International Total Services

National Labor Relations Board - Board Decisions

May 20, 1991

303 N.L.R.B. 16 (N.L.R.B. 1991)

16
303 NLRB No. 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 According to the certified mail receipt, the Respondent received the com-
plaint on December 5, 1990.
2 Neither is that failure adequately explained by the Respondent’s claim that
the complaint and notice of hearing was not received until after the time for
filing an answer, a claim that in any event is belied by the signed receipt ac-
knowledging service of the complaint. See fn. 1, supra.
International Total Services, Inc. and Allen A.
Moss. Case 22–CA–17311
May 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by Allen A. Moss, an individ-
ual, on October 18, 1990, and an amended charge filed
on November 8, 1990, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
November 30, 1990, against International Total Serv-
ices, Inc., the Respondent, alleging that it has violated
Section 8(a)(1), (3), and (4) of the National Labor Re-
lations Act. Although properly served copies of the
charge, the amended charge, and complaint, the Re-
spondent has failed to file a timely answer.
On January 25, 1991, the General Counsel filed a
Motion for Summary Judgment, with exhibits attached.
On January 30, 1991, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
The Respondent filed an untimely response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Section 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. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the complaint shall be deemed to be admitted
to be true and shall be so found by the Board.’’ Fur-
ther, the undisputed allegations in the Motion for Sum-
mary Judgment disclose that the complaint specified
that an answer was to be filed by December 14, 1990.
The Respondent did not file an answer, nor did it re-
quest an extension of time to file. By letter dated De-
cember 27, 1990, however, the Respondent was given
an extension of time until January 3, 1991, to file its
answer and was notified that failure to file an answer
by the close of business on that date would result in
the filing of a Motion for Default Judgment. Again, no
answer was filed. On January 4, 1991, the Respond-
ent’s counsel was notified by telephone that its answer
had not been received. She conceded that she had re-
ceived the December 27, 1990 letter and indicated that
an answer would be filed that day. During that tele-
phone conversation, the Respondent was given a sec-
ond extension of time until close of business January
9, 1991, to file an answer. The Respondent did not file
an answer.
On February 20, 1991, the Respondent filed with the
Board a motion for leave to file answer out of rule
contending that its failure to file a timely answer was
due to the Respondent’s failure to receive the com-
plaint until after the expiration of the time period for
filing its response due to a relocation of its corporate
headquarters,1 that there exists a genuine dispute with
regard to the complaint, and that the denial of a hear-
ing on the matter will result in a substantial inequity.
On February 20, 1991, the Respondent also filed a mo-
tion in opposition to the General Counsel’s Motion for
Summary Judgment asserting, inter alia, that the Re-
spondent believed the charges had been withdrawn in
December.
On March 11, 1991, the General Counsel filed a
reply to the Respondent’s motions contending that the
complaint was duly served on the Respondent, that
there was sufficient opportunity for it to submit a time-
ly answer, and that the Respondent has failed to estab-
lish a sufficient reason for its failure to file a timely
response to the Board’s Order to Show Cause.
As indicated above, it is undisputed that the General
Counsel granted to the Respondent an extension of
time to file a timely answer on two separate occasions.
Further, during a telephone conversation between the
General Counsel and the Respondent’s counsel she
conceded that the December 27, 1990 letter was re-
ceived. The letter explicitly stated that ‘‘if an Answer
is not received by the close of business’’ on January
3, 1991, ‘‘a Motion for Default Judgment will be
filed.’’ The Respondent has not offered a sufficient ex-
planation for its failure to act until about 6 weeks after
the second extended deadline for filing a timely an-
swer. Therefore, we deny the Respondent’s motion for
leave to file an answer out of rule.
We reject the Respondent’s motion in opposition as
a response to the Notice to Show Cause because it is
both untimely filed and lacking in merit. The response
was due on February 13 but was not received until
February 20. The Respondent’s contention that it
thought the charge had been withdrawn in December
does not excuse its failure to file a timely response to
a notice that clearly shows the existence of any agency
proceeding on the charge.2 Nor does the contention
have merit as a reason for denying the General Coun-
sel’s Motion for Summary Judgment. The General
Counsel’s letter to the Respondent dated December 27
and his telephone conversation with the Respondent’s
counsel on January 4 made it clear that the charge had
17INTERNATIONAL TOTAL SERVICES
not been withdrawn and that the Respondent continued
to have an obligation to answer the complaint.
Accordingly, we find that ‘‘good cause’’ does not
exist for excusing the late filing of the answer. In the
absence of good cause being shown for the failure to
file a timely answer, we grant the General Counsel’s
Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, the Respondent, a corporation,
with a place of business in Newark, New Jersey, has
been engaged in providing skycap services to various
airline companies including Continental Airlines. Dur-
ing the 12 months preceding issuance of the complaint,
the Respondent in the course and conduct of its oper-
ations provided services valued in excess of $50,000
for Continental Airlines, an enterprise within the State
of New Jersey, which is directly engaged in interstate
commerce. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. We also find that the
Skycap Review Board is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About October 15, 1990, the Respondent discharged
Allen A. Moss, its employee. The Respondent engaged
in such conduct against Moss because he joined, sup-
ported, or assisted the Union, and engaged in concerted
activities for the purpose of collective bargaining or
other mutual aid and protection, and in order to dis-
courage employees from engaging in such activities or
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. We find
that the Respondent’s discharge of Moss violated Sec-
tion 8(a)(3) and (1) of the Act.
Since about November 8, 1990, the Respondent has
refused to reinstate employee Moss to his former posi-
tion of employment. The Respondent has engaged in
such conduct against Moss because he filed charges
and gave testimony under the Act. We find that the
Respondent’s refusal to reinstate Moss violated Section
8(a)(4) and (1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Allen A. Moss because he joined,
supported, or assisted the Union and engaged in con-
certed activity for the purposes of collective bargaining
or other mutual aid or protection, the Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Sec-
tion 2(6) and (7) of the Act.
2. By refusing to reinstate Moss to his former posi-
tion of employment because he filed charges and gave
testimony under the Act, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(4) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged employee Allen A. Moss, we shall order the
Respondent to offer him immediate and full reinstate-
ment to his former position or, if this position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and to make him whole
for any loss of earnings he may have suffered as a re-
sult of the Respondent’s unlawful conduct. Backpay
shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987). We shall also order the Respondent to remove
from its files any reference to the unlawful discrimina-
tion against Moss and notify Moss in writing that this
has been done and that the unlawful discrimination
will not be used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, International Total Services, Inc., Newark,
New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engaged in union or concerted
activities.
(b) Refusing to reinstate employees to their former
positions of employment because they filed charges
and gave testimony under the Act.
(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) Offer Allen A. Moss immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of the decision.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(b) Remove from its files any reference to the un-
lawful discrimination against Allen A. Moss and notify
him in writing that this has been done and that this un-
lawful action will not be used against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payrolls records, social security payment records, time-
cards, 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 its facility in Newark, New Jersey, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any of you because of your union or concerted
activities.
WE WILL NOT refuse to reinstate you to your former
positions of employment because you file charges or
give testimony under the Act.
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 offer Allen A. Moss immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings he may have suffered
as a result of our discrimination against him, with in-
terest.
WE WILL remove from our files any reference to the
unlawful discrimination against Allen A. Moss and no-
tify him in writing that this has been done and that our
unlawful action will not be used against him in any
way.
INTERNATIONAL TOTAL SERVICES, INC.