Associated Grocers, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 1976

222 N.L.R.B. 691 (N.L.R.B. 1976)

ASSOCIATED GROCERS, INC. 691
Associated Grocers, Inc. and Line Drivers, Helpers
and Pickup Union Local 741, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Cases 19-CA-7918 and
19-CE-30
February 2, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon charges filed on August 8, 1975, by Line
Drivers, Helpers and Pickup Union Local 741, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called Local 741, and duly served on Associated
Grocers, Inc., herein called the Respondent, and on
General Teamsters Union Local No. 174, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers -of' America, Party in Interest
in Case 19-CE-30, herein,called Local 174, the Gen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 19, issued an
order consolidating cases, ',consolidated complaint,
and notice of hearing on September 5, 1975, against
Respondent. The complaint alleged that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(e), 8(a)(1), and 2(6) and (7) of the Nation-
al Labor Relations Act, as amended. Copies of the
charges, order consolidating cases, consolidated
complaint, and notice of hearing before a duly desig-
nated Administrative Law Judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the con-
solidated complaint alleges, in substance, that the
Respondent, through ' its named agents, at its King
County, Washington, facility, violated Sections 8(e),
8(a)(1), and 2(6) and (7) of the Act. More specifically,
the complaint alleges that, on or about April 1, 1974,
Respondent and Local 174 entered into a written
contract containing the following clause:
21.06 All loading and unloading of trucks or
any similar equipment by any mechanical de-
vices, or hand trucks or without mechanical de-
vices shall be done by members of Teamsters
Local Union No. 174 bargaining unit only. In
the event the Employer fails to conform with
this Section of Agreement, the Union is free to
take any economic action against such Employ-
er it deems necessary and such action shall not
be considered a violation of this Agreement.
The complaint further alleges that at all times ma-
terial to this cause of action, and continuing to date
of the complaint, Respondent has continued and is
now continuing to give effect to the aforesaid- con-
tract clause by enforcing its provisions which Re-
spondent and Local 174 interpret to preclude the em-
ployment of persons who are not members of Local
174 by employers other than Respondent for the pur-
pose of unloading trucks owned and operated by em-
ployers other than Respondent at Respondent's facil-
ity. The complaint further alleges that by enforcing
the aforesaid contract clause so as to apply to work
done by employees of employers other than Respon-
dent for such other employers, Respondent has
ceased or refrained, or has agreed to cease or refrain,
from handling, using, selling, transporting, or other-
wise dealing in the products of other, employers, and
has ceased or has agreed to cease doing business with
other persons.
With respect to the 8(a)(1) allegations, the com-
plaint asserts that on or about August 1, 1975, Local
741, the Charging Party, dispatched three persons to
unload trucks at Respondent's facility pursuant to
telephone requests from employers other- than Re-
spondent, as follows: (1) employee Craig Vanuick,
who was requested by C & M Trucking; (2) employ-
ee Doug Bagnell, requested by Melhauf Trucking;
and (3) employee John Redlinger, also requested by
Melhauf Trucking. It is further alleged that the fore-
going employees were intercepted by Respondent's
security personnel at the yard gate, pursuant to in-
structions from Respondent's duly authorized agents,
and refused permission to go into the yard area to
report to the employers who had called for them be-
cause said employees were, not members of Local
174, the Party in Interest.
In its concluding paragraph, the complaint alleges
that by the aforementioned conduct Respondent vio-
lated Sections 8(e), 8(a)(1), and 2(6) and (7) of the
Act.
On October 29, 1975, counsel for the Acting Gen-
eral Counsel, hereinafter called the General Counsel,
filed directly with the Board a motion for summary
judgment, based on the Respondent's failure to file a
timely answer as required by Sections 102.20 and
102.21 of the Board's Rules and Regulations, On No-
vember 4, 1975, the Respondent filed its Reply to
Motion for Summary Judgment and an answer, al-
leging that the Respondent has not filed its answer
and therefore the motion is without merit and should
be denied. In its answer the Respondent 'generally
denies all allegations of violations of Sections 8(e),
8(a)(1), and 2(6) and (7) of the Act, and requests that
the consolidated complaint be' dismissed. '
On October 28, 1975, the Party in Interest, Team-
222 NLRB No. 108
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sters Local 174, served its answer by mail. On No-
vember 6, 1975, Local 174 filed with the Board in
Washington, D.C., its opposition to General
Counsel's Motion for Summary Judgment, attaching
thereto an affidavit of George H. Davies, its counsel.
