M.D.I. Trucking Corp.

National Labor Relations Board - Board DecisionsNov 12, 1974

214 N.L.R.B. 898 (N.L.R.B. 1974)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M.D.I. Trucking Corporation and Drivers Lease Cor- poration and David L. Huff, Sr. Case 6-CA-7379 November 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge and amended charge filed on March 28, 1974, and June 26, 1974, by David L. Huff, Sr., hereafter called Charging Party, and duly served on M.D.I. Trucking Corporation and Drivers Lease Corporation, hereafter called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint on June 28, 1974, alleging that Respon- dent, a single integrated corporation, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) 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. With respect to the unfair labor practices, the com- plaint alleges that Respondent, at its Washington, Pennsylvania, facility, has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act by promis- ing them benefits, threatening employees with a re- duction of work, and encouraging employees to form an independent union and offering to assist in the formation thereof, all in order to discourage employ- ees' membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 800, hereafter the Team- sters. The complaint further alleges that on or about March 22, 1974, Respondent transferred work from M.D.I. Trucking Corporation to Drivers Lease Cor- poration, thereby reducing work opportunities for employees of M.D.I. Trucking Corporation, and dis- charged and/or constructively discharged the Charg- ing Party and has failed and refused to reinstate him, because of concerted activities with employees for the purpose of collective bargaining and other mutu- al aid and protection, and in order to discourage membership in the Teamsters. Although duly served, Respondent has not filed an answer to the complaint. On August 12, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based on Respondent's failure and refusal to file an answer to the complaint. On August 26, 1974, the Board issued an Order postpon- ing the hearing, transferring the proceedings before it, and a Notice To Show Cause why the General Counsel's Motion should not be granted. No re- sponse has been filed. 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 provides: 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 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 complaint and notice of hearing served on the Respondent herein specifically states that unless an answer to the complaint was filed within 10 days of service thereof, "all of the allegations in the Com- plaint shall be deemed to be admitted by it to be true and may be so found by the Board." Further, ac- cording to the uncontroverted allegations of the Mo- tion for Summary Judgment, Respondent was ad- vised by letter of July 25, 1974, of its obligation to file an answer to the complaint, and that unless an answer was filed by July 31, 1974, the instant motion would be filed. Thereafter, it appears that counsel for the General Counsel and the Respondent orally agreed to an additional extension of time to answer until August 7, 1974. No answer was filed, and there is no response to the Notice To Show Cause contro- verting the above allegations. Accordingly, under the rule set forth above, and no good cause having been shown for the failure to file an answer, the allegations of the complaint are deemed admitted and are found to be true, and we shall grant the General Counsel's Motion for Sum- mary Judgment. On the basis of the entire record, the Board makes the following: 214 NLRB No. 134 M D.I. TRUCKING CORPORATION 899 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT M.D.I. Trucking Corporation, a New Jersey cor- poration, and Drivers Lease Corporation, a Pennsyl- vania corporation, are, and at all times material here- in have been, a single integrated business enterprise engaged in the interstate hauling of iron and steel products, with principal offices and place of business at Washington, Pennsylvania. Drivers Lease Corpo- ration is an alter ego of M.D.I. Trucking Corpora- tion. During the past 12-month period, Respondent has derived income in excess of $50,000 from the in- terstate transportation of goods and materials. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 assertjuris- diction herein. II. THE LABOR ORGANIZATION INVOLVED mutual aid and protection, and in order to discour- age membership in the Teamsters. Accordingly, we find that by the aforesaid conduct as set forth in sections III, A, and B, above, Respon- dent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and has discrimi- nated in regard to the terms and conditions of the employees' employment, and by such conduct Re- spondent 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 ON 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, inti- mate, 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 thereof. The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 800, is a labor organization within the meaning of Section 2(5) of the Act III. