Lee & Sons Tree Service

LEE & SONS TREE SERVICE 905 Lee & Sons Tree Service and Carl Strothers and Gregory Strange. Cases 5-CA-18017 and 5- CA--18114 28 January 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On charges filed by the individual Charging Par- ties, the General Counsel of the National Labor Relations Board issued a complaint on 21 July 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(4) and (1) of the Na- tional Labor Relations Act. Although properly served copies of the charges and complaint, the Company failed to file an answer. On 16 October 1986 'the General Counsel filed a Motion for Summary Judgment. On 23 October 1986 the Board issued an order transferring the proceeding to the Board and Notice to Show Cause why the motion should not be granted. On 10 November 1986 the Company filed a Motion for Leave to File an Answer and Opposition to Motion for Summary Judgment. On 5 December 1986 the General Counsel filed an opposition to the Company's motion. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from the service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 10 days of service, "all of the allegations in the consolidated complaint shall be deemed to be admitted to be true and shall be so found by the' Board." Further, the undisputed allegations in the Motion for Sum- mary Judgment disclose that counsel for the Gen- eral Counsel on 2 October 1986 personally served on the Company a letter advising the Company of its obligation to file an answer, extending the date for filing an answer to 8 October 1986, and stating his intention to file a Motion for Summary Judg- ment if an answer was not received by that date. In support of its motion, the Company contends that its failure to file a timely answer was due to ignorance and excusable neglect. In this regard the Company asserts that its owner has a limited edu- cation, and that he was preoccupied with other as- pects of his business, and he mistakenly believed that matters addressed by the complaint had been resolved through the District of Columbia Office of Wage and Hour and that he would have the op- portunity to, present his "side of the story" at a hearing. As indicated above, however, it is undis- puted that a letter personally served by counsel for the General Counsel on 2 October specifically reit- erated the Company's obligation to answer the complaint. The Company offers no sufficient expla- nation for its failure to act for a month after the ex- tended deadline for filing a timely answer.' Under these circumstances, we find that the Company has not shown good cause for its failure to file a timely answer, and we deny its motion to file an untimely answer. 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 make the follow- ing FINDINGS OF FACT I. JURISDICTION The Company, a sole proprietorship owned by Melvin Lee with an office and place of business in Oxon Hill, Maryland, is engaged in the business of providing tree trimming service valued in excess of $50,000 anually to customers outside the State of Maryland. We find that the Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES About 11 April 1986 employees William John- son, Angelo Murphy, Louis Ross, Maurice Ross, Gregory Strange, and Carl Strothers concertedly complained to the District of Columbia Office of Wage and Hour regarding their wages. About 14 April 1986 the Company discharged these six em- ployees because of their protected concerted activi- ty. About 16 May 1986 the Company discharged employee Gregory Strange, who had been reinstat- ed on 28 April 1986, because he had sought protec- tion from the Board and had cooperated in the in- vestigation of Case 5-CA-18017. CONCLUSIONS OF LAW 1. By discharging employees William Johnson, Angelo Murphy, Louis Ross, Maurice Ross, Greg- ory Strange, and Carl Strothers for concertedly I See PM Cartage Co, 216 NLRB 688 (1975), Urban Laboratories, 249 NLRB 867 (1980) 282 NLRB No. 128 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaining to the District of Columbia Office of Wage and Hour regarding their wages , the Compa- ny has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discharging the reinstated Gregory Strange because he had sought the Board 's protection and had cooperated in the Board's investigation of an unfair labor practice case, the Company has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(4) an (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has unlawful- ly discharged employees William Johnson, Angelo Murphy, Louis Ross, Maurice Ross, Gregory Strange, and Carl Strothers, we shall order it to offer these employees immediate and full reinstate- ment to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and to make these employees whole for any loss of earn- ings they may have suffered as a result of the Re- spondent's unlawful discharges. Backpay shall be computed in the manner prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).2 ORDER The National Labor Relations Board orders that the Respondent, Lee & Sons Tree Service, Oxon Hill, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees for concertedly com- plaining to the District of Columbia Office of Wage and Hour regarding their wages. (b) Discharging an employee because he sought the Board's protection and had cooperated in the Board's investigation of an unfair labor practice case. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer William Johnson, Angelo Murphy, Louis Ross, Maurice Ross, Gregory Strange, and Carl Strothers immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci- sion. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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 its facility, in, Oxon Hill, Maryland, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered,'defaced, or covered by any other material. (e) Notify the Regional Director in ' writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 2 The complaint requests that as part of the remedy the Order include a provision for a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order. Under the circumstances of this case, we find it unnecessary to include such a clause 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 Nation- al 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 " LEE & SONS TREE SERVICE 907 APPENDIX- NOTICE To EMPLOYEES POSTED BY OR DER 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 ordered us to post and abide by this notice. WE WILL NOT discharge our employees for con- certedly complaining to the District of Columbia Office of Wage and Hour regarding their Wages. WE WILL NOTi discharge our employees because they seek the Board's protection and cooperate in the Board's investigation of an unfair labor practice case. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer William Johnson, Angelo Murphy, Louis Ross, Maurice Ross, Gregory Strange, and Carl Strothers immediate and full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of the employees that we have removed from our files any reference to his discharge and that, the discharge will not be used against him in any way. LEE & SONS TREE SERVICE