Local 174 alleges that, pursuant to discussions with
General Counsel's office, it had agreed not to enforce
the contractual provision which is subject to attack in
Case 19-CE-30 and had confirmed such agreement
by letters to the Regional Director and Respondent
dated August 22, 1975. Local 174 further alleges that
it had been prepared to file a timely answer but did
not do so upon advice of Regional personnel that the
Board's Rules and Regulations neither provided for
nor required an answer from a party in interest. Fi-
nally, Local 174 asserts that when the General
Counsel's motion for summary judgment was re-
ceived, the answer previously prepared was immedi-
ately filed.
Thereafter, on November 3, 1975, the Charging
Party filed a motion to strike the Party in Interest's
answer and response to the General Counsel's mo-
tion, and on Novermber 11, 1975, filed a motion to
strike answer of Respondent, supporting brief and
response to opposition of Party in Interest.
Subsequently, on November 12, 1975, the Board
issued an order transferring the proceeding to the
Board and a notice to show cause why the General
Counsel's and/or the Charging Party's motions
should or should not be granted. In response thereto,
the Party in Interest on November 26, 1975, filed a
response to notice to show cause why motions of
General Counsel and Charging Party should not be
granted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
the respondent shall state in the answer that he
is without knowledge, shall be deemed to be ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The consolidated complaint and notice of hearing
served on the Respondent specifically stated that un-
less an answer was filed to the complaint within 10
days from the service thereof "all of the allegations in
said Complaint shall be deemed to be admitted to be
true and may be so found by the Board." Further,
according to the motion for summary judgment,
counsel for the General Counsel "on at least three
occasions since September 15, 1975 . . . . discussed
the need for prompt compliance with the require-
ment for filing an Answer with representatives of Re-
spondent." Several efforts have also been undertak-
en, in writing, to obtain the parties' agreement to an
informal settlement or a stipulation to the facts.
However, Respondent's representatives have repeat-
edly indicated that they are awaiting concurrence of
counsel for Local 174 before taking any responsive
action.
In our judgment, the Respondent has not ade-
quately explained its failure to timely answer the
complaint. The filing of a short answer is not so bur-
densome a task so as to justify the almost 2-month
delay present here. By filing an answer, Respondent
would have been able to protect its rights under the
Act. Its failure to protect these rights may not be
justified on the grounds that another party has not
yet taken the steps necessary to safeguard its rights.
As the Respondent has not filed an answer within
10 days from the service of the complaint, and as no
good cause to the contrary has been shown, in accor-
dance with the rule set forth above, the allegations of
the complaint are deemed to be admitted to be true
and are so found.
On the basis of, the entire record, the Board makes
the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegations in the complaint not specifically
denied or explained in an answer filed, unless
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times mate-
rial to this action a Washington corporation with of-
fice and place of business located in King County,
Washington. It is engaged in the wholesale grocery
business. Respondent, during the past 12 months,
which period is representative of all times material to
this cause of action, in the course and conduct of its
business operations, purchased and caused to be
transferred and delivered to its King County, Wash-
ington, facility goods and materials valued at in ex-
ASSOCIATED GROCERS, INC.
cess of $50,000, which were transported to said facili-
ty directly from States other than the State of Wash-
ington. -
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material to this
action, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effecutate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 741 and Local 174 are, and have been at all
times material herein , labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about April 1, 1974, Respondent and Local
174 entered into a written contract containing the
following clause:
21.06 All loading and unloading of trucks or
any similar equipment by any mechanical de-
vices, or hand trucks or without mechanical de-
vices shall be done by members of Teamsters
Local Union No. 174 bargaining unit only. In
the event the Employer fails to conform with
this Section of the Agreement, the Union is free
to take any economic action against such Em-
ployer it deems necessary and such action shall
not be considered a violation of this Agreement.
At all times material herein Respondent has con-
tinued and is now continuing to give effect to the
aforesaid contract clause by enforcing its provisions
which Respondent and Local 174 interpret to pre-
clude the employment of persons who are not mem-
bers of Local 174 by employers other than Respon-
dent at Respondent's facility.
