Kathy'S Kranes Corp.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kathy's Kranes Corporation and Kenneth E Stae- hell, Kathy's Krane & Construction and Con- struction, Building Material, Ice & Coal Driv- ers & Helpers & Inside Employees, Local No 221, Petitioner Cases 18-CA-8665 and 18- RC-13578 24 September 1984 DECISION, ORDER, AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER Upon a charge filed by Kenneth E Staeheli 16 March 1984, the General Counsel of the National Labor Relations Board issued a complaint 3 May 1984 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(3) and (1) of the National Labor Relations Act Although prop- erly served copies of the charge and complaint, and notwithstanding a voluntary extension of time for filing an answer, the Respondent has failed to file an answer 1 On 13 June 1984 the General Counsel filed a Motion for Summary Judgment On 19 June 1984 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 Company 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 10 days from service of the complaint, unless good cause is shown The complaint states that unless an answer is filed within 10 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 the General Counsel, by letter dated 17 May 1984, notified the Company that unless an answer was received by 25 May 1984, a Motion for Summary Judgment would be filed In the absence of good cause being shown for the failure to file a timely answer, we grant the ' On 24 May 1984 the Acting Regional Director for Region 18 Issued a report in which he consolidated the representation and unfair labor practice proceedings for purposes of hearing The General Counsel seeks summary judgment only in the unfair labor practice case and requests that the representation proceeding be severed and remanded to the Re gional Director for the purpose of making further findings in that case General Counsel's Motion for Summary Judg- ment 2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Company, a Minnesota corporation, is en- gaged as a general contractor in commercial build- ing and construction, and provides window re- placement, roof repair, an excavation services The Company, at its St Paul, Minnesota facility and at construction projects within the State of Minneso- ta, annually purchases and receives goods and ma- terials valued in excess of $50,000 either directly from suppliers located outside the State of Minne- sota or from other enterprises located within the State of Minnesota which had received said goods and materials directly from points outside the State of Minnesota We find that the Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES About 16 March 1984 the Respondent, acting through Controller Cohn Anderson, a supervisor within the meaning of Section 2(11) of the Act, in- terrogated employees regarding their union activi- ties and threatened to discharge employees who en- gaged in activities in support of the Union We find that by such conduct the Respondent has coerced employees in violation of Section 8(a)(1) of the Act Additionally, about 16 March 1984 the Re- spondent discharged employee Kenneth E Staeheli because he engaged in union activities We find that the Respondent, by discharging Staeheli for his Section 7 activity, violated Section 8(a)(3) and (1) of the Act 3 CONCLUSIONS OF LAW 1 By coercively interrogating employees and threatening to discharge employees who engage in activities in support of the Union, the Respondent 2 In granting the General Counsel s Motion for Summary Judgment, Chairman Dotson specifically relies on the total failure of the Respondent to contest either the factual allegations or legal conclusions of the Gener al Counsel s complaint Thus, the Chairman regards this proceeding as es- sentially a default judgment which is without precedential value As noted by the General Counsel in the Motion for Summary Judg ment, our finding that Staeheli was discriminatorily discharged establishes his status as an employee, but does not resolve other issues concerning his eligibility to vote Accordingly we shall sever the representation case from this proceeding and remand It to the Regional Director for further findings regarding Staeheli s eligibility 272 NLRB No 35 KATHY'S KRANES CORP 263 engaged in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act 2 By discriminatorily discharging Kenneth E Staeheli, about 16 March 1984, because of his union activities, the Respondent violated Section 8(a)(3) and (1) of the Act 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE 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 offer Kenneth E Staeheli reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net inter- im earnings as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp, 231 NLRB 651 (1977) 4 ORDER The National Labor Relations Board orders that the Respondent, Kathy's Kranes Corporation, St Paul, Minnesota, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees regarding their union activities (b) Threatening employees with discharge if they engage in activities in support of the Union (c) Discharging or otherwise discriminating against employees because of their union activities (d) 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 Kenneth E Staeheli immediate and 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, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination prac- ticed against him, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharge of Kenneth E Staeheli and 4 See generally Isis Plumbing Co, 138 NLRB 716 (1962) notify him in writing that this has been done and that the discharge 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 St Paul, Minnesota facility copies of the attached notice marked "Appendix "5 Copies of the notice, on forms provided by the Re- gional Director for Region 18, 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 (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply DIRECTION IT IS DIRECTED that Case 18-RC-13578 be sev- ered from this consolidated proceeding and re- manded to the Regional Director for Region 18 for the purpose of making further findings with respect to the voting eligibility of Kenneth E Staeheli 5 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 Judgment of the United States Court of Appeals Encorcing an Order of the Nation al 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 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 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 supporting Construc- tion, Building Material, Ice & Coal Drivers & Helpers & Inside Employees, Local No 221, or any other union WE WILL NOT threaten you with discharge if you engage in activities in support of the Union WE WILL NOT coercively question you about your union support or 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 Kenneth E Staeheli immediate and 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 and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way KATHY'S KRANES CORPORATION