Town and Country Construction

386 TOWN AND COUNTRY CONSTRUCTION Robert Rogers, d/b/a Town and Country Construc- tion and Carpenters Local 433, United Brother- hood of Carpenters and Joiners of America, AFL-CIO. Case 14-CA-14530 June 3, 1981 DECISION AND ORDER Upon a charge filed on December 17, 1980, by Carpenters Local 433, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, and duly served on Robert Rogers, d/b/a Town and Country Construction, herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 14, issued a complaint and notice of hearing on January 22, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on December 12, 1980, Respondent discharged employees Fred Kinzinger, Erwin Retinghouse, Albert Schirmer, and Ron Zimmerman, and thereafter failed and re- fused, and continues to fail and refuse, to reinstate said employees because of their membership in the Union. No answer to the complaint having been filed, counsel for the General Counsel, on February 4, 1981,1 mailed a certified letter to Respondent ad- vising it that the Board's Rules and Regulations re- quired that an answer be filed within 10 days from the service of the complaint. This letter also in- formed Respondent that counsel for the General Counsel would consider moving for summary judg- ment if Respondent did not file an answer by Feb- ruary 9. Thereafter, on February 9, counsel for the General Counsel received a telegram from Robert Rogers, Respondent's owner, which states as fol- lows: "I deny all allegations and complaint issued against me in Case No. 14-CA-14530 [sic] accord- ing to my records all workers here have been paid." Counsel for the General Counsel immediate- ly called Rogers on the telephone, and advised him that Respondent's answer was inadequate as it con- stituted a mere general denial of the allegations in the complaint and suggested that Rogers secure legal counsel. Rogers then informed counsel for the General Counsel that he would be represented in I All dates herein are in 1981, unless otherwise indicated. 256 NLRB No. 62 this proceeding by Allen Hart. That same day, February 9, counsel for the General Counsel noti- fied Hart that Respondent's answer was untimely and lacked the specificity required by the Board's Rules and Regulations. Hart stated that he would file an appropriate answer by February 11. After receiving no further answer to the complaint, counsel for the General Counsel, on February 12, informed Hart by certified letter that he would move for summary judgment unless Respondent filed an adequate answer by the close of business on February 16. Respondent failed to do so. On February 18, Respondent submitted to the Region- al Director a written request for a 10-day extension of time to file an answer. The Regional Director denied the request on Feburary 19. On February 25, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on March 4, 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 Judg- ment should not be granted. Respondent has filed no response to the Notice To Show Cause and, ac- cordingly, the allegations of the Motion for Sum- mary Judgment stand uncontrovrted. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment The Board has the authority under the Act to es- tablish reasonable procedural rules regarding the time and manner of filing an answer to a com- plaint. Section 6 of the National Labor Relations Act provides that the Board "shall have authority . . .to make . . . in the manner prescribed by the Administrative Procedure Act, such rules and reg- ulations as may be necessary to carry out the pro- visions of this Act." Pursuant to this provision, the Board has promulgated rules regarding the filing of an answer to a complaint, including the require- ment that such answer be filed within a definite period. Thus, Section 102.20 of the Board's Rules and Regulations, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. 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 TOWN AND COUNTRY CONSTRUCTION 387 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. As in other judicial and administrative proceedings, the purpose of these requirements is to facilitate the joining of the issues and to reduce the area of liti- gation so that the rights of parties may be estab- lished more quickly and wrongs sooner rectified. The complaint and notice of hearing served on Respondent herein specifically states that unless an answer is filed to the complaint "within 10 days from the service thereof . . . all of the allegations in the complaint shall be deemed to be admitted to be true and may be so found by the Board." There- after, on February 9, 5 days after an answer was due, Respondent filed an answer consisting of a single general denial of all allegations in the com- plaint. We therefore find that Respondent's pur- ported answer was untimely, improper, and did not comply with the requirements of Section 102.20 of the Board's Rules and Regulations set forth above. 