Garrett Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1982

262 N.L.R.B. 1497 (N.L.R.B. 1982)

GARRETT FREIGHT LINES, INC.
Garrett Freight Lines, Inc. and Thomas R. Gray,
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local 631, Party to the Contract.
Case 31-CA-10704-1
July 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
Upon a charge filed on December 10, 1980, by
Thomas R. Gray, herein called the Charging Party,
and duly served on Garrett Freight Lines, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 31, issued a complaint
and notice of hearing on February 20, 1981, and an
amended complaint and notice of hearing on Janu-
ary 29, 1982, against Respondent, alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the National Labor Relations Act, as amend-
ed. Copies of the charge, complaint and notice of
hearing, and amended 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
complaint alleges in substance that on December 3,
1980, Respondent threatened to refuse to use em-
ployee Gray as casual labor on the dock and there-
after failed and refused and continues to fail and
refuse to use Gray as a casual labor employee to
the extent Respondent would have used him had
he not attempted to invoke a provision in the col-
lective-bargaining agreement.
No answer to the complaint having been filed,
according to the uncontroverted documents sub-
mitted with the instant Motion for Summary Judg-
ment, counsel for the General Counsel, on March
30, 1981, advised Respondent by telephone that no
answer had been received and explained that an
answer, specifically admitting or denying each alle-
gation of the complaint, was required. Counsel for
the General Counsel on March 30, 1981, sent Re-
spondent a letter confirming this conversation.
Thereafter on April 1, 1981, Respondent sent a
letter to counsel for the General Counsel in which
it generally denied the commission of unfair labor
practices and stated that Gray, by his request, had
given up all rights to local work in order to engage
in another type of work for Respondent.
On October 14, 1981, counsel for the General
Counsel filed with the Administrative Law Judge a
Motion for Summary Judgment or in the alterna-
262 NLRB No. 183
tive for partial summary judgment and to strike
certain portions of Respondent's letter/answer on
the grounds that Respondent's letter fails to meet
the requirements of Section 102.20. On November
16, 1981, Respondent entered into an informal set-
tlement agreement. On December 3, 1981, the Re-
gional Office for Region 31, by letter, requested
Respondent to comply with the terms of the settle-
ment agreement. Thereafter, Respondent failed and
refused to comply with the terms of the settlement
agreement. On January 21, 1982, the Regional Di-
rector for Region 31, by letter, vacated and set
aside the settlement agreement. On January 29,
1982, the Regional Director for Region 31 issued
and served on Respondent an amended complaint
and notice of hearing. On February 11, 1982, the
Regional Director for Region 31 issued and served
on Respondent an erratum correcting the date of
hearing. Thereafter Respondent did not file an
answer to the amended complaint. On February 22,
1982, counsel for the General Counsel, by letter,
advised Respondent that no answer had been re-
ceived; explained that an answer must specifically
admit or deny every allegation in the amended
complaint; and advised Respondent that counsel for
the General Counsel intended to seek summary
judgment. On April 15, 1982, counsel for the Gen-
eral Counsel filed with the Board a motion to
transfer case to and continue proceedings before
the Board and for summary judgment. On April
29, 1982, the Board issued an order transferring
proceeding to the Board and Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
has filed no response to the Notice To Show Cause
and, accordingly, 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
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 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
1497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and notice of hearing issued on
February 20, 1981, and was duly served on Re-
spondent. It specifically stated that unless an
answer to the complaint is filed by Respondent
within 10 days of service thereof all the allegations
in the complaint "shall be deemed to be admitted
to be true and may be so found by the Board." As
noted above, on March 30, 1981, counsel for the
General Counsel advised Respondent both tele-
phonically and in writing that an answer had not
been received but extended the time for filing an
answer. While Respondent then filed its letter
dated April 1, 1981, as its purported answer, coun-
sel for the General Counsel thereafter filed a
Motion for Summary Judgment indicating that the
letter was not a legally sufficient answer. No
answer was thereafter filed by Respondent. Upon
revocation of the settlement agreement by the Re-
gional Director for Region 31 on January 21, 1982,
an amended complaint issued on January 29, 1982.
No answer was filed by Respondent to the amend-
ed complaint. On February 22, 1982, counsel for
the General Counsel advised Respondent in writing
that an answer had not been received and extended
the time for filing answer. No answer was thereaf-
ter filed by Respondent.
The General Counsel concluded that Respondent
did not file a legally adequate answer to the com-
plaint. Although Respondent, in its letter of April
1, 1981, generally denied that it had discriminated
against Gray, the letter was rejected on the ground
that this answer did not conform with Section
102.20 quoted above. In a telephone conversation
on March 30, 1981, and in letters dated March 30,
1981, and February 22, 1982, counsel for the Gen-
eral Counsel brought these matters to Respondent's
attention and outlined the requirements of a legally
sufficient answer. Respondent thereafter failed to
comply with these requirements, even though the
time period of such compliance was extended on
two occasions. And, as noted, Respondent has not
filed a response to the Notice To Show Cause.
