Z&Z Distribution Co.

National Labor Relations Board - Board Decisions

Mar 26, 1996

320 N.L.R.B. 1031 (N.L.R.B. 1996)

1031
320 NLRB No. 125
Z&Z DISTRIBUTING CO.
1 As amended January 24, 1996. The amendment merely corrected
the Charging Party Union’s name.
Z&Z Distributing Company/and its alter ego or
successor employer, Nature Beverage Co. and
Aluminum, Brick and Glass Workers Inter-
national Union, AFL–CIO, CLC, Local 87.
Case 8–CA–27805
March 26, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon a charge filed by the Union on November 1,
1995, the General Counsel of the National Labor Rela-
tions Board issued a complaint on December 7, 1995,1
against Z&Z Distributing Company and its alter ego or
successor employer, Nature Beverage Co., the Re-
spondents, alleging that they have violated Section
8(a)(1) and (5) of the National Labor Relations Act.
Although properly served copies of the charge and
complaint, the Respondents failed to file an answer.
On February 20, 1996, the General Counsel filed a
Motion for Summary Judgment with the Board. On
February 21, 1996, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondents 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. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letters dated December 13,
1995, and January 9, 1996, notified the Respondents
that unless an answer were received by December 21,
1995, and January 16, 1996, respectively, a Motion for
Summary Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Sometime between July 1 and September 29, 1995,
Respondent Nature Beverage Co. (Nature) purchased
the business of Z&Z Distributing Co. (Z&Z) and since
then has continued to operate the business of Z&Z in
basically unchanged form, and has employed as a ma-
jority of its employees, individuals who were pre-
viously employees of Respondent Z&Z. Based on
these operations, Respondent Nature has continued the
employing entity and is a successor to Respondent
Z&Z.
Sometime before July 1995, Respondent Nature was
established by Respondent Z&Z as a disguised con-
tinuation of Respondent Z&Z. Based on this conduct,
Respondent Nature and Respondent Z&Z are, and have
been at all material times, alter egos and a single em-
ployer within the meaning of the Act.
At all material times, Respondent Z&Z, an Ohio
corporation with an office and place of business in To-
ledo, Ohio, has been engaged in business as a whole-
sale beverage distributor. During the 12-month period
ending November 1, 1995, Respondent Z&Z, in con-
ducting its business operations, purchased and received
at its Toledo, Ohio facility goods valued in excess of
$50,000 directly from points outside the State of Ohio.
At all material times, Respondent Nature, an Ohio
corporation with an office and place of business in To-
ledo, Ohio, has also been engaged in business as a
wholesale beverage distributor. Based on its operations
since about September 29, 1995, at which time Re-
spondent Nature commenced its operations, Respond-
ent Nature, in conducting its business operations, will
annually purchase and receive at its Toledo, Ohio fa-
cility goods valued in excess of $50,000 directly from
points outside the State of Ohio.
We find that Respondent Z&Z and Respondent Na-
ture are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondents con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of the Act:
All driver/salesmen, combination route drivers,
and warehousemen, employed by the Respondents
at their Toledo, Ohio facility, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
Since about September 21, 1992, and at all material
times, the Union has been the designated exclusive
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As the complaint and motion are less than clear, however, as to
the actual impact, if any, of the closure of Respondent Z&Z’s facil-
ity on the employees, we shall permit the Respondents to contest the
appropriateness of such a Transmarine backpay remedy at the com-
pliance stage. See United Exposition Service Co., 313 NLRB 1007
(1994), and Creative Woodworking, 313 NLRB 1241, 1242 (1994).
collective-bargaining representative of the unit and has
been recognized as the representative by Respondent
Z&Z. This recognition has been embodied in succes-
sive collective-bargaining agreements, the most recent
of which is effective from September 21, 1992, to Sep-
tember 20, 1995.
Since about October 2, 1995, based on the facts set
forth above, the Union has also been the designated
exclusive collective-bargaining representative of the
unit employees employed by Respondent Nature.
