Ogden Transportation Co.

National Labor Relations Board - Board Decisions

Aug 20, 1980

251 N.L.R.B. 356 (N.L.R.B. 1980)

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.
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.