H & D Trucking, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1990

297 N.L.R.B. 543 (N.L.R.B. 1990)

H & D TRUCKING 543
H & D Trucking, Inc. and Local 299, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO.
Case 7-CA-29281
January 16, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by Local 299, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO (the
Union) May 16, 1989, 1 the General Counsel of the
National Labor Relations Board issued a complaint
June 28 against H & D Trucking, Inc (the Re-
spondent), alleging that it has violated Section
8(a)(1) and (3) of the National Labor Relations
Act Although properly served copies of the
charge and complaint, the Respondent has failed to
file an answer
On August 11, the General Counsel filed Mo-
tions to Transfer Case to the Board and for Default
Summary Judgment, with exhibits attached On
August 16, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted The
Respondent filed no response However, on August
23 the General Counsel filed a Response to Order
to Show Cause and Motion to Strike Respondent's
Answer In his response and motion, the General
Counsel mdicates that on August 10, after the
motion for summary judgment had been forwarded
to the Board, the Regional Office received a letter
from the Respondent "purporting to be an Answer
to the Complaint" The General Counsel argues
that the Respondent's letter, which is attached to
the General Counsel's response, fails as a valid
answer to the complaint as it is untimely, with no
good cause shown for its untimeliness, is procedur-
ally defective because the Respondent filed only
the original and no copies, and because no certifi-
cate of service was included, fails to admit, deny,
or explain certain allegations of the complaint, and
fails to state any claim of a facially meritorious de-
fense The General Counsel therefore urges that
summary judgment is appropriate
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
All dates are 1989 unless otherwise indicated
that unless an answer is filed within 14 days of
service, "all of the allegations in the Complaint
shall be deemed to be admitted true and may be so
found by the Board "Section 102 21 requires that
an original and four copies of the answer be filed
with the Regional Director issuing the complaint,
and that the respondent serve a copy of the answer
on the other parties Furthermore, Section
102 114(b) requires that a party serving papers on
other parties submit a written statement of service
to the Board stating the names of the parties served
and the date and manner of service
The Respondent did not file an answer to the
complaint within 14 days of service of the com-
plaint as required by Section 102 20 of the Board's
Rules and Regulations According to the undis-
puted allegations in the motion for summary judg-
ment, by letter dated July 18 the Regional attorney
advised the Respondent that if an appropriate
answer was not filed by August 1, a Motion for
Default Summary Judgment would be filed No
answer was received by the Regional Office by
that date, and the Respondent did not request an
extension of time for filing an answer According-
ly, the General Counsel sought summary judgment
As noted above, on August 10, after the Motion
for Summary Judgment had been forwarded to the
Board, the Regional Office received a letter from
the Respondent, which was dated August 7 and
postmarked August 9 In its letter, the Respondent
denied the unfair labor practice allegations of the
complaint and requested that all charges be dis-
missed 2
We agree with the General Counsel that the Re-
spondent's letter does not constitute a proper
answer to the complaint under the Board's Rules
because it is untimely and procedurally defective
The July 18 letter from the Regional attorney ex-
tended the time for filing an answer to August 1
The Respondent's letter, which was dated August
7, postmarked August 9, and received by the Re-
gional Office on August 10, is clearly untimely
Moreover, the letter does not comply with the
Board's Rules requiring that a copy of the answer
be served on the other parties and that a written
statement of such service be submitted to the
Board We further note that the Respondent did
not respond to the Notice to Show Cause, and has
therefore failed to explain its failure to file a timely
and proper answer Accordingly, in view of the
'The Respondent's letter also specifically requested that the charges
pertaining to the discharge of employee Wayne Null be dismissed be-
cause Null had returned to work and because in an affidavit, which was
attached to the Respondent's letter, Null purported to 'withdraw all
charges" We note, however, that the charges concerning Null were filed
by the Union rather than by Null
297 NLRB No 78
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's failure to file an answer that corn-
ports with the Board's Rules, and in the absence of
good cause being shown for the failure to file a
timely and proper answer, we grant the General
Counsel's Motion for Summary Judgment For the
same reasons, we also grant the General Counsel's
motion to strike the Respondent's answer 3
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a Michigan corporation, main-
tains its principal office and place of business in
Dearborn, Michigan, which is the only facility in-
volved in this proceeding The Respondent is en-
gaged m the intrastate and interstate transportation
of freight During the year ending December 31,
