Bay Recycling, Inc

National Labor Relations Board - Board Decisions

Feb 23, 1989

292 N.L.R.B. 1289 (N.L.R.B. 1989)

BAY RECYCLING
Bay Recycling , Inc and Teamsters Local 70, Inter
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO Case 32-CA-9769
February 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
Upon a charge and an amended charge filed by
the Union on July 25 and August 16, 1988,1 respec
tively, the General Counsel of the National Labor
Relations Board issued a complaint against Bay Re-
cycling, Inc, the Respondent, alleging that it has
violated Sections+ 8(a)(1) 8(a)(3) of the National
Labor Relations Act Although properly served
copies of the charge and complaint, the Respond
ent has failed to file a timely answer
On November 7, 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 The Respondent
filed no response
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 counsel for the General Counsel, by
letter dated October 18, notified the Respondent
that unless an answer was filed by the close of
business on October 25, a Motion for Summary
Judgment would be filed No answer was received
from the Respondent by October 25 On October
27, counsel for the General Counsel had a tele
phone conversation with the Respondent's attorney
in which the Respondents attorney represented
that he would file an answer within a "couple of
days" On failing to receive an answer from the
Respondent by November 2, counsel for the Gen
eral Counsel mailed to the Board a Motion for
Summary Judgment, which was received on No
' All dates refer to 1988 unless otherwise stated
1289
vember 7 The Respondent filed an answer on No-
vember 7, in which it, inter alga, denied the unfair
labor practices alleged 2
In spite of being given two opportunities to file
an answer after the original due date and of being
on notice of the possible consequences for its fall
ure to do so, the Respondent did not file a timely
answer Nor has the Respondent offered an expla
nation along with its late filed answer (it also has
not responded to the Notice to Show Cause) for its
failure to file a timely answer or for its failure, at
any time, to request an extension of time to file an
answer In these circumstances, we find that the
Respondents ignoring the Board's procedures is in-
compatible with a showing of good cause Accord
ingly, we find that the Respondent has failed to
demonstrate good cause for its failure to file a
timely answer
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion to Strike and her
Motion for Summary Judgment 3
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a California corporation, with
offices and places of business in Oakland and Hay
ward, California, is engaged in the recycling of
paper, cardboard, aluminum, and glass products
During the past 12 months, in the course and con-
duct of its business operations, the Respondent sold
and shipped goods valued in excess of $50,000 to
customers located within the State of California,
each of which meets one of the Board s jurisdic
tional standards, other than the indirect inflow or
outflow standards
We find that the Respondent is an employer en
gaged in commerce within the meaning 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
2 On November 10 counsel for the General Counsel filed a motion to
strike the Respondents answer as untimely
s Odaly s Management Corp 292 NLRB 1287 issued today Even as
summg that the Respondents defenses to the complaint allegations are
meritorious Chairman Stephens would grant the General Counsels
Motion for Summary Judgment on the basis that the Respondent has
failed to explain its failure to file a timely answer or request an extension
of time for filing the answer Under the circumstances of this case Chair
man Stephens would view the Respondents conduct of repeatedly ignor
mg the Board s procedures and its warnings of the possible consequences
as willful and inexcusable neglect See his concurring opinion in Odaly s
292 NLRB No 141
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II ALLEGED UNFAIR LABOR PRACTICES
In February, the exact date(s) unknown, the Re
spondent's owner, Bob O'Connor,4 threatened em
ployees that if they selected the Union as their bar-
gaining representative, the Respondent would sell
its business and close its doors, employees would
be unemployed because the new owners would not
employ them, the Respondent would refuse to bar
gain with the Union and the employees would get
nothing out of collective bargaining negotiations,
the Respondent did not have to "put up with" the
Union and the employees would only be hurting
themselves, the employees and their families would
starve, and the Respondent could shut the doors
tomorrow " Also in February, Rudnick threatened
employees that the Respondent would have to
close if they selected the Union because it could
not afford the Union
By this conduct, we find the Respondent violat
ed Section 8(a)(1) of the Act
From about June 16 through June 19, employees
Mike Wills and Al Quintell concertedly ceased
work and engaged in an economic strike in protest
of the Respondent's late payment of wages About
