F L Trucking Corp.

National Labor Relations Board - Board Decisions

Apr 25, 1994

313 N.L.R.B. 1172 (N.L.R.B. 1994)

1172
313 NLRB No. 199
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By letter dated September 15, 1993, the Charging Party, General
Chauffeurs, Sales Drivers and Helpers Local Union No. 179, affili-
ated with the International Brotherhood of Teamsters, AFL–CIO,
confirmed by letter that it had no objection to the proposed settle-
ment agreement.
F L Trucking Corporation and Frank Jackson and
General Chauffeurs, Sales Drivers and Helpers
Local Union No. 179, affiliated with the Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 13–CA–31286
April 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
Upon a charge filed by Frank Jackson, an individual,
on October 28, 1992, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
December 8, 1992, against F L Trucking Corporation,
the Respondent, alleging that it has violated Section
8(a)(1), (2), and (3) of the National Labor Relations
Act. On February 10 and March 16, 1993, respec-
tively, the Respondent filed an answer and a revised
answer to the complaint.
Thereafter, on September 16, 1993, the Respondent
entered into an informal settlement agreement which
was approved by the Regional Director for Region 13
on September 20, 1993.1 By letters dated September
27 and October 29, 1993, the Region requested the Re-
spondent to comply with the terms of the settlement
agreement by remitting payment to the three
discriminatees and returning copies of the signed no-
tices.
Thereafter, by letter dated November 29, 1993, in an
effort to secure compliance, the Region offered another
settlement stipulation to the Respondent which pro-
vided for a 6-month payment plan. The settlement stip-
ulation further provided that:
In consideration of the Board’s granting a pay-
ment plan, Respondent further agrees that in the
event of any non-compliance with any of the pro-
visions of paragraphs 2(a) through (d) of this Set-
tlement Stipulation, including but not limited to,
failure to timely make any monthly payment pur-
suant to the payment schedule, and after 15 days
notice from the Regional Director of the National
Labor Relations Board, on motion for summary
judgment by the General Counsel, the Answer of
the Charged Party shall be considered withdrawn.
Thereupon, the Board may issue an Order requir-
ing the Charged Party to Show Cause why said
Motion of the General Counsel should not be
granted. The Board may then, without necessity
of trail [sic], find all allegations of the Complaint
to be true and make findings of fact and conclu-
sions of law consistent with those allegations, ad-
verse to the Charge [sic] Party, on all issues
raised by the pleadings. The Board may then issue
an Order providing full remedy for the violations
so found as is customary to remedy such viola-
tions, including but not limited to the provisions
of the Settlement Agreement. The parties further
agree that a Board Order and a U.S. Court of Ap-
peals Judgment may be entered hereon ex parte.
On December 6, 1993, the Respondent entered into
this settlement stipulation (the settlement stipulation),
and the settlement stipulation was approved by the Re-
gional Director on December 16, 1993.
Thereafter, by letter dated December 20, 1993, the
Respondent was notified of the Regional Director’s ap-
proval of the settlement stipulation and was requested
to make its first payment by December 15, 1993. Sub-
sequently, on January 7, 1994, the Region again re-
quested the Respondent to comply with the settlement
stipulation by remitting the first payment which was
due on December 15, 1993. The letter further stated
that if ‘‘the default is not cured the Region will take
the legal action available pursuant to the terms of the
Settlement Agreement without further notice.’’ No
payment was thereafter received.
Thereafter, on March 23, 1994, the General Counsel
filed a Motion for Summary Judgment with the Board,
requesting, pursuant to the settlement stipulation, that
the Board find all allegations of the complaint to be
true and issue an appropriate remedial order. On
March 24, 1994, 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 Re-
spondent filed no response. The allegations in the mo-
tion 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
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted.
