Midwestern Distribution Services, Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1981

256 N.L.R.B. 1131 (N.L.R.B. 1981)

MII)WIESl'ERN I)IS'RIB II)N S'RVICE-S, INC 1131
Midwestern Distribution Services, Inc. and Delbert
W. Heath. Case 17-CA-9917
July 6, 1981
DECISION AND ORDER
Upon a charge filed on September 15, 1980, by
Delbert W. Heath, an Individual, and duly served
on Midwestern Distribution Services, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 17, issued a complaint on Octo-
ber 31, 1980, against Respondent, alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (3) 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 pro-
ceeding. Respondent failed to file an answer to the
complaint.
On March 23, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, On March 27,
1981, the Board issued an 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. Respondent
failed to file a response to the Notice To Show
Cause and therefore the allegations of the Motion
for Summary Judgment stand uncontroverted.
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 provides as follows:
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 al-
leged in the complaint, unless the respondent is
without knowledge, in which case the re-
spondent shall so state, such statement operat-
ing as a denial. All allegations in the com-
plaint, if no answer is filed, or any allegation
in the complaint not specifically denied or ex-
plained in an answer filed, unless the respond-
ent 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 specifically
states that unless an answer to the complaint is
filed within 10 days from the service thereof, "all
256 NLRB No. 172
of the allegations contained in the Complaint shall
be deemed to be admitted to be true and may be so
found by the Board." As of the date of filing of the
Motion for Summary Judgment, no answer had
been filed by Respondent. I Furthermore, Respond-
ent has failed to file a response to the Notice To
Show Cause in which it could have attempted to
explain its failure to answer.
In view of Respondent's failure to answer, and
no good or other cause having been shown there-
for, the uncontroverted allegations of the complaint
are deemed admitted and found to be true in ac-
cordance with the rule set forth above. According-
ly, we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, at all
times material herein has maintained its principal
office and place of business at 806 Gennessee,
Kansas City, Missouri, where it has engaged in the
transportation and delivery of merchandise. Re-
spondent's Kansas City place of business is its only
facility involved in this proceeding. In the 12
months preceding issuance of the complaint, Re-
spondent, in the course of its business operations
within the State of Missouri, sold goods and serv-
ices valued in excess of $50,000 directly to custom-
ers located outside the State of Missouri, and sold
goods and services valued in excess of $50,000 to
customers located within the State of Missouri who
in turn satisfy the Board's direct jurisdictional
standards. Respondent, also, in the 12 months pre-
ceding the issuance of the complaint, in the course
and conduct of furnishing transportation of com-
modities in interstate commerce or functioning as
an essential link in the transporation of commod-
ities in interstate commerce, derived gross revenues
in excess of $50,000, and, in the course and con-
duct of functioning as a link in the interstate tran-
sporation of commodities, derived gross revenues
in excess of $50,000, and provided services valued
in excess of $50,000 to firms which satisfy the
Board's direct jurisdictional standards.
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
()n February 12 and March II. 1981. the General Counsel mailed let-
ters to Respondent informing it of the requirement to file an answer, and
on the latter date also served a copy of the March 11 letter and a copy of
the complaint on Respondent. The March I I letter extended the time to
answer to March 18. 1981 On March 16, Respondent's attorney ac-
knowledged receipt of the complaint ;and urged that summary judgment
be entered No answer was filed
1132 DECISIONS OF NATIONAL ABOR RELATIONS BOARD
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
Allied Services Division, Brotherhood of Rail-
way and Airline Clerks, AFL-CIO, herein called
the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein, Respondent and the
Union have maintained in effect and enforced a
collective-bargaining agreement covering wages,
hours, and other terms and conditions of employ-
ment of certain employees of Respondent at Re-
spondent's Kansas City terminal. On or about June
14, 1980, Respondent's employee, Delbert Heath,
claimed that Respondent was not paying its dock
employees the correct wage and was not paying its
truckdrivers for showup time, both in violation of
the collective-bargaining agreement. On or about
June 21, 1980, Respondent, acting through M. L.
Starnes, at the terminal, threatened to lay off Heath
because of his support for the Union and because
of his claims made on or about June 14 that Re-
spondent was violating the collective-bargaining
agreement. On or about June 29, 1980, Respondent
laid off Heath because Heath had claimed that Re-
spondent had violated the collective-bargaining
agreement and in order to discourage employees
from engaging in such activities or other concerted
activities for the purposes of collective bargaining
or other mutual aid or protection. On or about
August 26, 1980, Respondent recalled Heath. On or
about August 28, 1980, Heath stated that he would
file a grievance with the Union because Respond-
ent was not following seniority in assigning work
in accordance with the collective-bargaining agree-
ment. On or about September 8, 1980, Respondent
discharged Heath and since that date has failed and
refused to reinstate Heath to his former position of
employment because Heath had on or about June
14, 1980, made claims that Respondent was acting
in violation of the collective-bargaining agreement,
and on or about August 28, 1980, stated that he
would file a grievance with the Union because Re-
spondent was not following seniority in assigning
work in accordance with the collective-bargaining
agreement, and in order to discourage employees
from engaging in such activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.
