O. R. Cooper and Son

National Labor Relations Board - Board Decisions

Sep 10, 1976

225 N.L.R.B. 1255 (N.L.R.B. 1976)

0. R. COOPER AND SON 1255
O. R. Cooper and Son and Donald D. Schaffer, Sr.
Case 38-CA-2715
September 10, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
Upon a charge filed on March 30, 1976, by Donald
D. Schaffer, Sr., an individual, herein called the
Charging Party, and duly served on O. R. Cooper
and Son, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Officer-in-Charge for Subregion 38, issued a
complaint and notice of hearing on May 17, 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)(4), (3), and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing be-
fore 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, on or about October
8, 1975, Respondent constructively discharged and
thereafter refused to reinstate the Charging Party be-
cause he engaged in union or protected concerted
activity and because he participated and testified ad-
verse to the Respondent in an earlier Board unfair
labor practice hearing. Respondent failed to file an
answer to the complaint.
On June 7, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 15, 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 Summary Judgment
should not be granted. Respondent thereafter filed a
response to Notice To Show Cause.
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 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
May 17, 1976, and served on Respondent by regis-
tered mail, return receipt dated May 21, 1976, specif-
ically states that, unless an answer to the complaint is
filed within 10 days from the service thereof, "all of
the allegations in said Complaint shall be deemed to
be admitted to be true and may be so found by the
Board." According to the uncontroverted allegations
of the Motion for Summary Judgment, on May 17,
1976, attorney Donald M. Reno, Sr., entered an ap-
pearance on behalf of the Respondent and, thereaf-
ter, on or about May 22, 1976, a copy of the com-
plaint and notice of hearing was served upon
Respondent's counsel by registered mail. By letter
dated May 21, 1976, which accompanied the com-
plaint, counsel for the General Counsel advised
Respondent's attorney that the answer was due on or
before May 27, 1976, and that he should make the
appropriate request to the Subregion Office if he
needed additional time to prepare an answer. No
such request was made. As no answer was filed be-
fore the May 27, 1976, due date, counsel for the Gen-
eral Counsel, on June 7, 1976, filed a Motion for
Summary Judgment pursuant to Section 102.20,
102.24, and 102.50 of the Board's Rules and Regula-
tions.
On June 15, 1976, the Board issued a Notice To
Show Cause why the General Counsel's motion
should not be granted and, on June 28, 1976, Re-
spondent filed a response thereto, entitled "Answer
and Denial of General Counsel's Motion for Summa-
ry Judgment." Respondent's response to the Notice
To Show Cause argues that the General Counsel's
Motion for Summary Judgment should not be grant-
ed, but does not deny any of the allegations of the
motion with respect to proper service of the com-
plaint on both Respondent and its attorney.' Except
for the allegation that Respondent's sole owner and
operator has been in various states of incapacitation
On the merits, the response to the Notice To Show Cause contends, in
effect, that the Charging Party voluntarily quit his employment rather than
being constructively discharged for his union or protected concerted activi-
ties, and because of his participation in a Board hearing
225 NLRB No. 180
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since an automobile accident on December 27, 1975,
therefore being unable to assist Respondent's attor-
ney in defense of this unfair labor practice charge,
Respondent's response offers no explanation whatso-
ever as to its failure to file a timely answer to the
complaint. In this regard, we note that the
Respondent's allegation regarding the incapacity of
its sole owner and operator could have been cited as
warranting a continuance of further proceedings
herein prior to the date on which the answer to the
complaint was due or after a timely answer to the
complaint had been filed. Under these circum-
stances, we do not believe Respondent's submissions
constitute good cause, within the meaning of Section
102.20 of the Board's Rules and Regulations, for fail-
ure to file a timely answer. Accordingly, under the
rule cited above, the allegations of the complaint
shall be deemed to be admitted to be true and are so
found, and we shall 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 THE RESPONDENT
Respondent is, and has been at all times material
herein, an individual proprietorship with offices and
places of business located at Urbana and Champ-
aign, Illinois. It is engaged in the business of the in-
trastate and interstate hauling of freight by truck.
During the past 12 months, a representative period,
Respondent had a gross volume of business in excess
of $500,000 of which more than $50,000 was derived
from furnishing interstate transportation services.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
11. THE CHARGING PARTY
Donald D. Schaffer, Sr., is an employee within the
meaning of Section 2(3) of the Act.
Ill. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local 26, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. The 8(a)(4) Violations
On or about October 8, 1975, Respondent con-
structively discharged employee Donald D. Schaffer,
Sr., and, since October 8, 1975, has refused and is
refusing to reinstate such employee because of his
participation and testimony adverse to the Respon-
dent in the unfair labor practice hearing in Case 38-
