Coast Container Service, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1976

226 N.L.R.B. 159 (N.L.R.B. 1976)

COAST CONTAINER SERVICE, INC. 159
Coast Container Service, Inc. and Robert A. Amable.
Case 20-CA-11146
September 28, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
mary Judgment should not be granted. Respondent
did not file a response to Notice To Show Cause so
the allegations of the Motion for Summary Judgment
stand uncontroverted.
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
Upon a charge filed on March 3, 1976, by Robert
A. Amable, an individual, herein called the Charging
Party, and duly served on Coast Container Service,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional- Director for Region 20, issued a com-
plaint and notice of hearing on April 30, 1976,
against Respondent, alleging, that Respondent had
engaged in and was engaging in unfair labor practic-
es affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an Administrative Law Judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that (1) on or about Feb-
ruary 10 and 11, 1976, Respondent (a) threatened
employees with plant closure if they supported or
designated as their collective-bargaining representa-
tive Brotherhood of Teamsters and Auto Truck Driv=
ers, Local 85, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union; (b) interrogated
them concerning whether they signed union authori-
zation cards; and (c) promised them wage increases
in order to discourage joining or supporting the
Union and/or designing or selecting it as their repre-
sentative; (2) in early March 1976; Respondent
granted an employee a wage increase to persuade
him to disavow his support of the Union; and (3) on
or about February 17, 1976, and subsequently on
February 27 and March 4, 1976, the Respondent laid
off and terminated employees Robert Amable, Rob-
ert Tittel, and Robert Clark because of their union or
protected concerted activities. Respondent failed to
file a timely answer to the complaint.
On June 17, 1976, counsel for the General Counsel
filed directly with the Board a Motion, for Summary
Judgment with exhibits attached. Subsequently, on
June 23, 1976, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the, complaint, file an-answer-thereto.
The respondent shall specifically admit, deny, or
explain each of _the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions 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 ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing issued on
April 30, 1976, and duly served on Respondent on
May 1, 1976, specifically states that unless an answer
to the complaint is filed by Respondent within 10
days of service thereof "all of the allegations in the
Complaint shall be deemed to be admitted to be true
and may be so found by the Board." According to
the record herein, and the uncontroverted allegations
of the Motion for Summary Judgment, counsel for
the General Counsel, by letter dated June 9, 1976,
advised Respondent's representative that no answer
to the complaint had been filed and if no answer
were received by June 14, 1976, a Motion for Sum-
mary Judgment would be filed. No answer having
been filed by Respondent by that date counsel for
the General Counsel on June 15, 1976, issued the
Motion for Summary judgment herein which was re-
ceived by and filed with the Board in Washington,
D.C., on June 17, 1976.
In his letter of June 18, 1976, enclosing an answer
to the complaint, Respondent's counsel asserted that,
on June 16, 1976, after the Motion for Summary
Judgment had been issued, Respondent had secured
226 NLRB No. 28
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a Board attorney an extension of time to June
23, 1976, to file an answer and that, in addition, he
had sought withdrawal of the Motion for Summary
Judgment by the Regional Director. By letter dated
June 21, 1976, Respondent's counsel filed with the
Board a motion to dismiss the complaint. In reply,
counsel for the General Counsel, by letter to
Respondent's counsel dated June 23, 1976, with a
copy to the Board, advised that no extension had
been granted I and that it would be inappropriate to
withdraw her motion because it had been filed before
the extension of time to file an answer was requested,
and because no reasons were advanced to explain
why an answer was not promptly filed. Thereafter,
although the time for filing a response to the Notice
To Show Cause had been extended, Respondent's
counsel, by letter dated July 14, 1976, advised the
Board that Respondent's president had instructed
him not to file a response because the Company was
going out of business. As we do not believe that the
aforedescribed circumstances constitute good cause
within the meaning of Section 102.20 of the Board's
Rules and Regulations for failure to file a timely an-
swer, and in view of Respondent's failure to file a
response to the Notice To Show Cause, despite the
grant of an extension of time, we shall grant the Mo-
tion for Summary Judgment and deny the motion to
dismiss the complaint.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation with its prin-
cipal place of business in San Francisco, California,
is and has been since October 1976 engaged in the
business of transportation services in interstate com-
merce. During the 6-month period from October
1975 to March 31, 1976, inclusive, Respondent re-
ceived in excess of $30,000 for providing transporta-
tion services in interstate commerce. Projected on a
1-year basis, Respondent, in the course and conduct
of its business operations, will receive in excess of
$50,000 for providing transporation services in inter-
state commerce.
We find, on the basis of the foregoing, the Respon-
dent 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
1 Counsel for the General Counsel also noted that only the Regional Di-
rector can grant an extension of time to file an answer under Sec 102 22 of
the Board's Rules and Regulations , Series 8, as amended
effectuate the policies of the Act to assert jurisdiction
herein.