It is clear that, when an answer to an unfair
labor practice complaint is not filed in compliance
with the Board's Rules, judgment may be rendered
on the basis of the complaint alone.' Therefore, no
Neal B. Scott Commodities, Inc., 238 NLRB 32, 33 (1978).
good cause to the contrary having been shown,
and in accordance with the rule set forth above,
the allegations of the complaint are deemed to be
admitted and are found to be true. Accordingly,
we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and had been at all times material
herein, a corporation duly organized under and ex-
isting by virtue of the laws of the State of Nevada,
with an office and principal place of business locat-
ed in Las Vegas, Nevada, where it is engaged in
the interstate transportation of freight. Respondent,
in the course and conduct of its business oper-
ations, annually sells and ships goods or services
valued in excess of $50,000 directly to customers
located outside the State of Nevada from points
within the State of Nevada. Respondent, in the
course and conduct of its business operations, annu-
ally derives gross revenues in excess of $500,000.
We find that Respondent is, and has been at all
times material herein, an employer engaged in com-
merce 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.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local 631, is a labor organization within the mean-
ing of Section 2(5) of the Act.
Ill. THE CHARGING PARTY
Thomas R. Gray is an employee within the
meaning of Section 2(3) of the Act.
IV. THE UNFAIR LABOR PRACTICES
At all times material herein, Respondent and the
Union have maintained in effect and enforced a
collective-bargaining agreement covering wages,
hours, and other terms and conditions of employ-
ment of certain employees of Respondent. On or
about December 3, 1980, Respondent's employee
Thomas R. Gray claimed the right to be paid for
"deadhead" time for certain line runs. The claim
made by Gray relates to terms and conditions of
employment covered by the collective-bargaining
agreement. On or about December 3, 1980, Re-
spondent, acting through its supervisor, Munns,
threatened to refuse to use Gray as casual labor on
the dock. Since on or about December 3, 1980, and
continuing to date, Respondent has refused to use
1498
GARRETT FREIGHT LINES, INC.
Gray as a casual labor employee to the extent that
Respondent would have used him had he not at-
tempted to invoke a provision in the collective-bar-
gaining agreement. Respondent engaged in the con-
duct described above in order to discourage em-
ployees from engaging in such activities or other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
Accordingly, we find that, by the aforesaid con-
duct, Respondent did interfere with, restrain, and
coerce, and is interfering with, restraining, and co-
ercing, its employees in the exercise of the rights
guaranteed them in Section 7 of the Act and that,
by the aforesaid conduct, Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth above in
section IV, 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.
VI. THE REMEDY
Having found that Respondent has engaged in
and is 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.
Such affirmative action shall include using
Thomas R. Gray as a casual labor employee to the
extent Respondent would have used him had he
not attempted to invoke a provision in the collec-
tive-bargaining agreement. We shall also order that
Respondent make Thomas R. Gray whole for any
loss he may have suffered as a result of Respond-
ent's refusal to use him as casual labor to the extent
Respondent would have used him if he had not at-
tempted to invoke a provision in the collective-bar-
gaining agreement, in accordance with the formula
set forth in F. W. Woolworth Company, 91 NLRB
289 (1950), with interest as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
I See, generally, Isis Plumnbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. The Respondent, Garrett Freight Lines, Inc.,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 631, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Thomas R. Gray is an employee within the
meaning of Section 2(3) of the Act.
4. By the acts described in section IV, above,
Respondent has interfered with, restrained, and co-
erced employees in the exercise of the rights guar-
anteed them in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the
Act.
5. 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,
Garrett Freight Lines, Inc., Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to use employees as casual labor
employees because they attempt to invoke a provi-
sion in the collective-bargaining agreement.
(b) 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 which
the Board finds will effectuate the policies of the
Act:
(a) Use Thomas R. Gray as a casual labor em-
ployee to the extent he would have been used had
he not attempted to invoke a provision in the col-
lective-bargaining agreement.
(b) Make Thomas R. Gray whole for any loss he
may have suffered in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon 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 Las Vegas, Nevada, place of busi-
ness copies of the attached notice marked "Appen-
1499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dix."3 Copies of said notice, on forms provided by
the Regional Director for Region 31, 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 Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
I 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to use employees as
casual labor employees because they attempt
to invoke a provision in the collective-bargain-
ing agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL use Thomas R. Gray as a casual
labor employee to the extent we would have
used him had he not attempted to invoke a
provision in the collective-bargaining agree-
ment.
WE WILL make Thomas R. Gray whole for
any loss he may have suffered due to the dis-
crimination practiced against him, with inter-
est.
GARRETT FREIGHT LINES, INC.
1500