Ernest Lee Tile Contractor

330 NLRB No. 61 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Ernest Lee Tile Contractors, Inc. and Washington D.C. Building and Construction Trades Council, AFL–CIO. Case 5–CA–26004 January 5, 2000 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Upon a charge filed by the Union on March 1, 1996, the General Counsel of the National Labor Relations Board issued a complaint on October 3, 1996, against Ernest Lee Tile Contractors, Inc., the Respondent, alleg- ing that it has violated Section 8(a)(1) of the National Labor Relations Act by terminating employees Ernest Lindsay, Calvin E. Ramey Jr., Gregory L. Ramey, and Robert S. Wise. On October 31, 1996, the Respondent filed an answer. Subsequently, on January 22, 1998, the Respondent entered into a settlement agreement with the Charging Party Union and the Region pursuant to which the Re- spondent agreed to make whole employees Lindsay, Ramey Jr., Ramey, and Wise for any loss of wages and benefits they suffered as a result of their terminations in the amounts of $2872, $8616, $2213, and $11,205, re- spectively, less taxes and withholdings, payable on a monthly installment basis. The agreement included an 18-month installment payment plan through which the Respondent agreed to pay Lindsay, Ramey Jr., Ramey, and Wise the monthly amounts of $159.55, $478.66, $122.94, and $622.50, respectively, less taxes and with- holding. Monthly payments were scheduled to com- mence on January 31, 1998, and end on June 30, 1999. The settlement agreement also contained the following provision: In consideration of the Board granting the fore- going time-payment schedule, Respondent further agrees that, in the event of non-compliance by fail- ure to make any required payment on the date speci- fied, or to cure any such failure, after notice from the Regional Director, within fourteen days of the speci- fied payment date, the total amount of backpay plus interest, shall become due and payable. Respondent agrees that after 14 days after the failure to make any scheduled payment, on Motion for Summary Judg- ment by the General Counsel, Respondent’s Answer to the instant Complaint shall be considered with- drawn. Thereupon, the Board may issue an Order requiring Respondent to Show Cause why said Mo- tion of the General Counsel should not be granted. The Board may, without the necessity of trial, find all allegations of the Complaint to be true, and to [sic] make findings of fact and conclusions of law consistent with those allegations adverse to Respon- dent on all issues raised by the pleadings. The Board may then issue an Order providing full rem- edy as specified in the Complaint. The parties fur- ther agree that a Board Order and United States of [sic] Court of Appeals Judgment may be entered thereon ex parte. The Respondent made 14 payments under the agree- ment. Since October 1998, the Respondent has been consistently more than 1 month in arrears. The last pay- ment made by the Respondent, which was due in Febru- ary 1999, was received by the Region on June 14, 1999. Since that time, the Region has sought, through numer- ous telephone communications and correspondence, to obtain the Respondent’s compliance with the terms of the settlement agreement. The last four installments under the agreement, March through June 1999, now have been unpaid for more than 4 months. In view of the Respondent’s continued failure to make the required payments, and to cure such failure, the Re- gion, by letter of September 28, 1999, exercised its op- tion under the settlement agreement to demand payment in full of the balance of backpay due to the four termi- nated employees. The Region also notified the Respon- dent that it would take further legal action if the full amount was not remitted by close of business on October 8, 1999. At the Respondent’s request, the Region extended until October 15, 1999, the date for the Respondent to comply with the terms of the settlement agreement. In addition, the Region offered to accept five monthly payments of $1000 from the Respondent in lieu of full payment, pro- vided that the Respondent made those payments timely by the 10th of each of the coming 5 months. The Re- spondent, however, has made no payments. On November 8, 1999, the General Counsel filed the instant Motion for Summary Judgment with the Board. On November 10, 1999, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed a response, in which it offered to make payments in the amount of $400 per month until the full amount due is paid. In reply, the Region has advised the Board and the Respondent that it is willing to accept and disburse such monthly payments if the Respondent com- plies with the Region’s revised payment schedule. Thus, in view of the Respondent’s response, the allegations in the General Counsel’s motion are undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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, unless good cause DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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, according to the uncontroverted allegations in the Motion for Summary Judgment, although the Re- spondent initially filed an answer to the complaint, the Respondent thereafter entered into a settlement agree- ment in which it agreed that if it failed to comply with the settlement, its answer would be considered to be withdrawn. Such noncompliance has occurred. We therefore find that the Respondent’s answer has been withdrawn by the terms of the January 22, 1998 settle- ment agreement, and that, as further provided in that set- tlement agreement, all the allegations of the complaint are true.1 Accordingly, 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 Maryland cor- poration with an office and place of business in Tuxedo, Maryland, has been engaged as a tile contractor in the construction industry doing commercial construction. During the 12 months preceding issuance of the com- plaint, the Respondent, in conducting its business opera- tions described above, performed services valued in ex- cess of $50,000 in States other than the State of Mary- land. