RMK Construction

1 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. Cornerstone Affiliates, Inc. d/b/a RMK Construc­ tion and Southern California Conference of Carpenters. Case 21–CA–31019 May 12, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge and an amended charge filed by the Union on November 20, 1995, and July 5, 1996, re­ spectively, the General Counsel of the National Labor Relations Board issued a complaint on July 12, 1996, against Cornerstone Affiliates, Inc. d/b/a RMK Con­ struction, the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act. On September 19, 1996, the Respondent filed an answer to the complaint. Thereafter, on December 11, 1996, the Regional Di­ rector for Region 21 approved an informal settlement agreement executed by the parties. However, by letter dated January 21, 1997, the Regional Director with- drew approval of the settlement on the ground that the Respondent had failed to comply with its terms. There- after, on February 5, 1997, the Regional Director is- sued an amended complaint realleging the allegations contained in the original complaint. Although properly served copies of the charge, amended charge, and amended complaint, the Re­ spondent failed to file an answer to the amended com­ plaint. Accordingly, on April 22, 1997, the General Counsel filed a Motion for Summary Judgment with the Board. On April 23, 1997, 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 allega­ tions 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, un­ less good cause is shown. In addition, the amended complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the amended complaint will be considered admitted. Further, the undisputed allegations in the Motion for Summary Judgment disclose that the Region, by letter dated April 2, 1997, notified the Respondent that un­ less an answer were received by April 9, 1997, a Mo­ tion for Summary Judgment would be filed. Neverthe­ less, the Respondent failed to file an answer to the amended complaint. Although the Respondent did file an answer to the July 12, 1996 complaint, that answer was subsequently withdrawn by the explicit terms of the settlement agreement,1 and was not thereby revived by the Re­ gional Director’s letter withdrawing approval of the settlement agreement. Thus, the Respondent’s answer to the original complaint does not remain extant, and does not preclude summary judgment.2 Accordingly, 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 California corporation, with its principal offices located at 120A South San Antonio Avenue, Ontario, California, has been engaged in the business of nonretail metal stud framing and drywall installation in the construction in­ dustry. During the 12-month period ending July 12, 1996, the Respondent, in conducting its operations de- scribed above, provided services valued in excess of $50,000 directly to customers, including Cal Pac Con­ struction, Inc., located within the State of California, each of which customers, in turn, within the same time period, purchased and received at its California loca­ tions goods valued in excess of $50,000 directly from points outside the State of California. 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 organi­ zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES About November 5, 1995, the Respondent dis­ charged employee Dave Brake. The discharge was re­ scinded the next day, November 6, 1995. However, about November 9, 1995, the Respondent laid off Brake for 1 day, and about November 14, 1995, again discharged Brake. The Respondent engaged in the conduct described above because Brake joined or assisted the Union and engaged in concerted activities, and to discourage em­ ployees from engaging in these activities. 1 NLRB Form 4775, the settlement form used here, expressly pro­ vides that approval of the agreement by the Regional Director ‘‘shall constitute withdrawal of any Complaint(s) and Notice of Hearing heretofore issued in this case, as well as any answer(s) filed in re­ sponse.’’ 2 See Signage Systems, 312 NLRB 1115 (1993); Orange Data, Inc., 274 NLRB 1018 (1985); and Ofalco Properties, 281 NLRB 84 (1986). 323 NLRB No. 126 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By the acts and conduct described above, the Re­ spondent has been discriminating in regard to the hire, or tenure, or 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)(1) and (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 laying off and discharging Dave Brake, we shall order the Respondent to offer Brake full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi­ tion, 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 re­ quired to remove from its files any and all references to the unlawful layoff and discharges, and to notify the discriminatee in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Cornerstone Affiliates, Inc. d/b/a RMK Construction, Ontario, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off, discharging, or otherwise discrimi­ nating against employees because of their union or concerted activities. (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) Within 14 days from the date of this Order, offer Dave Brake 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. (b) Make Dave Brake whole for any loss of earnings and other benefits suffered as a result of the discrimi­ nation against him, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful lay- off and discharges, and within 3 days thereafter notify Dave Brake in writing that this has been done and that the layoff and discharges will not be used against him in any way. (d) 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. (e) Within 14 days after service by the Region, post at its facility in Ontario, California, copies of the at­ tached notice marked ‘‘Appendix.’’3 Copies of the no­ tice, on forms provided by the Regional Director for Region 21, 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 November 20, 1995. (f) 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 attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. May 12, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 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.’’ RMK CONSTRUCTION 3 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representative of their on choosing To act together for other mutual aid or protec­ tion To choose not to engage in any of these pro­ tected concerted activities WE WILL NOT lay off, discharge, or otherwise dis­ criminate against employees because they engage in union or concerted activities. 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, within 14 days from the date of the Board’s Order, offer Dave Brake full reinstatement to his former job or, if that job no longer exists, to a sub­ stantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Dave Brake whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoff and discharges of Dave Brake, and WE WILL, within 3 days thereafter, notify him in writ­ ing that this has been done and that the layoff and dis­ charges will not be used against him in any way. CORNERSTONE AFFILIATES, INC. D/B/A RMK CONSTRUCTION