Biltmore Construction Co., Inc.

BILTMORE CONSTRUCTION CO. Biltmore Construction Company, Inc. and Iron Workers Local Union No. 10 affiliated with the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 17-CA-13638 June 30, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT Upon a charge filed by the Union December 17, 1987, the General Counsel of the National Labor Relations Board issued a complaint against Bilt- more Construction Company, Inc., the Respondent, alleging that it has violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Although properly served copies of the charge and com- plaint, the Respondent has failed to file an answer.' On February 22, 1988, the General Counsel filed a Motion for Summary Judgment. On February 29, 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 filed no response. The allegations in the motion are therefore undisputed. 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 of 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 allegations in the Motion for Summary Judgment disclose that counsel for the General Counsel, by letter dated February 12, 1988, notified the Re- spondent that unless an answer was received by February 16, 1988, a Motion for Summary Judg- ment would be filed. ' On January 26, 1988, the Regional Director for Region 17 issued a complaint and notice of hearing in this proceeding, pursuant to Sec. 102 15 of the Board's Rules and Regulations A copy was sent to the Re- spondent by first class mail and was served on counsel for the Respond- ent by certified mail on the same date By letter dated February 12, 1988, counsel for the Respondent withdrew as the Respondent's representative in this proceeding Thereafter, the General Counsel sent to the Respond- ent a copy of the Motion for Summary Judgment by certified mail with a copy of the complaint attached , but these documents were returned "un- claimed " The Respondent was thereafter served with a copy of the order transferring proceeding to the Board and Notice to Show Cause, by certified mail, on March 11, 1988 The record indicates no attempt was made by the Respondent to respond to this Notice to Show Cause. 719 In the absence of good cause being shown for the failure to file a timely answer, 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 The Respondent, a Missouri corporation, is en- gaged in the construction industry and has an office and place of business in Sedalia, Missouri. Based on a projection of its operations since about October 1, 1987, at which time the Respondent commenced its operations, the Respondent, in the course and conduct of its business operations, will annually perform services valued in excess of $50,000 in States other than the State of Missouri and will annually provide services valued in excess of $50,000 to other enterprises located within the State of Missouri, which meet the Board's jurisdic- tional standards. We find that the Respondent is an employer engaged in commerce within the mean- ing of Section 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 Since about December 1987, the Union has been recognized by the Respondent as the designated collective-bargaining representative of the employ- ees in the following appropriate bargaining unit: All employees of Respondent performing all types of construction work within the estab- lished craft jurisdiction of the International Association of Bridge, Structural and Orna- mental Iron Workers, and in the following counties in Missouri: Andrew, Atchison, Barton, Bates, Benton, Buchanan, Caldwell, Carrol, Cass, Cedar, Chariton, Christian, Clay, Clinton, Cooper, Dade, Dallas, Daviess, Dekalb, Gentry, Greene, Grundy, Harrison, Henry, Hickory, Holt, Howard, Jackson, Johnson, Lafayette, Linn, Livingston, Mercer, Moniteau, Morgan, Nodaway, Ozark, Pettis, Platte, Polk, Randolph, Ray, St. Clair, Saline, Sullivan, Taney, Vernon, Webster, Worth, Wright and portions of Boone, Camden, Douglas, Laclede and Miller; and the follow- ing counties in Kansas : Allen, Anderson, Atch- ison, Bourbon, Brown, Coffey, Doniphan, Douglas, Franklin, Jackson, Jefferson, John- son, Leavenworth, Linn, Lyon, Marshall, Miami, Nemaha, Osage, Pottawatomie, Riley, Shawnee, Wabaunsee, Wyandotte, and por- tions of Neosho and Crawford counties, but 289 NLRB No. 90 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD excluding supervisors within the meaning of the Act, and all other employees. About December 3, 1987, the Union and the Re- spondent reached full and complete agreement re- garding terms and conditions of employment of the employees in the agreed-on unit to be incorporated in a collective-bargaining agreement between the Union and the Respondent, and executed a con- tract stipulation binding the Respondent to the cur- rent collective-bargaining agreement between the Union and the Builders' Association of Missouri, effective by its terms for the period April 1, 1987, until March 31, 1990. Since December 10, 1987, the Respondent has failed and refused to recognize and bargain with the Union and has refused to abide by and adhere to the collective-bargaining