Cargo Point L.P.

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 74 (N.L.R.B. 2006)

346 NLRB No. 74
NOTICE: This opinion is subject to formal revision before publication in the
bound 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.
Cargo Point, L.P. and Teamsters Local Union 657,
affiliated with International Brotherhood of
Teamsters. Case 16–CA–24330
March 31, 2006
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER,
AND KIRSANOW
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and an
amended charge filed by the Union on June 15 and July
14, 2005, respectively, the Acting General Counsel is-
sued the complaint on August 31, 2005, against Cargo
Point, L.P. (the Respondent) alleging that it has violated
Section 8(a)(1) and (3) of the Act.
On September 7, 2005, the Respondent filed an an-
swer. By letter dated November 9, 2005, the Respondent
withdrew the answer.
On December 21, 2005, the Acting General Counsel
filed a Motion for Default Judgment with the Board. On
December 27, 2005, 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 stated
that unless an answer was filed by September 14, 2005,
all the allegations in the complaint could be considered
admitted.
Here, although the Respondent filed an answer to the
complaint, it subsequently withdrew its answer on No-
vember 9, 2005. The withdrawal of an answer has the
same effect as a failure to file an answer, i.e., the allega-
tions in the complaint must be considered to be true.1
Accordingly, based on the withdrawal of the Respon-
dent’s answer to the complaint, and in the absence of
good cause being shown for the failure to file an answer,

1 See Maislin Transport, 274 NLRB 529 (1985).
we grant the General Counsel’s Motion for Default Judg-
ment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Texas limited
partnership, has been engaged in the pickup and delivery
of express packages at its facility located at 4040 Binz
Engleman in San Antonio, Texas.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations within the State of Texas, derived gross reve-
nues in excess of $50,000 for the transportation of freight
in interstate commerce under arrangements with, and as
agent for, the common carrier, DHL Worldwide, a na-
tionally known entity that is directly engaged in interstate
commerce and operates between the various States of the
United States. Thus, based on its operations described
above, the Respondent functions as an essential link in
the transportation of freight in interstate commerce.
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 Teamsters Local Union 657, af-
filiated with the International Brotherhood of Teamsters
(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 following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Daniel Dean Davis — Owner
Javier Cortez — General Manager
On or about January 13, 2005, the Respondent, by
Javier Cortez, at its Binz Engleman facility:
(a) interrogated an employee about the protected, con-
certed, or union activities of other employees by ques-

