Coast Container Service, Inc.

COAST CONTAINER SERVICE, INC. 159 Coast Container Service, Inc. and Robert A. Amable. Case 20-CA-11146 September 28, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO mary Judgment should not be granted. Respondent did not file a response to Notice To Show Cause so the allegations of the Motion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority-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 Upon a charge filed on March 3, 1976, by Robert A. Amable, an individual, herein called the Charging Party, and duly served on Coast Container Service, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional- Director for Region 20, issued a com- plaint and notice of hearing on April 30, 1976, against Respondent, alleging, that Respondent had engaged in and was engaging in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Na- tional 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 com- plaint alleges in substance that (1) on or about Feb- ruary 10 and 11, 1976, Respondent (a) threatened employees with plant closure if they supported or designated as their collective-bargaining representa- tive Brotherhood of Teamsters and Auto Truck Driv= ers, Local 85, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union; (b) interrogated them concerning whether they signed union authori- zation cards; and (c) promised them wage increases in order to discourage joining or supporting the Union and/or designing or selecting it as their repre- sentative; (2) in early March 1976; Respondent granted an employee a wage increase to persuade him to disavow his support of the Union; and (3) on or about February 17, 1976, and subsequently on February 27 and March 4, 1976, the Respondent laid off and terminated employees Robert Amable, Rob- ert Tittel, and Robert Clark because of their union or protected concerted activities. Respondent failed to file a timely answer to the complaint. On June 17, 1976, counsel for the General Counsel filed directly with the Board a Motion, for Summary Judgment with exhibits attached. Subsequently, on June 23, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum 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 com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions 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 ad- mitted 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 issued on April 30, 1976, and duly served on Respondent on May 1, 1976, specifically states that unless an answer to the complaint is filed by Respondent within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." According to the record herein, and the uncontroverted allegations of the Motion for Summary Judgment, counsel for the General Counsel, by letter dated June 9, 1976, advised Respondent's representative that no answer to the complaint had been filed and if no answer were received by June 14, 1976, a Motion for Sum- mary Judgment would be filed. No answer having been filed by Respondent by that date counsel for the General Counsel on June 15, 1976, issued the Motion for Summary judgment herein which was re- ceived by and filed with the Board in Washington, D.C., on June 17, 1976. In his letter of June 18, 1976, enclosing an answer to the complaint, Respondent's counsel asserted that, on June 16, 1976, after the Motion for Summary Judgment had been issued, Respondent had secured 226 NLRB No. 28 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from a Board attorney an extension of time to June 23, 1976, to file an answer and that, in addition, he had sought withdrawal of the Motion for Summary Judgment by the Regional Director. By letter dated June 21, 1976, Respondent's counsel filed with the Board a motion to dismiss the complaint. In reply, counsel for the General Counsel, by letter to Respondent's counsel dated June 23, 1976, with a copy to the Board, advised that no extension had been granted I and that it would be inappropriate to withdraw her motion because it had been filed before the extension of time to file an answer was requested, and because no reasons were advanced to explain why an answer was not promptly filed. Thereafter, although the time for filing a response to the Notice To Show Cause had been extended, Respondent's counsel, by letter dated July 14, 1976, advised the Board that Respondent's president had instructed him not to file a response because the Company was going out of business. As we do not believe that the aforedescribed circumstances constitute good cause within the meaning of Section 102.20 of the Board's Rules and Regulations for failure to file a timely an- swer, and in view of Respondent's failure to file a response to the Notice To Show Cause, despite the grant of an extension of time, we shall grant the Mo- tion for Summary Judgment and deny the motion to dismiss the complaint. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation with its prin- cipal place of business in San Francisco, California, is and has been since October 1976 engaged in the business of transportation services in interstate com- merce. During the 6-month period from October 1975 to March 31, 1976, inclusive, Respondent re- ceived in excess of $30,000 for providing transporta- tion services in interstate commerce. Projected on a 1-year basis, Respondent, in the course and conduct of its business operations, will receive in excess of $50,000 for providing transporation services in inter- state commerce. We find, on the basis of the foregoing, the Respon- dent is, and has been 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 1 Counsel for the General Counsel also noted that only the Regional Di- rector can grant an extension of time to file an answer under Sec 102 22 of the Board's Rules and Regulations , Series 8, as amended effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Brotherhood of Teamsters and Auto Truck Driv- ers, Local 85, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE CHARGING PARTY Robert Amable is an employee within the meaning of Section 2(3) of the Act. IV. