USDC Environmental, Inc.

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. USDC Environmental, Inc. and Michael G. Gretzmacher. Case 13–CA–34188 March 31, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge and first amended charge filed by the Charging Party, Michael G. Gretzmacher, an individ­ ual, on March 28 and July 12, 1996, the General Counsel of the National Labor Relations Board issued a complaint on October 17, 1996, against USDC Envi­ ronmental, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act. Although the Respondent filed an an­ swer to the complaint, it withdrew that answer on Feb­ ruary 24, 1997. On February 28, 1997, the General Counsel filed a Motion for Summary Judgment with the Board. On March 3, 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 Re­ spondent filed no response. The allegations in the mo­ tion 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 complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Here, although the Re­ spondent initially did file an answer, the Respondent withdrew its answer to the complaint on February 24, 1997. The Respondent’s withdrawal of its answer to the complaint has the same effect as a failure to file an answer, i.e., all allegations in the complaint must be considered to be true. See Maislin Transport, 274 NLRB 529 (1985). Accordingly, in the absence of good cause being shown otherwise, we grant the General Counsel’s Mo­ tion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business in Chicago, Illi­ nois, has been engaged in the business of asbestos abatement. During the 1995 calendar year, the Re­ spondent, in conducting its business operations, de- rived gross revenues in excess of $1 million. During that same time period, the Respondent performed serv­ ices for and received revenues in excess of $50,000 from enterprises within the State of Illinois that are di­ rectly engaged in interstate commerce, and purchased and received at its Chicago, Illinois facility products, goods, and materials valued in excess of $5000 di­ rectly from points outside the State of Illinois. We find that the Respondent is an employer engaged in com­ merce within the meaning of Section 2(2), (6), and (7) of the Act and that the Construction and General La- borers’ District Council of Chicago and Vicinity, AFL–CIO (the Union) has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES About October 27, 1995, the Respondent interro­ gated employees as to their union activities and the union activities of other employees, threatened employ­ ees with unspecified reprisals for engaging in union ac­ tivities, and created an impression among its employ­ ees that their union activities were under surveillance by the Respondent. About November 1, 1995, the Respondent dis­ charged and, since that date, failed and refused to rein- state its employee Michael G. Gretzmacher, because he was a member of the Union and engaged in other union and/or protected, concerted activities, and to dis­ courage employees from engaging in such activities. CONCLUSIONS OF LAW By the acts and conduct described above, the Re­ spondent has been interfering with, restraining, and co­ ercing employees in the exercise of the rights guaran­ teed in Section 7 of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. Furthermore, by discharging Gretzmacher and failing and refusing to reinstate him, Respondent has also been discriminating in regard to the hire or tenure or terms or conditions of employment of its employ­ ees, thereby discouraging membership in a labor orga­ nization, and has thereby engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec­ tion 8(a)(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 discharging Michael G. 323 NLRB No. 55 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gretzmacher, we shall order the Respondent to offer him 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. Wool- worth Co., 90 NLRB 289 (1950), with interest as pre- scribed 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 un­ lawful discharge, and to notify the discriminatee in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, USDC Environmental, Inc., Chicago, Illi­ nois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees as to their union activi­ ties or the union activities of other employees. (b) Threatening employees with unspecified reprisals for engaging in union activities. (c) Creating the impression among its employees that their union activities are under surveillance. (d) Discharging or failing or refusing to reinstate its employees, because they are members of Construction and General Laborers’ District Council of Chicago and Vicinity, AFL–CIO, or engage in other union and/or protected, concerted activities, or to discourage em­ ployees from engaging in such activities. (e) In any like or related manner interfering with, re- straining, 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 Michael G. Gretzmacher full reinstatement to his former job or, if that job no longer exists, to a substan­ tially equivalent position, without prejudice to his se­ niority or any other rights or privileges previously en- joyed. (b) Make Michael G. Gretzmacher whole, with in­ terest, for any loss of earnings and other benefits suf­ fered as a result of the discrimination against him in the manner set forth in the remedy section of this deci­ sion. (c) Within 14 days from the date of this Order, ex­ punge from its files any and all references to the un­ lawful discharge, and, within 3 days thereafter, notify the discriminatees in writing that this has been done and that the unlawful discharge 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 Chicago, Illinois, copies of the at­ tached notice marked ‘‘Appendix.’’1 Copies of the no­ tice, on forms provided by the Regional Director for Region 13, 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 March 28, 1996. (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. March 31, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 1 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.’’ 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. USDC ENVIRONMENTAL, INC. 3 WE WILL NOT interrogate employees as to their union activities or the union activities of other employ­ ees. WE WILL NOT threaten employees with unspecified reprisals for engaging in union activities. WE WILL NOT create the impression among our em­ ployees that their union activities are under surveil- lance. WE WILL NOT discharge or fail or refuse to reinstate our employees, because they are members of Construc­ tion and General Laborers’ District Council of Chicago and Vicinity, AFL–CIO, or engage in other union and/or protected, concerted activities, or to discourage employees from engaging in such 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 this Order, offer Michael G. Gretzmacher 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 pre­ viously enjoyed. WE WILL make Michael G. Gretzmacher whole, with interest, for any loss of earnings and other benefits suf­ fered as a result of the discrimination against him. WE WILL, within 14 days from the date of this Order, expunge from our files any and all references to the unlawful discharge, and, within 3 days there- after, notify Michael G. Gretzmacher, in writing, that this has been done and that the unlawful discharge will not be used against him in any way. USDC ENVIRONMENTAL, INC.