Harthan Construction Co.

HARTHAN CONSTRUCTION COMPANY Harthan Construction Company and Ernest Ransom. Case 6-CA-9821 June 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on December 20, 1976, and an amended charge filed on February 22, 1977, by Ernest Ransom, an individual, herein called the Charging Party, and duly served on Harthan Con- struction Company,' herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint on February 23, 1977, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(aX3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On March 21, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. The Board subsequently issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent failed to file a response to the Notice To Show Cause and, therefore, the allegations of the Motion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. 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 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. The complaint and notice of hearing served on the Respondent specifically states that unless an answer to the complaint is filed by Respondent within 10 days of service thereof "all of the allegations in the complaint shall be deemed to be admitted by it to be true and may be so found by the Board." Further, according to the Motion for Summary Judgment, on March 8, 1977, counsel for the General Counsel mailed to Respondent by registered mail a letter notifying it of its failure to file an answer and advising Respondent that unless an answer was filed by March 11, 1977, counsel for the General Counsel would move for Summary Judgment. No reply had been received by March 21, 1977, the date of this Motion for Summary Judgment. Accordingly, under the rule set forth above, no good cause having been shown for failure to file an answer, the averments of the complaint are deemed admitted and are found to be true and we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, with its principal office located in Girard, Pennsylvania, is engaged in the construction and excavation business. During the past 12 months, it performed services pursuant to contracts valued in excess of $50,000 outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 1. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local Union 18, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. The amended charge was served concurrently with the complaint. 230 NLRB No. 47 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES Respondent, on or about December 8, 1976, terminated the employment of the Charging Party and has failed and refused, and continues to fail and refuse, to reinstate him because of the Charging Party's lack of membership in the Union, notwith- standing the fact that the Union made no request for the termination of the Charging Party and that a union-security clause in the collective-bargaining agreement between Respondent and the Union could not have been invoked at the time of the termination. We find, accordingly, that by the aforesaid conduct Respondent discriminated in regard to the terms and conditions of employment of its employee, thereby encouraging membership in a labor organization and that by such conduct Respondent has engaged in, and is engaging in, unfair labor practices 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 set forth in section III, above, occurring in connection with its activities 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 obstructing com- merce and the free flow of commerce. 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 effectuate the policies of the Act. Since we have found that Respondent discrimina- torily discharged its employee, Ernest Ransom, and discriminatorily failed and refused to reinstate him, we shall order that Respondent 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 and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of such discrimination, by payment of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of said offer of reinstatement, less his net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 294 (1950), and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Since the unfair labor practices committed by Respondent were of a character which go to the very heart of the Act, we shall order Respondent to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent, Harthan Construction Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local Union 18, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts and conduct described in section III, above, Respondent has interfered with, re- strained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Relations Board hereby orders that the Respondent, Harthan Construction Company, Girard, Pennsylva- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in, or activities on behalf of, International Union of Operating Engi- neers, Local Union 18, AFL-CIO, or any other labor organization, by discharging or otherwise discrimi- nating in regard to the hire and tenure of employ- ment or any term or condition of employment of any of its employees. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Ernest Ransom immediate and full reinstatement to his former job or, if that job no longer exists, to substantially equivalent employ- ment, without prejudice to his seniority and other rights and privileges. (b) Make whole Ernest Ransom for any loss of pay he may have suffered by reason of the discrimination 390 HARTHAN CONSTRUCTION COMPANY against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his termination to the date of Respondent's offer of reinstatement, with interest, in the manner set forth in the section herein entitled "The Remedy." (c) Post at its Girard, Pennsylvania, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 2 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 Pursuant to a Judgment of the United States Court of Appeals Enforci'ig 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 WE WILL NOT encourage membership in, or activities on behalf of, International Union of Operating Engineers, Local Union 18, AFL-CIO, or in any other labor organization, by discharging employees, or otherwise discriminating in regard to hire and tenure of employment or any term or condition of employment of any of our employ- ees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choos- ing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Ernest Ransom 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 other rights and privileges and wE WILL make him whole for any loss of pay suffered as a result of the discrimination against him. HARTHAN CONSTRUCTION COMPANY 391