United Exposition Service

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 1007 (N.L.R.B. 1994)

1007
313 NLRB No. 136
UNITED EXPOSITION SERVICE
1 On January 16, 1994, Greyhound Exposition Services, Inc.
(GES), filed a cross-motion for summary judgment with the Board
in response to the Notice to Show Cause asserting that it purchased
the stock of the Respondent Company on May 27, 1993; that no an-
swer was filed because the complaint was not sent to it; that the
Union received the information a month in advance of the con-
summation of the sale/merger; that there was therefore no failure or
refusal to bargain as alleged in the complaint; and that, accordingly,
the General Counsel’s motion should be denied and the complaint
dismissed. We find that this response by GES is insufficient to raise
an issue for hearing as to the allegations against the Respondent or
to warrant denial of the General Counsel’s motion for summary
judgment. We note in this regard that GES has not purported to an-
swer the complaint on the Respondent’s behalf. Nor is GES specifi-
cally alleged in the complaint to be derivatively liable for the Re-
spondent’s actions, either as a successor or otherwise. To the extent
GES is concerned about such potential liability, such matters are ap-
propriately resolved in a compliance proceeding. See Frederick Iron
& Steel, 303 NLRB 514 fn. 1 (1991), and National Transit, 299
NLRB 453 (1990). Accordingly, GES’ cross-motion for summary
judgment is denied.
2 Although no further reminder or warning of the consequences of
failing to file an answer was sent or given to the Respondent after
service of the complaint, we find that this does not warrant denying
the Acting General Counsel’s Motion for Summary Judgment. See
Superior Industries, 289 NLRB 834, 835 fn. 13 (1988).
United Exposition Service Company, Inc. and
Teamsters Local 85, International Brotherhood
of Teamsters, AFL–CIO. Case 20–CA–25297
March 22, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge and an amended charge filed by
Teamsters Local 85, International Brotherhood of
Teamsters, AFL–CIO, the Union, on April 19 and May
4, 1993, respectively, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
June 30, 1993, against United Exposition Service
Company, Inc., the Respondent, alleging that it has
violated Section 8(a)(1) and (5) of the National Labor
Relations Act. Although properly served copies of the
charge and complaint, the Respondent failed to file an
answer.
On January 10, 1994, the Acting General Counsel
filed a Motion for Summary Judgment with the Board.
On January 12, 1994, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
The Respondent filed no response. The allegations in
the motion are therefore undisputed.1
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. Nevertheless, the Re-
spondent failed to file an answer to the complaint.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the Acting
General Counsel’s Motion for Summary Judgment.2
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 Brisbane, Cali-
fornia, has been engaged in convention and trade show
service contracting. During the fiscal year ending Feb-
ruary 28, 1993, the Respondent, in conducting its busi-
ness operations, purchased and received at its Bris-
bane, California facility goods valued in excess of
$50,000 which originated from points outside the State
of California.
During the fiscal year ending February 28, 1993, the
Respondent, in conducting its business operations, per-
formed services valued in excess of $50,000 for enter-
prises which themselves meet one of the Board’s juris-
dictional standards, other than an indirect standard.
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
The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees covered by the terms of the collec-
tive bargaining agreement between Respondent
and the Union, effective by its terms from July 1,
1989, through June 30, 1992, and extended there-
after by mutual agreement [herein called the
Agreement]; excluding guards and supervisors as
defined by the Act.
At all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of the unit and has been recognized as such representa-
tive by the Respondent. Such recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which is the Agreement.
At all material times, the Union, by virtue of Section
9(a) of the Act, has been, and is, the exclusive rep-
resentative of the employees in the unit, for the pur-
poses of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See also Live Oak Skilled Care & Manor, 300 NLRB 1040
(1990). In Transmarine, the Board ordered an employer that had un-
lawfully refused to bargain over the effects of its plant closure deci-
sion to, inter alia, pay unit employees at their normal rate of pay
beginning 5 days after the Board’s decision until the first of four
events: (1) an effects bargaining agreement was reached; (2) a bona
fide bargaining impasse was reached; (3) the union failed to timely
request or commence bargaining; or (4) the union failed to bargain
in good faith. Id. The Board further specified that ‘‘in no event shall
this sum be less than these employees would have earned for a 2-
week period at the rate of their normal wages when last in the Re-
spondent’s employ.’’ Id.
As the complaint and motion are less than clear, however, as to
the actual impact, if any, of the sale/merger on the employees, we
shall permit the Respondent to contest the appropriateness of such
a Transmarine backpay remedy at the compliance stage.
Since on or about April 16, 1993, the Union, in
writing, has requested the Respondent to furnish it
with information on a sale/merger in progress (the in-
formation) as follows:
Please provide the following information for all
transactions of proposals you have under consid-
eration.
(1) Please identify and describe in detail the na-
ture of the transaction (e.g., merger, consolidation,
stock transfer, asset transfer, etc.) and identify by
name, address and telephone number all parties
thereto.
(2) Please provide copies of relevant portions of
any documents, including proposals or contracts,
which describe the contemplated transaction. By
this request, we do not intend to require disclo-
sure of confidential financial information, but only
that information necessary to enable us to under-
stand the nature of the transaction and its potential
impact upon the employees we represent.
