Evans Express Co.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 655 (N.L.R.B. 1977)

EVANS EXPRESS COMPANY
Evans Express Company, Inc. and Intercontinental
Systems, Inc. and Local Union No. 617, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 22-CA-6897
September 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on April 2, 1976, and amended
on May 17, 1976, by Local Union No. 617, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Evans Express
Company, Inc. and Intercontinental Systems, Inc.,
herein collectively called the Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 22, issued a
complaint and notice of hearing on May 20, 1976,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5), (3), and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of
hearing before an Administrative Law Judge were
duly served on the parties to this proceeding.
On August 9, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment based upon Respondent's fail-
ure to file an answer as required by Section 102.20 of
the Board's Rules and Regulations, Series 8, as
amended. Subsequently, on July 5, 1977, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. On July 21, 1977, a response to the
Notice To Show Cause was filed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, 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.
Respondent's refusal to accept service of the complaint does not
invalidate service otherwise properly made and dtes not constitute good
232 NLRB No. 100
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any
allegation in the complaint not specifically denied
or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on
Respondent specifically state that, unless an answer
to the complaint is filed by Respondent within 10
days of service thereof, "all of the allegations
contained in the Complaint shall be deemed to be
admitted to be true and may be so found by the
Board." According to the uncontroverted allegations
of the Motion for Summary Judgment, Respondent
has failed and refused to accept service of the
complaint which was properly served on Respondent
by registered mail.' Furthermore, and as noted
above, Respondent has failed to file an answer to the
complaint.
According to the response to the Notice To Show
Cause, Evans Express Company, Inc. was adjudicat-
ed a bankrupt by the United States District Court for
the Southern District of New York in June 1976. The
response to the Notice To Show Cause was submit-
ted by an attorney who represents the trustee in
bankruptcy. The response claims that the trustee in
bankruptcy was not made a party to any action of
the Board, and that he has not received a copy of the
complaint or the Motion for Summary Judgment.
Furthermore, the response contends that any claims
against the bankrupt company must be filed with the
bankruptcy court, and, as the time for filing such
claims has long since expired, any person with a
claim must obtain an order from the court allowing
the filing of a late claim.
As indicated above, Respondent refused to accept
service of the complaint and notice of hearing. While
not alleged as a reason why an answer to the
complaint was not filed, we would not, as noted
above, find this to be sufficient reason for failure to
file an answer. Furthermore, the response to the
Notice To Show Cause does not deny the commis-
sion of any unfair labor practices by Respondent.
and, therefore, the allegations of the complaint stand
uncontroverted. The response claiming bankruptcy
does not explain why Respondent failed to contact
cause for failure to file an answer to the complaint. Robert Brandis andJohn
Brandsr, a Partnership d b la Brandis Aireraft, 195 NLRB 711 (1972)
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Office of the Board concerning the
items properly served on it and the necessity for
action on its part. We find that the response to the
Notice To Show Cause does not constitute good
cause for Respondent's failure to file a timely answer
within the meaning of Section 102.20 of the Board's
Rules and Regulations. 2 Therefore, in accord with
the rule set forth above, the allegations of the
complaint are deemed to be admitted and are so
found by the Board, and the General Counsel's
Motion for Summary Judgment is granted.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Evans Express Company, Inc. and Intercontinental
Systems, Inc., herein collectively referred to as the
Respondent, are corporations duly organized under
and existing by virtue of the laws of the State of New
York. Evans and Intercontinental maintain their
principal offices and places of business in Schenecta-
dy, New York, and in New York, New York,
respectively, where they are engaged in the business
of providing common carrier trucking and related
services. To this end, Respondent maintains trucking
terminals in New York and New Jersey, including a
terminal in Hoboken, New Jersey.
Evans and Intercontinental are, and at all times
material herein have been, affiliated business enter-
prises with common ownership and officers, integrat-
ed operations, and common labor relations policies,
and therefore constitute a single integrated business
enterprise. They shall be treated as a single employer
for the purposes of the Act.
