Sciarretti Asphalt Paving Co.

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. Sciarretti Asphalt Paving Company and Thomas B. Williams. Case 6–CA–33749 April 21, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS WALSH AND MEISBURG The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed on Oc- tober 31, 2003, the General Counsel issued the complaint on January 28, 2004, against Sciarretti Asphalt Paving Company, the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the Act. The Respondent failed to file an answer. On March 15, 2004, the General Counsel filed a Mo- tion for Default Judgment with the Board. On March 19, 2004, 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides 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 stated that unless an answer was filed by February 11, 2004, all the allegations in the complaint would be considered admitted. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that the Region, by letter dated February 20, 2004, notified the Respondent that unless an answer was received by the close of business on the third business day following receipt of the letter, a motion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylvania corporation with its corporate offices and principal place of business in Braddock, Pennsylvania, has been engaged in the performance of paving services within the con- struction industry. During the 12-month period ending September 30, 2003, the Respondent, in conducting its business opera- tions described above, provided services valued in excess of $50,000 for businesses within the Commonwealth of Pennsylvania that are themselves directly engaged in interstate commerce. 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 International Union of Operating Engineers, Local 66, 66A, B, C, D, O & R, AFL–CIO (the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Susan Sciarretti - President Chris Sciarretti - Superintendent On or about October 27, 2003, the Respondent termi- nated the employment of its employee Thomas B. Wil- liams, and since said date has failed and refused to em- ploy him. The Respondent engaged in this conduct be- cause Williams formed, joined, and assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. CONCLUSION OF LAW By the conduct described above, the Respondent has discriminated in regard to the hire or tenure or terms and conditions of employment of its employees, thereby dis- couraging membership in the Union in violation of Sec- tion 8(a)(3) and (1) of the Act. The Respondent’s unfair labor practices affect commerce within the meaning of 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)(3) and (1) by terminating and refusing to employ Thomas B. Williams, we shall order the Respondent to offer Wil- liams 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. We also shall order the 341 NLRB No. 83 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Respondent to make Williams 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, 273 NLRB 1173 (1987). The Respondent also shall be required to remove from its files any refer- ence to the termination and the refusal to employ Wil- liams, and to notify him in writing that this has been done and that the unlawful conduct will not be used against him in any way. ORDER The National Labor Relations Board orders that the Respondent, Sciarretti Asphalt Paving Company, Brad- dock, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Terminating, refusing to employ, or otherwise dis- criminating against employees because they join or assist International Union of Operating Engineers, Local 66, 66A, B, C, D, O & R, AFL–CIO, or any other labor or- ganization, and engage in protected concerted activities, or to discourage employees from engaging in such activi- ties. (b) 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 Thomas B. Williams full reinstatement to his former job or, if that job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Thomas B. Williams whole for any loss of earnings and other benefits suffered as a result of the unlawful termination and refusal to employ him, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful termination of Thomas B. Williams and refusal to employ him, and within 3 days thereafter, notify him in writing that this has been done and that the unlawful conduct will not be used against him in any way. (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 Braddock, Pennsylvania, copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 notices are not al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current and former employees employed by the Respondent at any time since October 27, 2003. (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. April 21, 2004 Robert J. Battista, Chairman Dennis P. Walsh, Member Ronald Meisburg, 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 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 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.” SCIARRETTI ASPHALT PAVING CO. 3 The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose 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 terminate, refuse to employ, or otherwise discriminate against our employees because they join or assist the International Union of Operating Engineers, Local 66, 66A, B, C, D, O & R, AFL–CIO, or any other labor organization, and engage in 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 the Board’s Order, offer Thomas B. Williams full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make Thomas B. Williams whole for any loss of earnings and other benefits suffered as a result of the unlawful termination and refusal to employ him, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful termination of Thomas B. Williams and refusal to employ him, and WE WILL, within 3 days thereafter, no- tify him in writing that this has been done and that the unlawful conduct will not be used against him in any way. SCIARRETTI ASPHALT PAVING COMPANY