Calloway And Co.

CALLOWAY & CO. Calloway and Company and International Brother- hood of Electrical Workers, Local Union 934. Case 5-CA-19110 June 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT Upon a charge filed by International Brother- hood of Electrical Workers, Local Union 934, the Union, on September 16, 1987, the General Coun- sel of the National Labor Relations Board issued a complaint against Calloway and Company, the Re- spondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging and/or laying off employee H. Larry Haga from its Bristol, Virginia jobsite for en- gaging in protected concerted and union activity. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. On April 11, 1988, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support, with exhibits attached. On April 19, 1988, 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 Respondent timely filed a response to the Notice to Show Cause. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions 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. The complaint states that unless an answer is filed within 14 days of service, "all the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, the undisputed alle- gations of the Motion for Summary Judgment dis- close that a Board agent from Region 5 attempted to contact the Respondent's president, Roscoe Calloway, by telephone on February 1, 1988, and, Calloway being unavailable, left a message that the Respondent had not filed an answer, that an addi- tional period of time for filing would be granted, and that unless an answer was received by Febru- ary 16, 1988, a Motion for Summary Judgment would be filed. By letter of February 1, 1988, served on the Respondent by certified mail, the Board agent repeated the above information, in- cluding the Regional Director's intention to file a 73 Motion for Summary Judgment if no answer was received by February 16, 1988. No answer had been received and no request for an extension of time to file an answer had been made by April 6, 1988, the date of the General Counsel's motion. As a response to the Notice to Show Cause, due and received May 3, 1988, the Respondent submit- ted a letter from Calloway in which Calloway "at- tempted to address all issues set forth in . . . [the] original complaint." Specifically, Calloway denies personal knowledge of any union activity on his Bristol, Virginia jobsite by alleged discriminatee Haga or any other person in his employ, and claims that Haga was laid off for cause, i.e., "sloth- ful work attitude and behavior." The letter con- tains no explanation why the Respondent failed to answer the complaint despite appropriate notice and the warnings that if no answer was forthcom- ing by February 16, 1988, a Motion for Summary Judgment would be filed. Nor does it explain why the Respondent never requested an extension of time in which to file an answer. Because the Respondent has not explained why it failed to contact the Regional Office concerning an answer or request an extension of time for filing an answer, we find the Respondent has not shown good cause for failing to file a timely answer.' Ac- cordingly, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION 1(a) At all times material, the Respondent, a Vir- ginia corporation with an office and place of busi- ness in Chesapeake, Virginia, and a jobsite at Bris- tol, Virginia, the only site involved here, has en- gaged in the business of electrical contracting work. (b) During the 12-month period preceding issu- ance of the complaint, a representative period, the Respondent, in the course and conduct of its busi- ness operations described above in paragraph 1(a), provided services valued in excess of $50,000 di- rectly for English Construction Company, Inc., a general contractor within the Commonwealth of Virginia. (c) English Construction Company, Inc., located in Alta Vista, Virginia, is engaged in the business of general construction contracting work. ' Monroe Furniture Co, 231 NLRB 143 (1977) See also Urban Labora- tories, 249 NLRB 867 (1980) 289 NLRB No. 14 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (d) During the 12-month period preceding issu- ance of the complaint, a representative period, English Construction Company, Inc., in the course and conduct of its business operations described above in paragraph 1(c), directly derived gross rev- enues in excess of $50,000 for the performance of work outside the Commonwealth of Virginia. (e) English Construction Company, Inc. is now, and has been at all times material, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. (f) The Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES About September 8, 1987, the Respondent at its Bristol, Virginia jobsite discharged and/or laid off its employee H. Larry Haga because he joined, supported, or assisted the Union and engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and in order to discourage employees from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Based on the above, we find the Respondent has discriminated, and is discriminating, in regard to the hire or tenure or terms or conditions of em- ployment of its employees, thereby discouraging membership in a labor organization, and the Re- spondent thereby has been engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. CONCLUSIONS OF LAW About September 8, 1987, the Respondent dis- charged and/or laid off its employee H. Larry Haga because he joined, supported, or assisted the Union and engaged in protected concerted activi- ties, in violation of Section 8(a)(1) and (3) 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 designed to effectuate the policies of the Act. Having found that the Respondent discriminator- ily discharged and/or laid off H. Larry Haga, we shall order it to offer him immediate and full rein- statement to his former job or , if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights and privileges previously enjoyed . We shall also order the Respondent to make him whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of his discharge and/or layoff to the date of proper offer of rein- statement, less any net interim earnings, as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded.2 In addition, the Respondent must remove from its files any reference to the unlawful discharge and/or layoff of H. Larry Haga and notify him in writing that this has been done and that the discharge and/or layoff will not be used against him in any way.3 ORDER The National Labor Relations Board orders that the Respondent, Calloway and Company, Chesa- peake, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or laying off employees because they engage in protected concerted or union activi- ties. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer H. Larry Haga immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the deci- sion. (b) Remove from its files any reference to the unlawful discharge and/or layoff of H. Larry Haga 2 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 US C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 8 The General Counsel requests a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request See Cherokee Marine Terminal, 287 NLRB 1080 (1988) CALLOWAY & CO. and notify him in writing that this has been done and that the discharge and/or layoff will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Chesapeake, Virginia, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 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 Nation- al 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 75 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of you for engaging in protected concerted or union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer H. Larry Haga immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge and/or layoff, less any net interim earnings, plus interest. WE WILL notify H. Larry Haga that we have re- moved from our files any reference to his dis- charge and/or layoff and that the discharge and/or layoff will not be used against him in any way. CALLOWAY AND COMPANY