Federation Of Employees Union, Local 1027

FEDERATION OF EMPLOYEES UNION, LO()CAL 1027 Federation of Employees Union, Local 1027 (Edward Darden t/a Joseph Darden & Son) and Local 332, Laborers' International Union of North America. Case 4-CB-4054 January 14, 1981 DECISION AND ORDER BY MEMBERS PENEI.LO, TRUESDALE, AND ZIMMERMAN Upon a charge filed on July 11, 1980, by Local 332, Laborers' International Union of North Amer- ica, and duly served on Federation of Employees Union, Local 1027, herein called Respondent Union, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 4, issued a complaint and notice of hearing on August 19, 1980, against Respondent Union, alleging that Respondent Union had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. Copies of the charge and the complaint and notice of hearing before an adminis- trative law judge were duly served on the parties to this proceeding. Respondent Union failed to file an answer to the complaint. On November 21, 1980, counsel for the General Counsel filed directly with the Board a "Motion for Summary Judgment and For the Issuance of Decision and Order." Subsequently, on December 1, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent failed to file a response to the Notice To Show Cause and therefore the allegations in the Motion for Summary Judgment stand uncontroverted. 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: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer 254 NLRB No. 56 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 admitted 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 served on Respondent Union herein specifically states that, unless an answer to the complaint is filed within 10 days of 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." As noted above, Respondent Union has failed to file an answer to the complaint and has failed to file a re- sponse to the Notice To Show Cause. Accordingly, under the rule set forth above, no good cause having been shown for the failure to file a timely answer, the allegations of the com- plaint are deemed admitted and are found to be true, and we shall 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 THE EMPLOYER Edward Darden t/a Joseph Darden & Son, herein called Darden, is, and has been at all times material herein, a sole proprietorship, engaged in the construction business, with a principal office lo- cated in Atlantic City, New Jersey. During the year preceding issuance of the complaint, Darden, in the course and conduct of its business oper- ations, performed services valued in excess of $50,000 in States other than the State of New Jersey. We find, on the basis of the foregoing, that Darden 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. THE LABOR ORGANIZATIONS INVOLVED Federation of Employees Union, Local 1027, and Local 332, Laborers' International Union of North America, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In or about the week of May 12, 1980, Respon- dent Union, through its agents, requested Darden to discharge its employee Emanuel Jenkins for non- 491 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payment of dues to Respondent Union. On or about May 15, 1980, Respondent Union caused Darden to discharge Emanuel Jenkins in accor- dance with the request of Respondent Union de- scribed above, notwithstanding the failure of Re- spondent Union to give Emanuel Jenkins proper notice of his obligation to pay said dues; and at all times since May 15, 1980, Darden has failed and re- fused to reinstate Emanuel Jenkins to his former or substantially equivalent position of employment. Accordingly, we find that by the aforesaid con- duct Respondent Union has caused, and attempted to cause, and is causing, and attempting to cause, an employer to discrimnate against its employees in violation of Section 8(a)(3) of the Act, and Respon- dent Union thereby has been and is engaging in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent Union has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, we shall order it to cease and desist there- from and take affirmative action designed to effec- tuate the policies of the Act. We shall order Respondent Union to notify Darden, in writing, with a copy to Emanuel Jen- kins, that it withdraws its objections to Darden's employment of Jenkins and requests it to offer him reinstatement and the restoration of his seniority and other rights and privileges as they existed on or about May 15, 1980, the date of his discharge. We shall order Respondent Union to make Jen- kins whole for any loss of pay suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the date set forth herein- after, less his net earnings during this period. The loss of earnings shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).1 Respon- I See, generally, Isis Plumbing Heating Co., 1.38 NLRB 716 (1962) dent's backpay liability shall terminate 5 days after it notifies Darden that it has no objection to Jen- kins' reinstatement, as provided above. CONCLUSIONS OF LAW 1. Edward Darden t/a Joseph Darden & Son is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Federation of Employees Union, Local 1027, and Local 332, Laborers' International Union of North America, are labor organizations within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing Edward Darden t/a Joseph Darden & Son to discharge Emanuel Jenkins for failure to tender periodic dues without giving him proper notice of his obligation to pay said dues, Respondent Union has engaged in, and continues to engage in, unfair labor prac- tices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Re- lations Board hereby orders that the Respondent, Federation of Employees Union, Local 1027, Newark, New Jersey, its officers, agents, and rep- resentatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Edward Darden t/a Joseph Darden & Son to discharge or otherwise discriminate against Emanuel Jenkins or any other employees for failure to tender periodic dues without giving them proper notice of their obligations to pay said dues, in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Make Emanuel Jenkins whole for any loss of pay he may have suffered as a result of the discrim- ination against him in the manner set forth in the section above entitled "The Remedy." (b) Notify Edward Darden t/a Joseph Darden, in writing, with a copy to Emanuel Jenkins, that it withdraws its objections to Jenkins' employment 492 FEDERATION OF EMPLOYEES UNION, LOCAL 1027 and requests the Employer to offer Jenkins rein- statement and the restoration of his full seniority and other rights and privileges as they existed on or about May 15, 1980, the date of Jenkins' dis- charge. (c) Post at its business office copies of the at- tached notice marked "Appendix. " 2 Copies of said notice, on forms provided by the Regional Direc- tor for Region 4, after being duly signed by Re- spondent Union's representative, shall be posted by Respondent Union immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent Union to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Forward a sufficient number of signed copies of the notice to the Regional Director for Region 4, for posting by the Employer at its place of busi- ness in Atlantic City, New Jersey, in places where notices to employees are customarily posted, if the Employer is willing to do so. (e) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 2 In the event that 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 Pursu- ant to a Judgment of The United States Court of Appeals Enforcing an Order of The National Labor Relations Board. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Edward Darden t/a Joseph Darden & Son to discharge or to otherwise discriminate against Emanuel Jenkins or any other employee for failure to tender periodic dues without giving them proper notice of their obligations to pay said dues, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of em- ployment. WE WIlil. make Emanuel Jenkins whole for any loss of pay suffered because of the dis- crimination against him, with interest. WE WII.l. notify Edward Darden t/a Jospeh Darden & Son, in writing, with a copy to Emanuel Jenkins that we withdraw our objec- tions to Jenkins' employment and request Jen- kins' reinstatement and the restoration of his full seniority and other rights and privileges as they existed on or about May 15, 1980, the date of his discharge. FEDERATION OF EMPLOYEES UNION, LOCAI. 1027 493