2 On November 9, 2005, the Respondent’s owner advised the Region
that the Respondent intended to file for “Chapter 7, ‘No Asset’ bank-
ruptcy protection.” It is well established that the institution of bank-
ruptcy proceedings does not deprive the Board of jurisdiction or author-
ity to entertain and process an unfair labor practice case to its final
disposition. See Cardinal Services, 295 NLRB 933 fn. 2 (1989), and
cases cited there. Board proceedings fall within the exception to the
automatic stay provisions of the bankruptcy code for proceedings by a
governmental unit to enforce its police or regulatory powers. See id.,
and cases cited therein; NLRB v. 15th Avenue Iron Works, Inc., 964
F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns Aircraft, Inc. v.
NLRB, 703 F.2d 23 (1st Cir. 1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tioning whether the employee’s coworker was trying to
start a union; and
(b) threatened to discharge an employee in retaliation
for the employee’s protected, concerted, or union activi-
ties, if the employee was trying to start a union.
In or about January 2005, the Respondent, by Daniel
Dean Davis, threatened to discharge an employee if the
employee engaged in protected, concerted, or union ac-
tivities.
On or about February 11, 2005, the Respondent, by
Javier Cortez, at its Binz Engleman facility:
(a) interrogated an employee about the employee’s
protected, concerted, or union activities by questioning
whether the employee attended a union meeting;
(b) created the impression of surveillance of employ-
ees’ protected, concerted, or union activities by telling an
employee that there would be people watching the Un-
ion’s hall; and
(c) threatened to discharge employees in retaliation for
employees’ protected, concerted, or union activities by
telling an employee that whoever went to the Union’s
hall would be fired.
On or about February 11, 2005, the Respondent, by
Daniel Dean Davis, interrogated an employee by asking
the employee if he had attended a union meeting.
Sometime in or about February or March 2005, the
Respondent, by Javier Cortez, promulgated an unlawful
rule by instructing an employee not to discuss his wages
with a coworker.
On or about June 14, 2005, the Respondent, by Daniel
Dean Davis, threatened to retract a loan benefit if the
employees selected the Union as their collective-
bargaining representative.
On or about March 24, 2005, the Respondent dis-
charged employee Steven Santa Cruz. The Respondent
discharged Cruz because he formed, joined, or assisted
the Union and engaged in other concerted activities, and
to discourage employees from engaging in these activi-
ties.
CONCLUSIONS OF LAW
1. By interrogating employees about their protected
concerted and union activities; threatening to discharge
employees in retaliation for their protected concerted and
union activities; creating the impression of surveillance
of employees’ protected concerted and union activities;
instructing an employee not to discuss his wages with a
coworker; and threatening to retract a loan benefit if the
employees selected the Union, the Respondent has inter-
fered with, restrained, and coerced employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
2. By discharging employee Steven Santa Cruz be-
cause he formed, joined, or assisted the Union and en-
gaged in concerted activities, the Respondent has dis-
criminated in regard to the hire or tenure or terms and
conditions of employment of its employees, thereby dis-
couraging membership in a labor organization, in viola-
tion of Section 8(a)(3) and (1) of the Act.
3. The Respondent’s unfair labor practices affect
commerce within the meaning of 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 vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Steven Santa Cruz, we shall order the Respondent to of-
fer Cruz 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 and
privileges previously enjoyed. We also shall order the
Respondent to make Cruz whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent also
shall be required to remove from its files all references to
the unlawful discharge of Cruz, and to notify him in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Cargo Point, L.P., San Antonio, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their or other em-
ployees’ protected, concerted, or union activities.
(b) Threatening to discharge employees in retaliation
for their protected, concerted, or union activities.
(c) Creating the impression of surveillance of the em-
ployees’ protected, concerted, or union activities.
(d) Promulgating an unlawful rule by instructing em-
ployees not to discuss their wages with coworkers.
(e) Threatening to retract a loan benefit if the employ-
ees selected Teamsters Local Union 657 affiliated with
International Brotherhood of Teamsters (the Union) as
their collective-bargaining representative.
CARGO POINT, L.P. 3
(f) Discharging employees because they form, join, or
assist the Union, or any other labor organization, or en-
gage in other concerted activities.
(g) 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) Within 14 days from the date of this Order, offer
Steven Santa Cruz 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 and privileges previously enjoyed.
(b) Make Steven Santa Cruz whole for any loss of
earnings and other benefits suffered as a result of his
unlawful discharge, with interest, in the manner set forth
in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files all references to the unlawful discharge of
Steven Santa Cruz, and within 3 days thereafter, notify
him in writing that this has been done, and that the
unlawful discharge will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in San Antonio, Texas, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-

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.”
rent employees and former employees employed by the
Respondent at any time since January 2005.
(f) 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. March 31, 2006
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter C. Schaumber, Member
______________________________________
Peter N. Kirsanow, 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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate you about your or other em-
ployees’ protected, concerted, or union activities.
WE WILL NOT threaten to discharge you in retaliation
for your protected, concerted, or union activities.
WE WILL NOT create the impression of surveillance of
your protected, concerted, or union activities.
WE WILL NOT promulgate an unlawful rule by instruct-
ing you not to discuss your wages with coworkers.
WE WILL NOT threaten to retract loan benefits if you se-
lect Teamsters Local Union 657 affiliated with Interna-
tional Brotherhood of Teamsters (the Union) as your
collective-bargaining representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT discharge you because you form, join, or
assist the Union, or any other labor organization, or be-
cause you engage in concerted activities.
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, within 14 days from the date of the Board’s
Order, offer Steven Santa Cruz full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL make Steven Santa Cruz 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 the Board’s
Order, remove from our files all references to the unlaw-
ful discharge of Steven Santa Cruz, and WE WILL, within
3 days thereafter, notify him in writing that this has been
done, and that the unlawful discharge will not be used
against him in any way.
CARGO POINT, L.P.