Ogden Transportation Co.

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ogden Transportation Co. and Robert Dave Stewart and Victor Greg Workman. Case 27-CA-6418- 2 August 20, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on November 2, 1979, by Robert Dave Stewart and Victor Greg Workman and duly served on Ogden Transportation Co., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 27, issued a complaint and notice of hearing on December 28, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. On Janu- ary 28, 1980, the Regional Director for Region 27 approved a settlement agreement providing for the posting of a notice to employees, and for reinstate- ment of employees Stewart and Workman, with backpay to be computed by the Regional Director in accordance with existing Board formula. Re- spondent having failed to comply with the terms of the settlement agreement, the Regional Director issued, on March 14, 1980, an "Order Setting Aside Settlement Agreement, Complaint and Notice of Hearing." Respondent failed to file an answer to the complaint. On May 14, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based on Respon- dent's failure to file an answer as required by Sec- tions 102.20 and 102.21 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended. An order transferring the proceeding to the Board and Notice To Show Cause was issued by the Board on May 29, 1980. Respondent has filed a response to the Notice To Show Cause. 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 Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides: 251 NLRB No. 55 The respondent shall, within 10 days from the service of the complaint, file an answer there- to. 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 which issued on March 14, 1980, was served on Respondent and states that "the Re- spondent shall file . . . an answer to said Com- plaint and Notice of Hearing within 10 days from the service thereof, and that unless it does so, all of the allegations in the Complaint and Notice of Hearing shall be deemed to be admitted to be true and may be so found by the Board." According to the uncontroverted allegations of the Motion for Summary Judgment, Respondent's president, Charles Boynton, by telephone communication on April 16, 1980, assured the Acting Regional Direc- tor that an answer to the complaint would be filed. No answer was filed. Boynton did not respond to a letter from the Acting Regional Director on April 28, 1980, extending the deadline for the receipt of an appropriate answer to May 5, 1980, or a letter of May 5, 1980, granting a second extension until May 12, 1980. As noted above, Respondent has not filed an answer to the complaint. Respondent's re- sponse to the Notice To Show Cause asserted, without explanation or supporting evidence, that it had "ceased operations" in March 1980. The mean- ing and implications of this assertion are matters which are best left to the compliance stage of this proceeding. No good cause to the contrary having been shown, in accordance with the Rules set forth above, the allegations of the complaint are deemed to be admitted and are Found to be true. Accord- ingly, we grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS O FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized, and existing by virtue of, the laws of the State of Utah and is engaged in the operation of a taxicab business in OGDEN TRANSPRTATION CO. 357 Ogden, Utah. During the past year, Respondent had gross revenues in excess of $450,000, pur- chased goods and materials valued in excess of $5,000 directly from sources outside the State of Utah, and performed services valued in excess of $50,000 for Union Pacific Railroad, Southern Pacif- ic Railroad, and Western Pacific Railroad, each of which companies is engaged in interstate com- merce, derives in excess of $500,000 gross annual revenue, and performs services valued in excess of $50,000 annually outside the State of Utah. We find, on the basis of the foregoing, that Re- spondent 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 effectuate the policies of the Act to assert jurisdiction herein. II1. THE UNFAIR LABOR PRACTICES On or about October 9, 1979, Respondent dis- charged Stewart and Workman, employees at its Ogden, Utah, operation, and at all times since has failed and refused, and continues to fail and refuse, to reinstate these employees to their former posi- tions of employment. Stewart and Workman were discharged because of their protected concerted ac- tivities. Accordingly, we find that by the aforesaid con- duct Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act, and by such conduct Respondent has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. IV. THE REMEDY Having found that Respondent has engaged in, and in engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discharged and has refused to reinstate employ- ees Robert Stewart and Victor Workman to their former or substantially equivalent positions, we shall order Respondent to offer them immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharges by payment to them of sums of money equal to the amounts they would have earned as wages from the date of their discharges to the date of Respon- dent's offer of reinstatement, less net earnings, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).' The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Ogden Transportation Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By the conduct described in section II, above, Respondent has interfered with, restrained, and co- erced, and is interfering with, restraining, and co- ercing, employees in the exercise of the rights guaranteed in Section 7 of the Act, and by such conduct Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Section 8(a)(1) 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Ogden Transportation Co., Ogden, Utah, its offi- cers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging employees because those em- ployees engaged in activities protected by Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: ' See. igenrally. I, Plumbinng &d eating Conpanv. 138 NlRB 716 (1962) However, in accordance with his dslent in Olvmpiw lMdical C(r- poraulol. 25() Nl RB No II (1980), Member Jenkinsr hould aard iereslt on the hackpac due based on the formula el forlh herein OGDEN TRANSORTATION Co. 357 358 DECISIONS OF NATIONAL LABOR RELATIONS HOARD (a) Offer Robert Stewart and Victor Workman immediate and full reinstatement to their former positions of employment or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of their discharges, in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, 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 Ogden, Utah, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Di- rector for Region 27, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge you for engaging in any activities protected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by the Na- tional Labor Relations Act, as amended. WE WILL offer to Robert Stewart and Victor Workman immediate and full reinstate- ment to their former positions or, if those posi- tions no longer exist, to substantially equiv- alent positions, without prejudice to their se- niority or other rights and privileges previous- ly enjoyed, and WE WILl make them whole for any loss of pay they may have suffered as a result of their discharges, plus interest. OGDEN TRANSPORTATION CO.