2 Further, after receiving Respondent's answer to the complaint, counsel for the General Counsel advised Respondent's owner and its coun- sel that the answer was inadequate under the Board's rules. Counsel for the General Counsel subsequently informed Respondent's counsel in writing that, unless an answer was filed by Febru- ary 16, the General Counsel would move for sum- mary judgment by the Board. Nevertheless, Re- spondent failed to file a timely valid answer to the complaint. Thereafter, on February 25, counsel for the General Counsel file with the Board a Motion for Summary Judgment. Thus, Respondent has failed to file an answer which complies with the Board's Rules and Regu- lations within 10 days from the service of the com- plaint, or within the extended time afforded it by the Regional Director. Since no good cause has been shown for Respondent's failure to file an answer or its further failure to file a response to the Notice To Show Cause, in accordance with Sec- tion 102.20 of the Board's Rules and Regulations, the allegations of the complaint herein stand un- controverted and are deemed to be admitted to be true, and are so found to be true. Accordingly, we grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 Neal B. Scott Commodities. Inc., 238 NLRB 32, 33 (1978) FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Robert Rogers, d/b/a Town and Country Con- struction, maintains its principal office and place of business at 9700 West Main Street, Belleville, Illi- nois, where it is, and at all times material herein has been, engaged as a general contractor in the construction industry. During the year ending De- cember 31, 1980, a representative period, Respond- ent, in the course and conduct of its business oper- ations, purchased and received at its various job- sites in the State of Illinois, goods and materials valued in excess of $50,000 from suppliers which had purchased and caused said goods to be deliv- ered to their Illinois places of business directly from points located outside the State of Illinois. We find on the basis of the foregoing that Robert Rogers, d/b/a Town and Country Con- struction, is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE UNFAIR LABOR PRACTICES On or about December 12, 1980, Respondent dis- charged its employees Fred Kinzinger, Erwin Re- tinghouse, Albert Schirmer, and Ron Zimmerman, and at all times since has failed and refused, and continues to fail and refuse, to reinstate or offer to reinstate said employees to their former jobs or substantially equivalent positions of employment, because of said employees' membership in and ac- tivities on behalf of the Union. On the basis of the foregoing, we find that Re- spondent has discriminated against its employees in regard to the terms and conditions of their employ- ment, thereby discouraging membership in a labor organization, and that by such conduct 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Robert Rogers, d/b/a Town and Country Construction, set forth in section III, above, occurring in connection with its operations 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 ob- structing commerce and the free flow of com- merce. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. Having found that Respondent discriminatorily discharged employees Fred Kinzinger, Erwin Re- tinghouse, Albert Schirmer, and Ron Zimmerman, we shall order that it offer these employees imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. We shall also order that Respondent make said employees whole for any loss of earnings they may have suffered due to the discrimination prac- ticed against them, to be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest there- on to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).3 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Robert Rogers, d/b/a Town and Country Construction, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Carpenters Local 433, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 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, co- erced, and discriminated against its employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Re- lations Board hereby orders that the Respondent, Robert Rogers, d/b/a Town and Country Con- 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Member Jenkins would award interest on the backpay due in accord- ance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). struction, Belleville, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees and failing and refus- ing to reinstate or to offer to reinstate employees to their former or substantially equivalent positions because they join or assist Carpenters Local 433, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organiza- tion, or engage in other concerted activities for the purposes of collective bargaining and mutual aid and protection. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer employees Fred Kinzinger, Erwin Re- tinghouse, Albert Schirmer, and Ron Zimmerman immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions without prejudice to their seniority on any other rights or privileges previous- ly enjoyed, and make them whole for any loss of earnings they may have suffered due to the dis- crimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, 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 Belleville, Illinois, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this 4 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labr Relations Board." TOWN AND COUNTRY CONSTRUCTION 389 Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees and fail and refuse to reinstate said employees to their former or substantially equivalent positions of employment because they join or assist Car- penters Local 433, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, or any other labor organization, or engage in other concerted activities for the purpose of collective bargaining and mutual aid and protection. WE WIL NOT in any like or related manner interfere wih, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act. WE WILL offer Fred Kinzinger, Erwin Re- tinghouse, Albert Schirmer, and Ron Zimmer- man immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prej- udice to their seniority or any other rights or privileges previously enjoyed. WE WILL make each of the four above- named employees whole for any loss of earn- ings they may have suffered due to the dis- crimination practiced against them, plus inter- est. ROBERT ROGERS, D/B/A TOWN AND COUNTRY CONSTRUCTION