agreement. We find that by the acts and conduct described above the Respondent has failed and refused to bargain collectively and is failing and refusing to bargain collectively with the representative of its employees, and the Respondent has been engaging in unfair labor practices within the meaning of Sec- tions 8(a)(5) and (1) and 8(d) of the Act. About December 10, 1987, the Respondent, acting through Foreman Robert Cecil, at a jobsite located at 49th and Parallel in Kansas City, Kansas, informed prospective employees that they would not be hired because of their affiliation with a labor organization. We find that by such conduct the Re- spondent has interfered with, restrained, and co- erced employees in the exercise of the rights guar- anteed them in Section 7 of the Act, and that the Respondent thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. About December 10, 1987, the Respondent re- fused to hire job applicants Edward Anderson, William Billings, and Robert Williams because these applicants joined, supported, or assisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection and in order to discourage em- ployees from engaging in such activities or other concerted activities. We find that by these acts the Respondent has discriminated, and is discriminat- ing, regarding the hire or tenure or terms or condi- tions of employment of its employees, thereby dis- couraging membership in a labor organization, and the Respondent thereby has been engaging in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3). CONCLUSIONS OF LAW 1. The Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act by failing and refusing to recognize and bargain with the Union and failing and refusing to adhere to the contract stipulation executed about December 3, 1987. 2. The Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by informing prospective employees that they would not be hired because of their affiliation with a labor organization. 3. The Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act by refusing to hire applicants because they joined , supported, or assisted the Union and engaged in protected concerted activities. 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. 2 Having found that the Respondent failed to hire Edward Anderson, William Billings, and Robert Williams in violation of Section 8(a)(3) and (1) of the Act, we shall order that the Respondent offer them employment3 and make them whole for any loss of wages and other benefits resulting from its failure to hire them starting December 10, 1987, by payment to them of a sum of money equal to the amount they would have earned in wages and other benefits from that date to the date on which employment is offered, less net earnings. The amount of backpay shall be calculated in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Re- tarded.4 Having further found that the Respondent un- lawfully refused to abide by and adhere to the terms and conditions of its collective-bargaining agreement with the Union, we shall order the Re- spondent to make its employees whole for any loss in wages or other benefits due to the Respondent's refusal to apply the terms of the collective-bargain- ing agreement, as prescribed in Ogle Protection 2 The General Counsel requested a visitatorial clause In the circum. stances of this case, that clause is unwarranted See Cherokee Marine Ter- minal, 287 NLRB 1080 (1988) 8 The complaint does not state the specific type of employment the ap- plicants were seeking We shall leave to compliance the factual inquiry into the specific jobs sought and wages and other benefits See, e g , Dean General Contractors, 285 NLRB 573 (1987) 4 283 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 BILTMORE CONSTRUCTION CO. Service, 183 NLRB 682 (1970), and Kraft Plumbing & Heating, 252 NLRB 891 (1980), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).5 ORDER The National Labor Relations Board orders that the Respondent, Biltmore Construction Company, Inc., Sedalia, Missouri, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with the representative of its em- ployees in the following appropriate bargaining unit: All employees of Respondent performing all types of construction work within the estab- lished craft jurisdiction of the International Association of Bridge, Structural and Orna- mental Iron Workers, and in the following counties in Missouri: Andrew, Atchison, Barton, Bates, Benton, Buchanan, Caldwell, Carrol, Cass, Cedar, Chariton, Christian, Clay, Clinton, Cooper, Dade, Dallas, Daviess, Dekalb, Gentry, Greene, Grundy, Harrison, Henry, Hickory, Holt, Howard, Jackson, Johnson, Lafayette, Linn, Livingston, Mercer, Moniteau, Morgan, Nodaway, Ozark, Pettis, Platte, Polk, Randolph, Ray, St. Clair, Saline, Sullivan, Taney, Vernon, Webster, Worth, Wright and portions of Boone, Camden, Douglas, Laclede and Miller; and the follow- ing counties in Kansas: Allen, Anderson, Atch- ison, Bourbon, Brown, Coffey, Doniphan, Douglas, Franklin, Jackson, Jefferson, John- son, Leavenworth, Linn, Lyon, Marshall, Miami, Nemaha, Osage, Pottawatomie, Riley, Shawnee, Wabaunsee, Wyandotte, and