Frate Service, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1981

255 N.L.R.B. 163 (N.L.R.B. 1981)

FRATE SERVICE, INC. 163
Frate Service, Inc. and Thomas R. Moore, Sr., and
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
Local Union #627. Cases 33-CA-4193, 33-
CA-4256, and 33-CA-4911
March 20, 1981
DECISION AND ORDER
On March 26, 1979, Thomas R. Moore, Sr.
(hereinafter called Moore), a Charging Party
herein, filed a charge in Case 33-CA-4193 against
Frate Service, Inc. (hereinafter called Respondent),
alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (hereinafter called
the Act).
On April 27, 1979, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union #627 (hereinafter called
the Union), a Charging Party herein, filed charges
in Case 33-CA-4256 against Respondent alleging
violations of Section 8(a)(1), (3), and (5) of the Act;
and on July 13, 1979, filed an amended charge
against Respondent alleging further violations of
Section 8(a)(1) and (5) of the Act.
Thereafter, under the direction of the Regional
Director for Region 33, an investigation of the alle-
gations set forth in the charges set out above was
conducted.
On June 19, 1979, the Regional Director issued a
complaint and notice of hearing in Case 33-CA-
4256. On July 2, 1979, Respondent filed an answer
to the complaint admitting in part, but denying in
part, certain allegations of the complaint.
The Regional Director on August 31, 1979,
issued an order consolidating cases, consolidated
complaint, and notice of hearing in Cases 33-CA-
4256 and 33-CA-4193.
Respondent on September 14, 1979, filed an
answer to the consolidated complaint admitting
certain allegations and denying others. Specifically,
Respondent alleges that employee Moore was dis-
charged for good cause related solely to his work
as a truckdriver. Respondent also denies that it had
voluntarily recognized the Union, but states that it
was coerced into such recognition. Finally, Re-
spondent denies that the Union had ever requested
that Respondent bargain collectively with the
Union with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment as the exclusive bargaining representative
of all drivers and driver-helpers, with statutory ex-
clusions, employed by Respondent at its East
Peoria, Illinois, facility. Respondent therefore asks
that the consolidated complaint be dismissed.
On October 19, 1979, the Regional Director ap-
proved separate bilateral informal Settlement
255 NLRB No. 23
Agreements in Cases 33-CA-4193 and 33-CA-
4256, thereby withdrawing the complaints previ-
ously issued in said cases.
The Union on June 23, 1980, filed a charge
against Respondent in Case 33-CA-4911, alleging
violations of Section 8(a)(1) and (5) of the Act, and
on July 31, 1980, filed a first amended charge in
said case, effectively withdrawing some portions of
the original charge filed on June 23, but continuing
to allege that Respondent, since December 28,
1979, and continuing to date, has refused to bargain
in good faith by repudiating the collective-bargain-
ing agreement with Local 627, has repudiated its
obligation to make contributions to the health, wel-
fare, and pension funds, and has refused to provide
information necessary to administer the collective-
bargaining agreement, allegations previously con-
tained in Case 33-CA-4256.
Thereafter the Regional Director caused an in-
vestigation of the allegations to be conducted of
said charges, and, on July 31, 1980, the Regional
Director issued an order withdrawing approval of
settlement agreements, consolidating cases, consoli-
dated complaint, and notice of hearing in cases 33-
CA-4193, 33-CA-4256, and 33-CA-4911. Re-
spondent did not file an answer to the consolidated
complaint of July 31, 1980.
Thereafter, on October 22, 1980, counsel for the
General Counsel filed directly with the Board a
Motion for Summary Judgment, with exhibits at-
tached, requesting issuance of a Board Order based
on the allegations of the complaint. On November
3, 1980, the Board issued its order transferring the
proceeding to the Board and Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. No re-
sponse to the Notice To Show Cause has been re-
ceived by the Board.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In the Motion for Summary Judgment herein,
counsel for the General Counsel avers that Re-
spondent has failed to file an answer to the order
withdrawing approval of the settlement agreement,
consolidated cases, consolidated complaints, and
notice of hearing; and that under Section 102.20 of
the Board's Rules and Regulations, Series 8, as
amended, the Board should find the allegations of
the complaint to be true and issue an order based
upon such findings. However, as the Motion for
Summary Judgment correctly sets forth, Respond-
ent did in fact file an answer to the original com-
plaint and notice of hearing issued June 19, 1979,
and it also filed an answer to the consolidated com-
FRATE SERVICE, INC.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint and notice of hearing issued on August 31,
1979. In both answers, Respondent denied the com-
mission of any unfair labor practices. As noted
above, the substantive allegations of the consoli-
dated complaint are substantially the same as those
contained in the consolidated complaint issued on
July 31, 1980. Thus, Respondent has in fact an-
swered those allegations, and, in doing so, has
denied the commission of any unfair labor prac-
tices, has alleged affirmative defenses, and has
thereby raised litigable issues. In our view, granting
a motion for summary judgment pursuant to Sec-
tion 102.20 of the Board's Rules, in the cases in-
volving the same parties and allegations to which
answers have been filed by the respondent, is not
appropriate in the circumstances here present.' We
shall therefore deny the motion.
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment in the above-cap-
tioned proceeding be, and it hereby is, denied.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the
Regional Director for Region 33 for further appro-
priate action.
i Atlantic Business and Community Development Corporation, d/b/a
WUSS Radio, 236 NLRB 1529 (1978); E. E Sousa. Inc., d/b/a Notting-
ham Restaurant, 243 NLRB 567 (1979).