when last in the Respondent’s em-
ploy. Interest on all sums shall be paid in the manner
prescribed in New Horizons for the Retarded, supra.
Finally, in view of the Respondent’s closure of its
facility, we shall order the Respondent to mail copies
of the notice to all unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Turner-Brooks of Ohio, Inc., Toledo,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to furnish Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local No. 20 a/w International
859TURNER-BROOKS OF OHIO
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.’’
Brotherhood of Teamsters, AFL–CIO with information
necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining rep-
resentative of the employees in the unit; failing to
honor the terms of its agreement with the Union by
failing to make health and welfare and pension con-
tributions and by failing to make vacation payments to,
and on behalf of, employees in the unit; and failing to
bargain with the Union about the effect of closure of
its Toledo, Ohio facility.
(b) In any like or related manner interfering with,
restraining, 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 the Union with the information it re-
quested by letter of June 22, 1992, with the exception
of employees’ social security numbers.
(b) Honor the terms of its contract with the Union
by making health and welfare and pension contribu-
tions and making vacation payments to, and on behalf
of, employees in the unit.
(c) Bargain with the Union regarding the effects of
closure of its Toledo, Ohio facility.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its facility in Toledo, Ohio, and mail to
all bargaining unit employees, copies of the attached
notice marked ‘‘Appendix.’’2 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized rep-
resentative, shall be mailed to all bargaining unit em-
ployees and shall also be posted by the Respondent
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 bargain in good faith with
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 20 a/w International Brotherhood
of Teamsters, AFL–CIO, the exclusive representative
of our employees in the following appropriate bar-
gaining unit:
All truck drivers, helpers, and warehousemen em-
ployed at our 115 S. Reynolds Road, Toledo,
Ohio facility, but excluding all office clerical em-
ployees, and professional employees, guards and
supervisors as defined in the Act and all other
employees.
WE WILL NOT refuse to provide the Union with the
relevant information it requested by letter of June 22,
1992.
WE WILL NOT refuse to honor the terms of our con-
tract with the Union by failing to make all contrac-
tually required health and welfare and pension con-
tributions and vacation payments.
WE WILL NOT refuse to bargain with the Union
about the effects on unit employees of our closure of
the Toledo, Ohio facility.
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 provide the Union with the relevant infor-
mation it requested by letter of June 22, 1992, with ex-
ception of employees’ social security numbers.
WE WILL honor the terms of our contract with the
Union by making all contractually required health and
welfare and pension contributions and vacation pay-
ments and WE WILL make our employees whole, with
interest, for our failure to make all such contributions
as required in the contract.
WE WILL bargain with the Union about the effects
on unit employees of our closure of the Toledo, Ohio
facility and make our employees whole with interest
for our failure to bargain.
TURNER-BROOKS OF OHIO, INC.