Since at least September 21, 1992, until September
29, 1995, based on Section 9(a) of the Act, the Union
has been the exclusive collective-bargaining represent-
ative of the unit employees employed by Respondent
Z&Z. At all times since about September 29, 1995,
based on Section 9(a) of the Act, the Union has also
been the exclusive collective-bargaining representative
of Respondent Nature’s employees.
About July 20, 1995, the Union requested that Re-
spondent Z&Z bargain collectively with the Union as
the exclusive collective-bargaining representative of
the unit with respect to the effects of Respondent
Z&Z’s decision to cease operations, and since that
date, Respondent Z&Z has failed and refused to do so.
About August 4, 1995, the Union also requested that
Respondent Z&Z meet and bargain for a new collec-
tive-bargaining agreement, and, since that date, Re-
spondent Z&Z has failed and refused to do so.
About September 29, 1995, Respondent Z&Z with-
drew its recognition of the Union as the exclusive col-
lective-bargaining representative of the unit. About that
same date, Respondent Nature unilaterally imple-
mented a new wage and benefit package. These sub-
jects relate to wages, hours, and other terms and condi-
tions of employment of the unit and are mandatory
subjects for the purposes of collective bargaining. Re-
spondent Nature engaged in this conduct without prior
notice to the Union and without affording it an oppor-
tunity to bargain with Respondent Nature with respect
to this conduct.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondents have been failing and refusing to bargain
collectively and in good faith with the exclusive col-
lective-bargaining representative of their employees,
and have thereby engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have 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 Respondents have violated
8(a)(5) by failing to meet and bargain with the Union
with respect to the effects on the unit employees of
Z&Z’s decision to cease operations and for a new col-
lective-bargaining agreement, and by withdrawing rec-
ognition from the Union as the exclusive collective-
bargaining representative of the unit, we shall order the
Respondents to recognize and bargain with the Union
over the effects of Respondent Z&Z’s decision to
cease operations and for a new collective-bargaining
agreement and, if an understanding is reached, to em-
body such understanding in a signed agreement.
As a result of Respondent Z&Z’s unlawful failure to
bargain in good faith with the Union about the effects
of its decision to close its facility, Respondent Z&Z’s
unit employees have been denied an opportunity to
bargain through their collective-bargaining representa-
tive. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Union. A bargaining order alone, therefore, cannot
serve as an adequate remedy for the unfair labor prac-
tices committed.2
Accordingly, we deem it necessary, in order to ef-
fectuate the purposes of the Act, to require the Re-
spondents to bargain with the Union concerning the ef-
fects of closing Respondent Z&Z’s facility on the unit
employees, and shall accompany our order with a lim-
ited backpay requirement designed both to make whole
the employees for losses suffered as a result of the vio-
lations and to re-create in some practicable manner a
situation in which the parties’ bargaining position is
not entirely devoid of economic consequences for the
Respondents. We shall do so by ordering the Respond-
ents pay backpay to Respondent Z&Z’s unit employees
in a manner similar to that required in Transmarine
Navigation Corp., 170 NLRB 389 (1968).
Thus, the Respondents shall pay these employees
backpay at the rate of their normal wages when last in
Respondent Z&Z’s employ from 5 days after the date
of this Decision and Order until occurrence of the ear-
liest of the following conditions: (1) the date the Re-
spondents bargain to agreement with the Union on
those subjects pertaining to the effects of the closing
of Respondent Z&Z’s facility on its employees; (2) a
bona fide impasse in bargaining; (3) the Union’s fail-
ure to request bargaining within 5 days of the date of
this Decision and Order, or to commence negotiations
within 5 days of the Respondents’ notice of its desire
to bargain with the Union; (4) the Union’s subsequent
failure to bargain in good faith; but in no event shall
the sum paid to these employees exceed the amount
1033Z&Z DISTRIBUTING CO.
3 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.’’
they would have earned as wages from the date on
which Respondent Z&Z terminated its operations, to
the time they secured equivalent employment else-
where, or the date on which the Respondents shall
have offered to bargain in good faith, whichever oc-
curs sooner; provided, however, that in no event shall
this sum be less than Respondent Z&Z’s unit employ-
ees would have earned for a 2-week period at the rate
of their normal wages when last in Respondent Z&Z’s
employ. Backpay shall be based on earnings which Re-
spondent Z&Z’s unit employees would normally have
received during the applicable period, less any net in-
terim earnings, and 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).
