Express Steel Structures

1 325 NLRB No. 68 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Express Steel Structures, Inc. and Iron Workers Local Union NO. 10, affiliated with Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO. Case 17–CA–19146 March 19, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS HURTGEN AND BRAME Upon a charge and amended charge filed by the Union on April 18 and July 10, 1997, the General Counsel of the National Labor Relations Board issued a complaint on July 16, 1997, against Express Steel Structures, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act. Although properly served copies of the charge, amended charge, and complaint, the Respond- ent failed to file an answer. On January 30, 1998, the General Counsel filed a Motion for Summary Judgment with the Board. On February 9, 1998, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. 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, un- less 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 al- legations in the Motion for Summary Judgment dis- close that the Region, by letter dated January 13, 1998, notified the Respondent that unless an answer were re- ceived by January 20, 1998, a Motion for Summary Judgment would be filed. 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 material times, the Respondent, a corporation, with an office and place of business in Kansas City, Kansas, has been engaged in the construction industry as a contractor engaged in the erection of metal build- ings. The Respondent, in conducting its business oper- ations, annually purchases and receives at its Kansas City, Kansas facility or at its jobsites located in the State of Kansas, goods valued in excess of $50,000 di- rectly from points outside the State of Kansas. We find that the Respondent is an employer engaged in com- merce 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 About March 25, 1997, the Respondent ordered an employee not to participate in protected concerted ac- tivity or union activity, and impliedly threatened em- ployees with termination if they chose to engaged in protected concerted activity or union activity. About March 26, 1997, the Respondent ordered em- ployees not to engaged in union activity. About March 27, 1997, the Respondent threatened employees with physical reprisals, including shooting employees, if employees engaged in union activity. Since about March 25, 1997, the Respondent refused to grant a promised wage increase to its employee Bruce Wilson. Beginning about March 28, 1997, and continuing thereafter, the Respondent refused to give instructions or job assignments to its employee Bruce Wilson. By this conduct, the Respondent caused the termination of its employee Bruce Wilson. The Re- spondent engaged in this conduct because the named employee joined or assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. CONCLUSIONS OF LAW By the acts and conduct described above, the Re- spondent has been interfering with, restraining, and co- ercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. By refusing to grant a promised wage increase to Bruce Wilson, refusing to give him instructions or job assignments, and thereby causing his termination, the Respondent has also been discriminating in regard to the hire or tenure or terms or conditions of employ- ment of its employees, and has thereby engaged in un- fair labor practices affecting commerce within the 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 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.’’ meaning of Section 8(a)(3) 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. Specifi- cally, having found that the Respondent has violated Section 8(a)(3) and (1) by refusing to grant Bruce Wil- son a promised wage increase since about March 25, 1997, and refusing, beginning about March 28, 1997, to give him instructions or job assignments, thereby terminating him, we shall order the Respondent to grant the promised wage increase to Wilson, retro- actively to March 25, 1997, offer him 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 privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay 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 expunge from its files any and all references to the un- lawful discharge, and to notify Bruce Wilson in writ- ing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Express Steel Structures, Inc., Kansas City, Kansas, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Ordering employees not to participate in pro- tected concerted activity or union activity, impliedly threatening employees with termination if they choose to engaged in protected concerted activity or union ac- tivity, or threatening employees with physical reprisals, including shooting employees, if they engage in union activity. (b) Refusing to grant promised wage increases to its employees or refusing to give instructions or job as- signments to them, thereby causing their termination, all because employees join or assist the Iron Workers Local Union No. 10, affiliated with the International Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Grant the promised wage increase to Bruce Wil- son, retroactively to March 25, 1997. (b) Within 14 days from the date of this order, offer Bruce Wilson immediate and full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his se- niority or any other rights or privileges previously en- joyed. (c) Make Bruce Wilson whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of this decision. (d) Within 14 days from the date of this order, ex- punge from its files any and all references to the un- lawful discharge of Bruce Wilson, and, within 3 days thereafter, notify him in writing that this has been done. (e) 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 pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this order. (f) Within 14 days after service by the Region, post at its facility in Kansas City, Kansas, copies of the at- tached notice marked ‘‘Appendix.’’1 Copies of the no- tice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent 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 Respondent to ensure that the no- tices 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 pro- ceedings, 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 March 25, 1997. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region 3 EXPRESS STEEL STRUCTURES, INC. attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. March 19, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Peter J. Hurtgen, Member llllllllllllllllll J. Robert Brame III, 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT order employees not to participate in protected concerted activity or union activity, impliedly threaten employees with termination if they choose to engaged in protected concerted activity or union activ- ity, or threaten employees with physical reprisals, in- cluding shooting employees, if they engage in union activity. WE WILL NOT refuse to grant promised wage in- creases to our employees or refuse to give instructions or job assignments to them, thereby causing their ter- mination, all because employees join or assist the Iron Workers Local Union No. 10, affiliated with the Inter- national Association of Bridge, Structural and Orna- mental Iron Workers, AFL–CIO. 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 grant Bruce Wilson the promised wage in- crease, retroactive to March 25, 1997. WE WILL, within 14 days from the date of this order, offer Bruce Wilson immediate and full reinstate- ment 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 privileges pre- viously enjoyed. WE WILL make Bruce Wilson whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in a decision of the National Labor Relations Board. WE WILL, within 14 days from the date of this order, expunge from our files any and all references to the unlawful discharge of Bruce Wilson, and, within 3 days thereafter, notify him in writing that this has been done. EXPRESS STEEL STRUCTURES, INC.