Hillcrest Packing Co.

National Labor Relations Board - Board Decisions

Feb 25, 1980

247 N.L.R.B. 1389 (N.L.R.B. 1980)

Hillcrest Packing Co., Inc. and Horace Davis. Case
4-CA-10435
February 25, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAI.E
Upon a charge filed on August 16, 1979, by Horace
Davis, an individual, and duly served on Hillcrest
Packing Co., Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 4, issued a
complaint on September 25, 1979, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge and
complaint and notice of hearing before an administra-
tive law judge were duly served on the parties to this
proceeding. Respondent failed to file a timely answer
to the complaint.
On November 26, 1979, counsel for the General
Counsel filed directly with the Board in Washington,
D.C., a Motion for Summary Judgment and for
Issuance of Decision and Order, with exhibits at-
tached. Subsequently, on November 30, 1979, the
Board issued an order transferring the proceeding to
the Board and Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent filed a document
entitled "Motion for Extension of Time to File
Answer," along with an answer. These documents
were received by the Board on January 4, 1980, 8
weeks after Respondent stated an answer would be
filed and 22 days after the deadline for receiving a
response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
247 NLRB No. 187
HILLCREST PACKING CO.
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 is filed, or any
allegations in the complaint not specifically de-
nied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the Board,
unless good cause to the contary is shown.
The complaint and notice of hearing served on
Respondent specifically stated that unless an answer
was filed to the complaint within 10 days from the
service thereof "all of the allegations of the complaint
shall be deemed to be admitted to be true and may be
so found by the Board." Further, according to the
Motion for Summary Judgment, counsel for the
General Counsel had several telephone conversations
with representatives of Respondent between on or
about October 19, 1979, and early in November 1979.
During said period a representative of Respondent
informed counsel for the General Counsel that an
answer would be filed during the week of November 6,
1979. As noted above, Respondent failed to file a
timely answer to the complaint or to timely respond to
the Notice To Show Cause.
In its untimely document entitled "Motion for
Extension of Time to File Answer," with an answer
attached, Respondent's counsel asserts that at the
"time of service of the initial documents in this
proceeding," it requested its then counsel, to whom it
forwarded all documents as they were received, to
represent its interest in this matter. "At about the time
this matter arose, Sam Kohn, President of Respondent
and [its then counsel] became involved in a fee dispute
regarding various billings" of counsel "pertaining to
work performed by" him for Sam Kohn and Respon-
dent. As a result of the fee dispute, that counsel,
"unbeknownest [sic] to Sam Kohn, did not perform
any work on this matter for Respondent, while
Respondent was lead [sic] to believe that its interests
were being protected." Respondent further states that
said counsel had all the documents, was not perform-
ing any work on the files, and refused to turn the
documents over to Respondent's present counsel until
the fee dispute was resolved. As we do not believe that
the aforementioned circumstances constitute good
cause within the meaning of Section 102.20 of the
Board's Rules and Regulations for failure to file a
timely answer, particularly in view of Respondent's
repeated promises to answer over an extended period
of time, and in view of Respondent's failure to file a
timely response to the Board's Notice To Show Cause,
1389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we shall grant the General Counsel's Motion for
Summary Judgment.'
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to file a
timely answer, the allegations of the complaint are
deemed admitted and are found to be true, and we
grant the General Counsel's Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, Hillcrest Packing Co., Inc., is, and
has been at all times material herein, a Pennsylvania
corporation, with an office and place of business in
Philadelphia, Pennsylvania, engaged in the slaughter,
processing, and nonretail sale of meat. During the past
year, in the course and conduct of its operations,
Respondent sold and shipped products, goods, and
materials valued in excess of $50,000 from its Phila-
delphia, Pennsylvania, facility directly to points out-
side the Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that
Respondent 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 it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLIVED
Amalgamated Food Processors Union Local 190 is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violation
At all times material herein, Sam Kohn, Respon-
dent's president, has been a supervisor within the
meaning of Section 2(11) of the Act and an agent of
Respondent within the meaning of Section 2(13) of the
Act. At its facility on or about August 2, 1979,
Respondent, acting through Sam Kohn, threatened
employees with unspecified reprisals because they
selected the Union as their bargaining representative.
Accordingly, we find that, by the aforesaid conduct,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