Respondent has, during the past 12 months, which
period is representative of its operations at all times
material herein, provided common carrier trucking
services valued in excess of $50,000, of which services
valued in excess of $50,000 were provided and
performed outside the State of New York.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 617, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
2 In this regard, see The Monroe Furniture Cornmpany, Inc., 231 NLRB 143
(1977).
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8(a)(5) and (I) Violations
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 employees employed at the Respondent's
Hoboken, New Jersey, terminal, including drivers
and warehousemen, but excluding office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
On or before 1973, a majority of the employees in
the above-described unit designated the Union as
their representative for the purposes of collective
bargaining with Respondent. At all times material
herein and continuing to date, Respondent and the
Union have been parties to a collective-bargaining
agreement governing wages, hours, and other terms
and conditions of employment of the bargaining unit
employees. Since on or about December 1, 1975, and
continuing to date, Respondent has failed and
refused, and continues to fail and refuse, to bargain
in good faith with the Union as the exclusive
bargaining representative of the unit employees.
Additionally, on or about December 5, 1975,
Respondent unilaterally changed the wages, hours,
and other terms and conditions of employment of
unit employees by unilaterally transferring the work
that had been performed by unit employees at the
Hoboken, New Jersey, terminal to other of its places
of business without notice to and without bargaining
about such transfer with the Union.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has (1) since on or about Decem-
ber 5, 1975, unilaterally changed the terms and
conditions of unit employees without bargaining with
the Union; and (2) since on or about December I,
1975, refused to bargain with the Union as the
exclusive representative of the employees in the
appropriate bargaining unit. By such actions, we
conclude that Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(aX5) and (1) of the Act.
B. The 8(a)(3) and (1) Violations
On or about December 5, 1975, Respondent
discharged the following employees employed at its
656
EVANS EXPRESS COMPANY
Hoboken, New Jersey, terminal because said em-
ployees are members of or assisted the Union or
engaged in other concerted activities for the purposes
of collective bargaining or for other mutual aid and
protection:
Donald Banks
Robert Black
Garry Boomhower
Carmen DeSomma
Thomas Elliassen
Louis Ihle
Keith Manalio
Thomas Marnin
Arthur Sconfienza
Elias Watkins
Walter Wilgocki
At all times since on or about December 5, 1975,
Respondent has failed and refused, and continues to
fail and refuse, to reinstate the above-named employ-
ees to their former positions or, if such positions no
longer exist, to substantially equivalent positions.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has discriminated in regard to the
terms and conditions of employment of its employ-
ees, thereby discouraging membership in the Union,
and that by such conduct Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
v. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5), (3), and (1) of the Act, we
shall order that Respondent cease and desist there-
from and take certain affirmative action designed to
effectuate the policies of the Act.
Such affirmative action shall include that Respon-
dent, upon request, meet and bargain with the Union
as the exclusive representative of its employees, and
that it shall cease and desist from unilaterally
transferring unit work or otherwise making unilateral
changes in its employees' terms and conditions of
employment without consulting with the Union.
Additionally, we shall order Respondent to restore
the status quo ante by reinstituting the work of its
:' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1%962).
Hoboken drivers and warehousemen and by offering
the terminated bargaining unit employees reinstate-
ment to the positions which they held prior to their
unlawful termination, or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges. We shall also order Respondent to make
the unlawfully discharged employees whole for any
loss of earnings they may have suffered because of
the discrimination against them, to be computed in
accordance with the formula approved in F W.
Woolworth Company, 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). 3
Having found that the unfair labor practices
committed by Respondent were of a character which
goes to the very heart of the Act, we shall also order
Respondent to cease and desist from infringing in
any other manner upon the rights of employees
guaranteed by Section 7 of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Evans Express Company, Inc. and Interconti-
nental Systems, Inc., constitute a single integrated
operation which is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Union No. 617, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent at its
Hoboken, New Jersey, terminal, including drivers
and warehousemen, but excluding office clerical
employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive representative of all the employees
in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By the acts described in section III, A, above,
Respondent has refused to bargain collectively in
good faith with the above-named labor organization
as the exclusive bargaining representative of all the
employees in the appropriate bargaining unit de-
scribed above, and thereby has engaged in unfair
labor practices in violation of Section 8(a)(5) and ( )
of the Act.
