C & R Masonry of Michigan

National Labor Relations Board - Board Decisions

Jan 29, 2003

338 N.L.R.B. 93 (N.L.R.B. 2003)

338 NLRB No. 93
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.
Riverside Masonry LLC d/b/a C & R Masonry of
Michigan and Kenneth Henderson. Case 7–CA–
45027
January 29, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The General Counsel seeks summary judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by
Kenneth Henderson (the Charging Party) on April 12,
2002, the General Counsel issued the complaint on Sep-
tember 12, 2002, against Riverside Masonry LLC d/b/a C
& R Masonry of Michigan, the Respondent, alleging that
it has violated Section 8(a)(1) and (3) of the Act. The
Respondent failed to file an answer.
On October 29, 2002, the General Counsel filed a Mo-
tion for Default Summary Judgment with the Board. On
October 31, 2002, 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 delegated 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 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 states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated October 3, 2002, notified the Respondent that
unless an answer was received by October 10, 2002, a
motion for default summary 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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Michigan cor-
poration with an office and place of business at 12801
Auburn Road, Detroit, Michigan, has been engaged as a
masonry contractor in the construction industry doing
commercial and industrial construction. The Respondent
maintains jobsites in the metropolitan Detroit, Michigan
area, including jobsites captioned Heilman and Taft, the
only jobsites involved in this proceeding.
During the calendar year ending December 31, 2001,
the Respondent, in conducting its business operations
described above, derived gross revenues in excess of
$500,000, and at its various Michigan jobsites purchased
and received goods valued in excess of $50,000 directly
from points outside the State of Michigan.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. We also find that Local 334, Laborers’
International Union of North America, 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 Respondent, as a member of
Mason Contractors Association, Inc., and the Union have
maintained in effect and enforced a collective-bargaining
agreement covering wages, hours, and other terms and
conditions of employment of certain employees of the
Respondent in the metropolitan Detroit, Michigan area.
On about November 14, 2001, the Charging Party
claimed the right to start the workday at the same time as
other laborers.
On about November 15, 2001, the Charging Party
claimed the right to refuse to work, because of working
conditions he reasonably believed to be dangerous.
The Charging Party’s claims set forth above arise un-
der the collective-bargaining agreement between the Re-
spondent and the Union.
On about December 22, 2001, the Respondent termi-
nated the employment of or laid off the Charging Party.
The Respondent terminated or laid off the Charging
Party because he made the claims described above, be-
cause of his support for, activities, and sympathies on
behalf of the Union, and to discourage employees from
engaging in these or other protected concerted activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been interfering with, restraining, and coercing
its employees because of their protected concerted activi-
ties, and has been discriminating in regard to the hire or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
tenure or terms or conditions of employment of its em-
ployees, thereby discouraging membership in labor or-
ganizations, and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3)
of the Act. The Respondent’s unfair labor practices af-
fect 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)(1)
and (3) by terminating the employment of or laying off
Kenneth Henderson, we shall order the Respondent to
offer Henderson 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. In addition, we
shall order the Respondent to make Henderson whole for
any loss of earnings and other benefits suffered as a re-
sult 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, 283 NLRB 1173 (1987). The
Respondent also shall be required to expunge from its
files all references to Henderson’s unlawful termination
or layoff, and to notify him in writing that this has been
done and that his termination or layoff will not be used
against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Riverside Masonry LLC d/b/a C & R Ma-
sonry of Michigan, Detroit, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating or laying off its employees because
they make claims arising under the collective-bargaining
agreement, because of their support for, and activities
and sympathies on behalf of, the Union, or to discourage
employees from engaging in these or other protected
concerted activities.
(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
Kenneth Henderson 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 other
rights and privileges previously enjoyed.
(b) Make whole Kenneth Henderson for any loss of
earnings and other benefits suffered as a result of his
unlawful termination or layoff, with interest, in the man-
ner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, ex-
punge from its files all references to the unlawful termi-
nation or layoff of Kenneth Henderson, and within 3
days thereafter, notify him in writing that this has been
done and that his termination or layoff 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 Detroit, Michigan, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 22, 2001.
(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., January 29, 2003

1If 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.”

C & R MASONRY OF MICHIGAN 3

Robert J. Battista, Chairman

Wilma B. Liebman, Member

Peter C. Schaumber, 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

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 or lay off our employees be-
cause they reasonably make claims arising under the col-
lective-bargaining agreement, because of their support
for, and activities and sympathies on behalf of, the Un-
ion, or to discourage employees from engaging in these
or other protected concerted 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 Kenneth Henderson 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 other rights and privileges previously enjoyed.
WE WILL make whole Kenneth Henderson for any loss
of earnings and other benefits suffered as a result of his
unlawful termination or layoff, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful termination or layoff of Kenneth Henderson, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that his termination or layoff will
not be used against him in any way.

RIVERSIDE MASONRY LLC D/B/A C & R
MASONRY OF MICHIGAN