Accordingly, we find that, by enforcing the afore-
said contract clause so as to apply to work done by
employees of employers other than Respondent for
such other employers, Respondent has ceased or re-
frained, or has agreed to cease or refrain from han-
dling, using, selling, transporting, or otherwise deal-
ing in the products of other employers, and has
ceased or has agreed to cease doing business with
other persons, and thereby has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(e) of the Act.
On or about August 1, 1975, Local 741 dispatched
three individuals to unload trucks at Respondent's
facility pursuant to telephone requests from employ-
ers other than Respondent, as follows: employee
Craig Vanuick, who was requested by C & M Truck-
693
ing; and employees Doug Bagnell and John Redling-
er, who were requested by Melhauf Trucking. The
foregoing employees were intercepted by
Respondent's security personnel at the yard gate,
pursuant to instructions from Respondent's duly au-
thorized agents, and were refused permission to go
into the yard area to report to the employers who had
called for them because said employees were not
members of Local 174.
Accordingly, we find that, by the aforesaid con-
duct, the Respondent interfered with, restrained, and
coerced such employees in the exercise of their rights
guaranteed under Section 7 of the Act, and that, by
such conduct, the Respondent thereby engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices violative of Section 8(e) of
the Act, we shall order that it cease and desist there-
from and take certain affirmative action in order to
effectuate the policies of the Act. Also, we shall order
that Respondent cease and desist from entering into,
maintaining, giving effect to, or enforcing clause
21.06 of its written agreement with Teamsters Local
174, to the extent found unlawful herein.
Having found that the Respondent interfered with
the Section 7 rights of employees Craig Vanuick,
Doug Bagnell, and John Redlinger, we, shall order
that the Respondent make them whole for any loss
by payment to them of sums of money equal to the
amount they normally would have earned but for
Respondent's unlawful conduct in accordance with
the formulas set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAw
1. Respondent, Associated Grocers, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Party in Interest, General Teamsters Union Lo-
cal No. 174, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section
8(e) of the Act.
3. By entering into and maintaining clause 21.06
of its written contract with General Teamsters Union
Local No. 174, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, Respondent has engaged in unfair labor
practices within the meaning of Section 8(e) of the
Act.
4. By intercepting employees Craig Vanuick,
Doug Bagnell, and John Redlinger at the
Respondent's yard gate and refusing them permis-
sion to report to the 'employers who had called for
them because said employees were not members of
Local 174, Respondent thereby interfered with, re-
strained, and coerced such employees in the exercise
of their rights guaranteed by Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce 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, As-
sociated Grocers, Inc., King County, Washington, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Entering into, maintaining, giving effect to, or
enforcing clause 21.06 in its written contract with
General Teamsters Union Local No. 174, to the ex-
tent found unlawful herein.
(b) Intercepting employees Craig Vanuick, Doug
Bagnell, and John Redlinger or any other employees
at the Respondent's yard gate and refusing them per-
mission to report to the employers who had called
them because they are not members of General
Teamsters Union Local No. 174.
(c) In any like or related manner infringing upon
the rights of employees guaranteed by Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole employees Craig Vanuick, Doug
Bagnell , and John Redlinger for any loss of pay each
of them may have suffered by reason of the discrimi-
nation against them in the manner set forth in the
section entitled "The Remedy."
(b) Post at its King County, Washington, facility
copies of the attached notice marked "Appendix." I
Copies of said notice, on forms provided by the Re-
gional Director for, Region 19, after being duly
signed by Respondent's representative, shall be post-
ed 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 Respondent- to
insure that said notices -are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
1 In the event that 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 "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain, give effect
to, or enforce clauses in our written contract
with General Teamsters Union Local No. 174,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or with any other labor organization to the ex-
tent that they violate Section 8(e) of the Nation-
al Labor Relations Act, as amended.
WE WILL NOT intercept employees of other em-
ployers at our yard gate and refuse them per-
mission to report to the employers who had
called them because said employees are not
members of General Teamsters Union Local
No. 174.
WE WILL NOT in any like or related manner
infringe upon the rights of employees guaran-
teed by Section 7 of the Act.
WE WILL make whole employees Craig Van-
uick, Doug Bagnell, and John Redlinger for any
loss of pay each of them may have suffered by
reason of the discrimination against them.
ASSOCIATED GROCERS, INC.