657
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By the acts described in Section III, B, above,
Respondent has discriminated in regard to hire and
tenure of employment of its employees, thereby
discouraging membership in or activities on behalf of
a labor organization, and thereby has engaged in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
Evans Express Company, Inc. and Intercontinental
Systems, Inc., Hoboken, New Jersey, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local
Union No. 617, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of Respondent's employees in the appropriate
unit with respect to wages, hours, and other terms
and conditions of employment.
(b) Unilaterally transferring unit work or otherwise
unilaterally changing the wages, hours, and other
terms and conditions of employment of unit employ-
ees without notice to and bargaining with their duly
designated collective-bargaining representative. The
appropriate unit is:
All employees employed at the Respondent's
Hoboken, New Jersey, terminal, including drivers
and warehousemen, but excluding office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
(c) Discharging employees or otherwise discrimi-
nating against them with respect to their tenure of
employment or any term or condition of employment
because of their membership in, support of, or
activities on behalf of the above-named labor
organization, or any other labor organization.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Reinstitute and restore the work previously
performed by its Hoboken, New Jersey, drivers and
warehousemen represented by Local Union No. 617,
a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
(b) Bargain collectively with Local Union No. 617,
a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the
exclusive representative of Respondent's employees
in the appropriate unit described above with respect
to wages, hours, and other terms and conditions of
employment.
(c) Offer to reinstate Donald Banks, Robert Black,
Garry Boomhower Carmen DeSomma, Thomas
Elliassen, Louis Ihle, Keith Manalio, Thomas Mar-
nin, Arthur Sconfienza, Elias Watkins, and Walter
Wilgocki to their former jobs, or, if such jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any losses
they may have suffered by reason of the discrimina-
tion against them as set forth in the section of this
Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, 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 terminal in Hoboken, New Jersey,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly
signed by Respondent's representative, shall be
posted 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
4 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 refuse to bargain collectively with
Local Union No. 617, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive repre-
658
EVANS EXPRESS COMPANY
sentative of all employees employed by the
Employer at its Hoboken, New Jersey, terminal,
including drivers and warehousemen, but exclud-
ing office clerical employees, professional em-
ployees, guards, and supervisors as defined in the
Act.
WE WILL NOT unilaterally transfer unit work or
otherwise unilaterally change the wages, hours,
and other terms and conditions of employment
for the employees in the appropriate unit de-
scribed above without notice to and bargaining
with the exclusive collective-bargaining represen-
tative of our employees.
WE WILL NOT discharge employees or otherwise
discriminate against them with respect to their
tenure of employment or any term or condition of
employment because of their membership in,
support of, or activities on behalf of the above-
named labor organization or any other labor
organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights as guaranteed to them in
Section 7 of the Act.
WE WILL reinstitute and restore the work
previously performed by our Hoboken, New
Jersey, drivers and warehousemen in the appro-
priate unit represented by Local Union No. 617,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America.
WE WILL bargain collectively with Local Union
No. 617, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive bargaining
representative of our employees in the appropri-
ate unit with respect to wages, hours, and other
terms and conditions of employment.
WE WILL offer to Donald Banks, Robert Black,
Garry Boomhower, Carmen DeSomma, Thomas
Elliassen, Louis Ihle, Keith Manalio, Thomas
Marnin, Arthur Sconfienza, Elias Watkins, and
Walter Wilgocki reinstatement to their former
jobs, or, if such jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
make them whole for any losses they may have
suffered by reason of our discrimination against
them, plus interest.
EVANS EXPRESS
COMPANY, INC. AND
INTERCONTINENTAL
SYSTEMS, INC.
659