Phillips Brothers, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 718 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phillips Brothers, Inc. and Teamsters, Chauffeurs
and Helpers Union Local No. 43, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 30-CA-5945
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on July 23, 1980, Teamsters,
Chauffeurs and Helpers Union Local No. 43, affili-
ated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on Phillips Brothers, Inc., herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Acting Regional Director
for Region 30, issued a complaint on August 22,
1980, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and complaint, and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding. Re-
spondent failed to file an answer to the complaint.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about
May 30, 1980, Respondent ceased business at its
Kenosha, Wisconsin, location and laid off its sales
people without notice to the Union and without
having afforded the Union the opportunity to ne-
gotiate and bargain over this action.
On September 25, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment
should not be granted. Respondent failed to filed a
response the to Notice To Show Cause and, ac-
cordingly, the allegations of the Motion for Sum-
mary Judgment stand uncontroverted.
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:
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:
254 NLRB No. 86
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. 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 states that unless an answer
to the complaint is filed by Respondent within 10
days from the service thereof "all of the allegations
contained in the complaint shall be deemed to be
admitted to be true and shall be so found by the
Board." Further, on September 10, 1980, in a letter
sent by certified mail, Respondent was advised by
counsel for the General Counsel that the Board
had not yet received an answer to the complaint;
and that counsel for the General Counsel would
file a motion for summary judgment if an answer
was not filed by the close of business on September
19, 1980. No answer was received by September
25, 1980, the date of the Motion for Summary
Judgment. Nor did Respondent reply to the Notice
To Show Cause.
Accordingly, under the rule set forth above, no
good cause having been shown for Respondent's
failure to file an answer, the allegations of the com-
plaint are deemed admitted and are found to be
true. We therefore grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation with its
office and principal place of business in Kenosha,
Wisconsin, has been engaged in the wholesale sale
of tobacco and related products. During the calen-
dar year ending December 31, 1979, Respondent
purchased and received goods valued in excess of
$50,000 directly from points located outside the
State of Wisconsin.
We find, on the basis of the foregoing, that Re-
spondent 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
718
PHILLIPS BROTHERS INC.
that it will effectuate the policies of the Act to
assert jurisdiction herein.
11. THE I.ABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs and Helpers Union Local
No. 43, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
All employees of Respondent located at 9037
Sheridan Road, Kenosha, Wisconsin, but ex-
cluding gift house employees, office clerical
and professional employees, guards and super-
visors as defined in the Act.
The Union has been the collective-bargaining
representative of the employees in the above-de-
scribed unit at all times material herein and at least
since June 1, 1978, when it and Respondent execut-
ed a collective-bargaining agreement effective
through May 31, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. Shutdown of Kenosha Facility and Permanent
Layoff of Sales Employees Without Prior Notice
to the Union
On or about May 30, 1980, Respondent ceased
doing business at its Kenosha, Wisconsin, facility
and permanently laid off its sales employees. Re-
spondent engaged in said conduct without prior
notice to the Union and without affording the
Union an opportunity to negotiate and bargain
with it regarding the effects of such conduct. Ac-
cordingly, we find that Respondent has since May
30, 1980, and at all times thereafter, by said con-
duct, failed and refused to bargain collectively with
the Union as the exclusive representative of the
employees in the appropriate unit, and that, by
such failure and refusal, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
IV. THE REMEDY
Having found that Respondent violated Section
8(a)(5) and (1) of the Act by closing its Kenosha,
Wisconsin, facility, and by permanently laying off
its sales employees without prior notice to the
Union and without bargaining with the Union con-
cerning the effects of such action, we shall for the
purpose of effectuating the policies of the Act
order that it cease and desist from such unfair labor
practices and that it take certain affirmative action
including payment to the sales employees of wages,
with interest,' at the rate prevailing when last in
Respondent's employ from 5 days after the issu-
ance of our Order until the occurrence of the earli-
est of the following conditions: (1) the date Re-
spondent bargains to agreement with the Union on
the subjects pertaining to the effect of discontinua-
tion of its operations and layoff of sales employees;
(2) a bona fide impasse in bargaining; (3) the failure
of the Union to request bargaining within 5 days of
this Decision or to commmence negotiations within
5 days of Respondent's notice of its desire to bar-
gain with the Union; or (4) the subsequent failure
of the Union to bargain in good faith; but in no
event should the sum paid to any of these employ-
ees exceed the amount each would have earned as
wages from May 30, 1980, the date on which Re-
spondent terminated its Kenosha, Wisconsin, oper-
ations, to the time each sales employee secured
equivalent employment elsewhere, or the date on
which Respondent shall have offered to bargain,
whichever occurs sooner; provided, however, that
in no event should this sum be less than these sales
employees would have earned for a 2-week period
at the rate of their normal wages when last in Re-
spondent's employ.
CONCI.USIONS OF LAW
1. Phillips Brothers, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters, Chauffeurs and Helpers Union
Local No. 43, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All employees of Respondent, located at 9037
Sheridan Road, Kenosha, Wisconsin, but excluding
gift house employees, office clerical and profession-
al employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since June 1, 1978, the above-named labor or-
ganization has been and now is the recognized ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
i Sc 1 J WmIxJlworth Comnpany, 9 NIIRB 28 (1950),1 anld Florida
Sleel (orporation, 231 N.R 651 (1477) Se arso [is Pltnhirng & eatrng
Co., 138 N.RB 716( 1962)
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By ceasing to do business at its Kenosha, Wis-
consin, facility and permanently laying off its sales
employees without prior notice to the Union and
without affording the Union an opportunity to ne-
gotiate and bargain thereon, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By said failure and refusal to bargain as to the
shutdown and layoff, Respondent has interfered
with, restrained, and coerced, and is interfering
with, restraining, and coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act, and thereby has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. The said unfair labor practices are unfair labor
practices affecting commerce 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,
Phillips Brothers, Inc., Kenosha, Wisconsin, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Team-
sters, Chauffeurs and Helpers Union Local No. 43,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs and Helpers of America,
with respect to the effects of closing down Respon-
dent's Kenosha, Wisconsin, facility, and laying off
the sales employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain in good faith with the
aforesaid labor organization with respect to the ef-
fects of closing down the Kenosha, Wisconsin, fa-
cility and laying off the sales employees and, if an
understanding is reached, embody it in a signed
agreement.
(b) Pay the laid-off employees their normal
wages in the manner and for the period set forth in
the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Kenosha, Wisconsin, facility copies
of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 30, 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, de-
faced, or covered by any other material.
(e) Mail an exact copy of the attached notice
marked "Appendix," to Teamsters, Chauffeurs and
Helpers Union Local No. 43, affilated with the In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and to all
sales employees who were laid off as a result of the
closing of the Kenosha, Wisconsin, terminal.
Copies of said notice, on forms provided for the
Regional Director for Region 30, after being duly
signed by Respondent's authorized representative,
shall be mailed immediately upon receipt thereof,
as directed.
(f) Notify the Regional Director for Region 30,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
2 In the event hat 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National .abor 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 Teamsters, Chauffeurs and Helpers Union
Local No. 43, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, with re-
spect to the effects of closing our Kenosha,
Wisconsin, facility, and laying off our sales
employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
720
PHILLIPS BROTHERS, INC.
WE WILL, upon request, bargain collectively
with the above-named Union with respect to
the effects of closing our Kenosha, Wisconsin,
facility, and laying off our sales employees.
WE WILL pay the sales employees who were
employed at the Kenosha, Wisconsin, facility
their normal wages for a period required by a
Decision and Order of the National Labor Re-
lations Board.
PHILLIPS BROTHERS, INC.
721