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Violations On or about February 10 and 11, 1976, the Re- spondent (1) threatened employees with plant closure if they supported the Union or designated or selected the Union as their collective-bargaining representa- tive; (2) interrogated employees concerning whether they signed authorization cards in support of a peti- tion for an election; and (3) promised employees wage increases in order to discourage them from joining or supporting the Union, and/or designating or selecting the Union as their collective-bargaining representative. Early in March 1976, Respondent granted an employee a wage increase in order to per- suade him to disavow his support of the Union. Accordingly, we find that, by the aforesaid con- duct, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and, by such conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. B. The 8(a)(3) and (1) Violations On or about February 17, 1976, Respondent laid off its employees Robert Amable, Robert Tittel, and Robert Clark because of their activities on behalf of the Union and/or because of their protected concert- ed activities. On or about February 27, 1976, Re- spondent terminated its employee Robert Amable and on or about March 4, 1976, terminated employ- ees Robert Tittel and Robert Clark because of their activities on behalf of the Union and/or because of their protected concerted activities. COAST CONTAINER SERVICE, INC. 161 Accordingly, we find that, by the aforesaid con- duct, Respondent discriminated in regard to the terms and conditions of employment of its employ- ees, thereby discouraging membership in a labor or- ganization and that, by the aforesaid conduct, Re- spondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, 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 commerce. VI. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) and (I) of the Act, we shall order that it cease and desist therefrom, and that it take certain affirmative action 'as set forth below de- signed to effectuate the purposes and policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily laying off employees Robert Amable, Robert Tittel, and Robert Clark and thereafter discriminatorily termi- nating them, we shall order 'Respondent to offer them immediate and full reinstatement to their for- mer jobs or, if such jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other, rights and, privileges and make them whole for any loss of earnings they may have suffered by payment to them of sums equal to the amount they normally would have earned as wages from the date of their layoffs to the date of reemploy- ment, if reemployed, and from' the dates of their ter- minations to the date of the Respondent's offer of reinstatement, less net earnings, in accordance with the formula set forth in F. W.' Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAw 1. Respondent, Coast Container Service, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Brotherhood of Teamsters and Auto Truck Drivers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Robert Amable is an employee within the meaning of Section 2(3) of the Act. 4. By the acts described in section IV, A, above, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed to them by Section 7 of the Act, and thereby has engaged in and is engaging in unfair la- bor practices within the meaning of Section 8(a)(1) of the Act. 5. By the acts described in section IV, B, above, Respondent has discriminated, and is discriminating, in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor . organization and has thereby engaged in, and is thereby engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 6. 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 Re- lations Board hereby orders that Respondent, Coast Container Service, Inc., San Francisco, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with plant closure if they supported the Brotherhood of Teamsters and Auto Truck Drivers, Local 85, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, or des- ignated or selected the above Union as their collec- tive-bargaining representative. (b) Interrogating employees concerning whether they had signed union authorization cards in support of a petition for an election. (c) Promising employees wage increases in order to discourage them from joining or supporting the above Union, and/or designating or selecting the above Union as their collective-bargaining represen- tative. (d) Granting an employee a wage increase in or- der to persuade the employee to disavow his support of the above-named Union. (e) Discouraging membership in the above Union, or any other labor organization, by discriminatorily 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laying off or terminating employees or by otherwise discriminating in regard to hire or tenure of employ- ment or any term and condition of their employ- ment. (f) 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 immediate and full reinstatement to Robert Amable, Robert Tittel, and Robert Clark to their former jobs or, if those jobs no longer exist, to substantially -equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings in the manner set forth in the section herein entitled "The Remedy." (b) 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. (c) Post at its San Francisco, California, place of business copies of the attached notice marked "Ap- pendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 20, 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 threaten employees with plant closure if they support the Brotherhood of Teamsters and Auto Truck Drivers, Local 85, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or designate or select the above Union as their collective-bargaining representative. WE WILL NOT interrogate employees concern- ing whether they had signed union authorization cards in support of a petition for an election. WE WILL NOT promise employees wage in- creases in order to discourage them from joining or supporting the above Union, and/or desig- nating or selecting the above Union as their col- lective-bargaining representative. WE WILL NOT grant an employee a wage in- crease in order, to persuade the employee to dis- avow his support of the above Union. WE WILL NOT discourage membership in the above Union, or any other labor organization, by discriminatorily laying off or terminating em- ployees or by otherwise discriminating in regard to hire or tenure of employment or any term and condition of their employment. WE WILL offer immediate and full reinstate- ment to Robert Amable, Robert, Tittel, and Robert Clark to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of being discriminatorily laid off and terminated. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7of the Act. COAST CONTAINER SERVICE, INC.