Branch International Services, 209 (1998)

Branch International Services, Inc.; Ben Ruegsegger Trucking Service, Inc.; J & L Transport, Inc.; B.I.S., Inc. of Ohio and International Brother-hood of Teamsters, Local No. 486, AFL-CIO. Cases 7-CA-34973, 7-CA-35147, 7-CA- 35147(2), and 7-CA-35780

November 30, 1998

DECISION AND ORDER

BY MEMBERS FOX, LIEBMAN, AND BRAME On May 9, 1995, Administrative Law Judge Steven M. Charno issued the attached decision. Respondent B.I.S., Inc. of Ohio filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,1 findings,2 and conclusions except as modified and set forth in full below.3

1 No exceptions were filed to the judge's findings that Respondents Ben Ruegsegger Trucking Service, Inc. (RTS) and J & L Transport, Inc. (J & L) violated Sec. 8(a)(5) and (1) by refusing to recognize and bargain with the Union, failing to honor the collective-bargaining agreement, and by unilaterally changing terms and conditions of employment; that RTS violated Sec. 8(a)(1) by telling employees that it would go out of business if the Union did not permit it to purchase less costly insurance; Sec. 8(a)(3) and (5) by terminating operations in retaliation for the Union's refusal to modify the contract; and Sec. 8(a)(5) and (1) by telling employees that they would have to apply to work for J & L to retain their seniority and by dealing directly with employees; and that J & L, RTS, and Respondent Branch International Services, Inc. (BIS) violated Sec. 8(a)(3) by constructively discharging employees. Respondent B.I.S., Inc. of Ohio (BISO) excepts to the judge's findings that it is also liable as a joint employer with J & L for the constructive discharges and that J & L violated Sec. 8(a)(5) by refusing to provide the Union with requested information.

Respondent BISO also excepts to the judge's failure to dismiss the complaint based on its contention that the Regional Director improperly postponed the hearing. The hearing was originally scheduled for February 1, 1994. On January 1, Respondent RTS requested the Regional Office to postpone the hearing. Charles Garavaglia, BISO's owner and president, admitted that the General Counsel notified him on January 27 that the hearing would be rescheduled. He stated that he nonetheless appeared pro se on February 1 and should have won "by default" because he did not receive written notice until the February 15 written Order rescheduling the hearing to June 7. When asked how BISO was prejudiced by the failure to receive timely notice in writing, Garavaglia referred to Sec. 106.16 of the Board's Rules and Regulations and cited the additional work required to defend against further allegations filed on April 4 and to respond to a related subpoena.

We agree with the judge that BISO has failed to demonstrate prejudice. Garavaglia had actual notice of the postponement and there is no evidence that BISO had insufficient time to prepare its defense before the rescheduled hearing. We note that the hearing was held on 9 days throughout June, July, and September and thus spanned several months during which BISO could prepare and refine its defense. Under these circumstances, we find that these exceptions lack merit.

2 Respondent BISO has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1950). We have carefully examined the record and find no basis for reversing the findings.

ORDER

The National Labor Relations Board orders that

1. Respondent Ben Ruegsegger Trucking Service, Inc. and its alter ego, Respondent J & L Transport, Inc., Kawkawlin, Michigan, their officers, agents, successors and assigns, shall

   1. Cease and desist from

      (a) Refusing to bargain with Local No. 486 of the International Brotherhood of Teamsters, AFL-CIO (the Union) as the exclusive collective-bargaining representative of the employees in the following appropriate bargaining unit:

      All company drivers and owner/operators (drivers) employed by Ben Ruegsegger Trucking Services, Inc. Branch International Services, Inc. J & L Transport, Inc., and B.I.S. Inc., of Ohio, at the 1754 Chip Road, Kawkawlin, Michigan facility, but excluding mechanics, guards and supervisors as defined in the Act.

      (b) Bypassing the Union and dealing directly with employees in the appropriate unit by (i) insisting that its employees submit new applications to work for a nonunion company in order to retain their seniority and (ii) meeting with its employees and discussing terms and conditions of employment.

      (c) Threatening to go out of business unless the Union agrees to modify the collective-bargaining agreement.

      (d) Terminating its carrier operations in retaliation for the Union's refusal to modify the collective-bargaining agreement.

      (e) Creating a purportedly nonunion entity to perform the operations formerly performed by RTS.

      (f) Refusing, during the term of a collective-bargaining agreement, to supply the Union with requested informa-Additionally, BISO asserts that the judge's findings are the result of bias and prejudice. After a careful examination of the entire record, we are satisfied that this allegation is without merit.

      We adopt the judge's finding, for the reasons set forth in his decision, that J & L Transport, Inc. is the alter ego of Respondent RTS and is therefore obligated to recognize and bargain with the Union, to apply the terms of the contract between the Union and RTS, and to remedy the unfair labor practices of its alter ego, RTS. The General Counsel has excepted to the judge's failure to address allegations that J & L is jointly and severally liable for remedying the unfair labor practices of RTS and Branch International Services, Inc. (BIS), under NLRB v. Burns Security Services, 406 U.S. 272 (1972); and Golden State Bottling v. NLRB, 414 U.S. 168 (1973). We find it unnecessary to pass on these exceptions, in light of our adoption of the judge's alter ego finding.

      3 We disagree with the judge that Respondent BISO is liable for the constructive discharge of employee William Shook on September 3, 1992. Contrary to the judge's finding, the record shows that BISO had not entered into a contractual relationship with J & L as of that date. Accordingly, its status as a joint employer of the unit employees did not commence until September 6, 1992. We shall modify the judge's recommended Order and notices accordingly.

      We shall also include in our Order and notices language in accord with our decision in Indians Hills Care Center, 321 NLRB 144 (1996), as modified by Excel Container, Inc., 325 NLRB 17 (1997).

      All company drivers and owner/operators (drivers) employed by Ben Ruegsegger Trucking Services, Inc. Branch International Services, Inc. J & L Transport, Inc., and B.I.S. Inc., of Ohio, at the 1754 Chip Road, Kawkawlin, Michigan facility, but excluding mechanics, guards and supervisors as defined in the Act.

      DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

      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."

      (b) Failing and refusing to honor and abide by their collective-bargaining agreement with the Union.

      (c) Failing to satisfy their collective-bargaining obligations before modifying the terms and conditions of employment of the employees in the appropriate unit.

      (d) In any like or related matter interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.

   2. Take the following affirmative action necessary to effectuate policies of the Act.

      (a) Recognize and, on request, bargain collectively with the Union as the collective-bargaining representative of employees in the appropriate unit.

      (b) Reinstate, honor, and abide by the terms of their collective-bargaining agreement with the Union from the date of the Respondents' repudiation thereof on September 11, 1993, forward, and make whole the employees in the appropriate unit for any loss of wages or other benefits that they may have incurred by virtue of the Respondents' unlawful conduct, plus interest, in the manner set forth in the remedy section of the decision.

      (c) Within 14 days after service by the Region, post at their Kawkawlin, Michigan, and Valley View, Ohio facilities copies of the attached notice marked "Appendix

      B."5 Copies of this notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondents' authorized representatives, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, any of the Respondents have gone out of business or closed any facility involved in these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since June 21, 1992.

      (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply.

3. Respondents Ben Ruegsegger Trucking Service, Inc. and J & L Transport, Inc., Kawkawlin, Michigan,...