PM Cartage Co.

National Labor Relations Board - Board Decisions

Feb 21, 1975

216 N.L.R.B. 688 (N.L.R.B. 1975)

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pat Malano d/b/a PM Cartage Co . and Louis Zeibert.
Case 13-CA-13543
February 21, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
Upon a charge filed on September 3, 1974, by
Louis Zeibert, an individual, herein called the
Charging Party, and duly served on Pat Malano
d/b/a PM Cartage Co., herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 13, issued a complaint on October 31, 1974,
against Respondent, alleging that Respondent 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 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
complaint alleges in substance that on August 26,
1974, Respondent discharged and thereafter failed
and refused to reinstate the Charging Party because
he had engaged in protected concerted activities for
the purpose of collective bargaining or mutual aid or
protection. Respondent failed to file an answer to the
complaint.
On December 2, 1974, counsel for the General
Counsel filed directly with the Board in Washington,
D.C., a Motion for Summary Judgment based upon
Respondent's failure to file an answer. Subsequently,
on December 9, 1974, the Board issued an Order
Transferring Proceeding to the Board and Notice To
Show Cause. On December 10, 1974, Respondent
filed with the Regional Director an answer to the
complaint admitting in part and denying in part the
allegations of the complaint and raising an affirma-
tive defense. On December 23, 1974, Respondent
filed his reply to the Notice To Show Cause, entitled
"Answer to Motion for Order Transferring Proceed-
ing to National Labor Relations Board and for
Summary Judgment." On December 30, 1974,
counsel for the General Counsel filed a response in
opposition thereto.
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,
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
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 served on the
Respondent specifically states that unless an answer
is filed to the complaint within 10 days from the
service thereof, "all of the allegations in the Com-
plaint shall be deemed to be admitted to be true and
may be so found by the Board."
The complaint, issued on October 31, 1974, was
served on the Respondent by registered mail but
returned "unclaimed." Respondent in his reply to the
Notice To Show Cause made the following admis-
sions : a telephone conversation on November 11,
1974, with counsel for the General Counsel in which
he was advised of the necessity of filing an answer by
November 13, 1974; personal service of the com-
plaint on November 15, 1974, at which time he was
advised to file an answer promptly; and receipt of a
telegram on November 19, 1974, from the Regional
Office advising that an answer was due November
20, 1974.
As indicated above, the Respondent's answer was
not filed until December 10, 1974, 25 days after
personal service of the complaint on November 15,
1974, and 20 days after the final date for filing as set
forth in the Regional Office's November 19 telegram.
Respondent's explanation for the late filing of the
answer is that he operates his own company working
from 15 to 20 hours a day and that, upon recognition
of the seriousness of the charge, he finally retained
an attorney who filed an answer. Having been
notified by the Regional Office of the necessity of
filing an answer, it is noted that Respondent failed to
contact the Region concerning an answer or an
extension of time to file. Respondent does not
explain, nor is it apparent, why his long workday and
his inability to appreciate the seriousness of the
charge prevented him from contacting the Regional
216 NLRB No. 124
PM CARTAGE CO.
Office or from earlier hiring legal counsel . We find
Respondent 's explanation does not constitute good
cause within the meaning of Section 102.20 of the
Board 's Rules and Regulations . Therefore , in accord
with the rule set forth above, the allegations of the
complaint are deemed to be admitted and are so
found by the Board, and the General Counsel's
Motion for Summary Judgment is granted.' On the
basis of the entire record, the Board makes the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Pat Malano, at all times material herein , has been
an individual proprietor doing business under the
trade name and style of PM Cartage Company with
his principal office and place of business located at
10506 Avenue B, Chicago, Illinois , where, at all times
material herein , he has engaged in the trucking
business . During the past calendar year, a represent-
ative period, in the normal course and conduct of his
operations, Respondent purchased and received
goods and services valued in excess of $50,000 from
points located outside the State of Illinois.
We find, on the basis of the foregoing, that
Respondent is, and has bee. 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 effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 731, affiliated with International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
The Respondent discharged Louis Zeibert on or
about August 26, 1974, and thereafter failed and
refused to reinstate Louis Zeibert because he had
engaged in concerted activities for the purpose of
collective bargaining or mutual aid or protection.
Accordingly, we find that by the aforesaid conduct,
Respondent has interfered with, restrained, and
coerced his employees in the exercise of the rights
guaranteed them under Section 7 of the Act, and, by
such conduct, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
' See Ancorp National Services, Inc., Casco Division, 202 NLRB 513
(1973); Cleveland Lithographers and Photoengravers International Union,
Local No. 24-P (Art Gravure Corporation of Ohio), 194 NLRB 636 (1971); H.
IV. EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
689
The activities of Respondent set forth in section
III, above, occurring in connection with his opera-
tions described in section I, 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 com-
merce.
V. 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 he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
We have found that Respondent discriminatorily
discharged and refused to reinstate or offer to
reinstate his employee Louis Zeibert and we shall
order reinstatement to his former position or a
substantially equivalent position. We shall also order
that Respondent make said employee whole for any
loss of earnings suffered because of the discrimina-
tion against him. Backpay shall be based upon the
earnings which he would normally have received
from the date of the discharge to the date of
Respondent's offer of reinstatement, less any net
interim earnings, and shall be computed on the basis
set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962). We shall also order him to cease and
desist from discharging or otherwise discriminating
against any employee for engaging in protected
concerted activity and from in any other manner
interfering with, restraining, or coercing employees in
the exercise of their Section 7 rights.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Pat Malano d/b/a PM Cartage Co. is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local No. 731, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the acts described in section III above
Respondent has interfered with, restrained, and
E Droese, d/b/a R & H Cabinet & Building Company, 182 NLRB 518
(1970).
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced , and is interfering with, restraining, and
coercing , employees in the exercise of the rights
guaranteed to them 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.
4. 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 Respondent, Pat
Malano d/b/a PM Cartage Co., Chicago, Illinois, his
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for engaging in protected concerted
activities for the purpose of collective bargaining or
mutual aid or protection.
(b) 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 to reinstate employee Louis Zeibert to his
former position or, if that job no longer exists, to a
substantially equivalent position, without prejudice
to his senority or other rights and privileges.
(b) Make whole employee Louis Zeibert for any
loss of pay he suffered as a result of the discrimina-
tion against him in the manner set forth in the
section of this Decision entitled "Remedy."
(c) 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.
(d) Post at his Chicago, Illinois, facility copies of
the attached notice marked "Appendix." 2 Copies of
said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 13, 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 discharge or otherwise discrimi-
nate against any employee for engaging in
protected concerted activities for the purpose of
collective bargaining or mutual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL offer to reinstate Louis Zeibert to his
former position or, if that job no longer exists, to
a substantially equivalent position, without preju-
dice to his senority or other rights or privileges,
and WE WILL make him whole for any loss of pay
he suffered as a result of the discrimination
against him.
PAT MALANO D/B/A PM
CARTAGE CO.