CAC Services

National Labor Relations Board - Board Decisions

Apr 25, 2003

338 N.L.R.B. 993 (N.L.R.B. 2003)

1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
CAC Services, Inc. and International Brotherhood of
Teamsters, Local 710, AFL–CIO. Case 13–CA–
40139–1
April 25, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
The General Counsel in this case seeks summary
judgment on the ground that the Respondent has failed to
file an answer to the complaint. Upon a charge and an
amended charge filed by the Union in Case 13–CA–
40139–1 on April 23, 2002 and August 22, 2002, respec­
tively, the General Counsel issued a complaint on August
29, 2002, and an amendment to the complaint on Sep­
tember 4, 2002, against the Respondent alleging that it
violated Section 8(a)(1) and (3) of the Act. Although
properly served copies of the charges, the complaint, and
the amendment to the complaint, the Respondent has
failed to file a timely answer.
On November 22, 2002, the General Counsel filed a
Motion for Summary Judgment with the Board. On De­
cember 3, 2002, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. On December 23,
2002, the Respondent filed with the Board a response to
the Notice to Show Cause and included an answer to the
complaint.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo­
tion for Summary Judgment disclose that the Region, by
letter dated October 29, 2002, notified the Respondent
that unless an answer was received by November 8,
2002, a Motion for Summary Judgment would be filed.
Despite having been advised that it was required to file
an answer to the complaint by the specified dates, the
Respondent did not do so until a month after the General
Counsel filed the Motion for Summary Judgment.
In its response to the Notice to Show Cause, the Re­
spondent argues that it has gone through a recent transi­
tion, including a change in personnel, so that the docu­
ments sent to the Respondent did not reach the proper
personnel for referral to legal counsel. The Respondent
also asserts that its human resources representative, who
was the person most familiar with the issues alleged in
the complaint, no longer works for the Respondent. The
Respondent attaches to its response an August 26, 2002
letter that it sent to the Ge neral Counsel. In that letter,
the Respondent stated that the alleged statements made
by its employees that resulted in the charges were not
true. Finally, as noted, the Respondent has now filed an
answer to the complaint.
We disagree with the Respondent’s implicit argument
that good cause has been demo nstrated for its failure to
file a timely answer, and we grant the General Counsel’s
Motion for Summary Judgment. Regarding the Respon­
dent’s assertion that a recent transition in its business
prevented its counsel from receiving the notice of
charges or the complaint, it is well settled that changes in
personnel and “preoccup[ation with other aspects of [the]
business” do not constitute good cause for a party’s fail­
ure to file a timely answer. Dong-A Daily North Amer­
ica, 332 NLRB 15 (2000) citing Lee & Sons Tree Ser­
vice, 282 NLRB (905) (1987) (“major turmoil” and de­
parture of key employees are not sufficient to establish
good cause). See also Windward Roofing & Construc­
tion Co., 333 NLRB 659 (2001).
Moreover, the Respondent’s August 26, 2002 letter
does not constitute a timely answer. It is a well estab­
lished general rule that statements of position submitted
during the postcharge, pre-complaint investigative stage
are insufficient to constitute answers to complaints. See
Associated Supermarket, 338 NLRB No. 104, slip op. at
2 fn. 5 (2003); Unlimited Security, Inc., 338 NLRB No.
58, slip op. at 1 (2002). See also Central States Xpress,
324 NLRB 442, 444 (1997) (stating that statements of
position in response to charges, “by their nature and their
limited preliminary role, are rarely sufficient . . . to stand
in the place of answers to complaints”).
Finally, we note that the Respondent does not dispute
receipt of the complaint, the amendment to the com­
plaint, or the reminder letter. Thus, the Respondent
clearly had notice of the charges. In view of the alleged
transition and its inability to contact legal counsel about
the complaint, the Respondent could have requested an
extension of time. Its failure to do so is another factor
showing lack of good cause. Day & Zimmerman Ser­
vices, 325 NLRB 1046, 1047 (1998).
338 NLRB No. 150
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the absence of good cause being shown for the fail­
ure to file a timely answer, we grant the General Coun­
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Illinois cor­
poration, with offices and places of business in Chicago
Heights, Illinois (the facilities), has been engaged in the
business of car hauling. During the calendar year pre-
ceding issuance of the complaint, the Respondent, in
conducting its business operations described above, sold
and shipped from its facilities products, goods, and mate-
rials valued in excess of $50,000 directly to points out-
side the State of Illinois. We find that the Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals have
held the following positions and have been supervisors of
the Respondent within the meaning of Section 2(11) of
the Act and agents of the Respondent within the meaning
of Section 2(13) of the Act:
Fred Carter–President and CEO