' Midor Managemnent Corp.., d/h/a Klein' Park Malnor. 235 NLR 64
(1978).
guaranteed in Section 7 of the Act, and Respondent
thereby has been engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
B. The 8(a)(3) Violation
On or about August 10, 1979, Respondent laid off
its employee Horace Davis, and at all times since then
Respondent has failed and refused, and continues to
fail and refuse, to recall Davis or to reinstate Davis to
his former or substantially equivalent position of
employment. Respondent has engaged in and is
engaging in such conduct because Horace Davis was
active in behalf of and sought representation by the
Union.
We accordingly find that, by the aforesaid conduct,
Respondent discriminated, and is discriminating, in
regard to hire or tenure or terms or conditions of
employment of its employees, thereby discouraging
membership in a labor organization, and Respondent
by such conduct has been engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section 111,
above, occuring in connection with the operations
described in section 1, above, have a close, intimate,
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.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (I) 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.
Having also found that Respondent discriminatorily
discharged employee Horace Davis, and thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act, we shall order Respondent to offer him immedi-
ate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss
of earnings he may have suffered by payment to him of
a sum of money equal to the amount he normally
1390
HILl.CREST PACKING CO.
would have earned as wages from the date of his
discharge to the date of Respondent's offer of rein-
statement, less net interim earnings. F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon
to be computed in the manner 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:
CONCIUSIONS OF LAW
I. Hillcrest Packing Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Food Processors Union Local 190
is a labor organization within the meaning of Section
2(5) of the Act.
3. Sam Kohn is a supervisor of Respondent within
the meaning of Section 2(11) of the Act and an agent
of Respondent within the meaning of Section 2(13) of
the Act.
4. By the acts and conduct described in section iii,
A, above, Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and thereby has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. By the acts and conduct described in section iii,
B, above, Respondent has discriminated and is dis-
criminating, in regard to hire or tenure or terms or
conditions of employment of its employees, thereby
discouraging membership in a labor organization, and
Respondent thereby has been engaged in unfair labor
practices within the meaning of Section 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
Relations Board hereby orders that the Respondent,
Hillcrest Packing Co., Inc., Philadelphia, Pennsylva-
nia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with unspecified repri-
sals because they selected a union as their bargaining
representative.
(b) Discharging or otherwise discriminating in
regard to hire or tenure of employment of any of its
employees because they acted on behalf of a union and
sought representation by a union.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
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 Horace Davis immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any loss
of pay he may have suffered by reason of the
discrimination against him 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 Philadelphia, Pennsylvania, facility
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 4, 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. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
See, generally. sis Plumbaing & Ileuang Co., 138 NLRH 716 (1962).
In Ille esent halt this Order is ellforced by a Judgment of a United States
Court of Appeals. the word, in the notice reading "Posted h) Order f the
National Lahir Relations Board" shall read "Poted Pursuant to a Judgment
of the nited Staltei Court or Appeal% Enforcing all Order of the National
L.ahor Relations ioard."
APPENDIX
NOTICi To EMPIOYFES
POS'rEoD BY ORDER OF THE
NATIONAL. LABOR RLATIONS BOARD
An Agency of the United States Government
WlI Wll. NOT threaten our employees with
unspecified reprisals because they select Amalga-
mated Food Processors Union Local 190, or any
other labor organization, as their bargaining
representative.
WE WIl.l NOT discourage membership in
Amalgamated Food Processors Union Local 190,
or any other labor organization, by discriminato-
1391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rily discharging or otherwise discriminating in
regard to hire and tenure of employment of any
of our employees because they join or assist the
aforesaid Union or any other labor organization,
or engage in other concerted activity for the
purpose of collective bargaining or any mutual
aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Horace Davis immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equilavent
position, without prejudice to his seniority and
other rights and privileges previously enjoyed,
and WE WILL make him whole for any loss of pay
he may have suffered by reason of the discrimina-
tion against him, with interest.
HII.l.CREST PACKING CO., INC.
1392