Artesia Ready Mix Concrete

NOTICE: This opinion is subject to formal revision before publication in the bound 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. Artesia Ready Mix Concrete, Inc. and Operating En­ gineers Local 3, International Union of Operat­ ing Engineers, AFL–CIO. Case 32–CA–19268–1 June 3, 2002 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND COWEN The General Counsel in this case seeks summary judgment on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by Operating Engineers Local 3, International Union of Op­ erating Engineers, AFL–CIO, the Union, on December 3, 2001, the Acting Regional Director issued the complaint on February 15, 2002, against Artesia Ready Mix Con­ crete, Inc., the Respondent. The complaint alleges that the Respondent has violated Section 8(a)(1) and (5) of the Act. The Respondent failed to file an answer. On April 18, 2002, the General Counsel filed a Motion for Summary Judgment with the Board. On April 19, 2002, the Board issued an order transferring the proceed­ ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The Board has delegated its authority in this proceed­ ing 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 is shown. In addition, the complaint affirmatively states that, unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed allegations in the Mo­ tion for Summary Judgment disclose that the Region, by letter dated March 13, 2002, notified the Respondent that unless an answer was received by March 19, 2002, a Mo­ tion for Summary Judgment would be filed. In the absence of good cause being shown for the fail­ ure to file a timely answer, we grant the Ge neral Coun­ sel’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 an office and place of business in Tu­ lare, California, has been engaged in the manufacture and nonretail and retail distribution of ready mix concrete and related products. During the 12-month period pre- ceding the issuance of the complaint, the Respondent, in the course and conduct of its business operations, sold and shipped goods valued in excess of $50,000 directly to customers or business enterprises inside the State of California who themselves meet one of the Board’s ju­ risdictional standards, other than the indirect inflow or indirect outflow standards. 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec­ tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees and drivers employed at Re­ spondent’s Farmersville, Lemoore, Pixley, Porterville, Tulare, and Woodlake, California facilities; excluding all other employees, guards, and supervisors as defined in the Act. Since at least June 19, 1998, and at all times material, the Union has been the designated exclusive collective- bargaining representative of the employees in the unit, and since that date has been recognized as such represen­ tative by the Respondent. Such recognition has been embodied in a collective-bargaining agreement, which was effective for the period June 19, 1998, through De­ cember 31, 2000. At all times since at least June 19, 1998, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the employees in the unit for the purposes of collective bargaining with respect to pay, wages, hours of employment, and other terms and condi­ tions of employment. On about August 21, 2001, the Respondent demoted unit employee Ray Dietz from the position of night maintenance foreman to a general plant worker position. As a result, employee Dietz’ hourly pay rate was reduced from $15.80 to $12.70 and his work schedule was altered so that he no longer worked a set shift schedule as he had prior to the demotion. The Respondent’s demotion of employee Dietz relates to the wages, hours, and other terms and conditions of employment of the employees in the unit and is a manda­ tory subject of collective bargaining. The Respondent demoted Dietz without prior notice and/or adequate prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent over the de- motion and its effects. 337 NLRB No. 93 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By the acts and conduct described above, the Respon­ dent has failed and refused, and is failing and refusing, to bargain collectively and in good faith with the represen­ tative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) 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) and (5) by demoting unit employee Ray Dietz from his position as night maintenance foreman to a general plant worker position, thereby reducing his hourly wage from $15.80 to $12.70 and altering his work schedule so that he no longer works a set shift schedule, we shall order the Respondent to offer Ray Dietz full reinstatement to his former position as night maintenance foreman, at his former hourly wage and on his former schedule, or, if that position no longer exists, to a substantially equiva­ lent 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 bene­ fits suffered as a result of the Respondent’s unlawful conduct. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).1 ORDER The National Labor Relations Board orders that the Respondent, Artesia Ready Mix Concrete, Inc., Tulare, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with Operating Engineers Local 3, International Union of Op­ erating Engineers, AFL–CIO, as the exclusive represen­ tative of the employees in the following unit, by unilater­ ally demoting employee Ray Dietz, and reducing his pay and altering his schedule, without giving the Union prior notice and/or adequate prior notice and an opportunity to bargain over the demotion and its effects: All full-time and regular part-time production and maintenance employees and drivers employed at Re­ spondent’s Farmersville, Lemoore, Pixley, Porterville, Tulare, and Woodlake, California facilities; excluding 1 The complaint also requested as part of the remedy that the Board order the Respondent to reimburse Dietz for any extra Federal and/or State income taxes that would or may result from a lump-sum backpay award. The General Counsel’s motion expressly abandons this request. all other employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exe rcise 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) On request, bargain in good faith with the Union over the decision to demote employee Ray Dietz, and reduce his hourly wage and alter his schedule, and the effects of this decision. (b) Within 14 days from the date of this Order, offer employee Ray Dietz full reinstatement to his former po­ sition as night maintenance foreman, at his former hourly wage and on his former schedule, or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privi­ leges previously enjoyed. (c) Make employee Ray Dietz whole for any loss of earnings and other benefits suffered as a result of his demotion, with interest as described in the remedy sec­ tion of this decision. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig­ nated by the Board or its agents, all payroll records, so­ cial security payment records, timecards, personnel re- cords and reports, and all other records including an elec­ tronic copy of such records if stored in electronic form, 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 Tulare, California, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 32, 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 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 August 21, 2001. 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.” ARTESIA READY MIX CONCRETE, INC. 3 (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. June 3, 2002 Peter J. Hurtgen, Chairman Wilma B. Liebman, Member William B. Cowen, 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 Federal labor law and has ordered us to post and obey by this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Chose representatives to bargain with us on your behalf Act together with other employees for your bene­ fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain in good faith with Operating Engineers Local 3, International Union of Operating Engineers, AFL–CIO, as the exclusive repre­ sentative of the employees in the following unit, by uni­ laterally demoting employee Ray Dietz, and reducing his pay and altering his schedule, without giving the Union prior notice and/or adequate prior notice and an opportu­ nity to bargain over the demotion and its effects: All full-time and regular part-time production and maintenance employees and drivers employed at our Farmersville, Lemoore, Pixley, Porterville, Tulare, and Woodlake, California facilities; excluding all other em­ ployees, guards, and supervisors as defined in the Act. 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, on request, bargain in good faith with the Union over the decision to demote employee Ray Dietz, and reduce his hourly wage and alter his schedule, and the effects of this decision. WE WILL, within 14 days from the date of the Board’s Order, offer employee Ray Dietz full reinstatement to his former position as night maintenance foreman, at his former hourly wage and on his former schedule, or, if that position no longer exists, to a substantially equiva­ lent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make employee Ray Dietz whole for any loss of earnings and other benefits suffered as a result of his demotion, with interest. ARTESIA READY MIX CONCRETE, INC.