Advanced Shipping, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1999

330 N.L.R.B. 62 (N.L.R.B. 1999)

330 NLRB No. 62
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
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.
Advanced Shipping, Inc. and General Teamsters,
Warehousemen & Helpers Union, Local 890, In-
ternational Brotherhood of Teamsters, AFL–
CIO. Case 21–CA–32512
December 30, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Upon a charge filed by the Union on January 26, 1998,
the General Counsel of the National Labor Relations
Board issued a complaint on June 21, 1999, against Ad-
vanced Shipping, Inc., the Respondent, alleging that it
has violated Section 8(a)(1) of the National Labor Rela-
tions Act. Although properly served copies of the charge
and complaint, the Respondent failed to file an answer.
On November 12, 1999, the General Counsel filed a
Motion for Summary Judgment with the Board. On No-
vember 15, 1999, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed a response to the Notice to Show Cause.
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 and 102.21 of the Board’s Rules and
Regulations provide 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, at
the Respondent’s request, granted extensions of time for
filing of an answer to September 7 and November 8,
1999.1 The Respondent did not request a further exten-
sion of time for filing an answer and failed to file an an-
swer by November 8, 1999, despite being notified by the
Region of its obligation to do so.
In response to the Notice to Show Cause, the Chapter 7
bankruptcy trustee filed an opposition to the General
Counsel’s Motion for Summary Judgment. The trustee’s

1 The General Counsel’s motion states that the Respondent was
placed in an involuntary Chapter 7 bankruptcy in April 1998, and that
the attorney for the Chapter 7 trustee entered an appearance in response
to the complaint. It is well established that the institution of bankruptcy
proceedings does not deprive the Board of jurisdiction or authority to
entertain and process an unfair labor practice case to its final disposi-
tion. See, e.g., Cardinal Services, 295 NLRB 933 fn. 2 (1989), and
cases cited there. Board proceedings fall within the exception to the
automatic stay provision for proceedings by a governmental unit to
enforce its police or regulatory powers. See id., and cases cited therein.
opposition asserts that she understood that the parties
were trying to reach a negotiated settlement of the case,
and that the only possible relief against the Respondent is
monetary relief because the Respondent has been defunct
since before being placed in bankruptcy in April 1998.
The trustee’s opposition also contends that “[t]he
NLRB’s claim for damages exceeds actual possible dam-
ages. There is no basis for a ‘priority’ claim in the bank-
ruptcy case.”
Attached to the Opposition, which was filed on No-
vember 26, 1999, is an “Answer to Complaint” dated
November 22, 1999 and signed by counsel for the trus-
tee. The answer states in full:
Martha Bowman, Chapter 7 trustee for Advanced
Shipping, Inc. hereby answers the complaint refer-
enced above as follows:
Based upon lack of information and belief, the
allegations of the complaint are denied.
We find that the trustee’s purported answer is un-
timely. The Respondent requested and received two ex-
tensions of time in which to file an answer, the latest of
which was November 8, 1999. The Respondent, how-
ever, did not file a document purporting to be an answer
until November 26, 1999, when the above-described an-
swer was attached to the trustee’s opposition to the Gen-
eral Counsel’s Motion for Summary Judgment. The Re-
spondent, through its trustee’s counsel, has not provided
any satisfactory explanation for its failure to file a timely
answer, despite being given two extensions of time and
the appropriate notice that failure to file an answer would
result in the filing of a Motion for Summary Judgment.2
In these circumstances, we find that the answer attached
to the trustee’s response to the Notice to Show Cause is
untimely. See Civetta Cousins, J.V., 327 NLRB No. 114
(1999), and the cases cited therein.
Further, even if we were to consider that document, we
find that it does not constitute a proper answer to the
complaint allegations under Section 102.20 of the
Board’s Rules and Regulations. It fails to address any of
the factual or legal allegations of the complaint, and
therefore is legally insufficient under the Board’s Rules.
See Eckert Fire Protection Co., 329 NLRB No. 79
(1999), and cases cited therein.
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.3
On the entire record, the Board makes the following