por- tions of Neosho and Crawford counties, but excluding supervisors within the meaning of the Act, and all other employees. (b) Failing and refusing to abide by and adhere to the collective-bargaining agreement between the Union and the Builders' Association of Missouri, which became binding on the Respondent when it executed a contract stipulation with the Union about December 3, 1987. (c) Informing prospective employees that they will not be hired because of their affiliation with a labor organization. (d) Failing and refusing to hire Edward Ander- son, William Billings, and Robert Williams because 5 Further, under Merryweather Optical Co, 240 NLRB 1213 (1979), we leave the determination of any additional amounts due employee benefit funds to the compliance stage 721 they joined, supported, or assisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion and in order to discourage employees from en- gaging in such activities. (e) 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 Edward Anderson, William Billings, and Robert Williams employment and make them whole, with interest, in the manner set forth in the remedy section of this decision. (b) On request, bargain collectively with the Union as the exclusive representative of the em- ployees in the above-described unit. (c) Abide by and adhere to the terms and provi- sions of the collective-bargaining agreement reached with the Union, which is effective April 1, 1987, through March 31, 1990. (d) Make employees whole for any loss of earn- ings and other benefits, plus interest, as set forth in the remedy section, due to the Respondent's failure to abide by and adhere to the collective-bargaining agreement with the Union. (e) Remove from its files any reference to the unlawful refusal to hire the above-named employ- ees and notify them in writing that this has been done and that it will not use the refusal to hire them against them in any way. (f) 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. (g) Post at its facility in Sedalia, Missouri, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Re- gional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 altered, defaced, or covered by any other material. 6 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 " 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain with the Iron Workers Local Union No. 10 affiliated with the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO as the exclusive bargaining representative of the employ- ees in the following appropriate bargaining unit: All employees of Respondent performing all types of construction work within the estab- lished craft jurisdiction of the International Association of Bridge, Structural and Orna- mental Iron Workers, and in the following counties in Missouri: Andrew, Atchison, Barton, Bates, Benton, Buchanan, Caldwell, Carrol, Cass, Cedar, Chariton, Christian, Clay, Clinton, Cooper, Dade, Dallas, Daviess, Dekalb, Gentry, Greene, Grundy, Harrison, Henry, Hickory, Holt, Howard, Jackson, Johnson, Lafayette, Linn, Livingston, Mercer, Moniteau, Morgan, Nodaway, Ozark, Pettis, Platte, Polk, Randolph, Ray, St. Clair, Saline, Sullivan, Taney, Vernon, Webster, Worth, Wright and portions of Boone, Camden, Douglas, Laclede and Miller; and the follow- ing counties in Kansas: Allen, Anderson, Atch- ison, Bourbon, Brown, Coffey, Doniphan, Douglas, Franklin, Jackson, Jefferson, John- son, Leavenworth, Linn, Lyon, Marshall, Miami, Nemaha, Osage, Pottawatomie, Riley, Shawnee, Wabaunsee, Wyandotte, and por- tions of Neosho and Crawford counties, but excluding supervisors within the meaning of the Act, and all other employees. WE WILL NOT fail and refuse to abide by and adhere to the terms of our collective-bargaining agreement with the Union. WE WILL NOT inform prospective employees that they will not be hired because of their affili- ation with a labor organization. WE WILL NOT fail and refuse to hire Edward Anderson, William Billings, and Robert Williams because they joined, supported, or assisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection and in order to discourage em- ployees from engaging in such 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, on request, bargain with the Union as the exclusive representative of our employees in the unit and honor the collective-bargaining agree- ment effective April 1, 1987, through March 31, 1990. WE WILL offer Edward Anderson, William Bil- lings, and Robert Williams employment and WE WILL make them whole for any loss of earnings and other benefits resulting from our refusal to hire them, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the unlawful refusal to hire the above-named em- ployees and WE WILL notify each of them in writ- ing that this has been done and that evidence of the unlawful refusal to hire will not be used against them in any way. WE WILL make our employees whole for any loss of wages or other benefits, with interest, due to our failure to abide by and adhere to the terms of our collective-bargaining contract with the Union. BILTMORE CONSTRUCTION COMPANY, INC.