Tetmyer Construction Co.

TETMYER CONSTRUCTION CO.. INC. Tetmyer Construction Co., Inc. and Richard Bergman. Case 6-CA- 11752 May 14, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on October 30, 1978, by Rich- ard Bergman, herein called the Charging Party, and duly served on Tetmyer Construction Co., Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 6, issued a complaint and notice of hearing on December 29, 1978, against Respondent, alleging that Respondent had engaged in and was en- gaging 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, complaint. and notice of hearing before an administrative law judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on or about July 24. 1978, Respondent laid off its employee, Richard Bergman, and thereafter failed and refused to recall him because of his membership in and activities on behalf of Laborers' International Union of North America, Local 1058, AFL-CIO, and because he en- gaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. The Respondent failed to file an answer to the complaint. On March 2, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 19, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a re- sponse to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All the alle- gations 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 admit- ted 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 duly served on Respondent specifically states that unless an an- swer to the complaint is filed by Respondent within 10 days of service thereto, "all of the allegations in the complaint shall be deemed to be admitted to be true and may be so found by the Board." A letter was sent to Respondent's owner on Febru- ary 14. 1979. advising him that an answer had not yet been received and that unless an answer was received by an extended filing date, the close of business on February 22, 1979, a Motion for Summary Judgment would be filed. A copy of the February 14, 1979, let- ter is attached to the Motion for Summary Judgment as an exhibit. Counsel for the General Counsel alleges that no answer was received by the close of business on February 22. 1979. By telegram dated March 28, 1979. Respondent's counsel requested an extension of time for a period of 10 days for filing a response to the Notice To Show Cause. Thereafter, the time for filing a response was extended to April 12, 1979. On April 9, 1979, Respon- dent filed with the Board an answer to the Notice To Show Cause why the Motion for Summary Judgment should not be granted wherein Respondent asserts, inter alia, that "a hearing should be re-scheduled and an opportunity be given to Respondent, Tetmyer Construction Co., Inc., to file an Answer to Petition- er's Complaint." The response fails to state any rea- son for Respondent's failure to file an answer within the time granted. While the response asserts that "the allegations averred in the Complaint and the Motion for Summary Judgment are not true." it fails to spec- ify in what manner the Motion for Summary Judg- ment is incorrect or untrue. We find, therefore, that the response fails to show good cause for denying the Motion for Summary Judgment. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 242 NLRB No. 37 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINI)IN(;S O() FAC(I I. IE BUSINESS OF ilIF RESPONI)ENT Tetmyer Construction Co., Inc., at all times mate- rial herein, has been a Pennsylvania corporation, with an office and place of business located in Gibsonia, Pennsylvania, where it is engaged in sewer line con- struction. During the 12-month period immediately preceding the issuance of the complaint in this case, Respondent performed services valued in excess of' $50,000 for companies which are themselves directly engaged in interstate commerce. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, 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. II. 1I I LABOR OR(;ANIZAIION IN)INVED Laborers' International Union of' North America, Local 1058, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. ilL (IIARK(;IN(; PARFY Richard Bergman is an employee within the mean- ing of Section 2(3) of the Act. IV. IE UNFAIR L.AB()R PRA(CII( ES On or about July 24, 1978, Respondent laid off, and since August 28, 1978, it has failed and refused to recall, its employee, Richard Bergman, because of his membership in and activities on behalf of Laborers' International Union of North America, Local 1058, AFL CIO, and because he engaged in concerted ac- tivities with other employees for the purpose of col- lective bargaining and other mutual aid or protection. Accordingly, we find that, by the aforesaid conduct as set forth above, Respondent has interfered with, restrained, and coerced its employee in the exercise of the rights guaranteed him under Section 7 of the Act, and has discriminated in regard to his terms and con- ditions of employment, and by such conduct Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. V. THE EFFE(T OF THE UNFAIR I.ABOR PRACtICES UPON (OMMER('E The activities of Respondent set forth in section IV, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. 1111 RMEI)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the poli- cies of the Act. We shall order that Respondent offer Richard Bergman immediate and full reinstatement to his for- mer job or, if his former job no longer exists, to a substantially equivalent position. without prejudice to his seniority or any other rights and privileges previ- ously enjoyed, and make him whole for any loss of pay which he may have suffered by payment to him of a sum of money equal to that which he would have normally earned as wages from August 28, 1978, to the date of such offer of reinstatement, less his net earnings during said period, backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Compatn . 90 NLRB 289 (1950), and Florida Steel Corporation. 231 NI.RB 651 (1977).' Having found that Bergman was laid off for engag- ing in protected concerted activities. we shall order the Respondent to cease and desist from infringing in any like or related manner upon the rights of employ- ees guaranteed in Section 7 of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: C()N( LUSItsO()Ns ()01 LAW I. Tetmyer Construction Co.. Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' International Union of North Amer- ica, Local 1058, AFL CIO, is a labor organization within the meaning of' Section 2(5) of the Act. 3. Richard Bergman is an employee within the meaning of Section 2(3) of' the Act. 4. By laying off and thereafter failing and refusing to recall Richard Bergman, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices engaged in by Re- spondent, as set forth in Conclusion of Law 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. See. generally. Iis Plumbing & Healtrg (, 138 NlRB 716 (1962). 222 IFEtMYER CONSIRICTION CO.. INC'. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent. et- myer Construction Co., Inc.. Gibsonia, Pennsylvania. its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in aborers' Inter- national Union of North America, Local 1058, AFL CIO, or any other labor organization. by laying off employees and failing and refusing to recall them, or by otherwise discriminating in regard to hire or ten- ure of employees or any term or condition of employ- ment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Richard Bergman immediate and full re- instatement to his former position or, if that position is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suf- fered as a result of his layoff by Respondent in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon 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. (c) Post at its Gibsonia. Pennsylvania. place of business copies of the attached notice marked "Ap- pendix." 2 Copies of said notice, on forms provided by 2 In the eent that this Order is enforced h a judgment of a United States Court of Appeals. the words in the notice reading "Posted bh Order of the National l.abor Relations Board" shall read "Posted Pursuant to I Judgment of the United States Court of Appeals Enforcing an Order f the National Labor Relations Board." 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 thereafter. in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 6. in writing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. APPENDIX Noii(I: Ito EilOlills Posi.l) BY ORi)R OF 111- NAIION()AI LABR() RE,.ATI()NS BOARD An Agency of the United States Government WVE WII.I NOI discourage membership in La- borers' International Union of North America. Local 1058, AFL CIO. or any other labor or- ganization by discriminatorily laying off employ- ees and failing and refusing to recall them. or b otherwise discriminating in regard to the hire or tenure of our employees or any term or condition of employment. WE WUil. Ni in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. Wt: Wull,. offer employee Richard Bergman immediate and full reinstatement to his former position or. it' that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges pre- viously enjoyed. WE vi I make whole employee Richard Berg- man for any loss of pay he suffered as a result of our unlawful discrimination against him. with in- terest. Ti IMYER Co)NSFRtu (ION C)., IN. 223