2 It is well established that the “possible settlement of a case does not
provide an exemption from the requirement to file an answer.” Soren-
sen Industries, 290 NLRB 1132, 1133 (1988).
3 Member Hurtgen joins in granting the General Counsel’s motion
solely on the basis that the Respondent’s answer to the complaint was
untimely.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Oregon cor-
poration, with various terminals located throughout Cali-
fornia, a post office box located at P.O. Box 1535, Va-
caville, California, and a terminal located in Bend, Ore-
gon, has been engaged in the transportation of merchan-
dise on behalf of its customers. During the 12-month
period ending December 31, 1997, a representative pe-
riod, the Respondent, in conducting its business opera-
tions described above, derived gross revenues in excess
of $50,000 for the transportation of freight and com-
modities from the State of California directly to points
outside the State of California. We find that the Respon-
dent 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
In about July 1997, the Respondent’s employees Cesar
Llamas, Cesar Nuno, Juan Zamarippa, and Jorge Zamo-
rano engaged in concerted activities with each other and
with other employees for the purposes of mutual aid and
protection, by complaining about, among other things,
low rates of pay, long hours, unsafe working conditions,
unfair assignment of shifts, failure to receive wages that
were due, and mistreatment by supervisors.
On about August 25, 1997, the Respondent’s employ-
ees Cesar Llamas and Carlos Rubio concertedly com-
plained to the Respondent regarding wages, hours, and
working conditions of the Respondent’s employees by
complaining about long hours and unfair assignment of
shifts.
The Respondent, at the Bend, Oregon terminal, dis-
charged: (1) employee Jorge Zamorano on about July 29,
1997; (2) employee Carlos Rubio on about August 26,
1997; and (3) employees Cesar Llamas, Cesar Nuno, and
Juan Zamarippa on about September 8, 1997.
The Respondent discharged the five employees named
above because they concertedly complained about the
subjects set forth above, and to discourage employees
from engaging in these or other concerted activities.
In about late August 1997, the Respondent, by its vice
president/director and its supervisor/dispatcher, at the
Oregon terminal, threatened to discharge an employee if
the employee continued to engage in protected concerted
activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has interfered with, restrained, and coerced employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act, and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 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 has violated Section 8(a)(1) of
the Act by discharging employees Cesar Llamas, Cesar
Nuno, Carlos Rubio, Juan Zamarippa, and Jorge Zamo-
rano, we shall order the Respondent to offer them 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 or
privileges previously enjoyed, and to make them whole
for any loss of earnings and other benefits suffered as a
result of their unlawful discharges, with interest. Back-
pay shall be computed in accordance with F.W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent shall also be required to
remove from its files any and all references to the unlaw-
ful discharges, and to notify the five employees in writ-
ing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Advanced Shipping, Inc., Vacaville, Cali-
fornia, and Bend, Oregon, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they concertedly complain to the
Respondent about low rates of pay, long hours, unsafe
working conditions, unfair assignment of shifts, failure to
receive wages that were due, and mistreatment by super-
visors.
(b) Threatening to discharge employees if they engage
in protected concerted activities.
(c) 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
Cesar Llamas, Cesar Nuno, Carlos Rubio, Juan
Zamarippa, and Jorge Zamorano full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Cesar Llamas, Cesar Nuno, Carlos Rubio,
Juan Zamarippa, and Jorge Zamorano whole for any loss
of earnings and other benefits suffered as a result of their
unlawful discharges, 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 and all references to the unlawful dis-
ADVANCED SHIPPING, INC. 3
charges of Cesar Llamas, Cesar Nuno, Carlos Rubio,
Juan Zamarippa, and Jorge Zamorano, and within 3 days
thereafter notify them in writing that this has been done
and that the discharges will not be used against them in
any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Bend, Oregon, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 cur-
rent employees and former employees employed by the
Respondent at any time since July 29, 1997.
(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. December 30, 1999
Sarah M. Fox, Member
Wilma B. Liebman, Member
Peter J. Hurtgen, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 In the event that the Board’s Order is enforced by a Judgment of
the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall be
changed to 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against employees because they concertedly complain to
us about low rates of pay, long hours, unsafe working
conditions, unfair assignment of shifts, failure to receive
wages that were due, and mistreatment by supervisors.
WE WILL NOT threaten to discharge employees if they
engage in protected concerted 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 this Order,
offer Cesar Llamas, Cesar Nuno, Carlos Rubio, Juan
Zamarippa, and Jorge Zamorano full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Cesar Llamas, Cesar Nuno, Carlos Ru-
bio, Juan Zamarippa, and Jorge Zamorano whole for any
loss of earnings and other benefits suffered as a result of
their unlawful discharges, with interest, with interest.
WE WILL, within 14 days from the date of this Order,
expunge from our files any and all references to the un-
lawful discharges of Cesar Llamas, Cesar Nuno, Carlos
Rubio, Juan Zamarippa, and Jorge Zamorano, and WE
WILL, within 3 days thereafter notify them in writing that
this has been done and that the discharges will not be
used against them in any way.
ADVANCED SHIPPING, INC.
330 NLRB No. 62