Lassiter Construction Corp

LASSITER CONSTRUCTION CORP 177 Lassiter Construction Corp and Owen Campbell and Local Union 59, Mason Tenders District Coun- cil of Greater New York , Party to the Contract Case 2-CA-22676 March 14, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY Upon a charge filed by Owen Campbell, an indi vidual, on February 10, 1988, the General Counsel of the National Labor Relations Board issued a complaint on April 29, 1988, against Lassiter Con- struction Corp, the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act Although properly served copies of the charge and complaint, the Respond- ent has failed to file an adequate answer On December 2, 1988, the General Counsel filed a Motion for Summary Judgment On December 8, 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, "all the allegations in the Complaint shall be deemed to be admitted to be true and shall be so found by the Board "i Further, the undisputed allegations in the Motion for Sum- mary Judgment disclose that the counsel for the General Counsel, by letter dated June 15, 1988, no tified the Respondent that unless an answer was re- ceived by June 24, 1988, a Motion for Summary Judgment would be filed In addition, counsel for the General Counsel, by letter dated June 30, 1988, informed the Respondent that if it did not file an answer by July 15, 1988, a Motion for Summary Judgment would be filed By letter dated July 12, 1988, the Respondent stated, inter alia, that Owen Campbell was hired as a temporary elevator operator, he swept the floors during renovation of the elevators, and there `was never any intent to involve Mr Campbell in the Mason Tenders Union " On July 28, 1988, by tele- phone, the counsel for the General Counsel in- formed the Respondent that its letter was an insuf ficient answer because it failed to specifically admit, deny, or explain each of the the complaint's allegations By letter dated August 4, 1988, the counsel for the General Counsel notified the Re- spondent that unless an answer was received by August 12, 1988, a Motion for Summary Judgment would be filed, informed the Respondent's presi dent that if he had any questions he could call her at the number listed, and sent the Respondent a copy of the applicable Board's Rules and Regula tions No additional response from the Respondent was received We find that the letter dated July 12, 1988 is in- sufficient to constitute an answer to the complaint under Section 102 20 of the Board's Rules and Regulations because it does not specifically admit, deny, or explain each of the allegations in the com- plaint See Kramer Volkswagen, 284 NLRB No 28 (June 15, 1987) (unpublished), and Travelodge San Francisco Civic Center, 242 NLRB 287 (1979) Fur- ther, we note there is no indication that the Charg- ing Party was served with a copy of this letter Travelodge, supra at 288 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 I JURISDICTION The Respondent, a corporation with an office and place of business in New York, New York, has been engaged as a general contractor in the build ing and construction industry, performing renova- tion and construction work During the 12-month period ending April 29, 1988, the Respondent pur- chased and received at its New York, New York facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of New York 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 ' The complaint stated that an answer must be filed within 10 days of service which is less than the 14 days provided for in Sec 102 20 of the Board s Rules and Regulations However this did not prejudice the Re spondent since it was given several extensions to answer the complaint beyond the 14-day period II ALLEGED UNFAIR LABOR PRACTICES Since on or about July 1987, the Respondent and the Union have maintained a collective-bargaining 293 NLRB No 27 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement covering wages, hours, and other terms and conditions of employment for the Respondent's employees who are employed as mason tenders at the Respondent's jobsites located in the borough of Manhattan Since November 1987 until January 1988, the Respondent employed Owen Campbell as a mason tender, but has failed to apply the terms and condi tions of employment contained in the collective- bargaining agreement to him, because he was not a member of the Union By these acts the Respondent has discriminated in the terms and conditions of employment by en- couraging membership in the Union in violation of Section 8(a)(1) and (3) of the Act CONCLUSIONS OF LAW By failing to apply the terms of the collective- bargaining agreement to Owen Campbell, the Re- spondent has engaged in unfair labor practices of fecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) 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 We shall order the Respondent to adhere to the terms and conditions of its collective bargaining agreement, and make whole Owen Campbell for any loss of earnings or other benefits suffered as a result of the failure to abide by the terms of its col- lective-bargaining agreement, to be computed in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), with interest to be comput- ed in the manner prescribed in New Horizons for the Retarded 2 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Apply the terms and conditions of its collec tive-bargaining agreement with the Union to all unit employees without regard to their membership or nonmembership in the Union (b) Make Owen Campbell whole for any loss of earnings or other benefits suffered as a result of the Respondent's failure to abide by the terms of its collective-bargaining agreement with the Union, in the manner set forth in the remedy section of this decision (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 New York, New York, copies of the attached notice marked "Appendix "3 Copies of the notice, on forms provided by the Re- gional Director for Region 2, 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 S 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 ORDER The National Labor Relations Board orders that the Respondent, Lassiter Construction Corp, New York, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing to adhere to the terms of its collec- tive-bargaining agreement with the Union by fail ing to apply the collective-bargaining agreement to unit employees who are not members of the Union (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 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 to adhere to the terms of our collective-bargaining agreement with the Union by failing to apply the agreement to unit employees who are not members of the Union 2 283 NLRB 1173 (1987) LASSITER CONSTRUCTION CORP 179 WE WILL NOT in any like or related manner WE WILL make whole Owen Campbell for any interfere with, restrain, or coerce you in the exer- loss of earnings and other benefits suffered as a cise of the rights guaranteed you by Section 7 of result of our failure to abide by the terms of our the Act collective-bargaining agreement with the Union, WE WILL apply the terms of our collective -bar- plus interest gaining agreement with the Union to all unit em ployees without regard to their membership or LASSITER CONSTRUCTION CORP nonmembership in the Union