Accordingly, we find that, by Respondent's con-
duct on or about June 21, 1980, of threatening to
lay off Heath, Respondent has interfered with, re-
strained, and coerced its employees in the exercise
of the rights guaranteed them in Section 7 of the
Act, and that, by such conduct, Respondent has
engaged in and is engaging in an unfair labor prac-
tice within the meanning of Section 8(a)(l) of the
Act. We also find that, by Respondent's conduct
on or about June 29, 1980, of laying off Heath, and
by its conduct on or about August 28, 1980, of dis-
charging Heath, and since that date failing and re-
fusing to reinstate Heath to his former position of
employment, Respondent has discriminated, and is
discriminating, in regard to the hire or tenure or
terms or conditions of employment of its employ-
ees, thereby discouraging membership in a labor
organization, and Respondent thereby has been en-
gaging in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Midwestern Distribution Serv-
ices, Inc., set forth in section III, 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 ob-
structing 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)(1) and (3) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent discriminatorily
laid off and then, after recall, terminated the em-
ployment of Delbert Heath, we shall order Re-
spondent to offer to Heath immediate and full rein-
statement to his former job, or, if such job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges and to make him whole for any loss
of earnings he may have suffered because of the
discrimiantion against him by payment to him of a
sum of money equal to the amount which he nor-
mally would have earned from the date of his
layoff to this recall and from the date of his termi-
nation to the date of Respondent's offer of rein-
statement, less any net interim earnings. Such back-
pay shall be computed, with interest thereon, in the
manner set forth in F. W. Woolworth Company, 90
MIDWESTERN DISTRIBUTION SERVICES, INC. 1133
NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Midwestern Distribution System, Inc., is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Allied Services Division, Brotherhood of Rail-
way and Airline Clerks, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. By the acts described in section III, above,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
4. The aforesaid 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,
Midwestern Distribution Services, Inc., Kansas
City, Missouri, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Threatening its employees with lay off for
making claims that it is acting in violation of the
collective-bargaining agreement between the Re-
spondent and Allied Services Division, Brother-
hood of Railway and Airline Clerks, AFL-CIO.
(b) Discouraging membership in, or activities on
behalf of Allied Services Division, Brotherhood of
Railway and Airline Clerks, AFL-CIO, by its em-
ployees, or by otherwise discriminating in regard
to the hire or tenure of any of its employees be-
cause they make a claim that Respondent is acting
in violation of the collective-bargaining agreement
between Respondent and the above-mentioned
Union, or state their intention to file a grievance
with this Union claiming that Respondent was
acting in violation of the collective-bargaining
agreement, or by otherwise discriminating in
regard to the hire or tenure of any of its employees
because they join or assist the Union, or engage in
other concerted activity for the purpose of collec-
tive bargaining.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
2 See, generally. Iss Plumbing & eatring Co.. 138 N.RB 716 (16t2)
In accordance with his partial dissent in Olvrmpic .Mediul Corporulisr, 250
NLRB 146 (1980), Member Jenkins 'sould award intersi on hackpa due
based on the formula set forrth therein
ercise of the rights guaranteed them in Section 7 of
the Act except to the extent that such rights may
be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer Delbert Heath immediate and full rein-
statement to his former job, or, if that job no
longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered because of the dis-
crimination practiced against him, in the manner
set forth in the section entitiled "The Remedy."
(b) Post at its place of business in Kansas City,
Missouri, copies of the attached notice marked
"Appendix."3 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17,
after being duly signed by Respondent's representa-
tives, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(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) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
:' In he event that this Order is enfoirced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Poslted bh
Order of the National l.ahor Relations Board" shall read "Posted Pursu-
anli to a Judgment of the United States Court of Appeals Enfircing an
Order Iof the National I abor Relations BHoard
APPENDIX
NoTrIcE To EMPIOYEES
POSTED BY ORDE R OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.I. NOT threaten our employees with
lay off for making claims that we are acting in
violation of the collective-bargaining agree-
ment between us and Allied Services Division,
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Railway and Airline Clerks,
AFL-CIO.
WE WILL NOT discourage membership in, or
activities on behalf of Allied Services Division,
Brotherhood of Railway and Airline Clerks,
AFL-CIO, by our employees by discrimina-
torily discharging or laying off our employees,
or by otherwise discriminating in regard to the
hire or tenure of any of our employees because
they make a claim that we are acting in viola-
tion of the collective-bargaining agreement be-
tween us and Allied Services Division, Broth-
erhood of Railway and Airline Clerks, AFL-
CIO, or state their intention to file a grievance
with the above-mentioned Union claiming that
we were acting in violation of the above-men-
tioned collective-bargaining agreement, or by
otherwise discriminating in regard to the hire
or tenure of any of our employees because
they join or assist the above-named Union, or
engaged in other concerted activity for the
purpose of collective bargaining or mutual aid
and protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Delbert Heath immediate
and full reinstatement to his former job, or, if
that job no longer exists, to a substantially
equivalent position without prejudice to his se-
niority or other rights and privileges, and
make him whole for any loss of earnings he
may have suffered because of the discrimina-
tion practiced against him, plus interest.
MIDWESTERN DISTRIBUTION SERV-
ICES, INC.