Furthermore, having found that Respondent Nature
unilaterally implemented a new wage and benefit pack-
age about September 29, 1995, we shall order the Re-
spondents, on request, to rescind the changes in wages
and benefits of the unit employees, and to make them
whole, with interest, for any losses attributable to these
unlawful changes since that date. Backpay shall be
computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enf. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, supra.
Finally, in view of the fact that Respondent Z&Z’s
facility is currently closed, we shall order the Respond-
ents to mail a copy of the attached notice to the Union
and to the last known addresses of Respondent Z&Z’s
former employees in order to inform them of the out-
come of this proceeding. We shall also order that no-
tices be posted at Respondent Nature’s facilities.
ORDER
The National Labor Relations Board orders that the
Respondents, Z&Z Distributing Company and its suc-
cessor, alter ego, and single employer, Nature Bev-
erage Co., Toledo, Ohio, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Aluminum,
Brick and Glass Workers International Union, AFL–
CIO, CLC, Local 87 as the exclusive collective-bar-
gaining representative of the following unit with re-
spect to the effects of Respondent Z&Z’s decision to
cease operations or for a new collective-bargaining
agreement:
All driver/salesmen, combination route drivers,
and warehousemen, employed by Z&Z Distribut-
ing Company or Nature Beverage Co. at their To-
ledo, Ohio facility, excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
(b) Withdrawing recognition of the Union as the ex-
clusive collective-bargaining representative of the unit.
(c) Unilaterally implementing new wages or benefit
packages.
(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) Recognize and, on request, bargain with the
Union as the exclusive representative of the unit with
respect to the effects on the unit employees of Z&Z
Distributing Company’s decision to cease operations
and for a new collective-bargaining agreement and, if
an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Pay limited backpay to the unit employees of
Respondent Z&Z in the manner set forth in the remedy
section of this decision.
(c) Rescind, on request, the September 29, 1995
changes in wages and benefits of the unit employees
and make them whole, with interest, for any losses at-
tributable to these unlawful changes since that date, in
the manner set forth in the remedy section of this deci-
sion.
(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 their facility in Toledo, Ohio, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 8, after being signed by the Respondents’
authorized representative, shall be posted by the Re-
spondents 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-
spondents to ensure that the notices are not altered, de-
faced, or covered by any other material. The Respond-
ents shall also mail an exact copy of the signed notice
to the Union, Aluminum, Brick and Glass Workers
International Union, AFL–CIO, CLC, Local 87, and to
the unit employees of Z&Z Distributing Company at
their last known address.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
1034 DECISIONS 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
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 refuse to bargain collectively with
Aluminum, Brick and Glass Workers International
Union, AFL–CIO, CLC, Local 87 as the exclusive col-
lective-bargaining representative of the following unit
with respect to the effects of Z&Z Distributing Com-
pany’s decision to cease operations or for a new col-
lective-bargaining agreement:
All driver/salesmen, combination route drivers,
and warehousemen, employed by us at our To-
ledo, Ohio facility, excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT withdraw recognition of the Union as
the exclusive collective-bargaining representative of
the unit.
WE WILL NOT unilaterally implement new wages or
benefit packages.
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 recognize and, on request, bargain with the
Union as the exclusive representative of the unit with
respect to the effects on the unit employees of our de-
cision to cease operations and for a new collective-bar-
gaining agreement and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL pay limited backpay to the unit employees
of Z&Z Distributing Company, plus interest, as re-
quired by the Board’s Order.
WE WILL, on request, rescind the September 29,
1995 changes in wages and benefits of the unit em-
ployees and WE WILL make them whole, with interest,
for any losses attributable to these unlawful changes
since that date.
Z&Z DISTRIBUTING COMPANY AND ITS
SUCCESSOR, ALTER EGO, AND SINGLE
EMPLOYER, NATURE BEVERAGE CO.