Here, according to the uncontroverted allegations in
the Motion for Summary Judgment, although the Re-
spondent initially filed an answer to the complaint, it
subsequently entered into a settlement stipulation
which provided for withdrawal of the answer in the
event of noncompliance with the settlement stipulation,
and such noncompliance has occurred. Accordingly,
we find that the Respondent’s answer has been with-
1173F L TRUCKING CORP.
drawn by the terms of the settlement stipulation, and
that, as further provided in the settlement stipulation,
all the allegations of the complaint are true.
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation,
with an office and place of business in Chicago, Illi-
nois, has been engaged in the interstate and intrastate
transportation of construction materials. During the 12-
month period ending December 31, 1991, the Re-
spondent, in conducting its business operations, pro-
vided services valued in excess of $50,000 for Elm-
hurst-Chicago Stone Company, an enterprise within the
State of Illinois.
At all material times Elmhurst-Chicago Stone Com-
pany, with an office and place of business in Elmhurst,
Illinois, has been engaged in the sale of construction
materials. During the 12-month period ending Decem-
ber 31, 1991, Elmhurst-Chicago Stone Company, in
conducting its business operations within the State of
Illinois purchased and received at its Elmhurst, Illinois
facility goods valued in excess of $50,000 directly
from points outside the State of Illinois and the Com-
pany is directly engaged in the interstate commerce.
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 organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On various dates between May and July 1992, at the
Respondent’s facility, the Respondent threatened its
employees with discharge because they had engaged in
union activities.
On a date between May and July 1992, at the Re-
spondent’s facility, the Respondent created an impres-
sion among its employees that their union activities
were under surveillance by the Respondent.
About July 17, 1992, at the Respondent’s facility,
the Respondent threatened its employees with dis-
charge because they had refused to engage in union ac-
tivities.
About July 26, 1992, at the Respondent’s facility,
the Respondent threatened its employees with dis-
charge because they had engaged in union activities;
created an impression among its employees that their
union activities were under surveillance by the Re-
spondent; and interfered with its employees by prohib-
iting them from speaking about the Union with other
employees.
About July 1992, at the Respondent’s facility, the
Respondent interfered with its employees by prohibit-
ing them from speaking about the Union with other
employees.
About July 1992, the Respondent, in a truck, threat-
ened its employees with discharge because they had
engaged in union activities, and created an impression
among its employees that their union activities were
under surveillance by the Respondent.
In about June or July 1992, the Respondent rendered
assistance and support to the Union by distributing
union authorization or membership cards to its em-
ployees, recognized the Union as the collective-bar-
gaining representative of a unit of employees who per-
form, inter alia, hauling and other miscellaneous
truckdriving functions (the unit), and executed a col-
lective-bargaining agreement with the Union covering
the unit which contained a union-security clause re-
quiring, among other things, that the Respondent’s em-
ployees in the unit join or become members of the
Union. The Respondent engaged in the foregoing con-
duct even though the Union did not represent an
uncoerced majority of the unit at the times specified.
About July 20, 1992, the Respondent suspended its
employee Frank Jackson, and about July 26, 1992, dis-
charged and has since failed to reinstate him. The Re-
spondent engaged in the foregoing conduct because
Jackson assisted the Union and engaged in other union
and protected concerted activities, and to discourage
employees from engaging in these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been interfering with, restraining, and co-
ercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (2), and (3) and Section
2(6) and (7) 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. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(1) and (2) of the Act by assisting, rec-
ognizing, and executing a collective-bargaining agree-
ment containing a union-security clause with the Union
notwithstanding that the Union did not represent an
uncoerced majority of the unit employees, we shall
order the Respondent: (1) to withdraw and withhold
recognition from the Union as the exclusive bargaining
representative of the unit, unless and until the Union
has been certified by the Board as the exclusive bar-
gaining representative of the unit; (2) to cease giving
effect to the collective-bargaining agreement it exe-
cuted with the Union, except that nothing here shall re-
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
quire the withdrawal or elimination of any wage in-
crease or other benefits or terms and conditions of em-
ployment that may have been established pursuant to
the performance of the agreement; and (3) to reimburse
all present and former employees who were coerced
into membership in the Union by virtue of the Re-
spondent’s distribution of union authorization or mem-
bership cards to the employees and by virtue of the
union-security clause contained in the collective-bar-
gaining agreement, for moneys paid or withheld from
them for initiation fees, dues, or other obligations of
membership, with interest computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB
1173 (1987).