CA-2098.
We find that, by the acts and conduct set forth
above, Respondent has discharged or otherwise dis-
criminated against an employee because he has given
testimony under this Act, and thereby engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(4) of the Act.
B. The 8(a)(3) Violations
On or about October 8, 1975, Respondent con-
structively discharged employee Donald D. Schaffer,
Sr., and, since October 8, 1975, has refused and is
refusing to reinstate such employee because he en-
gaged in union or concerted activities protected by
the Act.
We find that, by the acts and conduct set forth
above, Respondent has discriminated, and continues
to discriminate, against an employee in regard to hire
or tenure of employment to discourage union or
other protected concerted activities, and thereby en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
C. The 8(a)(1) Violations
We find that, by the acts and conduct set forth in
sections A and B, above, Respondent has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing, an employee in the exercise
of the rights guaranteed him under Section 7 of the
Act, and thereby engaged in, and is engaging in, un-
fair 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 in section
IV, above, occurring in connection with its opera-
tions described in section 1, 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.
0 R COOPER AND SON 1257
IV. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(4),(3), and (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.
To remedy Respondent's discharge of Donald D.
Schaffer, Sr., in violation of Section 8(a)(4), (3), and
(1) of the Act, we shall order that Respondent offer
immediate and full reinstatement to him to his for-
mer job or, if such job no longer exists, to a substan-
tially equivalent job, without prejudice to his senior-
ity or other rights and privileges, and make him
whole for any loss of earnings he may have suffered
by payment to him of a sum equal to the amount he
normally would have earned as wages from the date
of his discharge to the date of 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. O. R. Cooper and Son is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Donald D. Schaffer, Sr., is an employee within
the meaning of Section 2(3) of the Act.
3. Chauffeurs, Teamsters and Helpers Local 26,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of
the Act
4. By constructively discharging and refusing to
reinstate Donald D. Schaffer, Sr., because of his par-
ticipation and testimony adverse to the Respondent
in an unfair labor practice hearing in Case 38-CA-
2098, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(4) and (1) of the Act.
5. By constructively discharging and refusing to
reinstate Donald D. Schaffer, Sr., because he en-
gaged in union or concerted activities protected by
the Act, thereby discouraging membership in or ac-
tivities on behalf of a labor organization, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of
the Act.
6. By interfering with, restraining, and coercing
Donald D. Schaffer, Sr., in the exercise of his rights
guaranteed in Section 7 of the Act, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) 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,
O. R. Cooper and Son, Urbana and Champaign, Illi-
nois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or refusing to reinstate or other-
wise discriminating against employees because they
have participated or testified adverse to the Respon-
dent in proceedings conducted under the Act.
(b) Discouraging membership in or activities on
behalf of Chauffeurs, Teamsters and Helpers Local
26, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization, by discharging or re-
fusing to reinstate any of its employees, or in any
other manner discriminating in regard to hire or ten-
ure of employment or any other term or condition of
employment because they join or assist the above-
named organization, or any other labor organization.
(c) 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
Donald D. Schaffer, Sr., to his former fob or, if such
job no longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earn-
ings 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 Urbana and Champaign, Illinois, fa-
cilities copies of the attached notice marked "Appen-
dix." I Copies of said notice, on forms provided by
the Officer-in-Charge for Subregion 38, after being
duly signed by Respondent's representative, shall be
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 "
1258 DECISIONS OF NATIONAL LABOR
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 Office-in-Charge for Subregion 38,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or refuse to reinstate
or otherwise discriminate against employees be-
cause they participate or testify against us in
proceedings conducted under the National La-
bor Relations Act.
RELATIONS BOARD
WE WILL NOT discourage membership in or ac-
tivities on behalf of Chauffeurs, Teamsters and
Helpers Local 26, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation, by discharging or refusing to reinstate
our employees, or in any other manner discrimi-
nating in regard to hire or tenure of employment
or any other term or condition of employment
because they join or assist the above-named or-
ganization, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act.
WE WILL offer immediate and full reinstate-
ment to Donald D. Schaffer, Sr., to his former
job or, if that fob no longer exists, to a substan-
tially equivalent job, without prejuidice to his
seniority or other rights and privileges, and
make him whole for any loss of earnings suf-
fered as a result of being discharged.
O. R. COOPER AND SON