June 20, Wills and Quintell made an unconditional
offer to return to work
About June 20, the Respondent discharged Wills
and Quintell and since that date has failed and re-
fused, and continues to fail and refuse, to reinstate
the two employees to their former positions of em-
ployment 5
CONCLUSIONS OF LAW
By the activities of the Respondent described in
section II, above, including its discharge of and
failure and refusal to reinstate Wills and Quintell
because they engaged in protected concerted activ
ity, 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
4 At all material times O Connor and Benny Bustamati the Respond
ent s dispatcher have been supervisors within the meaning of Sec 2(11)
of the Act and agents of the Respondent within the meaning of Sec 2(13)
of the Act and Sanford Rudnick a labor consultant to the Respondent
has been an agent of the Respondent within the meaning of Sec 2(13) of
the Act
5 The complaint alleges that the Respondent either discharged and
failed and refused to reinstate the two employees in violation of Sec
8(a)(3) and (1) of the Act or that in the alternative since about June 20
1988 the Respondent has simply failed and refused to return Wills and
Qumtell to work in violation of Sec 8(a)(1) The remedy is the same in
either case In any event because of the nature of their concerted activity
described above we find that the discharge and refusal to reinstate Wills
and Quintell violated Sec 8(a)(1) 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
Having found that the Respondent violated Sec
tion 8(a)(1) of the Act by discharging and failing
and refusing to reinstate Mike Wills and Al Quin-
tell, we shall order it to offer Wills and Quintell
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges
previously enjoyed and to make them whole for
any loss of earnings they may have suffered as a
result of their unlawful discharge and/or failure
and refusal to reinstate Backpay shall 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
Retarded, 283 NLRB 1173 (1987)
ORDER
The National Labor Relations Board orders that
the Respondent, Bay Recycling, Inc, Oakland and
Hayward, California, its officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Threatening employees that if they select the
Union, Teamsters Local 70, International Brother
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO as their exclusive
bargaining representative, the Respondent would
sell its business or close its doors, the employees
would be unemployed because the new owners
would not hire them, the employees and their fami-
lies would starve, the employees would only be
hurting themselves, the Respondent could refuse to
bargain with the Union and the employees would
`get nothing" out of collective bargaining, the Re
spondent did not have to "put up with" the Union,
the Respondent could "shut the doors tomorrow",
and the Respondent could not afford the Union
and it would have to close
(b) Discharging and/or failing and refusing to re
instate employees for engaging in protected con-
certed activities
(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
BAY RECYCLING
(a) Offer Mike Wills and Al Quintell immediate
and full reinstatement to their former positions or,
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and make them whole for any other loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of this decision
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way
(c) 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
(d) Post at its facilities in Oakland and Hayward,
California, copies of the attached notice marked
"Appendix "6 Copies of the notice, on forms pro
vided by the Regional Director for Region 32,
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 custom
arily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al
tered, 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
6 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
1291
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 threaten employees that if the em
ployees select the Union, Teamsters Local 70,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO as their bargaining representative, we
would sell our business or close our doors, the em
ployees would be unemployed because the new
owners would not hire them, the employees and
their families would starve, the employees would
only be hurting themselves, we could refuse to bar-
gain with the Union and the employees would `get
nothing" out of collective bargaining, we did not
have to "put up with" the Union, we could "shut
the doors tomorrow", and we could not afford the
Union and would have to close
WE WILL NOT discharge and/or fail and refuse
to reinstate employees for engaging in protected
concerted activities
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 Mike Wills and Al Quintell im
mediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed WE WILL make them whole for
any other loss of earnings and other benefits suf-
fered as a result of the discrimination against them,
less any interim earnings, plus interest
WE WILL notify Mike Wills and Al Quintell 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
BAY RECYCLING, INC