11. THE LABOR ORGANIZATION INVOLVED
Brotherhood of Teamsters and Auto Truck Driv-
ers, Local 85, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE CHARGING PARTY
Robert Amable is an employee within the meaning
of Section 2(3) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violations
On or about February 10 and 11, 1976, the Re-
spondent (1) threatened employees with plant closure
if they supported the Union or designated or selected
the Union as their collective-bargaining representa-
tive; (2) interrogated employees concerning whether
they signed authorization cards in support of a peti-
tion for an election; and (3) promised employees
wage increases in order to discourage them from
joining or supporting the Union, and/or designating
or selecting the Union as their collective-bargaining
representative. Early in March 1976, Respondent
granted an employee a wage increase in order to per-
suade him to disavow his support of the Union.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act, and, by such
conduct, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
B. The 8(a)(3) and (1) Violations
On or about February 17, 1976, Respondent laid
off its employees Robert Amable, Robert Tittel, and
Robert Clark because of their activities on behalf of
the Union and/or because of their protected concert-
ed activities. On or about February 27, 1976, Re-
spondent terminated its employee Robert Amable
and on or about March 4, 1976, terminated employ-
ees Robert Tittel and Robert Clark because of their
activities on behalf of the Union and/or because of
their protected concerted activities.
COAST CONTAINER SERVICE, INC. 161
Accordingly, we find that, by the aforesaid con-
duct, Respondent discriminated in regard to the
terms and conditions of employment of its employ-
ees, thereby discouraging membership in a labor or-
ganization and that, by the aforesaid conduct, Re-
spondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (I) of the Act, we shall
order that it cease and desist therefrom, and that it
take certain affirmative action 'as set forth below de-
signed to effectuate the purposes and policies of the
Act.
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily laying
off employees Robert Amable, Robert Tittel, and
Robert Clark and thereafter discriminatorily termi-
nating them, we shall order 'Respondent to offer
them immediate and full reinstatement to their for-
mer jobs or, if such jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other, rights and, privileges and make
them whole for any loss of earnings they may have
suffered by payment to them of sums equal to the
amount they normally would have earned as wages
from the date of their layoffs to the date of reemploy-
ment, if reemployed, and from' the dates of their ter-
minations to the date of the Respondent's offer of
reinstatement, less net earnings, in accordance with
the formula set forth in F. W.' Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAw
1. Respondent , Coast Container Service, Inc., is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Brotherhood of Teamsters and Auto Truck
Drivers, Local 85, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Robert Amable is an employee within the
meaning of Section 2(3) of the Act.
4. By the acts described in section IV, A, above,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair la-
bor practices within the meaning of Section 8(a)(1) of
the Act.
5. By the acts described in section IV, B, above,
Respondent has discriminated, and is discriminating,
in regard to hire or tenure of employment or any
term or condition of employment to encourage or
discourage membership in any labor . organization
and has thereby engaged in, and is thereby engaging
in, unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 Respondent, Coast
Container Service, Inc., San Francisco, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure if
they supported the Brotherhood of Teamsters and
Auto Truck Drivers, Local 85, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, or des-
ignated or selected the above Union as their collec-
tive-bargaining representative.
(b) Interrogating employees concerning whether
they had signed union authorization cards in support
of a petition for an election.
(c) Promising employees wage increases in order
to discourage them from joining or supporting the
above Union, and/or designating or selecting the
above Union as their collective-bargaining represen-
tative.
(d) Granting an employee a wage increase in or-
der to persuade the employee to disavow his support
of the above-named Union.
(e) Discouraging membership in the above Union,
or any other labor organization, by discriminatorily
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laying off or terminating employees or by otherwise
discriminating in regard to hire or tenure of employ-
ment or any term and condition of their employ-
ment.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to
Robert Amable, Robert Tittel, and Robert Clark to
their former jobs or, if those jobs no longer exist, to
substantially -equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of earnings in the
manner set forth in the section herein entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(c) Post at its San Francisco, California, place of
business copies of the attached notice marked "Ap-
pendix." 2 Copies of said notice, on forms provided
by the Regional Director for Region 20, after being
duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 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
WE WILL NOT threaten employees with plant
closure if they support the Brotherhood of
Teamsters and Auto Truck Drivers, Local 85,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or designate or select the above Union as their
collective-bargaining representative.
WE WILL NOT interrogate employees concern-
ing whether they had signed union authorization
cards in support of a petition for an election.
WE WILL NOT promise employees wage in-
creases in order to discourage them from joining
or supporting the above Union, and/or desig-
nating or selecting the above Union as their col-
lective-bargaining representative.
WE WILL NOT grant an employee a wage in-
crease in order, to persuade the employee to dis-
avow his support of the above Union.
WE WILL NOT discourage membership in the
above Union, or any other labor organization,
by discriminatorily laying off or terminating em-
ployees or by otherwise discriminating in regard
to hire or tenure of employment or any term and
condition of their employment.
WE WILL offer immediate and full reinstate-
ment to Robert Amable, Robert, Tittel, and
Robert Clark to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them
whole for any loss of pay suffered as a result of
being discriminatorily laid off and terminated.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7of
the Act.
COAST CONTAINER SERVICE, INC.