D'Agata National Trucking Co.

D'AGATA NATIONAL TRUCKING CO. 321 D'Agata National Trucking Co. and Carolina Na- answer that he is without knowledge, shall be tional Trucking Co. and Jay Stuart Goldstein. deemed to be admitted to be true and shall be Case 4-CA-11931 so found by the Board, unless good cause to November 18, 1981 the contrary is shown. DECISION AND ORDER The complaint and notice of hearing issued on April 29, 1981, and served on Respondent by regis- BY CHAIRMAN VAN DE WATER AND tered mail, return receipt dated April 29, 1981, spe- MEMBERS JENKINS AND HUNTER cifically states that, unless an answer to the com- plaint is filed within 10 days from the service Upon a charge filed on March 11, 1981, by Jay Stuart G oldstei n , an individual, herein called the by Jay thereof "all of the allegations in the complaint shall Stuart Goldstein, an individual, herein called the Charging Party, and duly served on D'Agata Na- tional Trucking Co. and Carolina National Truck- found by the Board." As no answer was filed, ing Co., herein called Respondent, the General counsel for the General Counsel, on August 3, Counsel of the National Labor Relations Board, by 1981, filed a Motion for Summary Judgment. On the Regional Director for Region 4, issued a com- August 7, 1981, the Board issued a Notice To plaint on April 29, 1981, against Respondent, alleg- Show Cause why the General Counsel's motion ing that Respondent had engaged in and was en- should not be granted and, on August 21, 1981, Re- gaging in unfair labor practices affecting commerce spondent filed a response thereto. within the meaning of Section 8(a)(3) and (1) and Respondent's response to the Notice To Show Section 2(6) and (7) of the National Labor Rela- Cause argues that the General Counsel's Motion tions Act, as amended. Copies of the charge and for Summary Judgment should not be granted. Re- complaint and notice of hearing before an adminis- spondent contends that, in mid-April 1981, as a trative law judge were duly served on the parties result of Board Agent Berger's urgings, it decided to this proceeding. Respondent failed to file an to pursue a settlement and commenced negotiations answer to the complaint. with Berger acting as intermediary. However, on On August 3, 1981, counsel for the General April 29, the Regional Director issued a complaint Counsel filed directly with the Board a Motion for and notice of hearing. Respondent claims that it Summary Judgment. Subsequently, on August 7, did not consult an attorney at that time since it still 1981, the Board issued an order transferring the believed that a settlement would be reached. proceeding to the Board and a Notice To Show Respondent further asserts that, a few weeks Cause why the General Counsel's Motion for Sum- later, Board attorney Rosenberger contacted Re- mary Judgment should not be granted. Respondent spondent's controller, Goldberg, and told him that thereafter filed a response to the Notice To Show Respondent ought to answer the complaint. How- Cause. ever, Respondent states that it did not do so be- Pursuant to the provisions of Section 3(b) of the cause it believed that the case had been resolved. National Labor Relations Act, as amended, the Na- Shortly after that conversation on June 24, 1981, tional Labor Relations Board has delegated its au- the proposed settlement was rejected by the Charg- thority in this proceeding to a three-member panel. ing Party. Immediately thereafter, Respondent con- Upon the entire record in this proceeding, the tends, Goldberg called Rosenberger who informed Board makes the following: him that she had not yet received the answer to the complaint. Goldberg promised Rosenberger Ruling on the Motion for Summary Judgment that she would have the answer by the end of the Section 102.20 of the Board's Rules and Regula- week, which was 2 days away. tions, Series 8, as amended, provides as follows: Respondent claims that the same day it contact- The respondent shall, within 10 days from the ed an attorney and typed up an answer. The next service of the complaint, file an answer there- day, June 25, Respondent alleges the answer was to. The respondent shall specifically admit, signed, inserted in an envelope addressed to the deny, or explain each of the facts alleged in Regional Director for Region 4, and placed on the the complaint, unless the respondent is without table where all outgoing letters are left for posting knowledge, in which case the respondent shall and mailing each day. Respondent claims it never so state, such statement operating as a denial. saw the answer or envelope thereafter and, since All allegations in the complaint, if no answer no Board agent informed it that the answer had not is filed, or any allegation in the complaint not been received, thought it had been delivered. specifically denied or explained in an answer We do not believe Respondent's submissions filed, unless the respondent shall state in the constitute good cause, within the meaning of Sec- 259 NLRB No. 48 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 102.20 of the Board's Rules and Regulations, IIl. THE EFFECT OF THE UNFAIR LABOR for failure to file a timely answer. In light of the PRACTICES UPON COMMERCE above facts, and Respondent's promise to Board at- The activities of Respondent set forth in section torney Rosenberger that the answer would be filed II above, occurring in connection with its oper- in 2 days, it is apparent that Respondent's failure to ations described in section I, above, have a close, answer the complaint was the result of its own intimate, and substantial relationship to trade, traf- negligence. Respondent does not even allege that it fic, and commerce among the several States and in fact mailed the answer, rather, it contends only tend to lead to labor disputes burdening and ob- that it left the envelope on a desk where mail is structing commerce and the free flow of com- regularly collected. Moreover, at no time did Re- merce. spondent request permission to file its answer after the 2 days had elapsed. In view of the foregoing, IV. THE REMEDY we find that Respondent has offered no valid rea- Having found that Respondent has engaged in sons why the Motion for Summary Judgment unfair