U S Telefactors Corp.

US TELEFACTORS CORP US Telefactors Corporation and Professional, Technical, and Clerical Employees Union, Local 707, affiliated with National Production Work- ers Union Case 13-CA-27948 March 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed by the Union August 17, 1988,1 and amended September 7, the General Counsel of the National Labor Relations Board issued a complaint September 26, against U S Tele factors Corporation, the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the Na- tional Labor Relations Act Although properly served copies of the charge and complaint, the Re- spondent has failed to file a timely answer On November 8, the General Counsel filed a Motion for Summary Judgment On November 10, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted On November 18, the Acting Regional Director for Region 13 issued an order referring to the Board the Re- spondent's Motion to Extend the Time to Answer or Otherwise Plead Thereafter, the General Coun- sel filed her opposition to the Respondent's motion, the Respondent filed a reply, and the General Counsel filed a response to the Respondent's reply 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 14 days from service of the complaint, unless good cause is shown The complaint states that unless an answer is filed within 14 days of service, "all the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board " Further, the undisputed alle- gations in the Motion for Summary Judgment dis- close that Board Agent James A Miller, by phone on October 19, and by letter dated October 20 and sent by certified mail, notified the Respondent that an answer had not been received although it was due October 12, and that a Motion for Summary Judgment would be filed unless an answer was re ceived by October 27 1 All dates refer to 1988 unless otherwise noted 567 As noted above, after the General Counsel filed her Motion for Summary Judgment, the Respond- ent filed a Motion to Extend the Time to Answer or Otherwise Plead, seeking an extension of time in which to file the answer it attached to its motion In its motion, the Respondent states that it was an- ticipating settlement of the matter, that one of its attorneys was ill from October 17 to 19, and that the Respondent's attorneys had an unusually heavy workload We find the Respondent's explanations do not constitute good cause for the failure to file a timely answer 2 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 Judg- ment 3 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a corporation with an office and place of business in Aurora, Illinois, is engaged in providing telephone communication services During the past calendar year, the Respondent, in the course and conduct of its business, has derived gross revenues in excess of $100,000, provided services valued in excess of $10,000 directly to en titres located outside the State of Illinois, and per formed services valued in excess of $50,000 for Chicago Triple A Motor Club and Centel Cable Television of Illinois, which entities are engaged in interstate commerce and meet the National Labor Relations Board's jurisdictional standards other than the indirect outflow or inflow standards We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES About August 13, certain of the Respondent's employees ceased work concertedly and engaged in a strike regarding their terms and conditions of 2 See Sorensen Industries 290 NLRB 1132 (1988) (the possible settle ment of a case does not provide an exemption from the requirement to file an answer) Ancorp National Services 202 NLRB 513 (1973) (the re spondent s explanation that it failed to previously file an answer because of the serious illness and consequent absence of its vice president was not deemed to constitute good cause) 3 Accordingly we deny the Respondents motion to extend the time to answer In granting the Motion for Summary Judgment Chairman Stephens has analyzed the Respondents explanations under the test enunciated by him in his concurring opinion in Odaly s Management Corp 292 NLRB 1115 (1989) and finds them wanting 293 NLRB No 59 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employment The strike took place at the Respond- ent's facility in Aurora, Illinois, and lasted until ap- proximately August 15 On that date, the Respond- ent discharged Alice Bnnda, Michelle Geihm, Cyn- thia Gonzales, Wendy Gonzales, Patricia McCar thy, Delores J Nash, Jeanne A Neupert, Ann Saye, Melissa Storer, and Cheryl L Wren because of their participation in the work stoppage The Respondent discharged these employees to discour age them from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection The Respondent also engaged in this conduct because these employees joined, supported, or assisted the Union By this conduct, the Respondent violated Section 8(a)(1) and (3) of the Act CONCLUSIONS OF LAW 1 U S Telefactors Corporation is an employer engaged in commerce within the meaning of Sec tion 2(6) and (7) of the Act 2 By discharging the employees listed in section II because of their union activities, or because of their participation in a work stoppage or other con- certed activities for the purpose of collective bar- gaining or other mutual aid or protection, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of 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 To remedy the Respondent's discharge of Alice Brinda, Michelle Geihm, Cynthia Gonzales, Wendy Gonzales, Patricia McCarthy, Delores J Nash, Jeanne A Neupert, Ann Saye, Melissa Storer, and Cheryl L Wren in violation of Section 8(a)(1) and (3) of the Act, we shall order that the Respondent offer them immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered by them because of their unlawful discharge, less any net in- terim earnings Backpay is to be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987) 4 We shall also order the Respondent to remove from its records any reference to the unlawful discharge of each employee and to provide each employee with writ- ten notice of the removal and that his or her un- lawful discharge will not be the basis of any future personnel action against him or her ORDER The National Labor Relations Board orders that the Respondent, U S Telefactors Corporation, Aurora, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Professional, Technical, and Clerical Employees Union, Local 707, affiliated with National Production Workers Union, or any other Union or for participating in a work stoppage or other concerted activities for the purpose of collective bargaining or other mutual aid or protection (b) 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 Alice Brinda, Michelle Geihm, Cynthia Gonzales, Wendy Gonzales, Patricia McCarthy, Delores J Nash, Jeanne A Neupert, Ann Saye, Melissa Storer, and Cheryl L Wren immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, in the manner set forth in the remedy section of the decision (b) 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 (c) Remove from its files any reference to the unlawful discharges of Alice Brinda, Michelle Geihm, Cynthia Gonzales, Wendy Gonzales, Patri cia McCarthy, Delores J Nash, Jeanne A Neu pert, Ann Saye, Melissa Storer, and Cheryl L 4 Interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 US TELEFACTORS CORP Wren and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (d) Post at its facility in Aurora, Illinois, copies of the attached notice marked "Appendix "5 Copies of the notice, on forms provided by the Re- gional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable 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 a 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER 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 569 WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting Professional, Technical, and Clerical Employees Union, Local 707, affiliated with National Production Workers Union, or any other union or for participating in a work stoppage or other concerted activity for the purpose of collective bargaining or other mutual aid or protection 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 Alice Brinda, Michelle Geihm, Cynthia Gonzales, Wendy Gonzales, Patricia McCarthy, Delores J Nash, Jeanne A Neupert, Ann Saye, Melissa Storer, and Cheryl L Wren im mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- nionty 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 Alice Brinda, Michelle Geihm, Cynthia Gonzales, Wendy Gonzales, Patricia McCarthy, Delores J Nash, Jeanne A Neupert, Ann Saye, Melissa Storer, and Cheryl L Wren that we have removed from our files any reference to their discharges and that the discharges will not be used against them in any way U S TELEFACTORS CORPORATION