PM Cartage Co.

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pat Malano d/b/a PM Cartage Co . and Louis Zeibert. Case 13-CA-13543 February 21, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on September 3, 1974, by Louis Zeibert, an individual, herein called the Charging Party, and duly served on Pat Malano d/b/a PM Cartage Co., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint on October 31, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, 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 complaint alleges in substance that on August 26, 1974, Respondent discharged and thereafter failed and refused to reinstate the Charging Party because he had engaged in protected concerted activities for the purpose of collective bargaining or mutual aid or protection. Respondent failed to file an answer to the complaint. On December 2, 1974, counsel for the General Counsel filed directly with the Board in Washington, D.C., a Motion for Summary Judgment based upon Respondent's failure to file an answer. Subsequently, on December 9, 1974, the Board issued an Order Transferring Proceeding to the Board and Notice To Show Cause. On December 10, 1974, Respondent filed with the Regional Director an answer to the complaint admitting in part and denying in part the allegations of the complaint and raising an affirma- tive defense. On December 23, 1974, Respondent filed his reply to the Notice To Show Cause, entitled "Answer to Motion for Order Transferring Proceed- ing to National Labor Relations Board and for Summary Judgment." On December 30, 1974, counsel for the General Counsel filed a response in opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 and Regula- tions, Series 8, as amended, 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 alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation 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 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 served on the Respondent specifically states that unless an answer is filed to the complaint within 10 days from the service thereof, "all of the allegations in the Com- plaint shall be deemed to be admitted to be true and may be so found by the Board." The complaint, issued on October 31, 1974, was served on the Respondent by registered mail but returned "unclaimed." Respondent in his reply to the Notice To Show Cause made the following admis- sions : a telephone conversation on November 11, 1974, with counsel for the General Counsel in which he was advised of the necessity of filing an answer by November 13, 1974; personal service of the com- plaint on November 15, 1974, at which time he was advised to file an answer promptly; and receipt of a telegram on November 19, 1974, from the Regional Office advising that an answer was due November 20, 1974. As indicated above, the Respondent's answer was not filed until December 10, 1974, 25 days after personal service of the complaint on November 15, 1974, and 20 days after the final date for filing as set forth in the Regional Office's November 19 telegram. Respondent's explanation for the late filing of the answer is that he operates his own company working from 15 to 20 hours a day and that, upon recognition of the seriousness of the charge, he finally retained an attorney who filed an answer. Having been notified by the Regional Office of the necessity of filing an answer, it is noted that Respondent failed to contact the Region concerning an answer or an extension of time to file. Respondent does not explain, nor is it apparent, why his long workday and his inability to appreciate the seriousness of the charge prevented him from contacting the Regional 216 NLRB No. 124 PM CARTAGE CO. Office or from earlier hiring legal counsel . We find Respondent's explanation does not constitute good cause within the meaning of Section 102.20 of the Board's Rules and Regulations . Therefore, in accord with the rule set forth above, the allegations of the complaint are deemed to be admitted and are so found by the Board, and the General Counsel's Motion for Summary Judgment is granted.' On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Pat Malano, at all times material herein , has been an individual proprietor doing business under the trade name and style of PM Cartage Company with his principal office and place of business located at 10506 Avenue B, Chicago, Illinois, where, at all times material herein , he has engaged in the trucking business . During the past calendar year, a represent- ative period, in the normal course and conduct of his operations, Respondent purchased and received goods and services valued in excess of $50,000 from points located outside the State of Illinois. We find, on the basis of the foregoing, that Respondent is, and has bee. at all times material herein, 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 assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local No. 731, affiliated with International Broth- erhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES The Respondent discharged Louis Zeibert on or about August 26, 1974, and thereafter failed and refused to reinstate Louis Zeibert because he had engaged in concerted activities for the purpose of collective bargaining or mutual aid or protection. Accordingly, we find that by the aforesaid conduct, Respondent has interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed them under Section 7 of the Act, and, by such conduct, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. ' See Ancorp National Services, Inc., Casco Division, 202 NLRB 513 (1973); Cleveland Lithographers and Photoengravers International Union, Local No. 24-P (Art Gravure Corporation of Ohio), 194 NLRB 636 (1971); H. IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 689 The activities of Respondent set forth in section III, above, occurring in connection with his opera- tions described in section I, 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 obstructing 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) of the Act, we shall order that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that Respondent discriminatorily discharged and refused to reinstate or offer to reinstate his employee Louis Zeibert and we shall order reinstatement to his former position or a substantially equivalent position. We shall also order that Respondent make said employee whole for any loss of earnings suffered because of the discrimina- tion against him. Backpay shall be based upon the earnings which he would normally have received from the date of the discharge to the 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). We shall also order him to cease and desist from discharging or otherwise discriminating against any employee for engaging in protected concerted activity and from in any other manner interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Pat Malano d/b/a PM Cartage Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 731, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III above Respondent has interfered with, restrained, and E Droese, d/b/a R & H Cabinet & Building Company, 182 NLRB 518 (1970). 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to 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) 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 Relations Board hereby orders that Respondent, Pat Malano d/b/a PM Cartage Co., Chicago, Illinois, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for engaging in protected concerted activities for the purpose of collective bargaining or mutual aid or protection. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to reinstate employee Louis Zeibert to his former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to his senority or other rights and privileges. (b) Make whole employee Louis Zeibert for any loss of pay he suffered as a result of the discrimina- tion against him in the manner set forth in the section of this Decision entitled "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 Order. (d) Post at his Chicago, Illinois, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by him 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. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 2 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 discharge or otherwise discrimi- nate against any employee for engaging in protected concerted activities for the purpose of collective bargaining or mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer to reinstate Louis Zeibert to his former position or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his senority or other rights or privileges, and WE WILL make him whole for any loss of pay he suffered as a result of the discrimination against him. PAT MALANO D/B/A PM CARTAGE CO.