labor practices within the meaning of Sec- should not be granted, and, under the rule cited tion 8(a)(3) and (1) of the Act, we shall order that above, the allegations of the complaint shall be it cease and desist thereform and take certain af- deemed to be admitted to be true and are so firmative action designed to effectuate the policies found.' Accordingly, we grant the Motion for of the Act. Summary Judgment. To remedy Respondent's discharge of Jay Stuart On the basis of the entire record the Board Goldstein in violation of Section 8(a)(3) and (1) of makes the following: the Act, we shall order that Respondent offer im- mediate and full reinstatement to him to his former FINDINGS OF FACT job or, if such job no longer exists, to a substantial- ly equivalent position, without prejudice to his se- I. THE BUSINESS OF RESPONDENT niority or any other rights and privileges previous- D'Agata and Carolina are Pennsylvania corpora- ly enjoyed, and make him whole for any loss of tions engaged in the interstate and intrastate trans- earnings suffered by him because of his unlawful portation of freight and commodities. D'Agata and discharge. The backpay shall be computed in ac- Carolina at all times material have had common cordance with F. W. Woolworth Company, 90 ownership, management, labor policy, and inter- NLRB 289 (1950), with interest as prescribed in change of personnel, and constitute a single inte- Florida Steel Corporation, 231 NLRB 651 (1977). grated business enterprise and a single employer See, generally, Isis Plumbing & Heating Co., 138 within the meaning of the Act. During the past NLRB 716 (1962).2 year, Respondent received gross revenues in excess The Board, upon the basis of the foregoing facts of $50,000 for transporting freight from the Com- and the entire record, makes the following: monwealth of Pennsylvania to other States. We CONCLUSIONS OF LAW find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an em- 1. D'Agata National Trucking Co. and Carolina ployer engaged in commerce within the meaning of Trucking Co. is an employer engaged in commerce Section 2(6) and (7) of the Act, and that it will ef- within the meaning of Section 2(6) and (7) of the fectuate the policies of the Act to assert jurisdic- Act tion herein. 2. By discharging Jay Stuart Goldstein because of his union activities, Respondent has engaged in 11. THE UNFAIR LABOR PRACTICES unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. On or about January 26, 1981, Respondent dis- 3. The aforesaid unfair labor practices are unfair charged Jay Stuart Goldstein, and at all times since labor practices affecting commerce within the then Respondent has failed and refused, and contin- meaning of Section 2(6) and (7) of the Act. ues to fail and refuse, to reinstate him to his former or substantially equivalent position of employment, ORDER on account of his union activities. We find that, by Pursuant to Section 10(c) of the National Labor such conduct, Respondent has violated Section Relations Act, as amended, the National Labor Re- 8(a)(3) and (1) of the Act. 2 In accordance with his partial dissent in Olympic Medical Corporation, See Sullivan Magee & Sullivan. Inc.. 229 NLRB 543 (1977): Ancorp 250 NLRB 146 (1980), Member Jenkins would award interest on the National Services, Inc.. Casco Division, 202 NLRB 513 (1973). backpay due based on the formula set forth therein. D'AGATA NATIONAL TRUCKING CO. 323 lations Board hereby orders that the Respondent, posted. Reasonable steps shall be taken by Re- D'Agata National Trucking Co. and Carolina Na- spondent to insure that said notices are not altered, tional Trucking Co., Philadelphia, Pennsylvania, its defaced, or covered by any other material. officers, agents, successors, and assigns, shall: (e) Notify the Regional Director for Region 4, in 1. Cease and desist from: writing, within 20 days from the date of this Order, (a) Discharging or otherwise discriminating what steps the Respondent has taken to comply against employees because of their union activities. herewith. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- APPENDIX ercise of the rights guaranteed them in Section 7 of NOTICE TO EMPLOYEES the Act. 2. Take the following affirmative action which POSTED BY ORDER OF THE the Board finds will effectuate the policies of the NATIONAL LABOR RELATIONS BOARD Act: An Agency of the United States Government (a) Offer Jay Stuart Goldstein immediate and full reinstatement to his former job or, if such job no WE WILL NOT discharge or otherwise dis- longer exists, to a substantially equivalent position, criminate against employees because of their without prejudice to his seniority or any other union activities. rights or privileges previously enjoyed. WE WILL NOT in any like or related manner (b) Make Jay Stuart Goldstein whole for any interfere with, restrain, or coerce employees in loss of earnings he may have suffered due to the the exercise of the rights guaranteed them by discrimination practiced against him as provided in Section 7 of the Act. the section of this Decision entitled "The WE WILL offer immediate and full reinstate- Remedy." ment to Jay Stuart Goldstein to his former job (c) Preserve and, upon request, make available to or, if such job no longer exists, to a substan- the Board or its agents, for examination and copy- tially equivalent position, without prejudice to ing, all payroll records, social security payment re- his seniority or other rights and privileges pre- cords, timecards, personnel records and reports, viously enjoyed. and all other records necessary to analyze the WE WILL make Jay Stuart Goldstein whole, amount of backpay due under the terms of this with interest, for any loss of earnings he may Order. ~~~~~~~~~~Order. ~have suffered as a result of his unlawful dis- (d) Post at its Philadelphia, Pennsylvania, facili- hare ty, copies of the attached notice marked "Appen- dix."3 Copies of said notice, on forms provided by D'AGATA NATIONAL TRUCKING Co. the Regional Director for Region 4, after being AND CAROLINA NATIONAL TRUCK- duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt ING CO. thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily ' 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."