1988, a representative period, the Respondent, in
the course and conduct of its business operations,
derived revenues in excess of $50,000 from serving
as a link m the transport of goods in interstate
commerce, said goods originating in the State of
Michigan and being transported by the Respondent
from the State of Michigan directly to points locat-
ed outside the State of Michigan In addition,
during the year ending December 31, 1988, the Re-
spondent derived gross revenues in excess of
$50,000 from the intrastate transportation of goods
on behalf of various enterprises, which enterprises
during the past calendar year had gross revenues in
excess of $500,000 and caused to be manufactured,
sold, and distributed from their Michigan facilities
products valued in excess of $50,000, which were
shipped directly to points located outside the State
of Michigan We find that the Respondent is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that the
Union is a labor organization within the meaning of
Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
About May 15, the Respondent, by its supervisor
and agent David Somers, at Respondent's place of
business, coercively interrogated employees in re-
spect to their activities on behalf of the Union
About May 15, the Respondent, by its supervisor
and agent Floyd Roberts, at the Respondent's place
of business, discharged employees Calvin LeBlanc,
Daniel Nibarger, Wayne Null, and Ronald Wolfe
The Respondent took these actions because of its
employees' activities, sympathies, and desires in re-
spect to the Union
3 We therefore find it unnecessary to pass on the General Counsel s
Contention that the purported "Answer" is otherwise deficient
By these acts the Respondent has interfered
with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the
Act, and has discriminated in regard to the hire or
tenure or terms and conditions of employment of
its employees, thereby discouraging membership in
a labor organization
CONCLUSIONS OF LAW
1 By coercively interrogating employees in re-
spect to their activities on behalf of the Union, the
Respondent 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 employees Calvin LeBlanc,
Daniel Nibarger, Wayne Null, and Ronald Wolfe,
the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(3) and (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 We shall order the Respondent to offer Calvin
LeBlanc, Daniel Nibarger, Wayne Null, and
Ronald Wolfe immediate and full reinstatement and
to make them whole for any loss of pay or benefits
they may have suffered as a result of the discrimi-
nation against them Backpay shall be computed in
the manner prescribed in F W Woolworth Co, 90
NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173
(1987)
ORDER
The National Labor Relations Board orders that
the Respondent, H & D Trucking, Inc. Dearborn,
Michigan, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Coercively interrogating employees in respect
to their activities on behalf of the Union
(b) Discharging employees because of their ac-
tivities, sympathies, and desires in respect to the
Union
(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 Calvin LeBlanc, Daniel Nibarger,
Wayne Null, and Ronald Wolfe immediate and full
H D TRUCKING 545
reinstatement to their former positions or, if such
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights and privileges previously enjoyed
(b) Make whole Calvin LeBlanc, Daniel Ni-
barger, Wayne Null, and Ronald Wolfe for any
loss of earnings or benefits they may have suffered
as a result of their unlawful discharges, as pre-
scribed in the remedy section of this decision
(c) Remove from its files any reference to the
unlawful discharges of Calvin LeBlanc, Daniel Ni-
barger, Wayne Null, and Ronald Wolfe, and notify
them in writing that this has been done and that
evidence of the unlawful discharges will not be
used as a basis for future personnel actions agamst
them
(d) 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
(e) Post at its facility in Dearborn, Michigan,
copies of the attached notice marked "Appendix "4
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, 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 mcludmg all places where no-
tices to employees are customanly 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
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
4 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
WE WILL NOT coercively interrogate employees
in respect to their activities on behalf of the Union
WE WILL NOT discharge employees because of
their activities, sympathies, and desires with respect
to the Union
WE WILL NOT m any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act
WE WILL offer Calvin LeBlanc, Daniel Ni-
barger, Wayne Null, and Ronald Wolfe immediate
and full reinstatement to their former positions or,
if such jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights and privileges previously en-
joyed
WE WILL make whole Calvin LeBlanc, Daniel
Nibarger, Wayne Null, and Ronald Wolfe for any
loss of earnings or benefits they may have suffered
as a result of their unlawful discharges, with inter-
est
WE WILL remove from our files any reference to
the unlawful discharges of Calvm LeBlanc, Daniel
Nibarger, Wayne Null, and Ronald Wolfe, and
notify them in writing that this has been done and
that evidence of the unlawful discharges will not
be used as a basis for future personnel actions
against them
H & D TRUCKING, INC