Green L. Davis –Vice-President of Operations

Will Long–Manager of Operations

Dartanyan Morgan–Director of Safety/Quality

At all material times, Dwain Speese has been an agent
of the Respondent within the meaning of Section 2(13)
of the Act.
On about April 8, 2002, the Respondent, by Dwain
Speese, at one of the Respondent’s facilities, threatened
to sue employees if they selected the Union as their bar-
gaining representative.
On about April 22, 2002, the Respondent, by Will
Long, at one of the Respondent’s facilities, interrogated
employees regarding employees’ union activities.
On about April 22, 2002, the Respondent, by Green L.
Davis, at one of the Respondent’s facilities, created the
impression that the union activities of employees were
under surveillance.
On about April 24, 2002, the Respondent, by Green L.
Davis and Dartanyan Morgan, at one of the Respondent’s
facilities, threatened to discharge employees if they se­
lected the Union as their bargaining representative.
On about April 22, 2002, the Respondent terminated
and has since failed to reinstate its employees Sidney
Manning, Lemuel McLaurin, and Manuel Smith.
The Respondent engaged in the conduct described
above because Sidney Manning, Lemuel McLaurin, and
Manuel Smith joined and assisted the Union and engaged
in concerted activities, and to discourage employees from
engaging in these activities.
CONCLUSIONS OF LAW
1. By threatening to sue employees if they selected the
Union as their bargaining representative, interrogating
employees regarding their union activities, creating the
impression that the employees’ union activities were
under surveillance, and threatening to discharge employ­
ees if they selected the Union as their bargaining repre­
sentative, the Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights guar­
anteed them in Section 7 of the Act in violation of Sec­
tion 8(a)(1) of the Act.
2. By discharging Sidney Manning, Lemuel McLaurin,
and Manuel Smith for joining and assisting the Union
and for engaging in concerted activities and in order to
discourage employees from engaging in those activities,
the Respondent has discriminated in regard to the hire or
tenure or terms and conditions of employment of its em­
ployees, thereby discouraging membership in a labor
organization in violation of Section 8(a)(1) and (3) of the
Act and affecting commerce within the meaning of Sec­
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer­
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent vio­
lated Section 8(a)(1) and (3) of the Act by discharging
and failing to reinstate employees Sidney Manning, Le­
muel McLaurin, and Manuel Smith, we shall order the
Respondent to offer them full reinstatement to their for­
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights and privileges previously enjoyed.
We shall also order the Respondent to make Sidney
Manning, Lemuel McLaurin, and Manuel Smith whole
for any loss of earnings and other benefits suffered as a
result of their unlawful terminations, with backpay to be
computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Further, we shall require the Respondent to remove from
its files any references to the unlawful terminations and
refusal to reinstate, and to notify the three employees in
writing that this has been done and that the terminations
will not be used against them in any way.
CAC SERVICES 3
ORDER
The National Labor Relations Board orders that the
Respondent, CAC Services, Inc., Chicago Heights, Illi­
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to sue employees if they selected the
Union as their bargaining representative.
(b) Interrogating employees about their union activities.
(c) Creating the impression that the employees’ union
activities are under surveillance.
(d) Threatening to discharge employees if they select
the Union as their bargaining representative.
(e) Terminating and refusing to reinstate employees
because they join and assist the Union and engaged in
concerted activities and to discourage employees from
engaging in those activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
(2) Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Sidney Manning, Lemuel McLaurin, and Manuel Smith
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed.
(b) Make whole Sidney Manning, Lemuel McLaurin,
and Manuel Smith for any loss of earnings and other
benefits suffered as a result of their unlawful termina­
tions, with interest, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the unlawful terminations
of Sidney Manning, Lemuel McLaurin, and Manuel
Smith, and within 3 days thereafter, notify them in writ­
ing that this has been done, and that the unlawful conduct
will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in Chicago Heights, Illinois, copies of the at­
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent and main­
tained for 60 consecutive days in conspicuous places in­
cluding all places where notices to employees are custom­
arily posted. Reasonable steps shall be taken by the Re­
spondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since April 8, 2002.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 25, 2003
Robert J. Battista, Chairman
Wilma B. Liebman, Member
R. Alexander Acosta, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
1 If 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT threaten to sue employees if they select
the Union as their bargaining representative.
WE WILL NOT interrogate employees regarding their
union activities.
WE WILL NOT create the impression that the union ac­
tivities of employees are under surveillance.
WE WILL NOT threaten to discharge employees if they
select a union as their bargaining representative.
WE WILL NOT terminate, refuse to reinstate, or otherwise
discriminate against employees because they join and as­
sist a union and engage in concerted activities, or to dis­
courage employees from engaging in these activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
order, offer Sidney Manning, Lemuel McLaurin, and
Manuel Smith reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
WE WILL make whole Sidney Manning, Lemuel
McLaurin, and Manuel Smith for any loss of earnings
and other benefits suffered as a result of the discrimina­
tion against them, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful terminations of Sidney Manning, Lemuel
McLaurin, and Manuel Smith, and WE WILL within 3
days thereafter, notify them in writing that this has been
done, and that our unlawful conduct will not be used
against them in any way.
CAC SERVICES, INC.