Presitige Messenger Service Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1998

327 N.L.R.B. 36 (N.L.R.B. 1998)

327 NLRB No. 36
1
NOTICE: This opinion is subject to formal revision before publication in the
Board volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Prestige Messenger Service, Inc. and Chauffeurs,
Teamsters and Helpers Local Union No. 175, af-
filiated with the International Brotherhood of
Teamsters, AFL–CIO. Cases 9–CA–35647 and
9–CA–35757
November 24, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
Upon charges and an amended charge filed by the
Union on January 14, March 2 and 20, 1998, the Acting
General Counsel of the National Labor Relations Board
issued a complaint on April 6, 1998, against Prestige
Messenger Service, Inc., the Respondent, alleging that it
has violated Section 8(a)(1) and (3) of the National La-
bor Relations Act. Subsequently, on April 20, 1998, the
Respondent filed an answer to the complaint. On Octo-
ber 7, 1998, however, the Respondent withdrew its an-
swer.
On October 19, 1998, the Acting General Counsel
filed a Motion for Summary Judgment with the Board.
On October 21, 1998, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board's Rules and
Regulations provide 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. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Respon-
dent, on October 7, 1998, withdrew its answer to the
complaint. Such a withdrawal has the same effect as a
failure to file an answer, i.e., the allegations in the com-
plaint must be considered to be admitted to be true.1
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel's Motion for Summary Judgment.
On the entire record, the Board makes the following

1 See Maislin Transport, 274 NLRB 529 (1985).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the operation of a multistate parcel
delivery and courier service at its facilities in Huntington
and Nitro, West Virginia. During the 12-month period
preceding issuance of the complaint, the Respondent, in
conducting its business operations described above, pur-
chased and received at its Huntington and Nitro, West
Virginia facilities, goods valued at more than $50,000
directly from points outside the State of West Virginia.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(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
At all material times, the Respondent has maintained
the following rule:
SOLICITATION
Solicitation of goods or services to customers by em-
ployees is strictly prohibited. Distribution of handbills
or literature to customers for advertising, political or
religious purposes is strictly prohibited. Solicitation of
goods or services to other employees must be approved
in advance by management. Distribution of handbills
or literature to other employees for advertising, political
or religious purposes must be approved in advance by
management.
On about September 27, 1997, the Respondent, by its
supervisor and agent, Iraj Pourfarhadi, at its Nitro, West
Virginia facility, prohibited an employee from soliciting
or speaking to other employees about the Union in the
Respondent’s facility, and created an impression among
its employees that their union activities and sympathies
were under surveillance.
In about November 1997, the Respondent, through its
supervisor and agent, Michael Collins, at its Nitro, West
Virginia facility, threatened employees by telling them
that (1) voting for the Union would make things worse
for employees because they could lose their jobs; (2) if
they voted for the Union, things would get worse and
they would lose their jobs; (3) those who voted for the
Union would not have a job after he took over; (4) those
who voted for the Union would lose their jobs after the
election; and (5) if they voted in the Union, the Respon-
dent’s contractor, Airborne Express, would pull its con-
tract.
In about December 1997, the Respondent, by Michael
Collins, threatened employees with loss of jobs if they
voted for the Union.
On about December 20, 1997, the Respondent dis-
charged employee Shane Walsh because he joined, as-
sisted, or supported the Union and engaged in concerted
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
activities, and to discourage employees from engaging in
those activities.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has interfered with, restrained, and coerced employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.2
By discharging Shane Walsh, the Respondent has dis-
criminated in regard to hire or tenure or terms and condi-
tions of employment, thereby discouraging membership
in a labor organization in violation 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 cer-
tain 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. Specifically, having
found that the Respondent has maintained an unlawful
rule in violation of Section 8(a)(1), we shall order the
Respondent to rescind the rule. Further, having found
that the Respondent has violated Section 8(a)(3) and (1)
by discharging Shane Walsh, we shall order the Respon-
dent to offer him full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed. We also shall
order the Respondent to make Walsh whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against him. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent
also shall be required to remove from its files any refer-
ence to Walsh’s unlawful discharge, and to notify him in
writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Prestige Messenger Service, Inc., Nitro,
West Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining the following unlawful rule:
SOLICITATION
Solicitation of goods or services to customers by em-
ployees is strictly prohibited. Distribution of handbills
or literature to customers for advertising, political or
religious purposes is strictly prohibited. Solicitation of

2 In joining his colleagues in concluding that the Respondent vio-
lated Sec. 8(a)(1) by maintaining its solicitation rule, Member Brame
emphasizes that the Respondent has withdrawn its answer and, accord-
ingly, the complaint allegation is deemed admitted to be true.
goods or services to other employees must be approved
in advance by management. Distribution of handbills
or literature to other employees for advertising, political
or religious purposes must be approved in advance by
management.
(b) Threatening employees that things would get
worse, that they would lose their jobs, and that the Re-
spondent’s contractor, Airborne Express, would termi-
nate its contract, if they select Chauffeurs, Teamsters and
Helpers Local Union No. 175, affiliated with the Inter-
national Brotherhood of Teamsters, AFL–CIO, as their
bargaining representative.
(c) Creating an impression among employees that their
union activities are under surveillance.
(d) Prohibiting employees from soliciting or speaking
to fellow employees about the Union in the Respondent’s
facility.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its unlawful rule set forth above.
(b) Within 14 days from the date of this Order, offer
Shane Walsh full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Make Shane Walsh whole for any loss of earnings
and other benefits suffered as a result of his unlawful
discharge, in the manner set forth in the remedy section
of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Shane Walsh, and within 3 days thereafter, notify him in
writing that this has been done and that his discharge will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Nitro, West Virginia, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
PRESTIGE MESSENGER SERVICE
3
3
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 27, 1997.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. November 24, 1998
Sarah M. Fox, Member
Peter J. Hurtgen, Member
J. Robert Brame III, Member
(SEAL) 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT maintain the following unlawful rule:
SOLICITATION
Solicitation of goods or services to customers by em-
ployees is strictly prohibited. Distribution of handbills
or literature to customers for advertising, political or
religious purposes is strictly prohibited. Solicitation of
goods or services to other employees must be approved
in advance by management. Distribution of handbills
or literature to other employees for advertising, political
or religious purposes must be approved in advance by
management.
WE WILL NOT threaten you that things would get
worse, that you would lose your jobs, and that our con-
tractor, Airborne Express, would terminate its contract, if
you select Chauffeurs, Teamsters and Helpers Local
Union No. 175, affiliated with the International Brother-
hood of Teamsters, AFL–CIO, as your bargaining repre-
sentative.
WE WILL NOT create an impression among you that
your union activities are under surveillance.
WE WILL NOT prohibit you from soliciting or speaking
to fellow employees about the Union in our facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind our unlawful rule set forth above.
WE WILL, within 14 days from the date of this Order,
offer Shane Walsh full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Shane Walsh whole for any loss of
earnings and other benefits suffered as a result of his
unlawful discharge, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Shane Walsh, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that his discharge will not be used against him in any
way.
PRESTIGE MESSENGER SERVICE, INC.