Alexis Construction

Alexis Construction, Inc. and Milwaukee and Southern Wisconsin District Council of Carpenters affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL- CIO. Case 30-CA-12132 February 7, 1994 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND TRUESDALE Upon a charge filed by the Union on May 27, 1993, the General Counsel of the National Labor Relations Board issued a complaint on June 30, 1993, against Alexis Construction, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act. On July 6, 1993, the Respondent filed an answer to the complaint. On November 5, 1993, the Regional Director received notice that the Respondent's assets had been placed in receivership in accord with the laws of the State of Wisconsin, pursuant to voluntary assignment. On November 30, 1993, the Respondent filed a withdrawal of answer. On December 27, 1993, the General Counsel filed a Motion for Summary Judgment with the Board. On January 3, 1993, 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 no response. The allegations in the motion are therefore undisputed. 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 Further, the undisputed allegations in the Motion for Summary Judgment disclose that the Respondent has withdrawn its answer. Such a withdrawal has the same effect as a failure to file an answer, i.e., the allegations in the complaint must be considered to be admitted to be true.¹ Accordingly, based on the withdrawal of the Respondent's 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 The Respondent, a corporation with an office and place of business in Menomonee Falls, Wisconsin, has been engaged in contract construction doing public works and commercial construction. During the 12- month period preceding June 30, 1993, the Respondent, in conducting its business operations, purchased and received at its Menomonee Falls, Wisconsin facility products and goods valued in excess of $50,000 directly from points outside the State of Wisconsin. We find that the Respondent 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 On May 5, 1993, the Respondent discharged its employee David Dowhie because Dowhie joined and assisted the Union and engaged in concerted activities and to discourage employees from engaging in these activities. CONCLUSION OF LAW By the acts and conduct described above, the Respondent has been discriminating in regard to hire or tenure of terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) 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 designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(3) and (1) by discharging employee David Dowhie, we shall order the Respondent to offer the discriminatee 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. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed 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 unlawful discharges, and to notify the discriminatee in writing that this has been done. ORDER 1 See Maislin Transport, 274 NLRB 529 (1985). The National Labor Relations Board orders that the Respondent, Alexis Construction, Inc., Menomonee 313 NLRB No. 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Falls, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for his or her membership in or activities on behalf of Milwaukee and Southern Wisconsin District Council of Carpenters affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO or any other labor organization. (b) In any like or related manner interfering with, restraining, 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 David Dowhie 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 and 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 this decision. (b) Remove from its file any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge 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 payroll records, social security payment records, timecards, 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 Menomonee Falls, Wisconsin, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not altered, defaced, 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 Respondent has taken to comply. Dated, Washington, D.C. February 7, 1994 James M. Stephens, Chairman Dennis M. Devaney, Member John C. Truesdale, 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 ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discriminate against any employee for his or her membership in or activities on behalf of Milwaukee and Southern Wisconsin District Council of Carpenters affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO or any other labor organization. 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 David Dowhie 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 and privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from the discharge. WE WILL notify him that we have removed from our file any reference to his unlawful discharge and that the discharge will not be used against him in any way. ²If 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." ALEXIS CONSTRUCTION, INC.