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES In around early October 1995, the Respondent’s em- ployees Ernest Lindsay, Calvin E. Ramey Jr., and Robert S. Wise, engaged in concerted activities with each other for the purposes of mutual aid and protection by dis- cussing the Respondent’s failure to pay the scale wages required on federally funded Davis-Bacon jobs. On about October 6, 1995, employee Ramey Jr. engaged in concerted activities with other employees for the pur- poses of mutual aid and protection by writing a letter to the government contact person on one of the Respon- dent’s jobsites to report that the Respondent was not paying the correct wages required on federally funded Davis-Bacon jobs. In around late October or early November 1995, em- ployees Lindsay and Wise concertedly complained to the Respondent regarding the wages, hours, and working conditions of the Respondent’s employees by demanding that the Respondent pay the wage scale required on fed- erally funded Davis-Bacon jobs. 1 See JAE Consulting & Development, 326 NLRB No. 40 (1998); U- Bee, Ltd., 315 NLRB 667 (1994). On about October 30, 1995, the Respondent terminated employees Calvin E. Ramey Jr. and Gregory L. Ramey. The Respondent terminated Calvin E. Ramey Jr. because he engaged in the conduct described above, and to dis- courage employees from engaging in these or other con- certed activities. The Respondent terminated Gregory L. Ramey because the Respondent associated him with the above-described protected concerted activity of his brother, Calvin E. Ramey Jr. On about December 7, 1995, the Respondent dis- charged employees Lindsay and Wise. The Respondent discharged employees Lindsay and Wise because they engaged in the conduct described above, and to discour- age employees from engaging in these or other concerted activities. CONCLUSIONS oF LAW By the acts and conduct described above, the Respon- dent has interfered with, restrained, and coerced employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(1) of the Act by terminating employees Ernest Lindsay, Calvin E. Ramey Jr., Gregory L. Ramey, and Robert S. Wise, we shall order the Respondent to offer them full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a re- sult of their unlawful terminations, with interest. Back- pay 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 terminations, and to notify the four employees in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Ernest Lee Tile Contractors, Inc., Tuxedo, Maryland, its officers, agents, successors, and assigns, shall 1.Cease and desist from (a) Terminating employees because they engage in concerted activities with each other for the purposes of mutual aid and protection by discussing the Respon- dent’s failure to pay the scale wages required on feder- ERNEST LEE TILE CONTRACTORS 3 ally funded Davis-Bacon jobs; by writing letters to the government contact person to report that the Respondent was not paying the correct wages required on federally funded Davis-Bacon jobs; by complaining to the Re- spondent regarding the wages, hours, and working con- ditions of the Respondent’s employees; and by demand- ing that the Respondent pay the wage scale required on federally funded Davis-Bacon jobs; or terminating em- ployees to discourage them from engaging in these or other concerted activities. (b) Terminating employees because the Respondent associates the employees with the protected concerted activity of other employees. (c) 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 Ernest Lindsay, Calvin E. Ramey Jr., Gregory L. Ramey, and Robert S. Wise full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Ernest Lindsay, Calvin E. Ramey Jr., Greg- ory L. Ramey, and Robert S. Wise whole for any loss of earnings and other benefits suffered as a result of their unlawful terminations, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, ex- punge from its files any and all references to the unlaw- ful terminations of Ernest Lindsay, Calvin E. Ramey Jr., Gregory L. Ramey, and Robert S. Wise, and, within 3 days thereafter, notify them in writing that this has been done and that the terminations will not be used against them 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 payment rec- ords, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Tuxedo, Maryland, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the 2 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Respondent to ensure that the notices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 30, 1995. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 5, 2000 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT terminate employees because they en- gage in concerted activities with each other for the pur- poses of mutual aid and protection by discussing our failure to pay the scale wages required on federally funded Davis-Bacon jobs; by writing letters to the gov- ernment contact person to report that we are not paying the correct wages required on federally funded Davis- Bacon jobs; by complaining to us regarding the wages, hours, and working conditions of our employees; and by demanding that we pay the wage scale required on feder- ally funded Davis-Bacon jobs; or terminate employees to discourage them from engaging in these or other con- certed activities. WE WILL NOT terminate employees because we associ- ate the employees with the protected concerted activity of other employees. 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL, within 14 days from the date of this Order, offer Ernest Lindsay, Calvin E. Ramey Jr., Gregory L. Ramey, and Robert S. Wise full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. WE WILL make Ernest Lindsay, Calvin E. Ramey Jr., Gregory L. Ramey, and Robert S. Wise whole for any loss of earnings and other benefits suffered as a result of their unlawful terminations, with interest. WE WILL, within 14 days from the date of this Order, expunge from our files any and all references to the un- lawful terminations of Ernest Lindsay, Calvin E. Ramey Jr., Gregory L. Ramey, and Robert S. Wise, and, WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the terminations will not be used against them in any way. ERNEST LEE TILE CONTRACTORS, INC.