In addition, having found that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by suspending,
discharging, and refusing to reinstate employee Frank
Jackson, we shall order the Respondent to offer Jack-
son immediate and full reinstatement to his former job,
or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and to
make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against him. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, supra. The Respondent shall also be required to
expunge from its files any and all references to the un-
lawful discharge, and to notify Jackson in writing that
this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, F L Trucking Corporation, Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge because
they had engaged in union activities; creating an im-
pression among its employees that their union activi-
ties were under surveillance by the Respondent; inter-
fering with its employees by prohibiting them from
speaking about the Union with other employees; and
rendering assistance and support to the Union by dis-
tributing union authorization or membership cards to
its employees.
(b) Recognizing General Chauffeurs, Sales Drivers
and Helpers Local Union No. 179, affiliated with the
International Brotherhood of Teamsters, AFL–CIO as
the exclusive bargaining representative of its employ-
ees who perform, inter alia, hauling and other mis-
cellaneous truckdriving functions (the unit) or execut-
ing a collective-bargaining agreement with the Union
covering the unit, unless and until the Union has been
certified by the National Labor Relations Board as the
exclusive bargaining representative of the unit.
(c) Suspending, discharging, or refusing to reinstate
employees because they assisted the Union or engaged
in other union or protected concerted activities, or to
discourage employees from engaging in such activites.
(d) 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) Withdraw and withhold recognition from the
Union as the bargaining representative of the unit,
cease giving effect to the collective-bargaining agree-
ment with the Union covering the unit, and reimburse
employees for all moneys paid by them for initiation
fees, dues, or other obligations of membership in the
Union, with interest, as provided in the remedy section
of this decision.
(b) Offer Frank Jackson immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the Respondent’s discrimination against him, with in-
terest, in the manner set forth in the remedy section of
this decision.
(c) Expunge from its records any reference to the
suspension and discharge of Frank Jackson and notify
him in writing that this has been done.
(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 Chicago, Illinois, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive 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.
1175F L TRUCKING CORP.
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 threaten employees with discharge be-
cause they have engaged in union activities; create an
impression among our employees that their union ac-
tivities are under surveillance by us; interfere with our
employees by prohibiting them from speaking about
the Union with other employees; or render assistance
and support to the Union by distributing union author-
ization or membership cards to employees.
WE WILL NOT recognize General Chauffeurs, Sales
Drivers and Helpers Local Union No. 179, affiliated
with the International Brotherhood of Teamsters, AFL–
CIO as the exclusive bargaining representative of its
employees who perform, inter alia, hauling and other
miscellaneous truckdriving functions (the unit) or exe-
cute a collective-bargaining agreement with the Union
covering the unit, unless and until the Union has been
certified by the National Labor Relations Board as the
exclusive bargaining representative of the unit.
WE WILL NOT suspend, discharge, or refuse to rein-
state employees because they assisted the Union or en-
gaged in other union or protected concerted activities,
or to discourage employees from engaging in such
activites.
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 withdraw and withhold recognition from
the Union as the bargaining representative of the unit,
cease giving effect to the collective-bargaining agree-
ment with the Union covering the unit, and reimburse
employees for all moneys paid by them for initiation
fees, dues, or other obligations of membership in the
Union, with interest.
WE WILL offer Frank Jackson immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for any
loss of earnings and other benefits suffered as a result
of our unlawful discrimination against him, with inter-
est.
WE WILL expunge from our records any reference to
the suspension and discharge of Frank Jackson and no-
tify him in writing that this has been done.
F L TRUCKING CORPORATION