Frank E. Sims Construction Co.

FRANK E. SIMS CONSTRUCTION CO., INC. Frank E. Sims Construction Co., Inc. and United Mine Workers of America, Dist. 21. Case 16-CA 8032 May 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on August 2, 1978, by United Mine Workers of America, Dist. 21, herein called the Union, and duly served on Frank E. Sims Construc- tion Co., Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a com- plaint and notice of hearing on September 5, 1978, 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 Na- tional 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 proceeding. With respect to the unfair labor practices, the com- plaint alleges, in substance, that Respondent granted a wage increase in an attempt to cause employees to reject the Union; threatened to close the mine if the Union won the election; unlawfully interrogated an employee; threatened to discharge an employee be- cause of his union activities: and discharged and sub- sequently refused to reinstate employee Allen Lee Kinman because of his union activities. On January 3, 1979, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment based upon Respondent's failure to file an answer as required by Section 102.20 of the Board's Rules and Regulations, Series 8, as amended. On January 11, 1979, Respondent filed an answer thereto stating its reasons for not making timely an- swer to the General Counsel's complaint above. Re- spondent's attorney averred in its response that he was out of the country when Region 16 contacted his office on two occasions to ascertain the reason for his delay in answering the complaint. Respondent's at- torney avers further that he did not make timely an- swer in the first instance becauie he assumed the case had been closed by way of settlement shortly after issuance of complaint, and that this mistake was in good faith. Respondent also generally denies the alle- gations in the complaint in its prayer for relief. Subse- quently, on January 12, 1979, 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 Judgment should not be granted. Respondent has not filed any further re- sponse. 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 provides in pertinent part 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 allega- tions 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 served on Respondent specifically stated that, unless an answer to the complaint was filed 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." The complaint was issued September 5, 1978. When more than 2 months had elapsed, counsel for the General Counsel telephoned the office of Respon- dent's attorney on December 14. 1978, concerning an answer to the complaint. The Board agent could not reach Respondent's counsel but left word with his secretary: Region 16 also mailed a letter confirming this conversation. The Regional Office again tele- phoned Respondent's counsel on December 20, 1978. and again sent a confirming letter stating that if no answer were filed on or before December 27, 1978, the General Counsel would move for default judg- ment. By January 3, 1979, Region 16 had not re- ceived Respondent's answer and, on that day, moved for Summary Judgment. On January 11, 1979, counsel filed an answer to the complaint stating that he had not filed an answer to the complaint within the 10-day period provided be- cause he thought the case had been settled. Counsel bases his belief that the case had been officially set- 242 NLRB No. 89 607 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tled upon Respondent's reinstatement of the subject of the complaint, Allen Lee Kinman. With respect to counsel's continuing failure to file an answer once his firm was notified by the Regional Office that an answer was required, counsel contends that he was in Mexico on vacation from December 10, 1978, through January 5, 1979, and that the Re- gion could have contacted Respondent directly while he was out of the country. The Charging Party, in its brief in support of the General Counsel's Motion for Summary Judgment, argues that (I) counsel, an expe- rienced labor lawyer, knew the procedure by which a case is settled and knew or should have known that this case had not been settled; (2) Kinman was rein- stated at a substantially lower paying position; (3) counsel employs three associate attorneys who could have handled the case in his absence; and (4) counsel has not served a copy of his answer of January 11, 1979, on the Charging Party in violation of Section 102.21 of the Board's Rules and Regulations. Considering the foregoing circumstances, as well as Respondent's failure to request an extension of time, we do not accept Respondent's explanations as "good cause," within the meaning of Section 102.20 of the Board's Rules and Regulations.' Accordingly, we grant the General Counsel's 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 is, and has been at all times material herein, a corporation duly organized under, and exist- ing by virtue of the laws of the State of Arkansas. Respondent is engaged in strip mining coal with worksites located near Clarksville, Arkansas, and Keota, Oklahoma. During the preceding 12 months, a representative period, Respondent in the course and conduct of its business, had gross revenue in excess of $500,000 and purchased goods valued in excess of $50,000 from sources directly outside the State of Oklahoma. 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. See Ancorp National Services, Inc., Casco Division, 202 NLRB 513 (1973); Aaron Convalescent Home, 194 NLRB 750 1971). II. THE LABOR ORGANIZATION INVOLVED United Mine Workers of America, Dist. 21, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent has interfered with, restrained, and co- erced its employees in violation of Section 8(a)(1) of the Act by the following acts and conduct: granting a wage increase in an attempt to cause employees to reject the Union; threatening to close the mine if the Union were brought in; interrogating an employee concerning union activity and the employees' desires; and threatening an employee with discharge because of his union activities. Respondent, on or about July 24, 1978, discharged and thereafter failed and refused to reinstate its em- ployee Allen Lee Kinman in violation of Section 8(a)(3) and (1) of the Act, and it continues to refuse to reinstate Kinman because he joined or assisted the Union or engaged in other union activity or concerted activities for the purpose of collective bargaining or mutual aid and protection. The aforesaid unfair labor practices are unfair la- bor practices affecting commerce within the meaning of Section 2(6) and (7) 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to disputes burdening and obstructing commerce 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 mean- ing of Section 8(a)(3) and (I) 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. Having found that Respondent discriminatorily discharged Allen Lee Kinman and refused to rein- state him to his former position, we shall order that Respondent offer him immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or any other rights or privileges previously enjoyed, and to make him whole for any 608 FRANK E. SIMS CONSTRUCTION CO., INC. loss of earnings he may have suffered by payment to him of money equal to the amount he normally would have earned, absent the unlawful discharge, as wages from the date of his discharge until he receives a valid offer of reinstatement, with interest thereon to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).2 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Frank E. Sims Construction Co., Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America, Dist. 21, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Allen Lee Kinman for his union activity, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 4. By unilaterally granting a wage increase, threat- ening to close the mine if the Union came in, threat- ening an employee with discharge because of his union activities, and interrogating an employee con- cerning his union activity, Respondent has interfered with, restrained, and coerced employees in the exer- cise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair la- bor practices within the meaning of Section 8(a)(1) of the Act. 5. 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 Rela- tions Board hereby orders that the Respondent, Frank E. Sims Construction Co., Inc., Fort Smith, Arkansas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Granting wage increases, threatening to close the mine if the Union comes in, interrogating employ- ees regarding their union activities, threatening em- ployees with discharge, and discharging employees because of their activities on behalf of United Mine Workers, Dist. 21. 2 See, generally. Isis Plumbing & Heatring Co., 138 NLRB 716 (1962). (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 which is necessary to effectuate the policies of the Act: (a) Offer Allen Lee Kinman immediate and full re- instatement 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 privi- leges previously enjoyed. (b) Make Allen Lee Kinman whole for any loss of earnings he may have suffered by reason of the dis- crimination against him by payment 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 the Respondent's offer of reinstatement in the manner set forth in the section herein entitled "The Remedy." (c) 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. (d) Post at its worksites located near Clarksville, Arkansas, and Keota, Oklahoma, copies of the at- tached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16 in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I3 n the event that this Order is enforced by a Judgment ofa 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NOT threaten employees with plant closure because of the Union nor will we dis- charge or threaten to discharge employees for union activity. 609 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate employees regarding their union activities. WE WILL NOT grant unilateral wage increases. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Allen Lee Kinman 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 previously enjoyed, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our discrimina- tion against him, with interest. FRANK E. SIMS CONSTRUCTION CO., INC. 610