. . . .
(6) Have any offers of employment been ex-
tended by any party to the transaction to any of
your employees? If so, please identify all individ-
uals to whom such offers were extended and pro-
vide the terms and conditions upon which such
offers were made and the date or dates of said of-
fers.
The information referred to above is necessary for,
and relevant to, the Union’s performance of its func-
tion as the exclusive collective-bargaining representa-
tive of the unit. At no time, however, has the Respond-
ent furnished the information to the Union.
The Respondent failed and refused to furnish the in-
formation to the Union sufficiently in advance of the
consummation of the sale/merger in order to allow the
Union a reasonable opportunity to bargain in advance
of the consummation about the effects of the trans-
action on unit employees.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) 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 unlawfully
failed and refused to provide the Union information
concerning the sale/merger that is relevant and nec-
essary to its role as the exclusive bargaining represent-
ative of the unit employees, we shall order the Re-
spondent to furnish the Union the information re-
quested.
In addition, having found that the Respondent, by
such failure and refusal, unlawfully deprived the Union
of a reasonable opportunity to bargain about the effects
of the sale/merger prior to its consummation, we shall
order the Respondent to bargain with the Union over
the effects of the sale/merger on request. As the nature
of the information sought by the Union indicates that
employees may have been terminated or otherwise suf-
fered losses as a result of the Respondent’s actions, we
shall accompany our bargaining order with a limited
backpay requirement designed both to make whole the
employees for losses they may have suffered as a re-
sult of the violations and to recreate in some prac-
ticable manner a situation in which the parties’ bar-
gaining position is not entirely devoid of economic
consequences for the Respondent. We shall do so by
ordering the Respondent to pay backpay to the termi-
nated employees in a manner similar to that required
in Transmarine Navigation Corp., 170 NLRB 389
(1968).3 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, 283 NLRB 1173 (1987).
Finally, in the event the Respondent’s facility is cur-
rently closed and the Respondent therefore has no
place of business to post the attached notice, we shall
order the Respondent to mail a copy of the attached
notice to the Union and to the last known addresses of
its former employees in order to inform them of the
outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, United Exposition Service Company, Inc.,
Brisbane, California, its officers, agents, successors,
and assigns, shall
1009UNITED EXPOSITION SERVICE
4 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.’’
5 Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other mate-
rial.
1. Cease and desist from
(a) Failing and refusing to bargain collectively and
in good faith with Teamsters Local 85, International
Brotherhood of Teamsters, AFL–CIO by failing and
refusing to furnish the Union information concerning
the sale/merger that is relevant and necessary to its
role as the exclusive bargaining representative of the
employees in the following unit:
All employees covered by the terms of the collec-
tive bargaining agreement between Respondent
and the Union, effective by its terms from July 1,
1989, through June 30, 1992, and extended there-
after by mutual agreement [herein called the
Agreement]; excluding guards and supervisors as
defined by the Act.
(b) Failing and refusing to furnish such information
to the Union sufficiently in advance of the consumma-
tion of the sale/merger to allow the Union a reasonable
opportunity to bargain in advance of the consummation
about the effects of the transaction on unit employees.
(c) In any like or related manner interfering with, re-
straining, 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) Provide the Union the information it requested
on or about April 16, 1993, concerning the sale/-merg-
er.
(b) On request, meet and bargain in good faith with
the Union concerning the effects of the sale/merger on
unit employees.
(c) Pay limited backpay to the unit employees in the
manner set forth in the remedy section of this decision.
(d) Sign copies of the attached notice marked ‘‘Ap-
pendix.’’4 Copies of the notice, on forms provided by
the Regional Director for Region 20, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent at its Brisbane, California
facility immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted.5 If the facility is closed, the Respondent shall
instead mail an exact copy of the signed notice to all
unit employees at their last known address and to the
Union at its business address.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 fail and refuse to bargain collectively
and in good faith with Teamsters Local 85, Inter-
national Brotherhood of Teamsters, AFL–CIO by fail-
ing and refusing to furnish the Union information con-
cerning the sale/merger that is relevant and necessary
to its role as the exclusive bargaining representative of
the employees in the following unit:
All employees covered by the terms of the collec-
tive bargaining agreement between the Employer
and the Union, effective by its terms from July 1,
1989, through June 30, 1992, and extended there-
after by mutual agreement [herein called the
Agreement]; excluding guards and supervisors as
defined by the Act.
WE WILL NOT fail and refuse to furnish such infor-
mation to the Union sufficiently in advance of the con-
summation of the sale/merger to allow the Union a
reasonable opportunity to bargain in advance of the
consummation about the effects of the transaction on
unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL provide the Union the information it re-
quested on or about April 16, 1993, concerning the
sale/merger.
WE WILL, on request, meet and bargain in good faith
with the Union concerning the effects of the
sale/merger on unit employees.
WE WILL pay limited backpay to the unit employees
who were employed by us, plus interest, as required by
the Board’s Order.
UNITED EXPOSITION SERVICE COMPANY,
INC.