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Violations In and about the month of March 1974, Respon- dent, at its Washington, Pennsylvania, facility inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act by promising them benefits, threatening them with a reduction of work, and encouraging them to form an independent union and offering to assist in the formation thereof. B. The 8(a)(3) Violations On or about March 22, 1974, Respondent transfer- red work from M.D.I. Trucking Corporation to Driv- ers Lease Corporation, thereby reducing work oppor- tunities for M.D.I. Trucking Corporation employees, and on or about March 27, 1974, discharged and/or constructively discharged David L. Huff, Sr., and has failed and refused to reinstate him, and continues to fail and refuse to reinstate him, to his former or sub- stantially equivalent position of employment, be- cause of his concerted activities with other employees for the purpose of collective bargaining and other V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the pol- icies of the Act. We have found that Respondent committed unfair labor practices by interfering with the rights guaran- teed employees by Section 7 of the Act, and we shall order it to cease and desist therefrom. We have also found that Respondent discriminato- rily transferred work from M.D.I. Trucking Corpora- tion to Drivers Lease Corporation, and discriminato- rily discharged and/or constructively discharged em- ployee David L. Huff, and refused to reinstate or offer to reinstate said employee to his former posi- tion or, if it no longer exists, to a substantially equiv- alent position. We shall order that Respondent re- store the operation at M.D.I. Trucking Corporation to the status quo ante by returning such work from Drivers Lease Corporation to M.D.I. Corporation. We shall further order that Respondent offer em- ployee David L. Huff reinstatement to his former po- sition or, if it no longer exists, to a substantially equivalent position, and that Respondent make said employee whole for any loss of earnings suffered be- cause of the discrimination against him. Backpay shall be based upon the earnings he would normally have received from the date of his discharge to the 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date of Respondent 's offer of reinstatement, less any net interim earnings , and shall be computed on the basis set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. M.D.I. Trucking Corporation and Drivers Lease Corporation is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 800, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III above, Re- spondent has interfered with, restrained, coerced, and discriminated against employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. 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 Re- lations Board hereby orders that the Respondent, M. D.I. Trucking Corporation and Drivers Lease Corpo- ration, Washington, Pennsylvania, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Promising benefits to employees, threatening employees with a reduction in work, and encourag- ing employees to form an independent union and of- fering to assist in the formation thereof, in order to discourage membership in the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 800, or any other labor organization. (b) Transferring work from M.D.I. Trucking Cor- poration to Drivers Lease Corporation, thereby re- ducing work opportunities for employees of M.D.I. Trucking. (c) Discouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers, Local Union 800, or any other la- bor organization, by discriminating in regard to the hire and tenure of employees or any term or condi- tion of their employment. (d) In any other manner interfering with, restrain- Ing, or coercing employees in the exercise of their rights under Section 7 of the Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Restore the work that was transferred from M. D.I. Trucking Corporation to Drivers Lease Corpo- ration on or about March 22, 1974, to M.D.I. Truck- ing Corporation. (b) Offer David L. Huff, Sr., immediate and full reinstatement to his former position or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of pay suf- fered as a result of the discrimination against him in the manner set forth in the section entitled "The Remedy." (c) 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 Decision and Order. (d) Post at its Washington, Pennsylvania, facility copies of the attached notice marked "Appendix." ' Copies of said notice, on forms provided by the Re- gional Director for Region 6, after being duly signed by Respondent's authorized 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) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. ' 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 promise benefits to employees, threaten employees with a reduction of work, or M.D.I. TRUCKING CORPORATION encourage employees to form an independent union and offer to assist in the formation thereof in order to discourage membership in the Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union 800, or any other labor organization. WE WILL NOT transfer work from M.D.I. Trucking Corporation to Drivers Lease Corpo- ration , thereby reducing work opportunities for employees of M.D .I. Trucking. WE WILL NOT discourage membership in the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers , Local Union 800, or any other labor organization , by discrim- inating in regard to the hire and tenure of em- ployees or any term or condition of their em- ployment. WE WILL NOT in any other manner interfere with , restrain , or coerce employees in the exer- 901 cise of their rights under Section 7 of the Act, as amended. WE WILL restore the work that was transferred from M . D.I. Trucking Corporation to Drivers Lease Corporation on or about March 22, 1974, to M.D . I. Trucking Corporation. WE WILL offer to David L . Huff, Sr., immedi- ate and full reinstatement to his former position or, if it no longer exists , to a substantially equiv- alent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay suffered as a result of the discrimination against him in the manner set forth in the section of the Board ' s Order entitled "The Remedy." M.D.I. TRUCKING CORPO- RATION AND DRIVERS LEASE CORPORATION